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.
1. Baron, Jane B, “The Contested Commitments of Property” (2010) 61 Hastings LJ 917 at 921.
2. Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism (Chicago, IL: University of Chicago Press, 1990) [Nedelsky, Private Property].
3. Alexander, Gregory et al, “A Statement of Progressive Property” (2009) 94 Cornell L Rev 743.
4. The statement was signed by Greg Alexander, Eduardo Peñalver, Joe Singer and Laura Underkuffer. The Progressive Property literature is largely US centred (although it does occasionally draw on some interesting comparative work, as well as the contributions of some Israeli scholars). The degree to which the ownership model is particularly American is worth reflecting upon, as may further comparisons to other jurisdictions. It should also be noted that this literature is broad and diverse, including a diverse array of scholars, some of whom may not identify with the statement. For one possible listing of its members, see Baron, Jane B “The Ex Pressive Transparency of Property” (2002) 102 Colum L Rev 208 [Baron, “Ex Pressive Transparency”].
5. Alexander et al, supra note 3 at 743.
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.
9. Singer, Joseph, Entitlement: The Paradoxes of Property (New Haven, CT: Yale University Press, 2000) at 2–3 [Singer, Entitlement].
10. Laura S Underkuffer similarly notes the dominance of what she terms the ‘absolute approach’ to property in US jurisprudence (which assumes that property is objectively defnable, is set apart from social context, and that it represents and protects the sphere of legitimate, absolute individual autonomy), which has tended to downplay an alternative understanding of property (the ‘comprehensive’ approach). See “On Property: An Essay” (1990) 100 Yale L J 127 [Underkuffer, “On Property”]. Gregory Alexander refers to the Blackstonian conception of property in “Property as Propriety” (1998) 77 Nebraska L Rev 667 [Alexander, “Property as Propriety”].
11. See generally, Singer, Joseph, “No Right to Exclude: Public and Private Accommodations and Private Property” (1996) 90 Nw U L Rev 1283 [Singer, “No Right to Exclude”].
12. Jacobs, Harvey, ed, Who Owns America? Social Conflict over Property Rights (Madison: University of Wisconsin Press, 1998).
13. Singer, Joseph, “Property and Social Relations: From Title to Entitlement” in Charles Geisler et al, eds, Property and Values: Alternatives to Public and Private Ownership (Washington, DC: Island Press, 2000) 3 at 27 [Singer, “Property and Social Relations”].
14. Ibid at 5.
15. Ibid at 5 [emphasis added].
17. Ibid at 9.
18. Underkuffer, “On Property”, supra note 10 at 133.
19. Singer, Joseph, “The Reliance Interest in Property” (1988) 40 Stan L Rev 611 [Singer, “Reliance Interest”].
20. Singer, “Property and Social Relations”, supra note 13 at 11-12 [emphasis added].
21. Ibid at 16.
22. Dan-Cohen, Meir, “The Value of Ownership”, online: (2002) 22 UC Berkeley Boalt Hall Research Paper http://escholarship.org/uc/item/98w8s61d.
23. Underkuffer, Laura S, “Property as Constitutional Myth: Utilities and Dangers” (2007) 92 Cornell L Rev 1239 at 1243.
24. Ibid at 1252.
25. Christman, John, The Myth of Property: Towards an Egalitarian Theory of Ownership (Oxford: Oxford University Press, 1994).
26. Maldonado, Daniel Bonilla, “Extralegal Property, Legal Monism, and Pluralism” (2009) 40 U Miami Inter-Am L Rev 213 at 214.
27. Rose, Carol, “Canons of Property Talk, or, Blackstone’s Anxiety” (1999) 108 Yale L J 601 at 632.
28. Singer, “Reliance Interest”, supra note 19 at 630 [emphasis in original]. See also Roberto Unger, Mangabeira, The Self Awakened: Pragmatism Unbound (Cambridge, MA: Harvard University Press, 2007).
