Exclusion Erosion – Scots property law and the right to exclude

I have published a chapter in a new edited collection of essays, entitled “Exclusion Erosion – Scots property law and the right to exclude”. An open access version of the paper is available here.

There is no abstract in the chapter for me to quickly cut and paste from to explain what it is about. Accordingly, here is a very quick attempt to capture that.

For some, the ability of owners to exclude others from interfering with something that they own is fundamental to the right of private property. This is understandable: if an owner cannot stop (for example) someone else from coming into her house or driving off with her car, what exactly is the point of ownership? Away from these obvious examples though, the extent of this “right to exclude” does merit some attention. There also seems to be a particular need to do this from a Scots law perspective, owing to the lack of a specific Scottish interrogation of this issue in the light of the various theoretical and other approaches, and also owing to the recent land reform measures that have been pursued in Scotland (notably the “right to roam”). My paper is an attempt to explain how Scotland has allowed this right to exclude to be eroded to an extent other legal systems might find striking, whilst highlighting that Scots law still retains a recognisable and workable property law regime.

So that is the story about the substance of the chapter. This blog post also offers a chance to explain the story behind the chapter.

In 2015, I presented a paper at the University of Aberdeen at the conference in honour of Professor David Carey Miller. A collection of online material from that conference can be found here. My paper was one of several presented at that conference, with a view to collecting contributions into a festschrift (a celebratory book) for Professor Carey Miller.

In February 2016, Professor Carey Miller died suddenly. My blogged tribute to him from 2016 is available here. The planned book then evolved into a book in his memory. This has now been published by Aberdeen University Press, under the title Northern Lights: Essays in Private Law in Memory of Professor David Carey Miller, edited by Douglas Bain, Roderick R M Paisley, Andrew R C Simpson and Nikola Tait.

The book will be formally launched at the next lecture in the bi-annual Lord Rodger Lecture Series, which will be delivered by Lord Pentland on 20 July 2018.

Incidentally, Lord Pentland’s lecture is entitled: “A wicked murder mystery: Lord Rodger and the mens rea of murder.” You can book for that event here.

Festschrift extract

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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