Pluralism, Context and the Internal Life of Property: A Response to Hanoch Dagan

University of Toronto Law Journal, Forthcoming

8 Pages Posted: 27 Sep 2012  

Lisa M. Austin

University of Toronto - Faculty of Law

Date Written: September 26, 2012

Abstract

This paper is a comment on Hanoch Dagan’s claims in “Inside Property.” Despite Dagan’s desire to provide an “internal” account of property institutions that is sensitive to both pluralism and context, I argue that his denigration of doctrinal analysis robs him of important critical resources. Doctrine is part of the “inside” of law that can help us understand when legal institutions fail. In addition, by offering an alternative to Dagan’s ends-based reasoning, doctrinal analysis can provide us with a way of seeking agreement on public norms governing interaction when we have deep disagreements regarding ends. In other words, pluralists interested in critical contextual analysis of institutions have good reason to take doctrinal reasoning seriously. I illustrate my claims by using the Canadian example of Re Noble and Wolf, a Canadian case concerning discriminatory restrictive covenants.

Keywords: property theory, pluralism, formalism, servitudes, restrictive covenants, Legal Realism

Suggested Citation

Austin, Lisa M., Pluralism, Context and the Internal Life of Property: A Response to Hanoch Dagan (September 26, 2012). University of Toronto Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2152480

Lisa M. Austin (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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