Pluralist Property: The Interaction of Legal and Social Norms

Abstract

Justice Holmes long ago recognized the conventional nature of property. What he did not explain is how convention and law interact to create the substantive content of property rights: who can do what in respect of a good and when. Contemporary legal theory focuses on the form of property rights – whether they are necessarily rights to exclude or whatever the state says they are – rather than on their substantive contents. In doing so, however, theory fails to address two fundamental features of property. First, property law adapts to new forms of goods, tangible and intangible, over which the state likely had no conception at the time the rule was made. Second, when states create new forms of property, they generally do not actually legislate what one can do with that property, although in practice there are limits. For example, the EU did not define the substantive content of the euro when that currency was introduced despite the complete absence of background law relating to money. Drawing on a combination of property and social norms theory backed up by empirical studies, this article provides a pluralist account of property and explores its consequences for law.