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Property and the Law in Energy and Natural Resources$
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Aileen McHarg, Barry Barton, Adrian Bradbrook, and Lee Godden

Print publication date: 2010

Print ISBN-13: 9780199579853

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199579853.001.0001

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Different Views of the Cathedral: The Literature on Property Law Theory

Different Views of the Cathedral: The Literature on Property Law Theory

(p.19) 2 Different Views of the Cathedral: The Literature on Property Law Theory
Property and the Law in Energy and Natural Resources

Jonnette Watson Hamilton

Nigel Bankes

Oxford University Press

This chapter reviews property law theory and its literature that aims to show how developments in general property theory may be relevant for energy and natural resources. It focuses on liberal Western understandings of property, and primarily those within the common law tradition. The chapter is organized as follows. Section I takes a broad look at the literature addressing the question of ‘what is property?’ and the issues raised by that question. It discusses a number of conceptualist and instrumentalist approaches to the matter of definition, looks briefly at the issue of commodification, and examines the literature on the categories of property. It concludes with a consideration of the numerous clauses principle. Section II addresses the problem of justifying property, or at least private property. It outlines the various explanations, dividing them into four types: the labour, desert, first possession (or occupation), and economic theories; personhood theories; liberty-based theories; and pluralist theories. It then looks at explanations for the movement of property from one category to another. The section concludes with a study of the justifications for (private) property as applied to the issue of expropriation.

Keywords:   property law, common law, commodification, numerous clauses principle, private property, expropriation

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