Hanoch Dagan Delivers TLRG Public Lecture
On October 24, 2019, Professor Hanoch Dagan, the Stewart and Judy Colton Professor of Legal Theory and Innovation and the Director of the Edmond J. Safra Center for Ethics at Tel Aviv University, delivered the first Tort Law Research Group Public Lecture of the 2019/2020 academic year to an audience of students and faculty.
In his talk, “Private Law Beyond the Common Law,” Professor Dagan urged theorists of private law and regulatory law to shed their common misconception about the necessary connection between private law and the institution of common law adjudication. Regulatory bodies are not limited to determining the distribution of collective entitlements in accordance with principles of general policy and public welfare. Rather, like common law courts, they can and do dispense relational justice. Relational justice, on Professor Dagan’s analysis, obtains when interpersonal relations are in accordance with equal individual entitlements to self-determination.
Indeed, on Professor Dagan’s view, sometimes regulatory bodies can better serve the demands of relational justice than can common law courts. To illustrate this point, he offered a comparison of the tort of negligence and the Occupational Safety and Health Administration (OSHA), an American regulatory body tasked with ensuring the safe and healthful working conditions for workers. While it is not possible through the tort of negligence to enjoin a perceived risk before it culminates in damage, the OSHA regime enables workers to do just this when their employment conditions expose them to a “significant risk” to their lives and health. By offering ex ante protection, OSHA better maintains the entitlement to be free from wrongfully-caused injury and death than does the common law of torts.
Professor Dagan concluded his talk with complementary lessons for private law theory and regulatory theory. Private law theory, Dagan advised, needs to expand its “institutional imagination,” while regulatory theory must start “to think horizontally” and realize the hand that administrative bodies have in dispensing relational justice.
Professor Dagan is a former Dean of Tel Aviv University Faculty of Law and also served as the founding director of the Zvi Meitar Center for Advanced Legal Studies, the director of The Cegla Center for Interdisciplinary Research of the Law, and the Editor in Chief of Theoretical Inquiries in Law. Among his many publications are over 90 articles in major law reviews and journals, such as Yale Law Journal, Columbia Law Review, New York University Law Review and more. He has also written seven books, including Property: Values and Institutions (Oxford University Press, 2011), Reconstructing American Legal Realism & Rethinking Private Law Theory (Oxford University Press, 2013), and The Choice Theory of Contracts (with Michael A. Heller) (Cambridge University Press, 2017). He is currently working on a new book: A Liberal Theory of Property (Cambridge University Press, forthcoming 2020).
The TLRG’s Public Lectures for the 2019-2020 academic year are generously sponsored by Shillingtons LLP.