Property and Self-Determination

The central claim of Hanoch Dagan’s A Liberal Theory of Property is that property law mostly does and should provide alternative property ‘types’ (xii, 6-7) in each ‘sphere’ of property relations (91-96, 104), and that these ‘types’ are “partial functional substitutes” for each other (6-7). Dagan calls this ‘property’s structural pluralism’. So, for example, in the sphere of residential property, types such as freehold estates, residential tenancies, condominiums, co-ops, and common interest communities count as partial functional substitutes. In providing a range of types, property law serves the self-determination1 of individuals, providing them with meaningful choices amongst legal relationships and thereby allowing them better to realise their life-plans than would be the case if a one-size-fits-all approach were taken by the law. So Dagan’s functionalism relates the inputs of different values that self-determining people might choose, such as personhood, community, and utility, in varying degrees, to the outputs of partial functional substitutes (50-58). This book is something of a companion piece to Dagan and Heller’s The Choice Theory of Contracts,2 whose intellectual structure is similar and with which it overlaps in significant respects. Dagan thinks that the cogency of the main claim turns upon a number of other theses, which will be the main focus of this notice. These are (1) Dagan’s characterisation of ‘mainstream liberalism’ and ‘relational justice’; (2) his critique of the ‘Blackstonian’ or ‘dominion’ theory of property; (3) his claim that property is ‘power-conferring’ and that the relation of owners to non-owners is a kind of authority relation; and (4) property’s ‘legitimacy challenge’. My conclusion will be that none of these theses are really relevant to the central claim, and that a person might support the latter without endorsing any of the former. But first we must examine the nature of the central claim.