II—
The Hegelian Story of Property

A—
The Internalist Approach of The Philosophy of Right

Hegel introduced his theory of property in the first part of The Philosophy of Right , in which he discusses the development of the legal subject, abstract right, and law.^[34] These will, in turn, lead logically, although not necessarily historically or biographically, to the development of the family, civil society, the state, and the individual.

Hegel's initial account of property, like his account of abstract right, civil society, and the state generally, purports to be an internal one:

To consider a thing rationally means not to bring reason to bear on the object from outside in order to work on it, for the object is itself rational for itself.^[35]

That is, Hegel explores the rationality of property within the rhetoric of property.

This is opposed to an external or utilitarian analysis which purports to examine the purposes property-law concepts are supposed to serve. One example of an external analysis would be a Law and Economics or utilitarian approach which asks whether property law is "efficient" and how

[34] That is, law in the sense of Recht , or "abstract right." Positive law (Gesetz ) will not be written until the logically subsequent stage of social development which Hegel calls "Civil Society."

[35] Hegel, The Philosophy of Right, supra note 15, at 60. According to Alan Brudner,

[a] faithful account of property law invokes no principle of unity that treats as dissimulating rhetoric the discourse by which the law of property presents itself. The unity it discloses is intuited and corroborated rather than concealed by that discourse.

Alan Brudner, The Unity of the Common Law: Essays in Hegelian Jurisprudence 21 (1995) [hereinafter Brudner, Unity of the Common Law]. In this section I cite extensively Brudner's excellent account of Hegel's dialectic of property. Although I greatly admire Brudner's work, I differ with him in that I believe he finds more positive content and temporality in Hegel than I think can be warranted.

property law can be used for "wealth maximization."^[36] "Pragmatists" on the left similarly take an instrumentalist approach by attempting to use property concepts and rhetoric to support any number of external social goals.^[37] Another example of the externalist, instrumentalist approach can be seen in certain schools of analysis of the term "property" as used in the Takings Clause of the U.S. Constitution, which I discuss in the last chapter of this book. This approach asks, "What concept of property best serves the purpose of protecting the individual from the power of the state?"^[38] The purpose of this analysis is not to examine the concept of property within the "private" law of property. Rather, it is to create a definition of the word "property" that can serve as a useful tool for the presupposed "public" law purpose of analyzing the respective rights and powers of the state and its citizens.^[39]

Instrumentalist or conceptualist views tend to see property as a creature of positive law. Any normative content in property law must, accordingly, be externally provided. Neo-Hegelian Alan Brudner comments that these instrumentalist approaches might tell us something about the goals the scholars want property to serve, but are not likely to tell us very much about property per se.^[40] Starting one's analysis from a presupposed arbitrary external purpose will almost inevitably lead to disappointment when it is found that property rules refuse to cooperate with the goals

[36] See, e.g ., Richard Posner, Economic Analysis of Law (4th ed. 1992). I am aware that some practitioners of Law and Economics try to distinguish their concept of wealth maximization from utilitarianism. Nevertheless, I find the two movements close enough to lump them together for my limited purposes.

[37] See, e.g ., Singer, supra note 3, in which Singer tries to use property concepts to establish a basis for judicial recognition of a legal right of workers to acquire a plant scheduled to be closed.

[38] This notion of property, of course, lay behind Charles Reich's advocacy of the recharacterization of certain entitlements against the state as the "new" property. "The institution called property guards the troubled boundary between the individual and the state." Charles Reich, The New Property , 73 Yale L.J. 733 (1964).

[39] See, e.g ., Frank Michelman, Property, Utility and Fairness: Comments on the Ethical Foundation of "Just Compensation ," 80 Harv. L. Rev. 1165 (1967); Margaret Jane Radin, Property and Personhood , 34 Stan. L. Rev. 957 (1982) [hereinafter Radin, Property and Personhood ]; Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings , 88 Colum. L. Rev. 667 (1977).

[40] Thus, no matter how numerous the instances of agreement between law and the instrumentalist's goal, identifying them will reveal nothing intrinsic about law and everything about the interests of the onlooker who is absorbed by a curious, surface feature of the object.

Brudner, Unity of the Common Law, supra note 35, at 23.

imposed upon them.^[41] For example, I will show in the last chapter of this book that it is logically impossible for property to fulfill the constitutional function assigned to it as standing as the barrier between the individual and the state. Consequently, Brudner argues that instrumentalist analyses are virtually destined to result in conclusions that property concepts are "incoherent,"^[42] contradictory, or merely rhetorical,^[43] or otherwise requiring reform or deserving abandonment. This approach also frequently leads to nominalism. Property itself is seen as having no essence but merely as a title for a legal conclusion—a bundle of sticks.

The libertarian branch of liberalism tries to justify the positive law of property by reference to a natural-law–labor theory of property. Like other classical liberal theories, this approach presupposes the priority of the autonomous individual. As articulated by John Locke, an individual acquires a legitimate property interest in an external object when he commingles his own labor with it.^[44] This is, once again, an instrumentalist and externalist theory—property serves as the boundary of the public/private distinction.^[45] Contemporary libertarian Robert Nozick argues that the only way truly to understand the political realm (which includes an analysis of the legitimacy of the state's right to interfere with what Nozick identifies as the individual's right to property) is by reference to some other "nonpolitical" realm.^[46] Nozick starts with a concept of the autonomous individual who is prior to the state. He locates property rights not in positive law but in natural law—the individual is entitled to any and all property which he acquires directly or indirectly through legitimate appropriation. The state can be justified, therefore, only insofar as it recognizes the individual's prior entitlement to property. Nozick's approach presumes,

[41] If understanding law means disclosing its own significance rather than imposing a foreign one, then an instrumentalist approach will succeed only if legal rules embody a conscious goal-oriented intention, . . . for only then are the rules veritably for the goal: their instrumentality is their true significance.

Id . at 22.

[42] Such critiques are usually, but not exclusively, associated with Critical Legal Studies. See, e.g ., Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient ? 8 Hofstra L. Rev. 711 (1980); Sax, supra note 3; Singer, supra note 3.

[43] For example, Posner states that "the true grounds of legal decision are concealed rather than illuminated by the characteristic rhetoric of opinion." Posner, supra note 36, at 21.

[44] John Locke, Two Treatises of Government (Peter Laslett ed., 2d ed. 1967) (3d ed. 1698, corrected by Locke).

[45] Nedelsky, supra note 4, at 8.

[46] "The only way to fully understand the whole political realm is to explain it in terms of the nonpolitical." Robert Nozick, Anarchy, State, and Utopia 6 (1974). The alternativeswhich Nozick identifies and rejects are to view it as emerging from the nonpolitical but irreducible to it, or to view it as completely autonomous. Neither of these alternatives accurately describes the way Hegelians conceive of their internalist method.

rather than explains, property. Hegelians would argue that Nozick's externalist approach might at most tell us something about his conception of nonpolitical life but is unlikely to provide much insight into the nature of the polity or property.

Another problem frequently identified in the libertarian version of the labor theory of value is its uneasy relationship between natural and positive law. Traditionally, liberalism has identified authenticity with nature and the individual in opposition with artificiality, the social contract, and the state.^[47] On the one hand, the proponents of the labor theory justify the legitimacy of property on the grounds of natural law—it is the inherent right of the individual. On the other hand, they realize that for legitimate, labor-based property rights to exist, there must be a state to enforce the rights. Otherwise, property devolves into mere physical possession by the strongest individual—an illegitimate regime. Libertarians argue that individuals enter into the social contract precisely to protect property rights. Moreover, probably all modern American lawyers agree with the familiar cliché, associated with Hohfeld,^[48] that property, like all legal categories, is a relationship between and among legal subjects. No atomistic individual could, then, have property rights which preexist the relationships of society. Consequently, the labor theory of property implicitly presupposes the state, and property is always already a creature of positive law—a paradox which causes insuperable problems for classic "takings" jurisprudence under the U.S. Constitution.

The internalist analysis, in contradistinction, claims to be an attempt to examine property law's own understanding of property law. This means it tries to determine whether there is any internal unity and logic to property both as an abstract matter and as concretely applied.^[49]

[47] See, e.g ., Nedelsky, supra note 4, at 91. In this book, I am not attempting to give a comprehensive account of either classical or modern liberal political theory. In particular, many contemporary scholars working in the liberal tradition recognize an essentially social aspect of human nature in addition to an atomistic aspect. I am self-consciously using extremely simplified epitomes of liberalism purely as a foil for my discussion of Hegelian theory.

[48] Hohfeld, of course, was not the discoverer of this truism, but he explicated it so well that it has become inextricably linked to his name. I discuss Hohfeldian property theory at length in chap. 2, sec. III.A.

[49] See, e.g ., Brudner, Unity of the Common Law, supra note 35, at 21–25.

B—
The Artificiality of the Subject

The Philosophy of Right is the Bildungsroman^[50] of personality. It is the story of the self-actualization of the abstract person into the complex individual located in the modern state. The initial stage in this philosophical biography is the person's achievement of subjectivity by being recognized as a legal subject by a person she recognizes as a legal subject. To Hegel, subjectivity is intersubjectivity mediated by objectivity. Property serves as this initial mediator. Although this struggle for recognition is described as a matter of necessity, this should not suggest that we experience this process as one of cold logic.^[51] Because the freedom which is the essence of personality can only be actualized through recognition by another whom we in turn recognize, we are driven by an insatiable desire for the other. To Hegel, the search for love rules man's universe.^[52] As Michel Rosenfeld has put it:

The struggle for recognition is part of the dialectic of self-consciousness. Self-consciousness for Hegel is desire. . . .

Indeed, once it is understood that the aim of desire is the preservation of self-consciousness, then it seems logical to conclude, as Hegel does, that self-consciousness can only achieve satisfaction in another self-consciousness. If desire seeks to maintain identity, then self-consciousness must seek an object which provides it with recognition. And the only ob-

[50] Arthur J. Jacobson, Hegel's Legal Plenum, in Hegel and Legal Theory 115 (Drucilla Cornell, Michel Rosenfeld & David Gray Carlson eds., 1991).

[51] Of course, to say that it is logically necessary for the free abstract person to actualize its freedom in concrete existence sounds as if the abstract person is not free at all but bound by necessity. This misunderstands the retroactive nature of Hegel's logic. He is considering the concept of the abstract free person retroactively from the position of a concrete individual situated in society. He is asking, "How did we get here from there?" And he is concluding not that it had to happen this way but that it must have happened this way.

To use a lurid but vivid example I have used elsewhere, from my standpoint sitting here at my computer in the summer of 1996, it is logically necessary for my parents to have had sexual intercourse sometime around September 1953. But what could have been more free and contingent from my parents' point of view back then?

This is not to suggest that there is no necessity in Hegel. As I shall explain at length in this essay, according to Hegel's dialectic logic abstractness, or pure potentiality, is at another moment identical to concreteness or actuality. At another moment, however, potentiality and actuality are totally separate. And the argument that a result is logically required does not result in any prediction as to the actual empirical result.

