!!Экзамен зачет 2023 год / Katz - UTLJ 2008- Exclusivity

EXCLUSION AND EXCLUSIVITY IN PROPERTY LAW 315

Let us accept for a moment what Waldron has to say about the importance of being free to disregard the interests of others in deciding how to act. Does this lead us to conclude that a right to exclude is morally significant in and of itself? Is the right to exclude others from the object owned the only way to protect what amounts to the self-seeking nature of ownership, the ability to ignore the interests and projects of others in making choices about the resource?

Exclusion-based approaches move too quickly from the importance of a self-seeking sphere of action to the importance of the right to exclude others from the thing. This is to confuse self-seekingness with self-asser- tion over inert material objects. Exclusion might be particularly important if mastery over things were critical to autonomy, but it is not necessary for the kind of self-seeking decision making that appears to be the real concern that Waldron raises. If the owner is in a position to disregard the interests of other individuals in setting her agenda, the fact that others may have some access to the object (in a way that does not dictate the agenda for it) ought not to lead to the moral exhaustion Waldron describes. The relationships others have to a resource need not limit the owner’s ability to set the agenda for it, and to do so for reasons that are truly her own, where these relationships are organized around the owner’s position.

In summary, in denying that the right to exclude forms the core of ownership, we are not denying ownership’s link to freedom. The exclusivity of ownership ensures that others do not dictate what agenda the owner must set for a thing, and it does not require that the owner elevate the interests of particular other individuals above her own.

VI Conclusion

I have argued above that the exclusivity of ownership refers not to the right that others exclude themselves from the object owned but, rather, to the owner’s special agenda-setting authority, a position that is neither derived from nor subordinate to the positions of others with respect to that resource. The function of much of property law and prop- erty-related tort law, I have argued, is to preserve the exclusivity of the position of the owner by ensuring its supremacy in relation to the rights and privileges of others and by ensuring that non-owners fall in line with the owner’s agenda. Exclusion is simply a special case of a more general strategy of deference to the owner’s agenda.