Property as the Inviolate Feminine Body
Her vestal livery is but sick and green, And none but fools do wear it.Cast it off!
In the 1980s, Margaret Jane Radin emerged as a prominent property theorist. Radin's project is to promote legal recognition of the role that identification with objects plays in the development of personhood. Radin labeled this a theory of "property for personhood." The essence of her theory is that proper object relations are necessary for the
development of subjectivity because we identify so closely with certain objects that we cannot distinguish our property from our personhood. Consequently, human flourishing requires the recognition of certain legal rights that protect these privileged objects, which she would call "personal" property, from invasion.
Radin's theory initially seems to be a feminist jurisprudence, reflecting feminine bodily experience. Radin protects and dignifies the feminine side of personhood as object by arguing that those objects that literally or figuratively constitute the female body should be market-inalienable. Her theory of property for personhood disrupts market alienations and allows the feminine self to enjoy herself as object as means to her own ends.
The appeal which Radin's account might have for feminists is obvious. My analysis, however, reveals an intrinsic dark side to Radin's theory. It is necessarily incomplete. Although she claims to account for the development of personhood within community, she provides no account of community (i.e., intersubjectivity). Community is just assumed to preexist. I will show that because Radin presupposes that persons begin as integrated members of a community, her ideal of personal property can only function to allow persons to withdraw from the community in order to enjoy a lonely autonomy. This is inconsistent with her stated goal in reinterpreting property, namely, to prevent separation.
Her theory is necessarily inadequate. It never suffices for feminists merely to disrupt misogyny by exposing and withdrawing from the masculine fiction of subjectivity. Withdrawal only serves to underline the logical necessity of community. Even in denial and condemnation, we recognize masculine subjectivity and silence ourselves in feminine objectivity. Nor is it possible merely to add a feminine narrative to the masculine fiction. Rather, we must write a new myth that supersedes the masculine fiction.
In chapter 2, I showed how the triune nature of property is in danger of becoming lost in contemporary legal scholarship. Generations of legal scholars have repeated Hohfeld's faux pas that property rights do not require a res , or object, at all. By repressing the object (and thereby also repressing the element of possession), Hohfeld reduces property to a binary subject-subject relationship which implicitly privileges the element
of alienation through exchange. Radin also adopts a binary theory of property. In contradistinction to masculinist theory, however, she centers her analysis of property on the relationship between a single subject and an object. Her dichotomy of property rights—personal property versus fungible property—is defined in terms of the nature of the owning subject's relationship with the object owned. According to Radin, the empirical process through which we develop our personality is the identification with favorite objects. In other words, we do not desire the object of personal property derivatively in order to be desired by others, but primarily as a form of narcissistic autoeroticism. Rather than seeking objects as a means of creating society, as in Hegel, Radin's person seeks objects as a means of establishing "personhood" as an inviolable refuge from a preexisting society. To Hegel, objects are the mediators between subjects which permit the establishment of intersubjective relations, but in Radin, it is the relation between subject and object which is mediated by the preestablished intersubjectivity of "society."
If Hohfeld's zeal to emphasize the intersubjective aspect of property caused him to lose sight of its objective aspect, Radin's insistence on its objective aspect results in loss of its intersubjective aspect. Being intersubjective, community requires both an intersubjective and objective account of property. Consequently, a wholly objective account of property inadequately promotes Radin's stated "pragmatic" goal of developing a theory of the individual within community.
But by concentrating on the object, Radin does not merely repeat Waldron's masculine phallic error of privileging possession. Her primary concern is not with the appropriate allocation of resources among people but with a single owner's subjective, sensuous experience of the object—enjoyment. Being masculine, Waldron's and Hohfeld's accounts of property are complementary and imaginary. They seek to cure castration by holding on to, or obtaining through exchange, the object of desire that
fills the hole and makes the subject whole. Property is seen as an immediate binary relationship either of subject to object or of subject to subject. In contradistinction, Radin's concept of property for personhood, being feminine, is also imaginary but seeks to be unitary and real. She seeks to avoid castration by merging with the object of desire back into the primordial unity that preexisted the symbolic order of law. Subject does not relate to object; she identifies with, enjoys, and becomes object. The ecstatic experience she calls personal property "bridge[s] the gap or blur[s] the boundary . . . between what is subject and what is object."
If traditional property theorists have adopted either a positive or a negative version of the inadequate masculine phallic metaphor for property, Radin, in contradistinction, adopts an equally inadequate feminine phallic metaphor for property. Radin's concept of property for personhood seeks to allow the feminine self to enjoy herself as object without also being the desired object of possession and exchange by others—that is, to be her own end and not the means to another's ends. By seeking to reunite with the Phallic Mother, Radin calls us to obey the superego's obscene command to transgress the law of prohibition—Enjoy!
As with masculine property jurisprudence, Radin's reinterpretation of property reflects the desire to achieve wholeness through an imaginary collapse of the three orders. Her ideal of property serves as her objet petit a —the object cause of desire. She believes that if she can just enjoy the object a, then she can achieve the integrity which she calls "personhood"; that is, the separation of the symbolic order of law will be reconciled with the primordial unity of the real. In the imaginary she identifies specific, identifiable tangible objects to stand in for the lost object of desire. She calls these favored objects "personal property." As do we all, Radin falls "prey to imaginary lures which promise the healing of the original/constitutive wound of symbolization." As the lost object of desire is the Phallus, Radin's imaginary personal property is phallic.
However, to Radin, the archetype of the desired phallic object is no longer the male organ which is physically possessed and exchanged among masculine subjects. Instead, the archetypical object of personal property is literally the female body, as opposed to an abstract feminine position. Property is conflated with the object of property and with enjoyment of that object. Her project is to protect this object from market
intercourse. The psychoanalytic model of Radin's notion of inalienable "personal" property is, consequently, property as chastity. If masculine theorists see property as the fasces —an axe or a bundle of sticks—Radin sees property as the Vestal .
