GENTRIFICATION


Stanford Law Review
NOVEMBER 1995




Copyright (c) 1995 The Board of Trustees of Leland Stanford Junior University
Stanford Law Review

November, 1995

48 Stan. L. Rev. 217

LENGTH: 16006 words

REVIEW ESSAY: Facts and Values in Pragmatism and PersonhoodReinterpreting Property. By Margaret Jane Radin. Chicago: Chicago University Press. 1993. 265 pp. $ 29.95.

Richard Thompson Ford *



* Assistant Professor of Law, Stanford Law School. I would like to thank the following people for their comments, advice, and criticism: Peggy Radin, Barbara Fried, Tom Grey, Mark Kelman, Jayne Lee, Duncan Kennedy, Deborah Rhode, Bill Simon, and Catharine Wells. This project was supported by a generous summer grant from Stanford Law School. I would also like to thank Lisa Kern, John Owens, and Liza Weiman of the Stanford Law Review for their skillful editing and their patience with the creative process, and Kevin Heller for his help in researching and brainstorming for this review essay.
 

Professor of Law, Stanford Law School.

SUMMARY:
  ... In this review, Richard Ford analyzes Margaret Jane Radin's attempt to bridge this gap with her "personhood" conception of property and "pragmatic method." After using rent control as an example of personhood in practice, Ford then examines how a pragmatist's concept of "community" influences various participants in the legal system. ... A pragmatist such as Radin would likely bristle at an abstract discussion of pragmatism. ... The landlord's claim therefore does not enjoy the personhood justification that animates the protection of tenant property interests. ... Radin both posits personhood (and the community-based spin on personhood) as an ideal and defends personhood as reflected in existing rent control policies. ... In "Property and Personhood" I said that the personhood perspective is useful in both a descriptive and a prescriptive way: it can explain certain aspects of existing property institutions and practices, and it can help either to justify or critique those institutions and practices. ... One variant of pragmatism claims that meaning (settled understandings of both facts and values) is generated within an "interpretive community." ... The EFZ tactic represents a type of "informal justice," a legal practice quite distinct from that imagined by traditional jurisprudence. ...  

TEXT:
 [*217] 



Leaders of social movements confront a tension as they address social problems. They must decide when and if high-minded ideals must yield to practical plans. In this review, Richard Ford analyzes Margaret Jane Radin's attempt to bridge this gap with her "personhood" conception of property and "pragmatic method." After using rent control as an example of personhood in practice, Ford then examines how a pragmatist's concept of "community" influences various participants in the legal system. Ford concludes that Radin's work largely succeeds in combining tactical considerations and ideal ends to effect social change.
 




I. Introduction
 


Suppose you wish to promote the stability and preservation of low-income neighborhoods. A number of difficult questions might confront you. One set of questions involves your normative commitments, or ideals. Why do you want to promote the stability of low-income neighborhoods? Perhaps stability is an end in and of itself. But if you value stability to empower the disadvantaged, you must consider that integration into an economically diverse neighborhood might be more empowering, or that you might achieve true empowerment only through maximum liberty in an unconstrained market.

Other questions involve tactics. How might you best accomplish your goal? By promoting tenant ownership through equity sharing arrangements? Or by advocating the construction of federal public housing? You can resolve these tactical questions only once you have decided on a goal. If you decide,  [*218]  for example, that you value empowerment more than stability, your tactical considerations may change. Yet at the same time, your goals may change depending on the outcome of your tactical deliberations. If the housing market in your area is so volatile that no conceivable effort will stabilize the low-income neighborhoods, you may push for some concessions in exchange for the inevitable relocation of the current residents.

The dialectical relationship between goals and tactics raises problems for progressive legal analysis. Because values and tactics are interrelated, one must balance the two to be effective. One must remain flexible in the face of constraints, and be willing to lower expectations to achieve moderate success. At the same time, one must not lose sight of ideals and settle for piecemeal reforms of little value.

The tension between values and tactics is especially pronounced in legal scholarship, which walks a tightrope between the intellectual purity of ideals and practice-oriented expediency. Some charge that academics propose "pie in the sky" reform proposals; that they engage in unproductive "navel gazing"; or that they merely "spin their wheels." At the same time, academics voice the frustration that progressives in legal practice or policy positions ignore academic discourse, and that the reforms that practitioners and policymakers propose are either counterproductive or timid and ineffective.

This goals/tactics tension functions within an ideological cohort n1 and within the academy as a whole. Scholars often misexpress this tension as one between "theory" and "practice" or between "radicalism" and "reformism." But even among academics who acknowledge the value of "fancy theory" and reject the distinction between "theory" and "practice" or the "academy" and "the real world," there is disagreement about whether theory should emphasize practical tactics or provide broad transformative ideals. Even scholars who roughly agree on the ends of theory disagree about how best to arrive at those ends.

The work of Margaret Jane Radin attempts to bridge the gap between aspiration and implementation. Like many legal scholars, Radin's work encompasses two competing motivations. Her engagement with philosophy and feminism reflects the desire to explore and articulate societal norms. On the other hand, her study of legal doctrine, particularly the law of property, reveals her desire to search for effective mechanisms to implement social change. Radin's effort to bridge this gap is remarkably successful, in large part because of her thorough engagement with both the lofty world of philosophical ideals and the gritty details of legal doctrine. This essay will explore her work with an eye to both some of her specific resolutions (particularly the concept of property as "personhood") and her general methodological framework (her philosophically derived "pragmatic method").

Radin's work is also characterized by a split between liberalism and progressivism or radicalism. Radin is a liberal because she strives to make political institutions more responsive to the views of individuals. Indeed, her ideal of personhood attempts to articulate a particular version of a liberal ideal. But  [*219]  Radin is also a progressive; she has some specific ideas about how society must change to become more just. Her personhood attempts to mediate the tension between liberalism and progressivism: Personhood is a liberal ideal because it values self-actualization and does not impose many restraints on what that might consist of, leaving the question of content to individuals. But by using the concept in actual fact patterns, Radin makes it clear that personhood excludes certain individual choices.

That the articulation of inspiring and affective ideals and their engagement in workable and effective practices are never isolated completely from each other complicates the tension between them. Articulated ideals should guide the inevitable choices between potentially workable and effective practices, while the experience of engaging in and observing the results of various practical efforts will refine vaguely articulated ideals. Radin's effort to mediate this tension often proceeds by effacing the distinction between tactics and ideals; this thinking is a subset of American philosophical pragmatism's rejection of the distinction between "facts" and "values."

It is difficult to avoid the distinction between tactical considerations and ideal ends. When one blurs the distinction between aspirations (values) and immediately practical options (facts), one often errs on one side or the other. The more practical, less visionary sort will tend to conflate what is right with what is plausible: The best of all possible worlds fades into the best we can do here and now. The more cerebral, less detail-oriented type will insist that the most implausible proposal requires only a sufficient commitment of will and energy or consciousness raising. As Radin recognizes, "pragmatism "walks a knife edge.' " n2

In Part II of this essay I will discuss Radin's pragmatic method and her personhood theory of property in the context of her treatment of residential tenancy and the policy of rent control. In Part III I will argue that Radin's concept of property as personhood attempts to blur the fact/value distinction. She contends that personhood is both a fact (it is immanent in our legal culture because present legal rules do in fact reflect a concern for personhood) and a value (it is something that we should aspire to achieve through law, ideally we ought to change the law to promote a respect for personhood).

In Part IV I will argue that pragmatism's characteristic blurring of facts and values often proceeds through the rhetorical device of the community. To the extent that pragmatists have an epistemological theory, they often appeal to an abstract community that finds it "useful" to accept certain things as settled, thereby substituting a notion of solidarity for one of objectivity. The community's beliefs are what a pragmatist calls a "fact." Since norms and values also come from community solidarity, the argument goes, it appears that it is ultimately impossible to distinguish facts from values.

Radin mediates the split between facts and values in a somewhat different way from such a solidarist pragmatist. Radin's pragmatism has an ambiguous relationship to this (anti-) epistemological theory. Like the solidarist pragmatist,  [*220]  Radin rejects the objectivity of facts. Instead, she conceives of both facts and values as culturally derived; she argues that cultural commitments provide the pragmatist with her critical visions and reconstructive ideals. Therefore, Radin may seem to embrace a strong constructivist theory of meaning: Neither values nor facts are objective, and therefore only a community consensus can define them.

Yet much of Radin's work also suggests that she believes that values are not completely subjective. Radin implicitly rejects the subjectivity of value in her critique of utilitarianism and law and economics. The utilitarian insists that since all values are normatively equivalent, the only defensible social system is one that maximizes the aggregation of individual pleasure, regardless of what individuals find pleasurable. Radin rejects this position, and insists that some values are not worthy of respect. Personhood is Radin's attempt to displace the utilitarian/economic insistence on value neutral efficiency in favor of an ideal that encompasses many disparate visions of pleasure and human flourishing, but excludes some. Hence Radin insists on the quasi-objectivity of both facts and values.

It is not clear whether Radin embraces a solidarist theory of meaning based on community consensus, or whether she wishes to establish some other basis for the quasi-objectivity of values. If Radin rejects the solidarist theory of meaning, she must envision a significant role for individual agency in the creation or apprehension of meaning. Although Radin does not address this issue, she consistently describes legal reasoning as a project undertaken by an individual: "the pragmatist." Part V thus examines pragmatism from four distinct perspectives, exploring its implications for active and interested individuals in distinct institutional roles and with distinct identities.

