I—
Never Jam Today:
The Impossibility of Takings Jurisprudence

"I'm sure I'll take you with pleasure!" the Queen said. "Two pence a week, and jam every other day."

Alice couldn't help laughing, as she said, "I don't want you to hire me—and I don't care for jam."

"It's very good jam," said the Queen.

"Well, I don't want any to-day, at any rate."

"You couldn't have it if you did want it," the Queen said. "The rule is, jam tomorrow and jam yesterday—but never jam to-day."

"It must come sometimes to jam to-day," Alice objected.

"No, it can't," said the Queen. "It's jam every other day: to-day isn't any other day, you know."

"I don't understand you," said Alice. "It's dreadfully confusing!"

"That's the effect of living backwards," the Queen said kindly: "It always makes one a little giddy at first—"^[1]

A—
Introduction

The assertion that property is not, or at least is no longer, a single coherent concept is frequently based on an analysis of the Takings

Clause of the U.S. Constitution. The takings jurisprudence that has developed under the Fifth^[2] and Fourteenth^[3] amendments to the U.S. Constitution is a top contender for the dubious title of "most incoherent area of American law."^[4] Property's critics wrongly conclude that this doctrinal incoherence is evidence of incoherence in the concept of property itself.

This is a non sequitur. In this book I have tried to show that property not only is a coherent jurisprudential concept and a flourishing economic and legal institution but is logically necessary for the actualization of human freedom. It is appropriate for pragmatic reasons, therefore, for a state's constitution expressly to recognize the fundamental importance of property and to seek to limit the state's power to limit property. The incoherence of takings jurisprudence arises because liberal jurisprudence assigns a broader role to the Takings Clause: it is supposed to be an impregnable barrier protecting the private realm from government invasion. That is, liberalism takes an instrumentalist view of property which, as I discussed in chapter 1, is bound to fail.

In this chapter, I argue that it is logically impossible for private property rights to serve this function because one cannot develop an "objective" test or algorithm of when government regulation does or does not constitute a taking. Hegelian theory explains what classical liberalism can only identify as an embarrassing paradox: private property is not itself a natural right of man but, nevertheless, is logically necessary for man's essential freedom.^[5] In the retroactive logic of the Hegelian dialectic in which—as the White Queen put it—we live backwards, it is logically impossible to identify the moment at which the quantitative change of a diminution of property rights becomes the qualitative change

of a destruction of property rights. Accordingly, at any given moment we can only see that a taking either has not yet occurred or has always already occurred. It is always jam tomorrow or jam yesterday, but never jam today.

This is not only consistent with, but necessary to, Hegel's conception of freedom and Lacan's concept of love. The failed encounter of property law seen in the dialectic of takings reflects a general failure and negativity that lies at the heart of subjectivity and law. And yet it is precisely this negativity that opens up room for human freedom to actualize itself by going beyond the limit. Freedom cannot be bound by a preexisting "objective" rule; we must always leave a space for subjectivity. Law requires the possibility of its own transgression. This negativity is the Feminine.

B—
The Permissible Limitation on Property

If moral and ethical requirements can require the limitation of property, but the dialectic logic of sublation demands that property be preserved, then what degree of limitation of property is consistent with and necessary for the actualization of human freedom? This is the Hegelian equivalent of the liberal question of how to interpret the Takings Clause.

Hegel's answer is unfortunately, but inevitably, disappointing to the traditional constitutional-law scholar. Logic can prove why it is necessary to make this distinction between permissible limitations of property rights and impermissible takings, but it cannot develop an algorithmic logical test that can locate the line dividing the two. Rather, this determination can only be made through pragmatic rather than logical reasoning, and established through positive law. Such pragmatic reasoning and positive legislation falls precisely in the realm liberalism derides as "mere" politics.^[6] Consequently, Hegel agrees with liberals that a limitation on governmental "takings" of property is necessary for freedom and a just society. But, in contradistinction to classical liberalism, Hegelian political theory cannot expect takings law to serve as a boundary function. To understand why this is the case, one needs to turn to Hegel's concepts of quality and quantity as developed in his Greater Logic .^[7]

C—
The Liberal Dilemma of Takings Law

1—
Property and the Constitution

Clearly, the Framers thought that private property was essential to human liberty, or they wouldn't have given it such extraordinary protection. The Takings Clause was to stand as a barrier between politics and law, between the public and the private. As Jennifer Nedelsky says:

The idea of boundaries and of a sharp distinction between law and politics has been central to the American conception of limited government. Property was for 150 years the quintessential instance of rights as boundaries. It has been the symbol and source of a protected sphere into which the state cannot enter.^[8]

This is why Charles Reich in the 1960s thought he could protect welfare recipients from governmental caprice by redefining their entitlements as "new property."^[9]

The traditional barrier role of property is most consistent with the Lockean libertarianism of the Federalists. If property is a, or even the, natural or fundamental right of man, and if man entered into the social contract in order to protect his natural rights, then, by definition, to be legitimate, a government must protect private property rights. The jurisprudential and political problem this raises is obvious. Virtually all government regulation directly or indirectly affects somebody's property.