Virginity can be integrity, but it can also be sterility, isolation, loneliness—and oblivion. If the masculine desire to possess and exchange the feminine object is Eros, the feminine desire to merge back into objectivity is Thanatos—the death wish. In her attempt to escape imprisonment in the masculinist seraglio, Radin immures feminine property in a cloister, seemingly free of the masculine fiction, but only because she is walled off from community. As Hegel argued, enjoyment standing alone is addiction. Radin seeks to be "bound up with" property. This violates the logic of both property and feminism as the actualization of freedom. Bound by property, woman becomes fascinated. By binding herself, the inviolate virgo becomes inanimate virga . That which is bound is a fasces . The fasces becomes fascinus , a curse as well as a phallus—that which is carried and displayed by men. Seeking personhood through chaste integrity, the Feminine remains the object of masculine subjectivity.
By suggesting that the favored objects of personal property should be given heightened constitutional protections against governmental takings and searches and seizures, Radin replicates the traditional womanly response to her own integrity—the insistence on an inviolate realm of privacy to which she can occasionally retreat. But Radin goes further and replicates the Masculine's morbid preoccupation with feminine chastity. She fears that the sale of personal property by any person can lead to the commodification of all women. Consequently, she seeks to make the most personal objects market-inalienable as a matter of law. In other words, feminine personhood is so frail and susceptible that the reputation and
integrity of the female sex generally would be injured by the promiscuous intercourse of any one fallen woman. All women, therefore, need be protected not only for their own good but for the good of all, by the forced chastity of the veil.
And so, in her attempt to rewrite the fiction of property, Radin ends up telling the same old story that masculinist theory told. The feminine person merely identifies with her object of personal property, which she enjoys in her virgin solitude. The Feminine remains the passive object of desire—she can only claim the right to refuse her suitors, in an attempt to deny her commodification. Feminine enjoyment—jouissance —remains silent, because the virgin owner never leaves her cell to have social intercourse.
Although Radin insists that the relation of person to object is always already located within society, her concern is protecting "personal" property from society. How do we prevent the commodification of women through exchange? How do we prevent the loss of personhood through the invasion of our bodies and our homes by others? That is, to internalize and merge with objects of "personal" property is to expel and externalize the preexisting intersubjectivity of society. Like the odalisque in her seraglio or the nun in her cloister, life goes on outside without her.
Complete human development and freedom require community as well as individuality. Radin's theory of personhood seeks to describe the individual within community, yet it currently has no account of community. The dynamic Radin describes is the withdrawal of the individual from community into a cloistered universe, in which the subject has nothing to do but consume her precious objects. If the individual develops, she develops retrogressively from an intersubjective public being into a silenced private being. The virgo/virga is not only bound but gagged because she is no longer located in the community of discourse.
Radin's theory of property for personhood contains the contradiction that, although it is intended to prevent the objectification of women, it is based on the identification of personhood with objects. She seeks to prevent the commodification of women, but she has not yet understood that the Feminine is defined as the always already commodified. The Phal-
lic Woman is herself the archetypical and primal commodity. To be conscious and to speak is literarily, if not literally, to objectify the Feminine. This means that the feminist task cannot be to prevent the commodification and objectification of woman. It can only be to search for a way to subjectify and de commodify ourselves as women. Indeed, Radin's theory implicitly reflects this in that she starts out with individuals already located in society who seek to achieve personhood by removing certain objects from the preexisting market regime.
Radin's project is doomed because the feminine myth cannot be written within the masculine fiction. In the masculine fiction, as retold by Lacan, feminine enjoyment—jouissance —must be silent by definition. But the Feminine, also by definition, cannot be totally circumscribed by the symbolic order. On the one hand, even to identify the feminine person with the object, as Radin does, is to admit the masculine fiction and to deny feminine speech. It is to engage in the masculine fantasy which purports to give positive content to the Feminine, thereby depriving her of the radical freedom of her negativity. On the other hand, by insisting on speaking as a woman, one denies the objective position of the Feminine, which is the very basis of the fiction.
The fact that the feminine myth cannot be added to the masculine fiction of property does not mean that we can merely abandon either the fiction or the myth. Rather, we must write a new feminist myth that does not merely negate or modify the masculine account of the feminine position, but sublates and supersedes it in the myth of the Feminine as the not yet achieved actualization of freedom and immediate relation.
An adequate theory of the subject and the object, as expressed through our legal relations and interrelations with objects, cannot be created exclusively from the masculine position which alternately sees property as the intersubjective binary relationship of subject to subject in exchange or the objective binary relationship of subject to object in possession. Accordingly, Radin's attempted feminine objective theory of expanded bodily integrity is incomplete as written today and cannot serve as a substitute for the existing property regime. Thus, to develop a human theory of the legal person, we need to recognize that property is a necessary, but insufficient, aspect of the legal regime of object relations.
To show why Radin's theory of property cannot ground a supersed-
ing myth of the Feminine, I begin by examining Radin's account of personal versus fungible property more thoroughly to explain how property for personhood privileges the objective aspect of property while disparaging the intersubjective. I argue that, although Radin's theory gives dignity to a concept of expanded bodily integrity, it is incomplete and offers an inadequate account of the legal institution of property, generally. Radin claims that her property theory is a critique of and improvement on Hegel's. This assertion is based on a fundamental misreading of Hegel. To demonstrate this, I return to the analysis of Hegel's property theory to discover the point where Radin made a wrong turn. Finally, I conclude by examining in greater detail how Radin's theory of property for personhood relates to the psychoanalytic position of the Feminine.
