The right to not be excluded

Abstract

This chapter uses Macpherson to think about common property, with particular reference to the Downtown Eastside. In so doing, people can ground Macpherson's abstract account, and productively enrich it, drawing upon the lived experience of struggle. Private property, and the right to exclude is territorialised through the multiple 'zones of exclusion' that hedge out the urban poor, such as residents facing the displacement generated by inner city gentrification. Macpherson points to the labour unionisation and welfare capitalism of his day as marking such an optimistic change in the meaning of property. Van der Walt argues against logic of centrality, which privileges private property, and treats the marginal owner as weak, vulnerable, and dependent. Traditionally the law knows only two ways to deal with the marginal: prescribe rules that govern their presumptively unlawful interactions with the property rights of the privileged; and ignore them completely for being marginal, and hence irrelevant to the development of property's laws and principles.

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