> Rather than belabor the details of this subject, I would
> direct the reader to Elinor Ostrum's excellent introduction to the literature that
> she prepared for economists (see Ostrum 2000).
On this, also, w/ a short intro to Ostrum and diagram of various alternative property arrangements, is Carol M. Rose, "Left Brain, Right Brain and History in the New Law and Economics of Property," Oregon Law Review 79 (2000). p. 485.
<open blockquote> A third reason for the myopia about the intermediate forms of property ownership may be particularly American. Our law has been particularly hostile to most forms of collective property, particularly those in Ostrom's CPR range. This too is an interesting puzzle. My own view is that some of this hostility is a historically self serving myopia. Out leading case about Native American property claims is Johnson v. M'Intosh, where it might have been possible to recognize property in native tribes; but the Marshall Court, while not completely dismissive of all Native American claims, ignored the possibility of collective ownership. The logic seems to have been that the tribes were not cognizable sovereign governments (hence public property was not possible), not did individual persons in the tribes have recognizable common-law claims to property. Those two possibilities, individual property and governmental property, appeared to exhaust the Court's idea of what counted as "property," illustrating Heller's point that our categories have seriously—and unjustly—limited our property imagination. While probably not so intended by Marshall himself, any excuse to ignore native property proved to be highly convenient for settlers. <close blockquote>
She is reviewing an article by Michael Heller called "The Three Faces of Property." Heller's new book, /The Gridlock Economy/ just came out.
I haven't had the chance to read the latter, but he seems like a decent fellow.
But feeding into his work, and in the same tradition as Rose, is what she calls "the New Law and Economics of Property." Which brings me back to Sunstein and Lessig, who are credited with helping the "Law and Economics" tradition--here they mean the most recent one with Posner, Epstein, Becker, etc.--see the value of social norms. Shag's point about Foucault is an important one; he certainly has helped bring the efficacy of social norms to the forefront. The difference, in this case, is that the Law and Economics people don't see this quite as darkly as some of Foucault might have. Sunstein's new book, for instance, is basically about how to manipulate social norms to get what people to do what you want them to. Of course it is all considered under the heading of positive social change, but there is little discussion about what that might be. In other words, all the specifics of what we *should* be doing are already worked out. (you know, private property, markets, competitive enterprise, etc.) and/or that will basically be left up to a group of experts who will, one must suppose, though it is never discussed, mandate certain practices as "nudges" to create the social norm. The law, therefore, becomes invisible.
Lessig mentions very briefly the potentials of this along Foucauldian lines in an article of his written at about the midpoint of this movement. In his article "The New Chicago School," Lessig points to social norms as one of the other possible "regulators" (along with law, market, and architecture--people who've read /Code/ will recognize this as a similar organizing field). The use of "indirect" regulation via social norms is one of the supposedly genius features of this body of literature, evidently unaware of the critical social theory presumably taking place in other academic departments nearby. After outlining all that it can do, he simply offers a casual cite of Foucault (/discipline and punish/ fn89 below) and Habermas (fn 90) as proving an awareness--even if that is just an overly anxious, busybody concern: "I have offered a picture of the New Chicago School in a spirit of positive analysis. This should not obscure its darker side-indeed, the dark character of the whole project. The regulation of this school is totalizing. It is the effort to make culture serve power (fn89) a 'colonization of the lifeworld.' (fn90) Every space is subject to a wide range of control; the potential to control every space is the aim of the school." [this last bit is evidently supposed to comfort us?]
"The New Chicago School" Lawrence Lessig, The Journal of Legal Studies, Vol. 27, No. 2, Social Norms, Social Meaning, and the Economic Analysis of Law. (Jun., 1998), p. 691.
This contingent within the Law and Economics tradition has certainly had criticism from within that tradition itself, but in "The Foucault Effect" on his later lectures "On Governmentality" I was struck by the fact that even the critical edge that his work could provide seems dulled in these. Here he seems to deny any desire to be overly critical--much more interested in the pragmatics. The intro says over and over that the issue is no longer with the legitimacy of government--or any of the proto-Marxist concerns that might undermine the project of "the potential control of every space." In fact, the focus on the "art of government" which Foucault claims as his primary interest here is completely in line with what Sunstein claims his new goal is in "Nudge" (co-written it's worth mentioning, with a behavoralist-economist--why this doesn't retain the Skinner-box overtones is beyond me: that seems like something for Naomi Klein to do down the road.) Speaking to the /chronicle of higher ed/ in may, sunstein said, "We are not for bigger government, just for better governance." In other words, there is not even a question about what government does, its role, its legitimacy: the question is just how to incentivize behavior with the proper degree of force and eventually create unnoticed social norms through which people police themselves. Democracy, discussion, debate are not to be: the purpose of government is decided, now for the practice. Left to one side are the things that will absolutely require coercive intervention, such as the defense of property rights.
The benefit, I suppose, of this line of thinking in terms of present society is that, if it becomes legitimate, and if the "naturalness" of the so-called "negative freedom" of the socio-economic status quo remains as undefined as it was in Berlin's text, is that the methods for arriving at and enforcing it can no longer be discredited (perhaps that is why there is such pushback from the L&E people). To go back to the original, historical struggle over the English commons, one of the primary movements was the Diggers, led in part by Gerald Winstanley. Originally, he had envisioned an anarchist society where the state would whither away. But "after the collapse of the Digger colony, when Winstanley came to draft a constitution for his new society, he included laws because he realized that, 'offences may arise from the spirit of unreasonable ignorance.'" Though he used laws, the goal was to have "a longer process of education and adaptation"* which would create the more general social norms required to police the commons through mere social norms--though, it's worth noting for the efficiency hounds, his goal was to make use of all the new innovations in collective, intensive farming a la Francis Bacon, but to make the rewards equally collective. So, to come full circle, it would take all the assumptions of the Law and Economics tradition save the one about the status quo of political economic organization being the most valued. On this subject, I'm trying to get to/through Barbara Fried's book on Robert Hale, which I think has something valuable to offer.
In any case, these discussions seem all the more relevant since Sunstein and Thaler are evidently very involved with Obama's economic policy platform--and Sunstein has already been making pitches for Obama. The more criticism of this line of thinking, the more we can talk about it biting in a different direction, the better.
s
*Christopher Hill, World Turned Upside Down, 135