Ben McFarlane, THE STRUCTURE OF PROPERTY LAW Oxford: Hart (www.hartpub.co.uk), 2008. xliii + 955 pp. ISBN 9781841135595. £28.

AuthorDaniel J Carr
Pages342-343
DOI10.3366/elr.2010.0017
Date01 May 2010
Published date01 May 2010

By penning a work entitled The Structure of Property Law, Ben McFarlane has approached his subject in a way which is in some respects groundbreaking for English law. It is a rare, though not unique, text that speaks of property law, let alone the structure of so elusive a concept. The reader is not disappointed upon moving beyond the title page into the body of the book, where an integrated account of the way in which high property theory might be distilled and applied in English private law can be found. The text is also distinguished by its use of comparative materials from both the Common and Civil Law traditions. It is a text which touches upon profound conceptual questions with international perspectives and systemic solutions to those questions. It is then no surprise that the text was short-listed for the Peter Birks Prize for Outstanding Legal Scholarship in 2009.

The start of the substantive text highlights the central concern of the work: “rights to use things”. This central enquiry is expanded to a dual concern, namely “(i) who is entitled to use a thing?; and (ii) how are they entitled to use it?” These may seem rudimentary points in a work on property law; however, the strength of this work for the student reader, and indeed others less familiar with the field, is its basic explanatory function in the context of English property law. This explanatory concern is manifested in the profusion of examples and diagrams in the text, and augmented by a companion micro-site (www.hartpub.co.uk/companion/propertylaw.html). The micro-site carries supplementary materials, and gives important updating information regarding decided cases. With regard to the diagrams and examples, the response to so many such devices is essentially a matter of stylistic taste, though this reviewer wondered if there were perhaps slightly too many cross-references for the reader's ease.

The arrangement of this substantial text is split into three parts. After an introduction on the subject of “Basic concepts”, the two subsequent parts, on “Applying the basic structure” and “Specific rights”, are subdivided into a “General part” and a section dealing with “Land”. Such a structure betrays the traditional separateness accorded to treatments of land law, though McFarlane seeks to explain why this is so. There is not sufficient space to consider all areas of a one-thousand page textbook, but a number of points deserve special mention.

At its broadest the text provides the reader...

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