What is Property - right to exclude Flashcards
What is the name of Cohen’s article
Dialogue on Private Property
What is the main point from the article
The key part of property is the right to exclude
Quote from Cohen
“To the world: Keep off X unless you have my permission, which I may grant or withhold.
Signed: Private citizen
Endorsed: The State”
How does Cohen consider property (2)
a set of relations between people
it is about rights, not things
How does Cohen view ‘things’
considers them to be still relevant
relations between people are mediated by the existence of a ‘thing’
What is property traditionally linked to
What is Cohen’s view of this
individual freedom
he didn’t like the notion of dominion over ‘things’
Who is involved in the relations in property (3)
the private citizen
the rest of the world
the State
What is property about (3)
allocating property rights to individuals
protecting those rights from external interference from the rest of the world
enforcing those rights through the State’s protection
What is the content of private property (7)
with examples
- right to exclude others from the thing → Cohen: Keep off X
- excluding others from the thing e.g. land
- excluding others from interfering with your right
- right to possess → have and remain in physical control of the thing
- includes the right to exclude
- right to use
- right to manage → how and by whom the thing shall be used
- right to security → against expropriation
- right to income → receive a benefit from use by others e.g. rent
- right to capital → alienate e.g. sell, mortgage, gift, consume, destroy
Which right does Honoré say is the most powerful in his article (name?)
‘Ownership’
the most powerful right you can have to a thing is ownership
What is the true core of private property - 2 main views
- Property as the right to exclude
- Property as a sum of multiple attributes -> there is no core
Who supports the idea of a core
Blackstone: Sole and despotic dominion… in total exclusion of the right of any other individual in the universe
Cohen: Keep off X
What is that core
the right to exclude
Which theory is the core a key part of
property theory
Who supports the idea of a sum
Honoré - standard incident of ownership
Hohfeld’s jural relations
(Property as a bundle of rights)
What do the ‘sum’ supporters believe the meaning of property is
property has no fixed meaning
no internal hierarchy among rights
- the right to exclude is just one stick in the bundle
Which view (core v sum) has received greater support (2 quotes)
The right to exclude is dominant among property theorists
2 quotes about the right to exclude being the dominant theory
Merrill in ‘Property and the right to exclude’ - “the right to exclude others is a necessary and sufficient condition of identifying the existence of property […] The right to exclude is […] fundamental to the concept of property”
Katz - Owner has the power to set the agenda for things they own
Which values does the ‘core’ view support
individual freedom, legal certainty, simplicity, economic efficiency
these are very important in English Law
Is the ‘right to exclude’ the only understanding of property
No
alternative view by ‘progressive property’ theorists
Who has an alternative view to the ‘right to exclude’ view
Alexander - Governance Property
“exclusion theorists of property think that the concept of property concerns only […] the external relationships of owners. From this perspective […] the ‘internal life’ of property is irrelevant”
Dagan - Inside Property
“a significant part of property law is […] about creating governance institutions that manage potential conflicts of interest […] the internal life of property”
are these alternative views useful
yes
help to explain some areas of English Land Law
e.g. initial governance with co-ownership / family home / leaseholds of blocks of flats / commonhold
who believes in ‘open-access’
theorists coming from an intellectual property standpoint
not relevant to land law