This becomes even more problematic if one reads into the Takings

Clause the Madisonian definition of property that, as we have seen, included not only rights with respect to material things (like land and cattle) and intangibles (such as debts and intellectual property) but also all things which fall within the philosophical concept of "objects" such as our bodies and minds (i.e., our talents, opinions, religion, speech, etc.). Richard Epstein^[10] and Robert Nozick^[11] are no doubt correct that, if one were to adopt this extreme version of the libertarian theory of property, only the most minimalist state could be justified.

Classical liberalism, broadly understood, is by far the dominant political philosophy in this country, but radical libertarians are certainly in the minority. Yet every other school of liberalism faces paradoxes when it confronts the Takings Clause. For example, it is possible to take a moderate Lockean approach that recognizes property as one, but not necessarily the only, right (natural or otherwise) which government should protect. But then, how can one balance between competing natural rights and fundamental interests? Contractarians, such as Hobbes, argue that in order to stop the war of all against all, man submitted himself to the unlimited power of the absolute sovereign who grants entitlements to citizens known as property.^[12] How then can we reconcile a constitutional provision that seeks to rein in the sovereign's power over property when, by definition, the social contract has ceded absolute power over property to the sovereign? Utilitarianism protects property instrumentally as a means of achieving the greatest happiness for society as a whole.^[13] Shouldn't the government then have some constitutional power to rearrange property entitlements if this would further the greater good? But how do we reconcile this with the utilitarian instinct that the best way to ensure utility (or wealth) maximization for society generally is to permit each individ-

ual member to maximize his own utility (or wealth) in the marketplace? On the one hand, an egalitarian liberal might argue that at least some limitations on the property rights of the most wealthy could be constitutionally justified in the name of distributive justice.^[14] On the other hand, an egalitarian might simultaneously recognize that the government's right to take property should be limited because it can so easily devolve into a disguised unequal and, therefore, unjust tax levied against a specific targeted individual, rather than against similarly situated people generally.^[15]

In any event, our Constitution does expressly prohibit uncompensated takings of property by the government, and we lawyers need to decide what this means. Moreover, all of the major schools of liberalism recognize some fundamental liberty interest in property—either as a natural right or a right necessarily created by positive law in order to protect other natural rights such as autonomy, the pursuit of happiness, or equality. Yet all but the most extreme libertarians recognize other fundamental interests that justify at least some governmental limitations of property interests. This raises obvious line-drawing problems: when do government regulations so interfere with property rights that we say that the property has been taken?

The need to draw lines does not, however, in and of itself make takings jurisprudence uniquely difficult. Law requires us to do this all the time. We typically do this through positive law—whether formally adopted by the legislature, promulgated through case law, or developed informally through custom and practice. The uniqueness arises under liberalism because, if the Takings Clause is the vital barrier between the public and the private, then the usual devices of positive law are inapt for this task. This is precisely because the Constitution is supposed to be above politics and positive law.

The chaotic state of the case law suggests that the Supreme Court has so far been unable to solve this dilemma. Commentators feast upon the irrationalities and inconsistencies of the precedents, and decry either the oversolicitousness toward vested interests or inattention to fundamental rights. Only a handful of critics, however, have ventured to offer a resolution.

2—
The Supposed Disintegration of Property

As discussed in chapter 2, section III.A, some progressive commentators have concluded that the concept of property and the prohibition on uncompensated takings are so internally incoherent that they are disintegrating before our very eyes.^[16] This conclusion is based on two observations.

First, the liberal justification for the protection of property in the Constitution is, as we have seen, that private property is a right that is either natural in and of itself or fundamental in the sense of being necessary for the protection of other natural rights, such as autonomy, the pursuit of happiness, or, to a more limited degree, equality. Yet property is also a legal right that exists only insofar as it is enforceable in a court. Specific property rights are often not merely delimited, but created, by positive law. For example, copyright is a relatively modern creature of legislation. Nedelsky, in effect, asks, "How can property both be a natural right and a right created by positive law?"^[17] If it is a right created by positive law, how can it serve as a limitation on the government's power to adopt pos-

itive laws reducing property rights?^[18] To a Hegelian, the first question is not a philosophical problem, although the second remains intractable as a logical matter.

