Book Reviews : J. E. PENNER, The Idea of Property in Law. Oxford: Clarendon Press, 1997, 250 pp., £40.00. When we see a red cow, we see a red cow. We are quite sure of it, because the unimpeachable kodak sees exactly the same. (Lawrence, 1986: 144)
| Author | Margaret Davies |
| Date | 01 December 1998 |
| Published date | 01 December 1998 |
| DOI | 10.1177/096466399800700409 |
| Subject Matter | Articles |
BOOK
REVIEWS
J.
E.
PENNER,
The
Idea
of Property
in
Law.
Oxford:
Clarendon
Press,
1997,
250
pp.,
£40.00.
When
we
see
a
red
cow,
we
see
a
red
cow.
We
are
quite
sure
of
it,
because
the
unimpeachable
kodak
sees
exactly
the
same.
(Lawrence,
1986:
144)
The
cow,
according
to
the
Hindu
religion,
is
a
sacred
beast.
In
contrast,
according
to
non-vegetarian,
capitalist-inspired
Western
culture,
it
is
potentially
a
resource
to
be
slaughtered,
sold
and
eaten,
or
at
least
to
serve
as
the
primary
productive
source
for
multiple
varieties
of
calcium-enriched,
whole,
semi
or
fully
skimmed,
flavoured,
hom-
ogenized,
pasteurized
or
otherwise
interfered
with
beverage,
hot-drink
additive,
scone-ingredient,
or
cereal-topping.
Now,
disregarding
for
the
moment
the
fact
that
the
carnivorous
Western
conceptualization
of
the
(sane)
cow
undoubtedly
facilitates
its
physical
transformation
from
picturesque
inhabitant
of
English
paddocks
to
steak,
is it
true
to
say,
as
Penner
does,
that
in
respect
of
its
existence
the
cow
is
’immune
from
transformation
from
description’
(p.
43)?
This
is
an
important
point,
because
not
only
does
Penner
believe
that
the
cow
cannot
be
transformed
by
description,
but
also
that
the
legal
system
exists
in
some
way
independently
of
any
description
of
it,
and
there-
fore
has
its
own
pre-existing
logic
and
taxonomy.
The
centrality
of
this
question
to
Penner’s
project
is
simply
that
the
entire
book,
as
he
states
himself,
’can
in
a
very
real
sense
be
regarded
as
the
individuation
of
the
law,
or
the
branch
of
the
law,
of
prop-
erty’
(p.
37).
The
project
of
individuation
of
areas
of
law,
derived
by
Penner
from
Joseph
Raz’s
(1980)
work
on
the
problem,
relies
on
the
assumption
that
there
is
present
in
the
existing
institution
of
law
some
underlying
system
of
categorization,
thus
separating
very
firmly
the
object ’law’ from
any
description
or
theoretical
under-
standing
of
law.
The
cows
of
the
legal
system
are
inherently
distinguishable
from
its
sheep
and
pigs.
The
indeterminacy
in
the
statement
just
quoted
between
the
law
of
property
and
the
branch
of
the
law
which
is
property
may
seem
trivial
but
is
nonetheless
sugges-
tive.
Is
property
a
branch,
or
a
tree
in
its
own
right?
Wittgenstein
says
’To
the
philo-
sophical
question:
&dquo;Is
the
visual
image
of
this
tree
composite,
and
what
are
its
component
parts&dquo;
the
correct
answer
is:
&dquo;That
depends
on
what
you
understand
by
composite&dquo;’
(and
that
is,
of
course,
not
an
answer
but
a
rejection
of
the
question)
(Wittgenstein,
1958:
s.
47).
In
other
words,
perhaps
the
discursive
context
of
the
law
determines
whether
’the
law
of
property’
is
an
individual
tree
in
a
forest,
a
branch
of
something
larger,
or
an
aspect
of
numerous
other
areas
which
has
no
identity
all
of
its
own.
And
of
course
that
does
not
answer
the
problem
if
individuation,
but
is
an
argu-
ment
against
posing
the
question
in
the
first
place.
SOCIAL
&
LEGAL
STUDIES
0964
6639
(199812)
7:4
Copyright
©
1998
SAGE
Publications,
London,
Thousand
Oaks,
CA
and
New
Delhi,
Vol.
7(4),
577-605;
006260
577-
To continue reading
Request your trial