[52] The mutual recognition which constitutes subjectivity must be one of love not only in the sense of mutual admiration but also in the Lacanian sense of seeing in another more than she is. Attempted recognition in hate results in the failed lord-bondsman dialectic where the lord might force grudging obeisance from his bondsman, but this recognition does not "count" because the lord cannot recognize the bondsman as an equal person.

ject which can provide recognition to a self-consciousness is another self-consciousness.^[53]

Hegel's analysis of property and subjectivity is, therefore, desperately erotic to the point of hysteria. We desire the objects of property not for their own sake but derivatively as means to our true desire—the desire of and for other persons.

C—
The Presupposition of Human Nature

Perhaps the biggest problem we Americans have in understanding Hegel is that we tend to view political philosophy through the lens of our liberal philosophical tradition. Most schools of classical liberalism follow natural-law or intuitionist philosophies. They start from a presupposition of the state of nature or an intuition of the good and then posit a linear, logical, and developmental progression from this originary point. Human nature in its hypothesized natural state is conceived as "authentic" and normatively superior to "artificial" states. Deviations from this authenticity must be explained and justified. Specifically, if the free individual is posited as existing in the state of nature or is intuited as the authentic mode of being, the community and the state pose problems by definition . One of the most familiar ways to solve this problem is by theorizing that free individuals consent to live under the state through a real or hypothetical social contract. In other words, in liberal theory temporal order of development of the artificial state from the natural autonomous individual has essential normative significance for what constitutes a good or just community.

Hegelianism claims to differ from liberalism in that it does not presuppose the existence of the subject in the sense of the autonomous individual.^[54] This may, at first blush, seem inconsistent with the fact that Hegel, like Kant, used the abstract concept of free will as the starting place for his philosophy of right. Moreover, as indicated by its title, the recognition of formal rights plays a critical role in The Philosophy

[53] Rosenfeld, Dialectics of Contract, supra note 27, at 1220–21.

[54] In contrast to the libertarian, Hegel argues that individual selfhood is established as an end not prior to or outside of community but rather as an organic requirement of community. . . . In contrast to the communitarian, Hegel argues that community is authentically an end only insofar as it recognizes the rebellion of the self against its primacy. . . .

Brudner, Unity of the Common Law, supra note 35, at 17.

of Right , as it does in liberal political philosophy. This might suggest to a casual reader that Hegel held that human beings begin historically or empirically as autonomous individuals endowed with natural rights in the liberal sense of these terms. This would be a serious misreading.

The Hegelian critique is that liberal theory risks degenerating into a truism. Liberalism starts by presupposing that the essential human person is a pre-social, autonomous, self-acting individual.^[55] This initial assumption or intuition identifies the social as a problem that needs to be solved by definition . It follows that once social life has been identified as a problem, the legitimacy of the state also becomes problematical. A libertarian, for example, may very well be entitled to claim that he has proved that his conception of the minimal state is the only form of government which can be legitimated as consistent with his notion of human nature.^[56] The problem is, Hegel believes that liberals never adequately discuss how they originally decided on the notion of human nature which would serve as the bulwark of their political theory. Human nature is implicitly, or explicitly, declared to be self-evident, a matter of intuition, or otherwise in no need of explanation.

From a Hegelian viewpoint, a philosopher presupposing autonomous individualism is equivalent to a magician sneaking the rabbit into the hat. Hegel, of course, observed the same individualistic behavior in late-eighteenth- and early-nineteenth-century Western societies, as did liberal

[55] As that great liberal tract, the Declaration of Independence, states: "We hold these truths to be self-evident , that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . . " (emphasis added).

[56] Needless to say, libertarianism is not the only form of contemporary liberalism. There are, for example, egalitarianism, utilitarianism, and contractarianism. Michel Rosenfeld, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (1991) [here-inafter Rosenfeld, Affirmative Action]. Each of these derives slightly different conceptions of the just state from slightly different formulations of the individual.

Nozick's approach can be contrasted, for example, with that of John Rawls. Rawls also presumes the classical liberal view of the autonomous individual. But Rawls expressly tells the reader that he is doing so for reasons of intuition rather than logic. He in effect invites the reader to follow his argument so that we can decide whether the result of his intuition is intuitively attractive to us.

Perhaps I am being too hard on Nozick for not taking this initial step. Nozick is addressing liberals familiar with the liberal tradition. It may be that he is justified in assuming that his readers are well aware of the initial intuitive step which they all must take and is not wasting precious pages in repeating this. Indeed, his express recognition of the influence of Rawls on his thought might be shorthand for this—a sort of incorporation by reference. Indeed, Anarchy, State, and Utopia can be read as a rejoinder to Rawls's Theory of Justice . Nozick can then concentrate on his purpose of convincing other liberals why his libertarian conception of the state is more consistent with the liberal conception of the person than other possible liberal theories such as utilitarianism or egalitarianism.

philosophers and politicians of the time. But he did not argue that this meant that the essentially individualistic nature of humanity is self-evident, let alone pre-given. Indeed, it is questionable if essential individualism is ever empirically observable, whether humanity is studied sociologically (within our present culture), anthropologically (cross-culturally), historically (within the development of our culture), biographically (with reference to the history of our own personal lives), or psychoanalytically (with reference to the theory of the development of psychic subjectivity). Sociologically, individuality is observed in daily intercourse, but so are altruism, love, and communitarianism. Anthropologically, as far as we know, human beings have always lived in familial, tribal, or other social groups and have never lived as the solitary nomads of the primal liberal myth. As a historical matter, the concept of the liberal individual is a recent development of Western thought. Even if it has roots in classical philosophy and Christian theology, the individual as we know it today was only fully described in the so-called Enlightenment. Biographically, we are not born autonomous but as helpless infants totally dependent on others for all of our needs. Consequently the private is as problematical as the public. Liberalism identifies the individual and seeks to explain society. Hegel argues that the individual and society are equally in need of explanation.

The Hegelian approach is not antiliberal but extra liberal. The fact that individualism is not assumed to be pre-given in no way implies that it is illusory or unimportant. Hegel's eventual conclusion that individualism is artificial in no way implies that it is unreal or inessential. Hegel rejects the liberal identification of the authentic as the natural, in opposition to the inauthentic as the artificial. Rather, as etymology indicates, that which is artificial is made by art.^[57] As a human creation, autonomy is an achievement, a great accomplishment to be treasured, nurtured, and aggressively defended. Individuality is a moment in the essential nature of the human

[57] It is said that upon being shown the newly built St. Paul's Cathedral, King William III exclaimed, "How awful! How pompous! How artificial!" and knighted Christopher Wren. My colleague Paul Shupack reports that he first heard this delightful but probably apocryphal anecdote from John Rawls in a philosophy course delivered at Harvard College in the early sixties. I have not been able to find the original source. I have since read or heard many variations of this anecdote attributing the quotation variously to King William III or Queen Anne. I lean toward the former. St. Paul's was "completed" in the sense that the last stones were laid in 1710 during Anne's reign. However, it had been considered sufficiently complete that it had been dedicated and services had begun to be held in it by 1696, during William's. In any event the specific details of the story cannot be true because Wren was knighted before the cathedral was built.

creator and may be logically prior to other moments of humanness, but it is not necessarily either our initial natural state or our final self-creation.

In other words, Hegelians would argue that it is they who truly cherish the concept of the individual, while liberals take individuality and individuals for granted. In addition, unlike liberal philosophers, Hegel does not, and cannot, resort initially to consent theory to justify contract or property, let alone the state. He does not argue, as did Locke, that we enter into the social contract to protect our property to which we are naturally entitled by investing our labor into it.^[58] Nor did he argue, as did Hobbes, that property was a creation of the social contract.^[59]

As clarified by Seyla Benhabib, social-contract theory presupposes the existence of autonomous individuals capable of entering into, performing, and enforcing contracts.^[60] To be the classical liberal individual and to be a person capable of entering into contractual relationships are one and the same thing. One could say the same thing about the liberal concept of property—property, as a legal category, requires not merely one individual who can serve as an owner but other individuals against which the owner asserts her property rights. If the concept of the individual is problematic, then so are property, consent, and contract. The problem is, of course, that the autonomous individual can only express her freedom—the ability to own property and enter into contract—in social relationships. The task of Hegelian political philosophy and jurisprudence is precisely to explain how the individual, property, and the ability to contract came into being.^[61]

To put this another way, the liberal person in the "state of nature" is by its very definition pre-social and abstracted from all social intercourse. We

[58] Michel Rosenfeld, Contract and Justice: The Relation Between Classical Contract Law and Social Contract Theory , 70 Iowa L. Rev. 769, 788 (1985).

[59] Id . at 791.

[60] The act of contract cannot generate the conditions of its own validity but presupposes background norms and rules the compliance with which confers validity on the contractual transaction. Hegel derives these background norms and rules from the rights of personality and property.

Seyla Benhabib, Obligation, Contract and Exchange: On the Significance of Hegel's Abstract Right, in The State & Civil Society: Studies in Hegel's Political Philosophy 159, 162 (Z. Pelczynski ed., 1984) [hereinafter The State & Civil Society].

[61] Unlike [liberal contractarian philosophers] Hegel does not take as his starting point the condition of an isolated self motivated to recognize the right of others through the fear of death (Hobbes) or through an intuitive and presocial knowledge of the natural law (Locke). Nor does Hegel understand "persons" to be Kantian moral agents endowed with the noumenal ability to act in accordance with the categorical imperative. He proceeds from the condition of a society of individuals who have recognized one another'sentitlement to be persons in order to describe the concrete forms of interaction compatible with this norm.

Benhabib, supra note 60, at 160. See also id . at 170.

must explain, therefore, how these abstractions come to become social. It begs the question to argue that an act of social intercourse—contract—is the origin of the institution of social intercourse—society and property. One would be arguing that liberal society was created by autonomous individuals who contracted to form liberal society which created the individuals who created liberal society, and so on. Once again, the towering turtles raise their unending heads. To put this another way, liberals presume that the abstract autonomous person is already a subject, in the sense of a being who is capable of bearing legal rights. Hegel argues that the abstract person is too empty a concept to sustain this burden precisely because all legal rights are social relationships. Property serves a function in the creation of sociality by giving the person sufficient content to bear the weight of subjectivity.^[62] Or, more accurately, property and legal subjectivity will be mutually constituting.

D—
The Impossibility of Philosophy without Presuppositions; Sublation

In the introduction to the first chapter of his Greater Logic ,^[63] Hegel discusses his goal of creating a philosophy without pre-

[62] Alan Brudner presents still another way of looking at this problem. He argues that insofar as property is the act of the abstract free will to objectify itself, it is by definition a unilateral act by which the will recognizes itself as its own end. Basing property on consent of another denies this and denies the will's appetite for infinite appropriation. As Brudner states, "A complete property must therefore embody a reconciliation between the right to exclusive possession and the right to freedom of acquisition." Brudner, Unity of the Common Law, supra note 35, at 56. The resolution of this problem will be exchange and the concomitant right of alienation of property. But we cannot derive this from a preexistent ability of the person to consent because, as we have seen, the starting point of the individual will (as imagined by liberalism) is pre-social. Brudner also says:

Among the many difficulties with this solution [i.e., presupposing the ability to consent, rather than logically deriving and creating the ability to consent] one in particular concerns us most. No person could rationally, that is, consistently with his claim to be an end, consent to a unilateral and exclusive appropriation by another; for this would be to acquiesce in his permanent exclusion from the thing and hence in a permanent disparity between his self-conception and reality.