3—
The Seemingly Endless Diversity of Property

We have seen that progressive critics such as Grey and Nedelsky fixate on the fact that empirical manifestations of property can consist of a seemingly bewildering variety of rights. For example, even though we colloquially say that an owner of a fee simple absolute estate in realty has unlimited rights of possession, enjoyment, and alienation of the object of her property, every lawyer knows these rights are in fact limited: at a minimum, her right of continued possession may be subject to the state's taxation power, her right of enjoyment is subject to nuisance restrictions, and her right of alienation is limited by antidiscrimination laws. In practice, most owners' rights are even more restricted by, for example, easements (which restrict the right of possession) and zoning restrictions (which can restrict the rights of enjoyment and alienation).^[19]

How then, these critics ask, can we speak of "property" as an identifiable set of rights when we recognize such variant combinations of rights as property? I have already given the Hegelian reply: we can so long as we stay at the appropriate level of generality. It does not follow from this, however, that all empirical actualization of property must be full, complete, or perfect. If one grasps that the Hegelian notion of the elements of property is to be understood at the highest level of abstraction, then one can see that they can be actualized in a dizzying array of concrete manifestations. Nevertheless, all of those legal relations that we tradi-

tionally recognize as falling within the rubric "property" can contain some form of each of the three elements of possession, enjoyment, and alienation. The more adequate the manifestations of the three elements of property, the more likely we will label the right "ownership." If the manifestations are not as adequate, we are likely to give a different label to the right.

4—
Rights Chopping

The conclusion that the abstract jurisprudential concept of property is internally coherent as a theoretical matter within Hegelian jurisprudence begs, rather than answers, the practical question posed by the Takings Clause. One approach to this Hegelian analysis is the super-libertarian position taken by Epstein and Chief Justice Rehnquist introduced in chapter 2, section III.A, which I called "rights chopping." A rights-chopping analysis recognizes as inadequate the historical takings rule, as embraced in Loretto v. Teleprompter Manhattan CATV Corp .,^[20] that holds that a taking is most readily found when there was "permanent physical invasion of real property": it identifies property too closely with one element—possession—and further identifies possession with one of its many possible manifestations—physical custody of tangible things. That is, it adopts the positive masculine phallic metaphor. If interference with the one element of possession is a taking, then regulations that interfere with either of the elements of enjoyment and alienation should also be takings.

Super-libertarians such as Epstein would no doubt argue from this that, since property necessarily consists of manifestations of the three abstract Hegelian elements, any attempt to chop off any piece of any element in and of itself is a taking. That is, any curtailment of any empirical manifestation of any of the three abstract elements is, by definition, an interference with property rights and, therefore, a taking. Virtually all government regulations are per se takings. If one adopts the libertarian proposition that property is a natural right, then only the most minimal form of government can be justified.

We have seen that Radin suggests that the result that flows from the super-libertarian reading is so absurd as to demonstrate the fallaciousness, not the power, of the chopping argument. I agree. Indeed, because the super-libertarian approach comes close to including everything within the rubric "property," it threatens to deprive property of its analytical power as a separate, distinguishable legal category.

But this critique can easily suggest an opposite, equally fallacious, conclusion. If property rights can be actualized in any number of empirical variations, can't we declare that a claimant still has "property" and has not been subject to a taking no matter how much of her empirical rights we chop away so long as we leave her with de minimis concrete stubs of the three abstract elements? This would, obviously, give the government great power to regulate freely without compensating persons whose property is merely diminished but not totally destroyed. Of course, the problem with this is the mirror image of the super-libertarian error—it so minimizes the essence of property that it robs it of analytical value.

Other progressives wish to preserve the traditional inspirational rhetoric of property, yet redirect it to other more "progressive" purposes. This requires that they attempt to redefine property. Prominent examples of such approaches are those of Joseph Singer, who would base property rights on reliance interests and the relative power and dependence of rival claimants,^[21] and Radin, who (as we have seen) would give full constitutional protection only to that subset of the potential objects which she calls "personal property."

These new conceptualizations of property require corresponding reconceptualizations of the purpose of the Takings Clause. For example, Frank Michelman argues that the Takings Clause is designed to prevent the state from unjustly imposing tax burdens on individuals that are not generally imposed on all other similarly situated persons. Radin thinks that the Constitution should be read as a whole to further "human flourishing." Since these approaches undermine both the fundamental nature of the right of property—treating property instrumentally as a means to serve other ends—and, by extension, the barrier function of the Takings Clause, they also ameliorate the jurisprudential problem of developing a strictly logical or "objective" definition of property and takings. Consequently, Singer and Radin are both self-described "pragmatists" who advocate that courts use a situated, context-intense, case-by-case approach in deciding legal issues.^[22]

5—
Metonymy

An interesting variation of this critique has recently been offered by Louise Halper.^[23] She upbraids Justice Scalia for his opinion in the most prominent rights-chopping case, Lucas v. South Carolina Coastal Commission .^[24] In this case the Supreme Court held that a regulation which diminishes the value of a parcel of realty by limiting its commercial development can be a taking. She characterizes this as a metonymy.^[25] In her view he is confusing a part—value—for the whole—the land.^[26]

I would agree that this is indeed a metonymic trope, but not the one Halper identifies. The whole of property can never be the land itself, but only the claimant's rights with respect to the land. The land is only the object of these rights. Consequently, the metonymy that Scalia did make was to substitute a manifestation of one of the three elements of property—enjoyment manifested in the form of the right to development for monetary purposes—for the whole of the element of enjoyment, and to substitute the element of enjoyment for the entirety of property.