29. Singer, “Reliance Interest”, supra note 19 at 621.
30. Ibid at 626, discusses how to make value choices, premised not on abstractions but on intuitions and ‘social facts’ and appeal to ‘shared experience.’
31. Underkuffer, Laura S, The Idea of Property: Its Meaning and Power (Oxford: Oxford University Press 2003) [Underkuffer, Idea of Property].
32. Alexander, Gregory, Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776-1970 (Chicago, IL: University of Chicago Press, 1997) [Alexander, Commodity and Property].
33. Ibid at 2.
34. Alexander, “Property as Propriety”, supra note 10 at 697; See Rose, Carol, Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Boulder, CO: Westview Press, 1994) [Rose, Property and Persuasion].
35. Radin, Margaret Jane, “Residential Rent Control” (1986) 15 Phil & Pub Affairs 350.
36. Sax, Joseph L, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (Ann Arbor: University of Michigan Press, 1999).
37. Gray, Kevin, “Equitable Property” (1994) 47 Current Legal Problems 157 at 207.
38. Blomley, Nicholas, “The Borrowed View: Privacy, Propriety and the Entanglements of Property” (2005) 30 Law and Social Inquiry 617.
39. Singer, Entitlement, supra note 9 at 9.
40. Ibid at 6.
41. Peñalver, Eduardo, “Land Virtues” (2009) 94 Cornell L Rev 822 at 829.
42. See, Alexander, Gregory, “Critical Land Law” in Bright, Susan & Dewar, John, eds, Land Law: Themes and Perspectives (Oxford: Oxford University Press, 1998). See also Alexander and Peñalver’s discussion of a theory of property that aims at realizing an Aristotelian conception of human flourishing: Alexander, Gregory S and Peñalver, Eduardo M, An Introduction to Property Theory (Cambridge: Cambridge University Press, 2012).
43. Singer, “Reliance Interest”, supra note 19 at 659.
44. Singer, Entitlement, supra note 9 at 83.
45. Nedelsky, Private Property, supra note 2 at 54.
46. Underkuffer, Idea of Property, supra note 31 at 162.
47. Singer, “No Right to Exclude”, supra note 11 at 1453.
48. Underkuffer, Idea of Property, supra note 31 at 163.
49. Carrier, James G, “Introduction” in Carrier, James G. & Miller, Daniel, eds, Virtualism: A New Political Economy (Oxford: Berg, 1998) 1 at 2.
50. Holm, Petter, “Which Way Is Up on Callon?” in MacKenzie, Donald et al, eds, Do Economists Make Markets? On the Performativity of Economics (Princeton, NJ: Princeton University Press, 2007) 225 at 231 [Holm, “Which Way”].
51. Steinberg, Theodore, Slide Mountain: Or, The Folly of Owning Nature (Berkeley: University of California Press, 1995) at 8 [Steinberg, Slide Mountain].
52. In my explorations of property in multiple empirical settings (gentrifcation, gardening, municipal property, indigenous lands, enclosure and so on) I have often drawn from progressive property scholarship and related writings, noting the mismatch between dominant conceptions of property, and empirical reality. Yet I have done so, increasingly, with a sense of dissatisfaction. While it is productive to reveal property’s diversity and complexity, for example, this does not appear to have dethroned the ownership model. How is it possible for dominant conceptions of property to endure, despite their manifest internal failures? Such questions have led me to probe for alternative understandings of the relationship between property and ‘reality’. In so doing, I will revisit some of my earlier writings—written before my engagement with performativity—as nascent, if unarticulated attempts at such a reworking. See Blomley, Nicholas, Unsettling the City: Urban Land and the Politics of Property (New York: Routledge, 2004) [Blomley, Unsettling the City].
53. Austin, JL, How to Do Things with Words (Oxford: Oxford University Press, 1965).
54. On social convention and performance, and the possibility of counter-performances, see Rose-Redwood, Rueben S, “‘Sixth Avenue is Now a Memory’: Regimes of Spatial Inscription and the Performative Limits of the Official City Text” (2008) 27 Political Geography 875.
