IV—
An Abduction from the Seraglio

A—
Abduction and Jouissance

I have referred to the phallic metaphor of property as an "abduction" in the sense of the logic of imagination^[324] as developed by pragmaticist philosopher Charles Sanders Peirce. He considered abduction to be a form of logic equal to induction and deduction. It is an absolutely essential element of science and philosophy because it is the only form of logic capable of generating new ideas.^[325]

The process of abduction is as follows: I observe a surprising thing. I do not like to stay surprised. Consequently, I try to make up a story which, if it were true, would make the surprising thing no longer surprising but a matter of course.^[326]

An abduction is not proof.^[327] Its causality is retroactive. It is only the way

[324] Schroeder, Abduction from the Seraglio, supra note 168. The term has other more common sexual and violent meanings. Other terms for abduction in the sense of the logic of imagination are "retroduction" and "hypothesis."

[325] Id . at 180.

[326] Id . at 179–81. To give a silly example, if I were to see a magician make his assistant float through the air, I might initially be surprised because in my experience women aren't so buoyant. Consequently, I start spinning explanatory stories: for example, it's all done with mirrors. This story, if it were true, would make the surprising thing no longer surprising because I believe from my previous experience that it is ordinary course that one can use mirrors to make things appear to be where they are not (e.g., in midair). This abduction might become my working hypothesis which I deem worthy of further exploration. If I had the opportunity to go up on stage, I could test my abduction inductively by trying to touch the airborne assistant in order to determine if she were physically located where she appeared to be. If I could touch the assistant, I would abandon the hypothesis that I was looking at a mirror image and try to abduct a new hypothesis to test.

[327] There are differences of opinion on this, of course. One way one can avoid testing one's abductions is by developing a meta-abductive theory which explains why one's abductions are true. For example, if one theorized that our thought process is governed by a God seeking to reveal Himself to us, one might also theorize that God reveals Himselfthrough our instinctive thoughts—our abductions about God. We would then believe that our abductions are always (or usually, leaving room for demonic interference) true and in no need of further confirmation. Leibniz's theory whereby our mind, as God's creation, has a natural ability to understand the world, as God's creation, is, perhaps, a more palatable semireligious meta-abductive theory.

But not all meta-abductive theories are religious. It can be argued that Peirce himself occasionally fell back onto a meta-abductive theory of the similarity between the structures of our mind and scientific truth about the object world to explain why our (collectively, if not individually) abductions can be expected to be correct a statistically significant percentage of the time. Id . at 183–85.

we generate hypotheses. If I decide an abduction is worthy of serious consideration, I will tentatively accept it as my working hypothesis as to the state of the world, to be tested through other means such as the familiar logical processes of induction and deduction accepted by traditional American science, or by the circular and retroactive dynamic of the dialectic, accepted by Hegelians and Lacanians. Generally, we consider an abduction to be worthy of further testing when it seems "natural" and "reasonable" to us, in the colloquial sense of those words.^[328] That is, through abduction we try to take the surprise out of surprising things. We, therefore, try to abduct explanations consistent with the ordinary course of our life experiences.

As I shall explain in chapter 2, the traditional abduction of property law reflects the experience of the Masculine. In chapter 3, I shall show how Margaret Radin has tried to abduct an alternate property law which reflects the experience of the Feminine. Both traditional jurisprudence and Radin's theories are replete with phallic metaphors. The former adopts the phallic metaphor of property as the male organ, and the latter, the phallic metaphor of property as the female body. The former emphasizes possession and exchange, and the latter, enjoyment.

The point of my analysis is not to suggest that phallic metaphors are psychoanalytically inevitable in all cultures and under all circumstances. The goal of psychoanalysis is not the recognition of inexorable fate but the furthering of human freedom through the increase of knowledge. Nor am I arguing in the alternative that the phallic metaphors are delusional instruments of oppression. Indeed, Lacan's linguistic theory holds that

[328] To return to my example, I would probably reject the following initial abductions because they do not sound "natural" or "plausible" to me, given my past experiences (in fact, they sound downright ridiculous, more surprising than the surprising thing they are supposed to be explaining): "the magician has magic powers," "the assistant is an angel," or even "I am locked in an insane asylum and am experiencing hallucinations." I would only start seriously considering such explanations of the surprising thing after testing and eliminating all other hypotheses which initially sounded more reasonable.

metaphors and metonymy are always necessary elements of all language and, therefore, law.