Id . at 55.

[63] G.W.F. Hegel, Hegel's Science of Logic (A.V.Miller trans., 1969) [hereinafter Hegel, The Greater Logic].

suppositions. To put it simply, he concludes that it is impossible to begin a logical analysis without intentionally, if tentatively, adopting presuppositions.^[64] One needs an initial working hypothesis or abduction. I have just explained that Hegel criticized other philosophers for basing their theories on unexamined presuppositions. Does this mean that Hegel himself is open to the same criticism despite his denials?

Hegel would argue "No." The problem with most philosophers is not that they start from presuppositions, which is inevitable. It is that they never return to critique their initial presuppositions. Presuppositions should only be accepted tentatively as working hypotheses to be developed and tested. Hegel argued that his totalizing philosophy and dialectic logic of Aufhebung (frequently translated into the dreadful English word "sublation") always turns back on itself. This enables one not only to develop the logical consequences of a hypothesis but also to return to and analyze the starting point—to test the hypothesis.

The essential requirement for the science of logic is not so much that the beginning be a pure immediacy, but rather that the whole of the science be within itself a circle in which the first is also the last and the last is also the first.^[65]

Sublation is a process by which internal contradictions of earlier concepts are resolved, but not in the sense of suppressing difference. The German word aufheben means paradoxically to preserve as well as negate.

"To sublate" [i.e., "aufheben" ] has a twofold meaning in [German]: on the one hand it means to preserve, to maintain, and equally it also means to cause to cease, to put an end to. Even "to preserve" includes a negative element, namely, that something is removed from its immediacy and so from an existence which is open to external influences, in order to preserve it. Thus what is sublated is at the same time preserved; it has only lost its immediacy but it is not by that account annihilated.^[66]

In trying to understand the dialectic, many Americans are hampered by having been taught a crude caricature of sublation as a simplistic trinity of thesis, antithesis, and synthesis. That is, a thesis is presented, an in-

[64] And yet we must make a beginning: and a beginning, as primary and underived, makes an assumption, or rather is an assumption. It seems as if it were impossible to make a beginning at all.

Hegel, The Lesser Logic, supra note 29, at 3.

[65] Hegel, The Greater Logic, supra note 63, at 71.

[66] Id . at 107.

ternal contradiction or antithesis in the original thesis is identified, and the two are resolved in a harmonizing synthesis, which destroys all previous contradictions. This serves as a new thesis, starting the logical process over. This formula is designed more as a means to discredit Karl Marx (who expropriated Hegel's method) than to understand philosophy. Indeed, this is how I was introduced to it in high school.

The problem with this description is that it suggests that sublation destroys all difference and deviation by converting them into an oppressive compromise.^[67] Rather, as the German term implies, sublation preserves, as well as negates, the prior concept. Sublation is not merely tertiary—it is quadratic.

Thesis and antithesis exist in contradiction. Through sublation these contradictions are simultaneously resolved into synthesis so that at one moment thesis and antithesis are revealed as identical. Yet there always remains an unmediated moment, a hard kernel of unsublated contradiction, a phantom fourth, the trace or differance of deconstruction, that resists mediation.^[68] That is, in sublation we have not only the thesis and antithesis and the moment of identity of synthesis, but also simultaneously the moment of difference which resists sublation.

In sublation the difference identified in the earlier stage is always preserved because it is always a necessary moment in the development of the later. To gussy it up with more fashionable terminology, the earlier concept is at one moment always already the subsequent concept, but simultaneously the very existence of the latter concept requires that the earlier concept is not yet the later concept.

Sublation (i.e., synthesis) can never destroy the differentiation between self and other (thesis and antithesis) precisely because sublation is the recognition that at one moment self and other are truly the same while at another moment they are truly different. Moreover, the moment of identity is itself different from the self-identity of self and other. In other words, in the differentiation of self and other, identity is a possibility. It is through sublation that the possibility of identity is actualized. But at

[67] Even as brilliant a philosopher as Charles Sanders Peirce criticized Hegel for subsuming "secondness" (awareness of distinctions) into "thirdness" (interrelations). See John E. Smith, Community and Reality, in Perspectives on Peirce: Critical Essays on Charles Sanders peirce 92, 96, 103 (R. Bernstein ed., 1965) [hereinafter Perspectives on Peirce]. Other scholars, however, recognize a cross affinity between Peircean secondness and thirdness and Hegelian sublation. See, e.g ., Paul Weiss, Charles S. Peirce, Philosopher, in Perspectives on Peirce, supra at 120, 133–34.

[68] See Zizek,^[*] For They Know Not What They Do, supra note 19, at 179.

the same time, self and other must remain differentiated in order for actualization to remain possible. Hence Hegel's famous slogan of "the identity of identity and non-identity."^[69]

This is a necessary result of the circularity of the dialectic. Although worded in terms of the proactive resolution of what initially appeared to be contradictions into an implicit and inevitable whole, sublation is simultaneously the retroactive breakdown of what initially appeared as a harmonious whole into unresolved inherent contradiction.^[70]

E—
The Tentative Presupposition

1—
Hegel V. Liberalism

As a theoretical matter, Hegel's logic should eventually result in the same totalizing whole regardless of where one chooses to start. As a practical matter, however, one has to start somewhere.^[71] For practical reasons, some starting points are more productive than others. Hegel's chosen starting place for the Logic is pure being .^[72] The starting place chosen for The Philosophy of Right is the most abstract concept of selfhood which he calls "absolutely free will" —that which is an end in itself, and is not the means to some other entity's end.^[73] The fact that he logically derives the notions of property and abstract right from the notion of the absolutely free will before he derives the notion of the family does not mean that he thinks ancient human beings actually developed commercial and contractual relationships before they adopted the affective relationships of family.^[74] He is not taking the liberal position that the free individual is prior to society. Indeed, the autonomous individual of liberalism was only recognized relatively late as a historical matter.

It is true that in his analysis as a logical starting place, Hegel did start

[69] Hegel, The Greater Logic, supra note 63, at 74.

[70] Slavoj Zizek,^[*] Tarrying with the Negative: Kant, Hegel, and the Critique of Ideology 122–23 (1994) [hereinafter Zizek, Tarrying with the Negative].

[71] Philosophy forms a circle. It has a beginning, an immediate factor (for it must somehow make a start), something which is unproved which is not a result. But the terminus a quo of philosophy is simply relative, since it must appear in another terminus as a terminus ad quem . Philosophy is a sequence which does not hang in the air; it is not something which begins from nothing at all; on the contrary it circles back into itself.

Hegel, The Philosophy of Right, supra note 15, at 225.

[72] Hegel, The Greater Logic, supra note 63, at 82.

[73] Hegel, The Philosophy of Right, supra note 15, at 37.

[74] Consequently, Richard Posner's attempt to explain sexual behavior and family relationships in terms of economic decision making by autonomous individuals would have been anathema to Hegel. Richard Posner, Sex and Reason (1992).

with a creature bearing a strong family resemblance to liberalism's abstract individual. This may be, in part, because Hegel needed to address liberalism directly and immediately, as the foremost political philosophy of the time. But Hegel's dialectic is too generous ever to try to prove that his philosophical predecessors were simply wrong. Hegel agreed with Kant that there are reasons to begin one's consideration of a concept with its simplest, most universal, primitive, immediate, and minimal—and therefore least adequate—manifestation. If one wishes to study mankind generally—to make a universal statement as to human nature—there are advantages to abstracting down to the lowest common denominator.^[75] Hegel then builds upward to show how the more adequate, complex, and fully developed concept is already logically inherent in the more primitive.

Consequently, Hegel might be said to have started with liberalism and accepted that it contains a true if inadequate moment. His point was to show that liberalism's theory of the person was only partial. Accordingly, it logically and necessarily already includes its negation which will lead to the development of a more adequate concept of the person. If liberals start, and end, with the abstract, autonomous individual, Hegel starts with the autonomous individual, continues through a more complex notion of the subject, and ends with the rich concept of the individual in a state. As I have said, liberalism assumes that the abstract person is already a subject, whereas Hegel argues that the abstract person cannot yet perform this role. As Alan Brudner writes:

Our account of property law thus takes as its starting-point personality, conceived initially in the quite insular, decontextualized, and disembodied manner just described. It begins with this abstract self not because it aligns itself with a particular ideology for which this self is an unexamined prejudice, but because any quest for an unconditioned end as the foundation of right must begin with the abstraction from everything given or conditioned and hence with the most vacuous of concepts. Any richer or more affirmative conception of the self must prove itself worthy of rights from this starting-point, that is, through the immanent negation of abstract personality

[75] It seems, rather, that Hegel's aim is to start from what we might call the minimum characterization of a person; this minimum characterization is as someone capable of distinguishing what is him from what is not or, in Hegel's terms, capable of externalizing his will. This minimal, and thus abstract, personality allows two crucial distinctions to be made, between myself and other persons and between myself and what I can have an effect upon.

Alan Ryan, Hegel on Work, Ownership, and Citizenship, in The State & Civil Society, supra note 60, at 178, 185.

as the sole unconditioned reality. So, while our account of property law begins with decontextualized personality, it does not remain there.^[76]

Or, to put it another way, liberal theory's presupposition that the individual is prior to society gives individuality preeminent, exclusive normative import. The normative import in Hegelian philosophy is different. Since the autonomous individual is a true moment of personhood, the state must always preserve and respect individualistic abstract rights. However, insofar as there are also other true moments of personhood, the state can and must take other values into account as well.

2—
The Abstract Person and the Kantian Construct

As a nineteenth-century German, Hegel could not have done otherwise than to start his political analysis from the version of liberalism developed by Immanuel Kant,^[77] rather than those more familiar to American lawyers developed by John Locke, Thomas Hobbes, Jean-Jacques Rousseau, and Jeremy Bentham. Nevertheless, Hegel is relevant to American jurisprudence in that all of these theories share the notion of authentic human nature as containing elements of autonomy, self-standing individualism, and a natural right to negative liberty. Kant is an excellent starting point for the critique of liberalism precisely because he takes this shared notion of the autonomous individual in the state of nature to its logical extreme.

To oversimplify, Hegel agreed with Kant that the most basic, simple, and abstract (and, of course, least adequate) notion of what it could be to be a person is the notion of self-consciousness as free will.^[78] The bare minimum essence of personality which distinguishes someone from something is "consciousness of oneself as simple, contentless self-relatedness that is undetermined by inclination and unrestricted by anything given."^[79]

Hegel explained the minimal concept of the abstract person as follows:

The universality of this will which is free for itself is formal universality, i.e . the will's self-conscious (but otherwise contentless) and simple

[76] Alan Brudner, The Unity of Property Law , 4 Canadian J.L. & Jurisprudence 3, 14–15 (1991) [hereinafter Brudner, Unity of Property Law ].