55. Barnes, Trevor, “Making Space for the Economy: Live Performances, Dead Objects, and Economic Geography” (2008) 2 Geography Compass 1432 at 1436 [Barnes, “Making Space”]. The literature on performativity is extensive. For present purposes, I draw from economic so-ciology—for example, Callon, Michel, ed, The Laws of the Markets (Oxford: Blackwell, 1998) and Mackenzie, Donald et al, eds, Do Economists Make Markets: On the Performativity of Economics (Princeton, NJ: Princeton University Press, 2007)—as well as science studies, for example, Latour, Bruno, “Visualization and Cognition: Drawing Things Together” in Kuklik, H, ed, Knowledge and Society: Studies in the Sociology of Culture Past and Present (Greenwich, CN: Jai Press, 1986) 1 and Pickering, Andrew, The Mangle of Practice: Time, Agency and Science (Chicago, IL: University of Chicago Press, 1995) as well as some contemporary readings of American pragmatism; for example, Allen, John, “Pragmatism and Power, or the Power to Make a Difference in a Radically Contingent World” (2008) 39 Geoforum 1613; Barnes, Trevor “American Pragmatism: Towards a Geographical Introduction” (2008) 39 Geoforum 1542; Berk, Gerald & Galvan, Dennis, “How People Experience and Change Institutions: a Field Guide to Creative Syncretism” (2009) 38 Theor Soc 543; Blomley, Nicholas, “Learning from Larry: Inhabiting Legal Space” in Braverman, Irus, et al, eds, The Expanding Spaces of Law: A Timely Legal Geography (Stanford, CA: Stanford University Press) [forthcoming].
56. Barnes, “Making Space,” supra note 55 at 1437.
57. Bialasiewicz, Luiza et al, “Performing Security: The Imaginative Geographies of Current US Strategy” (2007) 26 Political Geography 405 at 407.
58. See Seed, Patricia, Ceremonies of Possession in Europe’s Conquest of the New World, 1492-1640 (Cambridge: Cambridge University Press, 1995).
59. See Smith, Susan et al, “Performing Housing Markets” (2006) 43 Urban Studies 81.
60. Rose, Property and Persuasion, supra note 34 at 296: “Persuasion, of course, is what makes property available to action.”
61. Demsetz, Harold, “Toward a Theory of Property Rights” (1967) 57 Am Econ Rev 347.
62. MacKenzie, Donald, “Is Economics Performative?” in MacKenzie, Donald et al, eds, Do Economists Make Markets? On the Performativity of Economics (Princeton, NJ: Princeton University Press, 2007) 54 [MacKenzie, “Is Economics Performative?”].
63. We might usefully think of the performative effect of other ‘models’ of property, such as the commons, or the metaphors of the bundle of sticks, or the castle.
64. Underkuffer, Idea of Property, supra note 31 at 162.
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). 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.
66. Mitchell, Timothy, Rule of Experts: Egypt, Techno-politics, and Modernity (Berkeley: University of California Press, 2002) [Mitchell, Rule of Experts].
67. As Laclau and Mouffe argue: “the fact that every object is constituted as an object of discourse has nothing to do with whether there is a world external to thought, or with the realism/idealism opposition. What is denied is not that objects exist externally to thought, but the rather different assertion that they could constitute themselves as objects outside of any discursive condition of emergence.” Ernesto Laclau & Mouffe, Chantal, Hegemony and Socialist Strategy (London: Verso, 1985) at 108; see Searle’s distinction between brute facts, that can exist without human institutions, and institutional facts, that cannot. Searle, John, “Social Ontology and Political Power” in Smith, Barry et al, eds, The Mystery of Capital and the Construction of Social Reality (Chicago, IL: Open Court, 2008) 19.
