Tragedy of the Commonwealth and the Vision of Wendell Berry, The

Tragedy of the Commonwealth and the Vision of Wendell Berry, The

Stewart, Nathaniel

All through that summer the work of the farm went like clockwork. The animals were happy as they had never conceived it possible to be. Every mouthful of food was an acute positive pleasure, now that it was truly their own food, produced by themselves and for themselves, not doled out to them by a grudging master…. They met with many difficulties-for instance, later in the year, when they harvested the com, they had to tread it out in the ancient style and blow away the chaff with their breath, since the farm possessed no threshing machine-but the pigs with their cleverness and Boxer with his tremendous muscles always pulled them through.

-George Orwell, Animal Farm1

I. INTRODUCTION

A prolific essayist, novelist, poet, and fanner, Wendell Berry is regarded as a sage in the Jeffersonian tradition,2 a twentieth-century Hector St. John de Crèvecoeur.3 He calls out from atop his seventy-five acre Kentucky farm as “our foremost apostle of the agrarian ideal”4 in the hope of saving his land, his culture, and his local community. In the truest sense, Wendell Berry is a wordsmith, Grafting his poetry and prose with a pencil and a pad of paper, his wife transcribing his scrawl on a Royal standard typewriter from 1956.5 Though something of a Luddite-a modifier that Berry does not find insulting6-his contribution to the national dialogue on matters of the environment, ecology, property, and the moral course of the American people has not been overlooked.7

Indeed, since the turn of the century Berry has been cited in over three dozen law journals8 and his prose has been published, quoted, and discussed in national periodicals spanning the spectrum of environmental, political, and theological debate,9 including The Nation,10 The Progressive,11 Social Justice,12 First Things,13 Commonweal,14 and The Christian Century.15 Anthologized alongside America’s most revered naturalists and conservationists,16 “one of the few contemporary authors worthy of mention in the same breath with that triumvirate of immortals, Thoreau, Muir and Leopold,”17 Berry’s writings on stewardship and sustainability continue to inform the American struggle with ecology, consumption, and land use.18 Kimberly K. Smith’s book, Wendell Berry and the Agrarian Tradition, examines Berry’s “neglected writings” on the agrarian tradition and small farmers and “their critical roles in preserving not only the best of our humanity and sense of community but also our essential link to a sustainable agriculture.”19 Environmental law scholar Eric Freyfogle has observed that “Berry’s special contribution lies in his linkage of environmental decline with moral emptiness, in his refusal to fragment issues of land health from issues of human health, communal morality, and spiritual redemption.”20 Thus, for many, Berry “sounds a responsive chord among readers who agree that the time has come to resist the ongoing stampede to promote the autonomous individual… .”21

Wendell Berry is a visionary. He foresees the tragedy of the “commonwealth,” the sickness unto death of the agrarian economy, with its faith, knowledge, and affection for place and land; he mourns the passing of the small, agrarian community. He writes in an effort to preserve the commonwealth, to stave its death for as long as he can on the chance that it might someday be restored. For Berry, the health of the land, the wilderness, and the environment is inextricably bound to “the health of the surrounding economic landscapes and human communities,”22 and his writings aim to convince his audience that saving the commonwealth is necessary for saving the land, and vice versa.

Nevertheless, the environmental law community has made little attempt to analyze Berry’s prescription for land use and property ownership. A closer look at his writings ultimately reveals that despite their great aesthetic and nostalgic appeal, Berry’s proposals suffer some grave deficiencies. First, many of his land use policies, if adopted, would constitute a radical shift in our property law-perhaps a shift that Berry would welcome, but one that would likely have the unintended effect of destabilizing communities and estates in land rather than making them more secure.23 For example, implementing much of his property rights scheme would effectively turn all fee simple land ownership into a kind of life estate with a proscription on waste.24 Unfortunately, Berry does not account for the legal and economic upheaval that such a significant reform would create, and instead he writes of property owners holding the land in “trust” without ever sketching even the basic legal contours of his plan.

Beyond this, Berry embraces the merits of localized, “intimate” knowledge and warns against the corresponding dangers of remote and corporate land ownership.25 Yet his writings create the distinct impression that the most localized knowledge, the personal knowledge an individual owner exercises over his property, is not to be trusted and, in fact, should defer to the more-or-less “corporate” and distant interest of the commonwealth in the distribution and dispossession of land. Here, apparently, the community, not the person, knows best-a proposition that may be true, but one that Berry never squares with his preference for personal over corporate knowledge nor supports with an ounce of evidence.

Second, in his zeal to preserve the commonwealth’s localized economy, Berry advances a standard anti-competitive protectionism aimed at leveling the proverbial economic playing field with tariffs, progressive taxation, and heightened restrictions on trade.26 But his boilerplate proposals lack virtually any empirical assessments and fail to articulate how his protectionist policies would avoid the prohibitive rise in consumer prices that have disproportionately and adversely affected the rural poor in every other economy in which they have been tried. Instead, his writings are conclusory and never account for the argument or even the possibility that his protectionist impulse may harm the very agrarian landholder and local community he intends to help.

Finally, Berry condemns the destructive effect of the legally fictional “corporate person,” vehemently protesting the corporate ownership of land and the “folly” of conferring “personhood” on that which is not a person.27 But his arguments lack imagination, for he fails to imagine a state, a nation, or even a commonwealth without the corporate person as a legal construct. Neglecting centuries if not millennia of common law and statutory justification for the corporate form, he takes no notice of the debilitating legal, economic, and social implications of eliminating the corporate person.28 Moreover, Berry’s objections collapse under the weight of their own inconsistency, for he denounces the corporate entity as an irresponsible, greedy “pile of money,”29 incapable of hope, remorse, humility, or “change of heart,”30 while simultaneously assigning to it the sort of blame, culpability, and responsibility that could only be ascribed to persons. Berry ignores this tension, content instead to cast aside hundreds of years of legal cognizance in favor of his empirically unsubstantiated hypothesis that both the environment and commonwealth would be better preserved if persons did not own land corporately because corporations are not themselves persons.

This article explores some of the legal and economic aspects of what Berry calls the “commonwealth” and highlights several tensions within his efforts to prevent its tragic ruin. It focuses almost exclusively on his essays and does not attempt the far more onerous task of distilling his vision of the commonwealth from his fiction and poetry. It pays particular attention to those select agricultural essays that speak most explicitly of the commonwealth, property ownership, land use, and the law’s relation to the environment. After initially explaining Berry’s vision of the commonwealth and land use,31 this article looks both at how that commonwealth is destroyed and how Berry hopes to save it.32 sections II and III offer an abridged catalogue of Berry’s extensive essays and functionally allow the iconoclast to speak for himself. section IV then turns a critical eye toward a few of Berry’s proposals, analyzing their relationship to common law tradition, the problem of knowledge, protectionist pricing, and the legal artifice of corporate ownership. In conclusion, the article questions the wisdom and healing power of his prescribed, homeopathic remedy.

II. THE TRAGEDY OF THE COMMONWEALTH

[T]he essence of the commonwealth; which, to define it, is one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves everyone the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defence.

-Thomas Hobbes, Leviathan33

Garret Hardin famously described the “tragedy of the commons,”34 explaining that “[r]uin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons,” and concluded that “[fjreedom in a commons brings ruin to all.”35 Hardin wrote of “tragedy” in the philosophical tradition concerned with the “inevitableness of destiny” and the “futility of escape” that so often involve unhappy events.36 But whereas Hardin focused on the commons generally, Wendell Berry testifies to the ever-hastening and tragic death of the commonwealth, the demise of the local community, brought on by the destruction of its agrarian economy, its faith, its knowledge, and its affectionate care for the land. To Berry, the “tragedy” lies in the passing of the rural, American community that “will dwindle on for another generation or two and then disappear or be replaced by a commuters’ suburb,”37 a passing that can only signal-with a Hardin-like inevitability-the ruin of a nation. .

A. DEFINING THE COMMONWEALTH

Wendell Berry’s essays, Private Property and the Common Wealth38 and Watershed and Commonwealth,39 outline his understanding of property rights and land ownership. He illustrates their conjunctive role in the human relationship with land and community, and he advocates both a respect for private property-as he understands it-and a return to the “idea of the commonwealth.”40 Although Berry, being “well aware of the danger in defining things,”41 never quite defines in any precise terms what he means by “commonwealth,” his essays collectively reveal the qualities and characteristics of the commonwealth he envisions.

