Liberalism and the Common Callings

Travelling through some country that observes the common law you might come across a stranger on the road who asks for help—for food, or shelter, or a ride to the next town, or assistance with their vehicle. You might be able to supply this assistance, and they willing to reimburse you for it. Nevertheless, you would be entitled to ignore their appeal and pass by on the other side. This striking rule has attracted the attention of legal theorists, especially proponents and opponents of the broadly liberal tradition. The rule arguably shows the commitment of the common law—or at least the part of the law governing private individuals—to a strong conception of individual freedom or autonomy in interpersonal relations. Indeed, for some theorists influenced by Kant’s legal philosophy, the rule shows that private individuals are essentially independent of each other. But what if, in some country subject to ‘the good old common law’, you ran a business that provided certain goods, services, or facilities to the public—an inn offering meals and rooms for the night, or a railway with a regular passenger service, or even a forge for fixing broken horseshoes? Here the law would not allow you to ignore a stranger who arrived at your premises seeking your help and willing to reimburse you. You would be liable for damages if you turned them away without good reason. This striking rule has attracted less theoretical attention, but is one key piece of evidence Hanoch Dagan discusses in chapter five of his Liberal Theory of Property. Dagan seeks to articulate a liberal theory of private law in general, and of property law in particular, which is more persuasive than the Kantian theory. According to Dagan, private individuals are autonomous or self-determining. But they are not merely independent of each other; rather they stand in a more generous sort of relation. Each person is obliged to accommodate each other’s self-determination—which may mean taking active steps to help. Dagan argues that this principle explains, among other things,