ABSTRACT
In A Liberal Theory of Property I argue that in a liberal polity, the primary commitment to individual autonomy dominates the justification of property, founding it on three pillars: carefully delineated private authority, structural (but not value) pluralism, and relational justice. A genuinely liberal property law, I claim, meets the legitimacy challenge confronting property by expanding people’s opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination.
This Article responds to reviews by Gregory Alexander, Marija Bartl, David Dana, Elmien du Plessis, Douglas Harris, Cathy Sherry, and Rachael Walsh, which helpfully investigate the precise normative, jurisprudential, pragmatic, and thematic ambitions of A Liberal Theory of Property. It refines my reasons for rejecting both perfectionist accounts of autonomy and value pluralism; clarifies the significant role law plays in structuring our proprietary affairs and the implications of the rule of law and of a legal system’s institutional design on property theory; elaborates on liberal property’s prescriptions for some real world dilemmas faced by the doctrines governing property transitions and condominium; and highlights the significance of the background regime which is crucial for liberal property’s actual success.
Dagan, Hanoch, The Ambitions of Liberal Property (November 30, 2021). International Review of Law in Context (forthcoming 2022).
First posted 2021-12-11 09:00:57
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