Of Course (Some) Exclusion is a Positive Good

The same article I've been reading basically since I started this little outpouring of blog posts just got around to discussing the right to exclude, one of the central features of property. And it quoted Henry Smith, an eminent property scholar and one of the authors of my Property casebook, as saying that "no one except a fetishist would believe that exclusion is a positive good." I gotta say, I strongly disagree, which I know is a bit odd coming from my hard-left political vantage-point. But it comes in part from my own personal experience. I get an enormous amount of value out of having some space that is just properly my own, from which I can exclude the whole rest of the world. I value having a door I can close such that I am on the inside and the entire rest of the world is on the outside. And it's not exactly mysterious why I value that, I think. It's partly about privacy: within that space I can do whatever I want (as long as it doesn't send some signal outside the private space) and it's no one else's business. But it's partly because, if I can exclude all others, then I am at perfect liberty to arrange that space exactly the way I want to. I don't have to compromise. And that's good.

Now, this comes close to sounding like an efficiency argument, the argument that I think Mr. Smith would give as the main rationale for giving people the right to exclude: doing so will give each person the proper incentive to manage their own property well and to make it productive. But it's more than that, and in fact I think it's not even really related to that argument. It's not just that giving each person full control over some resource should motivate them to make it productive in objective terms. It's that it having some space that is properly your own as against all others allows you to create significant subjective value. You can have things exactly your way. And I should emphasize that this effect is quite limited: you only really need somewhere that you can make entirely your own. There's no direct positive good in letting one person exclude all others from a vast tract of land. But having somewhere that you can make truly your home means you always have somewhere to retreat to where you can be completely comfortable, where you know things are as you like them. It's a kind of security; it's easier to not mind it if you find the outside world unpleasant if you know you can leave the outside world and go somewhere that's just the way you like it.

Having one such place is of tremendous value; having a second such place, or having a place twice as big, is not so important. Last year, for instance, the only space I had that fit this description was my actual bedroom, and that was enough. I had somewhere I could go. Now, as it happens, my personal idiosyncrasies are such that I value being able to exclude all others from my kitchen nearly as much as from my bedroom, and one of my favorite things about having my own apartment this year is that I don't have to share my kitchen with any meat eaters. But the difference for me between living in a double room with a roommate, when I had no space that I could fully exclude the world from, and living in a single room or in an apartment with roommates, where I do have such a space, is tremendous. Exclusion in general may not be a positive good, not as to economic resources in general, but I think it is unquestionably a positive good for each person to have some little kernel of space over which they have an absolute right of exclusion. Having that kind of control is the only way to guarantee that there will be some little patch of the universe that is exactly customized to your tastes, and having such a patch of the universe is tremendously valuable.