Creating Space for Property’s Foes

PUBLISHED

Ezra Rosser (@EzraRosser) is a Professor of Law at American University Washington College of Law.

PUBLISHED

Ezra Rosser (@EzraRosser) is a Professor of Law at American University Washington College of Law.

This is part of our symposium on Hanoch Dagan’s book, A Liberal Theory of Property. For a concise version of Dagan’s argument, see this restatement. Image credit: Sam Abell, National Geographic.

I came away from A Liberal Theory of Property thinking (as I often do) about a Bruce Springsteen song.  In “Mansion on the Hill”, the narrator tells of driving with his father to “look up at” a mansion surrounded by “steel gates” and “in the summer all the lights would shine, there’d be music playing, people laughing all the time.” The narrator never enters the mansion and there is a certain melancholy in the background music, but unlike many other Springsteen songs, it is not an angry song. Instead, the mansion is a thing of beauty, of aspiration, and of sadness, permanently “rising above the factories and the fields” of the real world where the narrator and most people live.[1] The mansion on the hill is valuable, as a beacon and as something to gaze upon, even though it is removed from people’s daily struggles.

So too, A Liberal Theory of Property seems to float above the ways property works in practice, putting forward a vision of property that is hard to fault in part because Dagan deliberately avoids the messiness separating his vision from how property is lived in even wealthy liberal democracies. Part of me is inclined to dismiss such exercises in pure theory as merely self-indulgent—similar to conservative celebrations of fictional perfect markets—or irrelevant. But in this case, by providing a compelling vision of how property law should work, A Liberal Theory of Property provides a real service to readers, especially those who, like me, are skeptical about the liberating potential of property law.  

One of the striking aspects of Dagan’s account for a property-skeptic like me is Dagan’s consistent emphasis that the legitimacy of a property regime depends on how it tackles the place of nonowners and questions of distribution. Dagan argues that property cannot be justified if distribution is ignored (65) and that property’s legitimacy is something that has to be true “not just at its creation but continually.” (211) As an institution, property conveys power to owners in their dealings with nonowners and the “burden of justification [of that power] is ongoing and immanent to the life of property in law.” (66) Property law’s ongoing justificatory burden means that matters of distribution cannot be simply carved off, declared as not part of property law because they can theoretically be solved through tax-and-transfer magic. If the tax-and-transfer that would make a given property regime morally acceptable is not actually occurring, then the property regime is not morally acceptable. Rejecting the tax-based deus ex machina solution as all that is needed in response to distribution concerns is critical because it allows Dagan to demand more of property.

For Dagan, the situation of nonowners is not merely a factor to be weighed alongside a multiplicity of other values when judging property law; it is instead—to use a loaded term in property theory—at the core of Dagan’s vision of property. The end goal of property, according to Dagan, is self-autonomy and “[a]n autonomy-based conception of property must ensure that owners’ rights do not excessively limit (let alone undermine) nonowners’ autonomy.” (71) Since property law itself must help facilitate self-authorship of everyone, including nonowners, property law should also place limits on forms of ownership and accumulation of power that undermine the autonomy of others. As Dagan explains, “if property is to rely on its contribution to people’s autonomy for its legitimacy, it must ensure that this contribution applies to everyone.” (73)

Dagan’s focus on autonomy—on a single metric for measuring the morality of property—is useful because it lends itself to firm conclusions and consequences in a way that liberal multi-factor tools do not. Pivoting analysis around a single value allows Dagan to achieve the sort of elegance usually reserved for theories used to rationalize the brutal status quo. In doing so, provides a powerful counter to the falsely-simplified beauty conservative approaches offer. There are of course reasons, on the left and on the right, to critique Dagan’s embrace of autonomy as property’s lodestar. Rashmi Dyal-Chand’s contribution to this symposium does a wonderful job problematizing autonomy. But there is value in a theory that opens up a decidedly progressive vision of what property should be and does so in part by prioritizing the place of nonowners in that theory.

Compare Dagan’s centering of nonowners with Locke’s labor theory and welfare utilitarianism, the two theories most favored by those on the right. Locke’s theory seems to provide an elegant way to tie property ownership with desert by connecting ownership with productivity. Private property is reserved for industrious individuals who can create value out of the boundless commons. Locke’s famous proviso that there must be enough left over after property has been acquired for everyone else to use it for their purposes must be glossed over, lest one have to confront the problem of nonowners (or, indeed, the internal contradictions in the theory). As for utilitarianism and it consequentialist ilk: Because most versions of utilitarianism in current use focus on net economic output and analyze legal rules using a Kaldor-Hicks approach that does not require compensating side payments to those harmed by changes, they treat the position of nonowners as morally irrelevant as long as the pie increases in size.

Dagan’s theoretical discussion of property—divorced as it is from the politics and messiness of property as it operates on the ground in the wealthy liberal democracies that the theory arguably applies to—is equally utopian as the favored visions, whether Lockean or utilitarian, of the right. But it at least confronts a, perhaps the,central moral question that any property theory grapple with: what to do about nonowners?

What Dagan’s idealized account of property provides is space to consider property as it should be, not as it is. It offers a mansion on the hill for those of us struggling to find ways to reconcile the attractiveness of property scholarship with the way property law marginalizes nonowners and contributes to inequality for disadvantaged groups.

A Liberal Theory of Property does not answer concrete questions that need to be addressed in most wealthy liberal democracies. Should reparations be paid to formerly (and presently) oppressed groups? Should states implement aggressive wealth and transfer taxes? Should workers be treated as stakeholders? How can we better promote inclusive communities? What can be done to generate political support for affordable housing? Are there ways to break the inheritance of advantage and disadvantage according to location and birth lottery? These are big, difficult questions and Dagan’s theory floats high enough above the concrete challenges of particular countries that it does not answer them concretely. But by providing a theory—“one that is unapologetic about its charitable interpretation of the idea of property, while openly acknowledging its many – at times significant – departures from property’s existing manifestations” (244)—that can support a better version of property, Dagan’s work provides hope for scholars wavering between being friends and foes of property. At this point, the direction matters more than the details. The mansion Dagan constructed is now there, it is up to others to fill in the rooms and break through the steel gates.


[1] For those who did not grow up rich, the mansion on the hill can take many forms. I first saw my “mansion on the hill” in second grade when I went to a classmate’s birthday party and marveled at the number of presents, the beauty of his house, and the variety of food available. In middle school, living on the Navajo reservation, the mansion was a new double-wide trailer that the owner of the local Burger King placed on a small rise. Improbably, through a series of scholarships, I was able to enter the mansion, first as a guest and later on a permanent basis as I went from boarding school to the Ivy League to a tenured position. See Ezra Rosser, On Becoming “Professor”: A Semi-Serious Look in the Mirror, 36 Fla St. U.L. Rev. 215 (2009).

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