1—
Freedom

"[W]hen [Supreme Court Justice Oliver Wendell] Holmes was a small boy his father rewarded every bright saying with a spoonful of jam."^[54]

Judges are forced to act "to-day."^[55] To do so they must take on the masculine position and claim to possess "it"—to capture the moment of sublation.^[56] Like the common lawyers criticized by Llewellyn, they must attempt to capture the feminine moment of sublation by collapsing a process (the symbolic) into an event (the real). This can only be done in the imaginary, in masculine fantasy. At the moment of judging we must repress the Feminine as the acceptance of castration and the concomitant knowledge that the task is impossible. Like Justice Holmes, the clever judge must speak brightly and claim his jam today.^[57] As Nietzsche said, to act is to forget.

Hegel's abstract logic is impeccable, but Hegel always refuses to give the type of pragmatic advice needed by judges. How could he? He was trying to explain the nature of freedom—if he told us what to do, we wouldn't be free. On the one hand, there is a logically and intuitively recognizable qualitative distinction between property and no property. Moreover, a quantitative change in how much property one has is logically distinct from a qualitative change from having property to not having property. On the other hand, a quantitative diminution of property eventually becomes a qualitative change from property to no property.

[54] Walton Hamilton, On Dating Justice Holmes , 9 U. Chi. L. Rev. 1, 22 n.30 (1941).

[55] This is the problem explored by Jacques Derrida in The Mystical Foundation of Authority , 11 Cardozo L. Rev. 919 (1990).

[56] As explained by Zizek,^[*] it precisely this impossible moment of determination, the masculine of claiming to have "it," that is Lacan's famous "quilting point" which stabilizes meaning. Zizek, The Indivisible Remainder, supra note 48, at 223.

[57] Indeed, in defending Justice Holmes's notorious takings decision in Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), William Michael Treanor has argued that Holmes "deserves one last, posthumous, spoonful of jam." William Michael Treanor, Jam for Justice Holmes: Reassessing the Significance of Mahon (1997) (unpublished manuscript, on file with author).

This is inherent in the very logical nature of the concepts of quality and quantity. The problem in takings jurisprudence is that the declaration that a taking has occurred is precisely a judgment that the change of quantity in property has passed over into a change in quality. The relationship between possibility and actuality is traumatic.^[58] And according to Hegel, there is no logical way of identifying the moment when this occurs, because it either has not yet occurred or has always already occurred. This problem is why pragmatism is always the necessary corollary to Hegelian idealism.^[59]

Pragmatic decisions cannot be decided by logic but only by practical reasoning. This can only be determined by positive law (whether in the form of custom, judicial decision, legislation, or whatever). This is probably why takings cases seem so illogical and "subjective," that is, the masculine position of subjectivity created by writing law (creating the symbolic). From a Hegelian perspective, this is necessarily true.

It is also why, from a Hegelian perspective, the observation that property is both logically prior to positive law and simultaneously subject to the defining restraints of positive law is not a troublesome logical contradiction (as it is in the classical liberalism embodied in the Constitution). Most important, it suggests that, although property may be necessary for the actualization of human freedom, property may be ill suited for the role traditionally ascribed to it by liberal philosophies to "serve[] . . . in office of a wall, or as a moat defensive to a house"^[60] protecting private rights from government oppression.

[58] The ontological background of this leap from "not-yet" to "always-already" is a kind of "trading of places" between possibility and actuality: possibility itself, in its very opposition to actuality, possesses an actuality of its own. . . . [T]here is always something traumatic about the raw actuality of what we encounter as "actual"; actuality is always marked by an indelible brand of the (real as) "impossible." The shift from actuality to possibility, the suspension of actuality through inquiry into its possibility, is therefore ultimately an endeavor to avoid the trauma of the real.

Zizek,^[*] Tarrying with the Negative, supra note 47, at 157.

[59] As Hegel absolutely recognized. He just thought that philosophy had nothing to add to pragmatism. When Plato recommended that nursemaids should rock babies to keep them from crying, he had left philosophy and entered prudence. Hegel, The Philosophy of Right, supra note 41, at 21. "A further word on the subject of issuing instructions on how the world ought to be: philosophy at any rate always comes too late to perform this function." Id . at 81. This is partly an issue of terminology. American pragmatists think of their theories as a branch of philosophy. Hegel's point is to distinguish that which can be logically demonstrated (what he calls philosophy) from that which isn't but may be adopted for good reasons. This is, of course, similar to the Popper-Kuhn distinction between science and common sense which is merely supposed to distinguish, not denigrate, the latter.

[60] William Shakespeare, King Richard II, act 2, sc. 1.