Nuisance and the Normative Boundaries of Ownership

Abstract

A nuisance is an unreasonable interference with an owner’s right to use and enjoy her land. The tort of nuisance must be understood if we are to understand the nature, scope, and justification of private property rights. As the latter task is among the most important ones facing legal and political philosophers in a democratic society, such as ours, the former is crucial. Yet, we lack anything like a viable theory of nuisance law. The two most prominent—the economic view and the physical-invasion view—both fail, doc-trinally and normatively. Things are so bad for nuisance that it has been called a ‘legal garbage can.’ We can do better, and we need to do better. Nuisance law protects owners by protecting their normative control, their capacity to determine what will happen on their land, and protects the core of their rights as owners of real property. Moreover, the scope of nuisance law helps fix the scope of this normative control; in other words, nui-sance is partially determinative of the normative boundaries of ownership. Looking at nuisance helps reveal a distinctive understanding of private ownership and thus, reveal property rights’ place as partially constitutive of a just society. Looking at nuisance this way also helps us see why its core doctrines are what they are: the reasonability standard at the heart of nuisance, along with its core doctrines relating to locations, time, and the objectivity of nuisance all bring out a normatively attractive vision of nuisance law and, therefore, of private property rights.

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