In one sense, Berry’s “commonwealth” seems little more than “community,” by which he means something having its own economy, faith, local knowledge, and affection for itself and its place.42 Significantly, however, Berry quite forcefully distinguishes between his understanding of the “commonwealth” and what has come to be called “the commons” or “the public.”43 Thus, understanding Berry’s “idea of the commonwealth” requires first an explanation of what the commonwealth is not, and second an understanding of what it is. Beyond this, we should note that Berry’s sense of the commonwealth’s decline and impending doom heavily influence his understanding and description of the commonwealth.44

1. Commonwealth, Not Commons

Looking first at what the commonwealth is not, Berry carefully distinguishes what he means by “commonwealth” from what others have called “the commons.” A “commons,” he writes, is “a property belonging to a community, which, the community members are free to use because they will use it with culturally prescribed care and restraint.”45 Berry doubts this definition of commons “even remotely applies” to America’s current condition.46 Furthermore, whereas “[h]istorically, the commons belonged to the local community, not ‘the public,'”47 Berry fears that the commons now largely means “only what we have so far understood by ‘public.'”48

By “public,” Berry means “all the people, apart from any personal responsibility or belonging.”49 He gives the example of a public building, that is, “a building which everyone may use but to which no one belongs, which belongs to everyone but not to anyone in particular, and for which no one is responsible except ‘public employees.'”50 This, he thinks, is “perhaps radically different” than, and often at odds with, the idea and the qualities of a community.51

If the word community is to mean or amount to anything, it must refer to a place (in its natural integrity) and its people. It must refer to a placed people. Since there obviously can be no cultural relationship that is uniform between a nation and a continent, “community” must mean a people locally placed and a people, moreover, not too numerous to have a common knowledge of themselves and their place.52

Thus, “[a] community, unlike a public, has to do first of all with belonging; it is a group of people who belong to one another and to their place. We would say, ‘We belong to our community,’ but never 4We belong to our public.'”53 Explaining this distinction, Berry notes that “[a] community, when it is alive and well, is centered on the household-the family place and economy-and the household is centered on marriage,” whereas “[a] public, when it is working in the best way-that is, as a political body intent on justice-is centered on the individual.”54 To Berry, the difference here is critical, because as that “political body” or “public government becomes identified with a public economy, a public culture, and public fashions of thought, it can become the tool of a public process of nationalism or ‘globalization’ that is oblivious of local differences and therefore destructive of communities.”55

Thus, in writing of the “commonwealth,” he laments that “[w]e have come to think of the word ‘commonwealth’ as merely synonymous with ‘state’ or ‘political body.'”56 Instead, Berry endeavors “to use the term in its literal sense, unfortunately obsolete, of the general welfare, the public good, the wealth that only can be held in common.”57 However else we might understand Berry’s idea of the commonwealth, he has made every effort to ensure that we do not confuse that idea with the “public commons.” Therefore, we must consider what Berry does mean by the seemingly interchangeable terms “local commons,” “community,” and “commonwealth.” To do so we must look to Berry’s four founding stones of agrarianism, faith, knowledge, and affection for the local place.

2. Agrarianism

By his own admission, Wendell Berry is Jeffersonian.58 In his politics and economics he is “a democrat and an agrarian.”59 Often writing of the industrial economy in religious, apocalyptic tones, Berry opposes virtually all modern industrialization at home and abroad.60 seeking a “countervailing idea by which we might correct the industrial idea,” Berry finds agrarianism.61

Agrarianism, he explains, being “primarily a practice, a set of attitudes, a loyalty, and a passion,”62 is conceptually difficult to define. But drawing upon the wisdom of “agrarian writers, ancient and modern,” and even the “sometimes illiterate agrarians who have been my teachers,” Berry concludes that “[t]he fundamental difference between industrialism and agrarianism is this: whereas industrialism is a way of thought based on monetary capital and technology, agrarianism is a way of thought based on land.”63 The agrarian economy recognizes that “[t]he stability, coherence, and longevity of human occupation require that the land should be divided among many owners and users.”64 Thus, for Berry and the agrarians,

The central figure of agrarian thought has invariably been the small owner or small holder who maintains a significant measure of economic self-determination on a small acreage. The scale and independence of such holdings imply two things that agrarians see as desirable: intimate care in the use of the land, and political democracy resting upon the indispensable foundation of economic democracy.65

Depicting the agrarian ideal, and in contrast to the modern industrial economy,66 Berry offers the “good farm.”67 By “farm,” Berry makes clear he means

a place that is used diversely and conservingly, that grows animals as well as plants, that is of a size appropriate to the needs and the available energy of a family … where you put up hay and harvest grain for feed … and where you have chores to do ….68

The good farm “preserves the land in production without diminishing its ability to produce.”69 It is measured by a fertility that “preserves the interest of the future”70 and provides a “model of good land use.”71 Agrarianism, epitomized in the good farm, “proposes an economy of necessities rather than an economy based upon anxiety, fantasy, luxury, and idle wishing. It proposes the independent, free-standing citizenry that Jefferson thought to be the surest safeguard of democratic liberty.”72 But most significantly, the agrarian economy “proposes an agriculture based upon intensive work, local energies, care, and long-living communities-that is, to state the matter from a consumer’s point of view: a dependable, long-term food supply.”73

To illustrate, Berry describes Tom and Ginny Marsh’s “excellent homestead.”74 A quintessential “good farm,” the Marsh home has “considered the questions of scale, balance, proportion, unity, [and] utility;”75 “[n]othing is too big or too little;”76 “balance has been the aim or standard;”77 and “[t]he designing of their place has been inseparable from their living in it.”78 These qualities comprise

an exemplary subsistence farm. Of [the Marshes’] 12Î/2 acres, all but four are wooded. Two of the acres are in pasture. The rest of the space is taken up by buildings, garden, berry beds, and fruit trees. Because their acreage is so small, the Marshes have had to work carefully at the problems of design and scale. Everything had to be put in the right place or it would be in the way of something else. And it had to be the right size or they would run out of room.79

Ideally, then, the excellent homestead is where “[t]he natural character of the place has been respected, and yet it has been made to accommodate gracefully the various necessities of a family’s life and work.”80 The agrarian economy, however, represents more than an ideal in Berry’s thinking, and goes beyond presenting an alternative, countervailing idea to the industrial megaplex. It is an imperiled cornerstone in Berry’s commonwealth that aims toward “generosity and a well-distributed and safeguarded abundance,”81 and “it alone can promise us the continuity of attention and devotion without which the human life of the earth is impossible.”82

3. Faith

Berry understands the healthy and viable commonwealth to include faith and a sense that humanity and all of creation live under the divine laws of God. This understanding informs his perspective on law, economy, land, and community. For example, he begins The Gift of Good Land: “I want, first, to attempt a Biblical argument for ecological and agricultural responsibility. second, I want to examine some of the practical implications of such an argument.”83 Moreover, in considering conflicting economies and economic models, he has written on the supremacy of the “Great Economy” of the “Kingdom of God.”84 In a blistering assault on the Kentucky strip mines he proclaims that so far as he knows, “there are only two philosophies of land use. One holds that the earth is the Lord’s . .. The other philosophy is that of exploitation . . . .”85 From this philosophical perspective, Berry argues that a moral and religious awakening is all but essential for saving the commonwealth from the “philosophy of exploitation.” Nevertheless, a full exploration of Berry’s religious holdings-infused throughout his writings-and their relationship with his understanding of the commonwealth lies beyond the bounds of this article and will not be addressed here.

4. Local Knowledge

In his concern for the land and the commonwealth, Berry, like many authors, moralists, and economists, takes up the idea of knowledge.86 Rural economies and communities are essential, he says, because “we must keep alive in every place the human knowledge of the nature of that place.”87 Comparing industrialism and agrarianism, and the global and the local economies, Berry finds “the most critical difference is that of knowledge.”88 The difference manifests in a “global economy [that] institutionalizes a global ignorance, in which producers and consumers cannot know or care about one another,” in bright contrast to the “sound local economy, in which producers and consumers are neighbors,… who understand their economy [and] will not tolerate the destruction of the local soil or ecosystem or watershed as a cost of production.”89 Like others, of course, Berry distinguishes between “informed knowledge” and “intimate knowledge,” and it should not surprise us that Berry favors the latter.

Garrett Hardin once argued that the answer to the conventionally conceived “population problem” was beyond a “technical solution,” by which he meant “one that requires a change only in the techniques of the natural sciences, demanding little or nothing in the way of change in human values or ideas of morality.”90 Similarly, Berry argues that in answering our environmental problem we must resist the “assumption … that we can first set demons at large, and then, somehow, become smart enough to control them.”91 To Berry, the environmental crisis begins in the “human household,”92 and its problems present a “human problem,” belonging, he might say, to Hardin’s class of “no technical solution problems.”93 Recognizing that mankind is “terrifyingly ignorant,” Berry submits that any attempt to solve such problems through an acquired knowledge or “informed decision” aimed at controlling nature is “a kind of idiocy” that we ought to call evil.94 “[K]nowledge does not solve ‘the human problem,'” writes Berry,95 “[i]ndeed, the evidence overwhelmingly suggests-with Genesis-that knowledge is the problem.”96 Suggesting that “[t]he ‘informed decision’ … is as fantastical a creature as the ‘disinterested third party’ and the Objective observer,”‘ Berry urges us to

abandon our superstitious beliefs about knowledge: that it is ever sufficient; that it can of itself solve problems; that it is intrinsically good; that it can be used objectively or disinterestedly. Let us acknowledge that the objective or disinterested researcher is always on the side that pays best. And let us give up our forlorn pursuit of the “informed decision.”97

Framing human knowledge as either “informed” or “intimate,” Berry prefers “a kind of knowledge that includes information, but is never the same as information.”98 It is an intimate knowledge “informed … by those patterns of value and restraint, principle and expectation, memory, familiarity, and understanding that, inwardly, add up to character and, outwardly, to culture.”99 This is “[t]he real-the human-knowledge,” that implicitly and explicitly imposes limits on our informed knowledge such that “some possibilities must not be explored; some things must not be learned.”100 Thus, Berry suggests, “that all our problems tend to gather under two questions about knowledge ….”101 The first asking how and what should we learn? And, the second, how and for what should we use what we know?102

In the context of the environment, agriculture, and land use, Berry’s concept of intimate knowledge is again exemplified in the good farm. Berry’s essay Elmer Lapp’s Place describes an eighty-three acre farm handed down through the Lapp family since 1915.103 It is a place in which “[a]ll the patterns of the farm are finally gathered into an ecological pattern; it is one ‘household,’ its various parts joined to each other and the whole joined to nature, to the world, by liking, by delighted and affectionate understanding.”104 It survives, in Berry’s estimation, because of Elmer Lapp’s intimate understanding and knowledge of the farm.

