The Meaning of Property

2020 ◽  
pp. 53-86
Author(s):  
Jean-Philippe Robé
Keyword(s):  
Property Rights ◽  
Power System ◽  
Common Law ◽  
The State ◽  
Constitutional Rights ◽  
Legal Systems ◽  
Secondary Role ◽  
System P ◽  
Rule Making

Property rights are presented in a constitutional perspective. Property rights are constitutional rights. They grant prerogative which are protected both by the State and against the State. Contrary to what most economists think, possession plays a secondary role in the notion of property. Property is a right of decision and rule-making as a matter of principle towards the object of property. Laws affecting the use of property are only limited derogations to this principle. This view is congruent with the theory of ownership developed by Oliver Hart and applies in both Civil and Common Law legal systems. Understanding property in this fashion is a key to the understanding of the operation of the existing Power System.

Property Rights and the Regulatory State

2019 ◽  
Vol 32 (02) ◽  
pp. 473-498
Author(s):  
Cosmin Vraciu
Keyword(s):  
Property Rights ◽  
Essential Element ◽  
The State ◽  
Alternative Solution ◽  
Constitutional Rights ◽  
Regulatory State ◽  
State Regulations ◽  
Regulatory Takings ◽  
Bundle Of Rights ◽  
The Right

AbstractWhen state regulations prevent owners from certain uses of their property, is this action of the state a taking of property which requires compensation? One way of answering this problem, within a framework viewing property as a bundle of rights, is to inquire into whether the incident of use is an essential element of the bundle making up the property. Given the difficulties with figuring out what is essential and what is not, I propose an alternative solution, which does not give up the bundle-of-rights framework, but which, while assuming all incidents to be equally essential, it concentrates, instead, upon the legal entitlements conveying those incidents. I begin by arguing that while the incident of possession may be expressed by a right to exclude, the incident of use is expressed by a Hohfeldian liberty, and then I consider the consequences of this argument for the question of regulatory takings. I argue that while the liberty to use does not render the incident of use meaningless (at least, insofar as regulation of property use is concerned), there is nonetheless a significant distinction between transgressing a right and transgressing a liberty, and this implies that what it takes for an infringement of the right to exclude to be translated into a taking of the (whole) property is less than what it takes for the infringement of the liberty to use to be translated into a taking of property. As I show in the paper, we can achieve this result either by means of an argument from ‘constitutional residue’ or by means of an argument from the specification of constitutional rights.

Formalizing Property Rights

2000 ◽  
Author(s):  
Peter Dale ◽  
John McLaughlin
Keyword(s):  
Property Rights ◽  
Common Law ◽  
Formal Property ◽  
Legal Systems ◽  
Top Down ◽  
Bottom Up ◽  
The People ◽  
Greater Cairo ◽  
The Law ◽  
Eastern European Countries

Property systems may be formal or informal. Formal property systems are those where the interests are explicitly acknowledged and protected by the law. This is the case for the vast majority of property rights in developed countries. Informal property interests are those that are recognized by the local, informal community but which are not formally acknowledged by the state. They exist in most developing countries outside the legal system and are often the result of inadequate legislation, or excessive and inefficient bureaucracies. Many legal systems, such as those based on the French Napoleonic code, have been established ‘top down’ with a framework of law imposed by legislators. The common law systems on the other hand are based on a ‘bottom-up’ approach in which the customs and practices of the people eventually become written down and accepted within a statutory framework. Historically, common law systems grew out of informal systems and, through the body of case law that developed, gradually became accepted across the whole of the jurisdiction. ‘Top-down’ legal systems are essentially negative in that actions may not be undertaken unless they are permitted by the law; ‘bottom-up’ systems generally work on the basis that anything is permitted unless explicitly forbidden by the law. In many of the central and eastern European countries, land reform has been delayed because there were decisions that could not be taken because there was no law that permitted them. Rather than move on with the processes, laws had to be drafted and agreed specifying that such actions were permissible. As an example, work could not be contracted out to the private sector because the law did not say that this was permissible; there was however no statement that such action was forbidden. Informal systems of tenure provide no state security but can, in practice, be sufficiently robust for the people in the areas concerned to invest in housing and development; an estimated three-quarters of Greater Cairo, for example, is said to have been developed without formal approvals.

