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Unpublished Paper
Well, are property rights absolute?
ITAM-ILACDE Working Papers (2007)
  • Juan Javier del Granado, Instituto Tecnológico Autónomo de México
Abstract
This paper argues that one reason for the obvious success of Rome was its legal system, a system highly efficient as to its major reliance on private (as opposed to public) mechanisms. As the German scholar Ihering recognized at the end of the 19th century, the Romans respected private property more thoroughly than any civilization has since. Nevertheless, the Roman law of property included limits on property rights. (The common-law reader is cautioned that Roman law had a unified property system, i.e. the rules were the same for all types of property.) Speculation regarding the reason for these limits fills an extensive civilian literature. Perhaps the best explanation is that of Ihering; Ihering argued that if property rights were absolute, external effects might destroy the value of property rights to the property holders themselves. This paper argues that the Roman solution is superior at maximizing the value of property rights in comparison both to common law and to modern civil law doctrines; because Roman law controlled external effects from within property law itself. In contrast, both common law and modern civil law uses non-property doctrines to limit property rights. The doctrine of abuse of right, like the common law's doctrine of nuisance, limit the negative externalities of private rights in property. Non-property doctrines fail to maximize the value of property rights; these doctrines are framed in general terms and apply to a wide range of external costs. The Roman solution is limited to specific fact situations. Therefore, Roman-law property limits are predictable; parties, thus, can anticipate the need to negotiate servitudes.
Disciplines
Publication Date
December, 2007
Citation Information
Juan Javier del Granado. "Well, are property rights absolute?" ITAM-ILACDE Working Papers (2007)
Available at: http://works.bepress.com/juan_javier_del_granado/43/