In conclusion, I describe the ambivalence toward pragmatism and personhood that motivated this review. I share Radin's desire to provide a universal ideal that goes beyond empty utilitarianism. But I fear that personhood and the pragmatic method tend to downplay the existence of conflict and the need for active struggle. I believe that a more explicit commitment to a more detailed set of ideals would both help readers better appreciate Radin's work and better equip us to deal with unavoidable conflict.



II. Pragmatism in Practice
 


A pragmatist such as Radin would likely bristle at an abstract discussion of pragmatism. Nevertheless, some of this essay will proceed at a fairly high level of abstraction, because it is only at such a level that one can bring the tensions inherent in pragmatism to light. For now, however, I will briefly outline Radin's personhood theory of property and then present a concrete example of Radin's approach to legal analysis: her discussion of rent control. We will return to this example periodically to anchor the more abstract parts of the discussion.  [*221] 



A. Personhood
 


Radin's personhood theory of property draws most heavily from the philosophy of W. F. Hegel's Philosophy of Right, n3 but also borrows from other philosophical traditions as varied as the Kantian model of rational individuality n4 and the Lockian labor theory of value. n5 From Hegel, Radin borrows the idea that connection to physical objects is a necessary part of human self-realization, and that this connection gives rise to property rights. n6 Radin blends the Hegelian conception of property with an intuitive conception of property that distin

guishes personal property from fungible property:


 
Most people possess certain objects they feel are almost part of themselves. These objects are closely bound up with personhood because they are part of the way we constitute ourselves as continuing personal entities in the world.... The opposite of holding an object that has become a part of oneself is holding an object that is perfectly replaceable with other goods of equal market value. One holds such an object for purely instrumental reasons. n7
 


Radin's personhood justification favors personal property over merely fungible property:


 
A general justification of property entitlements in terms of their relationship to personhood could hold that the rights that come within the general justification form a continuum from fungible to personal. It then might hold that those rights near one end of the continuum - fungible property rights - can be overridden in some cases in which those near the other - personal property rights - cannot be. n8
 
The personality theory of property is Radin's major intervention into property jurisprudence.

Before we consider an example of pragmatism and personhood in practice, we should note the relationship of personhood to pragmatism. At first glance, personhood appears to function as an ideal that precedes the pragmatic method of inquiry: Radin decides that the law of property should advance personhood as a goal, and then employs the pragmatic method to understand the law as it presently operates and to develop tactics for promoting personhood. Yet it is possible that personhood is a product of the pragmatic method. Perhaps Radin begins without any prior normative commitment to personhood and derives personhood from the intuitions that she and others have about how property law works. Radin would reject either of these descriptions. Instead she would insist that personhood represents a thorough blending of normative ideals and intuitions that she has derived from observation. In short, personhood blends values and facts.  [*222] 

In this way Radin also mediates the tension between liberalism and radicalism. Personhood is vague enough to satisfy the liberal desire to promote individual autonomy: Radin clearly intends for personhood to encompass disparate life projects and images of the "good." But personhood is also radical (or at least oppositional), in that it directly challenges a liberal ideology that insists on the normative equivalence of values, often expressing them in depersonalized, economic terms. Personhood encompasses many but not all values, thus articulating a flexible but significant ideal of social transformation.



B. Rent Control
 


Radin devotes a chapter to residential rent control, using personhood to justify the policy. To frame the discussion, let us return to the introductory example: a gentrifying community with many low and moderate income renters. Rising real estate values will tempt property owners to raise rents and evict those tenants who cannot afford the rent increases, or simply convert their property to more profitable uses. Rent control can prevent such evictions.

Radin begins her defense of rent control by arguing that the policy will be inefficient only under particular market conditions: when the nonregulated housing market is at an optimal equilibrium. If the housing market is characterized by spiraling values and landlords stand to make economic rents (amounts over the costs of providing housing when costs include the opportunity costs of foregoing other investments), rent control may simply transfer some of the economic rent from landlords to tenants. n9 As long as only economic rents are transferred, and landlords' income equals or exceeds their economic costs, landlords will not exit the housing market. n10

But the efficiency of rent control is not Radin's main concern. Instead Radin argues that rent control is best justified as a means of privileging interests in property bound up with personhood over interests in purely fungible property. n11 Perhaps such an understanding animates the pro-rent control forces. Rather than a simple subsidy for tenants as a class, rent control protects tenants  [*223]  from the fate of displacement or shelter impoverishment n12 that they would suffer in a market where rents rise faster than wages.

A personhood rationale also explains why a jurisdiction might favor tenant property interests over landlord interests in seeking economic rents: A landlord does not need economic rents to keep her real property (to which she may also have a personal connection): The economic rent is purely fungible. The landlord's claim therefore does not enjoy the personhood justification that animates the protection of tenant property interests. Finally, if one assumes that many landlords are absentee or own property primarily for investment purposes, their interest in the rental property presents an even less compelling claim in the face of the tenants' personhood interests. n13 Again, actual rent control schemes reflect this logic by exempting landlords who occupy a unit in a small complex.

Radin also points out that an understanding of community maps neatly onto her concept of property as personhood. n14 The significance of any individual piece of property is a function of its position in a social context, and this implies a community. How, for example, does a tenant have a personhood interest in her apartment? - why is she personally invested in remaining in her unit? Most likely because she wishes to stay in her neighborhood, among friends and neighbors, familiar landmarks, social networks, institutions, and gathering places. Perhaps our tenant is personally invested in the architecture and craftsmanship of the four walls of her dwelling, but such an interest is rarely as strong as the connection to a neighborhood community. n15

Many rent control systems are designed not only to prevent tenant displacement, but to slow the wholesale transformation of neighborhoods by real estate speculation and gentrification. n16 Rent control as an anti-gentrification and anti-speculation mechanism requires a broader rationale than individual personhood. It implies that an existing community should be able to preserve its character, that with a critical mass of affordable housing come the businesses, social networks, and institutions that serve lower, working, and middle class people. n17  [*224] 

Rent control and zoning policies also directly implicate a conceptually distinct but practically related type of community: the political community. A political community, such as a local jurisdiction, holds certain police powers, both as an arm of a larger political unit, and as a semi-autonomous political community. The theoretical justifications of decentralized government assume a political community that determines and promotes its parochial concerns, at times, against the will of a larger, more inclusive, but potentially tyrannical majority. Thus the tension between the protection of a plurality of lifestyles against the leveling tendencies of mass democracy and mass markets, and the democratic and egalitarian desires for openness, inclusiveness, and revisability is a paradigmatic dilemma for the local governments that promulgate and enforce zoning laws and housing market regulations.

Proceduralism does not answer this dilemma because inevitably controversial decisions about community structure the democratic process. State law governing local incorporation, annexation, and secession; the scope of local home rule initiative and immunity; the doctrine of state and federal preemption; and local political decisions all determine the scope and shape of local political communities. Once in place, these rules will favor the interests of some communities over others. As I have argued elsewhere, a casual acceptance of local jurisdictional boundaries and powers as presently constituted often will virtually guarantee a result. For example, the combination of an exclusionary zoning ordinance and a residency requirement for voting will petrify the character of a jurisdiction by excluding from the political process those most likely to contest the exclusionary policy. n18 Such a manufactured consensus which silences outsiders by the very policies that they would challenge raises the specter of a procedural "bad coherence" in which formal procedural consistency effaces substantive equality and social justice. n19

III. The Essence of Pragmatism
 


The rent control discussion exemplifies Radin's method in practice. Notice the thorough effacing of the distinction between normative commitments and the observation of facts: the blurring of the "ought" and the "is." Radin both posits personhood (and the community-based spin on personhood) as an ideal and defends personhood as reflected in existing rent control policies. In one  [*225]  sense, this mirrors the split between form or procedure and substance. Pragmatism seeks to derive substance from procedure even as it claims that substantive ideals guide the direction of formal procedures. This parallel will prove especially enlightening as we explore the characteristic positions of Radin's pragmatism in more detail: her rejection of legal formalism, conceptualism, and essentialism. Her pragmatic rejection of legal formalism is a subset of the pragmatist's rejection of the fact/value distinction.

Radin's method has two dominant features: one is its anti-foundationalist, deconstructive character and the other is its reference to the normative commitments of the prevailing legal culture. The title of her book, Reinterpreting Property, signifies the character of her project: to take what resonates, what inspires, what works, about the institution of property and build a better institution from that basis. n20 Radin could not have called the book Deconstructing Property for instance. The exploration of the tense relationship between the "is" and the "ought" characterizes Radin's work.

A. The Fact/Value Distinction
 


A characteristic feature of pragmatism is the blurring of the distinction between facts and values. Two subsets of the fact/value split will dominate our discussion: the distinction between tactics and goals, and the distinction between empirical observation and normative aspiration. Radin describes the rejection of the fact/value distinction early on in Reinterpreting Property:


 
In "Property and Personhood" I said that the personhood perspective is useful in both a descriptive and a prescriptive way: it can explain certain aspects of existing property institutions and practices, and it can help either to justify or critique those institutions and practices. I now recognize it as a characteristic pragmatist move to elide explanation and justification in this way....

