Social Property and Political Struggle.

 

We are pleased to feature a version of this paper, delivered by Prof. Davina Cooper at our first seminar. The accompanying audio is here.

With its focus on contestation, authority, normativity, attachment and power, social property here speaks to the agonistic character of politics. It also speaks, importantly to the on-going challenge for a contemporary progressive politics of developing and consolidating new hegemonic institutionalised practices (such as equality law) while simultaneously enabling, engaging with and benefiting from dissent. For dissent (or disorder) keeps progressive hegemonies vibrant, relevant and responsive. This may be true even when dissent comes from the right. Thus, while a liberal response to the cases focuses on identifying the “better” decision, our interest is in standing back from the cases to explore the place of dissent in developing a progressive institutional politics.

Background

Over the past 7 years, I’ve become interested in the question of property’s reconceptualization – specifically, whether property has more progressive mileage if we move away from its current legal framing around an axis of exclusion and control. This axis produces property paradigms that vary according to the form of ownership at stake – individual, collective, or public, but if the relationship that property identifies is itself re-thought, what other progressive, political resources can it offer?

I started thinking about this relationship in the course of research I was conducting on the democratic school, Summerhill, established by AS Neill in the 1920s. Although my initial interest was in the school as a democratic community structure oriented to producing self-regulating young people, through field research I became struck by the central place afforded to property. Although school speech-acts hailed property in relatively conventional ways, school practice was more complex. Property it seemed played a major role in creating a variegated school community of intimate, public and external relations. This form of property wasn’t simply private or communal in its ownership structure. It also was not oriented to exclusion but, instead, to different kinds of relations of belonging. Understanding the networked web of school practices as property practices depended, however, on two moves: adopting a legally pluralist conception of property to recognise the property-authorising power of different actors beyond that of the state (including the school Meeting and kids-based community custom as well that of the head-teacher and other teachers); second, developing a conception of property based on attachment rather than exclusion (Cooper 1997; 2013).

Sexual orientation and conservative Christian accommodation

The paper being discussed in this workshop (Cooper and Herman 2013) takes forward the concept of property arising out of the Summerhill research, but across very different terrain. This terrain concerns conservative Christian legal claims for accommodation by their employers or the state so that they do not have to treat same-sex couples on the same terms as heterosexual ones. The paper focuses on four cases: McClintock, Ladele, McFarlane and Johns, in which a JP, marriage registrar, psycho-sexual counsellor, and potential foster couple respectively all claimed an entitlement to be accommodated within the terms of anti-discrimination law. Interestingly, all four claims failed. The courts held that there was no direct discrimination (DD) when claimants strove to be treated differently (since DD entailed an objection to being treated differently), and there was no indirect discrimination (ID) because although conservative Christians (CC) might find it harder to comply with an organisation’s gay-positive diversity and equality policy than other groups, their employers (or the state) were acting in a way that was a proportionate means of furthering a legitimate aim.

These cases, and judgments, have attracted a lot of critical attention. Interestingly, liberal, progressive and conservative academic legal commentators have all expressed concern about the way the Christian litigants have been treated. They have commented critically on how CC concerns and interests have been marginalised and how CC religious commitments have been written out of the public sphere. Indeed, the motivation to write this paper came, at least in part, from our surprise at the criticism of the judgments by progressive scholars (given the fact that the courts were valorising a secular, multicultural, egalitarian society). We were keen to understand the underlying premises and assumptions that not only led such scholars to criticise the judgments, but also that produced a shared understanding of the dispute: one in which two groups with seemingly fixed, natural competing interests were in conflict, where resolution meant greater balance and dialogue. What was involved in approaching Christianity and sexual orientation in this way?

The public life of private law

Our exploration of these cases relates to the themes of this workshop in two respects.

  1. The cases concern acutely contested ideological differences (over sexuality, Christianity, British identity, sin and equality) being transacted in the form of discrimination and employment law matters, as fundamental disagreements are converted into attachments deemed worthy of balance and mutual respect.
  2. “Private law” concepts, such as property, provide a way of understanding (and de-naturalising) the assumptions of the parties and the investments at stake in this deeply political struggle. Property is not simply a figure or metaphor brought to the conflict from its other life as a ‘real’ legal concept, but inhabits (and takes shape) in the movement between what is imagined and what is actualised.[1]  While imagining what particular concepts mean draws from different contexts (and often is heavily influenced by hegemonic contexts), this imagining is in a ceaseless interplay with the social site in question (a site that also rolls in interpretive practices, as here, of judicial, litigant and commentator understandings). The generative capacity of social sites to reframe and reorient concepts means they are in constant movement. Concepts are not simply interpretive ideas but materially driven also, existing in the oscillation between the two.

Property

Neither the courts nor commentators explicitly consider property in relation to these cases. Nor can we say that the paradigm of property deployed was exactly the property framework of private law. However, working loosely with the conception of property emerging from the Summerhill research (and sharpened as it confronts and responds to the site here explored), our argument is that the logic of social property played an organising role in rendering the dispute over faith and sexual orientation intelligible in specific ways.