Radin's Definition of Property
The Identification with Objects
Radin begins her project by asking, in effect: What are the minimum material circumstances necessary to enable one to become a complete person as an empirical matter? What conception of property would further "human flourishing"? Radin states that human beings are, first, embodied: we relate to each other through our bodies. Consequently, it seems necessary to make some form of identification of the person with her body. Next it is necessary to compare the relationship of the individual to her body with the
individual's relationship to other physical things. A simple body/nonbody dichotomy does not satisfy Radin. People identify with, and are identified by, physical things other than their bodies.
This argument has some empirical appeal. Human adults rarely come
into contact with other humans without symbolic, concealing, identifying, medical, useful, beautifying, and other objects. Even in our most intimate moments with our lovers, we are rarely if ever truly naked. We use diaphragms, condoms, and other barriers to protect ourselves from our relationship. Radin concludes from this that we can relate to objects external to our bodies in a way that is not merely analogous to, but substantially identical with, the way we relate to our bodies. She considers this to be intuitively self-evident.
Most people possess certain objects they feel are almost part of themselves. These objects are closely bound up with personhood because they are part of the way we constitute ourselves as continuing personal entities in the world. They may be as different as people are different, but some common examples might be a wedding ring, a portrait, an heirloom, or a house.
That is, we become sentimentally attached to things. Radin argues that these nostalgic object relations can serve the same positive function as body
When an item of property is involved with self-constitution in this way, it is no longer wholly "outside" the self, in the world separate from the person; but neither is it wholly "inside" the self, indistinguishable from the attributes of the person.
Radin, consequently, claims that her theory is not based on a liberal notion of negative freedom, which posits "an absolute conception of property as sacred to personal autonomy," but that it reflects "an affirmative notion of an individual being bound up with an external "thing.'" Indeed, she argues that individuation and integrity require the continuity supplied by personal property object relations.
The Elements of Property
Implicit in Radin's use of the word "property" to describe the object of property, rather than the legal rights with respect to the object, is a decision not to specify the elements which constitute property. Indeed, she condemns the attempt to articulate an enumerated set of rights as property as "naive conceptualism." Thus, she criticizes the elaboration of what she calls the "liberal triad" of property rights (i.e., possession, use, and alienation) as conservative, rule-like thinking. Nevertheless, for Radin to speak of property, she could not avoid adopting implicit
definitions of property rights. That these definitions are left implicit does not mean that they do not function. To analyze fully Radin's arguments, it is necessary to make explicit these implicit definitions.
The binding of the individual to thing implies that Radin privileges use and enjoyment over alienation and even possession as the premier aspect of property. This enjoyment concept of property rights manifests itself in the specific examples of personal property that Radin offers. It is not clear that Radin even identifies "possession" per se as an essential personal property right. Because her personal/fungible dichotomy flows from an enjoyment/instrumental dichotomy, even the right of possession loses its importance and becomes conflated with, or subsumed into, the right of enjoyment. That is, possession is required only insofar it is the most primitive element of property, necessary before there can be enjoyment. For example, her discussion of whether we should recognize a constitutional right against governmental interference with possession of personal or fungible property quickly devolves into a discussion of use. Radin asks us to
[s]tart with physical occupation—possession or the fundamental right to exclude others. . . . A normative inquiry would also be required: for what types of property interests is it ethically appropriate to permit and foster interconnection with persons? Use of property as one's residence is more closely connected to personhood than use of property as a garbage dump for one's factory.
In other words, to Radin, it would seem that possession per se is not essential to property or particularly worthy of protection. Rather she would protect only that accidental possession which is necessary for specific, favored types of enjoyment—feminine sensuous experience.
Further evidence of the privilege of use over possession is the enhanced right that Radin would recognize in tenants to continue to occupy their primary residences upon the end of the lease term, limiting the right of commercial landlords to evict tenants at the end of their terms. Radin makes the distinction that the apartment is personal to the tenant, because the tenant's personhood is wrapped up in her home. The same apartment is fungible to the landlord, because his relationship to it is purely financial. The implication is that the favored right in personal property, as epitomized by the tenant and her apartment, is sensuous use as a primary
residence. Not only is the tenant not attempting to alienate the apartment, Radin would limit the tenant's power to alienate it. She suggests making all residential leases automatically renewable at the option of the lessee, thereby denying the right, power, or privilege of a tenant to enter into a nonrenewable lease (which would almost certainly entail a lower rent).
The Fear of Alienation
Because Radin's theory is based on identification with the feminine object of desire, alienation is not merely deemphasized like possession, it is affirmatively denigrated. Indeed, to the extent pragmatically possible, market-alienation should be prohibited:
Since personal property is connected with the self, morally justifiably, in a self-constitutive way, to disconnect it from the person (from the self) harms or destroys the self. The more something takes on the indicia of an attribute or characteristic of the self, or at least the self as the person herself would wish, the more problematic it seems to alienate it, and the stronger the inclination toward some form of inalienability.
That is, she imagines that if we can just remove the object of desire from the symbolic order of law, we can more easily merge with it and reenter the real. Radin's theory of personhood as identification with the female body as object is therefore reminiscent of Lacan's psychoanalytic theory, which states that in the symbolic order, the Feminine is conceptualized as the object of desire and that the masculine subject constitutes himself through the exchange with other subjects of the object as the Feminine. If one views personhood not from the psychoanalytically masculine position of subjectivity but from the psychoanalytically feminine position of objectivity, then to be the object of commodification (exchange) is threatening. According to Radin, "[c]ommodification stresses separateness both between ourselves and our things and between ourselves and other people." Sale of the female body is not a right but an un-right that should be a legal wrong.
Actually, Radin is deeply ambivalent both as to the relative values of separateness and connection and as to property's role with respect to these values. In at least one place, Radin argues that her concept of personal property increases, rather than decreases, separation.