68. Bialasiewicz, supra note 57.
69. Butler, Judith, Bodies that Matter: On the Discursive Limits of “Sex” (New York: Routledge, 1993).
70. Ibid at 7.
71. Ibid at 9.
72. Ibid at 8.
73. Ibid at 2.
74. Allen, Jessie, “A Theory of Adjudication: Law as Magic” (2008) 41 Suffolk U L Rev 773 (Thanks to Joe Singer for bringing this reference to my attention); Bourdieu, Pierre, “The Force of Law: Toward a Sociology of the Juridicial Field” (1977) 38 Hastings L J 814.
75. Rose, Property and Persuasion, supra note 34.
76. Hacking, Ian, “Kinds of People: Moving Targets” (2007) 151 Proceedings of the British Academy 285.
77. Steinberg, Slide Mountain, supra note 51 at 10.
78. Ibid at 50.
79. Ibid at 49.
80. Ibid at 17.
81. Law, John, “Ordering and Obduracy” (2002) online: Centre for Science Studies, University of Lancaster. http://www.lancs.ac.uk/fass/sociology/papers/law-ordering-and-obduracy.pdf.
82. Blomley, Unsettling the City, supra note 52.
84. The preceding account draws from: Blomley, Nicholas, “Simplification is Complicated: Property, Nature, and the Rivers of Law” (2008) 40 Environment and Planning, A 1825.
85. Latour, Bruno, “The Berlin Key or How to Do Things Without Words” in Graves-Brown, PM, ed, Matter, Materiality and Modern Culture (London: Routledge, 2000) 10.
86. Blomley, Nicholas, “Cuts, Flows, and the Geographies of Property” (2011) 7 Law, Culture and the Humanities 203.
87. Haggerty, Kevin D & Ericson, Richard V, “The Surveillant Assemblage” (2000) 51 British J Sociology 605.
88. Callon, Michel, “What Does it Mean to Say that Economics is Performative?” in MacKenzie, Donald et al, eds, Do Economists Make Markets? On the Performativity of Economics (Princeton, NJ: Princeton University Press, 2007) 311 at 319.
89. Mitchell, Rule of Experts, supra note 66.
90. Poovey’s discussion of early double entry book-keeping reveals that ideas are not to be set apart from their articulation. The arrangement of text on the page, she argues, served a powerful rhetorical role in performing honesty and virtue. Poovey, Mary, A History of the Modern Fact (Chicago, IL: University of Chicago Press, 1998).
91. Garcia-Parpet, Marie-France, “The Social Construction of a Perfect Market: The Strawberry Auction at Fontaines-en-Sologne” in MacKenzie, Donald et al, eds, Do Economists Make Markets? On the Performativity of Economics (Princeton, NJ: Princeton University Press, 2007) 20.
92. MacKenzie, “Is Economics Performative?”, supra note 62.
93. Mitchell, Timothy, “The Properties of Markets” in MacKenzie, Donald et al, eds, Do Economists Make Markets? On the Performativity of Economics (Princeton, NJ: Princeton University Press, 2007) 244 [Mitchell, “The Properties of Markets”]; Holm, supra note 50; Barnes, Grenville et al, “Land Registration Modernization in Developing Economies: A Discussion of the Main Problems in Central/Eastern Europe, Latin America, and the Caribbean” (2000) 12 URISA Journal 27.
94. Barnes, “Making Space”, supra note 55 at 1435-36.
95. Given, Michael, “Maps, Fields, and Boundary Cairns: Demarcation and Resistance in Colonial Cyprus” (2002) 6 Int’l Journal of Historical Archaeology 1. See also Blomley, Nicholas, “Disentangling Property, Making Space’ in Glass, Michael & Rose-Redwood, Rueben, eds, Performativity, Politics, and the Production of Social Space (London: Routledge) [forthcoming, 2013].
96. Harley, JB, “Maps, Knowledge and Power” in Cosgrove, Denis & Daniels, Stephen, eds, The Iconography of Landscape: Essays on the Symbolic Representation, Design and Use of Past Environments (Cambridge: Cambridge University Press, 1988) 277 at 285.
