I—
Property as the Object Petit A

In chapter 1, I argued that the phallic metaphor haunts property discourse because it is an abduction that comes so easily to us as to seem natural. Both property, according to Hegelian philosophy, and the Phallus , according to Lacanian psychoanalysis, serve as the defining objects of desire that enable us to create ourselves as acting subjects through the creation of law. The parallel roles reserved for property and for the Phallus in the political and psychoanalytic philosophies of Hegel and Lacan are the reason these metaphors so frequently recur in discourse about property law. Just as we conflate the psychoanalytic concept of the Phallus with the male organ and the female body, so we use these anatomical metaphors to describe the Phallic relation of property.

Although sexuality is an essentially symbolic or linguistic category, it becomes mapped onto anatomical differences by a conflation which I have called the imaginary collapse of the symbolic into the real. This is a doomed attempt to deny castration, recover the Feminine, and experience the jouissance of immediate relationships. The imaginary collapse of the symbolic and the real that Lacan noted at the psychic level is reflected in a similar conflation at the legal level. Property, like sexuality, exists at the linguistic-legal level of the symbolic in the sense that property, subjectivity, and law are mutually constituting. Property cannot, therefore, belong in the animalistic, physical, impossible, prelegal realm which we locate in the order of the real. It does not exist primarily to satisfy our physical, limiting,

needs . Property is Phallic and, as such, is an object of insatiable symbolic desire, not of satiable real need or even imaginary demand. Because desire can only be played out through intersubjectivity mediated through objectivity, desire and its objects are symbolic categories. That is, we desire the object of desire derivatively as a means of achieving our true desire—the love of other subjects.

According to Lacan, we sublimate our desires and identify the object of desire with a specific object that Lacan called the objet petit a .^[1] Although this object a is an imaginary—in the technical sense—substitute for the symbolic object of desire, we make it function retroactively as the object cause of the desire.^[2] The object little a, therefore, is the point at which the

[1] The French term is short for "the object spelled with the little a" and designates that object which stands in for the "other" (lower case, i.e., the specific other as distinguished from the big Other of radical alterity which first includes the (M)Other in the mirror stage and later comprehends the entire symbolic order which, in our castration, seems other to us). The French word for "other" (autre ) is obviously spelled with an "a." This subtlety is lost if the word is translated literally and directly into English—for the obvious reasons that both "object" and "other" are spelled with an "o."

Lacan considered the concept of the objet petit a his most important contribution to psychoanalysis. In this book, I am not attempting to give a full account of this rich and complex concept, but I refer to one aspect of the little a as the retroactive cause of desire. See Jacques Lacan, The Four Fundamental Concepts of Psycho-Analysis 17, 62, 76–77, 103–04 (Jacques-Alain Miller ed. & Alan Sheridan trans., 1981) [hereinafter Lacan, Four Fundamental Concepts]; Jacques Lacan, God and the Jouissance of the Woman [hereinafter Lacan, God and Jouissance ], in Jacques Lacan and the école freudienne, Feminine Sexuality 137, 143 (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) [hereinafter Lacan, Feminine Sexuality]; Jacques Lacan, A Love Letter (Une lettre d'âmour), in Lacan, Feminine Sexuality, supra at 149, 153–54; Jacques Lacan, Seminar of 21 January 1975, in Lacan, Feminine Sexuality, supra at 162, 164, 167–68; Alan Sheridan, Translator's Note, in Jacques Lacan, Écrits: A Selection at vii, xi (Alan Sheridan trans., 1977) (1966) [hereinafter Lacan, Écrits]; Bice Benevenuto & Roger Kennedy, The Works of Jacques Lacan: An Introduction 175–76 (1986); Elizabeth Grosz, A Feminist Introduction to Lacan 75–78 (1990).

