Avihay Dorfman, ‘No Exclusion’

ABSTRACT
The idea of exclusion plays a pivotal role in property law and theory, and it is only destined to receive more salience in the light of the forthcoming fourth Restatement of property. There are accounts of property, and case-law, that treat exclusion as the single most fundamental feature of property. And there are other accounts, and case-law, that insist that exclusion is not the only signature feature of property – in particular, inclusion is important, too. The hidden assumption shared by both sides of the debate is that ‘exclusion’ is uniformly given, that is, that there is only one sense of ‘exclusion’ to which any and all instances of denying access to external things refer.

This article argues that there is no sufficiently robust notion of ‘exclusion’; there exist, instead, exclusions. In some cases, the property owner’s entitlement to exclude others has virtually nothing to do with property; property is, then, epiphenomenal. At other times, an entitlement to exclude cannot exist independently of having a right to property. But even then, there are important differences between excluding others for housekeeping purposes (say, ‘not now’) and denying access categorically (say, ‘not for you’). I therefore argue that talk of ‘exclusion’ obscures important differences between several conceptions of exclusion; I further demonstrate that the variety of such conceptions should change the way we understand in theory, and determine in practice, our rights to exclude and duties to include.

Dorfman, Avihay, No Exclusion (November 11, 2019).

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