LT Lecture 8 - Property and Hostility 2; Spite, Motive and the Scope of Property PDF

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W10 – Property and Hostility 2: Spite, Motive and the Scope of Property Spiteful Design     

Alameda Spite House. Zipporah Lisle – Mainwaring. Plum Island Beach House. “Nail House” in Chongqing. Motive can interact with intention, not just spite: o Planting Peace Equality House, Topeka. People thought it was a way to spread awareness and promote equality, this is not so spite because building it across the church wasn’t directly to counter their hateful opinions against the homosexual.

The Big Question 

To what extent is motive relevant to setting the scope of property?

The Law of Nuisance 

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Lunney and Oliphant, Tort Law Text and Materials: o “Liability in private nuisance arises only when the conduct of the defendant amounts to an unreasonable user of land in that it causes an unreasonable interference with the claimants use of land”. o McBride and Bagshaw, Tort Law: “give and take” with respect to peoples rights and use and enjoyment of their land. Factors: o Nature and extent of damage suffered, o Locality of the nuisance, o Duration, o Use to which claimant is putting land (should we protect the land) o Purpose for which alleged nuisance committed (is the goal worthy of being taken to account? This is the focus of this lecture). Christie v Davey [1893] 1 Ch 316: o Christie gave music lessons to students who came to her house. Defendant (Davey) wrote a letter and said that her music has been a nuisance to him at night time; “dreadful scraping of violins; almost death to yours truly”. No response to this letter, noises continued. o Court to consider whether musicians could continue in her house. Also to take into account that after the letter was ignored, the plaintiffs made malicious sounds such as knocking and scraping of walls. Were the activities of the plaintiffs conducted in good faith? No; judges said it was

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illegitimate and made unreasonably, deliberately, excessive, malicious, to annoy defendants. Negative intent in this scenario. Intent of Christie outweighs nuisance. Bradford Corporation v Pickles [1895[ AC 587: o “No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious.” Hollywood Silver Fox Farm v Emmett [1936] 1 All ER 825: o D wanted C to remove notice board advertising Silver Fox business as bungalows may cost less. D wanted to sell bungalows. C denied and D shot a shotgun with bird scaring cartridges that would scare the foxes and disrupt breeding. This shooting was nuisance. Intent of person making the noise is to be considered (return to Christie).

Balancing interests: is it really about the motive? 

Nature/importance of parties use of the land. Compare Christie to Southwark LBC v Tanner [2001] 1 AC 1: o “The ordinary and reasonable use of a dwelling cannot in law amount to the trot of nuisance.” o Actions that constitute a necessary part of living versus frivolous actions. o Even love making sounds are reasonable. o Status of claimant/defendant as private/corporate individual, and activities as commercial/personal. o Bradford Corp: company, carrying out commercial activities, versus private individual.

Balancing interests: Property and personhood 

Margaret Jane Radin, “Property and Personhood” (1982) 34 Stanford Law Review 957-1015: o Things can be “bound up with personhood because they are part of the way we constitute ourselves as continuing personal entities in the world”. o “Hierarchy of entitlements”.

Motive and Public Policy 

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Nadav Shoked, Two Hundred Years of Spite, 110 Nw U. L. Rev. 357 (2016): o “The prohibition of spite, even if laboriously constrained, eliminates an owners freedom to engage in activities on her land that are otherwise wholly uncontroversial”. Burke v Smith, 37 N.W. 838, 841-2 (Mich. 1888): o “What right had the defendant… [to act] simply to gratify his own wicked malice against his neighbour? None whatever…

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[N]o man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that he… Wishes to gratify his spite and malice towards his neighbour”. Shoked: o “Spite, as a limit to ownership, is not, and never was, truly concerned with owners’ subjective motivations. Spite law… Traffics in objective – not subjective – values… [it] has empowered courts to balance the social values of different property uses, thereby subverting property rules that formally granted owners absolute freedom to use their property”. o “Once this crack opened by spite law widened, and the relevant absolute owner freedom rule was formally toppled and replaced by objective balancing tests, the prohibition on spite – which had originally introduced these tests surreptitiously – lost its utility, and as a legal doctrine petered out”. o “These cases are afflicted by the problem of the inseparability of competitive motivations from spiteful motivations, which renders the term spiteful useless”. o “All owners are competitors… thus no owner can be reprimanded for being spiteful”. o “Property enables competition. It allows owners to view other owners as competitors and to have society appraise their own standing and worth in relation to the standing and worth of those others. As long as private property is recognised as a weapon – perhaps the paramount weapon – in the social competition over status and power, spite… is built into property”. o How does this idea of property-owners as competitors relate to the liberal triad and underpinning ideas of negative freedom? Joseph William Singer, “Property and Social Relations: Title to Entitlement”: o Nuisance as a new model for property rights: “The scope and extent of property rights is dependent on the effects the exercise of those rights have on other people”.

The Liberal Conception 

Radin: “The Liberal Conception of Property” (1998) 88 Columbia Law Review 1667-1696: o “In this Hobbesian model of human nature, limitless selfinterest and the consequent urgent need for self-defence require… the classic liberal conception of property. Nothing will get produced unless people are guaranteed the permanent internalization of the benefits of their labor;

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nobody will restrain herself from predation against others unless all are restrained from predation against her”. Competing ideals of property and relevance of motive: o Spite irrelevant to regulation of general competition between formally-equal antagonistic (corporate or individual) entities? o Simply concern ourselves with ways of increasing competition (e.g. preventing market monopolies).

Property and Personhood o “Once we admit that a person can be bound up with an external “thing” in some constitutive sense, we can argue that by virtue of this connection the person should be accorded broad liberty with respect to control over that thing. But here liberty follows from property for personhood; personhood is the basic concept, not liberty”. o Does the idea of property as constitute of personhood point to a different view of motive? o Status of individual/corporate entity might matter to how we regulate property use. o Spite might be relevant in the former case, as a way of expressing/undermining respect for personhood. o Or the strength of the argument for protection connected to importance of activities for individual personhood. How does all of this manifest online? 

Lawrence Lessig: Code 2.0: o “How do we protect liberty when the architectures of control are managed as much by the government as by the private sector? How do we guarantee self-determination when the architectures of control are perpetually determined elsewhere?” o “We can build, or architect, or code cyberspace to protect values that we believe are fundamental. Or we can build, or architect, or code cyberspace to allow those values to disappear. There is no middle ground. There is no choice that does not involve some kind of building. Code is never found; it is only ever made, and only ever made by us.” o Internet versus cyberspace: community mediated by internet. o Massively multiple online games, e.g. Second Life. o Martha v Dank (in Code)  “Both had built a life in the neighbourhood; they had invested many hours there. But both were coming to understand its limit. This is a common condition: we all

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build our lives in places with limits. We are all disappointed at times”. “Theft” entails a change in possession. But in MMOG space, “possession” is just a relation defined by the software that define the space. That same code must also define the properties that possession yields. Why not define ownership to include the quality of poisonousness, and possession without ownership to be possession without poison? If the world is designed this way, then it could resolve the dispute between Martha and Dank, not by making one of them change his or her behaviour, but by changing the laws of nature to eliminate the conflict altogether”. “Where does it mean to live in a world where problems can be coded away? And when, in that world, should we code problems away, rather than learn to work them out, or punish those who cause them?”...