Through the psychoanalytical process of sublimation, the objet petit a stands in for the Other—and thereby functions as the object cause of our desire. This object can conventionally take the form of a woman or, more fetishistically, a body part such as a breast. But an infinite number of objects can so function to put the chain of desire into motion. The imaginary object need not be sublime in the conventional sense of beautiful or nonsexual. It often takes the form of the disgusting, obscene object of morbid fascination. See Grosz, supra at 75–77, 80–81; Jacques Lacan, Introduction to the Names-of-the-Father Seminar, in Jacques Lacan, Television 81, 82 (Joan Copjec ed. & Denis Hollier et al. trans., 1990) (1974) [hereinafter Lacan, Television]; Lacan, Television, supra at 3, 21; Slavoj Zizek,^[*] For They Know Not What They Do: Enjoyment as a Political Factor 148, 231, 255 (1991) [hereinafter Zizek, For They Know Not What They Do]; Jacqueline Rose, Introduction II to Lacan, Feminine Sexuality, supra at 27, 48.

[2] That is, "the subject calls for recognition on the appropriate level of authentic sym-bolic exchange—which is not so easy to attain since it's always interfered with—is replaced by a recognition of the imaginary, of fantasy." Jacques Lacan, The Seminar of Jacques Lacan, Book II, The Ego in Freud's Theory and in the Technique of Psychoanalysis 1954–1955, at 15 (Jacques-Alain Miller ed. & S. Tomaselli trans., 1988) [hereinafter Lacan, Seminar II]. The objet petit a is "the chimerical object of Fantasy, the object causing our desire and at the same time—this is the paradox—posed retroactively as this desire." Slavoj Zizek,^[*] The Sublime Object of Ideology 65 (1989). "The paradox of desire is that it posits retroactively its own cause, i.e . the object a . . . ." Slavoj Zizek, Looking Awry: An Introduction to Jacques Lacan Through Popular Culture 12 (1992) [hereinafter Zizek, Looking Awry].

three orders intersect.^[3] We insist that it is actually the desire for her body, his penis, my house, your car, her wedding ring, that drives us on. Although we look for a substitute object because we desire, we pretend that we desire because of the desirability of the object. We do this because it seems to hold out the hope that if we obtain the object, we will then fulfill our desire. But "[t]he phantasy is the support of desire; it is not the object that is the support of desire."^[4] By definition, we cannot fulfill desire; merging with the Other in an unmediated relation destroys subjectivity, consciousness, and speech. Because need can be met, through sublimation we identify the unattainable real object of our desire which was created and prohibited in the symbolic with an empirical or physical (i.e., seemingly real) object we can imagine as the object a.^[5]

Just as the masculine position has two failed strategies for avoiding confrontation with castration, the masculine phallic metaphor for property comes in two versions, positive and negative. The former sees the fasces

[3] Ellie Ragland, Essays on the Pleasure of Death 161 (1995). It is the point at which the orders intersect. Ellie Ragland-Sullivan, The Sexual Masquerade: A Lacanian Theory of Sexual Difference, in Lacan and the Subject of Language 1 (E. Ragland-Sullivan & M. Bracher eds., 1991). (Zizek, speaks of it as "a little piece of the real" in the symbolic. Zizek, Looking Awry, supra note 2, at 33. The objet a functions as a semblance of jouissance , as a piece of the lost real remaining in the symbolic. It is only a semblance because although we retroactively posit the objet a as "islands of enjoyment" which are left behind when the real withdraws, this cannot be the case because the real does not really preexist the symbolic. Rather, it is the illusion that the little a is a leftover, a surplus of something lost which retroactively creates the real as that which is beyond the symbolic. Id . at 36. Elsewhere Zizek, writes, "The paradox of this object—of objet petit a —is that although imaginary, it occupies the place of the real." Slavoj Zizek, The Metastasis of Enjoyment: Six Essays on Woman and Causality 50 n.6 (1994) [hereinafter Zizek, Metastasis].

[4] Lacan, Four Fundamental Concepts, supra note 1, at 185.

[5] This is a common misconception of desire.