97. It should be noted, however, that such enactments in some senses preceded ‘private property’, in the sense that the earliest use of the term and its definition in legal dictionaries or legal writings was the eighteenth century.
98. The preceding discussion is a reworking of: Blomley, Nicholas, “Making Private Property: Enclosure, Common Right and the Work of Hedges” (2007) 18 Rural History 1.
99. Explanations of how we negotiate the gap between property’s reality and dominant models include: Kevin Gray’s ‘mutual conspiracy’ of property talk in, “Property in a Queue” in Alexander, Gregory S & Peñalver, Eduardo M, eds, Property and Community (New York: Oxford University Press, 2009) 165; legal realism’s strategy of consigning the ownership model to the past, as outdated; and the view of the diversity of property as a reflection of our different moral commitments described in Alexander, Commodity and Property, supra note 32 and Rose, Property and Persuasion, supra note 34. Singer suggests that departures from the ownership model are marginalized in our consciousness as they do not ft the prevailing model. Singer, “Reliance Interest”, supra note 19 at 701.
100. Mitchell, Timothy, “The Work of Economics: How a Discipline Makes its World” (2005) 47 European Journal of Sociology 297; Mitchell, Timothy, “Rethinking Economy” (2008) 39 Geoforum 1116 [Mitchell, “Rethinking Economy”]; Mitchell “The Properties of Markets”, supra note 93 at 268-69.
101. Latour, Bruno, Science in Action (Cambridge, MA: Harvard University Press, 1987) at 251.
102. Mitchell, “Rethinking Economy”, supra note 100 at 1120.
103. RSBC 1996, c. 245.
104. Interview with author (22 January 2011).
105. Sean Robertson, Postdevelopment Properties in the Age of Exception: The Political and Affective Lives of the Traditional Environmental Knowledge of Plateau Peoples in British Columbia (PhD dissertation, Department of Geography, Simon Fraser University, 2011) [unpublished]. https://theses.lib.sfu.ca/sites/all/fles/public_copies/etd6455_srobertson_pdf_13451.pdf.
106. Macpherson, CB, ed, Property: Mainstream and Critical Positions (Toronto, ON: University of Toronto Press, 1978) at 2.
107. Ibid at 201.
108. Baron, “Ex Pressive Transparency”, supra note 4.
109. Singer, Entitlement, supra note 9 at 91.
110. Baron, “Ex Pressive Transparency”, supra note 4.
111. Ibid at 232.
112. Ibid at 233.
113. Unger, supra note 28.
114. Law, John & Urry, John, “Enacting the Social” (2004) 33 Economy and Society 390.
115. Ibid at 404.
117. Gibson-Graham, JK, “Diverse Economies: Performative Practices for ‘Other Worlds’” (2008) 32 Progress in Human Geography 613 at 615 [Gibson-Graham, “Diverse Economies”].
118. Law & Urry, supra note 114.
119. Thrift, Nigel, “Performance and ….” (2003) 35 Environment and Planning, A 2019.
120. Gibson-Graham, “Diverse Economies”, supra note 117 at 620.
121. Callon, supra note 88 at 332.
122. Unger, supra note 28. Overdevest, Christine, “Towards a More Pragmatic Sociology of Markets” (2011) 40 Theory and Society 533.
123. Blomley, Nicholas, “Enclosure, Common Right, and the Property of the Poor” (2008) 17 Soc & Leg Studies 311.
124. de, BoaventuraSantos, Sousa, “The World Social Forum: Toward a Counter-Hegemonic Globalisation” in Sen, Jai et al, eds, The World Social Forum: Challenging Empires (New Delhi: Viveka Foundation, 2004) 235 at 240.
125. Gibson-Graham, JK, The End of Capitalism (as We Knew it): A Feminist Critique of Political Economy (Cambridge, MA: Blackwell, 1996); Gibson-Graham, JK, “Surplus Possibilities: Postdevelopment and Community Economies” (2005) 26 Singapore Journal of Tropical Geography 4.
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