Restoring the 'Real' to Real Property Law: A Return to Blackstone?

Hart Publishing
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Blackstone and his Commentaries Biography, Law, History, 2009, 1, pp. 151 - 168
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JEREMY BENTHAM REGARDED William Blackstone's work as a 'striking example of the inability of the common law to provide adequate definitions of property. He attributed this in part to the bifurcated categories of 'real' and 'personal' property that Blackstone embraced-and which Bentham dismissed as an obsolete structure, inherited from and particular to the feudal context. For Blackstone, property was a relation between a 'person' and a 'thing'. For Bentham, property was an abstract relation between persons-it was thus 'metaphysical ... a mere conception of the mind" The loss of the 'thing' in the property equation, known as the dephysicalisation of property! has served and facilitated a market economy in which 'things' are regarded and traded not for their 'thingness' but for their value as commodities. The dephysicalisation of property was the most important development in the modern history of property law and indeed, is central to the current market economy it facilitates and protects.
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