Elmer Lapp is eminently a traditional farmer in the sense that his farm is his home, his life, and his way of life-not just his “work place” or his “job.” For that reason, though his farm produces a cash income, that is not all it produces, and some of what it produces cannot be valued in cash.

In obedience to traditional principle, the Lapps take their subsistence from the farm, and they are as attentive to the production of what they eat as to the production of what they sell. The farm is expected to make a profit, but it must make sense too, and a part of that sense is that it must feed the farmers. And so a pattern of subsistence joins, and at certain points overlaps, the commercial pattern.

….

Underlying the patterns of the farm’s productivity is a stewardship of the soil at all points knowledgeable, disciplined, and responsible. And this stewardship, necessarily, has evolved its own appropriate patterns.105

These “appropriate patterns” of stewardship are best known to that traditional farmer for whom farming is “his way of life.” They develop and are understood by the farmer who is intrinsically bound to the land; the farmer who is then best able to care for the land, not because of his superior “informed knowledge,” but because of his “affectionate understanding” for the land that imposes limits upon the use of that knowledge. This, then, is Berry’s “local knowledge” at work in the commonwealth, a knowledge aimed at “preserving the possibility of intimacy in the use of the land.”106

Of course, such an intimate, local knowledge should not be limited to farmers; or, to put it differently, farmers ought not to be the only ones among us who are intimate with the land. If intimate farming is a balm for the ailing environment, then, to some extent, we should all be “farmers.” To that end, Berry “can think of no better form of personal involvement in the cure of the environment than that of gardening.”107

A person who undertakes to grow a garden at home, by practices that will preserve rather than exploit the economy of the soil, has set his mind decisively against what is wrong with us. He is helping himself in a way that dignifies him and that is rich in meaning and pleasure. But he is doing something else that is more important: he is making vital contact with the soil and the weather on which his life depends. He will no longer look upon rain as an impediment of traffic, or upon the sun as a holiday decoration. And his sense of man’s dependence on the world will have grown precise enough, one would hope, to be politically clarifying and useful.108

Thus, Berry calls for a “change of mind … [that] involves not just a change of knowledge, but also a change of attitude toward our essential ignorance, a change in our bearing in the face of mystery.”109 Like Hardin, he sees little promise in proposing a “technical solution” to our inherently “human problems” and ecological dilemmas. Instead, he advocates a fundamental shift in our pursuit of knowledge worked out in a renewed personal intimacy with the land.

5. Affection for Place

The idea of local knowledge lends itself to Berry’s expectation that such knowledge is born from and leads to an “affection for place.” Thus, Berry looks to the interrelationship of local knowledge and local affection for sustaining the local community. He explains that “[i]n its cultural aspect, the community is an order of memories preserved consciously in instructions, songs, and stories, and both consciously and unconsciously in ways. A healthy culture holds preserving knowledge in place for a long time.”110 Moreover, he believes, “the essential wisdom accumulates in the community much as fertility builds in the soil”locally and over time.111 To achieve that proper accumulation of wisdom and its resulting affection for the land, Berry looks to the constituents of the “community party” and to a limited application of private property rights.

Recalling that the “good farm” is balanced and to scale, not too big, but not too small, it follows that Berry considers “[t]he natural membership of the community party [to] consistf] of small farmers, ranchers and market gardeners, worried consumers, owners and employees of small shops, stores, community banks, and other small businesses, self-employed people, religious people, and conservationists.”112 Logically, then, absentee ownership and management, bureaucratic oversight, and remote, “public” control of the land are inapposite to the community party and its primary goals: “the preservation of ecological diversity and integrity, and the renewal, on sound cultural and ecological principles, of local economies and local communities.”113 To that end, Berry recognizes the “ecological justification” for private property, but only insofar as such ownership remains small and closely held.

To further the natural membership of the community party the land “should be divided into small parcels among a lot of small owners.”114 True to his Jeffersonian ideals, Berry believes that “a large population of small property holders offers the best available chance for local cultural adaptation and good stewardship of the land-provided that the property holders are secure, legally and economically, in their properties.”115 Those same small, private landholders are thus ecologically justified so long as those “landed properties are democratically divided and properly scaled, and if family security in these properties can be preserved over a number of generations.”116 In this way,

[n]ot only will we make more apparent to successive generations the necessary identity between the health of human communities and the health of local ecosystems but we will also give people the best motives for caretaking and we will call into service the necessary local intelligence and imagination. Such an arrangement would give us the fullest possible assurance that our forests and farmlands would be used by people who know them best and care the most about them.117

This is not to say, however, that Berry’s support of private property rights is unqualified. Indeed, he is “an uneasy believer” in private property in large part became “this right can be understood as the right to destroy property”-a right, he says, that does not exist.118 Private property comes replete with the “obligation to secure to the rest of us the right to live from that property,” which is to say, private property can only be used in ways that do “not impair or diminish our rightful interest in it.”119 But the fact that the landowner may not destroy or diminish private property out of concern or respect for society’s rightful interest imposes “a concurrent obligation on the part of society as a whole … to make the landowner able to afford not only to use the land but also to care properly for it.”120 It is here that we have made our “grossest error.”121

Whereas private property is afforded a place in the commonwealth as the most effective means of securing and caring for the land, Berry argues that the current “doctrine of private property … acknowledges no commonwealth.”122 By this, Berry means that if “landowners … are accountable to their fellow citizens for their work, their products and their stewardship, then these landowners … must be granted an equitable membership in the economy.”123 And this, he says, Americans have failed to do. Instead, we have “stood an ancient pyramid on its tip,” creating “an enormous population of urban consumers dependent on a tiny population of rural producers,” whereby the natural members of the community party, the small and local landholders, are “poorly paid for their work and not paid at all for their stewardship.”124 That pyramid’s inversion, and the means by which it might be righted, are discussed below.

B. KILLING THE COMMONWEALTH

Berry’s essay The Idea of a Local Economy125 provides a relatively straightforward explanation of how he understands the origins of the current “environmental crisis”126 and demise of the commonwealth. The crisis, he argues, has arisen “because the human household or economy is in conflict at almost every point with the household of nature.”127 This conflict stems from our “economic oversimplification” by which “most people in our country … have given proxies to the corporations to produce and provide all of their food, clothing, and shelter.”128 Our increasing tendency to delegate the provision of our most basic needs to others-whether corporations or governments-erodes the commonwealth that Berry considers so vital to a healthy and sustainable environment. Just as the commonwealth rests upon four interconnected pillars, so too does Berry seem to recognize four interrelated causes of its death: corporations, the free market, globalization, and industrialization.129 To Berry, any attempt to correct the environmental crisis without addressing the economic assumptions underlying our “thoughtlessly given proxies” and the globalization of a free market economy dictated by corporate industry is bound to fail.130

1. Corporations

The commonwealth, with its agrarian economy, faith, knowledge, and affection for place, has been undermined by a “sentimental capitalism”131 that sacrifices “everything small, local, private, personal, natural, good, and beautiful” to serve the interests of “the great corporations.”132 In Berry’s estimation, it is to the corporations that we “are rapidly giving proxies … to provide entertainment, education, child care, care of the sick and the elderly … that once were carried on informally and inexpensively by individuals or households or communities.”133 In so doing, argues Berry, we sanction an oligarchic form of economy134 that uses “a symbolic economy of money” to create the appearance of “unprecedented ‘prosperity’ and ‘economic growth'” in the midst of “degraded farms, forests, ecosystems, and watersheds, polluted air, failing families, and perishing communities.”135 Those farms, forests, ecosystems, and communities comprise the “real economy” that Berry would have us foster and grow. The foolishness of this substitution, he writes, is rooted in “the idea that a corporation should be regarded, legally, as ‘a person.'”136 The legal fiction of the “corporate person” results in a “limitless destructiveness … precisely because a corporation is not a person.”137 Explaining his opposition to the “corporate person,” Berry writes:

A corporation, essentially, is a pile of money to which a number of persons have sold their moral allegiance. As such, unlike a person, a corporation does not age. It does not arrive, as most persons finally do, at a realization of the shortness and smallness of human lives; it does not come to see the future as the lifetimes of the children and grandchildren of anybody in particular. It can experience no personal hope or remorse, no change of heart. It cannot humble itself. It goes about its business as if it were immortal, with the single purpose of becoming a bigger pile of money.138

Softening his rhetoric, if but a little, Berry cautions that he does not mean to suggest “that all corporate executives and stockholders are bad people,” only that “all of them are very seriously implicated in a bad economy,”139 namely the “global ‘free market’ economy” that Berry considers an “inherent[] … enemy to the natural world … .”140

2. Free Markets

Berry considers the economic practice of delegating the means of subsistence to large corporations and forfeiting self-sufficiency to be a kind of “moral and economic absurdity [that] exists for the sake of the allegedly ‘free’ market… .”141 He reduces the philosophical framework of the free market to a solitary principle: “commodities will be produced wherever they can be produced at the lowest cost, and consumed wherever they will bring the highest price.”142 Thus, he warns, free market capitalism seeks only “to make too cheap and sell too high.”143

Painting the allegedly free market with a broad brush, Berry rejects the notion that “[t]he ‘right’ of a corporation to exercise its economic power without restraint… [is] a form of freedom, a political liberty implied presumably by the right of individual citizens to own and use property.”144 Rather, he argues, “the ‘free market’ idea introduces into government a sanction of an inequality that is not implicit in any idea of democratic liberty: namely that the ‘free market’ is freest to those who have the most money, and is not free at all to those with little or no money.”145 As such, the free market exploits the small farmer, the laborer, and the land. According to Berry, making “too cheap” and selling “too high” has two requirements:

