Property as a Commitment to Self-Determination

Abstract

In this contribution to a review symposium on Hanoch Dagan’s A Liberal Theory of Property, I question the coherence of a liberal property regime constructed around ‘the ultimate value of personal self-determination’, tied to Dagan’s acknowledging the premise of a fundamental commitment to self-determination by property holders and others within society. I do so by considering the nature of the oppression Dagan identifies with a non-liberal property regime (or a purportedly liberal property regime failing to adhere to his understanding of basic liberal tenets).

I critically examine Dagan’s two strategies of carefully delineating the private authority of the property holder and subjecting that authority to relational justice, both proposed as an outworking of the commitment to self-determination. (I comment only in passing on the third pillar of his liberal conception of property, structural pluralism.) I also reject Dagan’s authority-centred view of property, advanced at the expense of recognizing the holder’s rights or liberties.

I suggest that Dagan’s emphasis on the authority or powers of the property holder creates a distortion in the legal analysis of property; that Dagan does not adequately distinguish between a legal analysis of property and a broader normative purpose for property; and, that the conflicts between owners of property and nonowners cannot be resolved by a simple commitment to self-determination.

Keywords: property, liberal values, Dagan, private authority, legal analysis of property, normative purpose for property