Axe and Bundle of Sticks
Many scholars, including not only Grey and Vandevelde but also Singer, Beermann, Balkin, and Kennedy, expressly or implicitly assume that the identification of the separate elements of property means that the elements may be freely combined and recombined in any of an infinite number of combinations and that therefore property has no essence. To use my recurring terminology, they assume from the fact that the fasces can be unbundled into separate sticks that it cannot also be rebundled to serve as an axe.
For example, Jack Balkin argues that Hohfeld's theory of jural correlatives and opposites closely parallels Ferdinand de Saussure's semiotic theory of the arbitrary nature of signification in language. A Hohfeldian legal semiotic, according to Balkin, logically leads to the de-objectification
of property and the disaggregation of legal concepts into a bundle of sticks that can be freely arranged and rearranged to suit any purpose. But Balkin reveals himself to be a classical liberal sheep in postmodern wolf's clothing. He implicitly presupposes an autonomous subject that creates, and therefore exists outside of, law and language. Law and language are, therefore, merely tools that can be freely changed and manipulated at will.
Lacan's theory is also by necessity a theory of linguistics, because he thought that the subject was always the subject of language. His linguistic theory relies heavily on Saussure. Lacan shows, in contradistinction to Balkin's suggestion, that the logical implications of Saussure's linguistic theory are totally antagonistic to Hohfeld's—and Balkin's—jurisprudential project. The postmodern subject is not an external manipulator of language. Language and the subject are mutually constituting. This means that the subject is not only the subject of language. He is also subject to language.
Hohfeld's theory is what my colleague Arthur Jacobson calls a "correlating jurisprudence." Such a jurisprudence assumes a closed legal universe in which all possible legal relationships are already captured in a complementary system of rights and obligations. This idea has been accurately conceptualized by Duncan Kennedy and Frank Michelman as a "Law of Conservation of Exposures" —the only way I can increase my rights is by decreasing your rights in an equivalent manner. In contradistinction, the Lacanian-Saussurian system is a noncorrelative one.
In a Lacanian-Saussurian linguistic system, the arbitrary nature of significance means that meaning is always slipping; all language is metaphor and metonymy. Consequently, true correlatives and negations of the type supposedly identified by Hohfeld are impossible or illusory. Such identification is imaginary, whereas signification is symbolic. To Lacan and Saussure, meaning is always a spurious infinity. "Each signifier refers not to any corresponding signified but rather to another signifier
in a sequence or 'chain' of signifiers that Lacan describes as being like 'rings of a necklace that is a ring in another necklace made of rings.'" Postmodern thought, as exemplified by Lacanian psychoanalysis, is precisely the denial of fit and complementarity; something is always missing, and something is always spilling over.
For example, although the Feminine is positioned as the negation of the Masculine, this cannot mean that if the Masculine is the positive, then the Feminine is the negative, or that woman is the complement to man. Rather, to Lacan, while the Masculine is the claim to be all, the Feminine is not nothing. She is the not-all (pas-toute ), as in not all things are Phallic . She is the denial of the fictional hegemony of the Phallus , which is the very foundation of subjectivity. Woman is not the complement to man, therefore, but a supplement. The Phallus is the forever-lost object from which we are castrated—the lack or hole that exists at the core of Lacanian subjectivity and Hegelian totality. There is always something more
and something lacking that makes immediate relationship impossible. Mediation is always necessary because it is impossible.
The noncomplementarity of sexuality explains why woman is object of man's fears and hopes, Fury as well as Muse, Kali Ma as well as Virgin Mary. The masculine position is "all are subjected to the symbolic order." The Feminine is the denial "not all." She is, therefore, on the one hand, the exposure of the lie of subjectivity and the symbol of universal castration. Woman in this aspect must be suppressed and subordinated. The Masculine tries to deny the freedom of feminine negativity by replacing her with fantasy images of femininity. On the other hand, by denying that all are castrated in the sense of subject to the law as prohibition, the feminine denial is the hope of freedom and the achievement of wholeness. She is the dream that the Phallus is not always already lost, but not yet found—that sexual relations are not impossible, merely forbidden. This aspect of the Feminine, like the superego, urges us "Enjoy!"
