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The Unity of the Common Law$
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Alan Brudner

Print publication date: 2013

Print ISBN-13: 9780199592807

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199592807.001.0001

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The Unity of Property Law

The Unity of Property Law

(p.90) (p.91) 3 The Unity of Property Law
The Unity of the Common Law

Alan Brudner

Oxford University Press

This chapter identifies the conditions for a person’s rightfully coming to own something outside a public legal order, and it observes how these conditions are reflected in the common-law doctrines of possession, adverse possession, free alienability, and market overt. It then shows how the embodiment of personality in private property subverts rather than realizes its end-status. This outcome leads to a reconceptualization of the human being as a moral subject whose particular ends are self-authored, whose self-authorship requires material supports, and whose welfare can thus be an object of public concern. With this new foundation is understood a legal paradigm whose doctrines (e.g. proprietary estoppel, quasi-property) remedy the person’s self-loss in private property and perfect its independence. Also understood, however, is a theoretical momentum toward the dissolution of private property in the common welfare, a momentum counteracted by the very principle of individual autonomy the welfarist paradigm seeks to realize. The resultant tension between individualistic and collectivist paradigms constitutes the modern challenge for a theory of the property law’s unity. The chapter responds to this challenge with a legal foundation already implied by the downfall of the old, one that incorporates both paradigms as constituent parts of a whole.

Keywords:   personality, property, possession, use, alienation, market overt, proprietary estoppel, quasi-property

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