Liberal Property and The Power of Law

Canadian Journal of Law and Jurisprudence (Forthcoming 2022)

24 Pages Posted: 26 Jul 2022

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Date Written: July 15, 2022

Abstract

In “A Liberal Theory of Property” I argue that property is one of society’s major power-conferring institutions. Property confers upon people some measure of private authority over things (both tangible and intangible). This temporally-extended private authority dramatically augments 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. A genuinely liberal property must expand people’s opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination.

Property cannot carry this justificatory burden on its own; its legitimacy is dependent upon a background regime that guarantees to everyone the material, social, and intellectual preconditions of self-determination. But the significance of property to self-determination implies that such a background regime – crucial as it is – is not sufficient. To properly meet property’s legitimacy challenge, law must ensure that property’s animating principles and the most fundamental contours of its architecture follow its autonomy-enhancing telos. Hence, the three pillars of liberal property – the features that distinguish it from property simpliciter:
(1) liberal property carefully circumscribes owners’ private authority so that it is adjusted to its contribution to self-determination;
(2) it includes a structurally pluralist inventory of property types so as to offer people real choice; and
(3) it complies with the prescriptions of relational justice so as to ensure that ownership does not offend the maxim of reciprocal respect for self-determination on which property’s legitimacy is grounded.

In his “Property and Self-Determination” James Penner embraces liberal property’s second pillar – dealing with property’s structural pluralism – while vehemently rejecting the jurisprudential and normative foundations on which it is founded as well as liberal property’s other two pillars.

In this Essay, I respond to Penner’s rich and challenging critique. I argue that our most fundamental disagreement is jurisprudential. It relates to the power – or, more precisely, the powers – of law. Penner’s critique, I claim, radically marginalizes law’s role in constructively and prospectively constituting property’s private authority; and it further obscures the way our understanding of property as a legal concept affects legal reasoning and thus the substance of the law. Once we appreciate the profound ways in which law is involved in constituting property as a power-conferring, autonomy-enhancing social institution, I finally contend, Penner’s normative grievances can also be safely dismissed.

Suggested Citation

Dagan, Hanoch, Liberal Property and The Power of Law (July 15, 2022). Canadian Journal of Law and Jurisprudence (Forthcoming 2022), Available at SSRN: https://ssrn.com/abstract=4164155 or http://dx.doi.org/10.2139/ssrn.4164155

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel
+972 3 640 7302 (Phone)

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