Revaluing Restitution: From the Talmud to Postsocialism

Whatever happened to the study of restitution? Once a core private law subject along with property, torts, and contracts, restitution has receded from American legal scholarship. Few law professors teach the material, fewer still write in the area, and no one even agrees what the field comprises anymore. Hanoch Dagan's Unjust Enrichment: A Study of Private Law and Public Values threatens to reverse the tide and make restitution interesting again.

The book takes commonplace words such as "value" and "gain" and shows how they embody a society's underlying normative principles. Variations across cultures in the law of unjust enrichment reflect differences in national understandings of sharing, property, and even personhood. As Dagan puts it, he seeks "the reflection of core social values in the technicalities of the law". The law at issue can be briefly summarized (and its more tedious complexities elided).

Imagine, for example, someone chops trees from your land. Tort and contract law focus on remedying your loss. The law of unjust enrichment, however, is primarily concerned with restoring to you the trespasser's gain from using the lumber. Dagan's book reveals a complex inquiry hiding behind this simple distinction.

Measuring restitution by the defendant's gain is a prologue to the further analysis of how a society understands value. Within the American legal system, the tree-chopper's gain may be defined as the lumber's fair market value, or can be calculated in terms of the chopper's net profits, the full proceeds from sale, or by a range of increasingly abstract methods. Within a single legal system, these various measures may all be available, each linked to restitution of a particular type of resource, each animated by different normative concerns. Dagan argues that restitutionary choices within a culture track attitudes towards property and personhood; overarching patterns across cultures reflect divergent national ethoses.

Restitution is a window into a larger project of social understanding.