One is that you must have a lot of consumers with surplus money and unlimited wants …. The other requirement is that the market for labor and raw materials should remain depressed relative to the market for retail commodities. This means that the supply of workers should exceed demand, and that the land-using economy should be allowed or encouraged to overproduce.146

Of the first requirement, Berry notes only that it is a “problem, for the time being easily solved, [by keeping consumers] relatively affluent and dependent on purchased supplies.”147 But the second requirement (depressing the markets for labor and raw materials relative to retail commodities) tragically results in both human poverty and overproduction, whereby, Berry concludes, the free market is free for some and not free at all for others.148

Deflating the cost of labor first tempts corporations “to entice or force country people everywhere in the world to move into the cities”149-inevitably leading to the demise of the local farm community-and it then requires the perpetual introduction of “labor-replacing technology.”150 Taken together, Berry argues, it is then possible for the great corporations “to maintain a ‘pool’ of people who are in the threatful position of being mere consumers, landless and also poor, and who therefore are eager to go to work for low wages ….”151 Having achieved an oversupply of workers it is then easy “[t]o cause the land-using economies to overproduce”152 and thereby further reduce the cost of production. Berry views the exploitative sequence as follows:

The fanners and other workers in the world’s land-using economies, by and large, are not organized. They are” therefore unable to control production in order to secure just prices. Individual producers must go individually to the market and take for their produce simply whatever they are paid. They have no power to bargain or make demands. Increasingly, they must sell, not to neighbors or to neighboring towns and cities, but to large and remote corporations. There is no competition among the buyers (supposing there is more than one), who are organized, and are “free” to exploit the advantage of low prices. Low prices encourage overproduction as producers attempt to make up their losses “on volume,” and overproduction inevitably makes for low prices. The land-using economies thus spiral downward as the money economy of the exploiters spirals upward.153

At this point Berry observes that when “economic attrition in the land-using population becomes so severe as to threaten production, then governments can subsidize production without production controls,” thereby “encouragfing] overproduction, which will lower prices-and so the subsidy to rural producers becomes, in effect, a subsidy to the purchasing corporations” that rely on the “buy low, sell high” principle of the free market.154 The free market’s inherent exploitation simultaneously exacerbates and justifies the “global economy” that further undermines the stability of the local commonwealth and its people.155

3. Globalization

Recognizing that the “idea of a global ‘free market’ economy, despite its obvious moral flaws and its dangerous political weaknesses, is now the ruling orthodoxy of the age,”156 Berry condemns the idea as nothing more than “sentimentality … based in turn upon a fantasy.”157 He rejects the global free market’s underlying proposition “that the great corporations, in ‘freely’ competing with one another for raw materials, labor, and marketshare, will drive each other indefinitely, not only toward greater ‘efficiencies’ of manufacture, but also toward higher bids for raw materials and labor and lower prices to consumers.”158 Indeed, Berry opposes the “ideal of competition” in as much as it “always implies, and in fact requires, that any community must be divided into a class of winners and a class of losers.”159 Thus, he argues that instead of producing economic and social security, free market globalization threatens the commonwealth and stands poised as an inherent “enemy to the natural world, to human health and freedom, to industrial workers, and to farmers and others in the land-use economies … .”160

In Conservation and Local Economy, Berry describes this enemy threat and its resulting impact:

As people leave the community or, remaining in the place, drop out of the local economy, as the urban-industrial economy more and more usurps the local economy, as the scale and speed of work increase, care declines. As care declines, the natural supports of the human economy and community also decline, for whatever is used is used destructively.

….

… And now this great corporate enterprise, thoroughly uprooted and internationalized, is moving toward the exploitation of the whole world under the shibboleths of “globalization,” “free trade,” and “new world order.”… The aim is simply and unabashedly to bring every scrap of productive land and every worker on the planet under corporate control.161

This threatening aim of the global economy-an economy “which is the property of a few supranational corporations”162-has now been “institutionalized in the World Trade Organization, which was set up … to rule international trade on behalf of the ‘free market’-which is to say on behalf of the supranational corporations-and to overrule, in secret sessions, any national or regional law that conflicts with the ‘free market.'”163 However it may now be institutionalized, Berry resists the global economy as one “based upon cheap long-distance transportation” that serves as “the basis of the idea that regions and nations should abandon any measure of economic self-sufficiency in order to specialize in production for export of the few commodities or the single commodity that can be most cheaply produced.”164 Thus, Berry concludes that “[wjhatever may be said for the ‘efficiency’ of such a system, its result (and I assume, its purpose) is to destroy local production capacities, local diversity, and local economic independence.”165 In effect, the global free market assaults the local commonwealth and destroys its local economy and livelihood.

4. Industrialization & Technology

The industrial economy stands opposite Berry’s preferred agrarian economy, the economy of the commonwealth.166 As mentioned briefly above, Berry generally opposes industrialization and “labor-replacing” technologies.167 Whereas an agrarian economy is one of subsistence and relative independence from foreign influence, stable in its diversity, and involving “activities [that] bind people to their local landscape by close, complex interests and economic ties,” the industrial economy, according to Berry, “alienates people from the native landscape precisely by breaking these direct practical ties and introducing distant dependencies.”168 Industrialism demands “the separation of people and places and products from their histories”-the very antithesis of a commonwealth’s close connectedness.169 It is an economy “of the one-night stand,”170 creating a “scarcity of satisfaction” in order that new commodities and technologies promising, but never delivering, greater satisfaction can replace the older ones.171 Industrialism’s overly consumptive nature leads to Berry’s concern that overproduction, increased waste, and disregard for the local economy and environment imperil the health of the commonwealth.172

Industrialism’s infatuation with the production and consumption of commodities drives its search for more “efficient” modes of production, which is to say, “laborsaving” technology. For Berry, these technologies often, though not always, contribute to the degradation of the local commonwealth as they ultimately are not intended to “save” labor, “but to replace it, and displace the people who once supplied it.”173 Maintaining his defense of the localized commonwealth and its community of small farmers, shopkeepers, and workers, Berry worries that “labor saving” has been “defined for us by the corporations and the specialists, as if it involved no human considerations at all, as if the labor to be ‘saved’ were not human labor.”174 Having allowed such a definition, “[w]e never asked what should be done with the ‘saved’ labor; we let the ‘labor market’ take care of that. Nor did we ask the larger questions of what values we should place on people and their work and on the land.”175 Thus, in the industrialized economy, Berry contends, “[i]t appears that we abandoned ourselves unquestioningly to a course of technological evolution, which would value the development of machines far above the development of people.”176

Industrialism and the advance of “labor replacing” machines work against the localization of the commonwealth. Displacing the small shopkeeper, removing the rural farmer to the urban factory, and untying the laborer from the landscape of his local community combine with the pervasive but remote control of the corporations and the globalization of the competitive free market to devalue the commonwealth and destroy its agrarian economy, its intimate knowledge, and its affectionate care for the land. In his effort to save the commonwealth and its environment, Berry opposes these destructive forces and writes extensively of conserving the land, restoring and protecting the local economy, and returning to a proper understanding of stewardship.

III. SAVING THE COMMONWEALTH

“All right, ” thought the Devil. “We will have a tussle.

I’ll give you land enough; and by means of that land

I will get you into my power.”

-Leo Tolstoy, How Much Land Does a Man Need?177

Despite an underlying pessimism for the prospects of saving the commonwealth and the environment, Berry remains hopeful that “[o]ur destructiveness has not been, and it is not, inevitable.”178 He urges a change of cultural perspective, economic habits, and moral allegiance in order to find “our way into health.”179 Stemming from his conviction that “[h]umans don’t have to live by destroying the sources of then- life,” Berry believes “[a]ll of us … can be moved by love of our land to rise above the greed and contempt of our land’s exploiters.”180 In some respects, it should already be clear that much of how Berry sees this shift and the land’s salvation lies within his agrarian ideals of the commonwealth and its local knowledge and affection for place that serve as an antidote to the current globalized, corporate, industrial, and free market economy. But Berry recognizes that “we will have to do more than merely change our minds. We will have to implement a different kind of education and a different kind of economy.”181 In offering that “different economy” as an alternative to the industrialized society and the competition of the free market, however, Berry’s agrarian approach also prescribes a cure for the dying commonwealth with profound implications for America’s long-held notions of private property rights, economies-of-scale, and the current trend toward free trade and surplus production. This section explores Berry’s prescriptions for saving the commonwealth: first, through a re-working of our traditional and legal understandings of private property, and second, through his protectionist policies intended to guard the local economy against the encroachments of corporations and international markets.

A. PRIVATE PROPERTY & THE RULES OF LAND USE

With the small acreage “good farm” providing the “model of good land use,”182 Berry’s agrarianism depends upon “a way of thought based on land” and an economy that requires the land to be “divided among many owners and users.”183 He hales the “small [landholder who maintains a significant measure of economic self-determination on a small acreage” as the “central figure” of the agrarian scheme and the viable alternative to industrialization.184 Berry is skeptical that our current property rights doctrine can adequately care for the land,185 a doctrine that views land in purely economic terms and allows property owners to “destroy” and divide land essentially as they please. To Berry, “A man who would value a piece of land strictly according to its economic worth is precisely as crazy, or as evil, as the man who would make a whore of his wife.”186 Thus, he proposes what he considers to be “the rules of land use.”187

Berry’s rules of land use include limiting private property rights, justifying them only insofar as the property is “democratically divided and properly scaled,” with “the family secur[e] in these properties … over several generations,”188 and only so long as the right does not include the “right to destroy property”189 or to “diminish our rightful interest in it.”190 Given the private landholder’s role in preserving the commonwealth, these conditions in Berry’s property rights theory are worth considering.