[Understanding] consists in thinking that some things are self-evident, that, for example, when someone is sad it's because he doesn't have what his heart desires. Nothing could be more false—there are persons who have all their heart desires and are still sad.

Jacques Lacan, The Seminar of Jacques Lacan, Book III, The Psychoses 1955–1956, at 6 (Jacques-Alain Miller ed. & Russell Grigg trans., 1993) [hereinafter Lacan, Seminar III].

as the axe^[6] —a weapon to be grasped and wielded as a whole. The latter sees the fasces as the bundle of sticks—to be untied and separately distributed. The former emphasizes the masculine element of possession, the latter the masculine element of exchange. Like a modern lictor, the lawyer can use property in part or in whole to flog his case or execute his judgment. Theorists who adopt the masculine metaphor usually presume^[7] that the axe and the bundle of sticks are mutually inconsistent ways of ana-

[6] The "bundle of sticks" metaphor for disaggregated property (the negative masculine metaphor) is one of the more familiar legal clichés of the twentieth century. As James Boyes notes:

After all, in contemporary legal discourse the most common conception of property is the bundle of legally protected interests, held together by competing and conflicting policy goals. The removal of one or more sticks from the bundle should have no particular implications for the legally protected interests that remain.

James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading , 80 Cal. L. Rev. 1413, 1512 (1992). This view is designed to contrast with the supposedly classic view of "title":

To the extent that there was a replacement for this Blackstonian conception it was the familiar "bundle of rights" notion of modern property law, a vulgarization of Hohfeld's analytic scheme of jural correlates and opposites, loosely justified by a rough-and-ready utilitarianism and applied in widely varying ways to legal interest of every kind.

Id . at 1459. See also James Boyle, Shamans, Software, and Spleens: Law and the Constitution of the Information Society (1996).

One of the most famous early uses of this metaphor is by Benjamin N. Cardozo: "The bundle of power and privileges to which we give the name of ownership is not constant through the ages. The faggots must be put together and rebound from time to time." Benjamin N. Cardozo, The Paradoxes of Legal Science 129 (1928). Note that, unlike many contemporary legal scholars, Cardozo does not use the "bundle of sticks" metaphor to argue either that any individual stick can separately be characterized as property or that just any bundle of sticks can be characterized as property. Rather, he argued that somewhat different bundles have been recognized as complete property interests at different times.

J.E. Penner traces the metaphor back to at least as early as 1888. J.E. Penner, The "Bundle of Rights" Picture of Property , 43 UCLA L. Rev. 711, 713 n.8 (1996).

I have invented the imagery of the axe.

[7] Although this presumption is often implicit in the use of the affirmative masculine metaphor, as I shall discuss in section III.A of this chapter, proponents of the negative (bundle of sticks) version of the metaphor explicitly state that the two points of view are alternatives. Another example of this presumption of duality can be seen in Guido Calabresi and Douglas Melamed's well-known analysis of environmental nuisances. Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral , 85 Harv. L. Rev. 1089 (1972). They see what they call "property" (which emphasizes the element of possession) and "liability" (which emphasizes the element of alienation through exchange) as two alternate legal regimes. Jeanne L. Schroeder, Three's a Crowd: Calabresi and Melamed's Repression of the Feminine (1997) (unpublished manuscript, on file with author) [hereinafter Schroeder, Three's a Crowd]. I argue that their dichotomy reflects the two masculine strategies to deny castration and attempt to reduce the tertiaryrelationship of property to a binary one (either subject-object or subject-subject). I criticize them for not seeing that, in fact, they are two necessary aspects of a single tertiary regime, and for repressing the feminine element of enjoyment, which lies at the heart of environmental disputes.

lyzing property. They are, in fact, two sides of the same coin. The masculine imagery of property is a fasces—simultaneously both axe and sticks.

