Case 1: Right to Exclude

Editorial Note

This article is Part III of the nine-part series “Jural Relationships in the System of Reciprocal Duties.” Building on Part II’s discussion of non-conflictual relationships and Hohfeldian privilege, this piece applies those principles to a concrete case—the right to exclude—to illustrate how reciprocity structures property rights and duties in practice.

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Alvin is the owner of the land upon which his home is situated. He has demarcated the boundaries of his property with a fence and visible signs indicating that he does not wish to allow trespassers to enter. Alvin's property is located at the midpoint between Beto's residence and the city. Beto exercises caution and respect for Alvin's property by avoiding crossing it. We will assume that there is no social interest in allowing others to enter Alvin's property. All participants are competent adults, well informed, capable of acting rationally, and free from undue pressure.

In a non-conflictual relationship, Alvin's right to exclude others from his property is opposed (‹›) to Beto's no-right to enter the property. The absence of controversy in the procedural sense has led some authors to argue that this is not a true jural relationship. However, this approach obscures a more complex scheme. This relationship is characterized by a combination of ethical and legal components. 

The owner's right of defense is correlated with the duty of non-interference by others. As stated by Kant, “[w]hen I declare (by word or deed), I will that something external is to be mine, I thereby declare that everyone else is under obligation to refrain from using that object of my choice”. Hohfeld recognized that the structure of certain rights of freedom corresponds to in rem rights (multital rights). Feinberg has demonstrated that, akin to property rights, rights of freedom function as rights of defense against duties of non-interference.

The mediate correlation between the prima facie right to defense and the prima facie social duty of all to refrain from interference stems from the principle of reciprocity. Pufendorf refers to the reciprocal duties of each man towards each other: “what one Man may rightfully demand or expect from another, the same is due to others also (Circumstances being alike) from him”. Kant explains that in the declaration that something external is mine “...involves, however, acknowledging that I in turn am under obligation to every other to refrain from using what is externally his...”. 

Among several prima facie duties towards himself, Alvin has chosen to exclude others from his property. This decision is equivalent to interference in the freedom of others. Beto does not demand a contrary right and refrains from crossing Alvin's property. Beto has a prima facie no-right to enter, either as an individual or as a member of society. This means he has a prima facie no-right of defense against Alvin's intervention. This leads to Alvin's prima facie social no-duty to refrain from excluding Beto. Alvin has a prima facie no-duty of non-interference.

Beto acknowledges the validity of Alvin's prima facie right. Among several prima facie duties to himself, Beto has chosen the mutual benefit of not interfering with the property of others. On the other hand, Alvin asserts that society should respect his decision. As a result of his internal process of self-regulation, Alvin has the prima facie right to defend his own ends. Alvin's right of defense does not stem from an individual contract, but rather from the principle of reciprocity inherent in the social contract. The owner's freedom to choose is an interest that members of a civilized society recognize as worthy of protection. As a member of civilized society, Beto has a prima facie social duty to refrain from interfering with the property of others. He has a prima facie duty of non-interference.

There is no conflict of duties. Alvin's prima facie duty to himself to exclude is opposed (‹›) by a prima facie social no-duty not to exclude. Beto's prima facie duty towards himself not to enter is opposed (‹›) by a prima facie social duty not to enter. There is no conflict of rights. As a result, we can affirm a mediated correlative relationship (~) between Alvin's prima facie right of defense and Beto's prima facie social duty of non-interference. The same is true for Beto's prima facie no-right to enter and Alvin's prima facie social no-duty to refrain from excluding Beto. This same scheme would apply in reverse. Suppose that, given that entering Alvin's property is the best route between Beto's residence and the city center, Beto chooses to enter Alvin's property (pf right of freedom), and Alvin decides not to interfere with Beto's freedom of choice (pf no-right).

This article is based on:

Espinoza Rausseo, A., & Rivas Alberti, J. (2026). Duties Towards Oneself and Self-Regarding Actions in the System of Reciprocal Duties. Mexican Law Review, 18(2), e20548. https://doi.org/10.22201/iij.24485306e.2026.2.20548