Inside Property

University of Toronto Law Journal, Vol. 63, No. 1, January 2013

25 Pages Posted: 20 Feb 2012

Date Written: February 16, 2012

Abstract

Taking seriously the complexity and heterogeneity of property law, this Essay claims that a proper conception of property must account for both governance and inclusion. Neglecting governance obscures the significance of the internal life of property, which is often structured by sophisticated mechanisms aiming to facilitate various forms of interpersonal relationships in ways that no contractual arrangement can. Ignoring inclusion improperly marginalizes non-owners’ rights to entry in categories of cases where inclusion is an indispensable feature of the property institution under examination.

Looking inside property in these two senses requires abandoning the conception of property as an exclusive right and substituting it with a pluralist conception. Property should be understood as an umbrella for a limited and standardized set of institutions, which serve as important default frameworks of interpersonal interaction regarding various types of resources. At its best, the plurality of property configurations — the different contents of owners’ rights in these different property institutions — enables property law to vindicate differing balances among the different values that property can serve, according to the type of social relationship and the nature of the resource at stake. The pluralist conception of property, therefore, not only fits property law better; it is also the only understanding of property suitably attending to and facilitating the individuality-enhancing role of multiplicity, which is indispensable for meaningful autonomy.

Suggested Citation

Dagan, Hanoch, Inside Property (February 16, 2012). University of Toronto Law Journal, Vol. 63, No. 1, January 2013, Available at SSRN: https://ssrn.com/abstract=2006737

Hanoch Dagan (Contact Author)

Berkeley Law School ( email )

890 simon hall
215 Bancroft way
berkeley, CA 94720
United States

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