When we adopt the positive masculine phallic metaphor, we try to reduce property to physical objects we control. This is a strategy to avoid confronting the triune mediated nature of property and subjectivity. Property is reduced to possession, conceptualized as the simple immediate binary relation of subject to object—property is the wielding of the axe. While this accurately recognizes that a property interest in a physical object may include the right sensuously to see and grasp, property cannot be reduced either to sensuous contact or to the physical thing itself which is the object of the property right. Nor does the sensuousness of the contact or the physicality of the object epitomize the property relation. This seems to be self-evident, and yet we continue to identify property with physicality—to imagine that we can collapse the symbolic into the real.

When the implicit physicalist imagery underlying this view of property is made express, it appears painfully naive. But those writers who do confront the inadequacy of the imagery of property as tangible object do not escape the lure of the masculine phallic metaphor. Despite their protests to the contrary, they cannot imagine property as anything other than a phallic, physical object. As a result, they feel forced to condemn not this incompetent image of property but the entire institution of objective property. They argue that property as we know it does not exist (or is in the process of disappearing) and attempt to propose a new definition. This alternate approach of legal discourse insists that property is an unmediated binary legal relationship between subjects—a relationship that does not require a mediating res or object. The fasces of property is unbundled into a random and contingent bundle of rights with no essential characteristics.

I have suggested that the axe and the bundle of sticks—the positive and negative manifestations of the masculine phallic metaphor—reflect the failed two strategies by which the Masculine tries to avoid confronting castration and achieve the wholeness of immediate binary relationship. The first strategy is simple denial—the subject insists that he still has "it." In law this is done by repressing the relational, mediated

aspect of property and emphasizing the binary relation of subject to owned object in possession. Under the second strategy he pretends that he gave up the original Phallus in exchange for a promised future access to an object of desire. In law this is done by repressing the objective mediator of property and emphasizing the binary relation of subject to subject in exchange.

If we view property theory in terms of this urge to deny castration and achieve wholeness by collapsing the three orders, we gain insight into the tendency to picture property concepts in terms of phallic metaphor. We envision property in terms of the archetype of the penis and the female body. In the former manifestation, we imagine property as a physical object that we see, hold, and wield. In the latter manifestation, we imagine it as a physical object that we either protect from invasion or occupy and enjoy. When men speak of possessing a woman in sexual intercourse, they are not merely using a metaphor or invoking an analogy to the possession of property. The two are not merely similar; they are psychoanalytically identical.^[8]

If the conflation of the Phallic concept of property with phallic concepts of physicality reflects our psychic constitution, its recurrence no longer seems merely surprising. It risks seeming inevitable. It may be impossible for people situated in our society to speak about property without descending to phallic imagery to describe Phallic concepts. Thus, on one level I mean to critique, but not to criticize, those legal writers who reinstate the phallic metaphor of property even as they purport to deny it. On another level, however, I argue that psychoanalytical theory's exposure of the identification of the symbolic and the real as imaginary as a doomed attempt to collapse the three orders of the psyche enables us to rethink the relation and to try to imagine other, more adequate ways of thinking about property. The attempted collapse of the three orders through the use of the phallic metaphor is doomed because it is merely a denial or repression of the fact of castration—consciousness consists of three orders, the subject is split, and immediate sexual relations are impossible. What is required is not the denial but the sublation or transcendence of castration.

This will not be an easy task, however. The postmodern subject hypothesized by Lacan is paradoxically constrained by its own radical freedom. If subjectivity, law-property, and language-sexuality are mutually

[8] Erich Neumann, The Great Mother: The Analysis of the Archetype 98–99 (Ralph Manheim trans., 1963).

constituting, then the subject is not merely the subject of the symbolic order; the subject is also subject to the symbolic order. Because the symbolic order in which we are currently located is neither natural nor inevitable, Lacanian thought holds out the theoretical possibility of creating radically different alternate orders. But changing the symbolic order would entail simultaneously and radically changing the subject. Destroying the symbolic would destroy the subject. The question, therefore, is whether the symbolic and subjectivity can be sublated in the sense of preserved as well as negated. This is the goal of achieving the Feminine in her guise as the not yet.