Direct Effect of the Constitution: Specific Features of the Russian Model from a Comparative Perspective

2021 ◽  
Vol 30 (5) ◽  
pp. 76-117
Author(s):  
Elena Gritsenko ◽  
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
Direct Action ◽  
Common Law ◽  
The State ◽  
Fine Tuning ◽  
Constitutional Rights ◽  
Public And Private ◽  
Constitutional Review ◽  
Basic Rights

The differences in the interpretation of the direct effect of a constitution are mainly caused by the peculiarities of understanding the essence of the constitution and the rule of law, the relation between the national, supranational and international law in a legal system, the specifics of the perceived constitutional concept of basic rights, the limits of private autonomy and the action of constitutional rights in public and private relations. Furthermore, a model of constitutional review and the national judicial system play a key part. The American approach, based on the distinction between common law and constitutional law, creates difficulties in the constitutionalization of the common law. These problems, along with the peculiarities of American federalism, are reflected in the state action doctrine as a tool outlining the mechanisms and limits of constitutional rights and the state’s duties to protect them. However, the solution of the question about the horizontal application of the Constitution depends, rather, not on objective criteria, but the discretion of the court. A different model of the direct action of the Constitution and basic rights has been developed in the German legal system. The Federal Constitutional Court of Germany opened the way for the constitutionalization of sectoral legislation, as well as for the recognition of the mediated horizontal action of constitutional rights in private relations. Post-socialist states developing within the continental legal family, mostly without any reservations, accepted the idea of direct action of the Constitution and fundamental rights in vertical and horizontal relations. This is largely due to the socialist tradition: the Constitution is not perceived as an act addressed to the state, but is regarded as an act addressed to the whole society. In this regard, the current Russian Constitution enshrines the universal obligation for public and private actors to observe the Constitution and allows it to be applied in private relations. The principle of the direct effect requires the court to detect possible conflicts and solve them, using available constitutional means. This mechanism of courts applying the Constitution still needs fine-tuning. In this regard, the issue of ensuring that courts apply the Constitution continues to be a challenge for Russia.

The Indian Legal System

2019 ◽  
Author(s):  
Mahendra Pal Singh ◽  
Niraj Kumar
Keyword(s):  
Legal System ◽  
Common Law ◽  
Legal Systems ◽  
Law System ◽  
Legal Traditions ◽  
System P ◽  
Common Law System

The contemporary Indian legal system owes its origin predominantly to the English common law system. Although this system ushered modernity in India, it has failed to perform optimally on several counts owing to its significant incompatibility with existing Indian traditions. Taking into account indigenously created and evolved legal apparatuses, this volume examines all aspects of the Indian legal system in the context of historical, sociological, and anthropological realities of society. The establishment and growth of common law in India introduced a certain kind of dominant legal apparatus, significantly transforming the understanding of India’s legal plurality. The existence, however, of multiple non-state legal traditions challenges the singular identity of the Indian legal system. Postulating that legal systems cannot be seen or studied in isolation from the cultures of groups whose affairs they regulate, The Indian Legal System explores the preference for non-state legal practices among several communities in India, despite the existence of a formal state legal system.

Implications

2017 ◽  
Author(s):  
Karl Widerquist ◽  
Grant S. McCall
Keyword(s):  
Property Rights ◽  
The State ◽  
Natural Property ◽  
Government Failure ◽  
State Of Nature ◽  
Best Response ◽  
Lockean Proviso ◽  
Definition Of ◽  
Taking Action ◽  
Disadvantaged People

Earlier chapters of this book found that the Hobbesian hypothesis is false; the Lockean proviso is unfulfilled; contemporary states and property rights systems fail to meet the standard that social contract and natural property rights theories require for their justification. This chapter assesses the implications of those findings for the two theories. Section 1 argues that, whether contractarians accept or reject these findings, they need to clarify their argument to remove equivocation. Section 2 invites efforts to refute this book’s empirical findings. Section 3 discusses a response open only to property rights theorists: concede this book’s empirical findings and blame government failure. Section 4 considers the argument that this book misidentifies the state of nature. Section 5 considers a “bracketing strategy,” which admits that observed stateless societies fit the definition of the state of nature, but argues that they are not the relevant forms of statelessness today. Section 6 discusses the implications of accepting both the truth and relevance of the book’s findings, concluding that the best response is to fulfil the Lockean proviso by taking action to improve the lives of disadvantaged people.

