Must We Have the Right to Waste?

72 Pages Posted: 23 Oct 2000

Date Written: 2000

Abstract

Anglo-American law has long allowed an owner to do pretty much whatever she wants with her property, right down to the limiting case of using it all up or wasting it. The jus abutendi, or the "right of destroying or injuring [one's property] if one likes," has long been recognized as one of the basic rights in the "bundle of rights" that has come to symbolize property. On reflection, this affirmative right to waste is as puzzling - or ought to be - as it is entrenched. Where then did the right to waste come from? Why do we still have it to this day - indeed, why is it so taken for granted that we never seem to question it? More importantly, must we have it, as a descriptive matter? Should we continue to have it, as a normative one?

This chapter explores these typically unexplored questions and argues against the continuance of the jus abutendi. It traces the evolution of the right to waste and shows its connections to an absolute conception of ownership developed largely in the context of an agrarian society and real property. It then canvasses what's wrong with waste from a political liberal point of view. This case takes on especial importance as value has moved away from land and into intangible, fungible units of value, paradigmatically money. A concern with wasting the family farm vel non has now become - or should properly become - a concern with depleting large stores of nominally private capital. The chapter concludes by proposing a revised conception of ownership with a practical law against waste, one that features a progressive consumption tax as its instantiation of the anti-waste norm. Among its other goals, the chapter thus aims at an important intellectual synthesis: the bringing of tax center stage in our thinking about property.

Suggested Citation

McCaffery, Edward J., Must We Have the Right to Waste? (2000). NEW ESSAYS IN THE LEGAL AND PHILOSOPHICAL THEORY OF PROPERTY, Steven Munzer, ed., Cambridge University Press, Forthcoming. Available at SSRN: https://ssrn.com/abstract=246407 or http://dx.doi.org/10.2139/ssrn.246407

Edward J. McCaffery (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
213-740-2567 (Phone)
213-740-5502 (Fax)

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