It may be shown that certain functionings can be served by a form of private property; individual separateness, in particular, and the need to live one's life in one's very own context. When property actually serves this function in a justifiable way, I have called it personal. . . . [T]his form of justification of private property is "contingent and controversial," since it will collapse as a justification if someone shows, to the contrary, that the context of noninterference required for human functioning does not include private property.
Following Martha Nussbaum, however, Radin considers individual separateness to be only one possible capability of humanness, and by no means the most elemental or important. Other human capabilities, which Radin seems to privilege, include affiliation with other humans and relatedness to other species and to nature. She insists that "[i]n human life as we know it, self-constitution includes connectedness with other human beings and also with things in the world. . . ." And so, Radin is on the one hand concerned that what she calls market-alienability or commodification of certain intimate objects will cause the over-separateness of radical individualism, and the resulting objectification and subordination of women, among others. On the other hand, since Radin concludes from the empirical fact that people are born as dependents in society that they start interconnected, she posits that we need property rights in intimate objects in order to achieve "proper" individuation.
Radin eventually comes to the conclusion I suggested at the beginning of this chapter. Feminine personhood requires the withdrawal from the intersubjectivity of society which the identification with, and enjoyment of, objects allows.
The conception of human flourishing we have been considering generates a basic requirement of "being able to live one's own life in one's very own surroundings and context." This requirement follows from the basic understanding that human beings are separate individuals; the idea is that separation from other human beings, individuation, is accomplished in part by particularized connection with things.
In other words, in this conception of human flourishing separation does not connote the idea of alienability of all of the self's attributes and possessions, but rather something like its opposite: it refers not to separation of the person from her environment, but rather to separation of one person from another person, with the premise being that for that kind of sep-
aration to be instantiated in the world, a certain kind of specific connection to one's environment may be needed.
In Hegel, we seek objects derivatively in order to interrelate with others. In Radin, we seek objects in order to become disentangled from others.
Enjoyment; Interference as Violation
Radin's identification of property with the female body is most apparent in her latest work. Consider two examples she discusses in detail—prostitution (which overwhelmingly involves male johns and female prostitutes) and surrogate motherhood. Her discussions of prostitution and surrogacy revolve around what she calls a "double bind"—that is, the conflict between woman's ability to enjoy her body sensuously in a personal, nonmonetary way and commercially in a fungible, monetary way.
Her powerful critique of Richard Posner's attempt to analyze rape in "terms of a marriage and sex market" provides an even stronger example. Radin condemns Posner's utilitarian balancing of the rapist's pleasure versus the victim's displeasure on the grounds that they are incommensurable. Although she does not use my terminology, her argument in essence is that a woman's enjoyment of her body is qualitatively different from any possible enjoyment which a rapist could have. She expressly argues that bodily integrity should not be thought of as an object separate from the subject that can be bought and sold. Posner applies the masculine metaphor for property to rape and therefore conceives of bodily integrity as an object that one can hold in the element of possession, or exchange through the element of alienation. When one privileges the
element of possession, then interference with bodily integrity as a property right can only be analyzed in terms of castration—my valuable thing has been taken from me. Consequently, the prevention of rape is analogized to the protection of possession. When a rape does occur, Posner adopts the alternate masculine responses to castration: he pretends that it can be cured by exchange—monetary compensation. In contradistinction, unlike a market transaction, or loss of an item of fungible property, the loss of rape changes the victim because it is a loss, or destruction, of some aspect of her personhood. This is because her theory holds that personhood is partially constituted by those objects which she calls personal property.
At one point in her critique of Richard Posner's analysis of rape she comes close to what I think is the stronger, Hegelian analysis, that some object relations are qualitatively different from the relation known as property. She states:
Bodily integrity is an attribute and not an object. . . . We feel discomfort or even insult, and we fear degradation or even loss of the value involved, when bodily integrity is conceived of as a fungible object.
Unfortunately, she retreats from this position. Throughout Contested Commodities , Radin insists that she is analyzing body relations in terms of her category of "personal property" and that her analysis is not limited to the body but includes any other thing, such as work and housing, that properly serves the goal of self-constitution or human flourishing. Indeed, she insists that "[n]ot everything we might be thus [i.e., in such a way as to further proper self-constitution] connected with in the world can be property, but in a property-owning culture, some such things can be property." In context, it is clear that she means that she believes that the intimate objects she discusses fall within the category of (personal) property.
Radin's analysis of rape is persuasive in that, psychoanalytically, the fem-
inine position is the identification with and enjoyment of the object of desire, and we do identify the female body with the elusive object of desire. But the significance for my purposes is that Radin presents her rape analysis as an epitome of her theory of personal property. Personal property is like the female body which we identify with and enjoy. Interference with personal property rights cannot, therefore, be analogized to castration (a taking which can be remedied through exchange) but to rape and violation, an irretrievable loss of self which cannot be replaced. It can only be acknowledged and mourned in a process which enables the self to move on and rebuild a new, but inalterably different, life. Consequently, in the latter part of her book Contested Commodities , Radin offers a persuasive criticism of our current system of monetary damages for personal injury on the grounds that it treats the tort as a sale of a body part from the tort victim to the tort-feasor, rather than as a loss of self. In my terminology, traditional tort law adopts the masculine metaphor which perceives loss as castration (the taking of the object of desire which can be cured by the future exchange for a new object of desire) whereas Radin adopts the feminine metaphor which perceives loss as violation (the irretrievable change in both the subject and her object of desire which cannot be cured, only acknowledged and mourned).
