Abstract: Public ownership is one of the most controversial, and at the same time less studied topics within the whole area of comparative property law. Comparativists have focused their analyses mainly on private property, whereas scholars of administrative law have approached public ownership almost exclusively from a municipal perspective. As a result, the description of property provided for by both disciplines seems to be to a large extent reductionist and misleading. This chapter aims to fill this gap, by providing a comparative introduction to the Western systems of public ownership. After having distinguished three main categories of entitlements (commons; public property; private property), the author raises two main questions: (a) what kind of property, if any, should be vested in the state (or in the public), and what instead should be left in private hands? (b) what legal regime should apply to public ownership, in particular with regard to the transfer from public to private? By taking a functional approach and comparing the answers given by several legal systems to such questions, the author singles out a basic taxonomy of the main Western models of public ownership: the French model, the German model and the Anglo-American model. The last part of the chapter deals with the relationship between the regimes of public ownership adopted on the mainland and those implemented by Western colonial powers in the colonies during the 19th and the 20th centuries. Colonial law offers a striking confirmation of the assumption of general comparative law that different legal techniques might be used to produce similar results, and that, conversely, the same legal mechanism, applied in a different context, easily leads to dissimilar consequences.
Publication Year: 2017
Publication Date: 2017-01-18
Language: en
Type: other
Indexed In: ['crossref']
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Cited By Count: 4
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