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Dagan on Kantian & Aristotelian Property Theory

By Lawrence Solum

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted From Independence and Interdependence to the Pluralism of Property (PROPERTY, STATE AND COMMUNITY, Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

This paper is one chapter of a collection of essays ? Property, State, and Community ? which will be published with the Oxford University Press in 2011. I discuss in this chapter two recent ambitious attempts to divine the core normative essence of property; relying, respectively, on Kant and Aristotle, one finds property as a castle of independence, the other ? as the locus of interdependence. I recognize the normative appeal of these rival theories: independence must be a core value in every humanistic tradition; and our embeddedness in communities is not only an important feature of the human predicament, but also a significant aspect of human flourishing. And yet I show that both theories fail and that their failures are mirror images of one another. Each theory ignores and thus undermines the value emphasized by its counterpart, and this omission also backfires. By refusing to allow interdependence and responsibility to play any role in its conceptualization of property, the property as independence school may end up undermining its own cause by entrenching widespread human dependence. Likewise, by resisting the commitment to legally entrench liberal exit and by insisting that reciprocity should not cap communities? demands of their members? contributions, the property as interdependence camp may dilute, rather than fortify, the value of community.

I suggest that rather than trying to extract one regulative principle of the entire terrain of property, we should appreciate the value of the heterogeneity of property's domain. The multiplicity of property institutions is the key to property's normative promise. Property can be the home of both independence and interdependence (and can serve the other property values as well), and thus provide people with valuable options of human flourishing. Only by facilitating such diverse forms of human interaction ? different property institutions ? can property promote (as it does) the freedom-enhancing value of pluralism and the individuality-enhancing role of multiplicity, which are so crucial to the liberal ideal of justice.

Highly recommended.

Full post as published by Legal Theory Blog on May 10, 2010 (boomark / email).