... Our circumstances include, blurred together, both the problems we need tools to solve and our visions and desires for a better future. Observations about the world we face "out there" help to construct our values, and our values help to construct our observations about the world. n21
 
The elision of the fact/value distinction also blurs the distinction between tactics (which are driven by our evaluation of the facts) and ideals (which are based on our values). The same philosophical tendency to blur a description of the world as it is and as it should be also leads Radin to blur sincere normative arguments, which we make regardless of their tactical value, with tactical arguments, which we make to accomplish specific goals.  [*226] 

Radin's discussion of property discourse is illuminating. Radin seeks to free social relations from the rhetoric of property, rather than expand property discourse to encompass more liberating forms of possession and social relations. n22 To some extent, this project is tactically driven. Radin makes the tactical element explicit in her critique of Charles Reich's "new property," which attempted to extend the preferred status of property to governmental licenses and largess: "This strategy ultimately largely backfired. The Supreme Court came to hold that "new property' rights did not have the same scope of rights ... that presumptively came with traditional property ... ." n23 In other words, because "new property" did not fit the classical paradigm, it could attain only second class property rights. Radin also criticizes Bruce Ackerman's suggestion that the interest in engaging in homosexual sodomy is a property right: "Ackerman will not succeed in altering the general contemporary language so that we conceive of such personal rights as property rights.... [And even if he did succeed] the strategy would ultimately backfire.... (just as "new property' rights did.)" n24

Radin rejects the expansion of property rhetoric for tactical reasons. She points out that "new property" rhetoric has failed to afford significant legal protection to the interests it defines. Yet she also argues that the creeping rhetoric of property rights, if successful, might lead to "universal commodification," a condition in which every human attribute will be described and ultimately experienced as a fungible commodity. n25 With this last concern, Radin suggests that the tactical concern is secondary or even superfluous to her objections to Reich's and Ackerman's proposals: Her primary concern may be to avoid an expansion of commodification, an ideology she believes is detrimental to human flourishing. n26

B. Rejection of Legal Formalism
 


Another one of legal pragmatism's central characteristics is its rejection of legal formalism. n27 This position hardly distinguishes pragmatism. Indeed as Radin points out, "for several decades, scholars in many disciplines have been busy persuading us that we completely misunderstand the nature of words and the world when we think that there are rigid, clear concepts applicable to particular  [*227]  circumstances in a self-evident logical manner." n28 Hence, most of Radin's work focuses on other issues. Nevertheless, Radin rejects formalism: pragmatism would be incoherent if one believed that legal rules had plain meanings and could mechanically be applied.

Radin's rejection of formalism relates to the larger pragmatic critique of foundationalism and conceptualism. Radin rejects the idea that outcomes in specific cases result from the formal application of rules derived from foundational legal concepts, such as property. Radin's critique of Richard Epstein exemplifies her critique of formalism and the related critiques of foundationalism and conceptualism:


 
Throughout Epstein's work two central kinds of claims recur .... The first kind of claim affirms a conceptualist, formalist methodology. Epstein maintains that property has an essential, prepolitical meaning, and that that meaning is sufficiently precise and detailed to determine legal rules and outcomes in practice....

....

... Epstein's conceptualism not only supposes a determinateness the concept of property cannot have, it denies that the concept has evolved over time .... [But] not only is property vague and evolving; it is also essentially contested. n29
 


For Radin, as for many pragmatists, the critique of conceptualism follows from an understanding of legal rules as intimately related to, in fact determined by, cultural norms and social constructions of truth. Against the view that property has a fixed meaning, determined by natural law or by fundamental commitments such as a commitment to personal liberty, Radin believes that property results from cultural understandings that are inherently in flux:


 
[Epstein] must suppose, then, that we are monolithically socialized into one culture of property. But this I find astonishing; not only because it is patently not the case, but also because it is quite contrary to the ideology of liberalism to suppose that it should be so. As liberals, we pride ourselves on being pluralist about these things .... n30
 


Here Radin makes a number of paradigmatically pragmatic moves. She rejects the conceptualism (and implicit essentialism) of Epstein's theory of property, insisting that property both evolves over time and is internally contested at any given moment. But she also appeals to cultural solidarity and to social "usefulness" in making her claim. She argues that property cannot be monolithic and timeless not only because it in fact evolves and is contested, but also because liberals find it useful to conceive of it as so. Here Radin neatly fuses facts with values. She believes that property is fluid and contested both because of empirical observation of existing legal institutions, and because liberal ideology requires that we assume that it is so.  [*228] 



C. The Problem of Bad Coherence
 


Having rejected any prepolitical or foundational notion of property, Radin then addresses the concern that her method allows only for criticism and not for progress, and that she therefore lacks the conceptual tools necessary to determine if property is "working" under a given legal regime: "If there can be no overarching transcendent theory of what the world should ideally look like, how can we judge any state of affairs as better than any other?" n31 Radin calls this the problem of "bad coherence": "If a pragmatist defines truth or goodness by means of coherence, then how can the pragmatist recognize a system that is coherent but bad, such as institutionally coherent and pervasive racism or sexism?" n32

Radin answers by insisting that pragmatism must include a theory of the ideal that challenges pragmatists to continually envision social change:


 
Pragmatism can indeed be conservative if mere pervasive institutional instantiation of a conception is enough to conclude that it is the best. But pragmatists who rely on institutional coherence this way are incomplete pragmatists. They are throwing out the other half of the pragmatist spirit - the importance of our critical visions and imaginative recreations of our world....

The only way the consistent pragmatist is disabled from appropriate critique of existing institutions is if the alternative, better understanding is simply not currently thinkable .... n33
 


Radin's view of "what works" is something like this: We can know what works by referring to our cultural aspirations and commitments, which are informed by, but relatively autonomous of, legal practice. The law is not simply its contemporary manifestation, as the positivist would have it, nor is it preordained by God, Nature, or some transcendent principle. Rather, it is an evolving conversation between our present legal rules (and the principles that underlie them) and our cultural aspirations, which we employ to critique the existing legal rules and principles when they are flawed or inadequate.

According to this description of legal analysis, law and culture are intertwined, and reference to cultural commitments that inform the interpretation of a statute or the common law can resolve legal disputes. n34 If we accept that "law" and "culture" are merely rhetorical (as opposed to essential) categories, we can understand Radin to mean simply that the critique of legal rules and institutions, indeed any social criticism at all, is immanent. Inconsistencies within social institutions allow critique to proceed by elevating one part of culture (legal or otherwise) to critique another, inconsistent part of the same culture.  [*229] 

D. Pragmatism, Proceduralism, and Ideology
 


Given the pragmatic account of legal reasoning, a critique of legal rules and institutional practices as they presently exist can proceed in one of two ways. The first critique may proceed through coherence, an attempt to resolve conflicts from within the system. In this case there is no guarantee that those conflicts will be resolved for the "better" as opposed to "the worse," indeed no way to determine what is "better" and what is "worse." n35 Alternatively, critique may proceed by distinguishing competing ideals by reference to what we colloquially refer to as ideological commitments.

This bad coherence/ideology pair is a subset of the fact/value dilemma identified at the beginning of the piece. The problem of bad coherence arises if the pragmatist privileges facts or tactics over values. If we agree with Radin that the pragmatist can reject "bad" ideals or norms, even if they are dominant or fit into a coherent "system," then there must be some basis on which the pragmatist chooses one norm over another that is separate from the search for coherent or tactically effective arguments. I do not claim to understand how one comes to this independent basis of decisionmaking - it could be from the lesson of an examined life experience, the inevitable march of history, indoctrination during law school, or the benevolent hand of God - I only assert that one must have such an independent basis if one is to avoid "bad coherence."

Returning to the rent control example, we see that Radin's method involves two steps in which she attempts to mediate and blur the distinction between facts and values. Radin's defense of rent control on personhood grounds seeks both to articulate a rationale that exists within rent control schemes and property law in general, and to use that rationale to justify and refine the law of rent control. If, as a matter of fact, the law of property embodies a concern for personhood, then rent control is justified, as a normative matter, because it protects those property interests most often held personally.

But as Radin asserts in her critique of Richard Epstein, there are many competing norms that animate property doctrine. Why choose personhood, a vaguely articulated part of property doctrine, as opposed to the more obvious values of free exchange, mobility, progress, growth, and individual choice embodied in the neo-conservative notion of property as absolute ownership and a medium for unrestricted market exchange? The answer cannot be, on pain of circularity, that laissez-faire exchange harms personhood.

It appears that Radin can choose personhood over these more obvious conceptions of property because she has an independent project, as a progressive  [*230]  and a feminist, that animates her chosen ideal of personhood. n36 I consider this assertion to be a compliment and not a criticism. It is only a criticism if one believes that sound legal thinking requires ideologically neutral analysis. I do not think such analysis is possible, much less necessary. n37

IV. The Uses of Community
 


Richard Rorty describes pragmatism as the reduction of objectivity to solidarity. n38 By this he means that when the pragmatist speaks of objective facts, she refers not to the intrinsic or essential nature of things, but to an agreement within a particular, situated group of people - a community - about what to agree on and put outside the realm of debate. Thus pragmatists "do not require either a metaphysics or an epistemology ...." n39 This description might apply equally to legal pragmatism: The "object" about which there might be truth is the Law and the pragmatist denies that we can say anything more than that there are certain things on which it makes sense for us to agree.

This section explores the contours of the "we" that agrees on those requirements, the community that apprehends (or better, constructs or imagines) the law. This is a delicate project: A pragmatist will likely object that one cannot define the community of which one is a part; an attempt to do so smuggles a foundationalist objectivity in through the back door. In this case, the reified object becomes the legal community as opposed to the Law or the Truth, but one still wishes to determine the Truth of the community and in so doing determine the truth of the law. I do not propose to present a definition of the legal community, but I will describe what rhetorical work this notion of community does.

One variant of pragmatism claims that meaning (settled understandings of both facts and values) is generated within an "interpretive community." n40 Although Radin never explicitly refers to an interpretive community, this seems  [*231]  to be what she means by a legal "culture" from which values emanate. n41 By definition, members of an interpretive community communicate by appealing to shared understandings and norms. Thus, when Radin refers to "our" ideals and commitments, she implicitly refers to a community of legal practitioners (defined broadly to include judges, legislators and lawyers, law professors, and, in a democratic sense, the citizenry at large).

