The Honoré-Waldron Thesis: A Comparison of the Blend of Ideal-Typic Categories of Property in American, Chinese and Australian Land Law

Abstract

Using a theoretical perspective drawing upon established scholarship, this article develops a framework for comparing the blend of private, state/public, and common property in divergent jurisdictions. The article tests the framework it develops through an analysis of the real property law of China, the United States, and Australia. China is selected not only for its relevance on the world stage and in order to provide an understanding of that legal system for a broader audience, but also because it demonstrates the role of private property in a civilian system of law, one otherwise thought to be communist-socialist. The United States and Australia both serve as common law examples of systems in which it might be thought that private property predominates, but in which state and public property mix in significantly different ways. The article concludes that whatever one might think about the political-economic makeup of their broader societal contexts, the legal systems of China, the United States and Australia each exhibit a blend of the ideal-typic forms of property.

Keywords: Property theory, Property law, Australian real property law, United States real property law, Chinese real property law, Australia, United States, China

JEL Classification: K10, K11, K30, K33