Can the boundary-bursting categories of the commons penetrate the mighty citadel of Harvard Law School and its entrenched ways of thinking about property, markets and law? I set out to find out last Saturday at the “This Land Is Your Land: Remaking Property After Neoliberalism” conference. The one-day event was convened by Unbound, the Harvard Law journal of the legal left, and the Institute for Global Law and Policy. I had been invited to participate on a panel, “From Homo Economicus to Commoner” and to explore with about 100 students and a few professors how “the left” might approach property rights in some new ways.
The liberal/leftist luminary Duncan Kennedy, a founder of the critical legal studies movement and an advisor to Unbound, opened the day with a talk about “property as fetish and tool.” He explained how both the right and the left have their own versions of property fetishism. The right has adopted highly naturalistic arguments that regard property as an entirely natural, ahistorical reality. An example is the right’s imposition of intellectual property rights on countries of the global South.
The left, meanwhile, generally regards property law as a “bundle of rights” that is principled and conceptually coherent when it is in fact, he pointed out, simply an incoherent accretion of laws that reflect countless political struggles of the past. The problem with the left, Kennedy suggested, is that it does not have an alternative conception of property law except as a useful tool of left political projects, such as better housing and social conditions. Kennedy implied that it was futile for the left to try to get “outside” of property discourse.
Fortunately, Michael Hardt of Duke University – author of Empire and Commonwealth, among other books –objected. He argued that we need to develop a conception of property that lets us think outside of standard property discourse and property relationships. But is this possible and desireable? Conference participants disagreed, and came back to the topic many times throughout the day.