An often cited and much admired article by Charles Reich that appeared in the Yale Law Journal for 1964 tells us that 'property performs the function of maintaining independence, dignity and pluralism by creating zones within which the majority has to yield. Whim, caprice, irrationality and antisocial activities are given the protection of law; the owner may do what all or most of his neighbours decry.' Is this the case? Hamlet thought there is nothing either good or bad, but thinking makes it so. Can our motives taint our otherwise lawful acts of ownership? If so, can those we have maliciously targeted prevent us from doing what they decry, or obtain compensation if it has been done to their detriment? For instance, we are all free to scrap our belongings, but suppose the owner of a celebrated modern portrait threatens to destroy it, solely in order to cause grief to both artist and sitter. If their offer to buy it is refused, can they get a court order to restrain its destruction? A landlord can normally serve a proper notice to quit, but can he do so for the sole reason that the tenant testified against him in a road accident case? If it is lawful to put up a fence in your own garden, can your neighbours complain because you do it only to spite them, or to make money by their paying you not to build? If you decline their offer, should a judge stop you erecting the fence or order you to take it down? In more general terms, to what extent does the moral condition of an owner give the law a reason for preventing, or penalising, otherwise lawful conduct?
LRB 19 June 2003 | PDF Download