Document Type
Article
Publication Date
2017
Publication
Tulane Law Review
Volume
91
Abbreviation
Tulane L. Rev
First Page
739
Abstract
The Article proceeds in five parts. Part II briefly describes the principal features of each of the four ideal-typic categories of property. Parts III through V examine, respectively, the real property law of the United States, Australia, and China, demonstrating examples of each of the four ideal-typic categories, in varying mixes of ideal-types found in representatives of the two main legal traditions (common and civil). In order to test the thesis, the three jurisdictions are organized here according to the extent to which most people intuitively consider one of the ideal-types to predominate. Thus, the United States is dealt with first, as an example of a common law system in which private property is thought by most people to be the dominant ideal-typic form of property. We then deal with Australia, in recognition of the fact that a reader who is familiar with Australia (also a common law system) will typically think it is more like the United States and less like China in terms of the mix of ideal-typic categories, although not exactly like either one of those other jurisdictions. And China represents a civilian system in which most people would think that public or state property comprises the largest category.
The intuitive sense that people have of each system is the point of the Honoré-Waldron thesis—what we think is the case may not be and likely is not necessarily so. Thus, this Article reveals the truth of the thesis: none of the three systems we examine reveals a complete absence of any one ideal-typic form of property. Rather, as the thesis predicts, each exhibits a blend of the three ideal-typic forms. It is a difference of degree.
Part VI offers some comparative reflections on the nature of the mix of ideal types in each of the three legal systems examined and how the Honoré-Waldron thesis confirms Honoré’s assessment of property made over half a century ago. Indeed, what emerges is a continuum of property systems, based upon intuitive understandings of the mix of property types. The continuum ranges from those property systems in which we have an intuitive sense that private property predominates to those in which we have an intuitive sense that state or public property predominates. What we find is that, in actuality, at neither end of the continuum is there a complete absence of any of the ideal types of property. Or, put another way, this assessment of the Chinese, American, and Australian land law systems confirms, apart from providing a working outline of each of those systems, the truth of the Honoré-Waldron thesis. There is, indeed, a mix, balance, or blend of each of the four ideal-typic categories of property found in these jurisdictions. This conclusion is significant, for it means that the land law, and indeed any aspect of the property law, of any jurisdiction can just as easily be plotted along the continuum which we present here.