COVID19 LOCKDOWN

Lecture Substitute - Case Assignment

Atty. Erwin L. Tiamson

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Lecture Substitute - Case Assignment
Atty. Erwin L. Tiamson

PROPERTY IN GENERAL

Harold Demsetz, Toward a Theory of Property Rights

57 Am. Econ. Rev. Papers & Proc. 347 (1967)

1. In "Toward a Theory of Property Rights," Demsetz provides a framework for

understanding the emergence and evolution of property rights in economic terms.
He argues that property rights arise as an institutional response to the economic
problems posed by externalities. The extent and nature of these rights are
in uenced by the trade-o between the bene ts of reducing externalities and the
costs of establishing and enforcing rights.

2. Demsetz’s central argument is that property rights arise endogenously in response

to economic factors, rather than merely existing exogenously. He posits that
property rights are an institutional solution to externalities in economic systems. As
the bene ts of internalizing these externalities rise (due to various economic and
social conditions), societies will evolve more de ned and exclusive rights to
property.

3. Demsetz starts by discussing the hunting patterns of the Native American tribes,
notably the Montagnais and the Huron. Initially, these tribes practiced communal
hunting without speci cally de ned territorial rights. However, as the fur trade with
Europeans grew in economic signi cance, tribes began to establish clearer
territorial rights. This case serves as an illustrative example of how the emergence
of economic opportunities (in this case, the lucrative fur trade) can lead to the
evolution and de nition of property rights. The private ownership or control of
hunting territories reduced overhunting and ensured sustainable fur yield,
maximizing the tribe's economic bene t.

4. Externalities arise when the actions of one party impact the well-being of another,
without the impacted party being compensated. In the absence of property rights,
many activities lead to negative externalities. Property rights, Demsetz argues,
develop as a response to reduce or eliminate these negative externalities, thereby
internalizing the bene ts and costs of an economic activity.

5. Demsetz notes that while property rights can internalize externalities, they are not
free to establish or maintain. The emergence of property rights involves
administrative costs (like measurement, monitoring, and enforcement). As a result,
societies will evolve property rights when the bene ts of doing so outweigh these
associated costs.

6. Demsetz argues that property rights are not static; they evolve in response to
changing economic conditions. As the relative costs and bene ts of externalities
shift, the nature and de nition of property rights can adapt. This is seen in various

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Lecture Substitute - Case Assignment
Atty. Erwin L. Tiamson

historical contexts where shifts in technology, market conditions, or social norms

have led to modi cations in property rights.

Garret Hardin, Tragedy of the Commons

162 Science 1243 (1968)

Hardin postulates that when individuals act rationally according to their own self-
interest, they might deplete or spoil shared resources, even if it's clear that it's not in
anyone's long-term interest for this to happen. This phenomenon, where individual
actions in pursuit of personal bene t lead to collective harm, is termed the "Tragedy of
the Commons.” Hardin illustrates the concept with the example of a common pasture
open to all. Each herdsman will try to keep as many cattle as possible on the
commons. As each individual herdsman adds more cattle, they receive the full bene t
of having an additional cattle, while the negative e ects (the overgrazing) are spread
out among all. As every herdsman reasons similarly, they each keep adding cattle,
ultimately leading to overgrazing and depletion of the shared resource.

Hardin argues that it's impossible to maximize both freedom to breed (or to exploit
common resources) and the welfare of the group. The two goals are inherently in
con ict. To ensure long-term sustainability, either the freedom to exploit the commons
must be restricted, or the commons itself should be abandoned (i.e., converted to
private ownership).

Hardin suggests that solutions to the tragedy can be in the form of mutual coercion
(mutually agreed upon by the majority of the people a ected) or by privatizing the
commons. However, he stresses that a moral or ethical appeal for restraint is
insu cient in addressing the problem.

Tragedy of the Commons" underscores the tension between individual rights and
collective interests. Hardin contends that unchecked, free access to common resources
will invariably lead to their destruction, and, as such, societies must either regulate
access or reconsider the structure of the commons altogether. This work has had a
profound impact on subsequent discussions around sustainable resource management,
environmental ethics, and policy-making.

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Lecture Substitute - Case Assignment
Atty. Erwin L. Tiamson

Howard Gensler, Property Law as an Optimal Economic Foundation

35 Washburn L.J. 50, 51-52 (1995)

The article "Property Law as an Optimal Economic Foundation" by Howard Genslert

discusses how property rights can optimize economic development. For an economy
to achieve an optimal level of production, its system of property rights must have three
essential features: universality, exclusivity, and transferability.