[77] Hegel's imperative of abstract personality—"[b]e a person and respect others as persons"—is "consciously modeled on Kant's categorical imperative." Avineri, supra note 30, at 37.

[78] Hegel, The Philosophy of Right, supra note 15, at 67–68.

[79] Peter Benson, Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory , 10 Cardozo L. Rev. 1077, 1165 (1989).

reference to itself in its individuality. . . . [T]o this extent the subject is a person .

. . . .

Personality contains in general the capacity for right and constitutes the concept and the (itself abstract) bases of abstract hence formal right. The commandment of right is therefore: be a person and respect others as persons .^[80]

So, even though Hegel starts with free will, he is not presuming that free will is a necessary aspect of human nature. That can only be demonstrated retroactively through the internal logic and consistency of the entire totalizing philosophy. That is, the primitive concept of the abstract person is abstracted from the more developed concept of the individual living in the state.

To be free is to be the means to one's own ends, rather than the means to the ends of another.^[81] The Kantian construct is a totally negative notion of personhood. To be free means not to act under compulsion. In order truly to have free will, the person can have no needs, desires, relations, or other pathological characteristics.^[82] As a consequence, pure freedom is totally arbitrary—if the person acted for a reason, it would be bound by that reason, and not be free.^[83] The person at the start is, therefore, a pure negativity. The free person can only be defined in terms of what it is not. "For the same reason [Grund ] of its abstractness, the necessity of this right is limited to the negative—not to violate personality and what ensues from personality."^[84]

To say that essence of personality is pure negativity may initially seem depressing because in this society we tend to identify the negative as the opposite of the affirmative and, therefore, as that which is bad. But, as I shall emphasize throughout this book, the Hegelian concept of negativity can be seen as not just hopeful but as the very basis of human freedom. The negative and the affirmative require each other. Pure negativity is not nothing, but pure potentiality. It is the very possibility, and therefore ability, to grow, create, and love. And so, as we shall explore in the next section, the abstract negative person as free will contains an internal contradiction which sets the engine of the dialectic in motion.

[80] Hegel, The Philosophy of Right, supra note 15, at 67–69.

[81] Id . at 67.

[82] Id . at 67–70.

[83] Id . at 48–49.

[84] Id . at 69–70.

F—
The Contradictions of Personality

The problem with conceptualization of the self as absolutely free will is that it is empty, abstract, arbitrary, and negative^[85] —it is, by definition, totally stripped of all distinguishing characteristics. It is also, by definition, subjective (in the sense of solipsistic and impoverished) even as it claims to be universal. But real people are not abstract. They have content and concrete existence, experience themselves positively, and interrelate with other people. Since subjectivity is the ability to interrelate with others through legal rights, the empty abstract person cannot be a subject, as liberalism claims.

According to the reasoning of the dialectic, to be potential, abstract concepts must be manifested or actualized in concrete form. This is one of the meanings of Hegel's (wrongly) notorious assertion that "what is rational is actual, and what is actual is rational."^[86] If one starts with the person as abstract free will, then, in order for the concept of freedom to have "meaning"—that is, determinate being—it is logically necessary that the abstract person become a specific, concrete individual with positive existence.

For something to be possible it must be actualized—the failure of something eventually to become actualized means, in retrospect, that it had not been, in fact, possible. Something only retroactively becomes potential once it has already been fulfilled. This is why the abstract person as free will is driven to actualize its potential freedom as concrete freedom.^[87] But the dialectic works the opposite way as well. The logically later concept cannot exist except for the logical necessity of the continuance of the earlier, and the earlier cannot exist except for the logical necessity of the possibility of the later. The later concept is actuality, but the earlier concept is the possibility which allows it to come into being.

This concept of potentiality may initially seem opposed to our intuitions. We have a strong sense that many things that could happen, in fact, won't. Or, to put it another way, we feel that the fact that things turned out one way does not mean that things could not have been different. Isn't this why we are so moved by Marlon Brando's claim in On the Waterfront^[88] that he "could'a been a contender"?

[85] Id . at 27.

[86] Hegel, The Philosophy of Right, supra note 15, at 20.

[87] That is, freedom is negative and, therefore, mere possibility. Right is the actualization of freedom. Id . at 35.

[88] On the Waterfront (Columbia 1954). By my use of this example, I am not implyingthat Hegel formulated a theory of necessity at the level of the empirical individual. He is not a Pangloss who believes that, because right and freedom must be actualized in the world, then everything in the world is in fact right.

Hegel, The Lesser Logic, supra note 29, at 10.

I would argue that a more thoughtful reading of this line of dialogue shows that our intuitions are actually in accordance with the Hegelian view. When Brando asserts that he could have been a contender, he is not really making a claim about his abstract potentiality sometime in the past. Rather, he is making a claim about his actuality in the present. He is asserting a difference between the authentic internal essence of his selfhood and the illusory external accidents of his circumstances. Hidden deep below a shabby facade of failure lies a true noble self—the contender—only temporarily and unfairly obscured. His argument is based on a misuse of the Hegelian dialectic of potentiality and actuality. He says, in effect, "If you agree that I had the potential of being a contender in the past, then you must conclude that I am in actuality a contender today despite all appearances to the contrary because potentiality must always ripen into actuality." He is a frog asserting that he is now a prince because he once was one.

Brando's argument is facetious precisely because he tries to apply the dialectic prospectively. He wants us to believe in predestination. His statement strikes us as tragic, or more accurately, pathetic, because we intuitively understand that the dialectic can only be applied retroactively. He is deceiving himself not only about his present nobility but about his past promise. Only now that the owl of Minerva has flown can we look back and recognize from the fact that he is so obviously not in actuality a contender today that he never really had the possibility of being one. It is now painfully obvious that he never had the guts. He is a frog today, because he was only a polliwog yesterday.^[89]

And so the negative concept of abstract personality as free will contains contradiction and must go under. The self-consciousness as free will

When understanding turns this "ought" against trivial external and transitory objects, against social regulations or conditions, which very likely possess a great relative importance for a certain time and special circles, it may often be right. In such a case the intelligent observer may meet much that fails to satisfy the general requirements of right; for who is not acute enough to see a great deal in his own surroundings which is really far from being as it ought to be? But such acuteness is mistaken in the conceit that, when it examines these objects and pronounces what they ought to be, it is dealing with questions of philosophic science. The object of philosophy is the Idea: and the Idea is not so impotent as merely to have a right or an obligation to exist without actually existing. The object of philosophy is an actuality of which those objects, social regulations and conditions, are only the superficial outside.

[89] This understanding of possibility can also be seen in the common folktales knownas Cinderella stories. The familiar characterization of these as rags-to-riches stories—in which a poor girl is passively rescued by a good marriage—is a vulgar masculinist misunderstanding. In these stories, the heroine always starts as a girl of high estate—usually a princess or at least, as in the best-known version, that of Perrault, the heiress of a wealthy bourgeois. She is only temporarily plunged into a state of debasement and bodily filth upon the death of her mother (and, frequently, the attempted incest by her father). Aided by the supernatural intercession of her dead mother, Cinderella actively seeks out an ideal mate who can recognize her true self and thereby enable her to actualize her possibility revealed at the beginning of the story. That is, Cinderella is a true Hegelian-Lacanian subject. See, e.g ., Marina Warner, From the Beast to the Blond: On Fairy Tales and Their Tellers (1994).

on the one hand has positive existence, but on the other hand has no positive attributes and is pure negativity.^[90] As such, even though the free will is on the one hand an individual, on the other hand it is indistinguishable from all other individuals and, therefore, is not individual.^[91] Moreover, to be truly free the person must be beyond desire; yet, as Hegel explained in The Phenomenology of Spirit , self-consciousness as negativity is nothing but desire.^[92] Self-consciousness claims to be free, but since it is totally negative, its freedom can only be potential. It is, therefore, driven to actualize its freedom in order retroactively to prove its claim.

In order to resolve these contradictions, the will needs to give itself content by embodying or expressing itself somehow.^[93] In order to obtain the subjectivity that will eventually enable the person to develop into a full individual and actualize his freedom, the abstract person needs to objectify himself. As we shall see, although the will must be objectified to obtain positive freedom, immediate, binary object relationships will be inadequate to this task. According to Hegelian philosophy, subjectivity is a triune relationship—intersubjectivity mediated through objectivity. One can achieve subjectivity if and only if one is recognized as a subject

[90] Hegel, The Philosophy of Right, supra note 15, at 46–49; Brudner, Unity of the Common Law, supra note 35, at 21, 36.

[91] Hegel, The Philosophy of Right, supra note 15, at 41–42, 54–55; Brudner, Unity of the Common Law, supra note 35, at 26–28, 229–30.

[92] Hegel, The Phenomenology, supra note 16, § 167.

[93] The activity of the will consists in cancelling [aufzuheben ] the contradiction between subjectivity and objectivity and in translating its ends from their subjective determination into an objective one, while at the same time remaining with itself in this objectivity.

Hegel, The Philosophy of Right, supra note 15, at 57.

The person must give himself an external sphere of freedom in order to have being as Idea. The person is the infinite will, the will which has being in and for itself, in this first and as yet wholly abstract determination. Consequently this sphere distinct from the will which may constitute the sphere of its freedom, is likewise determined as immediately different and separable from it.

Id . at 73.

by another person, whom one recognizes as a subject. Human beings are driven by an erotic desire for mutual recognition.^[94] Property is "a moment in man's struggle for recognition."^[95] Abstract personality cannot be recognized by others because it has no positive individuating characteristics. Only through the possession and enjoyment of objects can the abstract person become individualized and thereby recognizable as a subject. Through the exchange of objects with another person one person can recognize another person as an acting subject deserving of rights. And through recognition by that other person, the first person can recognize herself as a subject capable of bearing rights. Consequently, in Hegel, subjectivity can only be achieved in what Lacan called the "symbolic"—the social order of law and language.

One of the steps in the will's development is property. Property is a means by which the abstract person objectifies itself. The self as abstract will claims to be essential reality, but the existence of external things, that is, objects, and our dependence on external reality contradict this.^[96] The self, therefore, needs to appropriate external objects—it must own property.^[97] The self becomes particularized and concrete, rather than abstract, through ownership.^[98] Potentiality becomes actuality.

[94] See Rosenfeld, Dialectics of Contract, supra note 27, at 1220–21.

[95] Avineri, supra note 30, at 89.