Taking Berry’s three conditions in order, his essays on the “good farm” and his descriptions of the small, diverse homestead capable of providing basic economic subsistence paint a fairly clear picture of land he finds “properly scaled.” His writings juxtapose the properly scaled private land-holding to the large, disproportioned holdings of corporate owners. In fact, ‘To speak sensibly of property and of the rights and uses of property,” he claims, “we must always observe this fundamental distinction between corporate property and property that is truly private,” the latter being plainly defined as “property of modest or appropriate size owned by an individual.”191 Unfortunately, Berry does little to explain what he means by “democratically divided” land, and he provides even less guidance on how the land should come to be so divided or scaled. His opposition to corporate ownership suggests that Berry might bar corporations from holding land or at least from holding more than a “modest” amount; but whether he would use the law to restrict ownership or to set certain limits on acreage and usage remains unclear. Despite his encouragement to use “every possible way” to “foster… the sort of thrifty, prosperous, permanent rural households and communities that have the desire, the skills, and the means to care properly for the land,”192 Berry offers scant advice for implementing his “different kind” of land-based economy.

Convinced, however, that “a number of terms and limits set not by anyone’s preference but by nature and by human nature”193 govern mankind’s relation to the land, Berry argues for the “rules of land use” mentioned above. He counts among these seven natural laws the principle of limited property ownership, arguing that because “there is a limit to how much land can be owned before an owner is unable to take proper care of it,” it is an “indispensable qualification” of land ownership that such ownership “must be appropriately limited.”194

Replete with “obvious and severe” penalties for their disregard, Berry sees a failure to abide by the natural rules of land use leading ultimately to human and environmental ruin;195 and he suggests that private ownership, with its dangers and conditional limitations, remains a superior mechanism for stewardship than public ownership.

If in order to protect our forest land we designate it a commons or commonwealth separate from private ownership, then who will care for it? The absentee timber companies who see no reason to care about local consequences? The same government agencies and agents who are failing at present to take good care of our public forests? … The answer is obvious: you cannot get good care in the use of the land by demanding it from public officials. That you have the legal right to demand it does not at all improve the case. If one out of every two of us should become a public official, we would be no nearer to good land stewardship than we are now. The idea that a displaced people might take appropriate care of places is merely absurd; there is no sense in it and no hope…. No mere law, divine or human, could conceivably be enough to protect the land while we are using it…. If we want the land to be cared for, then we must have people living on and from the land who are able and willing to care for it.196

Thus, private and local landholders, not public servants or governmental bureaucrats, engender the kind of care and respect for the land that Berry desires. Indeed, public ownership, with its inevitably remote oversight and disproportionately large holdings, would seem to manifest the same objectionable characteristics as corporate ownership. Therefore, well aware of the “dangers to the common wealth and health inherent in private property rights,” Berry nevertheless has “too little faith in the long-term efficacy of public stewardship.”197 He finds it difficult “to imagine the conditions under which highly competent and responsible public stewardship of land that is in use might be maintained for many generations and through the inevitable changes of politics and economics.”198

This concern for the commonwealth and the productive use of the land over “many generations” informs Berry’s second condition upon private property, namely, that property may be privately held so long as families remain secure in their properties for several generations.199 As with his concern for limited appropriation, Berry’s second principle for private ownership lies within the seven rules of land use and depends upon Berry’s supposition that for land to be used properly people “must feel that the land belongs to them, that they belong to it,” and that this “mutuality of belonging” is “unthreatened.”200 From this it follows that people must “reasonably expect to live on it as long as they live,” and, furthermore, that their heirs will likewise “live on it as long as they live.”201 Thus, he concludes “that any public program to preserve land or produce food is hopeless if it does not tend to right the balance between numbers of people and acres of land, and to encourage long-term, stable connections between families and small farms.”202 Such an effort, he concedes, has never succeeded in this country, and Berry laments the relative rarity of America’s second and third generation farms.203 It is “our crying need,” he writes, “for an agriculture in which the typical farm would farmed by the third generation of the same family.”204 Those farms would provide that prescribed sense of “mutual belonging” as families would pass on and inherit land to and from loved ones, instilling a deeper respect for and continuity with the land and its ecosystem.

Unable to “say exactly what kind of agriculture that would be,” however, Berry speculates that an agriculture abiding by this principle would enhance “certain good possibilities.”205 Considering six of those possibilities, he finds the most significant to be the “lengthening of memory” that would reduce the land’s “cost of a trial-and-error education for every new owner.”206 Berry suggests that within such agriculture, “the land would not be overworked to pay for itself at full value with every new owner”; that land owners would “take good care of the land, not for the sake of… ‘the future’ or ‘posterity,’ but out of particular love for living children and grandchildren”; that barns and fences and “human establishments]” would be well-built and more permanent, thereby reducing waste and reconstruction costs; that families would develop the “concept of enough,” and responsibly determine how much land, livestock, power, and produce are enough for a given farm and community; and, finally, such agriculture would foster a local culture that “would begin in work and love.”207 Although, as Berry asks rhetorically, “Who could say what that would be?”208

As with his proposal to limit land holdings to a modest and proper scale, Berry fails to articulate how he would ensure that there are people living on and from the land who are able and willing to care for it, or what legal policies regarding the transfer of property or estate taxes he would implement in order to make generations of families more secure in their properties. To be sure, creating or altering the legal constructs to enhance that generational security would seem rife with intricate complications and involve any number of laws relating to contracts, taxes, property, wills, trusts, and estates. section IV will briefly discuss several implications of implementing these first two elements of Berry’s limited property rights scheme.209

What remains, however, is Berry’s admonition that the private property right should not and-in his opinion-does not include the right to “destroy” property,210 nor to “impair or diminish our interest in it.”211 For Berry, the idea of the commonwealth acknowledges “that we all have a common interest in the land, an interest that precedes our interest in private property.”212 As evidence he argues that “[i]f we have the ‘right to life,’ as we have always supposed, then that right must stand upon the further right to air, water, food, clothing, and shelter.”213 From this, Berry writes, “[i]t follows that every person exercising the right to hold private property has an obligation to secure to the rest of us the right to live from that property”214-a deduction reminiscent of Jacques Rousseau’s understanding that “[i]n whatever manner the acquisition is made, the right which each individual has over his own property is always subordinate to the right which the community has over all; without which there would be no solidity in the social bond, nor any real force in the exercise of sovereignty.”215 Thus, each landholder-whether public or private-must only use the land “in such a way as to not impair our rightful interest in it.”216 That rightful interest of us all to live from the land, even land owned and used by others, means, as Berry correctly recognizes, that “[t]he present owners … only have the land in trust, both for all the living who are dependent on it now, and for the unborn who will be dependent on it in time to come.”217 According to Berry, this view represents the first of the “only two philosophies of land use” of which he is aware, namely, “that the earth is the Lord’s … [and] it belongs to those yet to be born as well as to those now living,”218 with the other, of course, being the philosophy of exploitation.219 From this perspective, the standards by which we determine if the land is “destroyed,” or our collective interest “impaired,” is fertility and the land’s continued ability to produce for both the present and the future.220

Exactly what the land must be able to produce Berry seems reluctant to say, but it is reasonable to suppose that Berry means that the land must be able to produce and reproduce whatever is “appropriate” to it.221 He contrasts the fertile, healthy land of the “good farm” with the “desolation” and “industrial vandalism” of the strip mine as an example of the kind of activity that private property rights should not protect.222 Of the Kentucky strip mines, he writes:

The damage has no human scale. It is a geologic upheaval. In some Kentucky counties, for mile after mile after mile, the land has been literally hacked to pieces. Whole mountain tops have been torn off and cast into the valleys. And the ruin of human life and possibility is commensurate with the ruin of the land. It is a scene from the Book of Revelation. It is a domestic Vietnam.223

Berry attributes this sort of land destruction to the second philosophy of land use, “that of exploitation, which holds that the interest of the present owner is the only interest to be considered.”224 Whereas “fertility” measures the success and failure of the first philosophy, “[t]he standard, according to this [second] view, is profit, and it is assumed that whatever is profitable is good.”225 Moreover, such ruin is all that can be expected of such a philosophy and those who hold it: “Their limits are technological, not moral. They have made it plain that they will stop at nothing to secure the profit, which is their only motive.”226

Given that his first two property rights limitations fail to account for any corresponding change in the law to achieve their respective goals, it is worth noting that, in this third context, Berry did propose a legal, albeit limited, remedy for preventing the abusive “destruction” of strip mining, namely, abolishing Kentucky’s “broad form deed.” As he wrote of “the most fanatical believers in the rule of profit”:

The gospel of the strip miners is the “broad form deed,” under which vast acreages of coal rights were bought up for as little as twenty-five and fifty cents an acre before modern strip-mine technology ever had been conceived. The broad form deed holds that the coal may be taken out “in any and every manner that may be deemed necessary or convenient for mining….” Again [the Kentucky lawmakers] have the opportunity to put a stop to this awful destruction [by the strip mines], and to assure to the state the benefits of its own wealth, and to give to the people of the coal fields the same protections of the law that are enjoyed by people everywhere else. If the men in power will do these things that are so clearly right and just, they will earn the gratitude of the living and of the unborn. If they will not do them, they be infamous, and will be unworthy of the respect of any honest citizen.227

Thus, it seems that Berry stands prepared to use the available regulatory and legal tools to limit land use and keep private property owners from destroying it. Precisely what those limitations might look like remains, of course, undefined, but Berry’s repudiation of the strip mine should help us gauge land-destructive, and therefore “unlawful,” land use.

