Property and Autonomy in the Marketplace: Freedom to Sell as Freedom of Exit

Abstract

In chapter 7 of A Liberal Theory of Property, Professor Dagan offers an account of justice in the design of markets that draws on his broader account of the core legal institutions that underpin the notion of a market: property and contract. Since both institutions are facilitative of the demands of autonomy as self-determination or ‘self-authorship’, we can evaluate the justice or injustice of any market norm on the basis of whether it facilitates autonomy in this sense. In this comment on the chapter, I focus on one dimension of Dagan’s account of autonomy as self-authorship—the view that it entails both the freedom to commit to a particular story of one’s life and the freedom to ‘discard one story and begin another’—and explore its connection to the core market freedom to sell, or refuse to sell, what one owns. I begin by considering why the freedom to exit past commitments is important to property law on Dagan’s account, outlining his critique of the alternative picture of exclusion as the chief concern of property and commitment as the chief concern of contract law. Next, I consider why, on Dagan’s account, sale—as distinct from gift or abandonment—must be a vital ‘exit option’ from a property governance regime in a liberal property system and how this understanding of sale inflects the precepts of relational justice that apply in the context of the marketplace. Finally, I draw on this account to show that Dagan’s theory provides an attractively nuanced framework for analysing particular doctrines of English law that constrain freedom of sale and for thinking, more broadly, about institutions like mortgages, trusts, and bankruptcy regimes.