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Property, Collectivity, and Restraint


Rashmi Dyal-Chand is Professor of Law at Northeastern University School 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.

For readers like me, reading Hanoch Dagan’s A Liberal Theory of Property, will be both enriching and painful. The book is enriching because it is a highly engaging explication of what property could be, a narrative that is internally consistent, logical, and very persuasive. At the same time, it is painful because Dagan’s ideal of property, which he argues can only be justified by a commitment to individual autonomy, is such a desperately far cry from our present reality. In particular, as I read the book I found myself wondering whether any vision of autonomy – even one that is so deeply grounded on a thick idea of relational justice, and that is as other-regarding and protective of equal access and distribution as Dagan’s – could sufficiently and single handedly anchor property law in responding to our current state of crisis.

This is not to say that it is an unproductive task to envision a more utopian ideal to which we can all aspire. Not least of all because private ownership is here to stay, Dagan makes a compelling case that it is crucial for societies to grapple seriously with the question of what property ownership should look like ideally and what steps are necessary to achieve it. Moreover, he presents bold and detailed arguments about the implications of using his particular vision of autonomy as the foundation for a just system of property ownership. It is possible to walk away from this book with concrete ideas about the very different way property rights and relationships could work if Dagan’s vision of autonomy undergirded a property system. I also am not suggesting that our legal institutions should focus only on carving a path out of our current state of crisis. We need a vision to guide us in taking the long view as we extricate ourselves from our current mess. Rather, for me, the pain from reading this book was primarily induced by the increasingly urgent question of whether our legal institutions have the luxury to adopt Dagan’s particular utopian vision, even as a set of guiding principles. Do we have this luxury today, as we focus our efforts on limiting the damage and risks imposed by the multiple, overlapping, and global crises we are experiencing? And will we even have this luxury when our political, economic, and social circumstances are less dire, given what we now know about the finite nature of our planet’s resources?

The libertarian version of autonomy has rightly been the subject of scathing commentary by a broad range of progressive critics in the wake of recent crises. A vision of autonomy that valorizes the ability to “thumb one’s nose at the world” has played a significant role in the legal definition of property as the right to use resources exclusively without much acknowledgement of (especially the more systemic) externalities produced by such behavior. The crises of systemic racism and of climate change both exemplify the repercussions that can flow from such a property system. By protecting the rights of owners to own and use resources exclusively, extensively, and indeed idiosyncratically, property law pays scant attention to the harmful effects of such use. As ecological economist Kenneth Boulding observed in 1966, our economic system is a “cowboy economy,” with rules that assume the availability of “infinite reservoirs from which material can be obtained and into which effluvia can be deposited,” and the success of which can be measured simply by the extent of production and use. Any reformation of property law in the face of crisis must take Locke’s proviso seriously, but it must go well beyond what can be captured by his proviso. The crisis of structural racism helps clarify that visions of autonomy that protect racial status and other privileged identities as property simply have no place in any property system that can claim to be just.

Of course, Dagan’s vision of autonomy is about as far from libertarianism as it is possible for a vision of autonomy to be. Indeed, his idea of self-definition, which includes a guarantee of property access on grounds of relational justice (even as between private individuals), provides a powerful basis for addressing some of the ills resulting from structural racism. (I found his examples of public accommodations and fair housing law particularly compelling. (131-139)) Yet I worry that even our most equitable manifestation of self-definition cannot adequately prioritize the need to collectively manage systemic externalities. In this regard, consider Dagan’s admirable vision of ensuring equal participation in the pursuit of self-definition via property. As he argues, “given the wide variety of acceptable human goods autonomous people should be able to choose from, the liberal state must recognize and actually support a sufficiently diverse set of property types for people to use in organizing their lives.” (91) My concern is that this vision does not ensure the level of collective restraint that will be required to pull us back from our current state of crisis. Some of the choices that Dagan argues should remain available to self-actualizing individuals, particularly those that allow for more individualized decision-making, may simply be unwise to keep available at a time when the pursuit of autonomy through property has produced serious collective harms. Given the increasing pressure on our use of a multitude of resources, at least some forms of property simply may not be available to serve the power-conferring function that Dagan envisions.

Instead, I wonder if the range of collective decision-making forms that Dagan persuasively argues should be at the “core” of property law, among the rich choices available for individuals to achieve self-realization, should indeed be the primary forms of property that ought to be available today. Today, a growing chorus of voices — including those of ecological economists and sociologists, scholars and practitioners of the “commons,” and scholars of law and macroeconomics — is contributing to a compelling case that our legal and social systems must prioritize the collective over the individual. Just as we have spent the last century perfecting legal rules to enable individualized resource capture and use, so in the coming decades must we develop a range of sophisticated forms for collective decision-making, including those that Dagan has proposed in his prior work.

Collective decision-making seems increasingly imperative to property today for several reasons.  For one thing, it naturally shifts the focus from individual responsibility to a more collective level of responsibility. In this respect, collective action more readily prioritizes collective knowledge of resource limitations and the impact of decision-making with respect to resources. This seems particularly important in understanding systemic effects such as climate change and segregation. By way of simple example, if the collective has responsibility for managing the amount of pavement in a neighborhood, it will be easier to create more permeable surfaces than if each individual tries to manage their own individual share. For another, a shift in focus from the individual to a collective may more naturally shift the focus to restraint alongside or instead of access. While equal access to property has been an extraordinarily powerful basis for self-actualization and human rights, and one that Dagan expands further with his idea of relational justice, it may be crucial to define equality today by emphasizing equality of restraint as well as access. Dagan uses relational justice to provide a powerful rationale for prohibiting discrimination by private owners of housing. But I would argue that our vision of property today must also provide both the rationale and the tools for owners to share by giving up some of the resources they have rather than by using more resources to replicate for others what they own themselves. By decentralizing our decision-making about resources, it is all too easy to forget about the limitations of those resources.

Especially given the urgency of the climate crisis today, I can’t help but wonder whether even the most other-regarding vision of autonomy – defined as individual self-definition – is inherently counterproductive to a long-term vision of property rights and laws. I expect Dagan would respond to my questions by arguing that his vision of autonomy respects my concerns, but I would want to know more from him about what I see as a basic tension between his ideal of individual choice even and only for the specific purpose of self-definition and the need for collective restraint (and indeed, collective action). I would want to know his response to my assertion that restraint must lie at the very core of any pragmatic definition of property ownership, even if it limits the exercise of property rights in pursuit of self-definition.

Finally, as I read Dagan’s book, I couldn’t help but wonder if my crisis-informed perspective on Dagan’s ideal vision of property might teach a more permanent lesson about the function of property in our modern world, even in its most ideal form. If and when we are able to back away from the financial, racial, health, and climate crises that currently plague us, we will do so with the sobering recognition that our planet is a limited resource. Our utopian visions of property ownership will still have to rest on a foundation that recognizes this most basic of facts. In light of this reality, I would want to ask Dagan how his vision could ensure a more permanent measure of restraint within his optimistic, indeed beautiful, vision of property and autonomy.