I am merely suggesting reasons why these particular metaphors for property—the male organ and the female body—might seem so "natural" and reassuring. Lacan explains how we tend to conflate the psychological concept of the Phallus/the Feminine (the object of desire) with the physical organ of the penis and the female body, to equate the Phallic with the phallic. In parallel, we might have a psychological tendency to conflate the parallel legal Phallic concept of property (as the object of desire) with the phallic metaphors of holding and seeing or entering, enjoying and protecting. The psychological conflation can serve positive functions, such as the development of gender identity and the creation of language. But it can also cause tragedy in the form of mental illness, the oppression and rage of women, and the despair of men. Similarly, I am suggesting that the parallel jurisprudential conflation might also serve positive functions, as well as risk not merely confusing, but unjust, legal results. This does not necessarily mean that we should abandon such metaphors, but does mean that we should be aware that we use them, so that we can consider whether it is the best alternative.

Lacan offers one explanation for the use of masculinist phallic metaphors in the law. Another explanation might initially seem simpler. Until very recently, all lawyers were men. In this simplistic view, the empirical fact that some of us are now biological women should add a feminine "different" voice to the law.

The power of Lacanian theory to me lies in its insight that things are not so simple. It suggests that insofar as I am writing this and communicating with you, I am also speaking in the masculine voice. Even different-voice feminists speak in a masculine rather than a "different" voice. They adopt a stereotype of femininity which is merely the negative of the archetype of masculinity. It essentializes what they believe is the empirical experience of women who are psychically positioned as the defining other of man. Consequently, the purported "Feminine" of the different-voice feminist is in fact a mirror image reflecting back the Masculine. Different-voice feminism's account of sexuality is, therefore, imaginary in the technical Lacanian sense. Its image of femininity is the masculine fantasy that woman has an affirmative content that can fill the hole carved in man by castration, enabling the sexes to achieve immediate relation.

Does this mean that legal abductions can only replicate the Masculine? I have stated that Lacanian psychoanalysis does not explain the in-

evitability of patriarchy or the use of phallic metaphors to describe Phallic concepts such as property. However, in our society it is mandatory that we adopt a sexual identity with respect to having or being the Phallus to even be able to speak. Doesn't this show that, while patriarchy may not be natural or inevitable, it has a rapacious reproductive potency?

The very terminology of abduction makes it initially appear to be masculine. As I have explained elsewhere,^[329] the more common meaning of the English word "abduction" is not the logic of imagination, but kidnapping for sexual purposes. To be blunt, it means rape. Abduction was one of the ancient forms of marriage^[330] —indeed, the form memorialized in the Vestal's initiation rite of captio (capture).

At first blush, this might suggest either the symbolic exchange of the Feminine posited by Lacan as the origin of the subject and law, or the actual abduction or exchange of women posited by Claude Lévi-Strauss as the origin of culture. But at second look, the image is more ambiguous. The thinker does not rape his ideas, he is raped by them; he is ravished by his imagination, taken by a new thought. The imagery reflects the masculine vision of female sexual experience—silent, passive, and orgasmic. And so, at one moment, the theory of abduction is the masculine myth of the feminine joy of rape.

But it is more. The imagery of imagination as abduction is precisely the Lacanian concept of the Feminine's access to the real through jouissance . Lacan said that the masculine subject is stuck in the symbolic order of language. The terminology of abduction reflects the concept that in order to give birth to new ideas and to experience jouissance , "he" must take on the position of the Feminine. That is, if we need to take up the position of the Masculine to speak, we must take up the position of the Feminine to enjoy.

This is the fundamental anxiety of masculinity which Freud called castration fear. To achieve subjectivity, the Masculine must identify lack with the Feminine, and then turn away from her. And yet, in fact, all human beings experience jouissance , the experience of the Feminine. Consequently, according to Zizek,^[*] the real problem with the real (and with the Woman who doesn't exist) is not that it (she) is unattainable, but that it (she) cannot be avoided.^[331] We must all face our castration.

[329] Schroeder, Abduction from the Seraglio, supra note 168, at 115–17.

