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HuazhouYeFirstEssay 7 - 18 May 2023 - Main.EbenMoglen
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The Normative Value of Autonomy in Property Law and its Alternative | | | Suppose the court ruled relying on social dependence frequently as a widely accepted rationale in common law. Steenberg Homes, instead of taking the risk of trespassing, would ask the court for permission first since the requested action incurs no harm to Jacque and is considerably valuable to Steenberg Homes. Jacque, in rejecting, would induce significant unnecessary spending, thus unlikely to reject as it would be against common law; Moreover, Jacque would not have the previous concern of adverse possession, since the court would grant passage for the requested purpose only. The court, instead of reasoning by illogical arguments due to worries of unpunished intentional trespasses, could rest assured that the good-faith utilitarian intentions of borrowing passageways would not impede the court’s ability to punish bad-faith intentional trespass. Social dependence would emphasize sharing resources with others while creating no detriment upon the sharer and bypass procedural deficiencies that autonomy creates. A society of individuals helping others will work to one's own advantage. Instead of normalizing autonomy as the ruling rationale which guards one’s resources in exclusion of others, social dependence constitutes a more sensible legal normative value.
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We are left still to define autonomy by inference. An actual definition would be useful. I think in the end the talk of the possessor's autonomy means primarily that there is no "efficient breach" concept in the law of trespass. But it's a little hard to make out what the "autonomy" interest in possession is, given that the State or its delegates can acquire not only possession but ownership by paying fair market value in condemnation.
Jacque doesn't seem to me so apposite a case as you assert. There is no issue about whether there was trespass, but rather about the availability of damages without proof of fault, indeed of a punitive character. Whether punitive damages are available in trespass is surely not the same as whether rights to exclude are limited by a doctrine of "efficient trespass," about which it seems to me that the case has nothing to say. (is it not odd that, according to your account, plaintiff claims that permitted use can lead to adverse possession? That's simply incorrect, is it not?)
Why does whether one court is right or wrong in one case matter? I think the purpose of the essay is to make a point about the difference between possessor and contractual rights, with which it is possible you are disagreeing, but if so for reasons of which after multiple readings I am still unsure.
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