Merrill and Smith, ‘The Architecture of Property’

ABSTRACT
Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additively simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to the system as a whole. In working as a whole, the system exhibits a number of tightly interwoven design principles, including the centrality of things, rights to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and ‘property rule’ protection and equity. The architectural approach allows us to revisit some basic questions in property theory and to capture the dynamic reality of property law and institutions.

Merrill, Thomas W and Smith, Henry E, The Architecture of Property (October 1, 2019). Forthcoming, Research Handbook on Private Law Theories, edited by Hanoch Dagan and Benjamin Zipursky.

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