Ownership and Offices: The Building Blocks of the Legal Order

32 Pages Posted: 14 Jun 2022

See all articles by Larissa M. Katz

Larissa M. Katz

University of Toronto - Faculty of Law

Date Written: 2020

Abstract

Ownership is not likely to stand out in most people’s minds as either the most central or the most illuminating case of an office. And, yet, I will argue in this article that the idea of ownership as an office is especially revealing of a tension between the concept of an office and the normative significance of offices in a legal order, a tension that property law resolves in a particularly revealing way with respect to ownership. The tension between the concept of office and its normative significance amounts to this: whereas offices are always capable of vacancy because they are impersonal positions of authority separable from the office-holder, the law abhors vacancies in principle. In earlier articles, I have explained how horror vacui motivates property law’s concern ‘to see that the office of ownership is filled.’ In this article, I will explain how and why vacancy in office amounts to a defect in the legal order itself – in brief, because vacancy undermines the effectiveness and, ultimately, the legitimacy of law as a system for allocating authority. I will argue that the potential for vacancy in offices combined with law’s horror vacui leads to possession as a default procedure for appointment to offices, in general, and the office of ownership, in particular.

Suggested Citation

Katz, Larissa M., Ownership and Offices: The Building Blocks of the Legal Order (2020). University of Toronto Faculty of Law Review, Vol. 70, 2020, Available at SSRN: https://ssrn.com/abstract=4126543 or http://dx.doi.org/10.2139/ssrn.4126543

Larissa M. Katz (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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