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American property law concept of change

Author: WangTieXiong
Tutor: HeQinHua
School: East China University of Politics and Law
Course: Legal History
Keywords: Organic theory Machinery - atomism Holism American Property Law Idea of ??Law Personal Community Balance of interests
CLC: DD913
Type: PhD thesis
Year: 2006
Downloads: 800
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Abstract


This thesis focuses on the developing path of the theory of American property law in the view of scientific knowledge and cultural paradigm, indicating the evolving rule and new development trend of American property law: the development of the theory of American property law was based on the mechanistic-atomism ideological paradigm which was brought about by the criticism of modern scientific revolution toward organicism In ancientry and in the Middle Ages, and this so-called mechanistic-atomism ideological paradigm has developed into the Holism ideological paradigm. With the guide of scientific knowledge and cultural paradigm, the changes of the theory of American property law are as follows: in the 18,19 centuries, the theory of American property law stresses the absolute right of individuals, since the 20 centuries, however, social responsibility of individual property right has been emphasized. After research, however, this thesis points out that during the history of the development of the theory of American property law, atomism and organicism, individualism and republicanism, individual advantage and social benefit could coexist in each era. They are not exclusive for each other but coexisting, not soliloquy but conversation. While individual advantage and social benefit may be stressed differently at different stage of the times, the general trend is tending towards the balancing of interest between individual and society This thesis consists of introduction, three main parts (, eight chapters) and the concluding remarks.Introduction: this part presents the research methods, research objects and innovations of this thesis. This part demonstrates that during the evolving history of scientific knowledge and cultural paradigm, the thinking of human about nature has never been completely one-dimensional. It has always resembled a pair of dancers, atomism and organicism, engaged in an uncomfortable philosophical dance. Awkwardly paired and bickering the whole time, the two ideas coexisted for centuries, though, as dancers, only one - the dominant paradigm - could lead. One partner, organicism, led for centuries until atomism, reflecting a more refined scientific knowledge about the way the world worked, emerged to take the lead in the seventeenth-century paradigm shift. Today, we are in the midst of another paradigm shift in which, based on even more sophisticated knowledge, the lead is passing to holism, a less comprehensive version of organicism. Precisely speaking, this paradigm mainly embodies the balance of organicism and atomism. Exploring and examining the developing history of American property law and its rule under the background of scientific knowledge and cultural paradigm makes this research more scientific.The first part compendiously introduces the organicism paradigm and organic property law in ancientry and in the Middle Ages In ancientry and in the Middle Ages, organicism was the leading Weltanschauung of human about nature and society, which emphasized that the universe was an inseparable organic whole. Organic property law reflects organicism paradigm, namely the purpose of property law is for the sociableness, and social obligation and responsibility of private property are much stressed and the core theory of property law is for common good. In ancientry and in the Middle Ages, though organicism paradigm and the theory of social benefit in property law were in dominant position, the atomism paradigm and the theory of individual advantage in property law coexisted. This part consists of chapter I and chapter II.Chapter I concisely introduces the organism paradigm In ancientry and in the Middle Ages. In ancientry and in the Middle Ages, organism paradigm dominated in the fields of religion and knowledge, in the views about nature and human society- the universe was an inseparable organic whole. Therefore, in ancientry and in the Middle Ages, though atomism coexisted with organism, atomism was in an extremely subordinate position.Part II concisely introduces organic property law dominated by the theory of social benefit. In ancientry and in the Middle Ages, the early property law which embodied the paradigm dominated by organicism stressed the social obligation and responsibility of private property and aimed at sociableness. So, the main influence of paradigm dominated by organicism on the early property law consisted in that people in the Middle Ages generally held that private property should be restricted by social obligations. The viewpoint of common good became the core of Aquinas’view of property which was in the leading position in the Middle Ages. Therefore, though individual advantage and social benefit coexisted in property law, the individual benefit was unfortunately paid less heed.The second part explored modern mechanistic-atomism ideological paradigm and the theory of American property law in detail. The development of the theory of American property law was based on the mechanistic-atomism ideological paradigm which was brought about by the criticism of seventeenth-century modern scientific revolution toward organicism In ancientry and in the Middle Ages The modern mechanistic-atomism espoused a world view that emphasized constituent parts rather than the whole, that was atomistic rather than