[96] It is therefore a self stripped of all corporeal, mental, and affective characteristics. It has no concrete needs, values, or goals, no qualities of physical or moral character, no attributes of social or economic status, nor any citizenship. It is simply and abstractedly a person. This conception of the essential reality as a self shorn of individuating features is paradoxically determined by an individualistic premise. Specifically, it is determined by the assumption that the individual's isolated or pre-social condition is its natural one, or that the atomistic individual has a fixed and stable reality. Since the determinate individual has the significance of the atomistic one exclusive of others, the self can arrive at a normative foundation only by abstracting from determinateness per se, for the latter is equated with the merely contingent and relative, with that true only for this individual or for that. No value that I seek as an isolated individual can objectively bind others to respect it, for such a value enjoys no privileged position with respect to their own. If I am necessarily isolated from others (if there is no natural community), then all values have this significance .

Brudner, Unity of Property Law, supra note 76, at 19 (emphasis added).

[97] "Because this reduction of things to an end is regarded as objective and absolute, it is said to be constitutive of a property." Brudner, Unity of the Common Law, supra note 35, at 42.

We can understand property, then, as the objectively realized claim of the person to be the end of things. . . . The universal and objective significance of property is that it embodies the end-status of personality.

Id . at 43.

[98] First, property is here private property, because it is the embodiment of the self ofthe atomistic individual, external and indifferent to others. At this stage the presumed end of things is the singular self, the self of the discrete individual, a self that therefore excludes the self of other individuals. The realization of this self as an absolute end is private property.

Id .

G—
Objectification and Objects

Before we turn to how property leads to intersubjectivity and contract, let us examine a little more closely what Hegel meant by objectivity and ownership. This is useful because the English translation of Hegel uses such words as "things," "objects," and "possession," which have an unfortunate tendency to suggest the very phallic metaphor for property—the physical holding and seeing of tangible things—that I am criticizing. Upon careful reading, however, it becomes clear that Hegel did not hold such unsophisticated concepts.

First, I wish to remind the reader of the ambiguity of the English word "property." On the one hand, as Hohfeld so eloquently explained, in a technical legal sense the term "property" refers to a legal interrelationship between at least two subjects.^[99] On the other hand, we also use the word "property" to refer to the object which is the subject of the property relationship. That is, property is both the term for the system of possession, enjoyment, and exchange and the name of the thing possessed, enjoyed, and exchanged within this system. In this book, I use both meanings of the word "property." When I refer to "property" as a type of Phallus , and compare it to the Feminine, I am primarily referring to "property" as the object of desire. When I refer to the legal regime called property, the psychoanalytic parallel is the linguistic system of ownership and exchange called sexuality.

Second, although the word "object" in colloquial English often refers to physical things, in philosophical and psychoanalytical discourse the term "object" refers to anything that is not a subject, that is, that which is not itself capable of having will.^[100] Hegel's definition of "object" is logically necessitated by his starting definition of the subject as free will. The subject is initially the will in the sense of being one's own end in oneself, rather than the means to the ends of another. External things which themselves

[99] See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning 65 (W. Cook ed., 1919) [hereinafter Hohfeld, Fundamental Legal Conceptions].

[100] What is immediately different from the free spirit is, for the latter and in itself, the external in general—a thing [Sache ], something unfree, impersonal and without rights.

Hegel, The Philosophy of Right, supra note 15, at 73.

have will (i.e., other human beings) cannot rightfully be objects of property. This is because appropriation is the infusion of the will of a subject into an object.^[101] External things which do not have their own ends but are merely the means to the ends of another can properly serve as objects. Objects lack the subject's capacity of self-transcendence, are not ends in themselves, and, therefore, offer no moral resistance to their appropriation.^[102] They can only be means to the ends of a will, and therefore appropriation of property by a will is legitimate.^[103]

In other words, an object is defined as that which is not a subject. This means that if one starts with a definition of the subject as abstract person, then a strict subject-object distinction is a simple definitional truism at this stage (but only at this stage) in the dialectic.

All external characteristics are, then, "objects." Although tangible things can be objects, it is not their tangibility which establishes their objectivity. Rather, it is negation by the subject that does it. Potential "objects" of property cannot be limited to actual physical things such as land and cattle, or even intangibles such as debts and intellectual property. Since the concept of the object is defined in terms of what is not (i.e., the subject), anything that "can be conceived as immediately different from free personality"^[104] can be a "thing," including desk, apartment, bank account, and stock portfolio, as well as my talents and ideas:

Intellectual . . . accomplishments, sciences, arts, even religious observances (such as sermons, masses, prayers, and blessings at consecrations), inventions, and the like, become objects . . . of contract; in the way they

[101] Slavery is wrong precisely because it is a system by which human beings are treated as the means to another's ends. Animals do not have "will" as that term is used in the Hegelian system. They are, therefore, proper objects of property. Hegel, The Philosophy of Right, supra note 15, at 86–88.

Our bodies are a special type of property, as I discuss briefly in chapter 3. Our responsibilities to the state also preclude an unqualified right of alienation through suicide. Id . at 102.

[102] [T]he person stands opposed to a world of particular things, some forming its own natural endowment, others lying outside it. A "thing" is a being that is not a person, or that lacks the capacity for self-transcendence. Lacking this capacity, the thing is not an unconditioned end and so offers no moral resistance (has no right) against its use and destruction by other beings.

Brudner, Unity of the Common Law, supra note 35, at 42.

[103] Being a thing is essentially external, its notion is not contradicted if it is given a purpose from the outside. In other words, what is essentially external can be used merely as a means: its end can be given to it by something that is other than it.

Benson, supra note 79, at 1164.

[104] Id .

are bought and sold, etc., they are treated as equivalent to acknowledged things .^[105]

Consequently, Brudner argues (correctly in my opinion) that the view expressed in much modern jurisprudence that the dematerialization of property is a recent invention inconsistent with, and subversive of, classic property theory is simply wrong.^[106] It is wrong on a jurisprudential basis, given the work of Hegel and others, not to mention the long history of nontangible forms of property recognized by the common law, such as incorporeal hereditaments.^[107] Indeed, as I shall discuss in chapter 2, section II.B, classical liberal jurisprudence as reflected in Blackstone's Commentaries and classical liberal political theory as reflected in the writings of Madison and the other Federalists both expressly adopt a definition of the objects of property which is fundamentally the same as Hegel's. They also include whatever is necessary for concrete personality: body, beliefs, opinions, talents, and so on. Property includes all that is proper to man.

H—
The Elements of Property

Hegel identifies three essential elements of property: possession, enjoyment, and alienation. For an interest to be "property," it must contain all three elements. These elements should not, however, be confused with any specific empirical manifestation of the elements, but should be understood as extremely abstract logical and symbolic concepts. Moreover, it does not follow from the proposition that the concept of property necessarily contains three elements that all legal interests either contain complete manifestations of all three elements or lack all three com-

[105] Hegel, The Philosophy of Right, supra note 15, at 74.

Anything, capacity or activity "external" to the person, can become an object of property. Externality does not mean simply that the thing is physically distinct from the person. Objects like books, works of art and mechanical inventions are external to the person, not in virtue of being physically distinct from him, but in virtue of being objectifications (Entaeusserungen ), i.e. concrete embodiments of human skills, talents and abilities.

Benhabib, supra note 60, at 163.

[106] Brudner, Unity of the Common Law, supra note 35, at 42 n.46. Brudner, in particular, takes Radin to task for misunderstanding what Hegel means by the external nature of things.

[107] Id . "All the same, Hegel stretched the notion of property in other contexts in much the same way that theorists of the 'new property' do." Ryan, supra note 75, at 179.

pletely. Some manifestations of property will be more complete and "adequate" actualizations of the abstract possibility of the concept than others. According to Alan Brudner:

Because these conditions will be the necessary and jointly sufficient ones of an objectively valid mastery of things, they will stand to each other not as isolated "sticks" in a "bundle," but as co-essential elements of a totality. That is to say, they will form what are commonly called the "incidents" of ownership—the particular rights that are involved in the notion of property. . . . Property in the full sense will be the interconnected totality of all its partial realizations. It will be possible to distinguish, therefore, between an imperfect and a fully realized property, and therefore between superior and inferior and superior (or relative and absolute) titles to things; and it will be possible to parcel out for finite periods some of the constituent elements of property while keeping intact its atemporal notion, thereby making possible the ideas of a remainder and a reversion.^[108]

1—
Possession

The most rudimentary or logically "first" element of property is possession^[109] —the intersubjectively recognizable identification of a characteristic (object) to a specific person (subject). Possession is the most primitive element of property as an empirical matter in that one can have a right of possession of an object without any right of enjoyment or alienation, as in a simple bailment,^[110] but in order to enjoy or alienate an object one must first have some rudimentary right to possess it. To have possession of something is to have "external power over" it so that the will is embodied in it.^[111] Possession is "man's physical and anthropological capacity to appropriate externality for human purposes."^[112]

By referring to possession, Hegel did not mean physical, sensuous holding. Even though the German word "Besitz " as well as its English cognate carry unfortunate physicalist connotations, both words are more accurately defined as "occupancy" or "ownership."^[113] Indeed, the English word might be even less physicalist than the German used by Hegel.

[108] Brudner, Unity of the Common Law, supra note 35, at 45.

[109] Hegel, The Philosophy of Right, supra note 15, at 76–88; Brudner, Unity of Property Law, supra note 76, at 23.

[110] A familiar example is a hatcheck at a restaurant. While you are dining, the restaurant has the right of physical possession of your checked coat until you request it back, but the maître d'may not wear it or try to sell it to other diners.

[111] Hegel, The Philosophy of Right, supra note 15, at 76.

[112] Benhabib, supra note 60, at 171.

[113] 12 The Oxford English Dictionary 171 (1989).

"Besitz " is derived from the same root as "Sitz " (sitting or seat) and implies occupancy in the sense of the place one physically sits or camps. German mythographer Erich Neumann suggests that the concept of possession as sitting derives from the nomadic nature of ancient German tribes who only temporarily possessed any specific piece of land by camping.^[114] The English word "possession," on the other hand, derives from a root meaning "power" and is etymologically related to such concepts as possibility and potency.^[115] In this light, possession relates not to physicality per se but to the power of the subject with respect to objects and other subjects. Consequently, in chapter 2, section II.B.3, I suggest that if I were granted the privilege of drafting the terminology of property from scratch, I might prefer the term "objectification" to convey the Hegelian concept of possession.

Hegel's definition of possession follows from his realization that the "objects" of property are not necessarily, or even archetypically, tangible.

Given the qualitative differences between natural objects, there are infinitely varied senses in which one can take control and possession of them, and doing so is subject to equally varied kinds of limitation and contingency.^[116]

Nor, by "rudimentary," did he imply that the concept of property originated historically in the physical possession of tangibles, and expanded to include other interests by analogy and metaphor. Property originates in the internal necessity of the will.