Universality: All valuable, scarce resources must be owned by someone. For instance,
if cows in India were considered sacred and not used for commercial purposes, the
economy would miss out on beef, leather, dairy products, and fertilizer. This would lead
to a smaller economy compared to one where cows are utilized. In essence, these
property law concepts aim to ensure that all resources are available for use and aren't
left idle, aligning with the universality requirement. They strike a balance between
individual ownership rights and the broader societal need to make optimal use of
resources.

The following are some of the legal devices to promote universality in property rights.

1. Acquisition thought adverse possession is a legal procedure allowing a squatter to

obtain title to land they've continuously and openly occupied for a set period
known as prescriptive period. This law supports the universality requirement
because a person who occupies land is allowed to acquire the property if it
indicates the original owner isn't using the property. If the original owners aren't
aware they own the property or aren't using it, and someone else is willing to
employ those resources, then the original owners will lose the property to the
squatter. The goal is to ensure the active exploitation of all available productive
resources.

2. Easements are typically a right of access across another person's land to land
where there's no other access. This doctrine con icts with the exclusivity
requirement but is necessary for universality. Without this exception, land could be
cut o from all access, depriving the owner and society of utilizing scarce, valuable
resources.

3. The division of rights on to properties into several tenures also supports the
universality principle. Property is often described as a "bundle of rights." Ownership
of land entails more than just mere possession. The landowner can transfer the
possessory interest and still retain the ownership interest, as seen in rental
relationships. This divisibility of ownership promotes universality and transferability,
ensuring all aspects of property are ownable and each aspect is transferable.

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4. Rule Against Perpetuities ensures that no interest in property can vest perpetually
and its transfers prohibited. The law won't allow resources to be tied up inde nitely.
For instance, a landowner can't give a life estate to multiple generations inde nitely.
The rule ensures that resources aren't left idle for unreasonable periods, promoting
the universality principle.

The following are some of the legal devises that promotes exclusivity in property rights.

1. Trespass laws represent the fundamental protection of the exclusivity requirement.

Without trespass laws, there's no security in the use and enjoyment of property. For
instance, without these laws, one could come home to nd unauthorized
individuals occupying their property.Trespass laws permit the rightful owner to
exclude all others from the use, enjoyment, and possession of the property.

2. Patents and copyrights are exclusive licenses that allow only the license owner to
produce the protected work. These licenses restrict supply but are necessary to
protect the exclusivity of the property. Intellectual property, such as patents, is
distinct as it pertains to ideas. Most technical innovations are based on previous
work, and society plays a role in preserving and promoting this knowledge, thus the
marginal bene t to owning a patent decline over time. Therefore, there are
arguments for limiting the extent and duration of these exclusive licenses.

3. The "good faith exception" protects buyers of property. Under this rule, if property
is well marked, it becomes harder to sell stolen property (fencing). This indirectly
promotes crime deterrence, which in turn promotes exclusivity. No jurisdiction
allows the purchase of stolen property in bad faith as it directly violates the
exclusivity requirement.

4. A nuisance refers to an interference with the enjoyment of property. For example,

the noise from a newly opened airport disturbing a residential neighborhood can be
considered a nuisance. The law of nuisance supports the exclusivity requirement. If
someone knowingly moves near a source of nuisance (like an airport) and then
complains about it, this is termed "coming to the nuisance." The law bars recovery
in such cases to prevent extortion and ensure that necessary enterprises can
operate without undue hindrance.

5. Coase Theorem and its implications for Property Rights: The Coase Theorem
highlights that, in certain situations, the assignment of property rights or liability
doesn't necessarily dictate economic behavior. When transaction costs (like
negotiation costs) are low, parties will negotiate to achieve the most economically
e cient outcome. This theorem underscores the importance of clearly de ned
property rights. When rights are clear, and transaction costs are minimal, parties
can negotiate to ensure resources are used most e ciently, irrespective of initial
liability or property right assignments.

The following are the legal devices in promoting Transferability in property rights.

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1. Title and Registration Laws: The economic purpose of title and registration laws is
clear: they monitor ownership of property and facilitate its transfer. Not knowing
who owns a piece of real estate, an automobile, or a stock certi cate undermines
the transferability of property. A purchaser would be hesitant to acquire an
expensive item if the item's ownership couldn't be de nitively determined. Title and
registration laws prevent schemes that would compromise the security of
transactions, such as a tenant in possession selling a rented house to an
unsuspecting third party. By ensuring a secure and liquid market, these laws
promote economic development.