interconnected, mechanical rather than organic It emphasized the leading position of individualism, The theory of modern property law embodied such thought-absolute individual property right was claimed and the dominant position of individual advantage was emphasized. In America, however, ideology has never been one-dimensional, the individual and the society are always connected closely in the theory of property law. The individual advantage and social benefit are not exclusive for each other but coexisting, not soliloquy but conversation. This part consists of chapter III, chapter IV and chapter V.Chapter III concisely introduces the modern mechanistic-atomism ideological paradigm. With the emergence of religion reform and market economy, religious and social organism declined. At the same time, scientific revolution resuscitated the ancient atomism, which became mechanistic-atomism ideological paradigm in modern times.Mechanistic-atomism ideological paradigm had been the leading cultural ideology paradigm of the West for more than 300 years since.Chapter IV detailedly discusses the dominant poison of individualism in the theory of American property law. The development of the theory of American property law was based on the mechanistic-atomism ideological paradigm which was brought about by the criticism of seventeenth-century modern scientific revolution toward organicism In ancientry and in the Middle Ages It emphasized the leading position of individualism, The entire leading clue of thinking and analyzing of the theory of Natural property law, which is a by-product of the modern mechanistic-atomism ideological paradigm in law, is individualism. As was deeply influenced by England law tradition stressed individual rights and came down in one continuous line with natural property theory of Grotius and Pufendorf, Lockean individualism property theory which was the direct product of modern scientific revolution and mechanistic-atomism ideological paradigm characterized modern principle of property law and was in the dominant position at that era.Absorption the points of individualism natural property theory of Locke, Blackstone took shape the concepts of absolute property and“exclusive”right of control. With the spread of Blackstone’s Commentaries on the Laws of England to America, such theories of individualism property and absolute property became the theoretical sources and core features of the eighteenth-century American property law.As individualism concepts took roots in American theory and practice owing to Puritanism, Lockean individualism property theory, in the 19 centuries, furthered its influence on the theory of American property law. At the same period, Bentham‘s utilitarianism and Spencer’s laissez faire facilitated great development of Lockean individualism property theory. During the last 25 years of the 19 centuries, Lockean individualism property theory reached the highest level in the theory of American property law. Therefore, led by mechanistic-atomism ideological paradigm, modern American property law stresses the absolute right of individual property and the dominant position of individual advantage. Chapter V detailedly discusses the social elements of American property law. In America, Ideology has never been one-dimensional. Neither any single political theory nor any single property theory absolutely dominated at that time. Though individualism property theory of Locke and Blackstone has taken the leading position in modern American property theory, it has never been the only property theory at that times, social elements has also played an important role in the development of American property law theory. In American property law theory, individual elements connect with social elements, in addition, individualism property theory and republicanism property theory have always mutually facilitated. Republican holds that society is interdependent……in the social union, each individual shall join the whole and the whole shall connect with each individual. These connections shall bear obligation, for they are bi-directional. An individual who hasn’t joined the whole shall not be a member of society. So, human being is of sociableness in essence. Private property is a kind of social creature derived from human practice and is not the existence prior to society. As a social product, it finally serves society needs and society value. So, in American property law theory, individualism and republicanism, individual advantage and social benefit connect with each other. Though conflicts between them will not end, in American property law theory, individualism and republicanism, individual advantage and social benefit are not exclusive for each other but coexisting, not soliloquy but conversation.The third part presents the modern holism ideological paradigm and American property law theory. After entry of the 20 centuries, human is now facing another ideological paradigm change which is based on more complicated knowledge. That is to say, we are going to a world dominated by holism which is the balance of organicism and atomism. It emphasizes the total connection of the nature; the whole affects the part just as the part affects the whole. With the guide of modern holism ideological paradigm, modern American property law theory, which as the counteractive of modern absolute individualism natural property theory, pays much attention to the entire social benefit and the social responsibility of individual property. Individualism as the nation spirit of America, however, will continue existing in the theory of modern American property law. This thesis points out that modern American property law theory seeks for the dynamic balance of individual advantage and social benefit. This