Katharina Pistor | LPE Project | January 27, 2021
Hanoch Dagan has written a wonderful, thoughtful, and thought-provoking book. Its publication could have hardly come at a more prescient time. Many observers and commentators rightly despair over the lack of opportunities the current economic and legal regime offers to the many while it privileges the few. Calls for socialism are growing louder as there seems to be no alternative given the realities of the neoliberal order.
Against this background, Hanoch develops a theory of private property that is truly liberal in the original meaning of the term: a theory built on the principle of individual autonomy, or “self-authorship,” but also on structural pluralism and relational justice. This requires a legal order, a commitment to recognize and enforce only rights that meet these fundamental norms, which is why his is a theory of property law and not merely property. Property law confers rights on individuals, which they can use against the state, but, critically, also against fellow humans. A liberal property law, Hanoch argues forcefully, shall not condone the use of property rights to suppress others.
From this normative vantage point it is impossible to endorse private property rights as a Blackstonian “sole and despotic dominion.” “Law’s constitutive role in property law implies that it cannot abdicate its responsibility for any of its consequences” (p. 166). Neither is it sufficient to rely on the state’s regulatory and taxing powers to mitigate excesses of such a regime and distribute some of its gains, as advocated by Kantian theorists of property. Instead, Hanoch conceives of property law, and of private law in general, as relational law. Property rights exist only in relation to other individuals who hold equal rights to self-authorship. The right to exclude others may be protected when it comes to one’s home or intimate life, but not in the public sphere that owners of a business access when opening an inn or a shop. A liberal property law does curtail an imagined absolute right to exclude; such an absolute right does not exist. Property rights are conferred ab initio as rights that consider the equally deserving rights of others.
Originally published by the LPE Project. Read the full article here.