This Rortyian strand of pragmatism so dominates contemporary discourse that it is often conflated with pragmatism itself. Thus some commentators have read Radin as embracing this solidarist understanding/rejection of epistemology. n42 Although many specific passages suggest that Radin embraces such a view, I will argue that she does not.

Pragmatists often seek to establish the quasi-objectivity of both facts and values through an appeal to community solidarity. The solidarist pragmatist deprives facts of some of their objectivity by arguing that facts are only what a community agrees to believe, and provides values with some degree of objectivity by insisting that they are more than purely subjective individual preferences, thereby blurring the distinction between facts and values. Because Radin also blurs facts and values, and because she too wishes to establish the quasi-objectivity of both, one can understand her as embracing such a solidarist position. n43

Radin's critique of utilitarianism, law and economics, and the rhetoric of the free market implicitly rejects the view that values are nothing more than subjective preferences of normative equivalence. Utilitarianism begins from the premise that human values are irreducibly subjective, and thus all human preferences are normatively equivalent. Hence the law's only legitimate purpose is to maximize the aggregate pleasure of individuals, regardless of what individuals find pleasurable. From this position, neoclassical economic theory argues that the only justifiable sociopolitical system is one that maximizes the opportunity to pursue and attain subjectively determined pleasurable goods. n44

Radin rejects this position in favor of a theory of the quasi-objectivity of values. n45 Personhood is an ideal that assumes that some values are universally superior to others. To return again to our rent control example, Radin disregards the preferences of the "compleat capitalist" n46 whose identity is caught up  [*232]  with the relentless accumulation of property. Such a connection to property is antithetical to personhood. Personhood blurs the distinction between facts and values not only by rejecting the formalist and conceptualist beliefs that one can resolve specific disputes by formal adherence to objective concepts (the unified property rights as a fact of nature), but also by rejecting the position that we cannot legitimately distinguish between preferences at all.

The use of "community" as a trope n47 for an interpretive process relies on the existence of physical communities. But even these physical communities are also rhetorical and imaginative constructs - one only invokes the notion of a community when its existence or its boundaries are in dispute. Although it may seem that a physically embodied community is subject to empirical examination in a way that a purely conceptual "interpretive community" is not, both types of community should be judged, following Benedict Anderson, "not by their truth or falsity, but by the style in which they are imagined." n48 "Community" denotes an exclusive and demarcated group, joined by some characteristic of normative significance. The notion of community justifies the exclusion, the closure, n49 the boundaries that a particular set of norms entails.

To return to our rent control example, recall that a communitarian rationale for rent control justified privileging the personhood/property interests of existing tenants over the personal interests in freedom of mobility of potential newcomers. The existence of a physical community is critical to this justification. But a conception of the boundaries of that community is also critical. We must imagine the community to include most, if not all, of the tenants who will benefit from rent control. But we must therefore exclude most of the potential newcomers, some of whom may live nearby and have legitimate ties to the community that they wish to strengthen by moving into apartments that would become available in an uncontrolled market. n50

Similarly, an appeal to the norms of an interpretive community would legitimate Radin's appeal to community solidarity. She argues that respect for community solidarity and preservation is a norm that emanates from our existing legal and political culture. But, of course, diametrically opposed norms also exist: the norms of freedom of mobility and freedom of contractual exchange among equals. Without an ideological commitment that drives the preference for community stability over change and mobility, one must assume that the  [*233]  legal culture (which might be conceived of as a community) favors communitarian stability over freedom of movement and of contract; that the fact of "community opinion" coincides with the values that one favors.

The metaphor of community, therefore, can justify the collapse of facts and values. But just as the recourse to a local political process cannot justify an outcome without an independent explanation for the locality's jurisdictional boundaries, so too the consultation of a legal community cannot justify or guide decisionmaking without an independent justification for the (imagined) boundaries of that jurisdiction.

This critique would apply to Radin's work only if she embraced the solidarist strand of pragmatism. Like the solidarist, Radin proceeds by rejecting the view that facts reflect objective phenomena while values are irreducibly subjective. But instead of rejecting the objective fact/subjective value distinction only to covertly privilege one pole (both facts and values are subjective, and therefore can be defined or ascertained only through community solidarity, consensus or convention) Radin insists that facts are partially (and only partially) subjectively determined, while values are potentially quasi-objective. Radin never clearly articulates how she conceives of this quasi-objectivity. Indeed she may feel such an articulation would be hopelessly abstract in any case and therefore prefers to rely on our intuitions on the matter. But she does make clear that she does not base the quasi-objectivity on convention or consensus. n51

V. Subjectivity and Solidarity: The Subject of the Law
 


Although Radin understands values to "emanate" from a specific cultural context, she does not imagine that consensus or convention determines them. Instead, Radin recognizes that conflict characterizes any cultural field, and she envisions an active subject who chooses between competing cultural values. Once again, Radin mediates between facts and values, locating the source of ideals both in commitments that exist in her culture and in the value laden decisionmaking of a human subject. n52 Rather than describe the pragmatic method as an object, Radin consistently describes it as an action taken by "the pragmatist." She thereby emphasizes human agency as well as analytic or social structure. Of course, this is not to say that Radin embraces the notion of a totally autonomous, monadic self. Instead, she attempts to mediate between the isolated and intentionalist subject imagined by utilitarians, and the strong social constructivist's subject whose socio-cultural context completely determines her consciousness.  [*234] 

Hence another way to explore Radin's pragmatism and her personhood theory of property is to examine pragmatism as a method undertaken by a legal subject faced with a particular task. Such a subject will produce "knowledge" (legal opinions, scholarly analysis, litigation tactics) as a part of the process of performing a particular task. But the knowledge thereby produced need not be totally "subjective." The legal subject may have at her disposal a method of inquiry that helps her to produce knowledge that is generally accepted as legitimate, and thus distinguished from "opinion" or fantasy. Radin's pragmatic method is an example of such a method. A pragmatist such as Radin will resolve conflicts by appealing to values or ideals that she believes to be more than purely subjective. As we have seen, one attempt to establish the quasi-objectivity of values is to point to their broad acceptance by the relevant community. The existence of multiple institutional and social roles that define human sujectivity suggests that meaning may be produced within multiple communities, each of which may resolve disputes in different ways. Indeed one may attribute the existence of conflict to multiple "interpretive communities."

J.M. Balkin suggests that jurisprudence should properly focus not on the object "law" or "legal practice," but rather on the legal subject, the situated, motivated individual or group who engages in legal analysis. n53 As Balkin points out:
 
There are many different types of [legal] "participants": laypeople and .... litigators, judges, bureaucrats, academics, and so on. Thus, there can be more than one "internal perspective" because there are many different social groups who regard legal rules as norms for conduct. If these different groups disagree about their perceptions of legal coherence, their disagreements must be resolved in some fashion. n54
 


Balkin proposes five distinct purposes for understanding law: (1) coherence; n55 (2) realism or the prediction of outcomes; n56 (3) advocacy; n57 (4) critique; n58 (5) a consequentialist focus on practical effects. n59 There are of course many others. These various participants, with their differing purposes for legal analysis, problematize the notion of a single legal interpretive community that imparts meaning. Different groups with different purposes for legal understanding  [*235]  form different interpretive communities, splintering legal practice and multiplying legal meaning. n60

A focus on subjectivity mediates between a purely subjective or solipsistic theory of meaning and a solidaristic theory of meaning. Like the solidarist theory of meaning, it acknowledges the importance of social context and culture in influencing the production of knowledge. But it also questions the attempt to legitimate facts and values by referring to community consenus or "common culture." Behind every assertion of community lurks a situated, motivated subject that asserts, imagines, and defines the "community." The characteristics of the community that the subject imagines will inevitably be somewhat idiosyncratic, and those characteristics will affect the knowledge produced by any method that relies on consenus or solidarity.



A. The Subject of the Judge
 


A few examples may sharpen this idea. First let us consider the judge deciding a case. The judge views the law from the particular institutional perspective of a person "responsible for deciding this case, rather than a party or an observer or an advocate." n61 The judge begins with (at least) two vague intuitions: a moral or ideological intuition about the just outcome of the case and an intuition about the state of the law. n62 The process of adjudication allows the judge to explore the interaction between his moral predispositions and his gut sense about the state of the law. n63 But it also requires him to test any conclusion against a host of imagined responses, as Duncan Kennedy points out in an article in which he assumes the role of a judge to explore the process of adjudication.
 
[In a labor-management dispute involving the limits of picketing tactics,] assume that everyone has the same initial impression that the law favors the employer. If I decide for the employer, people who know that this decision goes against my personal views may grant my decision some increased legitimacy ....

....

... [while] my legitimating power is depleted or augmented only when I try to do something out of the ordinary ....

....

