The Supreme Court is fond of saying that "the right to exclude others" is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." I shall argue in this Essay that the right to exclude others is more than just "one of the most essential" constituents of property – it is the sine qua non. Give someone the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. Deny someone the exclusion right and they do not have property.
Of course, those who are given the right to exclude others from a valued resource typically also are given other rights with respect to the resource – such as the rights to consume it, to transfigure it, to transfer it, to bequeath or devise it, to pledge it as collateral, to subdivide it into smaller interests, and so forth. These other rights are obviously valuable and important, and it is not improper to speak of them as part of the standard package of legal rights enjoyed by property owners in most contexts. My claim is simply that in demarcating the line between "property" and "nonproperty" – or "unowned things" (like the air in the upper atmosphere or the resources of the ocean beyond a certain distance from shore)-the right to exclude others is a necessary and sufficient condition of identifying the existence of property. Whatever other sticks may exist in a property owner's bundle of rights in any given context, these other rights are purely contingent in terms of whether we speak of the bundle as property. The right to exclude is in this sense fundamental to the concept of property.
Understanding the role the right to exclude plays in defining property is important for several reasons. First, having a better grasp of the critical features of property may promote a clearer understanding of the often-arcane legal doctrine that surrounds this institution. Second, understanding the domain of property is an important preliminary step in developing a justification or critique of property from the perspective of distributive justice. Third, formulating a more precise conception of property may be necessary in order to offer a complete account of constitutional provisions like the Due Process Clause and the Takings Clause that protect "property." In any event, for those who have devoted themselves to teaching the law of property, the question is one of intrinsic interest, whether or not it has any payoff in resolving more immediate concerns.
In Part II of the Essay, I will locate the role that the right to exclude others plays in the larger debate about the meaning of property. In Part III, I will offer three arguments why the right to exclude – what I will sometimes call the "gatekeeper right" – should be given primary place in defining property. In Part IV, I offer some qualifications to my thesis.
Law | Property Law and Real Estate
Thomas W. Merrill,
Property and the Right to Exclude,
Neb. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3553