2. The doctrine of waste deals with the impairment of the capital value of land. For
instance, if a person inherits a life estate in a property with an orange grove, they
cannot sell o the orange grove for rewood in anticipation of death or for quick
cash. This act would be considered waste. The owner transferred the property to
one party with the expectation that it would be transferred in its entirety to another
party. The interim holder cannot be allowed to interfere with the original owner's
intended transfer. Prevention of Economic Decline: The law requires the current
generation to maintain resources without impairing them. This ensures that
resources are passed on to future generations without degradation, preventing a
downward economic trend.

3. Water Law: The basic tenet of water law is that a user of a stream or river may not
impair the ow of the water. A farmer, for instance, may divert a signi cant share of
water for irrigation, but the ow of the river must not be impaired. Water law is
based on the principle of not impairing the productivity of capital assets, promoting
a consumption plan that safeguards against societal decline. Just as property is
transferred with certain conditions, water is transferred to the rst user with the
condition that it be transferred in fact to the next downstream user. This ensures
that water resources are used e ciently and are available for multiple users,
promoting economic development.

The following are the legal devices that promotes of e ciency and optimality in
property law.

1. Zoning deals with externalities such as noise and air pollution created by various
activities. If all bothersome activities were geographically grouped together, no one
would complain. Each person's right of action against every other person would be
canceled out by that person's intrusions on everyone else. For instance, if all noisy
and smelly activities are grouped together, the noise and smell emitted by one
doesn't bother the others. This arrangement saves substantial transaction costs
while preserving the value of non-bothersome properties separated from the
bothersome ones. Such an ordering scheme promotes the exclusivity of property,
allowing property to be used for its intended purpose, which is presumably its
highest and best use. E ciency and the optimal employment of resources are
therefore promoted. This system of ordering property by its uses, such as heavy

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industrial, light industrial, commercial, high-density residential, low-density

residential, and agricultural, is known as zoning.

2. Eminent domain is the power of the government to take private property for public
use, with compensation provided to the owner. For the optimal employment of
society's resources, certain strategically important parcels of property are required
for speci c projects that bene t the public. In such cases, society may use the
power of eminent domain to require an individual landowner to sell their land to the
government for the project at a reasonable price. Without eminent domain,
everyone could potentially extort huge windfall gains from the government, which
might prevent important projects from being built. Equity and e ciency require that
the government reserve the right to purchase property on reasonable terms for
important public purposes.

3. Licenses, such as the right to practice a profession or engage in activities like

driving or shing, can be promoted by a property right, resulting in e cient
outcomes. The government issues various licenses for di erent reasons.
Professional licenses, like those to practice law or medicine, ensure quality control.
Since elds like law and medicine are specialized, the typical consumer cannot
distinguish between a well-trained professional and a quack. Licensing addresses
this information problem in the professional services market. Without professional
licenses, price competition could drive quali ed providers out of the market, as
those without proper training (quacks) could o er services at a lower price.

In essence, the concepts of zoning, eminent domain, and licenses in property law are
mechanisms to ensure that property and resources are used e ciently and optimally.
They strike a balance between individual rights and the broader societal need for order,
growth, and development.

Thomas W. Merrill, Property and the Right to Exclude

77 Neb. L. Rev. (1998)

1. Property is understood as a norm, distinct from mere possession. For instance, if

one picks up a book in a bookstore and starts reading it, they can be said to be in
possession of the book. However, they cannot claim ownership; it remains the
property of the bookstore until purchased. Property rights generally trump
possessory rights.

2. There's a consensus that property cannot exist without some institutional structure
ready to enforce it. While the state is often assumed to be this institution, less
formal mechanisms, such as social ostracism, can also de ne property rights in
certain contexts.

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Lecture Substitute - Case Assignment
Atty. Erwin L. Tiamson

3. Property encompasses rights of persons concerning both tangible and intangible

resources. For example, while a physical book is tangible property, the copyright of
its content is an intangible property.

4. The concept of property is not limited to private property. It also includes common
property (like a shared pasture) and public property (like a municipal airport).

5. Property is distinct from wealth. While property refers to speci c rights concerning
resources, wealth includes many other things, such as contract rights and public
goods. The right to exclude is essential to the institution of property, but it doesn't
have many implications for questions of distributive justice. Property, as de ned by
the author, is not coterminous with private property or wealth.