The Donning of the Chador
Although this response seems initially feminine, as I have already suggested, a closer reading will reveal that Radin might be adopting a harsh masculine approach to female virginity. In her most recent work, Radin is primarily concerned with "commodification." She is not merely concerned that loss of personal property would deprive the owner of her personhood. If this were so, she would merely advocate stronger protections of the rights of enjoyment and, therefore necessarily, possession of personal property. Rather, as she makes clear in her analysis of the law of prostitution, surrogate motherhood, rape, and personal injury, she is concerned that allowing the free market-alienability of personal property by anyone can lead to the commodification of that class of personal property and, therefore, the subordination of women generally. She considers the very rhetoric of alien-
ation to be alienating. It is not enough that I protect my personal property and that I refrain from alienating it, it is necessary that we as a society discourage market-alienability of personal property as much as practical. In order for feminine subjectivity to reenter the real by merging back with the object of desire, the object of desire that is the Feminine must be rescued entirely from the symbolic order of exchange among masculine subjects. This reflects the masculine fear that feminine dignity is so delicate, and feminine will so weak, that for any woman's integrity to be preserved, it is necessary to require all women to be chaste. It is not enough that some be allowed occasionally to seek refuge in the privacy of the veil and the convent; all women must be hidden under the chador and in purdah.
The Inalienability of Nonbody Objects
The problem with Radin's analysis is that she refuses to limit it to a consideration of a subject's proper interest in her own bodily integrity, but insists on applying it to the entire intersubjective realm of property. I have just shown how her attempt to analyze the sale of feminine sexuality in terms of property leads her to adopt imagery reminiscent of masculine control of feminine sexuality. When applied to more conventional categories of "personal" property, it leads to results which seem intuitively unattractive if not outright absurd.
What objects other than the body are personal property? Radin believes that the home is personal property, as can be seen in her analysis of automatic renewal clauses in leases and her defense of rent control. Radin also argues that the Fourth Amendment right against unreasonable searches should be extended to personal automobiles because of the close identification that Americans tend to have with their cars, as well as the
right to privacy. The rights which would be so protected would only be exclusive possession and quiet enjoyment but not the right to alienation or other rights to earn financial gains through the use or sale of the car. Indeed, locating the primary residence and the personal automobile on the personal end of the personal/fungible property spectrum suggests not just that alienation should not be especially protected but that perhaps it should be restricted. That is, Radin argues that alienation of the most personal of property is alienation of the self. If the consumer's relationship with her automobile is entitled to Fourth Amendment protection, because the automobile is personal property, should not the market-alienability of the personal automobile be prohibited or at least restricted?
Presumably, Radin would not argue that human flourishing requires such identification with our cars that we should be limited in our ability to sell them. Such identification would be precisely what she calls "fetishism." But does this suggest that we, in fact, either do not or should not identify automobiles with our personhood and that they are not personal property within Radin's schema? If so, her position on searches and seizures concerning automobiles is defeated. Radin might respond that the automobile may be personal for some purposes and fungible for others.
As we have seen, however, in limiting termination clauses in leases, Radin is suggesting some limitations on alienability of homes in that she advocates mandatory renewal clauses in the case of leases of primary residences. I would suggest, however, that even Radin does not really propose this because she recognizes, or wants to encourage, identification between the apartment dweller and her apartment. This can be seen by the fact that Radin is not suggesting that I, a highly educated, well-paid lawyer, should not have the right freely to alienate my expensive New York City apartment. Rather, she wants to protect poor people from richer people (landlords) who presumably have greater bargaining power. Conse-
quently, although we, as a society, probably want to recognize the right of consumers freely to sell and trade in their own cars so that they get the highest price, we might also decide to limit their ability to transfer their cars through hypothecation in the sense of imposing restrictions on the power of a secured creditor to repossess an automobile from a defaulting consumer. Indeed, our law imposes many such paternalistic limits on the ability of consumers to hypothecate their possessions. This distinction cannot be grounded in Radin's definition of personal property as being necessarily bound up with personhood. The fact that for many purposes we consider the automobile to be fungible suggests that, despite Radin's intuitions, we do not confuse our cars with our personhood.
The problems of Radin's analysis can be seen vividly in one of Radin's favorite examples of a proper and healthy relationship with personal property—the bride who so identifies with her wedding ring that its loss would be a loss of self that could never be replaced. Fans of J.R.R. Tolkien will no doubt recognize the similarity of this relationship to that of Gollum and the Ring of Power. Poor Gollum so identified his selfhood with the Ring that he referred to both his self and the Ring by the same name, "My Precious." The loss of the Ring was such a loss of self that it drove
Gollum to utter depravity, and eventually death. This is to be expected since the desire to achieve wholeness through identification with the object and submersion back into the real is Thanatos .
Pluralism, Pragmatism, and Contradiction
Radin does not believe that her intuition about personal property leads to the conclusion that all object relations are good. Some relations with some objects are inappropriate and fetishistic. We need,
therefore, to distinguish between the objects of property that "become justifiably bound up with the person" from those that do not. Radin defines that class of objects bound up with the personhood of their owners as "personal property." She describes property that people hold for purely instrumental reasons as "fungible property." The way to distinguish between the fungible and personal property is by comparing
the kind of pain that would be occasioned by its loss. . . . If a wedding ring is stolen from a jeweler, insurance proceeds can reimburse the jeweler, but if a wedding ring is stolen from a loving wearer, the price of a replacement will not restore the status quo—perhaps no amount of money can do so.
Radin's work, to date, has primarily concerned identifying and distinguishing objects that are personal property from those that are merely fungible property and explicating the protections that the law should accord her favored category of personal property. Styling herself a "pluralist" and a pragmatist, Radin claims to reject the notion that all mar-
ket relations inevitably alienate personhood. She does not, however, suggest an affirmative role for the market in the development of personhood. Rather, she remains, at best, ambivalent about it. She sees
a normatively appropriate but limited realm for commodification coexisting with one or more nonmarket realms. . . . For a pluralist, the crucial question is how to conceive of the permissible scope of the market.