[114] Neumann, who has a Jungian perspective on mythology, goes further and suggests that "Besitz " also invokes the images of the mother goddesses worshiped by the Germans and displayed in their camps. "Sitz " was not just the generic term for "seat," it also referred specifically to the king's throne which in turn was identified with the mother's lap. German gods—and German kings—were depicted seated in the lap of the great mother goddess, in the same way as the ancient Egyptians depicted Horus seated in Isis's lap and Catholics depict Jesus seated in Mary's lap. This identification is specifically reflected in religious terminology. "Isis," the name of the great ancient Egyptian goddess, means "throne." Erich Neumann, The Great Mother: The Analysis of the Archetype 98–99 (Ralph Manheim trans., 1963). Even today, one of the Blessed Virgin's traditional titles is "Seat of Wisdom."

Neumann's point is that we confuse the source of power in property. The king thinks that his seat is a throne because he is a king, whereas he is only king because he sits on the throne. Similarly, men speak of possessing women in intercourse, but the man who thinks he possesses the woman is, in fact, possessed by his desire.

In other words, from the Jungian perspective, in possession, the object controls the subject, not the other way around. This is consistent with Hegel's analysis. The subject does not preexist the legal concept of property—it is constituted through property. We do not possess things because we are subjects, we are subjects because we possess things which make us recognizable to others.

[115] Joseph T. Shipley, The Origins of English Words: A Discursive Dictionary of Indo-European Roots 326, 579 (1988).

[116] Hegel, The Philosophy of Right, supra note 15, at 82.

Physical custody is, therefore, merely one possible way for possession to be actualized. This follows from the recognition that the class of objects cannot be limited to tangible things. Indeed, because physical custody is the most determinate^[117] form of possession, it is the most inadequate—a brute fact easily defeated by a brute.^[118] For possession to serve its function, it must be intelligible by others.

The essence of possession is thus intelligible possession. . . . As an aspect of intelligible possession, a person's connection with the object is conceived independently of physical contingencies. Therefore, something is one's own only if one's will should be recognized as present in the object, regardless of whether at any particular moment one has physical possession of it.^[119]

Consequently, Hegel identified at least two other, and more complete, ways of taking "possession" of an object: forming it and marking it.^[120] Forming the object is superior to physical holding because

[t]o give form to something is the mode of taking possession most in keeping with the Idea, inasmuch as it combines the subjective and the objective.^[121]

Moreover,

[117] Ever since "critical" legal scholars announced that the law was "indeterminate," there has been a tendency to associate determinacy with "good" and indeterminacy with "bad." Indeed, the slogan "law is indeterminate" is intended as a critique. In Hegel, determinacy is a descriptive, not a normative, term. Some things are more determinate, but this means that they are more contingent and less universal. Other things are more universal, but they are then less determinate.

[118] From the point of view of the sense, physical seizure is the most complete mode of taking possession, because I am immediately present in this possession and my will is thus also discernible in it. But, this mode in general is merely subjective, temporary, and extremely limited in scope, as well as by the qualitative nature of the objects.

Hegel, The Philosophy of Right, supra note 15, at 84.

[119] Benson, supra note 79, at 1180. Similarly, Brudner states:

[P]ossession is a "property"—a right to possession—one that binds others whether or not the occupier is subsequently present. A distinction thus arises between sensuous and juridical possession, the latter dependent on the former but striving to transcend its limitations.

Brudner, Unity of the Common Law, supra note 35, at 140.

[120] Hegel, The Philosophy of Right, supra note 15, at 85–86. See also Brudner, Unity of Property Law, supra note 76, at 143.

[121] Hegel, The Philosophy of Right, supra note 15, at 85–86.

[t]aking possession by designation is the most complete mode of all, for the effect of the sign is more or less implicit . . . in the other ways of taking possession, too. If I seize a thing or give form to it, the ultimate significance is likewise a sign, a sign given to others in order to exclude them and to show that I have placed my will in the thing. For the concept of the sign is that the thing does not count as what it is but as what it is meant to signify.^[122]

If marking is the most complete form of possession, it is, consequently, the most indeterminate.^[123] That is, there is a considerable role to be played by positive law (whether by statute, custom, or whatever) in specifying which modes of marking will be considered legally cognizable in any specific society. Unlike Locke,^[124] Hegel did not present possession of specific property by specific individuals as being normatively justified, but only as a logically required starting point for the abstract person.

What does it mean, then, to recognize that an object is possessed by (assigned to) a subject? At first blush, possession seems individualistic, but it implicitly requires the existence of others. Property, like all legal claims, is relational in the sense that it is a set of rights and obligations between and among legal subjects.^[125] Consequently, property cannot be a natural right or attribute of an autonomous individual in the state of nature, as Locke insists. Possession is not merely the objective relationship of assignment of object to a subject, therefore. Although my property interest in an apple might include the right to possess it, in

[122] Id . at 88.

[123] Id .

[124] Locke argued that, although in the state of nature the object world belongs in common to all men, an individual is entitled to such property with which he has intermixed his labor, with certain limitations. Locke, supra note 44.

It is a common misperception that Hegel, like Locke, justified property on the basis of first appropriation. See, e.g ., Steven R. Munzer, A Theory of Property 69–70 (1990). I believe that this is a misreading of the following sentence:

That a thing [Sache ] belongs to the person who happens to be the first to take possession of it is an immediately self-evident and superfluous determination, because a second party cannot take possession of what is already the property of someone else.

Hegel, The Philosophy of Right, supra note 15, at 81. In context, I believe that this sentence is merely a descriptive definition of possession—the right and power of a first-in-time claimant to exclude later-in-time claimants—not a normative judgment of the justice of any individual's claim to possession of any specific object. Hegel does not seek to justify any property claim of any individual specifically, but to justify a property regime as abstract right, generally, on the grounds that it furthered the creation of subjectivity and the actualization of freedom.

[125] Hohfeld, Fundamental Legal Conceptions, supra note 99, at 65–115.

the sense of holding it in my hand, and the right to enjoy it, in the sense of eating it, my legal right cannot be reduced to the brute fact of my holding and eating it. A monkey can hold and eat an apple, but it cannot own it. Possession as a legal right, as opposed to a brute fact, is the intersubjective relationship whereby a specific object is assigned to an identifiable subject as opposed to another subject . In other words, possession of an object by one person can only be understood in terms of the exclusion of others from the same object.^[126] But more important, the person takes possession of property so that he can become recognizable by other persons.

Consequently, "possession" is the intersubjective recognition that a specific object is identified to a specific subject in the sense that the subject has some legal entitlement and ability to exclude others from the object.^[127] I say "some ability" because as an empirical matter this might include different combinations of Hohfeldian rights, privileges, powers, and immunities. The highest manifestation of this may be free and clear "ownership" by an individual of those personal goods which are exempt property in bankruptcy—such as a wedding ring or glass eye. That is, the owner has the right, power, and privilege to exclude almost everyone else from these objects and the immunity from having her property interests taken or violated by others. Most possessory rights are much more constrained. Even "fee simple absolute" ownership of real property is not absolutely perfect possession.^[128]

The Hegelian notion of possession, therefore, contains a contradiction in that it is solipsistic but can only be understood in terms of other persons. To possess something is to exclude others, thus possession seems to separate us. But insofar as the will was totally free of contingency, it was already separate. Possession, therefore, reflects rather than causes separation. At the same time, possession is dependent on other persons. The element of possession—the intersubjectively recognizable identification of an object to a subject—therefore presupposes the existence of another

[126] "[T]aking possession confers the title of property only if the individual is situated in a context of social relations that legitimatize this act." Benhabib, supra note 60, at 172.

[127] Elsewhere, I have argued extensively that intersubjective recognition is a necessary and essential element of possession on the grounds that it furthers both the classical liberal value of autonomy and the Hegelian teleological purpose of the actualization of freedom. Jeanne L. Schroeder, Some Realism About Legal Surrealism , 37 Wm. & Mary L. Rev. 455, 509–516 (1996).

[128] See, e.g ., Stewart E. Sterk, Neighbors in American Land Law , 87 Colum. L. Rev. 55 (1987), for a discussion of the limits on fee simple ownership.

subject who can recognize this identification. This means that possession is separate but contains the promise of relationship.

2—
Enjoyment

The next element of property is use—or what I prefer to call the "enjoyment"—of property. Standing alone, possession cannot achieve the person's goal of recognition because mere identification of an object to a person looks the same to an outside observer as identification of the object with the person. Passive owner is confused with owned object. In enjoyment, the person actively relates to the object. By using the object, the will actualizes the fact that the object is a means to the person's ends.

[T]he thing, as negative in itself, exists only and serves it.—Use is the realization of my need through the alteration, destruction, or consumption of the thing, whose selfless nature is thereby revealed and which thus fulfills its destiny.^[129]

What constitutes "use" or enjoyment will depend on the actual object.^[130] Just as possession should not be equated with physical custody, enjoyment cannot be limited to sensuous consumption. The nature of the right of enjoyment varies with the type of object involved. A tomato can be eaten, but one can also admire its beautiful color or fragrance or even use it as a weapon by throwing it at some politician. Although during the term of a lease, the lessee has the right to sensuous exploitation of the leased object, the lessor also retains a right of enjoyment in the form of economic exploitation (i.e., the right to rent). Enjoyment is often conflated with possession in the sense of physical custody, because one frequently, or even usually, needs to be in immediate physical contact with, or at least close proximity to, a tangible object in order to enjoy it. But even in the case of tangible goods, the rights of possession and enjoyment are distinguishable. As reflected in the cliché that you can't have your cake and eat it too, it is often the case that enjoyment destroys the object of

[129] Id . at 89.

[130] Hegel distinguished between partial or temporary use of a thing and ownership in a way that might imply that temporary interests can never be property or that there can never be more than one interest in the same piece of property. Id . at 90.

One should always keep in mind Hegel's concept of the object as anything external that the various partial temporal property interests in the "same" piece of real estate (i.e., a life estate, a fee subject to a condition subsequent, a remainder, etc.) can in Hegelian terms be reanalyzed as several complete ownership interests in different objects. For example, he describes a pledge as the granting by the debtor of possession, use, and right to alienate the value of the collateral. Any excess value belongs to the debtor. Id . at 112.

desire and, therefore, also destroys the other two property elements. Consumption is the ultimate form of enjoyment.

Enjoyment is the most solipsistic element of property, in that the subject turns inward to the object and away from other subjects. Enjoyment, standing alone, is, therefore, also inadequate. The danger of enjoyment is dependence on the object.^[131] Rather than being the means to her own ends (the definition of freedom), the person risks becoming subjected to the ends of the object. Because the enjoyer only has positive existence through enjoyment of her object, she is an addict who is a slave to, and lives only for, the object. This is inconsistent with the free nature of the person and with the function of property to actualize that freedom. So long as the person remains fascinated—spellbound—by the enjoyment of the object, she cannot turn to others.

Enjoyment also fails because solitary enjoyment implicitly presupposes the existence of others who must be excluded so that the object can be enjoyed,^[132] and who must observe if property is to fulfill its purpose. But without mutual recognition the enjoyer remains virgin and sterile, while the observer is reduced to perverse voyeurism. Moreover, to say that enjoyment presupposes exclusion is only another way to say that possession is the most primitive element of property. That is, although it is possible to have the naked right of possession (exclusion) without also having a right to enjoyment, it is hard to imagine having any right to enjoyment without first having some minimal right of possession.

