Book Review, Conceptualizing Property Law: Integrating Common Law and Civil Law Traditions by Yaell Emerich

Abstract

In Conceptualising Property Law: Integrating Common Law and Civil Law Traditions (Edward Elgar, 2018), Yaell Emerich explores the theme of property law convergence. In this impressively learned, eight chapter book, Emerich repeatedly reveals that property—both as a general legal concept and as a set of institutional arrangements governing how people use, manage and exchange both tangible and intangible resources—functions similarly in the civil law and common law traditions despite different historical origins and doctrinal labels. Emerich’s interest in—and discovery of—this commonality originates in her commitment to “transsystemia,” an approach to teaching and understanding law that grew out of Quebec’s fertile bilingual, bijural mixed jurisdiction. The major reward produced by Emerich’s exercise in functional comparative law is the picture of property’s structural unity in the diverse legal systems she studies (primarily Quebec, the rest of Canada, England, and France) when viewed at a broad enough scale. Sometimes this structural convergence is explained by cross-system pollination. Other times it appears to result from deeper forces in modern, market oriented societies governed by the rule of law where legal elites (those who largely make property law in Emerich’s account) seek to afford individuals and legal entities a large measure of contractual freedom to arrange their affairs regarding tangible and intangible resources.