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

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.