财产权系统和法律制度.pdf

BOSTON UNIVERSITY
SCHOOL OF LAW

WORKING PAPER SERIES, PUBLIC LAW & LEGAL THEORY
WORKING PAPER NO. 03-06





PROPERTY RIGHTS SYSTEMS AND THE RULE OF LAW

RONALD A. CASS










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PROPERTY RIGHTS SYSTEMS AND THE RULE OF LAW

Ronald A. Cass*




Tolstoy’s novel, Anna Karenina, starts famously with the observation that “All happy
families resemble one another; every unhappy family is unhappy in its own fashion.”
The opposite is more nearly true in respect to the rule of law. Though many societies
with differing governance structures and legal systems adhere in their own ways to the
rule of law, societies that derogate from it do so in more similar fashion. Put differently,
it is easier to identify departures from the rule of law than to explain why particular ac-
tions conform to it.
The rule of law matters to people around the world because it is a itant of
a society that is essful and, in all likelihood, It does not guarantee justice or so-
cial welfare, but it does correlate with justice and social welfare (under virtually any ac-
cepted definition of those terms). That is why the concept has such broad appeal.
A critical aspect of mitment to the rule of law is the definition and protec-
tion of property rights – rights to control, use, or transfer things (broadly conceived), in-
cluding rights in intangibles such as intellectual property. Societies in which it is rela-
tively easy to secure property rights, to protect them against infringement, to gain -
pense when rights are infringed, and to transfer property rights in whole or in part to in-
dividuals who value them more highly are more likely to Of course, the sub-
Property Right