Some Pluralism About Pluralism: A Comment on Hanoch Dagan’s “Pluralism and Perfectionism in Private Law”

Jedediah Purdy*

Response to: Hanoch Dagan, Pluralism and Perfectionism in Private Law, 112 Colum. L. Rev. 1409 (2012).

Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of Oliver Wendell Holmes, Jr.¹ His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property.² Depending on where we stand on the property landscape at any time, we may be community-minded sharers, devoted romantics in marriage, or coolly rational market actors, and the local property law will smooth each of these paths for us. Property law is built on the design of the multifarious human heart, or, if you prefer, the many purposes we pursue in our projects and relationships. Each of these implies a way of regarding others—as arm’s length collaborators, joint venturers, or other halves whose purposes we have joined to ours; property’s default rules anticipate and confirm these various attitudes.³

Dagan, of course, would not accept Holmes’s ironic assertion that he has managed to “get as much ethics into the law” as he can. He would say that it was already there, and that he brought it out. Surely this is plausible. In his short Essay, Pluralism and Perfectionism in Private Law,⁴ and his much more detailed study, Property, Dagan builds his argument from the structure of various areas of property law, which are more or less individualistic, more or less based on the model of exclusion, and more or less tilted toward sharing.⁵

This should not be surprising. The scope of property law is enormous: It defines and allocates claims on scarce and valued resources, the many good things of the world that we need to live, act, and pursue our projects.⁶ Without some share of these, we would be naked, unsheltered, and virtually powerless. Everything we do, including simple survival, therefore involves us in the web of property claims, and all our relationships with others, from a spot transaction to a marriage, are housed within those claims. It is hardly imaginable that just one model of property rules could serve all kinds of projects and relationships. It seems almost inevitable that the law’s architecture would somewhat reflect the diverse ways that people live within it. Sometimes form follows function.

To say that Dagan’s thesis is not surprising is not at all to deny that it is interesting, original, and admirable. On the contrary, it is all of these. Dagan’s close attention to property’s institutions turns his pluralism into a valuable interpretive map of the field. The ethics he draws out of the law really is there, but it is not explicit on the surface, and Dagan’s project requires the interpretive work of both a serious property scholar and an able normative theorist. Pluralism, in the register of Isaiah Berlin, can be vague and evocative, like riding a glass-bottomed boat over the colorful shoals of human values.⁷ Dagan’s pluralism is evocative, but also specific—a taxonomy of what is and what we do with it. In fact, it is a mark of his success that his argument can seem unsurprising. He shows, in detail, the connection of property’s structures to who we are and what we do.⁸

So, can a pluralist be pluralist about pluralism? That is, when might a pluralist have good, pluralist reasons to act like a monist? In this piece, I suggest two quite distinct ways that a monist approach can usefully contribute to the work of a thoughtful pluralist like Dagan. I call this proposal, taken together, selective monism, the decision of a pluralist to think as a monist for certain purposes. One example is an interpretive instance of what Dagan calls structural monism—that is, it proceeds on the thesis that property law is organized according to a single principle.⁹ The other is an instance of reformist monism, the idea that property law should promote a single value, despite its actual, present pluralism.¹⁰

I. The Interpretive Selective Monist

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