Towards a civilised theory of property rights in Australian law

Badenhorst, P J 2019, Towards a civilised theory of property rights in Australian law, Australian property law journal, vol. 27, no. Part 2, pp. 134-156.

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Title Towards a civilised theory of property rights in Australian law
Author(s) Badenhorst, P JORCID iD for Badenhorst, P J
Journal name Australian property law journal
Volume number 27
Issue number Part 2
Start page 134
End page 156
Total pages 23
Publisher LexisNexis Australia
Place of publication Sydney, N.S.W.
Publication date 2019-03
ISSN 1038-5959
Summary In this article a civil law style right analysis of the notion of property rights in Australian property law is undertaken. Blackstone’s famous definition of a ‘right to property’ is used as a starting point. It is shown that Blackstone’s definition contains four important elements required for rights analyses, reflects the dual relationship involved in the case of a property right, and remains relevant to this day. It is argued that the definition remains relevant despite its overtones of a ‘sole’, ‘exclusive’ and ‘despotic power’ which may have caused anxiety amongst some legal scholars. A rights-based system, working with the object of rights as the foundation, is used to set out to identify property rights and to distinguish property rights from other rights or interests. In line with Blackstone’s definition, a property right is defined as the legal relationship between a person and a thing, and the legal relationship between such person and other persons. The basic premises whereupon the distinctions between property rights, personal rights and other rights are based in Australian law are set out, and the weaknesses of these premises are illustrated. It is argued that rights ought to be classified according to the nature of their respective objects and not the features of the right which may also occur with other rights.
Language eng
Field of Research 1801 Law
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
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