B. PROTECTING THE LOCAL ECONOMY

Wendell Berry is a protectionist. He embraces the moniker,228 resisting the “ruling orthodoxy” of the global free market economy,229 which threatens the commonwealth community, and he proposes instead the idea of the local economy resting upon the principles of “neighborhood and subsistence.”230 To him, a sustainable community and a sustainable local economy are one and the same, so that that which preserves the one, preserves the other.231 If, as we have seen, the forces of globalization endanger the commonwealth economy and its community, then protective measures to guard that economy are justified. Berry looks to two primary sources to provide that protection: the government and the local community itself.

First, Berry acknowledges the common understanding “that governments are instituted to provide certain protections that citizens individually cannot provide for themselves,” and that although those governments “have used their regulatory powers reluctantly and often poorly,” they have, nevertheless, “occasionally recognized the need of land and people to be protected against economic violence.”232 Such regulatory actions are necessary, writes Berry,

[b]ecause as individuals or even as communities we cannot protect ourselves against these aggressions, [and] we need our state and national governments to protect us. As the poor deserve as much justice from our courts as the rich, so the small farmer and the small merchant deserve the same economic justice, the same freedom in the market, as big farmers and chain stores. They should not suffer ruin merely because their rich competitors can afford (for a while) to undersell them.233

Beyond this, Berry contends that the government’s obligation to protect the economic resources of the small fanners and merchants “is the same as the obligation to protect us from hunger or from foreign invaders” such that he makes no distinction “between a domestic threat to the sources of our life and a foreign one.”234

Berry seems content to allow the government to use its traditional arsenal of protectionist weapons to mount its defense of the local economy. Specifically, he approves of governmental restrictions on “great concentrations of wealth and power in industrial corporations” through “laws against trusts and monopolies, the principle of collective bargaining … one-hundred-percent parity between the land-using and the manufacturing economies, and the progressive income tax.”235 He believes in protecting domestic producers and production capacities through “tariffs on cheap imported goods … justified by the government’s obligation to protect the lives, livelihoods, and freedoms of its citizens.”236 However, he warns, all of these weapons are now “either weakened or in disuse,” having been subverted by the global economy,237 and are therefore unlikely to prevail without additional, less conventional support.

Although Berry seemingly justifies his call for governmental protection at least in part on his concern that “as individuals or even as communities we cannot protect ourselves against… [the] aggressions” of the free market economy, he also recognizes that government alone, even if it chooses to act, will provide an insufficient defense.238 Thus, “[i]n default of government protections against the total economy of the supranational corporations .. . [the] powers not exercised by government return to the people… [and] the people must think about protecting themselves.”239 Moreover, as Berry explains, the agrarian vision finds “[a] viable community … made up of neighbors who cherish and protect what they have in common. This is the principle of subsistence. A viable community, like a viable farm, protects its own production capacities.”240 Therefore, in addition to the protective powers of tariffs, progressive taxation, and collective bargaining, Berry urges the local commonwealths to build “an adversary economy, a system of local or community economies within, and to protect against, the would-be global economy.”241 Significantly then, Berry proclaims that “agrarian principles implicitly propose-and what I explicitly propose in advocating those principles at this time-is a revolt of local small producers and local consumers against the global industrialism of the corporations.”242

To build that “adversary economy,” and for the “revolt of local small producers” to succeed, Berry recognizes that “[t]he real improvements then must come, to a considerable extent, from the local communities themselves.”243 Therefore, he calls for a “local revision of our methods of land use and production,” whereby

[w]e need to study and work together to reduce scale, reduce overhead, reduce industrial dependencies; we need to market and process local products locally; we need to bring local economies into harmony with local ecosystems so that we can live and work with pleasure in the same places indefinitely; we need to substitute ourselves, our neighborhoods, our local resources, for expensive imported goods and services; we need to increase cooperation among all local economic entities: households, farms, factories, banks, consumers, and suppliers.244

All of this, argues Berry, will help reduce “the burdens of government… by returning economic self-determination to the people.”245 Of course, he cautions, the community must avoid “inviting destructive industries to provide ‘jobs’ in the community,”246 and everything possible must be done “to provide to ordinary citizens the opportunity to own a small, usable share of the country,” in order to “put local capital to work locally, not to exploit and destroy the land but to use it well.”247

This is not to say that Berry naively believes that “everything needed locally can[] be produced locally,”248 and he protests that his “kind of protection is not ‘isolationism.'”249 Rather, he insists that a viable community “does not import products that it can produce for itself,” nor does it “export local products until local needs have been met.”250 Thus, Berry argues that his “protectionism is just and sound, because it protects local producers and is the best assurance of adequate supplies to local consumers.”251 Applying his protectionist principles “not just to localities, but to regions and nations as well,”252 Berry observes that a sustainable community “cannot think of producing solely for export, and it cannot permit importers to use cheaper labor and goods from other places to destroy the local capacity to produce goods that are needed locally.”253 Furthermore, he writes, “it must refuse to import goods that are produced at the cost of human or ecological degradation elsewhere.”254

Berry’s protectionism is designed to preserve the commonwealth, to foster and nurture what has become a remnant in American culture. His proposals include a traditional set of tariffs and land use regulations, as well as a bolder call for local communities to establish alternative economies removed at least in part from the broader, national and global market economies. To follow, section IV examines several of Berry’s proposals and critiques a few of their tensions and deficiencies.

IV. CRTTIQUING WENDELL BERRY’S VISION

There is no such thing as “the man in the street.”

There are only individual men and women each of whom has

an individual and immortal soul, and such beings need

to use streets from time to time.

-Evelyn Waugh255

Wendell Berry is more philosopher than lawyer, more moralist than economist, and more farmer than environmental statistician. Thus, although a critique of Berry’s vision could proceed along several lines, including, for instance, his theory’s implications for the law of trusts and estates, the actuarial costs and benefits of free trade and tariffs, or an empirical study of today’s agri-business and the most current environmental data that may or may not support Berry’s suppositions, those lines of questioning are likely to ask more of Berry’s writing than it is prepared to answer. Instead, this section briefly highlights several difficulties with Berry’s legal and economic proposals for saving the commonwealth-chosen for their relative prominence in his essays and their implications for the law-and points out a number of ironies within those proposals that seem potentially inconsistent with his environmental and commonwealth message. As such, the following critical approach merely places Berry’s perspective in a more philosophical and common law framework, countering his vision with those of other thinkers and theorists and questioning the supposed viability of the commonwealth under the plan he prescribes.

A. THE PROBLEM OF PROPERTY LAW: COMMONWEALTH OR COMMON LAW

There is a radical element within Berry’s understanding of the commonwealth and the steps he proposes taking in order to deliver it from ruin.256 Not being a student of the law, Berry may not realize the full nature or implications of his proposals, but their extremity sits in tension with the cornerstones of his commonwealth ideal: economy, local knowledge, and affection for community and place.257 In support of these cornerstones, Berry’s essays advocate conservation in its deepest sense: they endorse stability and security among people and communities, a steeping in tradition, and a respect for history; they sanction adherence to time-tested principles; and they speak of natural laws that bind humanity to itself, to nature, and to God.258 But his suggested modifications to America’s long-held traditional and historical understandings of property rights and the law that governs them would likely have an opposite and destabilizing effect on our communities and our land.

Even if implemented gradually, as Berry prefers,259 redefining property laws to require “democratically divided” small acreages that would be held effectively in trust for the living and unborn, without the right to “destroy,” represents a monumental break from our common law principles of private property.260 Furthermore, to abolish or significantly limit, however slowly, the rights of corporate land ownership would uncouple American law from a legal tradition dating to eighteenth-century England.261 Of course, incremental changes in the law are to be expected, even welcomed. If taken, the smaller steps to foster multigenerational land ownership, while they may prove initially unsettling in the areas of wills and estates, taxation, and perhaps contracts, would likely be assimilated into the legal landscape. But attempts to limit the alienability of that land, or to restrict the rights of appropriation to an indeterminate “properly scaled” holding, would just as likely prove economically devastating to citizens and communities alike.

Eric Freyfogle explains that historic and current property law recognizes that

legal and social restrictions on land use do exist. But such restrictions are mere exceptions to the presumed independence of the law-endorsed one who commands; the rule we fall back on, the rule that provides the core, is that the owner can, for the most part, do as she likes.262

Thus, the law suggests that “[a]n owner… has the right to use, manage, alter, transfer, or destroy as she sees fit-so long as she respects the similar rights of other owners-and these are all rights held against the rest of the world.”263 Indeed, William Blackstone famously defined the right of property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”264 Early American legal theorists accepted and largely adopted Blackstone’s definition as well. Echoing Blackstone’s recognition of a citizen’s dominion over his property, John Adams reminded his colleagues that

[a]n Englishmans [sic] dwelling House is his Castle. The Law has erected a Fortification round it-and as every Man is Party to the Law, i.e. the Law is a Covenant of every Member of society with every other Member, therefore every Member of Society has entered into a solemn Covenant with every other that he shall enjoy in his own dwelling House as compleat [sic] a security, safety and Peace and Tranquility as if it was surrounded with Walls of Brass, with Ramparts and Palisadoes and defended with a Garrison and Artillery.265

Thus, for Berry to extend “legal and social restrictions” to hinder a landholder’s right to transfer and remove the right to destroy would fundamentally alter private property rights as they have long been understood.266

To be sure, Berry’s proposed restrictions on alienability, acquisition, and land use could have his desired effect of tying people to the land and reducing transience, but they would not reasonably guarantee any increased affection or care for the land. There is no reason to believe that a landholder who continues to hold title to land that she does not want only because the law has limited its transferability or so restricted its use that it cannot be sold will care for that land properly. Legal coercion is a poor substitute for affection. Indeed, there is some reason to suppose that an unwilling but legally bound landowner will take the least costly approach and ultimately neglect the land rather than tend to it. Moreover, such policies insofar as they affect the marketability of the land are likely to lower, not raise, its market value, having the residual effect of reducing that landholder’s full participation in the local economy. Of course, Berry values land beyond its monetary market price, finding value where he believes the market currently does not;267 but other landholders may not recognize that value, and may in fact be quite literally “banking” on the economic profitability and marketability of their land. To those people, Berry’s new restrictions could be devastating.

