The Institution of Housing: Hanoch Dagan's Realist Theories of Property and Public Housing in Ireland

• Author: Christopher Nealon
• Position: BCL (International), National University of Ireland Galway. I wish to thank Dr Padraic Kenna for his assistance in the production of this article
• Pages: 15-25

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THE INSTITUTION OF HOUSING: HANOCH DAGAN’S REALIST THEORIES OF

PROPERTY AND PUBLIC HOUSING IN IRELAND

Christopher Nealon*

A INTRODUCTION

The work of Hanoch Dagan deals extensively with property law from a unique legal realist

perspective, offering an original view not seen in traditional property law theories. Based on

an appreciation for promoting human values and relationships, Dagan seeks to resolve actual

property law with what people expect property law to be.

This paper will critically analyse Dagan’s property law theories and, naturally, in examining

Dagan’s theories, examples and analogies will generally be drawn from Irish property law.

However, a more radical and interesting approach to the greater application of these theories

could be to attempt application of Dagan’s approach to a more challenging, though

peripheral, issue in property law. In this vein, the subject of tenure and rights in public

housing law under s 62 of the Housing Act 1966 is in need of reform.

To begin the analysis of Dagan, I will introduce 'American legal realism', or more simply

'legal realism': a significant albeit broad label for the intellectual tendencies of certain early to

mid-20th century US jurisprudential reformists.1 Dagan follows and defends legal realism

vigorously throughout his work. As Dagan presents his thoughts in a contextual fashion, in

keeping with his legal realist approach, I will attempt to present and analyse his theories in

the same way. Dagan states that an institution should be 'determined by its character, namely

by the unique balance of property values characterizing the institution at issue'.2 After

examining Dagan’s theories, I will explain the legal character of the institution described in s

62 of the Housing Act 1966, before addressing the theoretical relationship between public

housing law and property values and attempting to reconcile them, while discussing

appropriate social values in public law and the nature of a property right in the context of this

paper.

B LEGAL REALISM

First, legal realism has been described as 'not a philosophy, but a technology',3 necessitated

by a 'scepticism as to some of the conventional theories, a scepticism stimulated by zeal to

reform, in the interest of justice, some courthouse ways’.4 As 'legal formalism'- a judicial

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* BCL (International), National University of Ireland Galway. I wish to thank Dr Padraic Kenna for his

assistance i n the production of t his article.

1 Neil Duxbury, Patterns of America n Jurisprudence (Clarendon Press 1997) 69.

2 Hanoch Dagan, ‘Exclusion and Inclusion in Property’ in Property, St ate and C ommunity (Oxford University

Press 2011) 10.

3 William Twining, Karl Llewellyn and the Realist Movement (Cambridge University Press 2012) 575.

4 Jerome Frank, ‘Legal Thi nking in Three Dimensions’ (1949) 1 Syracus e Law Review 9, 10.