It is a heart wrenching line from a painful scene in the 1984 film adaptation of the children’s novel The NeverEnding Story. Rockbiter, a giant anthropomorphic stone creature, sits, forlorn. What he thought were big, good, strong hands could not hold on to his compatriots. He could not save them. His big, good, strong hands were powerless against the Nothing, a fictive metaphysical force that was consuming Fantasia and that disappeared the Rockbiter’s “little friends.”
It was this scene and the Rockbiter’s tortured lament that prevaded my thoughts as I read and mulled over Hanoch Dagan’s A Liberal Theory of Property, which seeks to answer what may be the wickedest of property problems (What is property?) with the paradoxically simple and complex response: Property is—or should be—whatever promotes autonomy for everybody. Not surprising, given his stated commitment to pluralism, Dagan’s re-theorizing makes widely appealing what, it could be argued, is precisely the point the New Jersey Supreme Court intended when it said, “Property rights serve human values. They are recognized to that end, and are limited by it.” (By the way, Rashmi Dyal-Chand’s progressive critique of that New Jersey case, State v. Shack, is a sobering and necessary read if you are interest in the limited imagination of progressive property.)
Dagan’s work is replete with big, good, strong claims:
- “[A]nalysis of property needs to start … with a concern for individual autonomy, self-determination, and self- authorship, ensuring to all of us as free and equal individuals the possibility of writing and rewriting our own life stories.”
- “[I]n order to be legitimate, property is to be premised on a fundamental commitment to autonomy as self-determination or self-authorship.”
- “[Pr]operty does play a distinctive and irreducible role in empowering people. It provides them some temporally extended control over tangible and intangible resources, which they need in order to carry out their projects and advance their plans. The authority that property confers on owners facilitates their ability to determine and pursue their own goals.”
- “Property law proactively empowers people, expanding their ability to interact in the world.”
I’ll rest on these because, as you will see below, I will (somewhat self-interestedly) urge you to read the book. And, indeed, they look like big, good, strong claims, don’t they? But, can they save property? I suggest not.
The problem is Dagan’s deep commitment to autonomy. What is that anyway? Dagan carefully delimits his version of autonomy as “self-determination or self-authorship.” As he elaborates autonomy, Dagan builds in robust relational obligations that give formal purchase to substantive equality. This seems a far cry (and a welcome departure) from dominant conceptions that cast autonomy as “freedom from external control or influence; independence” or “self-governance.” Nevertheless, vulnerability remains pathogenic under a Daganian autonomy metric, so legitimate liberal property law must overcome an imagined autonomy-vulnerability contradiction. For Dagan, overcoming this contradiction is the primary justification for property.
Make no mistake: the idea of autonomy is sexy. It has self-indulgent appeal in hyper-individualistic Western-style socioeconomic-political space. And Dagan’s disciplining of autonomy with other-regarding obligations appeases the discomfort that may accompany the selfishness of autonomy.
I want to suggest, however, that autonomy—even Dagan’s rehabilitated, communitarian conception of it—is a myth. Rather, the dependence and reliance (the vulnerability) against which autonomy is pitted is not pathogenic. It is not pathological. It is not an error to be fixed or a deficiency to be remedied. It is the universal and constant human condition.
Humans and their institutions are always, under all circumstances, subject to the vagaries of the world. As Martha Albertson Fineman explained as she introduced what has become known as vulnerability theory, “we all live and die within a fragile materiality that renders us constantly susceptible to both internal and external forces beyond our control.” There is only one response to the physical, mental, metaphysical, and institutional fact of universal constant vulnerability: resilience. That is, the only response to vulnerability is to become embedded in, and interdependent on, social relationships and institutions that produce the resources that allow people to deal with their vulnerability. Dagan seems to recognize this as he describes social and cultural embeddedness as “the human predicament.” But, he does not follow this recognition to its necessary conclusion: People are not self-determining or self-authoring. They are co-determining and co-authoring. And no theory of property can make it otherwise.
