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Performing Property: Making The World

Published online by Cambridge University Press:  20 July 2015

Nicholas Blomley
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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.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 26 , Issue 1 , January 2013 , pp. 23 - 48
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Copyright © Canadian Journal of Law and Jurisprudence 2013 

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References

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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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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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.

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