If my automatic legitimating power falls short of fully normalizing the [out of the ordinary] outcome, I will lose legitimating power for the next case - my stock will be depleted - unless I devise an opinion (cast as a legal argument) that makes up the deficit .... In order to make up the deficit I have to write an  [*236]  opinion that will convince the good faith observer struggling to understand what the law is that in fact my result was not out of the ordinary at all. n64
 


One could describe these responses involving something like "the interpretive community of legal knowledge," but what is misleading about this description is that it fails to capture the imaginary character of the community responding to the judge's proposed decision. Terms such as "everyone," "people who know ...," and "good faith observer" are imaginative constructions generated by the legal subject engaged in adjudication. Kennedy's judge does not consult people to test his conclusions; n65 instead he imagines what others will say about his decision. He wants them to praise it as "principled," not to trash it as "incoherent," "ends driven," or worst of all, "political." These voices form the imagined community that will influence his interpretation of the law. n66

Notice first that the judge does imagine a community. The interpretive community cannot remain a cipher for the judge; he actually imagines a group of people whose opinions are personally or institutionally important to him as a judge. Second, notice that the type of community the judge imagined is to some extent idiosyncratic: It depends on his self image as a judge and the surrounding context. Judge Radin may have cultivated a reputation as a liberal but "sensible" reformer, and she may care about maintaining that reputation. Judge Kennedy may have developed a reputation as a principled but "activist" judge, and may not mind being perceived as "pushing the envelope" every once in a while. Judge Dworkin may have developed a reputation as a deeply principled, remarkably rigorous judge with the highest regard for the rule of law. The diversity of roles is potentially quite vast and exists in relation to the imagined community that will inform their decisionmaking. Judge Radin may fear being perceived as either "conservative" or "radical and unprincipled" and try to tread a middle ground, while Judge Kennedy may fear the labels "out of control," "losing his nerve," or "selling out because he wants that Appeals Court appointment." If he really does want the Appeals Court appointment, he may expand the relevant community to include the present administration and the Senate Judiciary Committee.

Whatever trope is employed to describe the interpretive process (cultural software, interpretive community, or common culture), the legal analyst must assume some demarcated group shares assumptions, interpretive strategies, ideals, and morals. Whatever assumptions one makes about the composition of  [*237]  that group (and they must be made, either implicitly or explicitly) will profoundly influence the outcome of the decision at hand. n67

This is not to say that no shared intuitions, ideals, and interpretive strategies exist. But we cannot hypothesize the existence of shared values from the accumulation of decades of legal decisions, and we cannot assume that legal decisionmaking accurately reflects shared values and beliefs. Rather, the perception of shared values, accurate or inaccurate, generates a decision. And that perception is itself subject to examination. As Kennedy's judge-centered phenomenology demonstrates, the subject makes a guess about the law that includes what she thinks others think the law is. Despite the various heroic attempts to impose logical closure on the interpretive process (employing metaphors of spatiality n68 and material embodiment such as epistemologically constraining "institutions" or "interpretive communities"), no such closure is logically necessary. Closure occurs, as Kennedy asserts, because eventually "time will run out, and [the judge will] just have to decide." n69

B. The Subject of the Radical Lawyer.
 


The understanding of legal practice as a settled practice rests on a controversial notion of community: the "we" that holds commitments to ideals such as personhood. The imagined content of the interpretive community will entail excluding certain arguments and positions and privileging others. While those subscribing to traditional jurisprudence understand legal practice to involve arguments for a particular outcome within a particular case or controversy, others understand it quite differently as a mechanism for initiating broad-based social change or a challenge to the type of legal practice that traditional jurisprudence takes as given.

In the discussion of rent control, we assumed a settled notion of the legal practice as the backdrop against which we could evaluate efforts to preserve community through rent control. The assertion that the boundaries of the political community of a local jurisdiction will determine political outcomes and judicial decisions required us to examine the community definition as a part of legal analysis, but the understanding of legal decisionmaking process and the proper role of litigants and the judiciary remains unexamined.  [*238] 

Now consider a revised notion of legal practice occurring in the context previously defined in the rent control example: a gentrifying housing market. This alternative practice suggests a revised way of understanding legal practice in general. If accepted, it may broaden our understanding of what it means to practice law by introducing a mode of practice that employs different means and seeks different ends than those traditionally imagined. This revised legal practice does not seek to play the game more effectively. It changes the rules.

Imagine that rent control does not exist and is politically unpopular in our gentrifying community. Traditional analysis would suggest that tenants face a dire situation. They can band together and attempt to purchase their buildings (but poor tenants are unlikely to raise enough capital to purchase a building in a gentrifying market), or they can pack up and wait for the eviction notice. Without rent control, the tenants have few legal options. One option they may have is the legal tactic of the Eviction Free Zone (EFZ). Its author describes the tactic as follows:


 


An Eviction Free Zone begins with the public declaration by a community group or legal services provider of an all-out effort to resist evictions within a particular neighborhood. The neighborhood chosen is one in which the early seeds of gentrification have begun to take root .... The essence of the EFZ strategy ... is vigorous legal defense against evictions.

....

The goal of activists implementing an EFZ is to use ... legal tools to resist as many evictions as possible and therefore create ... the perception that many tenants will resist evictions, and will be costly to remove. It is important to note that in enforcing an EFZ, legal services attorneys do not apply classical legal analysis.... Rather than [litigating] ... only those cases where the defense is likely to succeed, the strategy is to mount a legal defense in all cases with a colorable claim .... The goal is to force landlords to back down ... or, at least, make each eviction as costly as possible. n70
 


The EFZ tactic represents a type of "informal justice," n71 a legal practice quite distinct from that imagined by traditional jurisprudence. n72 Informal justice uses legal argument as a strictly tactical device, with no regard for the formal purposes underlying the law. n73 When employing the EFZ tactic, housing lawyers do not care about the relative merits of individual cases. Instead, they use individual cases within a larger strategy to stall gentrification. Their ultimate goal is to transfer a portion of the economic surplus generated in the housing market from landlords to tenants, while traditional jurisprudence generally  [*239]  assumes an individual client with a unique legal claim represented by an attorney who seeks to advance that claim as effectively as possible by representing it as an example of an established set of legal entitlements. By contrast, informal justice views legal rules as "a set of ramshackle and heterogeneous resources" n74 which an attorney deploys in what ever manner will best advance the ends that he or she seeks.

The radical lawyer's relationship to legal arguments mirrors her relationship to legal rules. She takes the legal system and the legal culture as given and attempts to manipulate the outcome of cases to further her ideologically based goals. Such a lawyer would use personhood only if it were the most effective means to keep tenants in their apartments and block neighborhood gentrification.



C. The Subject of the Scholar
 


Now imagine a law professor writing articles on jurisprudence. Such a legal actor may have very different goals from those of a judge. She may wish to influence judges in their decisionmaking, providing criticism of existing law and adjudicatory practice and proposing more promising alternatives. She may wish simply to describe the adjudicatory process as a social institution and to contribute to academic debates in jurisprudence, sociology, cultural studies, or philosophy. She may seek to influence advocates, proposing new strategies for effective representation of low income tenants or embattled landlords. Each of these purposes will produce different forms of legal analysis, and each will often be inadequate for another purpose. Yet commentary that assumes that legal analysis is the process of apprehending "the Law" tends to conflate these very different types of analysis. Commentary that assumes a sharp split between theory and practice also tends to reify the two and conflate the various types of theory-based-practice or practices-of-theory.

For example, in an exchange between Radin and Stephen Schnably, Schnably remarks that Radin's method unjustifiably assumes social consensus on norms and values. Where Radin sees consensus, Schnably sees social conflict:


 
I will argue that there is never any true consensus to follow. If we examine any particular area of "consensus" closely, we will find deep disputes as well.... Moreover, even if we could identify some specific areas of consensus, it would be impossible merely to follow the guidelines of that consensus. Each time we purport merely to follow a given consensual norm, we help constitute personhood in a way that reinforces that norm. Consequently, because the process of drawing on consensus simultaneously fosters and creates consensus, it is circular to try to draw on a given "consensus" to guide the resolution of legal issues. n75
 


From the foregrounding of consensus, Schnably argues, the submerging of social conflict follows: "Radin does not portray people seeking, individually or  [*240]  collectively, to transform their lives or society. Rather than focusing on transformative efforts as the key to social change, Radin concentrates almost exclusively on the promulgation and implementation of legal rules to respect personhood." n76

But to Radin, the promulgation of legal rules to respect personhood exemplifies such an effort at social transformation. The confusion lies in Schnably's assertion that Radin's method seeks social consensus. As Radin makes clear in her book, consensus is not central to her method. Instead, Radin may conceive of personhood as analogous to a wedge: There is just enough agreement that personhood is beneficial that people will likely accept arguments derived from it. Once they do, Radin hopes that they will logically resolve the conflicts that divide them according to what she sees as the consequences of an embrace of personhood: for example, an acceptance of the market inalienability of certain types of "personal property." The difficulty is that the malleability of personhood that makes it a useful "wedge" also makes it vulnerable to misuse and misinterpretation.

The ambiguity of the scholar's role only adds to the potential for confusion: Legal scholars engage in a curious blend of advocacy, policy and doctrinal analysis, and social criticism. Unlike lawyers and judges, it is not clear which of these projects are primary and which are subordinate. Thus Schnably reasonably imagines that Radin appeals to consensus in developing personhood. One might say that Schnably analogizes Radin's subject-position to that of a judge who must legitimate her assertions within an ideology of popular sovereignty and the rule of law, or an advocate who tactically deploys whatever argument will advance a single isolated goal or covert transformative agenda, rather than a normative social critic advancing a sincerely held value. Radin seeks to occupy all of these positions: Personhood is part normative commitment, part tactical argument, and part legitimating rhetoric.



D. Standpoint Epistemology
 


"Standpoint epistemology" represents a final example of the use of community in legal interpretation. Mari Matsuda best articulates the stakes of the "standpoint epistemology" project, at least as far as they concern legal analysis:


 
Those who have experienced discrimination speak with a special voice to which we should listen.... Adopting the perspective of those who have seen and felt the falsity of the liberal promise ... can assist critical scholars in the task of fathoming the phenomenology of law and defining the elements of justice. n77
 
Standpoint epistemology seeks to do more than simply interject a new voice into the interpretive conversation. It also wishes for that new voice to challenge the context in which legal criticism occurs. The use of the term "epistemology" suggests anti-pragmatism. Against the epistemological search for  [*241]  better ways of knowing, the pragmatist asks only what categories and assumptions are useful for us to believe. n78 Thus, the project of standpoint epistemology would suggest that a better way of knowing, a way of knowing that will produce something closer to the "Truth," is to assume the standpoint of the oppressed or marginalized subject.

