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Property I Lecture Notes
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Offensive versus defensive architecture.
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W8 – property and hostility 1: defensivearchitecture
Introduction
What if public benches and public spaces been made with
discomfort in mind?
Benches can be made with defensive design; limit the ways objects
can be misused. Armrests for example say to the person do not get
too comfortable or lay down.
Sprinklers can be used to evict the homeless.
CCTV, turnstiles, etc.
Streetlights allow for prevention of crime at night.
Leaning bar seatings are uncomfortable but they are suitable for
tired people who need to lean against a slanted bar not a flat wall.
NYC homelessness growing. 1812 homeless people sleeping in NY
subways.
Public spaces are areas people shouldn’t be in for too long.
USB charging ports are discussed in the press and leaning bars are
not because then it would make it obvious who they are for and who
they are not for.
Big question: Are people free to use their property however
they like, or are there limits?
The liberal triad
Idea of property as absolute freedom to:
1. Exploit a resource,
2. Exclude others from a resource,
3. Alienate a resource.
Ref: Margaret J. Radin, “The Liberal Conception of Property” The
Liberal Conception of Property: Cross Currents in the Jurisprudence
of Takings (1988) 88 Columbia Law Review 1667-1696
Absolute freedom
Scenario:
I build a giant pit on my land, fill it with venomous snakes, and place
a camouflage net over the top, which is designed to break under
human weight.
Bob comes along and – not seeing the net – steps out and falls into
it.
After several snake bites, Bob falls unconscious and dies.
You will be held liable for murder in this case.
It goes to show that you do not have absolute freedom with
property. You should not be making a pit with snakes and design the
net over it to break from human weight even if it is your land. You
should not be causing harm to others.
, The Liberal Conception
Richard A. Epstein: Takings: Private Property and the Power of
Eminent Domain (Harvard University Press, 1985)
Property includes the right to use your property in any way you like,
so long as it doesn’t cause harm others.
Any legislative curtailment beyond this is a potentially
unconstitutional “taking” – an illicit redistribution from A to B.
What counts as harming others?
Radin: “The Liberal Conception of Property” (1998) 88 Columbia Law
Review 1667-1696.
o “In this [(a Hobbesian)] model of human nature, limitless self-
interest and the consequent urgent need for self-defence
require... the classical liberal conception of property. Nothing
will get produced unless people are guaranteed the
permanent internalization of the benefits of their labor;
nobody will restrain herself from predation against others
unless all are restrained from predation against her”.
Negligence
Jolley v Sutton [2000] 1 WLR 1082:
o Two 14 year old boys found an abandoned boat on land
owned by the council and decided to do it up. The boat was in
a thoroughly rotten condition and represented a danger. The
council had stuck a notice on the boat warning not to
touch the boat and that if the owner did not claim the
boat within 7 days it would be taken away. The council
never took it away. The boys had been working on the
boat for 6-7 weeks when one of them suffered severe
spinal injuries, resulting in paraplegia, when the boat
fell on top of him. The boys had jacked the boat up to work
on the underside and the jack went through the rotten wood.
The claimant brought an action under the Occupiers Liability
Act 1984. The trial judge found for the claimant. The Court of
Appeal reversed the decision, holding that whilst it was
foreseeable that younger children may play on the boat and
suffer an injury by falling through the rotten wood, it was not
foreseeable that older boys would try to do the boat up. The
claimant appealed.
o House of Lords held:
The claimant's appeal was allowed. The RISK WAS THAT
CHILDREN WOULD "MEDDLE WITH THE BOAT AT THE
RISK OF SOME PHYSICAL INJURY" THE ACTUAL INJURY
FELL WITHIN THAT DESCRIPTION.
o Lord Steyn:
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