Possession, Order and Violent Conflict: Property Rights in a Fragile State

Daniel Fitzpatrick, Australian National University

Abstract

Lawyers trained in stable socio-political contexts tend to overlook or underestimate the importance of social order in considering fundamental concepts of property such as possession. This article argues that there are correlations between social order and the interpretive complexity of possessory rules. Efficiency-oriented theories of property suggest a preference for bright-line rules of possession as interpretive simplicity reduces the costs of information transmission to a broad property audience. An alternative approach explains rule complexity by reference to concerns for social justice, including relief against dispossession. The article suggests that the sources of rule complexity in property systems may lie not only in contemporary considerations of efficiency or equity but in historical concerns for social ordering, particularly in circumstances of competitive racing for control over resources. The argument is illustrated by reference to the conflict-affected circumstances of East Timor.