Private Law Theory

ABSTRACT
In ‘The Liberal Commons’ Michael Heller and I celebrated commons property types that mainstream property theory obscures notwithstanding their prevalence in contemporary law. In this Essay, prepared for the Cornell Law School Symposium celebrating Greg Alexander’s retirement, I maintain that the connection between liberalism and commons property types is more precise and, in a sense, more complicated.

On the one hand, I claim that a liberal property law, which is founded on and thus must be committed to individual self-determination, must proactively facilitate commons property types, in line with what I call property’s structural pluralism. On the other hand, I contend that a liberal law should not lend its support to commons property types not only if they undermine the liberal commitment to exit (as discussed in ‘The Liberal Commons’), but also if they fail to comply with the prescriptions of property’s relational justice …

Dagan, Hanoch, Liberalism and the Commons (May 21, 2019).

First posted 2019-06-01 08:35:24