Towards an Autonomy-Based Theory of Property

 Professor Hanoch Dagan will give a talk to the Advanced Property and Trusts class and the Property Law Discussion Group. 

Abstract.    For many years, I have developed two themes in my work on property.  One is that, rather than revolving around a core Blackstonian form of “sole and despotic dominion,” property law is structurally pluralistic.  The other is that, alongside the many manifestations of owners’ right to exclude that the Blackstonian understanding highlights, property in fact implies – from within rather than as an external constraint – important limitations to exclusion and even some rights to inclusion.   

In recent years, I have come to realize that many of my earlier presentations of both these themes, which were collected in Property: Values and Institutions (Oxford University Press, 2011), are radically incomplete and, as it were, started from the middle because I had not fully articulated their normative justification.  This presentation will develop the missing fundamental premise, thus reinstating both themes on firmer ground and thereby refining, extending, and to some extent also revising them.  I will argue that property’s structural pluralism and the significance of the right to be included (or, more generally, property’s compliance with relational equality) are two necessary pillars of a genuinely liberal conception of property, founded on the ultimate value of personal self-determination.

 Property should be conceptualized in structurally pluralistic terms because this understanding, and only this understanding, is conducive to autonomy. We should accordingly take the heterogeneity of our existing property law seriously because the multiplicity of property types facilitates the diversity of interpersonal relationships conducive to self-determination, thereby enabling property to achieve a core mission of private law in a liberal polity.  Property’s facilitation of this autonomy-enhancing pluralism is crucial because collective action problems, bounded rationality, and cognitive failures imply that the lack of proactive legal support often undermines many types of interactions, and thus people’s ability to pursue their own conception of the good.

   A similar analysis applies to the right to be included, which I now understand as one aspect of the relational equality prescription.  For example, fair housing rules that prohibit discrimination in the sale or rental of residential dwellings are not external to property law. Horizontal discriminatory practices are objectionable per se, regardless of whether the state takes care of its obligations of distributive justice and democratic citizenship.  Refusing to consider a would-be buyer of a dwelling merely because of her skin color, for example, fails to respect the individual on her own terms.  Property law must not, and does not, authorize social relationships that proceed in defiance of the equal standing and the autonomy of the person subject to discrimination.