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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.

The Coxford Lectures
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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2. Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism (Chicago, IL: University of Chicago Press, 1990)Google Scholar [Nedelsky, Private Property].

3. Alexander, Gregory et al, “A Statement of Progressive Property” (2009) 94 Cornell L Rev 743.Google Scholar

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 BThe Ex Pressive Transparency of Property” (2002) 102 Colum L Rev 208CrossRefGoogle Scholar [Baron, “Ex Pressive Transparency”].

5. Alexander et al, supra note 3 at 743.

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.

9. Singer, Joseph, Entitlement: The Paradoxes of Property (New Haven, CT: Yale University Press, 2000) at 23CrossRefGoogle Scholar [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”].

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14. Ibid at 5.

15. Ibid at 5 [emphasis added].

16. Ibid.

17. Ibid at 9.

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21. Ibid at 16.

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24. Ibid at 1252.

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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.’

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33. Ibid at 2.

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40. Ibid at 6.

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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.

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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)CrossRefGoogle Scholar [Blomley, Unsettling the City].

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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.Google Scholar

55. Barnes, Trevor, “Making Space for the Economy: Live Performances, Dead Objects, and Economic Geography” (2008) 2 Geography Compass 1432CrossRefGoogle Scholar 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)Google Scholar and Mackenzie, Donald et al, eds, Do Economists Make Markets: On the Performativity of Economics (Princeton, NJ: Princeton University Press, 2007)Google Scholar—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) 1Google Scholar and Pickering, Andrew, The Mangle of Practice: Time, Agency and Science (Chicago, IL: University of Chicago Press, 1995)CrossRefGoogle Scholar 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 1613CrossRefGoogle Scholar; Barnes, TrevorAmerican Pragmatism: Towards a Geographical Introduction” (2008) 39 Geoforum 1542CrossRefGoogle Scholar; Berk, Gerald & Galvan, Dennis, “How People Experience and Change Institutions: a Field Guide to Creative Syncretism” (2009) 38 Theor Soc 543CrossRefGoogle Scholar; 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)Google Scholar [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 405CrossRefGoogle Scholar at 407.

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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)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.

66. Mitchell, Timothy, Rule of Experts: Egypt, Techno-politics, and Modernity (Berkeley: University of California Press, 2002)Google Scholar [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 108Google Scholar; 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.Google Scholar

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69. Butler, Judith, Bodies that Matter: On the Discursive Limits of “Sex” (New York: Routledge, 1993).Google Scholar

70. Ibid at 7.

71. Ibid at 9.

72. Ibid at 8.

73. Ibid at 2.

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76. Hacking, Ian, “Kinds of People: Moving Targets” (2007) 151 Proceedings of the British Academy 285Google Scholar.

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80. Ibid at 17.

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83. Ibid.

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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).CrossRefGoogle Scholar

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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.Google Scholar

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) 165CrossRefGoogle Scholar; 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.

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101. Latour, Bruno, Science in Action (Cambridge, MA: Harvard University Press, 1987) at 251.Google Scholar

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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].

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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.

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116. Ibid.

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118. Law & Urry, supra note 114.

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