The current understanding of the necessity defense to trespass to property in American law stems from a simple—or perhaps simplistic—balancing of rights. Based in the individualistic understanding of property as a right against the world that creates an obligation for others, necessity pits the interloper’s right to life, liberty, or property against the property owner’s right. Although feasible in the extremes, dueling rights leads to an unwieldy judicial task, discouraging advocates from alleging the privilege and discouraging judges from recognizing the privilege. Overall, the right to exclude has become more and more the libertarian vision of a right to be left alone, isolated from our society. A decisional theory founded in an Aristotelian sense of property forms a stronger foundation to develop a more comprehensive understanding of the defense. Aristotle, as glossed by philosophers of the Middle Ages, understood private property ownership to be distinct from use. While there was a presumption of exclusion from the property necessary for the good of the home, the owner only had preferential usage of all extraneous goods; these privately owned goods were for public use. Reconceptualizing the right to exclude as rebuttable by a claim of use for the common good founds private necessity anew on a more sustainable and easily applicable communitarian judicial theory. After developing the contrasting decisional theories as applied to necessity, this Note will also speculate on possible implications of extending this decisional theory to takings and contemporary debates on traditional knowledge.

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“Something there is that doesn’t love a wall . . . [yet my neighbor] will not go behind his father’s saying . . . He says again, ‘Good fences make good neighbors.’”



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