Moreover, the arbitrariness of significance does not mean that meaning or legal concepts can be freely manipulated. We do not bind ourselves to fixed linguistic and legal concepts despite the arbitrariness of signification but just because of its arbitrariness and slippage. In Lacan's metaphor, we must quilt together the shifting layers of signifier over signified. Meaning and language, and subjectivity itself, consist precisely of this fiction of static significance. This is, of course, the masculine position of claiming to have "it"—to have captured that which cannot be captured. Consequently, subjectivity is a dialectic concept that is both free in that it is a fiction and bound because it is a fiction. If we change the fiction, we change ourselves. Because Lacanianism denies the naturalness or inevitability not only of the legal regime but of subjectivity itself, it holds out the possibility of the truly radical change of creating alternate sociolinguistic-legal universes. But a new alien species of subject will necessarily inhabit such new universes. The postmodern subject, unlike his liberal modern counterpart, who is at some level autonomous from the legal regime, cannot, therefore, merely "will" changes in the fundamental aspects of the legal and linguistic regime, which is the gender hierarchy. When we quilt
signification, we sew our very subjectivity. Changes in the symbolic order require a dialectical and simultaneous change in every aspect of our subjectivity and society. The problem for those of us who are both Lacanians and progressives is how to start this chicken-and-egg process in motion. How can we ever sublate masculine subjectivity and feminine objectivity to achieve the not-yet immediacy of sexual relations, without submerging into the deadly unity of the real?
Slavoj Zizek[*] gives a wonderful illustration of the difference between the modern (Hohfeldian-Balkinian) and postmodern (Lacanian-Saussurian) concept of the subject. Near the end of the movie Blow-Up , the protagonist passes a group of people miming a game of tennis without a ball. One of the players pretends to hit the ball out of bounds. The protagonist plays along and pretends to retrieve the ball and toss it back into the court. Modernism concludes from the observation that the "game" of society is not inevitable or natural, it has no content; content resides solely in the subject itself. Postmodernism, in contradistinction, does not deny the necessity of the object merely because it is arbitrary. Rather, it shows us the object in all its "indifferent and arbitrary character." In other words, the modern subject is conceived of as autonomous from, and therefore in control of, the game. He not only can change the game or leave the game but does not even need a ball or other external object to play the game. The postmodern subject, however, is not autonomous with respect to the game of law and language. He exists as a subject only insofar as he plays the game. Consequently, there must always be a game and a mediating object of desire.
Thus, insofar as legal concepts serve functions—social, economic, psychic, or philosophical—the combinations of jural elements cannot be random or arbitrary and cannot be freely altered at will. Hegelian philosophic theory, combined with Lacanian psychoanalytic theory, indicates that the possession, enjoyment, and alienation of external objects serve necessary roles in the development of subjectivity in this society. Consequently, it is meaningful and not random for a legal regime to recognize a distinctive category of legal rights called "property" that contains all three of these elements. This does not mean that all legal relationships need be full
property relations. Nor does it mean that all property relations must be absolute; we may want to recognize limitations on any or all of the three general categories of property rights. Indeed, as Hegel himself argued, the logic of the concept of property is both self-limiting—unlimited property rights of different subjects would be mutually inconsistent—and limited by other, more developed concerns of human development, such as morality and ethics.
Nevertheless, the Hegelian-Lacanian approach only defines the parameters of property at the most abstract level and has little or no practical use in prescribing the minutiae of specific property regimes. The specific limitations and applications of the broad and abstract concept of property to meet the needs of any given society are properly to be determined by practical reasoning and adopted into positive law—precisely as pragmatists such as Grey argue. This is why the Hegelian idealist philosophic tradition is arguably the precursor not only of Continental postmodern philosophy but also of American pragmatic philosophy. The flexibility of Hohfeldian atomic analysis arguably gives it an advantage over a molecular approach in the pragmatic enterprise of promulgating the positive law of property. But it has the danger of making us think that by fiddling with the details of the positive law of property, we can undermine the crushing hegemony of the regimes of property and gender, rather than merely replicate them.