To explore what it means to talk about religious faith and sexual orientation as social property, we focus on four main dimensions:

–          Attachment – this can take the form of subject-object belonging (eg, extraneous commodified belongings), part-whole belonging (as in the relationship of a child to their family) or proper place (what goes together) belonging. It can be enacted in different registers, including those of stewardship, exploitation and vengeance. Relations of belonging do not simply exist; they also involve accumulation and investment – including the work and effort that goes into building up a religious or sexual identity (which makes the relationship of belonging more secure, deeper or enriched). Belonging, in the case of social property, is also not zero-sum. Religious belief and sexuality, for instance, are not scarce goods and uptake by one subject won’t affect that of others. However, relations of belonging may well be affected when uptake by others redefines or re-establishes what the object in question (eg, sexual orientation or religious belief) consists of. We might think of this kind of shared belonging as a kind of commons involving complex internal relationships among those who share the property (eg, Heller 2001; Rose 1996): can faiths belong to anyone who feels an attachment; and who gets to determine, in the case of religious belief, how common property is managed and deployed?

–          Symbolisation and simplification – this involves knowing, identifying and classifying what counts as propertied; the process of extracting the propertied relationship from a complex web of others so that its scope and entitlements can be determined (see Blomley 2008; Cooper 2013)

–          Recognition of the propertied relationship is crucial. Whether constitutive of the propertied relationship ab initio or consolidating relationships already recognised, property requires recognition. While in the Sumerhill research, the focus was on diverse forms of authoritative recognition, here our focus is on recognition by the courts and statutory law.

–          Power – not only what can be done to the propertied object (which depends on – although isn’t restricted to – the freedoms, rights and obligations recognised) but also what can be done with it.  This may well impinge on the quality of life of others, since “others are vulnerable to the effects of your use of your property” (Singer 2006: 332). Property recognition therefore may directly or indirectly structure and limit what can be done with particular propertied forms. Stewardship or obligations to others may be integral to particular forms of attachment or they may be imposed as conditions of recognition.

Working with this conceptual framework makes several aspects of the dispute surrounding conservative Christian claims for accommodation intelligible:

–          Religion and sexuality are not seen as structural formations or complex social processes entwined in historically contingent and changing ways

–          Instead they are seen as properties of individuals and groups (though conservative Christians might prefer to reverse the relationship and see individuals and groups as belonging to their faith (or to God).

–          Social property highlights the weight given to authorised attachments as forms of belonging worthy of recognition and respect; so we might think of religious beliefs and sexual orientation as important in developing “property for personhood” (Radin 1982).

–          What is also important is the power authorised as flowing from these attachments, what religious faith, for instance, allows organisations or individuals to do.

–          Equality law, then, can be seen as unsettling and reallocating the power associated with particular kinds of subject position (eg, a Christian or man); in other words, it has redistributive effects. As such, it can be seen as a form of ‘taking’ from the perspective of previously powerful interests and a property bestowal upon others. 

–          From the social property perspective of equality law, this bestowal might mean being gay is no longer definitive of a particular kind of personhood (perceived as having distinctive manners, ways of thinking, acting, and preferences), nor is it a sickness or sin. Instead, sexuality is a property of the person (or an attachment) that is protected and given value. As such, minority sexualities (like dominant ones) can extend lawfully into the world and imprint upon it. Christianity, by contrast, has lost value – to other faiths, to secularism, and to competing exercises of propertied power.

–          Yet, to the extent that Christianity is recognised as a protected religious belief (albeit now on a par with others – at least in equality law), the courts enquire into the boundaries of the propertied object (what counts as “core” Christian beliefs), the geographies of its legitimate authority, and the presence of competing propertied relations.

As we discuss in the paper, social property in religious beliefs and sexual orientation intersect another set of contested property relations. These are less to do with gay rights than with employer and state rights over the labouring body as conservative Christians refuse to perform their jobs or engage with public power as required.

–          Who has authorised property in workers’ labouring bodies?

–          To what extent is this property legitimately ‘coloured’ by the religious or other attachments of its ‘holders’?

–          Can workers and other service providers be expected to slough off their attachments or quit if they are unwilling to?

–          What are the consequences for wider relations of belonging of this requirement?

–          Is a refusal to alienate oneself from one’s labour politically productive, even if carried out in service of another power, such as God?

The political value of property?

While equality law draws on (and can be understood through) a social property framework, social property also supports a political imagination that goes beyond commentators’ emphasis on the need to achieve balance, mutual respect, accommodation, and shared rights.

With its focus on contestation, authority, normativity, attachment and power, social property here speaks to the agonistic character of politics. It also speaks, importantly to the on-going challenge for a contemporary progressive politics of developing and consolidating new hegemonic institutionalised practices (such as equality law) while simultaneously enabling, engaging with and benefiting from dissent. For dissent (or disorder) keeps progressive hegemonies vibrant, relevant and responsive. This may be true even when dissent comes from the right. Thus, while a liberal response to the cases focuses on identifying the “better” decision, our interest is in standing back from the cases to explore the place of dissent in developing a progressive institutional politics.