This analysis is particularly apt because Lacan identified metonymy as the feminine slippage of meaning, as opposed to the masculine slippage of metaphor.^[27] A threat to the feminine aspect of property causes Scalia modestly to avoid violation through a feminine trope.

In any event, whatever the form of the metonymy, Halper's argument is that one does not destroy the whole of property by merely interfering with its parts. The libertarian should (correctly) counter that since property is by definition a unity of constituent rights, the only way to destroy property is by destroying its parts. Indeed, if property logically consists of the unity of the three classic elements, the destruction of any one of the three elements by definition destroys the status of a claim as property.

Part of the problem, of course, arises because the very terminology of the Constitution reflects the positive masculine phallic metaphor. Property is a thing that can be taken away. All interferences with property rights are described in terms of castration—someone has taken my object of desire. My entitlements have been "severed" or "chopped." The remedy given by the Constitution for takings reflects the negative masculine phallic metaphor and the second masculine strategy for dealing with castration in which exchange replaces possession. That is, the significance of the loss of any specific object is denied on the grounds that it can be cured through receipt of an equivalent object sometime in the future. And so the Fifth Amendment provides that takings are permitted so long as the government pays "just compensation"—so long as the Father(land) fulfills his promise to his sons.

It is difficult to apply this masculine imagery of takings-castration to interferences with the feminine property elements of enjoyment. Frequently when enjoyment is lost, the owner retains possession of the object of desire. The intuitively appropriate imagery is that of rape, not castration. My thing has not been taken, rather my rights have been violated. This feminine imagery similarly suggests that the Takings Clause should not apply because the remedy seems inadequate. The loss of the feminine self in violation is permanent and cannot be cured through the masculine regime of exchange.^[28]

Where does this leave takings law? It is obvious that complete de-

struction of all possessory rights constitutes a "taking" because possession is the most primitive element of property. That is, one can have no right of enjoyment or alienation unless one has at least some minimal possessory rights in the Hegelian sense. But unless we limit takings to complete, 100% deprivation of all property elements, aren't we stuck with what Halper calls a "metonymic" approach (a taking of some part will be treated as legally equivalent to the taking of the whole)? But doesn't this devolve into the libertarian argument that forbids virtually all government?

To put it another way, how can I argue that property is not a random or arbitrary collection of disparate rights (as the bundle-of-sticks metaphor implies) but a recognizable combination of rights, yet at the same time recognize that it is intuitively and empirically wrong to say that a property interest is always destroyed if any one of the rights that compose property is infringed? I believe that these statements are not incompatible for the same reason that a beach is still a beach after one removes one grain of sand; but, as anyone with shorefront property knows, as the sea keeps removing grains of sand year after year, the beach will eventually disappear. Although property consists of identifiable elements, it is itself an identifiable quality that cannot be reduced to a collection of elements.

D—
Quality and Quantity

London (Reuter)—Simple laws of physics can explain one of life's oldest and most annoying truisms—that a dropped piece of toast always lands butter side down—a British physicist said Monday.

"Toast falling off the breakfast table lands butter side down, because the universe is made that way," Robert Matthews, a physicist at Aston University in Birmingham, said in a statement.—Japan Times.

Perhaps Professor Matthews will also discover why the rule is, jam tomorrow, and jam yesterday—but never jam today.^[29]

Hegel explains this phenomenon in his chapter on Specific Quantity in The Greater Logic . He uses the wonderful (perhaps autobiographical?) example of "the bald."^[30] The hairy young man who wakes up every morning to see a single hair on his pillow is still a hairy man—albeit a worried one. But eventually that inevitable and tragic dawn

breaks when he looks in the mirror and a bald man stares back.^[31] Hegel's point is not that this demonstrates that the concepts "hairiness" and "baldness"—or property and no property—are irrational. In his language, these dyads are qualitatively different as a logical matter. It is absolutely necessary for Hegel's entire philosophical project in The Greater Logic to maintain a strictly logical distinction between changes in quality (e.g., from hairiness to baldness) and changes in quantity (e.g., from 1,000,000 hairs to 999,999 hairs).^[32] The relation between quality and quantity is what Hegel called "measure," and the sublation of quality and quantity through measure is an essential step of the dialectical process which charts the development from pure being through to the absolute idea.^[33]

Hegel argues that quantity and quality are dialectically related, identical yet different. Quantitative changes are gradual; qualitative changes are sudden. Something can have more or less of a Hegelian quantity, but it either has or does not have a Hegelian quality. The Hegelian concept of the identity of identity and difference, however, means that quantitative change reveals itself as always already becoming qualitative change.

