Revaluing Restitution: From the Talmud to Postsocialism (Reviewing Hanoch Dagan's Unjust Enrichment)

Michael Heller, Columbia Law School
Christopher Serkin


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. Hanoch Dagan's book "Unjust Enrichment: A Study of Private Law and Public Values" threatens to reverse the tide and make restitution interesting again. The book shows how we can examine commonplace words such as "value" and "gain" to extract the core social values embedded in the private law. The technicalities of unjust enrichment reveal compelling stories about property, personhood, and national ethos. In our review, we put Dagan's jurisprudential approach to the practical test of explaining restitution in postsocialist societies. We focus on Eastern Europe, where the Czechs put elderly people back in their childhood apartments, while the Hungarians offered compensation coupons for use in privatization auctions. Dagan's theory provides some order for the hodgepodge of national mythmaking, political accident, and cultural posturing that has surrounded the postsocialist restitution frenzy. His framework suggests some surprising insights, for example, that more aggressive restitution may prove less protective of private property rights. In turn, the Eastern European experience challenges Dagan's portrayal of the feel-good ethos of sharing by suggesting a more troubling take on the meaning of community.