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Published online by Cambridge University Press: 05 July 2022
Hanoch Dagan, A Liberal Theory of Property (Cambridge University Press, 2021) pp xvi + 326, ISBN 978-1108418546. All parenthetical numbers are page references to this book.
1. Dagan uses the term ‘self-determination’ interchangeably with ‘autonomy’ and ‘self-authorship’ (41), so I shall use ‘self-determination’ except in cases of direct quotation where the other terms are used. I discuss the differences between Dagan’s notion of self-determination and Raz’s notion of autonomy in James Penner, “Taking Raz Seriously: On the Value of Autonomy and its Relation to Private Law” in Paul B Miller & John Oberdiek, eds, Oxford Studies in Private Law Theory: Volume 2 (Oxford University Press) [forthcoming in 2022].
2. See Hanoch Dagan & Michael Heller, The Choice Theory of Contracts (Cambridge University Press, 2017).
3. See Ben McFarlane, The Structure of Property Law (Hart, 2008). For discussion see James Penner, Book Review of The Structure of Property Law by Ben McFarlane, (2009) 17 RLR 250.
4. See JE Penner, “Property” in Andrew S Gold etal, eds, The Oxford Handbook of the New Private Law (Oxford University Press, 2021) 277; JE Penner, “The (True) Nature of a Beneficiary’s Equitable Proprietary Interest Under a Trust” (2014) 27:2 Can JL & Jur 473 at 488-89; JE Penner, Property Rights: A Re-Examination (Oxford University Press, 2020) at 14 [Penner, Property Rights].
5. Irit Samet-Porat suggests (in personal correspondence) that Dagan may be working with an ordinary language definition of property, but if that means a layperson’s definition, I think a fair reading of the text suggests otherwise. Dagan is clearly addressing lawyers and legal theorists, not the lay public. The thought could be modified to suggest Dagan is working with the common definition of property as understood by lawyers and legal scholars, but the whole point of this paragraph is that there is no such common definition of property amongst lawyers, letalone property scholars.
6. Now extended to encompass the law of trusts: see Hanoch Dagan & Irit Samet-Porat, “The Beneficiary’s Ownership Rights in the Trust Res in a Liberal Property Regime” [unpublished, on file with the author]; Hanoch Dagan & Irit Samet-Porat, “Express Trust as the Missing Piece in the Property Jigsaw” in S Degeling, J Hudson & I Samet (eds), Philosophical Foundations of Express Trust (Oxford University Press, forthcoming 2022); Hanoch Dagan & Irit Samet-Porat, “What’s Wrong with Massively Discretionary Trusts?” Law Q Rev (forthcoming 2022).
7. More accurately, the right that non-owners exclude themselves.
8. Clear exceptions are Tom Merrill and Henry Smith. See e.g. Thomas W Merrill & Henry E Smith, “The Property/Contract Interface” (2001) 101:4 Colum L Rev 773. For what it is worth, I have dipped my toe in these waters; see James Penner, “Ownership, Co-ownership, and the Justification of Property Rights” in Timothy Endicott, Joshua Getzler & Edwin Peel, eds, Properties of Law: Essays in Honour of Jim Harris (Oxford University Press, 2006) 166. The one thing I failed to do in that piece was make clear that my social, ‘sharing’ model of co-ownership did not align with the positive law. The common law model of co-ownership is hardly one of sharing: see the text accompanying note 9, below.
9. See Hanoch Dagan & Michael A Heller, “The Liberal Commons” (2001) 110:4 Yale LJ 549 at 602-23.
10. Ibid at 603.
11. See also Dagan & Heller, supra note 3 at 60-61, 96.
12. Dagan and Heller favourably compare the provisions of other jurisdictions to US law, but I think they would agree that none of the alternative regimes of rules give full effect to liberal community. See Dagan & Heller, supra note 9 at 613-22. Matthew Harding suggests (in personal correspondence) that a bit of the spirit of liberal community might be found in the Australian High Court’s judgment in The Trustees of the Property of John Daniel Cummins, A Bankrupt v Cummins, [2006] HCA 6 at paras 71-73. The court refused to apply the equitable purchase contribution presumed resulting trust rules to a married couple, favouring instead the idea that the relationship of marriage is one of equal sharing. Thus an equal ownership, plus the right of survivorship, i.e. a joint tenancy, was presumed.