On the other hand, "epistemology" might refer in a less strict sense to a sort of pragmatic epistemology. Rather than describing a search for "Truth," this epistemology might describe the pragmatist's project of testing our normative commitments against each other and against our institutional arrangements. In this respect, standpoint epistemology insists that we acknowledge the existence of multiple interpretive communities and incorporate those perspectives that lie outside the conceptual boundaries of conventional legal discourse. It insists that the unique and excluded cultural and experiential perspective of subaltern peoples become a central part of the process of critique and transformation.

A solidarist theory of meaning would have difficulty reconciling itself with the claims of standpoint epistemology, because to do so it would have to abandon the belief in the quasi-objectivity of fact or values and concede that both facts and values are wholly subjective. The "subject" would be the given interpretive community, rather than a discrete individual, yet the implication for normative legal and political theory would be the same: There is no socially legitimate basis for favoring one group's subjective preferences over those of any other group. The articulation of normative principles would emerge as nothing more than the exercise of the raw power of stronger groups over weaker ones. n79

Such a view has disquieting implications for progressives: by definition subordinated groups have relatively little power. If both knowledge and desire, like both facts and values, are wholly subjective and therefore determined by raw power, then anti-subordination is a hopelessly utopian goal.

I imagine that Radin rejects this position as unpragmatic. How can it be useful, she would ask, to believe that your struggle is doomed from the start? Many contemporary social critics have addressed the seemingly insurmountable problem of entrenched hierarchy with theories of the fractured or multifarious nature of power, implying that although hegemony exists, it is never as stable or entrenched as it may seem. n80 Some of these approaches are promising, but none has convincingly addressed this vexing implication of the collapse of knowledge and power. Still, one gains nothing by simply denying the  [*242]  existence of the problem, and no convincing objectivist or quasi-objectivist theory of meaning exists that is not plagued by difficulties similar to those that plague the solidarist variant.

VI. Conclusion: Tactics and Strategies in Personhood and Pragmatism
 


Radin's personhood approach uses two tactics. First, she humanizes the concept of property by highlighting its personhood elements at the expense of its purely market-based elements. Second, she limits the corrosive nature of property rhetoric by quarantining it: Only personhood property should get the presumptive legal protection associated with the property right, while fungible property receives less protection and is weighed against other values.

Clearly Radin's use of the term "personhood" marks the space of a significant tension. Personhood seeks to be both the most universal of meta-norms and the most particular of situational ethics. Everyone favors personhood, and everyone derives a different meaning from it. Personhood may be objectionable to those who believe that difference must be foregrounded and emphasized if it is not to be ignored and devalued. But it is important to recognize the significance of the tension "personhood" denotes. Ultimately, Radin's decision to keep "personhood," while jettisoning norms of "objectivity," "consensus," and the trope of "health" to describe property relations, n81 must reflect some judgment as to its potential rhetorical force; a judgment that her thoroughgoing familiarity with and critique of the rhetoric of the marketplace informs. n82 As David Harvey suggests:

Money ... possesses universal properties as a measure of value and medium of exchange at the same time as it permits a wide range of highly decentralized and particularistic decision-making in the realm of market behaviours which feed back to define what the universality of money is all about. It is precisely this dialectic which gives strength to right-wing claims concerning individual freedoms and just deserts though market co-ordinations.... The task of progressive politics is to find an equally powerful, dynamic and persuasive way of relating the universal and particular in the drive to define social justice from the standpoint of the oppressed. n83
 


Radin uses personhood to articulate such a dialectic. The parallel to the market is especially striking. Personhood can become a type of normative currency which one might use to describe claims against or upon the political system that are legitimate because of their ability to be recognized as universal and humanist, as well as particular and identity-based. n84 Thus Radin argues for  [*243]  rent control independent of its economic consequences, on a principle that applies to everyone, rich and poor, tenants and landlords. Here Radin's pragmatism yields a tactical insight: The most effective way to advance the cause of anti-subordination may be to describe the particular situation of an insular group so that a broad cross section of society can empathize.

This tactical approach explains the difference between Radin and more explicitly identitarian theorists. Just as Radin fears the perverse effects of "universal commodification," many feminists and race theorists fear that a humanist rhetoric like Radin's personhood will submerge interests that are particular to specific, nondominant groups. Radin's personhood treads a middle ground between accepting the universality of the market as paradigmatic and rejecting any universalistic rhetoric in favor of explicit particularism.

Like most tactics, the usefulness of both Radin's universalizing and the particularizing tactic will depend on the context. For example, particularizing tactics may well backfire in the areas of hate speech n85 and cultural defenses. n86 For example courts have severely restricted the legal definition of the protected classes, requiring evidence that defendants seeking culturally or gender specific defenses prove their membership in a group that becomes defined by its deviance or marginality. Yet one cannot express all relevant concerns of, for example, gender or race, in a universal language of "difference" or "personhood." There are unique forms of subordination such as sexual violence, the legacy of slavery, enforced segregation, and wartime internment, which must be described in their particularities.

This review reflects my ambivalent relationship to pragmatism and personhood. For the most part, I embrace Radin's analysis. Like Radin, I believe that facts are not objective and that values are not subjective, I struggle between tactics and goals, and I conceive of liberal individualism and freedom of choice as an integral part of a radical project dedicated to human liberation, but I also recognize that some individual preferences are antithetical to that project.

Still, I have several reservations that are implicit in my discussion of Radin's work. One concern is that personhood is too vague to usefully guide action. I do not long for an algorithmic principle that can fix and determine the proper course of action in all situations. But a more detailed set of ideological commitments would more effectively guide action in many cases. For example, an ideal of "community solidarity" or a principle favoring an egalitarian  [*244]  distribution of resources would more surely guide the disputes surrounding rent control than the ambiguous commitment to respect personhood. While one might read personhood to embrace both community solidarity and redistribution, the two may clash. A clear commitment to one over the other would help resolve the conflict, while personhood would not. Instead of resolving or mediating conflict, the rhetoric of personhood may mask conflict that we should confront directly. Despite this objection, I also see the value in Radin's approach. I find it difficult to choose between such concerns and often wish to reserve judgment until confronted with an actual fact pattern. n87 Personhood allows for such judgments to be context specific while not completely ad hoc.

A second reservation involves Radin's tendency to emphasize the "immanence" of critique; I would tend to emphasize its location in human agency and ideological commitment that cannot ultimately be reduced either to a rational process or to a solidaristic construction. This is a matter of emphasis rather than a substantive disagreement, but as I have shown, scholars can (and have) misinterpreted Radin's work because of her emphasis.

My third concern follows from the first two: The ideal of personhood and the pragmatic method downplays the existence of conflict and the need for active struggle. It may be preferable to mediate conflict and search for common ground, but often this option is simply unavailable. Radin recognizes this, but she seems to imagine that instances of unavoidable conflict occur less frequently than I imagine them to be.

These are relatively minor gripes - too minor, it may seem, to emphasize. But because so many of the insights of pragmatism, critical theory, and post-structuralist n88 thought overlap, the difference between these positions is often a matter of emphasis. These differences reflect subterranean debates over how social change occurs (through will and agency, or through determining structures), what the normatively relevant agents in society are (groups or individuals), and to what extent those agents can justifiably impose any substantive conception of the good on others. One can never conclusively answer such questions, but we should bring them to the surface and discuss them, if not in our courtrooms and legal opinions then in our classrooms and legal scholarship. Certain variants of pragmatism make this difficult, in part because of an undue aversion to "abstraction" or "meta-theory," and in part because the blurring of facts and values can lead to a comfortable but ultimately stifling tendency to blur substantive ideological commitments with the supposed requirements of value neutral "skill" or expertise.

In one sense this is a plea for Radin to write another book, or for readers to hunt down her other work. The Pragmatist and The Feminist n89 describes Radin's conception of the relationship between her ideological commitments and pragmatism. Radin's discussion enables us to locate much of her other work.  [*245]  Radin's personhood attempts to split the difference between cultural feminism's insistence on irreducible gender difference and liberal feminism's insistence that no normatively significant difference divides the sexes. It is, as Radin demonstrates, much more than this. But placing it in this context may help explain my and many other scholars' ambivalence toward it. Feminist struggles must, almost inevitably, take the form of demands for recognition and for equal respect - there is little possibility of gender separatism. There is also little possibility of, nor desire for, eliminating gender categories altogether. A mediating approach offers the best (and only) hope of bringing about positive transformation of gender relations.

With regard to other categories, however, other options are available: For example, many progressives hope to eliminate class distinctions altogether, although to do so, many feel they must first emphasize precisely those distinctions. Similarly, many scholars of race relations hope to eliminate racial categories altogether, while others hope to create autonomous communities where presently subordinated racial groups can flourish without the need for the recognition of the other. In these debates it is important to sever facts from values, or more precisely, tactics from goals. Two people might agree that in an ideal world race should not matter at all, but disagree on the best way of achieving that ideal: One might argue that we must first recognize racial difference, the other might insist that by recognizing racial difference, we reinforce the pernicious distinction on a cultural level, thereby hindering the accomplishment of the goal. We often confuse this dispute about tactics with one about goals - there are many people who do not want to see racial categories eliminated. My hunch is that most people of color are ambivalent about the goal of eliminating racial categories altogether. We derive a good deal of our identity from those categories and would suffer some real harm in losing them, even as we would also gain in numerous tangible and intangible ways. Because we do not often discuss this ambivalence over values, we too often displace it onto an argument about "hard facts" or tactics. "I don't want to live in world without race" becomes "I don't think integration is possible"; "I think racial separatism would impoverish the cultural lives of people of all races" becomes "I don't think separatism will work."

