Graziadei, Michele --- "The structure of property ownership and the common law/civil law divide" [2017] ELECD 206; in Graziadei, Michele; Smith, Lionel (eds), "Comparative Property Law" (Edward Elgar Publishing, 2017) 71

Book Title: Comparative Property Law

Editor(s): Graziadei, Michele; Smith, Lionel

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447578

Section: Chapter 4

Section Title: The structure of property ownership and the common law/civil law divide

Author(s): Graziadei, Michele

Number of pages: 29

Abstract/Description:

Comparisons of property laws require an understanding of what is living law, governing and structuring social practice and social expectations, and what are instead the intellectual tools that lawyers use to rationalise, structure, and represent property rules in conceptual terms. Many of the differences between the common law and the civil law – even those that are often presented as distinctive of each legal tradition – should be considered as relating mostly to what jurists and lawyers have done to frame property law in intellectual terms. This chapter takes a critical look at how these narratives are construed and upheld. The analysis set out by the author tackles a few problems, namely to what extent common law and civil law systems rely on different ontologies of property law, and how these ontologies have been historicised through different genealogies, and expressed through language. The author claims that a comparative analysis disentangling these various aspects of the subject may help to advance a better understanding of what different property law systems achieve.