Stanford Law Review
Copyright (c) 1995 The Board of Trustees of Leland Stanford Junior University
Stanford Law Review
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.
... 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
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.
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
"practice" or between
"reformism." But even among academics who acknowledge the value of
"fancy theory" and reject the distinction between
"practice" or the
"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
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
[*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
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,
"walks a knife edge.'
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
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
[*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
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
"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.
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.
Radin's personhood justification favors personal property over merely fungible
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.
The personality theory of property is Radin's major intervention into property
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.
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.
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
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
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
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.
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
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.
[*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:
"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.
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.
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
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.)"
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.
B. Rejection of Legal Formalism
Another one of legal pragmatism's central characteristics is its rejection of
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
... 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
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 ....
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.
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
n31 Radin calls this the problem of
"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?"
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
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 ....
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
"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.
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
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
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
[*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
IV. The Uses of Community
Richard Rorty describes pragmatism as the reduction of objectivity to
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
n40 Although Radin never explicitly refers to an interpretive community, this
[*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
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.
Radin rejects this position in favor of a theory of the quasi-objectivity of
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
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."
"Community" denotes an exclusive and demarcated group, joined by some characteristic of
normative significance. The notion of community justifies the exclusion, the
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.
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
"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.
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
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
"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
J.M. Balkin suggests that jurisprudence should properly focus not on the
"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.
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.
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
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
[*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.
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
"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
"ends driven," or worst of all,
"political." These voices form the imagined community that will influence his
interpretation of the law.
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
"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
"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
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.
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
"interpretive communities"), no such closure is logically necessary. Closure occurs, as Kennedy asserts,
"time will run out, and [the judge will] just have to decide."
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
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.
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
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
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.
The EFZ tactic represents a type of
n71 a legal practice quite distinct from that imagined by traditional
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
[*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
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
"consensus" to guide the resolution of legal issues.
From the foregrounding of consensus, Schnably argues, the submerging of social
"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
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.
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.
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
"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
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.
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
"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
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
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
"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
[*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
"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
[*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.
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
n11. Pp. 153-54.
"Shelter impoverishment" is the condition in which a tenant must forgo basic necessities to obtain
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
n18. See Richard Thompson Ford, The Boundaries of Race: Political Geography in
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.
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.
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
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
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
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
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
"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
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
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).
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
Id. at 128 n.37.
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 ....").
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
n61. Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical
36 J. Legal Educ. 518, 519 (1986).
id. at 527-30.
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
"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
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
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
n74. Stanley Fish, There's No Such Thing as Free Speech, and It's a Good Thing, Too
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
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
"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
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
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,
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
Kristen A. Stelljes