Enjoyment is intersubjective not just because the mutual enjoyment of the same object by two different subjects can be inconsistent, but because one's enjoyment of one's own object can hinder or even preclude the ability of another to enjoy his own object. To give an easy example, even rabid libertarians would probably agree that society can legitimately limit the rights of car owners to enjoy their cars by driving them on the sidewalk because that would interfere with the rights of pedestrians to enjoy their bodily integrity. Another example is environmental nuisances. A factory owner's enjoyment of his object by exploiting its productive capacity and incidentally polluting the underlying aquifers can interfere with

[131] Brudner, Unity of Property Law, supra note 76, at 31.

[132] In possession and use, first of all, the person verifies its primacy in a self-contradictory way, for it finds itself dependent on things for the confirmation of its mastery of them. Hence the very act that cancels the independence of the object also reinstates it.

Id .

a neighbor's ability to enjoy her water.^[133] Exactly what these limitations are (i.e., what degree of interference we will tolerate as a legal matter)^[134] must be determined by practical reasoning (i.e., positive law).

The first two elements of possession and enjoyment also reduce property to a brute fact, mere contingency, rather than a right, in the sense of something essential to humanity.^[135] These contradictions cannot remain. In order to actualize her freedom, the person needs to rid herself of the enslaving object.^[136] This requires the third element of property—alienation.

3—
The Triune Nature of Property

Before we continue further, it might be helpful to stop again briefly to examine where we have been. At this point, the Hegelian conceptualization of property appears to be binary, containing only two terms—the owning will and the owned object. But, as we have seen, this apparently binary relationship contains contradictions. These contradictions will be resolved through the addition of a third term—the other which recognizes the self's property interests and in relationship to which the self can assert its objectification through property. Through sublation, property is always already becoming a relationship between subjects, and subjectivity can only be intersubjectivity.

In my discussions of possession and enjoyment, I have shown that intersubjectivity is implicit and potential, but latent. It is only in alienation through exchange that it becomes express and actualized.

One should also note that even at this point before the recognition of the third term, the purpose of property and the three Hegelian elements of property are already implicitly and inherently intersubjective. The Hegelian analysis contradicts modern assertions that the Hohfeldian conception of property as relational between persons is a recent development inconsistent with the classic view that property is a relationship between

[133] I apply my property analysis to environmental nuisances in Jeanne L. Schroeder, Three's a Crowd: Calabresi and Malamed's Repression of the Feminine (1997) (unpublished manuscript, on file with author).

[134] Of course, legal restrictions are not the only limitations society places on enjoyment. Other restrictions are imposed by religious belief, customs, and etiquette. That is, rudeness is legal but intolerable.

[135] [W]e have not yet bridged the gulf between fact and right. Possession and use are sensuous acts that claim to ground a conceptual or unconditioned right to exclude. Yet the supposedly unconditioned right is thus far self-contradictorily conditioned by physical possession and use.

Brudner, The Unity of Property Law, supra note 76, at 31–32.

[136] Id . at 34.

a person and a thing.^[137] It also contradicts the misinterpretation according to which Hegel reaffirms the liberal position that property is prior to community.^[138] Rather, Hegel shows that the liberal position is contradictory. If community presupposes property, property also necessarily presupposes community.

This Hegelian conclusion as to the triune nature of property parallels the common-law concept of personal property. In contemporary property law there must be a subject asserting the property rights (possession, enjoyment, and alienation). There must be an object in which the property rights are asserted via appropriation by the subject. And there must be at least one third person against which the property rights are asserted.

I—
Adding the Third Term:
Alienation

Accordingly, a person can have existence in relation to another only when each side has recognizable determinate existence through its being embodied as an owner of a thing. The relation between persons must be mediated through external things and must consequently be a relation between persons qua owners of things. For there to be such a relation, it must be possible for me to acquire or alienate something, not merely as an external thing, but as property—as what already embodies the will of another. My acquiring or alienating a thing would then occur through my relation to the other's will. This brings us to the third

phase of property, namely contract, which according to Hegel, completes its deduction.^[139]

[137] The division of right into the right of persons and things  . . . and the rights of actions , . . . like the many other divisions of this kind, aims primarily to impose an external order upon the mass of disorganized material between us. The chief characteristic of this division is the confused way in which it jumbles together rights which presuppose substantial relations, such as family and state, with those which refer only to abstract personality. . . . To enlarge upon the lop-sidedness and conceptual poverty of this division into the right of persons and the right of things , which is fundamental to Roman law . . . , would take us too far. Here, it is clear at least that personality alone confers a right to things , and consequently that personal right is in essence a right of things —"thing" . . . being understood in its general sense as everything external to my freedom, including even my body and my life.

Hegel, The Philosophy of Right, supra note 15, at 70–71.

Of course, Hohfeld himself did not purport to be inventing a new way of looking at law. Rather he created a taxonomy to describe classic legal concepts in an elegant, consistent, and therefore more readily usable, vocabulary. He made more readily apparent certain aspects of property which had not traditionally been recognized—a not inconsiderable achievement. Hohfeld, Fundamental Legal Conceptions, supra note 99. Unfortunately, as I discuss in chap. 2, sec. III.A, his specific attempt to analyze and reconceptualize property per se was woefully inadequate.

[138] Radin, Property and Personhood, supra note 39, at 972.

1—
Abandonment and Gift

Hegel described alienation as the third fundamental element of property.^[140] Possessory rights tell you whom you can exclude from the object of desire. Enjoyment rights tell you what you may do with and to your object of desire. Alienability rights tell you how to rid yourself of the object you once desired.

We have seen how the person cannot remain in lonely enjoyment but must extricate herself from the trap of objectivity. To understand alienation, we must return to the logic of property as the objectification of the will: the free will is simultaneously totally universal and totally solipsistic, and, therefore, seeks to resolve its contradictions by making itself into something recognizable by others. Alienation enables the will to reassert its mastery over an object through indifference.

It is possible for me to alienate my property, for it is mine only in so far as I embody my will in it. Thus, I may abandon . . . as ownerless anything belonging to me or make it over to the will of someone else as his possession—but only in so far as the thing . . . is external in nature.^[141]

Abandonment is one way of demonstrating the nothingness of the object. But mere abandonment cannot be enough because in property the will is attempting to objectify itself. If the subject merely abandons the object, he destroys his objective confirmation.^[142] The only way out of this dilemma is to achieve objective confirmation through the recognition of the act by an equal acting subject—both subjectivity and objectivity must become intersubjectivity.

And so simple abandonment of the object is a self-defeating retreat back into abstraction and away from recognizability.^[143] The person must, therefore, find a way of untangling herself from the object, while simul-

[139] Benson, supra note 79, at 1183.

[140] Id .

[141] Hegel, The Philosophy of Right, supra note 15, at 95. "By getting rid of the thing, I show conclusively that it belongs to me rather than I to it." Brudner, Unity of Property Law, supra note 76, at 34.

As I shall discuss in chapter 3, the logic of property will recognize that the continued possession of certain objects (such as the body) is necessary for the development of personality (i.e., recognizability) and should not be subject to the regime of exchange.

[142] "If I abandon it . . . however, I lack objective confirmation for my claim of right to dispose of it according to my will." Brudner, Unity of Property Law, supra note 76, at 34.

[143] Id .

taneously maintaining sufficient connection to the object to remain recognizable and enabling her to enter into a relationship of mutual recognition by another person.

Gift is more adequate than abandonment because it more explicitly recognizes the third term. Although superior to abandonment, gift is, surprisingly, also inadequate to this function. Although we tend to think of gift as benevolent, the dialectic of gift is similar to the malevolent lord/bondsman dialectic. True, in a gift the donee can recognize the donor as a person with identifying characteristics who is indifferent to the object given and is, therefore, free. The problem is that the donee's recognition doesn't count. This is because, in gift, the donor treats the donee as the means to the donor's end of achieving freedom.^[144] The donee does not herself exercise subjectivity in receiving the gift—she is literally the object of the donor's affection. The donor cannot requite the donee's love precisely because he has selfishly demanded love from her rather than helping her become lovable. The donee is a bondswoman who can never satisfy her lord's desire for recognition.^[145] How often have we seen this failed dialectic played out in actual "love" affairs?

Since the donor does not achieve his goal of being recognized by another subject, he also fails in achieving the subjectivity he desires. Instead of achieving the self-other relationship of mutual recognition, the donor remains in a subject-object relationship. Moreover, after the gift is made

[144] Id .

[145] Although we tend to think of gifts as benevolent, from a Hegelian property analysis they are parallel to the malevolent relationship described in Hegel's famous lord-bondsman dialectic. The lord, seeking recognition, enslaves a bondsman who is forced to bow down in obeisance. This does not have the desired result, however, because the lord has reduced the bondsman to a degraded state. By enslaving the bondsman, the lord has refused to recognize the bondsman as an equal human being whose judgment counts. Or, to put it the other way, the lord can only maintain his status as a lord by refusing to recognize the bondsman as a human being. The recognition by the bondsman is unsatisfying precisely because the lord craves admiration from someone better than himself, yet the lord cannot allow himself to admit that the bondsman is even his equal. Hegel, The Phenomenology, supra note 16, at 114–21.

Similarly, admiration which is bought—as in the case of gift—is suspect. We despise those who take bribes. Consequently, there is something unsatisfying in the recognition of thanks precisely because we do not really admire another person when he is thanking. It is a servile act. By demanding love, rather than giving it, the donor, like the lord, reduces the donee, like the bondsman, to an inferior position. The donee whose love is demanded is perceived as pathetic and clinging, and not lovable. This is why the seducer's desire turns to loathing the moment his paramour asks "When will I see you again?"

This is not to imply, of course, that gifts never have benevolent social functions. It merely implies that the relationship of gift does not further the specific function assigned to property, namely the creation of legal subjectivity.

(as in abandonment), the giver is once again left without an identifying object in his possession. He squandered his object in a failed attempt at recognition and is once again left unrecognizable.

2—
Exchange

The only way of making a person lovable is to love her—recognize her as a subject worthy of recognition. As Lacan explained, love must precede lovability.^[146] To love is, precisely, to see in someone more than she is. This results in the alchemy in which the beloved is able to give back to the lover that which she doesn't have.^[147] It is only at the moment when she, whom I now recognize as a subject, in turn recognizes me as a subject, that I truly know myself as "I."^[148] She is my mirror, and I am hers. In exchange—contract^[149] —one person does not give an object to the other; two persons exchange objects.^[150] Not only is the first party thereby recognized as a free subject by the counterparty, but since the counterparty is also alienating an object, the counterparty is simultaneously recognized as a free subject by the first party. Because in contract the two parties are briefly united in a common will—the agreement to engage in the exchange—they share ends.^[151] Neither is reduced to the subhuman objective level of a mere means to the ends of the other. This is the moment of mutual recognition between subjects which can only be achieved through the mediating object in the relationship known as property, contract, and abstract law.^[152]

A person, in distinguishing himself from himself, relates himself to another person , and indeed it is only as owners of property that the two per-

[146] "Not so long ago, a little girl said to me sweetly that it was about time somebody began to look after her so that she might seem lovable to herself." Lacan, Four Fundamental Concepts, supra note 1, at 257.

