Open Conference Systems, NorLit 2011

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Property and Proprietor in XVII century Nomos: and analysis based on Robinson Crusoe
Raphael Martins

Last modified: 2011-08-03

Abstract


This paper proposes an analysis of the cultural foundations of one of the core concepts of Private Law, i.e. the property right, based on the intersections of Law and Literature.

Our premise for this paper is that the theoretical construction of any legal concept is the expression of a given mentality (Waltanschauung). Therefore in order to identify and reconstruct the “submerse mountains” (Paolo Grossi) that lies beneath a legal concept we need to recur  to manifestations of a given mentality and literature plays a great role thereto.

The literary work we choose to base our analysis is the book The Life and the Strange Adventures of Robinson Crusoe (1979), written by the English novelist Daniel Defoe. The paper will thus propose a study on a specific conception of property right, which came off in what we recognize as the XVII’s Nomos (Robert Cover) and is portrayed in Defoe’s masterpiece. Therefore through an analysis of the argument used in the book to vindicate a proprietor’s statute over the desert island (the so called Island of Dispair) we try to rebuild the conception of property right that existed in that Nomos as pictured in the literary work. After that, we borrow Robinson Cruosoe’s “subjective eye” to verify how was the subject-object relationship took place under this conception of property.

Based on the results of this research we try to demonstrate what reminiscences of that manifestation of property right are still relevant in present discussion of social use of the property and protection of property rights in the XXI.


Full Text: Paper NorLit 2011