One of the reasons why property is so important to the first year curriculum is because property
really does serve as the foundation for understanding each of the interconnected parts of the common
law - property, contracts, and torts most directly.
And the reason why is because each of these segments of the common law are trying to identify
the rights and responsibilities of individuals vis-a-vis each other.
They are dependent on a neutral arbiter who can resolve disputes and determine what is
the nature of a wrong in each of these categories, and to determine what the respective rights
are between each of the parties.
Torts are a way to protect the things that you own and/or the person.
In other words, property, the idea of ownership, the fundamental attribute of ownership is
the right to exclude others from that thing, right?
The, "Keep out, stay away.
" That demarcation, that boundary kind of delineation that occurs in property is precisely
the boundary that we see in torts.
In torts, we're saying, "You don't have a right to invade my space and hit me in the
face.
You don't have a right to cause me bodily injury.
Why?
Because I have a right to exclude you, just like I have a right to exclude you from my
home if you have no entitlement to enter it, just like I have a right to exclude you from
my yard because you would otherwise be a trespasser.
Similarly, torts are about protecting not the integrity of a piece of real property
or land or your car, personal property, but it's to protect your entitlement to yourself.
If you understand this idea of the right to exclude, you understand why torts are a wrong.
They are an invasion against someone else's entitlement to exclude you from their body,
from their person.
One of the things I try and start out with in one of my early classes in property is
a boxing analogy.
And so when I talk about the boxing analogy, I say, "Well, one thing that we could do is
think about our face if we have self ownership as being our property, and I have a property
rule to exclude your fist from my face."
This helps us understand also the reciprocal nature of property rights.
You own your fist, I own my face.
You cannot use what you own in your fist to invade what I own in my face.
If you try to hit me in the face, I have a right to exclude you and I have a right to
get an injunction against you ever doing it in the first place.
That's a property rule.
If you hit me in the face, that would be a tort.
You understand that it's the violation of the rights to exclude your first from my face
that becomes the tort in that sense.
But, we could also contract, in which I say that I will allow you to use my property in
a way that is beneficial to you.
Let's say you get five units of pleasure out of hitting me in my face and I only get one
unit of harm by doing so, we could engage in an exchange in which you are allowed to
hit my face.
That's boxing, right?
Now, liability rules we could use to govern in which people can go around hitting each
other without any violation of an entitlement and say all you have to do is pay for hitting
the person in the face.
That explains what a liability rule is.
In other words, you are allowed to go around and hit people in their face, but you have
to pay for the damage you did, but you can't be prevented from doing it.
And inalienability rules would be we outlaw boxing.
We say that, "You're not allowed to alienate the rights to your freedom of being hit from
your face in a contractual relationship, but instead we say there's some other societal
value that precludes us from allowing people to alienate that part of their ownership and
so we could outlaw boxing entirely.
That's one way in which I'm trying to draw this connection between the three principle
common law subjects.