Towards the essence of Property Law
Suddenly he realized: property law should be completely rethought. And so, after two years, Rogier Raaijmakers started from scratch on a whole new dissertation.
It dawns on you in the shower, or somewhere on the road. A keen and clear insight: the solution to your problems, or the realization that all should be done differently. If you don’t seize such an ‘aha’ experience right away, it’ll be lost again. Rogier Raaijmakers had been working on a doctoral research project regarding life insurances for over two years, when he got such a sudden insight. Driving in his car he was thinking about his research and then realized that the problem was wider. Much wider indeed: the whole system of property law had to change completely.
‘This was the story I wanted to tell’
“After that I had two options,” says Raaijmakers. “Act as if I hadn’t had the insight and continue my research as was; then I would’ve finished it all within two years. But it was so absolutely clear in my mind; this was the story I really wanted to tell.” He dumped his research and started from scratch again. In the end, it would take him fourteen years to achieve his doctorate. He needed that time.
There has never been a blueprint for what property law should generally look like. Over the centuries, attempts have been made again and again to overcome specific problems as they arose, just by simply implementing additional rules. In doing so, there’s been excessive adherence to Roman law. That law was so well thought out that since the Middle Ages we’ve seen it as a kind of sacred standard. Later, Napoleon’s influence was added, among other things, which resulted in the first Dutch legal codes.
Outdated Roman law
“Take a look at how much of our legal code is about leasehold, premises and neighbor law, and what it actually says about phenomena like big data. Then you’ll notice we have a totally different kind of society now than the one that is reflected in the law.” In short, a lawyer who tries to keep up with our blustering society does this with outdated legal concepts. “We try to understand and standardize all kinds of post-Roman phenomena, such as bills of exchange, intellectual property, scriptural money and bitcoins, by applying concepts from, among others, Roman times.”
But we can’t see the codes of Roman law as comprehensive, according to Raaijmakers. They were never meant to be that.
“From a legal point of view, we don’t even know what ‘big data’ is”
Over the centuries, property law has been largely drawn up on an ad hoc basis. In the case of new societal developments, this became quite problematic. A striking example is ‘big data’. Lawyers are jumping on top of the issue, wondering whether it’s possible to have ownership rights on data and how these rights can be transferred. And whether that is allowed. “Everyone has an opinion on this issue. But we don’t even know what it really is,” says Raaijmakers: “We fail at properly defining the matter itself.”
A logical basic structure
What we really need, according to Raaijmakers, is a logical basic structure of property law. The system he describes in his dissertation consists of five basic concepts and five basic legal processes. With this abstract and open structure you can go in all directions, without constantly wondering what you’re talking about: “I’m speaking of an elementary language of property law here. This way, big data and other new phenomena can be better understood and subsequently better standardized: “As soon as you understand what ‘surfing behavior’ really is from a legal point of view, you can ask yourself what kind of rights you can impose on the data stemming from it. Whether you can sell them or make them public.
“It can’t be true that we don’t know what structure we have here”
Raaijmakers advocates at least three changes. He suggests that existing legal concepts should be reclassified or redefined. It is also necessary to add currently missing legal concepts to the system. And, according to Raaijmakers, we can condense and combine legal concepts if there is no relevant distinction. “Now you can transfer, settle and waive a receivable. The effect is the same between two people: you transfer value from one person to another. Why make a distinction when it’s all the same,” Raaijmakers wonders.
Agreement on the fundamentals
Raaijmakers argues that the current system of property law is not the best possible. It’s not only illogically structured, but the current structure is also insufficiently clear. For his research, Raaijmakers had a good look at three dissertations about the structure of the current law and concluded that all three researchers observed a different legal structure. “It can’t be true that we don’t know what structure we have here,” he states, “and that we don’t even agree on a fundamental level.”
But you don’t replace a complete system just like that, even if there is a better alternative ready on hand. Raaijmakers thinks that it’ll have to go step by step. For now, he’s still modest in his ambitions. He hopes that people are willing to give his idea a chance, or at least think about it. “That they read a few pages from my dissertation to judge for themselves whether it’s possible or not.” He himself intends to publish a lot more about it. “Think of all those clever people who now have to make big efforts to force new phenomena into the frame of an outdated and too narrowly defined conceptual legal framework. All that time and effort is lost, only because there has never been a good blueprint.”
Dissertation: A universal structure of property law. About the five basic concepts in property law and their interrelationships
PhD student: Rogier Raaijmakers studied Law at Tilburg University. He joined Rabobank in 2001 as a legal counsel. He is now head of the Client Solutions Netherlands Department.
Promotor/doctoral advisor: Jan Vranken (em.)
The five elementary legal concepts
1. Property object
2. Property total
3. Property share
4. Property holding
5. Property person
The five existential legal processes