Yet Radin comes close to suggesting that in an ideal world, we would reject markets and commodification entirely. As a pragmatist, however, she argues that in an imperfect world, markets and commodification need to be preserved as imperfect tools:
One ideal world would countenance no commodification; another would insist that all harms to personhood are unjust; still another would permit no relationships of oppression or disempowerment. But we are situated in a nonideal world of ignorance, greed, and violence; of poverty, racism, and sexism. In spite of our ideals, justice under nonideal circumstances, pragmatic justice, consists in choosing the best alternative now available to us. . . .
The possible avenues for justifying market-inalienability must be reevaluated in light of our nonideal world.
In other words, commodification of fungible goods is not harmful because they "have little to do with self-constitution." But Radin nowhere recognizes the possibility that market (commodification) may in property circumstances be affirmatively beneficial to personhood.
By way of pragmatic compromise, Radin argues that commercial prostitution can slide down the slippery slope whereby feminine sexuality and, therefore, female personhood and human relations become commodified and women objectified. But she also recognizes the "double bind" that prohibiting prostitution and criminalizing prostitutes may rob poor women of their only opportunity to make money and achieve even
a minimal amount of power and personhood. She concludes that, although it might be unjust to discuss women's sexuality completely in terms of the market, there may be a pragmatic argument for allowing some limited commodification of sexual services, for example, by decriminalizing prostitution, but prohibiting its commercial exploitation through pimping, recruitment, and advertisement. Consequently, Radin's theory fails to progress toward a complete law of property perse, in the sense of legal relationships among persons concerning external things. Instead, it offers an alternative to property for a specific favored class of objects that become internalized to the owner. This is the solution proposed by Hegel, although, as we shall see, Hegel's category of things which should be inalienable as a matter of abstract right is much smaller than Radin's category of objects which should be market-inalienable to further personhood. According to Hegel, although all external things may initially be candidates for being objects of property, some objects become so internalized to the owner as to become part of the owner's personality.
Perhaps most telling, Radin's disparagement of the market belies her personal/fungible property dichotomy and reveals the fundamentally solipsistic nature of her theory. As we have seen, she claims that if proper identification with personal property furthers human flourishing, then improper identification with fungible property is unhealthy fetishization. This implies that human flourishing requires that we should separate from, rather than identify with, fungible property. If, as Radin suggests, commodification and market relations (i.e., property and contract) are separating by their very nature, then human flourishing should be furthered by a market in fungible goods. Yet Radin can only grudgingly bring herself to support markets for pragmatic reasons in an imperfect world, and can imagine no intrinsic positive role for market in the development of personhood.
One of Radin's main arguments against the utilitarian analysis of human relations as market relations is that rhetoric has substantive effect—the rhetoric of alienation is itself alienating. Although I sympathize with Radin's condemnation of utilitarian analysis, her specific critique defeats itself. By labeling what might be more accurately analyzed as a jurisprudence of expanded bodily integrity as an account of property, Radin has all but given in to, rather than successfully challenged, the super-Benthamite claim that all human-object relations are property relations. This reduces her fundamental critique—that there is something qualitatively unique about our relationship to our bodies and certain other bodylike objects—to a relatively trivial debate over the definition and scope of property rights. For example, because Radin has chosen to analyze both bodily and commercial transactions in terms of property, she tries to downplay the role of traditional property rights in fungible property in the development of subjectivity. This strategy, however, can backfire. The super-Benthamite can agree with Radin's insistence that personal and fungible property are located on the same property spectrum, argue that market-alienability is not only necessary but appropriate for fungible property, and conclude that market-alienability is appropriate for all species of property. Radin, therefore, turns her back on her initial intuition that certain object relations are fundamentally different from commodity relations. Instead, she must make mere prudential arguments justifying limited exceptions to the market.
Although Radin calls her theory "property for personhood" and insists that she is locating persons within community and that the relationship between person and object is socially mediated, she does not offer an account of property's role in community. To Radin, the property role of personal property is to remove and protect the owner from society. That is, because Radin presupposes community, property can only be seen as a means of separating from community. In an attempt to flee what she sees as the separation caused by property in community (i.e., alienation),
she necessarily returns to the ideal of the separate individual protecting her property from societal interference. Accordingly, Radin's theory risks being an account of property of nonsocial individuals, restating the traditional liberal theory of subjectivity as atomistic individuality—the precise opposite of her goal. The likely result of concentrating only on the individual at this initial stage is the dilemma of classical liberalism—the individual is seen as authentic, but the community is a problem that needs to be explained. And yet, simultaneously, Radin's theory of the individual is not naturalistic but is based on an observation of individuals situated in a specific, concrete community. Such a theory can only be a tool for analyzing the positive law of property within a specific community. It cannot ground a critique of community.
More specifically, to date, Radin has developed a sensuous notion of property that is limited to protecting consumption. As I have discussed, Radin's main concern is with the sensuous enjoyment of certain objects and, to a lesser extent, with the possession necessary for that enjoyment. This overriding concern evinces a solipsistic notion of subjectivity. Accordingly, she has deemphasized the possessory aspect of property, but, more dramatically, she has disparaged, and in some instances condemned, the intersubjective exchange of property. Thus Radin leaves us with individuals who recognize themselves through their identification with property, yet never emerge from the walls of their self-imposed convent to interact as members of a community.
In so doing, Radin fails to consider that market alienation may encourage human flourishing in several ways. Market relations enable us to interrelate with other people and thereby become persons. Commodification frees us from overdependence on any specific objects. Market relations help us finance desirable intersubjective activities such as supporting children and other dependents. Market relations force us to become dependent on other persons. The market not only makes community possible, it makes it necessary.
