Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right
39 Pages Posted: 15 Jun 2009 Last revised: 20 Feb 2013
Date Written: February 17, 2013
This paper presents a novel account of the limits of ownership in terms of owners’ reasons for action. I argue that this account is not only to be found in a close reading of the case law but is also required by the political foundations of the position of owner.
According to the prevailing orthodoxy, the law regulates our conduct and not our reasons for action. Following this way of thinking, property theorists (both exclusion-based traditionalists and bundle-of-rights realists) usually explain limits on an owner's authority in terms of prohibited acts or consequences. But a close reading of what I call spite cases and leverage cases shows that an owner abuses her right when she acts for the wrong reasons - when her reason for action is just the harm that will result to someone else.
This focus on owners’ reasons for action, I argue, is required by the political legitimacy conditions of the position of owner. Ownership gives individuals the special standing to make authoritative decisions about the uses of things - decisions that have significant effects on others. In this way, it represents a significant threat to the autonomy interests of others. It would not be politically legitimate for the law to give some people ownership authority merely in order to dominate others, no matter how narrowly circumscribed that authority. But if we can characterize owners as acting on behalf of us all (even in a quite limited sense), then it may be legitimate for them to exercise that authority over others. This is possible, I argue, only where owners can be seen as trying to answer the question what (in their view) is a worthwhile agenda for the thing.
Keywords: property, ownership, abuse of right, spite, malice, nuisance, trespass
JEL Classification: K11
Suggested Citation: Suggested Citation