Private Law Theory

Introduction:
“Property theory suffers from a peculiar kind of reductionism. Commentators pay great attention to the various purposes of property, while rarely leaving the stratosphere of abstraction. As a result, property theory always teeters on the brink of reducing property to its purposes or to the interests it serves — and thereby effacing what is special about the law of property itself. This chapter will show that reductionism is surprisingly widespread in property theory because a wide range of theories fail to take sufficiently seriously the difference between legal concepts and their consequences. Without delving too deeply into the nature of concepts themselves, I will show how it is useful to think of law as having both an intensional and an extensional aspect: we might attain the same set of real-world consequences by a variety of conceptual routes …” (more)

Henry E Smith, ‘Emergent Property’. Forthcoming in James Penner and Henry E Smith, eds. Philosophical Foundations of Property Law, Oxford University Press.

First posted 2013-09-14 12:10:52