This means that it is logically necessary, on the one hand, that quantitative changes eventually become qualitative changes, yet, on the other hand, there can be no fixed point at which the change occurs. This is because (by definition) the identification of a specific point of transition is to assign a quality to the transition point. This does not solve the logical problem, it just replicates it. We have just substituted a different question of qualitative differentiation.

An example may make this clear. We all intuitively understand that it just does not work to reword the question asked of the anxious young man standing at the mirror, "Am I bald yet?" as "Am I now at the transition point between hairy and bald?" Those of us who are confronting middle age recognize that the latter wording is not a clarification but an unacceptable attempt to avoid the issue through euphemism. Further, to name the transition point "Am I now 'semi-bald'?" just restates the problem in increasingly painful detail.

It should be sufficient for my very limited purpose simplistically to explain that "quality" to Hegel is what he calls "determinate being."^[34] This is a concept derived through sublation of the logical concept of pure or immediate being. That is, all things that exist share the abstract concept of pure immediate being per se—they all exist. Quality refers to the specific, affirmative aspect of a thing that distinguishes it from other things that exist—that is, it is the aspect of a thing that is not shared, it is that which enables us to tell two "things" apart.

To put it another way, if being is pure and immediate, then nothing can be discerned. As a consequence, Hegel argues that pure being shares a moment of identity with pure nothing.^[35] In contrast, determinative being (or quality) is the concept that something discernible exists. But a quality can only be defined in terms of what it is not—it is defined by its own negation in the sense of "this is not that."^[36] To be bald can only be understood in terms of not being hirsute.

Determinate being, moreover, by definition, is finite (otherwise it could not be determined).^[37] By this I mean that the very concept of determining what distinguishes one thing from another implies setting boundaries—separating one thing from another. If the thing is on this side of the boundary, it is X; if on the other side, it is not-X.

Quantity is the sublation of quality: quantity is what results when

one overcomes quality's finitude. Finitude is quality's dependence on otherness—that is, the sense that a quality can only be understood in terms of what it is not, of what is fenced off. Because quantity is the expulsion of otherness, the quantity achieved by sublating any one quality is indistinguishable from and continuous with all other "ones" that similarly result from sublating all other qualities (determinate beings). In other words, qualities are plural, but quantity is unity. By definition, there must be many qualities, each separate and distinguishable from the others in the sense that the quality of baldness is different from the quality of hairiness, or for that matter, the qualities of being hot, sweet, or whatever. In contradistinction, the concept of more or less is the same regardless of whether we are talking about more of this or less of that—whether it be the number of hairs on a man's head, the temperature, or sweetness. Quantity is, therefore, indifferent to quality.

In simple English, quality is differentiation, quantity is commensuration. Quality is difference; quantity is identity. The identity of quality and quantity is the famous Hegelian doctrine of the identity of identity and difference. Qualities are the differences of self from other. Quantity, in contradistinction, is what self and other have in common. Qualitative difference is a matter of is or is not. Quantitative difference is a matter of more or less. Quality asks, "Is it X or Y?" Quantity asks, "How much Z do X and Y have?" This is why changes in quality are sudden even though changes in quantity are gradual. Nevertheless, changes in quantity eventually lead to changes in quality. This relationship between quality and quantity is called "measure."

To be free, of course, is not to have limits. As just discussed, quality (determinate being) can only be understood in terms of its finitude or limit. The very concept of any limit, however, necessarily includes within itself the concept that there is something beyond the limit. To resort to a spatial analogy, quality (determinate being) defines something by fencing it in, and this implies, in turn, that something is fenced out. True infinity consists of negating the limit of any specific quality. This is my definition of freedom—and the Feminine. Let me slow down.

If quality is the concept of identifying things in terms of that which they are not, then it is a setting of limits, a building of fences keeping some "things" on this side and some "things" on the other side. To know the true quality of a thing, we must go beyond its limit. We must climb over the fence that proscribes a quality, see what is on the other side, and then look back. In this sense, Hegel believes that logic itself requires that every time we confront a limit, we must exceed the limit.

The banal witticism "rules are made to be broken" is literally true to Hegel. The Hegelian paradox is precisely that limitation and finitude create the conditions of freedom and infinity. Freedom and necessity are, therefore, dialectically related. Freedom is the lack of limits, yet it is created by limits. Freedom is to not be bound by necessity, but limits necessitate that we seek to be free. Hegel recognizes that freedom as "the beyond of the limit" is not only a logical necessity but an ethical mandate. This is evidenced by the fact that he calls the demand to surpass all limits "the ought."^[38] As we shall see, this is precisely Lacan's concept of the relationship between law and enjoyment.

