Hanoch Dagan Misses the Point

The right to exclude, he says, is not property law’s defining feature; instead, “manifestations of inclusion are just as intrinsic to property as those of exclusion, and should not be analyzed as external limitations or impositions.” There is a subtle mistake here. Inclusion—situations in which non-owners have rights to use property—is indeed important to the values that animate property. Inclusion is indeed almost everywhere in property law. But the conclusion does not follow. Property law could exist without inclusion, whereas property law without exclusion would be inconceivable.

Indeed. I think Tom Merrill argued the point quite persuasively more than ten years ago, in Property and the Right to Exclude, 77 Nebraska Law Review 730 (1998). As he says in the opening paragraph of the piece, “[g]ive 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.”