Hanoch Dagan’s liberal theory of property as a third way between neo-liberalism and new socialism?
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1614-9939; 1614-9920
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European review of contract law, 2022, Vol. 18, No. 1, pp. 84-100
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MICKLITZ, Hans-Wolfgang, Hanoch Dagan’s liberal theory of property as a third way between neo-liberalism and new socialism?, European review of contract law, 2022, Vol. 18, No. 1, pp. 84-100 - https://hdl.handle.net/1814/94090
Abstract
A liberal theory of property, this is Hanoch Dagan’s core claim, ‘needs to start from the mainstream liberal tradition of the past century, that is with a concern for individual autonomy, self-determination, and self-ownership, ensuring to all of us as free and equal individuals the possibility of writing and rewriting our own life stories’ (p. 1). ‘Liberal’, ‘liberal tradition’ and ‘liberal theory’ refers to political philosophy and not to the public discourse in the US where liberal is associated with the left and in the EU where liberal is connected to the right (as Dagan puts it). The theory is neither meant to serve as a blueprint for action, nor as a theory of justice in the society; it is to be understood as a normative ideal (p. 17 and laws for utopia p. 99), a starting point which has provoked strong critiques by E. Rosser, N. Davidson and R. Dyal-Chand.[1] The ideal nature admittedly shields the theory against a reality check. This sounds idealistic and it is deliberately meant to be as each critique contains some idealism, directed against critical legal studies (pp. 68/77).[2] What makes the book particularly intriguing is the search for a third way between ‘neo-liberalism’ and ‘neo-marxism’, placing property at the centre, thereby drawing a picture which is very different from K. Pistor’s Code of Capital.[3] The ideal type of a truly liberal market economy, which sets reality aside, should not lead to the conclusion that theorizing at such an abstract level is not useful. It helps to clarify the possible alternatives and to position scholarship. M. Hesselink follows a similar avenue in looking at the possible political philosophical foundations of contract law, thereby distinguishing six different strands. The liberal theory of property is located in the ‘liberal-egalitarianism’ strand of political philosophy and its particular understanding of contract law, between libertarianism and utilitarianism on the one side and communitarianism and discourse theory on the other.[4] What is called ‘liberal’ in Hanoch Dagan’s philosophical underpinnings sounds like moderate social democratism in European scholarly ears. In order to uncover the richness and depth of his arguments it is necessary for the reader to take the utopian ideal seriously. Even a utopian ideal though requires some clarification of the current economic, political and social circumstances so as to place the liberal theory of property into context.
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Published online : 14 May 2022