part consists of chapterⅥ, chapter VII and chapter VIII.ChapterⅥconcisely introduces the ideology paradigm of modern holism. After entry of the 20 centuries, mechanistic-atomism ideological paradigm which was once the lead became decline, we are now facing another ideological paradigm change which is based on more complicated knowledge. That is to say, we are going to a world dominated by holism balanced by organicism and atomism. As a part of the history of intellect, the traditional Lockean theory has its own defect. Mechanistic-atomism ideological paradigm which made the success of Lockean property theory almost collapses, Lockean individualism can not conciliate with theory of holism theory and is being replaced by such theory.ChapterⅥdiscusses the socialization trend of modern American property law theory in detail. After entry into the 20 centuries, the America changed from agricultural, countryside society to commercial, urbanization society and individualism dominated ideal turned to mutual cooperation ideal. Law shall weaken the feature of individualism and pay much attention to entire benefit of the society, especially the welfare of consumer and the weak in society. The main change of modern property law theory is to add the social responsibility of property owners and properly reduce individual right. So, at present, the balance of individual advantage and social benefit with more advantageous comprise the core of American property law theory. With the change of American property law theory from emphasizing the absolutization of individual property to the relativity and socialization of individual property, such balance correspondingly has changed from too much stress on individual right to social benefit with more advantageous.Chapter VIII points out the spirit of individualism in the theory of American property law in detail. History has never been absolute and one-dimensional. Though the conflicts between individual advantage and social benefit always exist, More often the dialogue has not so much reflected an all-or-nothing warfare between polar opposites as a one-and-the-other-at-the-same-time.After entry into the 20 centuries, the fundamental reason that we safeguard and acknowledge the advantage of individual and group lies in social benefit, however, that is not to say we can despite individual advantage sought by people during the last two centuries. On the contrary, social benefit exists among the benefit that people live with, individual advantage and social benefit closely connected. Particularly in America, since the Puritanism brought in individualism, the spirit of individualism has been the spirit of America. So, in the theory of American property law, the principle of individual freedom has always been the guiding principle of the balancing function of modern American property law, which also facilitates the maximization of individual and social welfare. In general, individual advantage has still be an important aspect protected by law in the 20 centuries.The concluding remarks naturally summarize the developing rule of American property law guided by scientific knowledge and cultural paradigm. The changing path of American property law theory indicates that human thought and history development has never been linear, categorical and one-dimensional but curvilinear, relative and multi-dimensional. Atomism and organicism, individualism and republicanism coexist in each era, neither individual advantage nor social benefit could be omitted in each times. To the churchmen of the early seventeenth century who refused, literally and metaphorically, to look through Galileo’s telescope and to the new Lockean who refuse look through modern science and more essentially through the telescope of legal history, they may make mistakes in the same way. History is the duration of development, change, and organic unit and indivisibility. the progress of society is neither what Maine called”the movement from status to contract”nor what Schwartz called the counter-movement“from contract to status”, but the coexistence of elements of individual and society in the human welfare in each era. but the continuous change of the status of the two aspects. The trend is to safeguard the maximum of individual self-assertion and guarantee everybody a normal life deserved, that is to say, to realize the dynamic balance of individual advantage and social benefit. So, the combination of individual freedom and social cooperation shall be the ideal civilization.By examining the changing path of the theory of American property law in the view of scientific knowledge and cultural Paradigm, We can find that during the development of the theory of American property law, it not only always insists on keeping the nation spirit of individualism but also tries to maintain the tradition of seeking for balance between individual advantage and social benefit, though there was divergence from this tradition in different times in history From the eye of social psychology, this reflects the conflicts and overlap between the human instinct of the expansion of self-assertion and social instinct (i.e. the self-interest instinct and cooperation instinct), and the balance of which is the symbol of civilization.Therefore, property law shall be a“booster”which guarantees the success of individual with talent, good opportunity and diligence and also shall be a“balancer”which guarantees the happiness of each individual. Therefore, the entire history of the development of property law so far, we may say, has been the history of balancing individual advantage and social benefit, and the final aim of which is to seek and realize the happiness of each human being.

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