The four cases we discuss are particularly interesting in this regard because they focus on dissent within the workplace and in relation to accessing state-controlled resources and opportunities.[2] Thus, they diverge from the more conventional focus on public sphere loci where dissent is expressed, such as in public street protests.

The salience of property in thinking about this conflict over Christian accommodation also extends beyond its application to sexuality and faith to reveal a more fundamental struggle – over Britain.

–          Who belongs to Britain?

–          Who or what does Britain itself belong to?

–          What obligations follow from belonging?

–          To what extent, in either case, does Christianity hold a special place?

Property’s terms help us to think about the normative projects at stake. But property also elucidates the disorderly challenges to a (new) developing order (see Keenan 2010 on subversive property), opening up questions about the value of such disorder in the ‘private’ spaces where politics also takes place. Certainly, property tends to be associated with order and the proper – allocating and establishing rights and uses. However, the agonistic character of property’s practice means such order is always subject to being undermined or challenged. So, here, in these cases, conservative Christian refusal provides a way of using ownership in one’s body to both be present and to refuse to act.

Some commentators have referred to this as “conscientious objection” (eg, Stychin 2009), we might also think of it as a form of squatting. Both indicate a demand for home, for belonging, and for a refusal to leave simply because the terms of one’s belonging lie outside hegemonic forms of authorisation.

In other contexts, the disorderly or anti-hegemonic character of social property claims might be legible in other ways – as theft, nuisance, trespass, or vandalism, for instance. And in contexts where conservative values and relations are institutionalised, counter-hegemonic practices might be read as renovating, stewardship, and communalisation, battling against the enclosure, appropriation and colonisation exercised by conservative forms of social property.

The limits of property

Property, we suggest, is helpful for thinking about the changing architecture of political conflict and power. It emphasises change, movement, dynamism and strife in contrast to equality law’s imagined ideal of balance and equilibrium.

But in other respects, property provides a limited framework, particularly as a dominant paradigm for thinking about social relationships with its emphasis on the possession and thing-ification of social connection. At the same time, exploring how social property is deployed to form, and make sense of, religious belief and sexual orientation opens up the question of whether both might operate in non-propertied ways.

To some extent, the propertied form is a paradigmatic liberal development. Emphasising the agentic, propertied subject, who – for the most part – can choose and control rather than be controlled by their attachments, approaching faith and sexuality as properties may seem progressive (although this may depend on the extent to which it moves beyond, rather than merely obscuring, more structural forms of relationship – such as the constitutive and formative part played by the church and dominant sexual formations in shaping social life).

But from a critical or more progressive perspective what kinds of connections to spiritual (or non-rational) belief and sexuality might a post-propertied form entail?

–          Forms of relating that are not about attachment or possession?

–          Where faith and sexuality are not (institutionally) recognised or power-bearing

–          Where there is no need to simplify and render them symbolic or to extract faith and sexuality from the web of relationships

What would be the social implications of such a move? Would it be a desirable one?

 

References

Blomely, N. 2008, “Simplification is Complicated: Property, Nature, and the Rivers of Law.” Environment and Planning A vol. 40 no. 8, pp. 1825-1842.

Cooper, D. 2007, “Opening up ownership: Community belonging, belongings, and the productive life of property”, Law & Social Inquiry, vol. 32, no. 3, pp. 625-664.

Cooper, D. 2013, Everyday Utopias: The Conceptual Life of Promising Spaces (Duke University Press: Durham, NC, forthcoming).

Cooper, D. and Herman, D. 2013, “Up against the property logic of equality law: Conservative Christian claims and gay rights”, Feminist Legal Studies (forthcoming)

Heller, M. 2001, “The dynamic analytics of property law”, Theoretical Inquiries in Law vol. 2, no. 1, pp. 1-17.

Keenan, S. 2010, “Subversive Property: Reshaping Malleable Spaces of Belonging”, Social & Legal Studies, vol. 19, no. 4, pp. 423-439.

Radin, M. 1982, “Property and Personhood”, Stanford Law Review, vol. 34, no. 5, pp. 957-1015

Reich, C.A. 1964, “The new property”, The Yale law journal, vol. 73, no. 5, pp. 733-787.

Rose, C. 1996, “Property as the Keystone Right”, Notre Dame Law Review vol. 71, 329

Singer, J.W. 2006, “Ownership Society and Takings of Property: Castles, Investments, and Just Obligations”, Harvard Environmental Law Review, vol. 30 pp. 309-338.

                                                 

 


[1] For further discussion see Cooper (2013).

[2] There has been considerable discussion in recent decades about the legitimate or illegitimate character of conditional access, eg, when it comes to fascists wanting to hire council rooms, or educators expressing right-wing views in public fora (see also REDFEARN (applicant) v. UNITED KINGDOM (respondent)

 [2013] IRLR 51). In the US, this debate has also focused on the withdrawal of state resources from the left (Reich 1964). But debate often focuses on the ‘right’ judgment rather than on the productive (or non-productive) value of the conflict itself.

 

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