Reinterpreting Property.

• Author: Wells, Catharine Pierce

1. INTRODUCTION

   Professor Radin(1) bases Reinterpreting Property on her well-known and justly admired articles on property law and theory. It is a rich repository of original insight, lucid analysis, and sharp debate. None of the essays that it includes is entirely new.(2) What is new is a long and substantive introduction that analyzes her ten-year project on property law in terms of the insights and methodological commitments of philosophical pragmatism (pp. 1-34). This manner of developing a theory -- beginning with substantive positions and only later articulating the method that spawns them -- is a very pragmatic and remarkably useful way to proceed. Radin begins with the struggle to say something useful about standard issues in property law. As she pursues this project, she begins to reflect on the nature of the method and techniques she is using. These reflections are themselves very interesting and provocative -- both as they shed light on the nature of Radin's own contributions to property law and as an independent contribution to the more philosophical literature on legal method.

   I have tried in this review to avoid restatements and analysis of Radin's substantive positions in property theory. These have already been the subject of much spirited debate in the literature.(3) Instead, I have focused on the question of method and the specific contribution that Radin's pragmatism makes to ongoing questions about the role of law in achieving social transformation. To do this, I have organized my comments around three main topics: first, the nature of Radin's pragmatism; second, its connection to her feminism; and third, what she calls the problem of bad coherence.

2. PRAGMATISM

   1. Anticonceptualism

      One of the chief tenets of pragmatism is its rejection of conceptualism. Pragmatism originated in Peirce's formulation of the pragmatic maxim: "Consider what effects, that might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of these effects is the whole of our conception of the object."(4) This maxim commits pragmatism to a form of reductionism -- the meaning of abstract concepts is limited to the sum total of the empirical expectations they generate. It follows that one cannot increase the amount of our knowledge by logically dissecting the concepts we use. Conceptual methods(5) do not work because, according to the pragmatic maxim, a concept is not the kind of thing from which we can deduce a priori knowledge. To the contrary, the suggestion that an abstract concept entails certain empirical consequences is itself an empirical hypothesis that we must test through observation. Similarly, a pragmatic theory of law will not attempt formalistic deductions of legal rules from legal concepts.(6) It will instead treat legal concepts as potential explanations for particular doctrinal results and test them against the actual patterns of legal decisionmaking.(7)

      A good illustration of this difference in legal method is provided by the contrast between Radin's work in property theory and that of Richard Epstein, whose work Radin criticizes (pp. 98-119). The difficulty with Epstein's method, she argues, is that it is too conceptual:

      Epstein is a conceptualist because he thinks there is a concept of property that, in fact, is the right one or the only one. He thinks, that is, that there is a conception of property that is the concept of property. He is also a formalist ... because he thinks the concept of property can be applied ... logically ... to yield results that should be obvious to readers and legal decision-makers.(8)

      She disputes the idea that property has "an essential, prepolitical" meaning that is "sufficiently precise and detailed to determine legal rules and outcomes in practice" (p. 99).

      By contrast, Radin bases her own work upon a recognition that American property law derives from a number of distinct, intellectual traditions.(9) When Radin analyzes a concept of property, she takes it as she finds it -- not as an idealized concept that is unitary and unequivocal but as a concept that is replete with contradictions, inconsistencies, and real world imperfections. Thus, for Radin, theorizing about property is not simply a matter of deriving substantive rules from a single intellectual conception. Instead, property law must reconcile the conflicts generated by the diverse strands of property theory.

      For example, in an essay entitled "The Rhetoric of Alienation" (pp. 191-202), Radin describes the "double meaning" ascribed to the word "property." Property, she says, is both an object owned and an attribute possessed (pp. 191-92). "Object-property" is based on the concept of ownership and is identified with the material object that is owned. "Attribute-property," conversely, is based on the idea that certain characteristics constitute identity. An entitlement to live in the White House, for example, might be considered an attribute-property of the presidency. Thus, for Radin, property theory must begin with the recognition that there are two -- or more(10) -- distinct conceptions of property. Property can be understood, on the one hand, as fungible items in trade or commerce and, on the other hand, as something that constitutes the personhood of the owner. Both of these conceptions have influenced the common law of property and, indeed, the competing effects of these two concepts may well account for some of the conflicts in that tradition. Thus, Epstein's attempt to derive the substance of property law from a single concept of property is doomed to failure. Such attempts inevitably overlook the tensions that underlie existing law and impoverish our understanding of a legal tradition whose genius lies precisely in its ongoing efforts to reconcile competing conceptions.

   2. Pragmatic Method

      It is sometimes easier to describe what pragmatism rejects than to identify its affirmative claims. This is especially true when it comes to pragmatic method. Nevertheless, the introduction to Radin's book is suggestive. For Radin, pragmatism seems to entail two central methodological commitments. First, a theory should be useful for some particular purpose. Thus, writers must establish a dialectical relationship between theory and practice; it is not enough to formulate theory for an ideal world.(11) Second, every theory must be held tentatively and must be subject to ongoing revision in light of further experience.(12) I will begin by showing how Radin's work exhibits these commitments. I will then go on to consider more generally the pragmatic aspects of Radin's work.

      It is commonplace for pragmatists to insist upon a close connection between theory and practice.(13) This seems sensible. A theory that has no intersection with practical things has little to offer us. Furthermore, speculative theorizing is often unreliable. Theories that are too abstract encounter the risk of collapsing into a muddle of imprecise concepts, unmarked and unsupported assumptions, and mistaken reasoning. By contrast, a theorist who routinely compares abstract conceptions with practical experience can avoid these problems because this process entails continuous attention to the requirements of rigor and precision.

      Radin's commitment to the usefulness of theory is well illustrated by her attempt to relate her theoretical claims to the ongoing development of property doctrine. In law, the connection between theory and practice can be very difficult to maintain. The law is a seamless web with many layers and types of theory and many odd doctrinal problems. A good legal theorist is therefore required not only to scale an entire mountain range of abstractions but also to catalogue carefully the trees and boulders she encounters on the way. This is slow and patient work that requires a rare combination of lofty spirit and a passion for particularity. Indeed, Radin's work exhibits both these qualities. She is able to ascend the peaks of high theory with great skill and dexterity and, at the same time, to illuminate the rich terrain of common law decisionmaking.

      Another illustration of Radin's commitment to the usefulness of theory is her bifurcation of normative analysis into two questions: (1) What should happen in an ideal world?; and (2) What should happen in this less than ideal world? For example, Radin uses this distinction in her analysis of the takings problem:

      By ideal issues I mean issues about how we should decide the takings problem in a frictionless world of perfect good faith and perfect knowledge, including knowledge of justified theories of property and politics. In the ideal world of theory, those charged with carrying out law unfailingly do it correctly. By nonideal issues I mean issues concerning how we should decide the takings problem in our world of ignorance, including theoretical disagreement and uncertainty, mistakes, and bad faith. The problem of transition concerns how much deviance from our ideals we should mandate in practice in our present nonideal world to make the best progress toward our ideal world of theory. [p. 162]

      The distinction between ideal and nonideal theories is important to Radin because thinking about the ideal world enables her to develop a coherent set of values whereas thinking about the nonideal actual world prevents her from slipping into the problems of utopianism. But she does not overlook the fact that this approach is fraught with difficulties:

      It cannot be denied that this kind of strategic choice, like all of our political choices, involves a potential double bind. Attempting to transcend the deeply entrenched meaning of property might result in no progress, or in only illusory progress.... But provisionally accepting the entrenched meaning might further reinforce and entrench that meaning in our culture, and make future evolution even more difficult.(14)

      Nevertheless, her way of handling these questions is typically...