| Abstrakt: |
Conceptualism has a difficult standing in contemporary private law theory. This also affects discussions in property law, where the research agenda often seems primarily interested in deconceptualization. From a comparative perspective, this complicates the discourse, as many national codifications of property law still adhere to strong concepts. This anti-conceptualist bias also leads to the development of distorted narratives about concrete issues in property law. According to this narrative, property is a conceptualist barrier that prevents each case from being decided on its own merits. Accordingly, not only must property be broken down into a “bundle” of inter partes relations. The law should also focus on the outcome of disputes, which is best achieved at the remedial level. It is also in this sense that the prominent distinction between property rules and liability rules has been understood and applied. While realism serves the important purpose of preventing overly conceptualist tendencies, these narratives do not stand up to closer scrutiny of how property law concepts actually work. They also run the risk of destroying concepts where they are needed to decide cases. This essay will use the example of building encroachments in comparative property law to illustrate that anti-conceptualism often fights against the clichés created by its own protagonists. Building encroachments are, from a comparative perspective, a very concrete example of the adaptability and flexibility of property. |
