By Gordon Hull
In a 1998 paper, Thomas W. Merrill argues that the presence of the right to exclude others is the necessary and sufficient condition for the presence of a property right. In this, he views himself as arguing against a “nominalist” interpretation of the right. This nominalist interpretation, associated with legal realism and the familiar Hohfeldian “bundle of rights,” says that property is best conceived as being located in a conventionally established set of rights, the exact contours of which will vary between jurisdictions and time periods, and within which no one element is necessary. At the risk of importing a somewhat anachronistic term, we might say that the Hohfeldian bundle leads somewhat directly to a “family resemblance” theory of property (Julie Cohen applies it to property in the paper I’m using below; the approach has also been used to good effect for privacy, and with explicit reference to Wittgenstein). In defense of this proposition, Merrill offers three kinds of justifications: a logical one, a historical one, and one based on established legal use. More about the first in a moment; the latter two rely on accumulated historical record and precedent.
Here, I want to make two points about Merrill’s argument. First, his own argument tends to suggest that the legal realists are right about at least one thing: which rights belong in the bundle is a contingent, not a necessary proposition. This is because of the three justifications he offers, the latter two point directly to historical contingency, and the first is inconclusive on its own terms. Indeed, on the evidence Merrill adduces, the prominence of the right to exclude is perhaps best explained as indicating a historically contingent feature of our current property-rights discourse, but not anything about the essence of property (not that there is such a thing, but if there is, the argument doesn’t establish it). This does not, of course, mean that our understanding of property is “arbitrary” in the strong sense. Aribtrariness in the technical sense is generally modulated precisely by historical developments. For example, as Falguni Sheth argues against Derridean claims about the arbitrariness of sovereign decision, the fact that a sovereign ban is formally arbitrary doesn’t mean we don’t know who is likely to be negatively impacted when the sovereign exercises its power (spoiler: it isn’t likely to be rich white men). As Cohen notes with respect to property rules:
“Such rules are better understood as technologically and historically contingent, which is not at all the same thing [as arbitrary]. It is true that the label ‘property’ can become a specious categorization reifying transcendental nonsense, but it also usefully calls attention to the arrangements through which people order their material and social affairs” (19).
In other words, there are historically-specific reasons why we have assigned such prominence to the right to exclude, but had those historical events happened differently, we might very well think property differently. Indeed, as Cohen emphasizes, the very contingency of those historical events has tended to be elevated into the conceptual structure of property theory. In particular, dominant narratives about property have taken property in land to be the paradigmatic instance of the entitlement. This tendency to think of property as land has distorted our ability to see the features of property in other instances, such as corporations, resource use, and intellectual property.
Before turning to what I think is very helpful in Merrill’s argument, let me address what I take to be the indeterminacy of his logical argument. He puts it as follows:
“It goes like this: if one starts with the right to exclude, it is possible to derive most of the other attributes commonly associated with property through the addition of relatively minor clarifications about the domain of the exclusion right. On the other hand, if one starts with any other attribute of property, one cannot derive the right to exclude by extending the domain of that other attribute; rather, one must add the right to exclude as an additional premise” (740).
The difficulty in the argument is that it is hard to draw a line between “the addition of relatively minor clarifications” and the need to add “an additional premise.” For example, Merrill argues that if A has the right to exclude others from his land, “it would seem but a very small step from this to conclude that A also has the right to determine the use” (741). It may indeed be a small step, but it’s not clear that use isn’t conceptually different from exclusion. For example, commons regimes allow use but not exclusion (Merrill argues that such regimes depend on excluding outsiders. However, an isolated community might not have such a rule). One might also own land that one was not allowed to develop, or to use in certain ways. There is no logical reason why those restricted uses need to be conceived as exceptions to a general right to use, rather than as a separate stick in a bundle. In other words, in the context of resource allocation, exclusion and use can be conceived as conceptually separate. The ease with which we can connect the two may well be a product of our own historical situation
Running the argument the other way – the second half of his justification – Merrill proposes:
“The right to exclude cannot be derived from the right to use. This can be shown by the example of nonpossessory property rights, such as easements, profits, and real covenants. Nonpossessory property rights are rights to engage in enumerated uses of resources, such as crossing the land of another or gathering timber on the land of another. Yet one can engage in most of these uses without having a property right to do so. A use-right that does not rise to the dignity of a property right is called a license” (744)
This indeed states the facts correctly. But it does not establish why those uses cannot logically be a property right. More importantly, for rivalrous resources (remember the examples here are land), there is no reason why, if we start from the right to use, it would not “seem but a very small step” to get to the right to exclude. After all, if I can’t exclude, I probably can’t use either. If I cannot keep others out of my house, it’s hard to understand how I can use it.
In short, the rights would seem to entail each other, and the conceptual priority of exclusion over use is harder to establish than the argument here suggests. I do not claim here to have definitively shown anything about the logical priority of one of the standard elements of the Hohfeldian bundle over another, merely to suggest that the argument Merrill presents for the priority of exclusion isn’t dispositive. Next time, I’ll say what I think the argument does have to teach us.
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