Of course one can honestly oppose a move for both tactical and normative reasons (I actually don't think separatism is a feasible option and I don't think its desirable even if it were feasible) but often matters are clarified by keeping the two distinct (I'm ambivalent about color blindness as an ideal, but firmly convinced that the rhetoric of color blindness has become a Trojan horse for white supremacists and those who are willing to sacrifice racial justice; thus I feel it "can't work' in most of its current manifestations.). Because of my ambivalence, I, like Radin, struggle to mediate the tension between the universal and the particular. So this review is both critique and apologia: As I wrote this review I found that most of my disagreements with Radin arose from my frustrations about Radin's ambivalence, and my own.

It is fitting that Radin's pragmatism, derived as it is from the optimistic American philosophical tradition, be tempered by a hint of the fatalism of European  [*246]  existentialism. It was the existentialist, as today it is the activist, who knew that some circumstances require one to confront rather than convince; some times call for resistance, regardless of its expediency. n90 Many pragmatists and many of their critics mistakenly imagine that the primary criticism of pragmatism is an analytical critique. It is instead a rhetorical, or perhaps an existential, critique. Pragmatists too often offer the rhetoric of partial solutions, step-by-step reform, and the impossibility of total revolution when the situation demands the rhetoric of moral outrage, angry defiance, revolt, and subversion: the rhetoric of empowerment through resistance. The struggle for social justice cannot succeed with only tentative and partial theories of justice. But, as Radin recognizes, it cannot succeed without them either. Reinterpreting Property ranks among the most significant attempts to temper the demands of action with those of reason.
 

FOOTNOTES:
n1. It could be the ideological left or right; this essay will discuss the left.

n2. P. 4 (quoting Hilary Putnam, Afterword, 63 S. Cal. L. Rev. 1911, 1914-15 (1990)).

n3. Hegel's Philosophy of Right (T.M. Knox trans., 1942). For examples of Hegel's influence on Radin, see pp. 44-48, 209-13.

n4. Pp. 41-42.

n5. Pp. 40-42.

n6. P. 45.

n7. Pp. 36-37.

n8. P. 53.

n9. P. 73. Radin explains:
 
If the landlords can collude to extract high prices, then rent control may merely bring prices down to the competitive level. Even if the landlords cannot collude, if they are reaping high "rents" in the economic sense, making them lower prices to the competitive level should result in no restriction of supply or other misallocation of resources.
 
Id. (footnotes omitted); cf. Note, Reassessing Rent Control: Its Economic Impact in a Gentrifying Housing Market, 101 Harv. L. Rev. 1835, 1848-50 (1988) (arguing that standard market analysis often does not accurately predict the efficiency and allocational effects of rent control).

n10. It is no coincidence that the communities that have enacted the strongest forms of rent control (policies that restrict or prohibit conversion to condominiums or other uses and do not allow for decontrol or market rate adjustment when the unit is vacated) such as Berkeley and Santa Monica, California, and Cambridge, Massachusetts, are, or were, historically characterized by precisely the market conditions Radin describes as hospitable to efficient rent control application. See, e.g., Richard Thompson Ford, Rent Control Sub-Committee of the Cambridge City Council, Rent Control Reform in Cambridge: A New Agenda for Fairness 1 (1991) (citing a housing crisis as the primary reason for rent control). As the author of the report and a consultant to the City of Cambridge, I know that gentrification in Boston and its suburbs was a primary reason offered in support of rent control.

n11. Pp. 153-54.

n12. "Shelter impoverishment" is the condition in which a tenant must forgo basic necessities to obtain shelter.

n13. See p. 84 ("Thus, my claim is simply that the private home is a justifiable form of personal property, while a landlord's interest is often fungible.").

n14. Pp. 86-90.

n15. A community-based spin on Radin's personhood theory not only provides a more satisfying ideal, but it also explains existing rent control regimes more accurately. Without a community-based ideal it is hard to favor a personhood interest in nondisplacement above the countervailing personhood interests of potential newcomers. One may argue that existing tenants may develop personal attachments to their units that outweigh new tenants' personal interests in moving into a rent controlled jurisdiction, but this only explains rent control during a particular tenant's stay. After the tenant voluntarily vacates the unit there is no individually based reason to continue rent control. P. 88 ("It is easier to defend long-term rent control by appeal to community than by appeal strictly to the individual interests of present tenants. Relying solely on individual interests seems to imply that rent control is no longer justified when the present tenant dies or moves ....").

n16. P. 87. ("The argument [for rent control] is strengthened if ... the community will certainly be dispersed unless rent control is imposed.").

n17. Of course, the community-based theory raises ambiguities of its own. As Radin points out, one can analogize rent control to exclusionary zoning practices. See pp. 96-97. One can view it as a device that lower-income communities employ to maintain a class-based character, just as large-lot zoning or zoning restrictions on multi-family housing maintain the class character of wealthier communities. Mainstream economics would see both as inefficient distortions of a free market in real estate, yet there are other ideological reasons for preferring or opposing either legal rule. Just as there may be favored and disfavored types of personhood connections to property, there may be favored and disfavored types of community. A community that wishes to avoid contact with the poor, particular racial groups, the homeless, or those who hold unpopular political opinions may seem less deserving of legal protection than one that wishes to maintain cohesiveness in a volatile marketplace. However, one can describe almost any community claim in preservationist or exclusionary terms. Id.

n18. See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1843, 1871 (1994) ("The "democratic process' that produces and legitimates exclusionary zoning is thus very questionable: in many cases, the only significant vote that will be taken on the exclusionary ordinance is the first vote. After it is enacted, exclusionary zoning has a self-perpetuating quality.").

n19. See text accompanying notes 31-34 infra.

n20. Radin describes this interrelationship:
 
Visions of a better life are part of life; they give us the impetus to try to change things. At the same time, those visions of the ideal are constituted by life as it is now, and they will change as we change our life.... The familiar pragmatist metaphor for this process pictures a ship being rebuilt at sea, plank by plank. The activity of rebuilding guides our theory of what the ship ideally should look like just as much as the ideal of what the ship should look like guides the activity of rebuilding.
 
P. 29.

n21. Pp. 3-4.

n22. For example, Radin states that:
 
Because of the very strong hold traditional property still has on our imagination, and because of the association of traditional property with "free" alienation in "free" markets, my instinct at the moment would be to try to curtail rather than expand its scope.... The alternative is to try to metamorphose the dominant mythological meaning of property prevailing in our legal/moral culture. I think whoever tries to do this faces a steep uphill battle.
 
P. 16.

n23. P. 15.

n24. P. 15.

n25. P. 15.

n26. P. 15.

n27. Radin does not critique formalism in her book because so many scholars already have written on the topic. See p. 100 ("I shall leave aside [a critique of] formalism, or mechanical jurisprudence, because I don't suppose I have anything new to say about what's wrong with it.").

n28. P. 100.

n29. Pp. 99, 102.

n30. P. 102.

n31. P. 29.

n32. P. 30.

n33. P. 30. See also note 20 supra and accompanying text.

n34. The common law tradition tends to obscure the law/culture split: Cultural commitments find their way into the text of legal opinions and thereby become "law."

n35. It is possible that Radin believes that the resolution of conflicts within the legal system will inevitably lead to a good coherence, that the process of immanent critique will eventually lead us to make our institutions their best. She suggests that: "A progressive naturalist would say that there is a best conception of property, but we haven't yet reached it. The history of changing property notions is describable as a history of rejecting bad parts of the institution and substituting better ones ...." P. 103. Radin never explicitly embraces this view, indeed her consistent position is that legal rules are context dependent and open-ended.

n36. See generally Margaret Jane Radin, The Pragmatist and the Feminist, 63 S. Cal. L. Rev. 1699 (1990) (presenting her pragmatist-feminist method of analysis).

n37. A discussion of the vast literature on this jurisprudential question is beyond the scope of this essay. Nevertheless, there is striking rhetorical parallel between legal formalism and the value-neutral proceduralism that pragmatism rejects, and the assertion that as a method pragmatism can both generate ideals from an examination of particular conflicts and rules, and also apply them to promote positive change. The pragmatic rejection of the fact/value distinction may attract legal scholars who have absorbed the realist critique of formalism and are searching for ideologically neutral alternative methods of legal analysis. By pushing a vaguely proceduralist methodology to a higher level, pragmatism may seek to revive the ideological neutrality that the critique of formalism revealed as unavailable within that method.

n38. Richard Rorty, Solidarity or Objectivity, in Objectivity, Relativism and Truth: Philosophical Papers 21, 22 (1991) ("[Pragmatists] view truth as, in William James' phrase, what is good for us to believe.").

n39. Id.

n40. Scholars debate the meaning of the interpretive community thesis, which find its origins in Ludwig Wittgenstein's philosophy of ordinary language. See Brian Bix, Law, Language, and Legal Determinacy 55 (1993) (arguing that the interpretive community thesis "can ... be said to follow from [Wittgenstein's] ideas or to be in the same spirit as his writings"). This debate is beyond the scope of this review.