Indeed, either Dagan’s theory is deficient on its own terms or it must be a stylized fiction. Consider home ownership, a paradigmatic example of property. How exactly does contemporary home ownership “facilitate their ability to determine and pursue their own goals”? Property—from zoning and nuisance laws to mortgages and servitudes and on—demands that homeowners pursue not their own goals but that they select from a sanctioned menu of goals defined in relation to neighboring homeowners, other people, and the community as a whole. It cannot be that Dagan would conclude that homes are not properly the subject of property. Instead, his ideas of self-determination and self-authorship have to be taken as fictions. This is what I mean by calling autonomy a myth, and it is why Dagan’s autonomy-based liberal theory of property fails. The normative justification for property—what ever that justification may be—must be a value that is real and realizable.
The preceding, I hope it is clear, is not much of a critique. If you are committed to liberalism, then Dagan is the best of it. If you buy the autonomy myth, then Dagan has provided a compelling, humanizing approach to property-as-autonomy. It is lovely. But I urge you to reject autonomy both as a descriptive possibility and as a normative ideal.
The myth of autonomy—like the cult of scarcity—obscures the mutually constitutive interplay among law, economy, and society. Law does not merely respond to economic forces and realities. There is no economy without law. Likewise, which institutions operate and dominate which facets of society is determined by an array of legal settlements, settlements Neil Komesar has usefully described as institutional choices. Institutional choice, in turn, is not independent from the values being produced in the economy and reproduced through society.
The myth of autonomy fuels the fetish that imagines markets as some neutral, natural space where autonomous players freely negotiate over systemically unbound preferences, where all of the relevant information is found in outcomes, in which the government is a priori suspect, and in which morality and justice are imagined in an internal deontological meditation instead of enacted through institutional power.
This is the essence of neoliberalism, and it is the Nothing consuming the realm of possibility and imagination, replacing it with the pernicious lies and myths—autonomy among them—that render inconceivable radical economic, social, and political change. And this arealism is, in no small part, precisely the invisible but powerful force against which the law and political economy intellectual, social, and political project pits itself.
I feel I should note that, even if autonomy were a compelling foundation for some part of the socio-legal economic order, it is a poor fit for property. Dagan claims “property law proactively empowers people.” What he should have said is that, properly understood, property law assigns power in relationships of inevitable interdependence. Joseph Singer clarified this idea in the U.S. property law curriculum when he explained, “property concerns legal relations among people regarding control and disposition of valued resources.” Sanjukta Paul recognizes this point when she hypothesizes property as little more than “coordination rights.” (Her elaboration of the idea of coordination rights is a banger.) Cheryl Harris advanced this position when she recognized that whiteness is property. Nestor Davidson nods to this when he describes property as communicating social hierarchy.
I take these observations further: Property does not advance the project of self-determination. Rather, property—at least the property about which it is worth penning a tome like Dagan’s—determines ontological, epistemological, and vocational humanity. It defines who counts, when, and how. It ranks and positions them within the socio-political structure. It draws their horizons of possibilities. It steers their agency. These tasks are networked and co-referential. And that is not autonomy, either as Dagan disciplines it or in its feral natural state.
I disagree with the reality imagined and the normative values advanced in A Liberal Theory of Property. But it is an exciting example of the educative power of law. And for that reason, it should become a standard text. I have taken the position that law is more than a tool used to structure relationships. It also performs a fundamental task of educating society. As you survey the field of law, it becomes clear that certain values are embedded in the curriculum and shape the policy choices deemed conceivable and practicable. Dagan suggests that property is best treated as useful category for thinking about the institution (and valuable resource allocation), as opposed a decision-making heuristic. This idea is really complementary to my own ongoing exploration of how property law trains society to think about and understand the possibilities for the allocation and control of valued resources.
But Dagan’s work also evidences the product of property as a societal curriculum. As the institution of property has been developed, enacted, and lived it has delivered lessons about humanity, about justice and fairness, about morality. Property’s core curriculum advances a neoliberal political/neoclassical economic ideologies and values as the only possibilities. Dagan rejects this fallacy but cannot escape it.
As for property-as-autonomy: “They look like big, good, strong hands, don’t they?”