The three di erent intellectual traditions regarding the role of the right to exclude in the
context of property.

1. Single-variable Essentialism: This perspective posits that the right to exclude others
is the irreducible core attribute of property. Under this conception, the right to
exclude is both a necessary and su cient condition of property. This view is rooted
in the idea that property is fundamentally about having "sole and despotic
dominion" over something, to the exclusion of all others.

2. Multiple-variable Essentialism: This approach recognizes multiple essential

attributes that make up the core of property. While the right to exclude is one of
these attributes, it's not the only one. This perspective sees property as a
combination of various rights, such as the rights to possess, use, and dispose of an
item. This view is a modern take on Blackstone's original trilogy of rights.

3. Nominalism: This school of thought views property as a purely conventional

concept with no xed meaning. It's an empty vessel that can be lled by each legal
system according to its values and beliefs. Under this view, the right to exclude is
neither a necessary nor a su cient condition of property. Property can be de ned
in various ways, and the right to exclude is just one possible feature among many.
This perspective emerged from the Legal Realist movement and sees property as a
"bundle of rights" with no xed core or constituent elements.

Logical Primacy of the Right to Exclude:

1. In essence, the logical primacy of the right to exclude suggests that this right is the
most fundamental and primary aspect of property. Other rights associated with
property can be derived from it, but the reverse is not true. Thus, if one starts with
the right to exclude, it becomes possible to derive most of the other attributes
commonly associated with property. This is achieved through minor clari cations
about the domain of the exclusion right. Conversely, if one begins with any other
attribute of property, one cannot derive the right to exclude without introducing it as

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an additional premise. This thought exercise indicates that the right to exclude is
foundational to our understanding of property.

2. Illustration with Land: Consider a piece of land. If an individual, say "A", has the
right to exclude others from this land, it inherently means A has control over the
land. This control or "gatekeeper" role allows A to decide who can access the land
and under what conditions. From this right to exclude, one can deduce that A also
has the right to use the land, to transfer it, or to derive bene ts from it. However, if
you only start with A's right to use the land, it doesn't necessarily imply that A has
the right to exclude others from it.

3. Starting with the right to exclude, one can easily derive other rights associated with
property, such as the right to use or transfer. For instance, if A can exclude others
from a land, it implies A can use a land without interference. However, starting with
the right to use doesn't necessarily imply the right to exclude. For example, an
employee might have the right to use an o ce space (based on employment) but
doesn't have the right to exclude others from it.

4. Mental Exercise: The logical primacy argument is a mental exercise that

demonstrates the foundational role of the right to exclude in the concept of
property. When one starts with the right to exclude, other property rights can be
derived with minor clari cations. But starting with any other property right, the right
to exclude cannot be deduced without introducing it as a separate premise.

Historical evidence suggests that, especially with respect to interests in land, the right
to exclude is the rst right to emerge in primitive property rights systems. The historical
primacy of the right to exclude is an argument that emphasizes the foundational role of
the right to exclude in the evolution and understanding of property rights throughout
history. This historical perspective emphasizes that the right to exclude has been a
consistent and primary feature of property rights throughout history, from the most
basic systems to more evolved and complex legal structures.

1. Historical evidence suggests that in primitive property rights systems, especially

concerning interests in land, the right to exclude was the rst right to emerge. This
means that before any other rights associated with property were recognized or
formalized, societies acknowledged the importance of an individual or group's
ability to exclude others from a particular resource.

2. As property systems evolved in complexity and sophistication, other rights began

to emerge. These included rights of transfer, inheritance, pledging as collateral,
subdivision, and more. However, the foundational step in this evolution was the
establishment of the right to exclude. Only after this right was rmly in place did
other rights get added to the bundle of property rights.

3. Historically, it's believed that one of the most basic forms of property right in land
was the "usufruct." This is an exclusive right to engage in speci c uses of

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resources, such as farming or placing structures on land. Even these rudimentary

forms of property rights emphasize the importance of the right to exclude. Granting
an individual or group the right to exclude others from speci c uses of land was
su cient to create something identi able as property, even in its most basic form.

The ubiquity of the right to exclude is an argument that emphasizes the pervasive and
consistent association of this right with property across various legal systems and
contexts. This strongly supports the conclusion that the right to exclude is fundamental
to the concept of property.

1. In mature legal systems, the right to exclude is almost universally associated with
what is identi ed as property. This is true across various types of property, be it
land, intellectual property, or personal possessions.

