Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-v5vhk Total loading time: 0 Render date: 2024-06-23T17:27:18.520Z Has data issue: false hasContentIssue false

2 - Legal Forms in Property Law Theory

Published online by Cambridge University Press:  10 August 2018

James Penner
Affiliation:
National University of Singapore
Michael Otsuka
Affiliation:
London School of Economics and Political Science
Get access

Summary

In this paper, I argue that legal forms constitute the available ways of thinking legally about relations between persons in light of how we conceive of persons in law. Legal forms, as normative ideals, do not of course determine what positive law there is nor do they even set out the particularities of the law we ought to have: for that, we have politics. With this view of legal forms in mind, I suggest a way to bridge the divide between those who think there is a distinctively legal way of reasoning about human relations (‘formalists’) and those who take themselves to reject the very possibility of distinctively legal reasoning (‘moralists’). I suggest that there is a common threshold question for moralists and formalists alike: how ought we to conceive of persons for the purposes of law and how could people so-conceived possibly relate? Both the moralist and the formalist produce legal forms in answering that question, forms that constrain the available ways of reasoning about legal relations. But we are not all formalists now: there remains substantial disagreement about how to answer the threshold question and how far we get by just answering that threshold question.
Type
Chapter
Information
Property Theory
Legal and Political Perspectives
, pp. 23 - 37
Publisher: Cambridge University Press
Print publication year: 2018

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×