13. Arthur Ripstein, “Private Authority and the Role of Rights: A Reply” (2016) 14:1 Jerusalem Review of Legal Studies 64 at 80, 81-83, 85.
14. Ibid at 85 [emphasis added].
15. See Immanuel Kant, The Metaphysics of Morals (Cambridge University Press, 1996) at 100-02, AK 6:326-28. For some difficulties with this account see James Penner, “The State Duty to Support the Poor in Kant’s Doctrine of Right” (2010) 12:1 British Journal of Politics & International Relations 88.
16. I have also recently argued that essential to understanding the nature of property rights is to make sense of the concept of ‘title,’ and I have argued that with respect to tangible property title has a tripartite structure, consisting of a right, the right to immediate exclusive possession, plus two powers, a power to license what would otherwise be a trespass and a power to transfer title to another. See Penner, Property Rights, supra note 4 at ch 1.
17. See e.g. JE Penner, The Idea of Property in Law (Clarendon Press, 1997) at 74-75.
18. I thank Andrew Simester and Irit Samet-Porat for pressing me on the points I make concerning this example.
19. For an illuminating discussion see Leslie Green, “Sexuality, Authenticity, and Modernity” (1995) 8:1 Can JL & Jur 67.
20. ‘Expressing one’s race’ is a much more problematic idea.
21. By which I mean things like holding hands, or hugging, or discussing their wedding plans, which display the bigot would not find objectionable if done by a heterosexual couple.
22. In extreme cases what he does can amount to a denial of that person’s very humanity, which is a distinct wrong, and one which can lead to horrific wrongs, some of which may count as injustices. For the difference between a denial of humanity and an injustice, see JE Penner, “Property, Community, and the Problem of Distributive Justice” (2009) 10:1 Theor Inq L 193 at 205, n 22; PMS Hacker, The Moral Powers: A Study of Human Nature (Wiley Blackwell, 2021) at 53.
23. And for an instrumentalist of my ilk, one of the important considerations that would have to be considered before proscribing in law this sort of discrimination would be whatever knock-on effects that it would have; it might, for example, lead to more bigotry, some responding to the proscription as a violation of their freedom of speech. Irit Samet-Porat (in private correspondence) astutely raises a corollary of my position, which is roughly that where the conditions of widespread discrimination no longer obtain, the relevant anti-discrimination law should be abolished. So, for example, where the humanity and dignity of gay people is widely respected, and their self-determination cannot really be said to be in any significant way thwarted by a few remaining bigots, should the law depart from the scene? I would say ‘yes,’ subject to a couple of ‘empirical’ caveats. If the abolition of the law would in fact lead to the status quo ante the legislation, and bigoted behaviour would once again become widespread, then of course the law must not be abolished. Secondly, for some (many?) people the law has a symbolic value, and having such a law in place would be symbolic of our society’s commitment to human dignity, so should be retained even if now, thank heavens, the law is desuetudinous. This consideration opens up a huge can of worms, since it is not at all clear that people should accord the law significant, or indeed any, symbolic value. In a genuinely free and flourishing society I think the starting point should be to accord it none whatsoever. For an interesting discussion on a related issue, see Simon Keller, The Limits of Loyalty (Cambridge University Press, 2007) at chs 3, 4, 8.
24. This treatment of the issue draws upon Ripstein’s consideration of the same issue. See Ripstein, supra note 13 at 80, 82-86.
