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Performing Property: Making The World

Published online by Cambridge University Press:  20 July 2015

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Scholars under the ‘Progressive Property’ banner distinguish between dominant conceptions of property, and its underlying realities. The former, exemplified by Singer’s ‘ownership model’, is said to misdescribe extant forms of ownership and misrepresent our actual moral commitments in worrisome ways. Put simply, it is argued that our representations of property’s reality are incorrect, and that these incorrect representations lead us to make bad choices. Better understandings of the reality of property should lead to better representations, and thus improved outcomes.

However, the relationship between ‘reality’ and ‘representation’ is not made fully explicit. This essay seeks to supplement progressive property through a more careful exploration of the relationship between the two, by drawing from performativity theory. From this perspective, accounts of property are in an important sense not descriptions of an external reality, but help bring reality into being. The ownership model is not so much constative (descriptive) as performative. Such an account, I suggest, directs us to several important insights. Rather than asking what property is or is not, the task becomes that of trying to describe how property is performed (or not) into being. But concepts do not stand alone: rather, other ideas, people, things and other resources have to be enrolled in complicated (and often fragile) combinations. Rather than criticizing the ownership model for its mismatch with reality, we might consider that models do not have to be ‘true’, just successful. As such, it may be more useful for progressive scholars of property to redirect their energy into enquiring how it is that certain conceptions of property are successful, and others not. To do so also requires that we think about the role of scholars in performing property, for good or bad, into being.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2013 

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The comments of Akinbola Akinwumi, Gregory Alexander, Trevor Barnes, Jane Baron, Clare Huntington, Trenton Oldfield, Reuben Rose Redwood, Sean Robertson, Eduardo M Peñer, Joseph Singer and participants at the 2011 Association of Law, Property and Society conference at Georgetown Law School, the 2012 Progressive Property Conference at Harvard, and the 2012 International Conference on Law and Society in Honolulu are greatly appreciated. Research funding was made possible by support from the Canadian Social Science and Humanities Research Council.

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6. Ibid.

7. Ibid at 744.

8. I should note that some progressive property scholars—notably Greg Alexander—do not see their work as adopting this approach. However, I take my characterization as more generally paradigmatic of the field.

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65. A useful comparison of the differences between a constructionist and performative account through a property-based example can be found in the contending treatments of the extension of Individual Transferable Quotas (ITQs), an environmental ownership model, to the Norwegian fishery. For Agnar and Páalsson, the ITQ is a brutal misinterpretation that nevertheless seeks to remake reality according to its own narrow vision. Helgason Agnar & Gísli Páalsson, “Cash for Quotas: Disputes Over an Economic Model in Iceland” in James G Carrier & Miller, Daniel, Virtualism: A New Political Economy (New York: Berg, 1998)Google Scholar. Holm criticizes this view as reliant on a view of the ITQ as separate from reality. The problem with the ITQ, for Holm, is not that it is an abstraction that ‘constructs’ reality from on high, but that reality is itself partly (re)performed through the ITQ: “[This is a story] about actors that become what they are as their relationships with other actors stabilize.” Holm, “Which Way”, supra note 50 at 239.

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