2. For example, in the context of common law estates in land, all present possessory
estates—like the fee tail, fee simple determinable, life estate, tenancy for years,
periodic tenancy, and even the tenancy at will—include the right to exclude others
as long as the estate remains possessory. Each of these estates is protected by
rules of civil and criminal trespass, allowing the holder to call upon the state to
exclude others from unwanted invasions or intrusions.

3. While the right to exclude is almost universally present, the same cannot be said for
other incidents or attributes of property. Some types of property may not include
the right to transfer or the right to use in the same universal manner as the right to
exclude.

4. The right to exclude is often backed by strong legal remedies, including civil and
criminal laws against trespass. This legal backing further emphasizes the ubiquity
and importance of the right to exclude in property law.

Quali cations

1. While arguing that the right to exclude others is essential to the institution of
property, Merrill clari es that he isn't suggesting anything about how extensive or
unquali ed this right must or should be. He acknowledges that many scholars
assert that the right to exclude is "not absolute." The author's thesis is not about
the quantum of exclusion rights but rather about the presence of the right itself. If
one has the right to exclude, they have property; if they don't, they do not have
property.

2. Complexity of Property Rights: Property is not an either-or proposition. The world

doesn't consist of islands of property surrounded by unclaimed resources. Instead,
it's a complex tapestry of property rights of various sorts (private, public, common)
with di erent types and degrees of exclusion rights exercised by di erent entities in
di erent contexts. Even the fee simple absolute in land can be seen as a quali ed
complex of exclusion rights.

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Implications:

1. Understanding Property: A clearer understanding of the right to exclude can

promote a clearer comprehension of the legal doctrine surrounding property.

2. Distributive Justice: Understanding the domain of property is a crucial step in

developing a justi cation or critique of property from a perspective of distributive
justice.

3. Constitutional Provisions: A precise conception of property may be necessary to

o er a complete account of constitutional provisions that protect “property."

4. Property's Essential Characteristic: While property has an essential characteristic

(the right to exclude), the institution of property itself is not binary. Property rights
can vary in their degree and type of exclusion rights.

5. Focus on Property: This perspective doesn't mean that property as an institution

has disintegrated; it simply means its understanding has been sharpened.

In essence, Merrill emphasizes that while the right to exclude is foundational to the
concept of property, it doesn't dictate how extensive or unquali ed this right should be.
The world of property rights is intricate, and understanding the right to exclude brings
clarity to this complexity.

Margaret Jane Radin, Property and and Personhood

34 Stan. L. Rev. 957 (1982)

1. Radin distinguishes between two types of property: (a) personal property, which is
deeply bound with a person's sense of self and personhood, and (b) fungible
property, which is easily replaceable and not particularly bound to one's sense of
self. Radin argues that for many individuals, certain properties are so deeply tied to
their personal identities that they become almost a part of their selves. This can
include one's home, personal mementos, or other objects that carry signi cant
personal and emotional attachment. Losing such property can feel like a loss of
self.

2. She explores the philosophical foundations of the personhood perspective drawing

insights from Hegelian philosophy. It was emphasized that property can be an
extension of one's self and can play a central role in personal development and
self-realization. On the other side, fungible property does not carry the same
emotional or personal signi cance. It's interchangeable and doesn’t deeply a ect
an individual's sense of self. Radin suggests that our legal system often treats most
properties as fungible, which can be problematic when it comes to deeply personal
property.

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3. Radin proposes that the legal system should di erentiate between personal and
fungible property, especially when it comes to disputes or legal judgments.
Recognizing the deep emotional and personal signi cance of certain properties can
lead to more just outcomes in legal contexts. This can mean giving more weight to
personal property rights in certain contexts, or providing additional protections for
properties that hold signi cant personal meaning.

Radin concludes by emphasizing the importance of recognizing the personal

signi cance of certain properties and the need for legal systems to account for this. By
doing so, the law can better respect and protect the personal identities and emotional
well-being of individuals. Radin's "Property and Personhood" challenges traditional
notions of property in legal theory by highlighting the profound emotional and personal
signi cance that certain properties can hold for individuals. It's an in uential work that
has inspired subsequent discussions and debates on the topic of property and its
relationship to personal identity.

