The society of property

Abstract

The basic question that arises in connection with the distinction between property and contract is, what accounts for the general scope that property rights and duties, unlike their contractual counterparts, share? The most typical theoretical approach to this question has so far been to emphasize certain extrinsic circumstances, such as transaction costs or the normative priority of protecting property over contract rights. But the problem with this approach is that it implies that the source of the difference (whatever it is) does not originate in either property or contract but rather lies outside both (for instance, in the costs of making and carrying out transactions concerning external objects). In that, it fails to consider whether the general scope of property rights and duties is, in fact, a side effect of the special structure of property (vis-a-vis contract). On the account I shall develop, property is a framework of coordination in which participants approach the resolution of their competing ...