The Evolution of a Nation

2011 ◽  
Author(s):  
Daniel Berkowitz ◽  
Karen B. Clay
Keyword(s):  
Political Competition ◽  
Common Law ◽  
Civil Law ◽  
Legal Institutions ◽  
Colonial History ◽  
Legal Systems ◽  
Water Transportation ◽  
Long Run ◽  
Access To Water ◽  
Late Twentieth

Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions—such as climate, access to water transportation, and early legal systems—impacted political and judicial institutions and economic growth. The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states. This book illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.

Konsep Distribusi Pendapatan Dalam Islam

2016 ◽  
Vol 1 (1) ◽  
pp. 85-97
Author(s):  
Moh. Ah. Subhan ZA
Keyword(s):  
Property Rights ◽  
Social Life ◽  
Private Property ◽  
Wealth Distribution ◽  
The State ◽  
Private Property Rights ◽  
Job Opportunities ◽  
The Rich ◽  
The Difference ◽  
Distribution Of Income

The main problem of social life in the community is about how to make the allocation and distribution of income well. Inequality and poverty basically arise not because of the difference of anyone’s strength and weakness in getting livelihood, but because of inappropriate distribution mechanism. With the result that wealth treasure just turns on the rich wealthy, which is in turn, results in the rich get richer and the poor get poorer.Therefore, a discussion on distribution becomes main focus of theory of Islamic economics. Moreover, the discussion of the distribution is not only related to economic issues, but also social and political aspects. On the other side, the economic vision of Islam gives priority to the guarantee of the fulfillment of a better life. Islam emphasizes distributive justice and encloses, in its system, a program for the redistribution of wealth and prosperity, so that each individual is guaranteed with a respectable and friendly standard of living. Islam recognizes private property rights, but the private property rights must be properly distributed. The personal property is used for self and family livelihood, for investment of the working capital, so that it can provide job opportunities for others, for help of the others through zakat, infaq, and shodaqoh. In this way, the wealth not only rotates on the rich, bringing on gap in social life.The problem of wealth distribution is closely related to the welfare of society. Therefore, the state has a duty to regulate the distribution of income in order that the distribution can be fair and reaches appropriate target. The state could at least attempt it by optimizing the role of BAZ (Badan Amil Zakat) and LAZ (Lembaga Amil Zakat) which has all this time been slack. If BAZ and LAZ can be optimized, author believes that inequality and poverty over time will vanish. This is because the majority of Indonesia's population is Muslim.

Propriété contre possession: les conflits liés aux plantations industrielles d'arbres | Property rights vs. common law possession: conflicts surrounding industrial tree plantations

2007 ◽  
Vol 158 (3-4) ◽  
pp. 65-69 ◽  
Author(s):  
Julien-François Gerber ◽  
Rolf Steppacher
Keyword(s):  
Property Rights ◽  
Common Law ◽  
Sustainable Use ◽  
Institutional Logics ◽  
Local Communities ◽  
Tree Plantations ◽  
Ecological Interactions ◽  
Abstract Logic ◽  
Property Versus ◽  
Concrete Logic

This article proposes a new way of looking at social conflicts relating to industrial tree plantations by arguing that such conflicts reflect the struggle between two distinct institutional logics, i.e., property versus possession. The abstract logic of property, enhanced by credit relations and the minimization of costs, stimulates commercial plantations and tends to be detrimental to the environment. By contrast, the concrete logic of possession forces local communities to take account of complex local social and ecological interactions, and thereby encourages a sustainable use of the forest.

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