25. Dagan pursues this sort of example further at 133-35, but I don’t think anything he says there detracts from what I have said. Dagan does say that he sees no difference between the “uneducated bigot and the misguided but sincere religious believer” for his treatment of the issue. I do, but as the example I am discussing concerns bigots and Dagan distinguishes the two (though does not find the distinction relevant for his purposes), I shall not pursue the matter here. But see further the text accompanying note 36, below.
26. See Penner, Property Rights, supra note 4 at 172-73, 177-80, 193-99.
27. See e.g. Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press, 1994) at ch 9.
28. The situation is obviously more complicated with respect to workplace relationships. On one side we have Gardner, for whom occupations and the meanings they generate for people are first and foremost governed by social, cultural norms. These the law can either support or undermine. A significant undermining, he feels, is going on right now, under the spectre of what he calls ‘contractualisation’; see John Gardner, “The Contractualisation of Labour Law” in Hugh Collins, Gillian Lester & Virginia Mantouvalou, eds, Philosophical Foundations of Labour Law (Oxford University Press, 2018) 33. Dagan has replied, arguing roughly that a non-independence, self-realisation account of contract would not undermine the important social and cultural aspects of employment relationships; see Hanoch Dagan, “The Liberal Promise of Contract” in Haris Psarras & Sandy Steel, eds, Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (Oxford University Press) [forthcoming]. I shall not adjudicate the dispute here.
29. See Penner, supra note 15 at 99-102.
30. See the text accompanying note 26, above.
31. See JE Penner, “We All Make Mistakes: A ‘Duty of Virtue’ Theory of Restitutionary Liability for Mistaken Payments” (2018) 81:2 Mod L Rev 222.
32. See Hanoch Dagan & Michael Heller, “Autonomy for Contract, Refined” (2021) 40:2 Law & Phil 213 at 216-17.
33. See Arthur Ripstein, Private Wrongs (Harvard University Press, 2016) at ch 6. He centres the discussion on the famous nuisance case, Hollywood Silver Fox Farm v Emmett, [1936] 2 KB 468.
34. Ripstein, supra note 33 at 172.
35. Ibid at 169 [emphasis in original].
36. Of course this case is a very special one, and the principle would not cover most of what we understand to be anti-discrimination law, as Ripstein emphasizes in Ripstein, supra note 13 at 83-85. In particular it would not cover unintentional discrimination (83-84), as where an employer sets up a work schedule which inhibits the religious observances of its employees; it would also require Dagan to distinguish the case of the bigot from the sincere religious believer (see supra note 25).
37. Some better than others; see text accompanying note 46, below.
38. See e.g. Ripstein, supra note 33 at x, 8-10.
39. A third (21) is to “discard any pretense to account for existing law” but since that is not true of the dominion account, I shall ignore it here.
40. See Penner, Property Rights, supra note 4 at ch 1.
41. Irit Samet-Porat suggested this to me.
42. 277 A (2d) 369 (NJ Sup Ct 1971), discussed at 199.
43. See Penner, supra note 31 at 229-34.
44. See Jeremy Waldron, The Right to Private Property (Clarendon Press, 1988).
45. See the text accompanying note 40, above.
46. I discuss this also in Penner, Property Rights, supra note 4 at 31-36.
47. See Ripstein, supra note 13 at 64-70; John Gardner, “Private Authority in Ripstein’s Private Wrongs” (2016) 14:1 Jerusalem Review of Legal Studies 52.
48. See James Penner, “On the Very Idea of Transmissible Rights” in James Penner & Henry E Smith, eds, Philosophical Foundations of Property Law (Oxford University Press, 2013) 244 at 266-67.
49. Indeed, as Fred Wilmot-Smith asked me to point out, it is the property owner who is at risk of exploitation in this case.
50. See e.g. Penner, supra note 48 at 266-67; Penner, supra note 15 at 105.
51. I am not here denying that there is a conceivable regime of rights to resources under which no one has any exclusive rights, and that if such regime were in place poverty would ipso facto be eradicated. But since Dagan’s view is that, suitably adjusted, a liberal property regime can be justified, that needn’t be gone into here.