Quality is "being in -itself." This terminology captures the idea that quality is that which makes something what it is (as opposed to what it is not). Quality is "fenced in"—enclosed within its own borders. In opposition, quantity is "being for itself." This captures the sense that since quantity expels otherness, it is for itself , not for another. Curiously, therefore, quantity (unlike quality) ends up being that aspect of being which is the opposite (or negation) of being. By this I mean: quality is the concept that there are things that really exist and that we can distinguish one from another because they are different in some meaningful way. The concept of quantity, in contradistinction, does not require the existence of anything in particular. It just posits that if something did exist and could be measured, it could be described as more or less like this or that. Quality is the assertion "This is what I am—not that"; quantity is "This is what I'm like—I have some of this and some of that." Obviously, both are necessary yet insufficient ways of understanding something.

E—
The Movement of Sublation

1—
Negation and Preservation

As I have repeatedly emphasized, a common misreading of the dialectic suppresses the preserving

aspect of sublation beneath its negating aspect. It forgets that at the moment the self is negated and becomes identical with the other, it still remains differentiated and separate as the self. As property becomes nonproperty, it still always retains the notion of property. Nonproperty can only be understood in terms of property—that which it is not.

This is a crucial point to Hegel. He denies that only the positive has determinate characteristics, with the negative being a generic nonbeing.

[T]here still lingers on the thought of this difference of [nothing] from being, namely that the determinate being of nothing does not at all pertain to nothing itself, that nothing does not possess an independent being of its own, is not being as such. Nothing, it is said, is only the absence of being, darkness thus only the absence of light, cold only absence of heat, and so on. And darkness only has meaning in relation to the eye, in external comparison with the positive factor, light, and similarly cold is only something in our sensation; on the other hand, light and heat, like being, are objective, active realities on their own account and are of quite another quality and dignity than this negative than nothing. One can often find it put forward as a weighty reflection and an important piece of information that darkness is only absence of light, cold only absence of heat. About this acute reflection in this field of empirical objects, it can be empirically observed that darkness does in fact show itself active in light, determining it to colour and thereby imparting visibility to it, since, as was said above, just as little is seen in pure light as in pure darkness. Visibility, however, is effected in the eye, and the supposed negative has just as much a share in this as the light which is credited with being the real, positive factor; similarly cold makes its presence known in water, in our sensations etc., and if we deny it so-called objective reality it is not a whit the worse for our doing so. But a further objection would be that here, too, as before, it is a negative with a determinate content that is spoken of, the argument isn't confined to pure nothing, to which being, regarded as an empty abstraction, is neither inferior nor superior. But cold, darkness, and similar determinate negations are to be taken directly as they are by themselves and we shall then see what we have thereby effected in respect of their universal determination which has led them to be introduced here. They are supposed to be not just nothing but the nothing of light, heat, etc., of something determinate, of a content; thus they are a determinate, a contentful, nothing if one may so speak. But as will subsequently appear, a determinateness is itself a negation, and so they are negative nothings; but a negative nothing is an affirmative something.^[39]

The loss of property is not a mere lack of rights, it is nonproperty—a positive taking.

2—
Contradiction, Potentiality, and Actuality

In our society "contradiction" (like negativity) is considered to be a bad thing that can and must be eliminated. Consequently, it is easy to conclude that when Hegel identifies a contradiction in the abstract right of property, he is making a judgment that property is somehow incoherent or bad and in need of replacement. Nothing could be more wrong. In the Hegelian dialectic, contradiction cannot be bad and it can never be destroyed. Contradiction must be resolved, but each resolution necessarily creates a new contradiction. As a result, contradiction is not only a logically necessary aspect of the world, it is precisely that aspect of the world that creates change and dynamism.^[40]

For something to be possible it must be actualized—the failure of something eventually to become actualized means that it was not, in fact, possible. As I have explained, this means that something only retroactively becomes potential once it has been fulfilled. This is why the abstract person as free will is driven to actualize its potential freedom as concrete freedom in order to reaffirm its own understanding of itself.^[41] But the dialectic works the opposite way as well. The logically later concept cannot exist except for the logical necessity of the continuance of the earlier, and the earlier cannot exist except for the logical necessity of the possibility of the

later. The later concept is actuality, but the earlier concept is the possibility that allows it to come into being.

To resort to metaphor, the earlier moment in the dialectic is like the foundation for the subsequent edifice. A foundation is dug before the building, but in anticipation of the building. The building requires the foundation because one cannot remove the foundation after the building is built without causing the entire edifice to come crashing down. But the foundation also requires the building in the sense that unless the building is subsequently built, it is not a foundation, merely a hole in the ground. It only becomes a foundation retroactively. Similarly, the legal subject and abstract right are the foundations on which the individual citizen and the state will be built. If the dialectic is circular as claimed, the fact that when one starts with an analysis of the free person one ends up with the state means that if one instead started with an analysis of the state one would inevitably be led back to the free person. If autonomy and abstract rights are suppressed and subordinated to the state, the state will also cease to be. We would be left only with their ruins—tyranny and oppression.

