ABSTRACT
Property is one of society’s major power-conferring institutions. It confers upon people some measure of private authority over things (both tangible and intangible). Property’s temporally-extended private authority dramatically affects people’s ability to plan and carry out meaningful projects, either on their own or with the cooperation of others. Property’s empowerment, in other words, enhances people’s self-determination. But as such property also disables (other) people and renders them vulnerable to owners’ authority. Therefore, to be (and remain) legitimate, property requires constant vigilance.
In A Liberal Theory of Property (CUP 2021) I argue that a genuinely liberal property law meets this legitimacy challenge by ensuring that property’s animating principles and the most fundamental contours of its architecture follow property’s autonomy-enhancing telos. This means that liberal property must expand people’s opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination. Appreciating both property’s autonomy-enhancing service and the vulnerabilities it generates is thus key to the three pillars of liberal property – the features that distinguish it from property simpliciter: carefully delineated private authority, structural pluralism, and relational justice. It also implies that property’s legitimacy is dependent upon a background regime that guarantees to everyone the material, social, and intellectual preconditions of self-authorship.
In this Article I respond to the generous and rigorous book reviews of Ben McFarlane, Aruna Nair, Nicholas Sage, and Katy Wells. Their intriguing comments and the penetrating insights they each develop provide an excellent opportunity for me to clarify and refine some of the basic tenets of this account. My response is organized around four issues: the nature of property as an essentially power-conferring institution; the diverse types of private authority in property and in private law more generally; the principled way in which the autonomy-based maxim of relational justice circumscribes owners’ private authority; and, finally, what lies within – and what is properly situated outside – the law of (liberal) property.
Dagan, Hanoch, Liberal Property: Clarifications and Refinements (March 29, 2022). 33 King’s Law Journal (forthcoming 2022).
First posted 2022-04-02 16:00:59
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