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Full-Text Articles in Law
Possession, Custom And Social Order: Property Rights In A Fragile State, Daniel Fitzpatrick
Possession, Custom And Social Order: Property Rights In A Fragile State, Daniel Fitzpatrick
Daniel Fitzpatrick
Lawyers trained in stable socio-political contexts tend to overlook or underestimate the importance of social order in considering fundamental concepts of property such as possession. This article argues that the evolution and effect of possessory rules is closely linked to systems of authority and their relationship with social order. In fragile state environments, different types of possessory rules will have different effects on competitive racing for rights or authority relating to land. While complex or ambiguous rules will increase opportunities for rent-seeking by state actors, they may also serve to channel claimants away from violent contests over land. Conversely, while …
Property And Collective Undertaking: The Principle Of Numerus Clausus, Avihay Dorfman
Property And Collective Undertaking: The Principle Of Numerus Clausus, Avihay Dorfman
Avihay Dorfman
Property rights are subject to the principle of numerus clausus, which is a restriction that means that it cannot be up to the contracting parties - or private persons, more generally - to create new forms of property right, but only to trade rights that take existing forms. What can explain this peculiar limitation? All the answers offered so far by property theorists have marshaled functional explanations either in favor of or against the numerus clausus principle (hereinafter: NC). In this paper I shall set out to articulate a novel explanation of this principle. My argument develops two general claims. …