Post by John Golden
In a paper posted on SSRN, The Challenges of Private Law: Towards a Research Agenda for an Autonomy-Based Private Law, Hanoch Dagan lays out a vision of private law as a “law of our interpersonal (horizontal) relationships” that strives to “establis[h] ideal frameworks for respectful interaction between self-determining individuals.” Dagan thereby seeks to escape the “deadlock” between views of private law as (1) “a garden-variety mode of regulation” and (2) a branch of law whose focus on “individual independence” makes it “resistant to demanding interpersonal claims.” Dagan argues that, in a world “of interdependence and of personal difference,” “tak[ing] seriously law’s commitment to autonomy as self-authorship or self-determination” requires subjecting private law to a “prescription of structural pluralism and [an] injunction of relational justice.” In accordance with the prescription of pluralism, private law should provide individuals with “meaningful choices.” Indeed, private law theory should “celebrate [a] multiplicity of contract types and property institutions rather than suppress … or marginalize them.” In accordance with concerns of relational justice, private law needs provisions for “interpersonal accommodation” to help ensure that individuals “respect each other’s right to self-determination and thus to substantive equality.”
Dagan argues that private law already substantially reflects principles of pluralism and accommodation. He notes that “[d]iverse family, work, home, and consumer contract types are at least as central to our shared contracting experience as are widget sales.” He indicates that laws and legal doctrines such as those on fair housing, public accommodations, and copyright fair use implement aspects of an accommodation principle.
Dagan contends that private law’s deviations from principles of pluralism and accommodation do not undermine his “autonomy-based theory of private law” but instead “highlight its significance as a source of internal critique that can help push private law to better conform to its normative purpose.” Dagan suggests ways in which private law can improve its performance by, for example, fostering new forms of employment and “job-sharing” arrangements—perhaps a new category of “dependent contractors” to fit the circumstances of drivers for Uber or Lyft. In a similar vein, property law should feature “a residual category of private arrangement[s] in addition to the state-sponsored property institutions.”
Finally, Dagan rejects a strict separation between public and private law. He argues that “redeeming the intrinsic value of private law requires … embrace [of] the same commitments—to individual self-determination and substantive equality—that inform a liberal public law.” In Dagan’s view, “private law need not shy from recruiting public law to provide it with a regulatory infrastructure … to better fulfill its horizontal tasks.” At the same time, private law “must be careful not to undermine the liberal state’s commitments to distributive justice, democratic citizenship, and aggregate welfare.”
Readers can decide for themselves whether Dagan succeeds in offering “a normatively attractive conception of private law” that surpasses alternative visions of private law. In the meantime, I can recommend taking a look at his thoughtful and thought-provoking paper.