Radin is concerned that too much emphasis on market rhetoric and
too much emphasis on fungible goods will cause universal commodification (commodification of people as well as things). On the one hand, she believes that this is alienating and objectifying. If all commodities are fungible (indistinguishable) by definition, this suggests that the commodification of persons causes them to lose their specific separate identities which, presumably, enable them to interact with each other on a personal level. That is, one person is as good as any other. On the other hand, she states that objectification "conceives of certain characteristics of persons—such as race, sex, or sexual orientation—as marks of lesser personhood." This can result in the subordination of people who have these commodified characteristics. Commodification, therefore, does not make all persons fungible, but gives too much importance to specific distinguishing characteristics. In other words, Radin has a confused, but intuitive, sense that treating all "objects" in the Hegelian sense as properly within the regime of property is somehow inhuman. As I have already indicated in the first chapter of this book and shall discuss below, Hegel would totally agree—some objects can become so internalized that they become part of personality and, therefore, not property. The problem is, however, that Radin refuses to make the Hegelian distinction between property and nonproperty. Because she intuits that expanded bodily integrity cannot rightly be subjected to a market regime, but insists that bodily integrity is property, she feels forced to challenge the rightness of the market regime (commodification) generally.
Although her theory of commodification as fungibility in the sense of pure interchangeability permeates her most recent work, it can most graphically be seen in her chapter on the "marketplace of ideas" metaphor, which she thinks treats one idea as being as good as any other. Although a complete analysis of market theory is beyond the scope of this book, I believe that Radin is somewhat confused as to the nature of commodification because of the contradictory nature of much utilitarian writing on perfect markets. Radin thinks commodification means that all objects have the same status—we are indifferent among different objects of fungible property. It is no doubt true that Law and Economics would maintain that in a perfect market theory all objects eventually reach their exchange value and flow to the highest-valuing user—indeed, insofar as time and distance are themselves imperfections, they will always already
have done so. Consequently, all market exchange stops in the perfect market because everyone is indifferent between all objects. The perfect market is real in the Lacanian sense.
Radin is correct that much Law and Economics rhetoric constitutes an ostentatious display of indifference. But this is because its practitioners are adopting the second masculine response to castration. As we have seen, the Masculine tries to achieve wholeness by repressing the necessity for the lost object and imagining that immediate binary subject-to-subject relations are possible. But, like all masculine responses to castration, this facade of indifference is a lie. The only reason the Masculine enters into the symbolic order of exchange is not because he is indifferent to the lost Phallus but because he can think about nothing else.
Similarly, the reason why individuals enter into market exchange is because market participants are not indifferent between different objects. I exchange my money for a new pair of shoes because I recognize the shoes as different from and preferable to my money or other objects I could buy with my money. The merchant, in contradistinction, feels the opposite. That is, the very existence of exchange is the confirmation and actualization of differentiation. For this reason, all real markets are necessarily imperfect.
It is the exchange of properly externalized objects among persons that leads to the creation of subjectivity. As market society becomes more developed, it becomes more specialized. In the words of Shlomo Avineri, "Man produces not the objects of his own needs, but a general product which he can then exchange for the concrete object or specific objects of his need." We, therefore, need to engage in transactions with others even to obtain the bare staples for survival. "The dialectics of civil society," according to Avineri, "create a universal dependence of man on man." That is, prior to a market society, one was limited in persons with whom one was required to interact. One interacted personally with one's family and, perhaps, certain others like neighbors. One had to choose to interrelate with a wider range of persons and, even then, such personal interrelation may have been difficult if not impossible since one was defined generally in society by one's status rather than by one's in-
dividuality. The market breaks down this structure and forces us to interact as individuals.
In a recent article, J.E. Penner comes to a conclusion similar to Hegel's, albeit approaching this problem from a very different theoretical direction. Property, as a legal right, can only be understood socially. That is, he agrees with Hohfeld that property can only be understood as a relationship between and among legal persons (although, like me, he chides Hohfeld for not recognizing that the relationship of property always relates to a thing). To Penner this means that the most characteristic element of property must by necessity be its most social element. Possession and enjoyment are exclusive by nature. Their intersubjectivity is latent and negative in the sense that they require the expulsion of others. It is only in alienation that property becomes expressly and affirmatively intersubjective. Alienation is, therefore, the quintessential aspect of property.
Finally, to anticipate a point I shall expand upon shortly, as an empirical matter, most of our relations with other members in our society are, in fact, the "fungible" object relations of commercial law—property and contract. These are, of course, distant, formal, and abstract relationships that many of us (at least those of us who are not utilitarians) intuitively believe are fundamentally different from, and inferior to, the close, affective relationships we have with friends and family members. Although Hegel insisted on the importance of commodification and the necessity for the regime of civil society (i.e., the marketplace), he was also quite clear that a total market regime impoverishes and demeans the underclasses and that totally commodified labor alienates workers. Civil society contains the contradiction that it is a regime of complete interde-
pendence of all of its members, but it is characterized by egoism, whereby each member considers himself to be the atomistic individual of classical liberalism. Consequently, Hegel argued that it is logically necessary both to preserve and yet to limit commodification. Limitation is achieved in the family, which is characterized by particular altruism, and in the state, which is characterized by universal altruism.
In other words, Radin is correct to chastise utilitarians for analyzing intimate love relations of family and friendship solely in terms of the market. But Radin herself must be chastised for criticizing all market relations for not being intimate. Indeed, it is precisely my point that it is incorrect to analyze erotic relations in terms of the traditional imagery of market relations because the latter does not recognize that even the market is erotic. In other words, Law and Economics is correct in recognizing that the market and other human relations share a fundamental essence, but incorrect in concluding from this that the latter can be reduced to the former. In contradistinction, the Hegelian would argue that the former is a primitive and inadequate aspect of the latter. It is desire for recognition by the Other, and not the accumulation of utility, that drives mankind.