3—
Sublation as Quantum Leap

Because sublation simultaneously maintains the distinction between two concepts while creating an immediate unity, the movement of sublation cannot be a gradual move. It is a change of quality, not quantity. The change from quantity to quality is, to use the language of modern physics, a quantum leap. Hegel explains how gradual quantitative change produces the quantum leap of qualitative change as follows:

Since the quantitative determinateness of anything is thus twofold—namely, it is that to which the quality is tied and also that which can be varied without affecting the quality—it follows that the destruction of anything which has a measure takes place through the alteration of its quantum. On the one hand this destruction appears as unexpected , in so far as the quantum can be changed without altering the measure and the quality of the thing; but on the other hand, it is made into something quite easy to understand through the idea of gradualness . The reason why such ready use is made of this category to render conceivable or to explain the disappearance of a quality or of something, is that it seems to make it possible almost to watch the disappearing with one's eyes, because quantum is posited as the external limit which is by its nature alterable, and so alteration (of quantum only) requires no explanation. But in fact nothing is explained thereby; the alteration is at the same time essentially the transition of one quality into another, or the more abstract transition of an ex-

istence into a negation of the existence; this implies another determination than that of gradualness which is only a decrease or an increase and is a one-sided holding fast to quantity.^[42]

Nevertheless, it is a common logical error to conclude from the fact that the qualitative change takes place through quantitative changes that the qualitative change is itself gradual. But we do this not because the former follows from the latter as a logical matter, but because it is intuitively simple.

Since the progress from one quality [to another] is an uninterrupted continuity of the quantity, the ratios which approach a specifying point are, quantitatively considered, only distinguished by a more and a less. From this side, the alteration is gradual . But the gradualness concerns merely the external side of the alteration, not its qualitative aspect; the preceding quantitative relation which is infinitely near the following one is still a different qualitative existence. On the qualitative side, therefore, the gradual, merely quantitative side which is not in itself a limit, is absolutely interrupted; the new quality in its merely quantitative relationship is, relatively to the vanishing quality, an indifferent, indeterminate other, and the transition is therefore a leap; both as posited as completely external to each other. People fondly try to make an alteration comprehensible by means of the gradualness of the transition; but the truth is that gradualness is an alteration which is merely indifferent, the opposite of qualitative change.^[43]

One might be tempted to argue that if, as Hegel says, changes in quality are sudden, not gradual, then one should be able to identify the exact point when the change occurs. Doesn't this suggest that the takings paradox should be easily solvable? This is, once again, a serious misunderstanding of sublation.

Zizek^[*] gives a characteristically brilliant account of why we can never identify the moment of sublation. The specific examples he uses are Hegel's descriptions of the movements from consciousness into self-consciousness, and from "in-itself" to "for-itself," but it can be generalized to all sublations.

Hegelian "reflection," however, does not mean that consciousness is followed by self-consciousness—that at a certain point consciousness magically turns its gaze inward, toward itself, making itself its own object, and thus introduces a reflective distance, a splitting, into the former immediate unity. Hegel's point is, again, that consciousness always-already is self -

consciousness: there is no consciousness without a minimal reflective self-relating of the subject. . . .

The passage of consciousness to self-consciousness thus involves a kind of failed encounter: at the very moment when consciousness endeavors to establish itself as "full" consciousness of its object, when it endeavors to pass from the confused foreboding of its content to its clear representation, it suddenly finds itself within self-consciousness—that is to say, it finds itself compelled to perform an act of reflection, and to take note of its own activity as opposed to the object. Therein resides the paradox of the couple of "in-itself" and "for-itself": we are dealing here with the passage from "not yet" to "always-already." In "in-itself," the consciousness (of an object) is not yet fully realized, it remains a confused anticipation of itself; whereas in "for-itself" consciousness is in a way already passed over, the full comprehension of the object is again blurred by the awareness of the subject's own activity that simultaneously renders possible and prevents access to the object. In short, consciousness is like the tortoise in Lacan's reading of the paradox of Achilles and the tortoise—Achilles can easily outrun the tortoise, yet cannot catch up with her.^[44]

In the passage referred to by Zizek,^[*] Lacan compares the notion of fantasy—which reflects a Hegelian sublative leap—to Zeno's famous paradoxes. In a Lacanian reading, Zeno was not merely inventing novel hypotheticals to demonstrate the teachings of Parmenides. Rather, as classicists have long since pointed out, Zeno was a brilliant satirist. He eruditely combined allusions to the tragic race to the death between Achilles and Hector in the Iliad with the comic race between the hare and the tortoise in Aesop's fable in order to make a profound philosophical point. Specifically, Zeno was referring to Homer's description.

