The Architecture of Property

Research Handbook on Private Law Theories, 134-54, edited by Hanoch Dagan and Benjamin Zipursky, Edward Elgar, 2020

21 Pages Posted: 11 Oct 2019 Last revised: 16 Mar 2021

See all articles by Thomas W. Merrill

Thomas W. Merrill

Columbia University - Law School

Henry E. Smith

Harvard Law School

Date Written: October 1, 2019

Abstract

Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additiviely simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to the system as a whole. In working as a whole, the system exhibits a number of tightly interwoven design principles, including the centrality of things, rights to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and “property rule” protection and equity. The architectural approach allows us to revsit some basic questions in property theory and to capture the dyanamic realtiy of property law and institutions.

Keywords: property, complexity, architecture, modularity, exclusion, governance, standardization, property rules

JEL Classification: B52, K11

Suggested Citation

Merrill, Thomas W. and Smith, Henry E., The Architecture of Property (October 1, 2019). Research Handbook on Private Law Theories, 134-54, edited by Hanoch Dagan and Benjamin Zipursky, Edward Elgar, 2020, Available at SSRN: https://ssrn.com/abstract=3462643

Thomas W. Merrill

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-7946 (Phone)

Henry E. Smith (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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