All of this potential for upheaval stands in stark contrast to Berry’s call for stable, well-rooted communities that adhere to land and tradition out of a free affection.268 It is unclear whether Berry has considered those potentialities, or finds them too remote, or whether he believes the benefits of his proposals vastly outweigh them, but the legal and economic implications of his suggestions are too profound to overlook.

B. THE PROBLEM OF PROGNOSTICATION: THE IDIOT & THE SAOE

A tension lies within Berry’s trust and respect for the “local knowledge” of the landholder-by which he means “intimacy” or experiential knowledge-and his distrust for that same landholder’s ability to make an “informed decision,” or even to possess the best and most accurate knowledge for governing his own affairs.269 On the one hand, Berry seems to preach that local knowledge knows best, and that individuals, not remote bureaucracies or corporations, are best equipped to know the intricacies and details of a given problem and, therefore, that they are best equipped to find a solution. As such, perhaps Berry would agree with F.A. Hayek’s understanding of “the basic fact that it is impossible for any man to survey more than a limited field, to be aware of the urgency of more than a limited number of needs.”270 Thus, writes Hayek, “the ends about which he can be concerned will always be only an infinitesimal fraction of the needs of all men”271 But for Berry; that same limited, experiential, local knowledge that would seem to allow individuals to make their own well-informed decisions is insufficient to permit a free exchange of commodities or an unencumbered use of privately held land. That men are not angels, as James Madison observed, and therefore require the force of law is not disputed;272 but Berry’s call for land use restrictions and his protectionist schemes aimed at preserving the commonwealth economy manifest a profound distrust for individual decisionmaking.

First, the idea that society, through law or commonwealth, must “democratically divide” property into small parcels and thereby limit the amount of land that one landholder may own strongly suggests that individuals are incapable of determining for themselves how and how much to purchase and maintain.273 That the individual owner might have the best knowledge of his own capacities or that he might have interests in and designs for the land that differ from Berry’s seem not to count for much. It seems more important, in Berry’s vision, that the commonwealth prevent individuals from acquiring what he considers too much land than that those individuals have the freedom to do so. Likewise, Berry’s attempts to limit land use and deny private owners the right to “destroy” the land with strip mines or clear-cutting, for instance, implicitly suggest that someone or something other than the property-holder knows which uses are to be preferred and which are unacceptable. Furthermore, Berry’s idea that the living hold the land in trust for the unborn,274 and that therefore future generations curtail the rights of the living, removes the decisionmaking power from the landholder and places it with someone more equipped to guard the rights of future landholders, namely, the State or, if Berry prefers, the commonwealth. Were individual landholders trusted to make decisions not only for themselves, but also in the interests of their heirs, the sort of legally imposed restriction that Berry proposes would be unnecessary to preserve those future rights and interests. Instead, Berry distrusts the landowner (whose interest in the land has already vested) to govern his land with an eye toward both the present and the future and would rather that the law dictate his present decisionmaking in order that he not harm the future.

Second, Berry’s protectionism belies a similar mistrust for the individual to engage the marketplace freely. The local economy must be protected from the “moral and economic absurdity” of capitalism’s free market, because without government protection or an “alternative economy,” the people would attempt to “buy too low” and “sell too high.”275 Without laws impeding competition, the people will be hopelessly divided, neighbor against neighbor, “into a class of winners and a class of losers,” because “every transaction is meant to involve a winner and a loser.”276 Without the proper tariffs, the “folly” of the “foolish” global economy will persist. Without artificial mechanisms designed to keep imported goods out of the commonwealth in order to protect local producers, Berry implicitly fears, individuals would buy those imported products at a price too low for their own good. His proposals presume that free market consumers who purchase imported and less expensive products at a price they are willing to pay will not realize that they invariably injure their own neighbor, endanger their commonwealth, and, in turn, undermine their own economic security.277

To cure such ignorance, Berry proposes that communities “strive to increase earnings … within the community and decrease expenditures outside the community”278 and then “make sure that money paid into the local economy circulates within the community for as long as possible before it is paid out.”279 This way, the commonwealth protects local producers against consumer whim, ignorance, and indifference-those same consumers that Berry condemns for not knowing the difference between the necessity of heat in the winter and the opulence of summer air conditioning.280 Whether Berry would pursue these proposals with the force of law is unclear, but that individuals should be asked to “buy locally” suggests that the interests of the local producer are in some ways more valued than the autonomous decisionmaking of the consumer who might prefer the imported goods and their lower prices over those made at home. Indeed, it is virtually impossible to foresee the preferences of a consumer market, leading Frederick Engels to observe,

No one knows how much of his particular article is coming on the market, nor how much of it will be wanted. No one knows whether his individual product will meet an actual demand, whether he will be able to make good his costs of production or even to sell his commodity at all.281

Thus, it would seem that the wise, custodial guardians of the local commonwealth’s interests are those privileged with the foresight to recognize the inherent insecurity of the open market,282 and those who therefore raise tariffs, artificially limit holdings, production, and consumption, and otherwise protect against what Berry calls “economic anarchy.”283

But this protectionist view of the market that Berry seems to hold fails to recognize what James Madison understood as the “diversity in the faculties of men.”284 It is from these diverse faculties, Madison believed, that “the rights of property originate.”285 For him,

The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.286

Instead of protecting the diversity of individual faculties, Berry would have the law protect against the resulting inequalities, through tariff and restrictive covenants, in order to limit the “different degrees and kinds of property” among the people. The effect is for the law or the commonwealth to choose between the “different interests and parties,” rewarding some, penalizing others, for attempting to acquire and preserve property in accordance with what Madison regards as their natural faculties, sentiments, and views.

Within Berry’s vision of the commonwealth, this presents a paradox. For the commonwealth to make such a choice it must deny that the knowledge that knows best is the local, intimate, experiential knowledge of the individual in his land and possessions, and to supercede it with the lesser knowledge of the community, the planner, or the legislator. By comparison, all are more remote in their understanding and knowledge of the needs, wants, sentiments, and affections of the individual than is the individual himself. Whereas Madison finds the “first object” of government to be in securing the individual’s pursuit of those sentiments according to faculty, Berry would first have the commonwealth measure and assess, by some undefined standard, the validity of those sentiments before acknowledging them at law.

C. THE PROBLEM OF PROTECTIONISM: PRIVILEGE & PRICE

In his critique of the American “conservation effort,” Berry argues that “conservationists have too often believed that we could protect the land without protecting people.”287 He finds their assumption understandable given the threats to the United States’ wilderness areas, but concludes that instead “we will have to reckon with the old assumption that we can preserve the natural world by protecting wilderness areas while we neglect and destroy the economic landscapes-the farms and ranches and working forests-and the people who use them.”288 Thus, Berry urges his fellow conservationists “to address issues of economy,” by which he means “issues of the health of the landscapes and the towns and cities where we do our work, and the quality of that work, and the well-being of the people who do that work.”289 From this underlying premise, Berry believes it follows that “[b]ecause as individuals or even as communities we cannot protect ourselves against these aggressions [of the free market and low consumer prices], we need our state and national governments to protect us.”290 As discussed above, Berry’s idea of governmental protections aims at providing “the small farmer and the small merchant [with] the same economic justice, the same freedom in the market, as big farmers and chain stores.”291

The legal and economic protections Berry proposes have a distinguished history,292 and he recognizes that governments have long tried to redistribute wealth and property more equitably and have stymied free trade with tariffs and taxes in the name of protecting the people from the economic injustices of a competitive market.293 Berry endorses using the force of law to assuage these injustices as part of the basic governmental obligation to defend “the people” or, in this context, the local commonwealth. However, Berry’s generalized proposals to abolish corporate holdings in land, thwart global free trade, impose tariffs, and establish “alternative economies” to combat the “supranational corporations,” fail to recognize two countervailing arguments of law and economics: first, that the new laws tend to benefit those already in the marketplace, and second, that raising consumer prices adversely and disproportionately affects the poorer classes more than the rich.294

In looking to the law and social contract as the equalizing force that, “instead of destroying the natural equality of mankind … substitutes, on the contrary, a moral and legal equality for that physical inequality which nature placed among men,” Jacques Rousseau nevertheless noted that “laws are always useful to those who have abundance, and injurious to those who have nothing … .”29S Despite its egalitarian virtues and, perhaps, even the good intentions of those who would wield it, the law, when used to “level the economic playing field” with regulations and tariffs, nevertheless has the great potential to favor and strengthen the “haves” against the “have-nots.” In his distaste for the “total economy” and unbridled competition for goods and services,296 Berry never accounts for the possibility that legal impediments to the marketplace insulate the very “supranational” corporations that he opposes. By making entry into the market more difficult-whether with tariff or regulation-the law protects those already up and running in the market from those who would otherwise wish to join.297 Thus, those who have abundance, namely, the already established businesses, are shielded from those who have nothing, such as the fledgling entrepreneur who would otherwise enter the marketplace were it not for the additional constraints aimed, however altruistically, at protecting that market from new competition. Ironically, Berry’s protectionism has the added potential to reward the shoddy workmanship and low-quality products that he finds so regrettable.298 By limiting entry into a given market, producers currently in that market are free to lower standards of quality and efficiency because there are fewer alternatives to their products and consumer choice is limited, thereby again favoring, as Rousseau warned, those who have over those who would have.

