Katz on Abuse of Right

Larissa M. Katz (Queen's University - Faculty of Law) has posted A Jurisdictional Principle of Abuse of Right on SSRN.  Here's the abstract:

A principle of abuse of right means that an owner’s reasons for action, and not just the outcomes of his actions, affect the quality and so the legitimacy of his decisions as an owner. In this paper, I argue that the common law has produced a jurisdictional principle of abuse of right. Whereas civilian doctrines of abuse of right clearly serve perfectionist and communitarian goals, we can fit a jurisdictional principle of abuse of right within a conception of ownership as a self-seeking sphere of authority. On this account, an owner has jurisdiction to choose an agenda for his property based on his subjective determination of a worthwhile agenda in light of his own interests. An abuse of right occurs where an owner’s reasons change the character of his decision: when his sole reason for action is to cause harm to another, he is not acting on the basis of his subjective determination of a worthwhile agenda. He has abused his right because he has acted for the wrong reasons.

A jurisdictional principle of abuse of right establishes the maximal scope of freedom that can be justified in terms of our interest in exclusively setting the agenda for resources. The moral value of ownership is that it releases owners to act on their opinions about worthwhile uses in light of their own interests, and so to ignore the genuine disagreement that otherwise gets in the way of making decisions with distributive implications. This kind of authority can be justified by the value of a private sphere of freedom in which we are not forced to attend to the opinions or interests of others. An abuse of right principle marks the limits of what can be justified in this way: it ensures that owners are free to take charge of resources and to pursue what they think are worthwhile agendas, but it also ensures that ownership is no more than this.

Ben Barros

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