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Towards a civilised theory of property rights in Australian law

journal contribution
posted on 2019-03-01, 00:00 authored by Pieter BadenhorstPieter Badenhorst
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.

History

Journal

Australian Property Law Journal

Volume

27

Issue

Part 2

Pagination

134 - 156

Publisher

LexisNexis Australia

Location

Sydney, N.S.W.

ISSN

1038-5959

Language

English

Publication classification

C1 Refereed article in a scholarly journal; C Journal article

Copyright notice

2019, LexisNexis Australia

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