[330] In classical Roman times, marriage was contractual, but the concept of marriage through abduction continued into the Middle Ages. Schroeder, Feminism Historicized, supra note 191, at 1165.

[331] Zizek, The Indivisible Remainder, supra note 29, at 93.

B—
The Radical Critique Implicit in Lacan

We have seen how Hegel solved the paradox of subjectivity in jurisprudence through the concept of exchange. Similarly, in Lacan, the psychoanalytic subject tries to cure the paradox of desire and castration—the need to simultaneously be, have, enjoy, and lose the Phallus —through an attempted regime of exchange. As I have just said, the law which castrates and thereby constitutes the psychoanalytic subject is the law of prohibition: thou shalt respect the borders of the symbolic order by renouncing the real and the Feminine in the form of jouissance; thou shalt no longer be the Phallus or enjoy it.

This attempt at resolution is, of course, impossible. The Feminine cannot be exchanged because she is lost in the real and cannot be described in the symbolic. Men invent imaginary fantasy images of Femininity to take her place.^[332] Of course, this makes her even harder to grasp. As the Hegelian dialectic of property showed, by treating the subject of love as the object of desire (in the regime of possession and exchange), men cannot achieve the goal of affirmative subjectivity as intersubjectivity. Since their own femininity is prohibited, women often hopelessly attempt to live this fantasy image. They proudly proclaim that they are speaking in a feminine "different voice," when they are, in fact, merely reciting a script written for them in the Masculine.^[333]

The Lacanian story is one of emptiness and desire. It denies the sexual status quo by showing that masculine superiority is a sham, a pathetic lie. It reverses our sexual stereotypes—accepted as much by radical and cultural feminists as by traditionalists—that men are more independent and autonomous and women more relational and communitarian. It is only in our masculine aspect that we can be members of the symbolic community. The radicalism of Lacan resides in the fact that it is not a mere reversal in the sense of a mirror image which would merely reflect back upon the status quo. Rather, it is a subtle warping and revalorization of the status quo. The Lacanian community of castrating Fathers is not that of warmth and fulfillment imagined by cultural feminists. It is based on repression, castration, and law.^[334] It is not, therefore, surprising that men often engage in aggressive attempts at individuality in order to achieve a separation from community which they cannot

[332] See Lacan, Love Letter, supra note 198, at 50.

[333] See Schroeder, Abduction from the Seraglio, supra note 168, at 120–51.

[334] Cornell, Doubly-Prized World, supra note 173, 664; Cornell, Beyond Accommodation, supra note 190, at 53–54.

achieve.^[335] Similarly, as Julia Kristeva argues, many women engage in desperate clinging and seemingly relational behavior in a desperate attempt to have relations and achieve the closeness of community which is always denied them.^[336]

If this were all that Lacan had to say, however, his theory would merely be a depressing condemnation of society. It is depressing precisely because it simultaneously reveals our life as a fiction, but as one which we are incapable of rewriting. There is, however, another optimistic, affirmative, and creative way of reading Lacan.

Through castration we have exiled the Feminine—immediate relationship and jouissance —to the real. As we have seen, the real is the realm of the impossible, of the limit. This constitutes the Feminine as radical negativity. We Americans with our "positive attitude" assume that the negative is bad, that to identify the Feminine with the negative is to denigrate her. Indeed, it is precisely the negative hole at the center of the split masculine Lacanian subject which is often considered his most depressing discovery. This is a serious misreading.

Hegel shows that negativity is the very condition of freedom. It is the failure of constraints. It is the emptiness as the heart of subjectivity which allows us to desire and love. Consequently, although Lacan speaks of the Masculine as the subjective position, only the Feminine in her radical negativity can symbolize the free subject.

One might assume from this that since the Feminine is exiled to the real, then, by definition, freedom cannot be achieved. No. Castration as the incest taboo is an alchemy. It turns the impossible into the forbidden. It is not merely impossible for a speaking subject to enter the real, to be feminine. The Name-of-the-Father prohibits us from doing so. Prohibition, however, necessarily implies the possibility of its transgression. In denying the Feminine it, in fact, creates the Feminine as the possible—the not yet.

[335] Cornell, Doubly-Prized World, supra note 173, at 664–65.

[336] Kristeva, supra note 169, at 201.