Henry E. Smith, Property, Equity, and the Rule of Law

Lisa Austin and Dennis Klimchuk (eds.), Private Law and the Rule of Law (Oxford:
Oxford University Press, 2013)

1. Property and the rule of law are closely intertwined. The protection of property
rights safeguards individuals from arbitrary state actions, reinforcing the essence of
the rule of law. Those with a procedural or formalist perspective see the generality
and stability emphasized in property law as core elements of the rule of law. The
rule of law is necessary in property to ensure clarity, stability, and fairness. It
provides a framework within which property rights can be exercised and protected.
Additionally, the rule of law, combined with the principles of equity, ensures that the
formal structures of property law are not exploited or evaded, maintaining the
integrity and e ectiveness of the property system.

2. Property is fundamentally in rem, meaning it establishes rights concerning things

that are e ective against the entire world, not just against speci c individuals. Due
to its in rem nature, property must be general, stable, and provide proper notice to
a broad audience. This is essential for coordinating the actions of a large and
inde nite group of people concerning things. This standardization is crucial
because property sets up in rem rights and duties, which need to be easily
understood by a vast and inde nite audience. The in rem nature of property rights
results in an informational externality, where idiosyncratic property rights created by
parties can impose costs on third parties.

3. Equity is described as a moral virtue that moderates and reforms the rigidity and
harshness of the law. It is not a part of the law per se but operates alongside it to
ensure fairness and justice. Equity's role is to protect the law from crafty evasions,
delusions, and new subtleties that are invented to evade and delude the common
law. In essence, equity supports and protects the common law without destroying

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or creating it. Equity thus is a counter-measure against opportunism. A opportunist

is someone who seeks to exploit situations to their advantage, especially by taking
advantage of unforeseen circumstances or technicalities in rules or agreements. An
opportunistic behavior is technically legal but is carried out with the intention of
securing unintended bene ts from the system. These bene ts often come at a cost
to others. Equity thus employs ex post standards, emphasizes good faith, and
often has a moral undertone. It's structured to reduce the chances of overriding the
law and often consists of structured rules of thumb and shifting presumptions. In
the context of equity, ex post standards allow for discretion and exibility. Instead
of rigidly applying predetermined rules (ex ante), courts or decision-makers can use
ex post standards to assess situations based on their unique circumstances, often
taking into account fairness, morality, and the speci c details of the case. This
approach is particularly useful in situations where it's challenging to anticipate all
possible outcomes or where applying a strict rule might lead to an unjust result.

4. The numerus clausus principle in property law puts a standardized set of

recognized property rights or forms. Instead of allowing individuals to create any
type or form of property right they can imagine, the law only recognizes a speci c
list of property forms. The reason for this limitation is to ensure clarity, predictability,
and simplicity in property transactions. By having a standardized set of property
forms, third parties (like potential buyers, lenders, or neighbors) can easily
understand the rights associated with a piece of property without having to delve
into complex or unique arrangements. Unlike property, contract law is not as
standardized. In contracts, parties can customize their relations and even create
their own unique agreements. This exibility is because contract rights are "in
personam" (pertaining to speci c individuals) while property rights are "in
rem" (pertaining to things and enforceable against the world). The numerus clausus
principle plays a signi cant role in shaping private law. By standardizing property
rights, it provides a foundation for individuals to interact with each other.

5. Micro equity is a form of intervention in private law that is based on fairness and
morality. It operates at the level of individual cases or speci c legal situations, as
opposed to "macro equity," which operates at a broader, systemic level. It serves
as a safety valve within the legal system. While formal rules provide a clear and
predictable framework for legal interactions, they can sometimes be exploited by
opportunists who nd and take advantage of loopholes. Micro equity intervenes in
such situations to prevent this opportunistic evasion of the law. Micro equity helps
maintain the structures within property law and other areas of private law. It ensures
that the formal rules of the law are protected against opportunistic exploitation. For
instance, if someone tries to exploit a technicality in property law to their advantage
in an unfair manner, micro equity can step in to ensure justice and fairness.

6. The law is described as a semi-open system because, while it has formal structures
and rules, it also requires an external moral and equitable foundation to ensure its
e ectiveness and to counteract potential opportunistic behaviors. This external

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 COVID19 LOCKDOWN
Lecture Substitute - Case Assignment
Atty. Erwin L. Tiamson

foundation, often rooted in shared cultural and moral values, serves as a safety
valve, ensuring that the principles of the rule of law are upheld.

7. In essence, the "semi-open" nature of the law acknowledges that while formal rules
and structures are essential, they are not su cient on their own. The law also
requires an external, moral, and equitable foundation to address its vulnerabilities
and ensure its e ectiveness.

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