The Architecture of Property
Forthcoming, Research Handbook on Private Law Theories, edited by Hanoch Dagan and Benjamin Zipursky
21 Pages Posted: 11 Oct 2019
Date Written: October 1, 2019
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: Suggested Citation