An Expressive Theory of Possession

Erscheinungsjahr 2022
ISBN: 978-1-5099-4408-8
Verlag: Hart Publishing

Buch, Englisch, 230 Seiten, Paperback, Format (B × H): 154 mm x 232 mm, Gewicht: 360 g

Possession is a foundational concept in property law. Despite its undoubted importance, it is poorly understood and a perennial source of confusion. Indeed, there is a widely held view amongst lawyers that possession is an irredeemably ambiguous and amorphous concept. This book aims to challenge this conventional wisdom and to demonstrate that possession is in fact far simpler than generations of lawyers have been led to believe.

In viewing possession as a knotty problem for the philosopher or legal theoretician, scholars are apt to overlook the important truth that possession is a concept that laymen routinely and, for the most part, effortlessly apply as they navigate through the countless property interactions that shape everyday life. The key to understanding the nature and function of possession in the law is to appreciate that the possession 'rule' is, first and foremost, a spontaneously emergent phenomenon. Possession describes those acts that, as a matter of an extra-legal convention, constitute the accepted way in which members of a given population stake their claims to tangible things.

Fusing traditional legal analysis with insights from philosophy and economics, An Expressive Theory of Possession applies this central claim to both theoretical and doctrinal problems in property law and, in doing so, provides a coherent explanation of possession and its role in law and life.

Autoren/Hrsg.

Crawford, Michael JR

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)
• Rechtswissenschaften Bürgerliches Recht Sachenrecht

Inhaltsverzeichnis

Introduction

I. The Possession Puzzle
II. Scope of the Book

III. Methodological Divergence in Private Law Scholarship

IV. Central Arguments

V. Chapter Outlines

VI. A Note on Nomenclature

1. 'Exclusion' and 'Possession': An Introduction to Property Rights

I. Introduction

II. What is a 'Thing' and How Do I Get One?

III. The Content of a Property Right

IV. The Exclusion Model of Property Rights

V. The Exclusion Model and Tort

VI. Property Limitation Rules

VII. Uncoupling 'Property' and 'Possession'

VIII. Conclusion

2. Facts, Rights and Other Things: Laying the Conceptual Foundations

I. Introduction

II. What is Possession? Some Views from the Academy
III. Playing Word Games: The Language of Possession

IV. Jural and Non-Jural Concepts

V. Ownership and Relative Title

VI. Conclusion

3. An Expressive Theory of Possession

I. Introduction

II. What Counts as 'Possession'?

III. The Expressive Theory of Possession

IV. Limiting the Vocabulary of Possession

V. Do Courts Apply the Expressive Theory?

VI. Conclusion

4. The Possession Convention

I. Introduction

II. Explanations of the Possession Rule

III. David Hume's Theory of Property

IV. Conventions

V. The Role of Salience in Conventions

VI. From Conventions to Norms

VII. Conclusion

5. Possession and Fairness

I. Introduction

II. Hume's Guillotine and Locke's Proviso: Epstein's Partial Defence of the Possession Rule

III. Is Possession Fair?

IV. The Place of Conventions in the Law

V. Conclusion

6. Losing, Finding and the Limits of Possession 2
I. Introduction

II. The Rules in Outline

III. Are these Rules Possessory?

IV. Instrumental Justifications

V. Are the Rules on Finding Desirable?

VI. Navigating the Property Universe

VII. Conclusion

7. Theft, Good Faith Purchase and the Limits of Conventions

I. Introduction

II. Possession and Theft

III. Possession and Bona Fide Purchase

IV. Conclusion

Conclusion

Über Autor(innen)

Crawford, Michael JR
Michael JR Crawford is Lecturer in Law at the University of New South Wales, Australia.

Michael JR Crawford is Lecturer in Law at the University of New South Wales.