A common sense of property?

Abstract

‘Progressive’ accounts of property developed in recent legal scholarship have attempted to shift focus from rights to exclude, often regarded as the ‘core’ of the idea and institution, towards focus on a plurality of human values served by property law. Like Thomas Grey's famous thesis about the ‘disintegration of property’ this raises the question of what might be called ‘property perspectivism’: does property looks different from different points in the social fabric? What is involved in the claim to ‘know property’? To understand the diversity of property arguments within legal scholarship and across the human sciences it is important to trace the implicit knowledge claims that accompany the explicit normative arguments, paying specific attention to the ‘exemplars’ that underpin lines of argument, and the ‘sources of property knowledge’ that are drawn upon. This paper draws on and reworks W. B. Gallie's classic discussion of ‘essentially contested concepts’ in order to show that debates about property are as much about defining analytic starting-points as they are about reaching normative conclusions. After outlining major fault-lines in contemporary legal theorizing about property the analysis focuses in on the work of Gregory Alexander and his critics, and concludes by placing this within the even broader perspective provided by contrasting forms of property scholarship from outside of legal studies.

Keywords:

• Alexander
• common sense
• exemplar
• Gallie
• legal studies
• property
• rhetoric

Acknowledgements

My thanks to Tristan Nash and participants of the philosophy colloquium at University of Wales Trinity Saint David, Rob Lamb and participants in the political theory seminar at The University of Exeter, Chris Pierson and participants in the politics of property PSA seminar at Nottingham University, and two anonymous reviews at Distinktion, all of whom provided helpful critical comments on versions of this paper. Special thanks also to members of the Contested Property Claims research group at Aarhus University: Mikkel Thorup, Maja Hojer Bruun, and Bjarke Risager.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Patrick J. L. Cockburn studied philosophy and sociology at the University of Exeter and continental philosophy at the University of Dundee. In 2012 he received his PhD at the Department for Culture and Society at Aarhus University, Denmark, where he is now part of the interdisciplinary project on ‘Contested property claims’, funded by The Carlsberg Foundation and The Danish Council for Independent Research. His research focuses on the role of rhetoric in public struggles over economic legitimacy.

Notes

1. For a thorough overview of the theoretical discussions and examples of scholarship using the term see Collier, Hidalgo, and Andra (2006).

2. Gregory Alexander attributes the birth of this metaphor to Duncan Kennedy (1976).

3. For excellent discussions of the problems involved in this core/periphery imagery see van der Walt (2009).

4. On the idea of language games see Ludwig Wittgenstein (2001).

5. For an important discussion of the relation between social theory and social practice more generally, see Taylor (1985).

Additional information

Funding

This research has been funded by The Carlsberg Foundation (Grant number 2012-01-0596) and The Danish Council for Independent Research (Grant number DFF-1319-00077).