My argument does not address the merits of the interpretive community thesis. Instead it charts some of the implications of such a perspective for legal argument.

n41. See notes 27-30 supra and accompanying text.

n42. See Stephen Schnably, Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood, 45 Stan. L. Rev. 347, 362 (1993) (criticizing Radin for relying on social consensus to resolve normative disputes).

n43. To be sure, Radin disclaims her earlier use of the term "consensus" to describe the quasi-objectivity of values such as personhood. However she uses terms such as "shared understanding," which imply a group that does the sharing and understanding. See pp. 4-5.

n44. Radin consistently contrasts her personhood theory with utilitarianism and law and economics. See pp. 51-53, 72-73, 106-07, 110-11 (among many examples).

n45. The assertion of the potential quasi-objectivity of values is a common theme in critical legal scholarship, especially the work of Roberto Unger. See Roberto Mangabeira Unger, Knowledge and Politics 76-103 (1975); see also Mark Kelman, A Guide to Critical Legal Studies 65-85 (1987) (discussing Unger's critique of the fact/value distinction). As Rorty does with facts, Unger grounds this quasi-objectivity in the shared or communal acceptance of values.

n46. Pp. 83-84.

n47. A trope is the use of a word or expression in a figurative sense.

n48. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism 6 (rev. ed. 1991) (describing the nation as an imagined community: "It is imagined because the members of even the smallest nation will never know most of their fellow-members ... yet in the minds of each lives the image of their communion .... Communities are to be distinguished, not by their falsity/genuineness, but by the style in which they are imagined.") (footnote omitted).

n49. I owe this insight to Pierre Schlag:
 
The hermeneutic and linguistic and Marxist arguments that theory is always already situated do not argue against the relevance, use, or need of theory. Rather, they are merely arguments about what theory is and should be. And they're pretty good ones: too good to be formalized under the rubric of "interpretive communities" and the closure it imposes.
 
Pierre Schlag, Fish v. Zapp: The Case of the Relatively Autonomous Self, 76 Geo. L.J. 37, 58 (1987).

n50. And we cannot, on pain of circularity, define the community as those living in rent-controlled apartments.

n51. See p. 228 n.17 ("How to characterize the species of objectivity needed, and how to make the required objective judgment ... are difficult problems. I think an ultimate context-dependency of the distinction between good and bad object-relations ... can be admitted without thereby rendering the matter subjective or merely conventional.").

n52. Even the solidarist's attempt to ground subjective facts and values in community solidarity must rely on some notion of objectivity: One must ascertain the community consensus. Yet subjective motivation hopelessly infects even this attempt - no image or supposedly objective account of community consensus can truly be free of the values of the person doing the imagining or presenting the account.

n53. See J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105, 106 (1993) ("Along with a growing number of other legal scholars, I believe we must shift the focus of jurisprudence from the study of the properties the legal system is thought to have ... to the nature of the legal subject who apprehends the legal system and judges it to have these properties.") (footnote omitted).

n54. Id. at 128. Balkin points out that traditional jurisprudence assumes that the only relevant consensus is among judges, "assuming ... that the standard of the judge is paradigmatic and that of the litigator, executive official, legislator, or academic is parasitic on this perspective." Id. at 128 n.37.

n55. Id. at 128 ("We may wish merely to make sense of the law as a coherent scheme of regulation in order to learn it or apply it.").

n56. Id. ("We may want to predict what other legal actors will do.").

n57. Id. ("We may wish to describe the law in order to persuade ....").

n58. Id. at 129 ("We may offer a critical portrait of existing law in the hope of persuading others to change the law.").

n59. Id. ("We may wish to understand law in terms of its practical effects rather than in terms of the content of its doctrines.").

n60. Many theorists of interpretation recognize the existence of multiple interpretive communities. See Bix, supra note 40, at 55 (arguing that John McDonnell and Stanley Fish both explain many legal conflicts in terms of differences in social context, cultures, and practices: "Stanley Fish, in his analysis of "interpretive communities' was particularly good in describing scenarios in which issues seem obvious within a subgroup but highly controversial across subgroups.").

n61. Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518, 519 (1986).

n62. Id.

n63. See id. at 527-30.

n64. Id. at 529.

n65. Even if he did, this would only reinforce the imaginative construction of a relevant community, not to supplant it; he would choose whom to call to get a "representative sampling," and he would test their responses against the imaginary community he cares about ("Ford thought the law favors the employees, but he's a bit left of center.").

n66. Kennedy writes:
 
There are ... competitors claiming shares of the mana or charisma or whatever that attends my position as a judge. I have leeways or, to put it another way, the mere fact that I decide something makes people think it was legally right to decide it that way. But there are limits to this legitimating power, and every case raises them.
 
Id. at 528-29.

n67. Stanley Fish, Dennis Martinez and the Uses of Theory, 96 Yale L.J. 1773, 1799-1800 (1987). Fish points out that he can maintain his argument regardless of the trope he uses to describe the source of meaning - this is a consequence of the necessary emptiness of the concept. But this is true only of the logical thrust of his argument, not its rhetorical force. All of Fish's arguments about the rhetoricity of language make inescapable the conclusion that the choice of the trope does matter. "Community," with its implicit spatiality and boundedness, is an especially evocative trope.

n68. Spatial metaphors are distinctive (if not unique) in that they suggest objective embodiment and irrelevance at the same time. We tend to conceive of space as both an objective fact beyond dispute that exists prior to apprehension or interpretation, and also as a social construct with no relevance of its own or a transparent medium of administration. The oscillation between these two positions allows space to both anchor indeterminate or contested meanings and to play no role in their construction. See Ford, supra note 18, at 1859 (discussing the differences between "opaque" and "transparent" conceptions of space).

n69. Kennedy, supra note 61, at 523.

n70. Lawrence K. Kolodney, Eviction Free Zones: The Economics of Legal Bricolage in the Fight Against Displacement, 18 Fordham Urb. L.J. 507, 514, 518 (1991) (emphasis added).

n71. See generally 1 The Politics of Informal Justice (Richard L. Abel ed., 1982) (examining historical antecedents, contemporary experiments, and theoretical perspectives on "informal justice").

n72. Nor is the informal aspect of the EFZ tactic anomalous. See William H. Simon, Visions of Practice in Legal Thought, 36 Stan. L. Rev. 469, 496-99 (1984) (arguing that a significant part of legal practice consists of informal and defiant action that is not easily subsumed in traditional jurisprudential notions of the law as a "system").

n73. See 1 The Politics of Informal Justice, supra note 71, at 2 ("[Informal justice] eschews official law in favor of substantive and procedural norms that are vague, unwritten, commonsensical, flexible, ad hoc, and particularistic.").

n74. Stanley Fish, There's No Such Thing as Free Speech, and It's a Good Thing, Too 209 (1994).

n75. See Schnably, supra note 42, at 363.

n76. Id. at 382-83.

n77. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 324 (1987).

n78. See Rorty, supra note 38, at 22.

n79. Scholars as disparate as Richard Rorty and Michel Foucault adopt similar positions on this point: Rorty concludes that all knowledge is nothing more than the shared understanding of a particular group. See id. at 23. Foucault similarly advises us to simply stop speaking of knowledge and power as separate terms, in favor of a new term: "Power/Knowledge." See generally Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972-1977 (Colin Gordon ed. & trans., Leo Marshall, John Mepham, & Kate Soper trans., 1980) (compiling interviews and writings of Foucault).

n80. It is interesting to note that the thesis that power's multicentered nature might provide relief from a situation of permanently entrenched hierarchy neatly parallels conventional federalist theory's assertion that multiple centers of political authority will thwart the formation of tyrannous majorities and mischievous factions. I admit that I am only slightly less skeptical of the former than of the latter.

n81. See pp. 4-5 (declining to use "objectivity," "consensus," and "health" when describing personhood).

n82. See, e.g., Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849 (1987) (arguing that the ideal of "human flourishing" should replace traditional economic analysis when examining market-inalienability).

n83. David Harvey, Class Relations, Social Justice and the Politics of Difference, in Place and the Politics of Identity 41, 63 (Michael Keith & Steve Pile eds., 1993).

n84. One might object that the rhetoric of market does not parallel that of personhood, since personhood functions as a universally acceptable norm only in the abstract; as soon as one uses it in particular cases to resolve disputes, it becomes controversial. But the same is true of market rhetoric: The free market values of efficiency, economic optimality, and free exchange are also uncontroversial only in the abstract; as soon as one employs any of those values to resolve a particular dispute, they, like personhood, become controversial.

n85. See Henry Louis Gates Jr., Let Them Talk: Why civil liberties pose no threat to civil rights, The New Repub., Sept. 20 & 27, 1993, at 37, 39 (arguing that prohibitions of "hate speech" may harm the groups they are intended to help).

n86. Plaintiffs must risk the long-term harm of promoting negative cultural stereotypes to assert the cultural defenses. Moreover, cultural defenses are often particularized versions of traditional criminal defenses. Thus evidence of cultural difference would arguably be admissible under properly applied traditional rules of evidence as relevant to the defendant's subjective state of mind. In effect then, cultural defenses may backfire by requiring plaintiffs to qualify to introduce evidence that any defendant should be allowed to introduce, regardless of cultural background.

n87. Further, any articulable principle comes with its own set of gaps, conflicts, and ambiguities.

n88. See generally Margaret Jane Radin & Frank Michelman, Pragmatist and Poststructuralist Critical Legal Practice, 139 U. Pa. L. Rev. 1019 (1991).

n89. See generally Radin, supra note 36 (examining the relationship between pragmatism and feminism).

n90. See generally Derrick Bell, Confronting Authority: Reflections of an Ardent Protestor (1994) (discussing resistance); Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (1992) (examining the existentialist imperative to resist injustice, even when resistance seems futile).





Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003


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