Finally, most mundanely, Radin's "property for personhood" dichotomy does not provide a tool that is useful for analyzing fungible property. Even if one accepts her self-characterization that she is developing a theory of property per se, rather than, for example, a theory of expanded bodily integrity, her theory is still inadequate to her purpose at this time. Radin claims not to be engaged in the philosophical task of positing abstract human nature. Rather, she claims to be a pragmatist analyzing concrete individuals located within a specific society—postindustrial America. This is a society built in large part around market relations and hundreds of years of property practice. An analysis of property that fails to provide tools for analyzing the market and the role
the market plays in developing the personality of people in our society has limited pragmatic utility. So far, Radin's analysis comes close to a condemnation of the market generally—commodification is dangerous to personality because it causes objectification and separateness—modified by a grudging realization that some market relations must be preserved as a practical matter. In an imperfect world, total decommodification may also be dangerous to personality because it might further disempower the weak. This analysis can be powerful if it justifies removing some human and object relations from the market and from property analysis. By labeling as "property" the objects that her theory teaches should be eliminated from the legal realm of property relations, however, she not only obscures the analysis but also leaves no tool for analysis of those object relations (what she calls relations with fungible property) that are appropriately left to the market and the traditional private law of property.
Moreover, Radin's use of the implicit feminine phallic metaphor for property, together with her disparagement of exchange, forces her to conflate property objects with physical objects, and property rights with sensuous enjoyment. This makes it an inappropriate starting place for analysis of some of the most economically important types of property in contemporary society, such as intellectual property and other incorporeals, which have no tangible existence. By justifying property solely in terms of its constituting function for the natural individual, she is left with no account of the way the largest aggregations of wealth are amassed and held in our society—collectively, but not governmentally, by private business organizations.
To put it another way, perhaps because she concentrates on the subject's identification with her objects, she does not consider the intersubjective reasons why people own fungible property. For example, investment property such as treasury notes and stock in publicly traded corporations would seem to be the ultimate "fungible property." People often choose to forgo acquiring "personal property," such as a nicer house, car, or wedding ring, in order to purchase "fungible property" as a means to finance activities which are central to human flourishing, such as saving to pay for one's children's education. And yet Radin would give the property of the thrifty parent a lower level of constitutional protection than that of the spendthrift. She prefers the grasshopper over the ant.
Most important for the sake of this essay, Radin's focus on personal
property risks being subjective to the point of insular, if not altogether solipsistic and anti-community. That is, Radin condemns commodification as the source of separate subjectivity, as opposed to subjectivity as intersubjectivity. According to Radin:
Commodification stresses separateness both between ourselves and our things and between ourselves and other people. To postulate personal interrelationship and communion requires us to postulate people who can yield personal things to other people and not have them instantly become fungible.
In this passage, Radin admits to the existence of healthy intersubjectivity, but it is a matter of taste only for the solipsistic self. As we have seen, Radin simultaneously argues for the existence of personal property precisely because it furthers the development of separate individuality. The quoted passage shows that although gifts might be permitted or beneficial, in no sense is the gift of personal property developmentally required . That is, properly constituted persons are capable of gift, but gift does not make them into well-adjusted persons.
But more pertinent to the point at hand, although Radin admits that the institution of private property can further the goal of separate individuality, she does not yet recognize that it also furthers the competing goal of interrelation. Radin ignores the reality that the relations most of us share with other members of our community involve fungible property—that is, commercial relationships. Every day, I interact with thousands, if not millions, of other people in society through the marketplace.
Exchange also serves relationality and community on a philosophical
basis. Radin condemns separateness but cannot do without it theoretically. For me to have a relationship with another person, I must first recognize and respect the other as a subject, not merely as an extension of myself or as a means to my ends. Zizek[*] explains:
[W]e can recognize the other, acknowledge him as person, only in so far as, in a radical sense, he remains unknown to us—recognition implies the absence of cognition. A neighbor totally transparent and disclosed is no more a "person," we no longer relate to him as to another person: intersubjectivity is founded upon the fact that the other is phenomenologically experienced as an "unknown quantity," as a bottomless abyss which we can never fathom.
Intersubjectivity thus requires a mediator who simultaneously separates us and serves as a bridge between us. Property is one such mediator.
As I have already suggested, commodification not merely enables us to interrelate as subjects, it forces us to do so. The market, in the name of autonomy, destroys our atomism and makes us interdependent on each other for our very existence.
Radin is correct in arguing that it is somehow dehumanizing to analyze my relationship with my husband, family, and closest friends in terms of market exchange. But the market becomes more important to relationships as the circle of acquaintance widens. I have not always had close personal relations with colleagues, employees, clients, opposing counsel, or even my former law partners. Indeed, in many cases I did not want close personal relations because of personal dislike, simple disinclination, or snobbery. Commercial transactions are one of the ways to maintain cordial relations that are productive not merely in a financial sense but in an interpersonal and developmental sense as well. For example, I can easily relate to the new cashier at the grocery store in terms of fungible property relations even if I am shy, socially incompetent, or merely busy. Fungible property serves as a mediator, enabling me to form and to maintain relationships as a member of the same community with the store's employees and suppliers. One way in which modern industrial societies are superior to feudal or other traditional societies is that modern commercial relations allow us to form relationships and community far beyond our family or clan. This is the aspect of the Hegelian theory of property that Radin needs to reconsider if she is to account fully for property's relationship to per-
sonhood. Finally, market relations help to finance the intersubjective relation of the family. Market relations offer an important supplement to, not substitution for, the intimate relations that concern Radin.