The Denial of the Feminine
The imagery of the bundle of sticks—the attempt to disaggregate property—is self-defeating. It reflects the desire to capture the
symbolic aspect of property as human interrelationships, but it denies the mediating object that permits the development of subjectivity as intersubjectivity. In an attempt to recognize the element of exchange, it represses possession and enjoyment. Property as alienation reflects the failed masculine strategy of trying to attain wholeness by retroactively "consenting" to castration in exchange for the promise of a future substitute object.
The imagery of the axe—the attempt to epitomize property as the sensuous grasping of physical things—is the mirror image of that error and is equally self-defeating. It denies property its very nature as a legal relation—symbolic, abstract, social, and mediated—in favor of an imagined, infantile, immediate, real union of the subject and the object. The traditional approach taken by Waldron privileges the elements of possession and represses those of enjoyment and alienation. This is particularly inappropriate in the merchant's transaction where alienation through market exchange is of the essence. Property as possession reflects the failed masculine strategy of pretending to be whole by denying castration and the resulting necessity for mediation.
The symbolic Phallus is the object of desire. Our ultimate desire is the imaginary, forever-lost union with the Other imagined as the Mother, which we place in the real world beyond interpretation. Consequently, the Phallus —what men are supposed to have and women are supposed to be—is paradoxically both the Feminine and the signifier of masculine subjectivity.
Men try to attain subjectivity and hold the Phallus , not only by having the real penis but also by trying to control women's bodies. Of course this is unsatisfactory. They can never attain the Phallic Mother. So, in frustration, they deny the existence of the lost Feminine. They try to pretend that they achieve unmediated relationships by denying the existence of the mediator. In Lacan's terms, "The Woman does not exist." She is real in the technical sense that she cannot be adequately described in symbolic language, but she cannot be reduced to or grasped as a real object. The Woman—the Feminine—becomes purely the imaginary object of men's fantasy; woman becomes a symptom of man.
We try to explain our desire by retroactively positing a cause—the object petit a —which sits at the crossroads of the symbolic and the real. In the imaginary we identify the object a with a specific thing that is actual, biological, natural—that is, seemingly real. This is in the vain hope that
if we can attain the real object, then our desire will be fulfilled. Or, we deny mediation entirely.
Waldron, Baird, Jackson, and Llewellyn insist that property is archetypically sensuous on the grounds that sensuous things exist, can be seen, and are easier to identify and think about. This attempt to embrace the lost Feminine by grasping tangible things is, once again, reflected in etymology. The word "material" derives from the word for "mother." But property interests as a legal matter are abstract and symbolic and as an empirical matter are often concerned with noncorporeal objects. Consequently, sensuous grasping is inadequate to the role of the archetypical relation of the subject with the object of desire of property in precisely the same way as the penis and the female body are inadequate to serve the psychoanalytic role of the Phallus . This is the psychoanalytic position of the Masculine—the deluded, split, and despairing Lacanian subject who continues to repeat the lie that he is not castrated: he has the Phallus merely because he has and controls tangible property, just as he has a penis and controls women. The masculine position is not to have "it" in fact, but to claim falsely to do so.
Noncorporeal property, like feminine sexuality, is at once hidden and ubiquitous, lack and surplus. We try to deny the Feminine her role as Phallus precisely because she cannot be easily seen and held. Feminine sexuality must be tamed by defining her as the female body that is occupied—possessed—by the penis in heterosexual intercourse. Thus Waldron says that only the tangible, and no other form of property, exists. The noncorporeal can only be discussed if it can be analogized to the corporeal. To Waldron we possess but don't exchange, to Grey we exchange but don't possess. Neither can recognize feminine enjoyment.
Because feminine intangibility is hard to identify and think about, it
must be denied. The Feminine and property are identified with "lack." The Lacanian masculine subject insists that The Woman does not exist. Thus Hohfeld, Grey, and Vandevelde mirror back Waldron's psychoanalytically masculine position. They say that the res of property does not exist.