This paper is a comment on Hanoch Dagan’s claims in “Inside Property.” Despite Dagan’s desire to provide an “internal” account of property institutions that is sensitive to both pluralism and context, I argue that his denigration of doctrinal analysis robs him of important critical resources. Doctrine is part of the “inside” of law that can help us understand when legal institutions fail. In addition, by offering an alternative to Dagan’s ends-based reasoning, doctrinal analysis can provide us with a way of seeking agreement on public norms governing interaction when we have deep disagreements regarding ends. In other words, pluralists interested in critical contextual analysis of institutions have good reason to take doctrinal reasoning seriously. I illustrate my claims by using the Canadian example of Re Noble and Wolf, a Canadian case concerning discriminatory restrictive covenants.
Austin, Lisa M., Pluralism, Context and the Internal Life of Property: A Response to Hanoch Dagan (September 26, 2012). University of Toronto Law Journal, Forthcoming.