[147] Miran Bozovic^[*] , The Bonds of Love: Lacan and Spinoza , 23 New Formations 69 (1994).

[148] "To love is, essentially, to wish to be loved." Lacan, Four Fundamental Concepts, supra note 1, at 253.

[149] For simplicity, I am using the term "contract" to describe its more complete manifestation in exchange. Hegel, however, was careful to recognize that even gift has a contract aspect. "A contract is formal insofar as the two acts of consent whereby the common will comes into being—the negative moment of the alienation of a thing . . . and the positive moment of its acceptance—are performed separately by two separate persons: this is a contract of gift ." Hegel, The Philosophy of Right, supra note 15, at 106.

[150] This is as much the case in service contracts as in sales contracts. The services performed are as much an object (in the sense of being separable from the concept of personhood) as the money paid.

[151] Id . at 102–03.

[152] Id . at 104.

sons really exist for each other. Their identity in themselves acquires existence . . . through the transference of the property of the one to the other by common will and with due respect for the rights of both—that is, by contract .^[153]

Law is essential to this dialectic because it is only by being accorded rights that a person obtains the dignity of a subject who is capable of bearing rights. Law, contract, and the legal subject who is capable of contract are mutually self-constituting. The abstract person creates rights not so he can immediately claim them for himself, but in order to accord them to the other in order to bestow on her the dignity of subjectivity so that she may in turn recognize him and return the gift of subjectivity.

Contract recognizes a moment in which two persons are united, bound together in a common will at the same time that they recognize each other as separate individuals having specific rights and duties. The parties to contract are simultaneously the same and different, actualizing the identity of identity and difference.

But as the existence of the will , its existence for another can only be for the will of another person. This relation . . . of will to will is the true distinctive ground in which freedom has its existence . This mediation whereby I no longer own property merely by means of a thing and my subjective will, but also by means of another will, and hence within the context of a common will, constitutes the sphere of contract .^[154]

And so we see, property simultaneously leads to the creation of both the contract^[155] and the contracting person; they are mutually constituting. The object of property in this stage of development is the external object of desire exchanged between subjects. This exchange does more than merely enable persons to recognize each other as acting subjects. Rather, this mutual recognition is precisely what makes us into subjects with the capacity of acting and contracting.

For this reason, alienation—the exchange value of property—is essential to the idea of property as a moment in the formation of personality precisely because it subordinates the object to intersubjective rela-

[153] Id . at 70.

[154] Id . at 102.

[155] [Contract] is the process in which the following contradiction is represented and mediated: I am and remain an owner of property, having being for myself and excluding the will of another, only in so far as, in identifying my will with that of another, I cease to be the owner of property.

Id . at 104.

tionship. Property is not about things, it is about people. True, in property people desire, possess, and enjoy objects, but only derivatively as a means of achieving their true desire—the desire of the other.

In most traditional liberalism, the authentic human being is the autonomous individual supposedly encountered in a hypothesized state of nature. This liberal tenet means that negative freedom is all that the state and other individuals can offer. To Hegel, however, this categorical imperative is merely the bare minimum that human beings owe each other, and fails to describe the more complex interrelations of which individuals are capable within families and communities.

If someone is interested only in his formal right, this may be pure stubbornness, such as is often encountered in emotionally limited people. . . . [F]or uncultured people insist most strongly on their rights, whereas those of nobler mind seek to discover what other aspects there are to the matter . . . in question. Thus abstract right is initially a mere possibility. . . . ^[156]

I have been describing the Hegelian dialectic in terms of desire and love, but the relationship achieved at the level of abstract right is only the cold impersonality of the marketplace. But Hegel's precise point is that although the market seems cold and abstract it is, in fact, fundamentally but potentially erotic. As its name suggests, abstract right is the most abstract, and therefore the least adequate, form of human relationships.^[157] Consequently, it is only the first logical step in, and not the culmination of, the process of the development of the personality and the actualization of freedom. This is why the last two-thirds of The Philosophy of Right concern how abstract right is sublated into the more adequate relationship of morality, which in turn is sublated into ethical life, thereby enabling the development of a complex individuality within a complex society. This means that, in contrast to utilitarian liberalism, Hegelianism refuses to analyze all human relations in terms of economic man interacting in the marketplace.^[158] This also means that, in contrast to libertarian liberalism, property rights, although necessary, cannot be absolute. Property rights will necessarily be limited not only by prop-

[156] Id . at 69.

[157] Brudner describes the interpretation of all human relationships in terms of contract as "the distorted image peculiar to persons who define their worth independently of all connection to others." Brudner, Unity of Property Law, supra note 76, at 37.

[158] See also Avineri, supra note 30, at 139. Indeed, to describe more complex relationships, such as marriage, in terms of contract is not just impossible, it is "disgraceful." Hegel, The Philosophy of Right, supra note 15, at 105.

erty's own internal limitations but by the higher requirements of morality and ethics.

J—
From Hegel to Lacan

I now explore how the Feminine serves a function in the psychoanalytic-linguistic theory of Lacan parallel to the function of property in Hegel's theory of subject formation. At first blush, Hegel and Lacan seem to adopt different starting places for their analyses. As we have seen, Hegel tried to derive a philosophy without presuppositions, even as he realized that one must tentatively adopt a working presupposition in order to start the logical process. He chose to start with the Kantian construct—the most universal, and thereby abstract, conception of the individual—in order to derive the development of the complex, concrete experience of actual human beings. Hegel's description of the development of the subject and the society purports to be logical, not literally temporal in the psychological or historical sense. The logical necessity of the theory is retroactive, not prospective.

Lacan explored the development of the psychoanalytic subject. One might initially assume that his starting place and ending place are given as a biographical and empirical matter—we all start out as babies and we end up as adults.^[159] This makes the theory sound like a temporal, biographical account based on the observation that babies are speechless but learn to speak as children.^[160] The autonomous individual of liberalism would have no place in Lacan's theory, if for no other reason than that if he did exist, he would have no need of a psychiatrist's couch.^[161] On fur-

[159] Of course, this is only "given" in the vaguest sense. Isn't the whole problem of psychology and ethical philosophy that there can be great disagreement as to how a baby "starts" (i.e., how much of our personality and language capabilities are hardwired in our genes, and how much is software programmed into us later) and where we end up (i.e., are human beings inherently selfish, altruistic, individualistic, communitarian, good, bad, all or none of the above?)?

[160] The human subject is created from a general law that comes to it from outside itself and through the speech of other people, though this speech in its turn must relate to the general law.

Juliet Mitchell, Introduction I to Jacques Lacan and the école freudienne, Feminine Sexuality 1, 5 (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) [hereinafter Lacan, Feminine Sexuality].

[161] The Hegelian subject much more nearly recognizes the people encountered in therapy than does the autonomous self-interested individual of liberal political theory. Lacan's formulation that "the desire of man is the desire of the other" was specifically intended asa description of hysteria. Lacan, Écrits, supra note 14, at 264. But this is because Lacan believes that hysteria is not an aberration but the fundamental human condition. Zizek,^[*] The Indivisible Remainder, supra note 29, at 167.

ther reflection, however, it becomes apparent that Lacan's theory, like Hegel's, is not inductively derived from the observation of children and does not necessarily purport to be an accurate description of human biography. Rather, as Lacan insists, his theory is a fiction—a story retroactively written through abduction and dialectic logic to explain a Hegelian conception of the person.

To Lacan, the subject is the subject of language.^[162] In other words, subjectivity is intersubjectivity mediated through objectivity—just as it is in Hegelian philosophy. Human beings are driven by an erotic desire for mutual recognition; one can achieve subjectivity if and only if one is desired as a subject by another person whom one recognizes and desires as a subject.^[163] In order to become a speaking subject, the infant, like the Hegelian abstract person, must become recognizable and recognized by another speaking subject. Through the symbolic exchange of the Phallus as object of desire with another person—that is, language and the law as prohibition—the person can desire the other person as a speaking and desiring subject. And through recognition by that other person, the first person can recognize himself as a speaking subject capable of desire.

This subject's position with respect to possession, enjoyment, and exchange of the Phallus is sexuality. Sexuality is not, therefore, a biological function, although it is patterned by biology.^[164] Consequently, the moment a person attains sexuality is simultaneously the moment of creation both of subjectivity as intersubjectivity and of law as prohibition. In Hegel,

[162] "I have long established in the structure of the subject, defined as the subject that speaks . . . " Jacques Lacan, Introduction to the Names-of-the-Father Seminar [hereinafter Lacan, Names-of-the-Father Seminar ], in Lacan, Television, supra note 20, at 81, 82. "For Lacan the subject is constituted through language. . . . The subject is the subject of speech (Lacan's 'parle-être '), and subject to that order." Jacqueline Rose, Introduction II to Feminine Sexuality, supra note 160, at 27, 31; see also Mitchell, supra note 160, at 5.

[163] "If I have said that the unconscious is the discourse of the Other (with a capital O), it is in order to indicate the beyond in which the recognition of desire is bound up with the desire for recognition." Jacques Lacan, The agency of the letter in the unconscious or reason since Freud [hereinafter Lacan, The agency of the letter ], in Lacan, Écrits, supra note 14, at 146, 172.

[164] "[A]ny difficulties experienced by the individual in assuming his or her own sex, bear no direct relation to the biological facts of what is called intersexuality." The école freudienne, The phallic phase and the subjective import of the castration complex [hereinafter the école freudienne, The Phallic Phase ], in Lacan, Feminine Sexuality, supra note 160, at 99, 107. In the words of Mitchell, "the actual body of the child on its own is irrelevant to the castration process." Mitchell, supra note 160, at 17. "It is only . . . through deferred action that previous experiences such as the sight of the female genitals becomes significant." Id . at 16.

property, subjectivity, and law were mutually constituting. In Lacan, sexuality, subjectivity, and law are mutually constituting. Property in Hegelian philosophy, therefore, serves a function parallel to that of the Phallus in Lacanian psychoanalysis.

Like Hegel's, Lacan's reasoning is dialectic, retroactive, and abductive, not empirical, progressive, or inductive.^[165] He does not argue, as Freud sometimes seems to have done, that our adult sexuality is the culmination of an empirical process starting with our literal desire to have sexual union with our mothers and to kill our fathers. Rather, the logic of subjectivity and consciousness requires intersubjective recognition achieved through a regime of possession, enjoyment, and exchange of an object of desire. It is only when we retroactively try to understand this purely psychoanalytic process that we identify or conflate the stages with actual empirical stages we have lived through. Psychoanalysis is not an account of what the child is actually experiencing. It is, rather, the story told by the adult looking back at his own childhood. That is, we are not the way we are because we desired our mother, but our memory of our desire for our mother only retroactively takes on importance because of who we are today.