In this chapter, I will examine the work of a number of legal theories and doctrines which reflect the masculine phallic metaphor for property. I will discuss the positive version of the metaphor first and then turn to the negative. In each case, I will first present an example of the use of the metaphor in legal theory, and then follow it with an example from commercial law.

Representative of those who wield the axe of positive masculine phallic jurisprudence is Jeremy Waldron. Waldron agrees that contemporary neo-Hohfeldian analysis makes the task of defining property difficult, but he argues that it can be done by applying a Wittgensteinian family-resemblance analysis starting with the archetype of ownership of physical objects. Waldron represents the revival of property theory against the twenty-year assault that property has undergone from both the Critical Legal Studies and Law and Economics movements.^[9] I will show that Waldron's implicit masculine theory of property is inadequate because it reduces property to possession and conflates possession with sensuous grasp of tangible things and thereby has no account of the rights of enjoyment and alienation and can only deal with intangible property indirectly through analogy.

After examining Waldron's theory, I then turn in section II.B to what must be the most extreme version of the masculine phallic metaphor in positive law—the commercial law doctrine of "ostensible ownership" as

[9] Most of the writers I discuss in this section are generally associated with the liberal or critical left. This is because I am intuitively drawn toward the progressive political position and, therefore, find left-leaning jurisprudence more interesting. The reader should not infer from this that the right is any less guilty of the phallic metaphor. I am, perhaps, more critical of what I consider insufficient arguments offered in support of positions I wish to support than of those I wish to oppose on other grounds. I am in the early stage of applying my property theory to Law and Economics. See Schroeder, Three's a Crowd, supra note 7.

explicated by Douglas Baird and Thomas Jackson. This is presented as an example of the pernicious effect of unconscious use of this metaphor—unwieldy and confusing legal doctrine. This dogma holds that property is so archetypically physical that any property interest which cannot literally be reduced to the grasp of a tangible thing (either because the interest is noncustodial or because the object of the property interest is intangible) is problematic and fraudulent as a matter of law. Such interests are to be voided unless they can be "cured" through elaborate analogies to sensuous grasp. I will show that, regardless of the historicity of the doctrine, its presumptions are absurd as an empirical matter. We cling to this doctrine for psychoanalytic reasons despite its inaccuracy and disutility. Here I return to the Hegelian property theory introduced in chapter 1 and show how it enables us to get beyond the phallic metaphor in order to address directly the issues which the ostensible ownership tries unsuccessfully to solve.

I next consider the thesis that property, if not dead, is in the process of disintegration. Thomas Grey is probably the most prominent theorist who adopts the bundle-of-sticks metaphor. He argues that if property cannot be conceived as a unitary right with respect to tangible things, then it must lose its meaning as a legal category. Because property cannot have this meaning, it does not exist. But this thesis depends on the proposition that property only has meaning if conceptualized as the sensuous grasp of physical things by a single human being. I will show that the bundle-of-sticks theory of property is inadequate because it insists on denying the existence of property despite its continued existence as a well-recognized category of law and a vigorous legal and economic practice.

Finally, I turn to the supposed doctrinal basis for Grey's allegation of the disintegration of property. By examining the writings of Karl Llewellyn, I will disprove the well-known cliché that by rejecting common-law "title" analysis, the drafters of the Uniform Commercial Code (the "U.C.C.") disaggregated property into a bundle of sticks. The U.C.C., in fact, not only incorporates traditional unitary property concepts, it adopts the positive masculine phallic metaphor with a vengeance through a radically physicalist notion of property. Indeed, the realists departed from the common law precisely because they perceived it as insufficiently physical. In other words, although it is a common assumption among lawyers that the U.C.C. imagines property as a bundle of sticks, it in fact implicitly reimagines property as an axe. Or, more accurately, it unstably alternates between the two.