Just as Berry’s protectionism risks harming the commonwealth’s newest industries by privileging the established over the upstart, his proposals targeting low prices and “our so-called cheap food policy”299 similarly risk disproportionate harm to the commonwealth’s poorer members. This is because food and disposable household products comprise a greater percentage of a lower-income family’s monthly household budget than they do for a wealthier family. Assume, as an oversimplified example, that the Smith family of four with an annual income of US$30,000, spends US$10,000 per annum on food and household items; it has spent one-third of its gross income on those products. Assume that a second family of four, the Jones family, with an annual income of US$300,000, enjoys a fifty percent increase in its food and household product allowance over the Smiths, spending US$15,000 per year for additional and higher premium goods and foods. While the Joneses may spend more than the Smiths’ US$10,000, they are unlikely to spend the ten times more, or US$100,000, that it would take for their food budget to equal one-third of their household income. Thus, any protectionist policy that would artificially raise prices on food and household items in order to support producers or local businesses such that the Smiths would pay, for instance, $12,000 and the Joneses $17,000, would have a disproportionately adverse effect on the Smiths. The $2,000 increase represents six percent of the Smiths’ gross income, and it would leave them with only sixty percent of their annual earnings to meet other needs; whereas that same increase represents less than one percent of the Jones’s earnings and therefore affects their remaining budget to a far lesser degree-making it even harder for the Smiths to keep up with the Joneses. Admittedly, this is a crude, unscientific example of the regressive nature of protectionist pricing, but it illustrates the problem that opposition to low prices on goods and services poses for lower-income families. Thus, Berry’s antagonism toward “our so-called cheap-food policy” suffers from the very real possibility that it will hinder the active participation of the commonwealth’s lower class in the economy, while doing little to “level” the economic playing field.300

Berry’s proposed barriers to free trade present significant hurdles for the lower economic echelons in the commonwealth. Designed to combat the free market’s so-called system of winners and losers, to protect local producers from the vagaries and hostilities of that market, and to provide both large and small merchants with the “same economic justice,” Berry’s proposals may have an opposite and tragic effect. His prophylactic measures to insulate the commonwealth from the larger economic structures may in fact prove most harmful to those he most intends to help.

D. THE PROBLEM OF “PERSONS”: THE CORPORATE BODY & SOUL

Finally, substantial academic and cultural debate persists over the legal and economic justifications for affording corporations the legally fictional status of the “corporate person.” Much of that debate lies well beyond the scope of this article, but Berry’s opposition to large corporations and the “folly” of their “personhood” so permeates his writing that it is worth briefly highlighting two conceptual difficulties with Berry’s underlying objection.301

The root of Berry’s concern with the destructive effect of the “corporate person” on the commonwealth lies in his recognition that “a corporation is not a person.”302 Indeed, he considers it “an abuse of a metaphor if ever there was one!”303 But in treating corporations as so-called persons, Berry protests that society “allow[s] to them the same liberation from community obligations that we allow to individuals,”304 and in conferring upon them the “rights” of individuals, we give corporations the same license to “exercise… economic power without restraint” and to share in “a political liberty implied presumably by the right of the individual citizens to own and use property.”305 The problem, he writes, is that “unlike a person, a corporation does not age…. It can experience no personal hope or remorse, no change of heart. It cannot humble itself.”306 Recall that to Berry, then, “A corporation, essentially, is a pile of money to which a number of persons have sold their moral allegiance.”307 In sum, the corporation lacks heart and soul and it lacks humanness. Without entertaining a labyrinthine discussion of corporate governance, there are two points to make about Berry’s characterization of the corporate person.

First, it would seem that his foundational objection to the soulless corporation could apply broadly to any number of bodies, institutions, and systems that do not age or feel remorse or come to realize “the shortness and smallness of human lives.”308 To the extent that Berry’s description is true, it is also not peculiar to businesses; after all, we can sell our moral allegiances to any number of soulless, non-human bodies, including churches, schools, and governments-perhaps even commonwealths.

Second, that we legally treat the corporation as if it were a person-the crux of Berry’s criticism-might be metaphorically and legally unique, even problematic, but the historical justifications for our doing so suggest that in fact Berry’s portrait of the heartless corporation may be poorly drawn and his complaint misplaced. A practice first ascribed to the Romans,309 and subsequently understood at English common law as publicly necessary and advantageous, the law assigned and recognized personal rights in corporate bodies precisely because those bodies were comprised of persons.310 As Blackstone explains:

But as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.311

Blackstone, of course, confirms Berry’s depiction of the unaging, immortal corporation, and he immediately recognizes it as a legal artifice. But Blackstone’s understanding of the aim and purpose of the corporation, not to mention the humanity of its several members, cuts against Berry’s charge that the corporation is nothing more than “a pile of money,” unable to demonstrate remorse or humility. Although, as Blackstone explains, the corporate person is artificial, it is created “in order to preserve entire and forever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct.”312 That the corporation must be composed of individuals suggests unequivocally that corporate bodies are, at their core, personal bodies, comprised not of soulless, unfeeling automatons, but of men and women having assembled to “perform … exercises together, so long as they could agree to do so.”313 In fact, it is for exactly this reason, the human nature indelibly pressed upon the corporate body, that corporations, like governments, require systems of checks and balances-to curb the inherent human passion and its appetite.

Berry’s objection to corporations and free markets as soulless, limitless systems might also be raised against governments-a comparison he would seem likely to make. But, to make the point by analogy, this is not a view shared, for instance, by James Madison. If governments (or corporations) were somehow purely entities unto themselves, free of human control, free of soul and passion, of remorse, sympathy, compassion, and heart, as Berry’s critique implies, then they also would lie equally beyond motives, interests, ambitions, guile, reproach, and, ultimately, blame.314 Yet this is not the instruction of Federalist 51. It is precisely because governments, like corporations, are comprised of human thinkers, actors, parties, and factions that they require control and “auxiliary precautions.” As Madison wrote in defense of the republican form of constitutional government:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.315

This is the support for constructing a constitutional government of limited powers and checks and balances that would otherwise be superfluous if that which held the power did so without human passion. If corporations were merely an amalgam of systems or numbers or a pile of dollars and cents, Berry’s fears of abuse-by-corporation would be entirely unfounded, or at least without remedy, for there would be no human motive or error or person from which to demand justice or to seek recompense.

That corporations are governed by human passion is borne out in Berry’s own scathing description of the Kentucky coal companies.

It is safe, I think, to say that not many coal-company executives and stockholders are living on the slopes beneath the spoil banks of their mines; not many of them have had their timber uprooted and their farms buried by avalanches of overburden; not many of them have had their water supply polluted by mine acid, or had their houses torn from the foundations by man-made landslides; not many of them see from their doorsteps the death of the land of their forefathers and the wreckage of their own birthright; not many of them see in the faces of their wives and children the want and grief of despair with which the local people subsidize the profits of strip mining.316

Berry appears unwilling to acknowledge, however, the implicit meaning of his lament. Were the executives and stockholders, that is, the maligned corporation, to live in the shadow of the mine and witness or experience the uprooting, the avalanche, the polluted water supply, and the wreckage of their birthright, they would be moved and changed and humbled, much as Berry hopes his readers to be. That the corporation is treated like a person for the purposes of law, rights, and duties should not bear the brunt of Berry’s ire; rather, his scorn should fall upon any corporate body insofar as it behaves callously, maliciously, or with ambitious ill-will-in short, like some persons.

This section has critically approached Berry’s efforts to save the commonwealth from a tragic demise. It has focused on the ironies, tensions, and deficiencies in his prescriptions for private property, local and intimate knowledge, and protectionism, and his frustration with the corporate person because of the central role they play in his prose and vision for environmental restoration. A rich and provocative writer, Berry’s ideas and proposals deserve thoughtful consideration and, where appropriate, a thorough and critical analysis. And this section has attempted to engage Berry and his supporters in an important and ongoing debate over the condition of our environment, our commonwealths, and how we might best preserve them both.

V. CONCLUSION

In the commonwealth, Wendell Berry hears something close to a four-part harmony of agrarian economy, faith, knowledge, and an affectionate respect for land and people. The rise and dominance of industrialization, a progressive and expanding free market founded upon competition, and a citizenry removed from the land and its agriculture, however, have threatened the health of the commonwealth for decades and now its future as well. To save it, Wendell Berry has written poems and essays, novels and short stories extolling the virtues of the agrarian life, one rooted in faith and a profound sense of mutual belonging to the earth. He has advocated limited rights in private property, a moratorium on the folly of corporate ownership and agribusiness, state and federal tariffs to protect local farmers and merchants, and a community-based economy of subsistence. His vision is not a perfect one, though it is hard to conceive that he believes it could be, and his ideas and proposals should be weighed judiciously, for they hold in tension many of our most fundamental understandings and provisions of law and economics. This article only scratches the surface of the rich landscape in Wendell Berry’s writing, and, like the farmer-poet has himself acknowledged, “Telling a story is like reaching into a granary full of wheat and drawing out a handful. There is always more to tell than can be told.”317

NATHANIEL STEWART[dagger]

[dagger] Roe Fellow in Law at the Property and Environment Research Center (PERC) in Bozeman, Montana. J.D., Case Western Reserve School of Law; M.A., John Carroll University; B.A., Hillsdale College. The author thanks PERC for the funding that made this research possible and is indebted to Jonathan H. Adler, Deanna P. Ducher, Jennifer R. Gowens, and Andrew P. Morriss for their guidance, comments, and patient help in the course of drafting this article. All errors are, of course, the author’s. © 2006, Nathaniel Stewart

Copyright Georgetown University Law Center Spring 2006

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