As in a dream, the pursuer never succeeds in catching up with the fugitive whom he is after, and the fugitive likewise cannot ever clearly escape his pursuer; so Achilles that day did not succeed in attaining Hector, and Hector was not able to escape him definitely.^[45]

As explicated by Zizek, the

point is not that Achilles could not overtake Hector (or the tortoise)—since he is faster than Hector, he can easily leave him behind—but rather that he cannot attain him: Hector is always too fast or too slow. . . . The li-

bidinal economy of the case of Achilles and the tortoise is here made clear: the paradox stages the relation of the subject to the object-cause of its desire, which can never be attained. The object-cause is always missed; all we can do is encircle it. In short, the topology of this paradox of Zeno is the paradoxical topology of the object of desire that eludes our grasp no matter what we do to attain it.^[46]

It is not merely empirically difficult, it is logically impossible to identify the exact moment when quantitative change becomes qualitative change—that is, when it is no longer adequate to say there is more or less of something and we must instead conclude that there has been a change of something into something else. We are always positioned either at the point where the change (i.e., in quality) has not occurred (when, in Lacanian terminology, it is the "not yet") or after it has occurred (when it is "always already"), but never at the point of the transition itself because there is no such point.

In the words of the White Queen, in sublation, it is always jam yesterday and jam tomorrow, but never jam today.^[47]

Why do we insist on locating the moment of sublation, the node of takings, when it is logically impossible? Because this is the masculine moment of subjectivity and the symbolic as law. The Feminine is the dream of immediate relationship both in the sense of that which is always already lost in castration and in the sense of the not yet of the ought. She is the impossible moment of sublation which cannot be captured because it does not and cannot exist.^[48] She is, therefore, simultaneously the two poles of the sublation of the change of quality—jam yesterday and jam tomorrow, yet never jam today. The Masculine is the position which claims not to be castrated, it is the element of possession—of possessing "it," of having jam today. An understanding of sublation shows that this claim is fallacious. This moment of transition within the sublation cannot be lo-

cated as a logical matter. Subjectivity is split, there is a hole at its center. Subjectivity exists not because there is a there, there. Rather it is the fiction which claims existence where it doesn't exist. It is the alchemy which replaces zero with one. This process of creating subjectivity as the Masculine is the symbolic—law. Consequently, the identification of the moment of a taking, when a change in quantity becomes a change in quality, is not a matter of objective feminine logic but the act of subjective masculine judgment. This is not to imply that the Masculine as the present complements the Feminine as the past and the future. The point is that they are logically incompatible. Zeno took the masculine position that time stands still, that motion is an illusion. But if one takes the Feminine position that we are always in flux, always already gone but not yet here, then the present of jam today can never be captured.

One can see this distinction in the Old Testament concept of God. As is well known, in his Five Books Moses uses two different names for God:^[49]Elohim , which means Rulers, and Yahweh, which means "That Which Is What Has Been And Will Be"^[50] but, by implication, is not here now.^[51] As my colleague Arthur Jacobson explains, Moses uses Elohim when God acts as the lawgiver, Yahweh when God is man's friend.^[52] "Creation is complete, when Elohim rules. When Yahweh collaborates with [man], creation is ongoing."^[53] Elohim is the God who commands us now; Yahweh is the God with whom we have interacted in the past and shall interact again in the future. From a Lacanian perspective, Elohim is the masculine image of God as the source of a static symbolic order. Yahweh is the feminine image of God who is not bound by that order but can, in the future, create something new. To be a judge, one must at one instant identify with Yahweh and collaborate with God in writing the law; but in order to do so, one must simultaneously forget Yahweh and worship God

as Elohim so that one can declare that one is acting justly within the dictates of a preestablished law.

F—
Takings and Freedom

1—
Freedom

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

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

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

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

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

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

2—
Totalitarianism

Because liberalism is based on the presumption of free, self-actuating, autonomous individuals preexisting in some hypothesized state of nature, society and the state are defined as problems. They need to be justified in light of the individual's preexisting natural rights and liberties. As we have seen, property and the Takings Clause are traditionally seen as ways of protecting the free individual from the state.

In contrast, as I have already explored in considerable detail, Hegel believed that the presumption of the free individual is every bit as problematic from a philosophical position as society or government. It is tempting to misinterpret Hegel as justifying the totalitarian state to which individualism, freedom, and private property are totally subordinated. This misinterpretation is based, once again, upon the usual misreading of sublation. Although the individual citizen in the developed state governed by ethical life is the last stage of development of man and society discussed in The Philosophy of Right , this cannot mean that the state replaces the logically earlier institution of civil society or that Sittlichkeit replaces the earlier relationships of morality and abstract right. To reiterate, sublation requires that the logically earlier stages always remain present and intact as the building blocks of the logically later stages. If the freedom of man as abstract person or the property rights of man as legal subject were infringed, then the ethical life of man as individual in the state (which is the eventual result of sublation of these other stages) would cease to exist.

Moreover, as I argued in chapter 3, this critique also incorrectly assumes that the organizational principle of The Philosophy of Right is intended to reflect the historical development of the state. Rather, it reflects the logical order of possibility, whereas history is the empirical order of actuality. The assertion that the actual is possible and the possible is actual is not a claim that possibility enfolds in any specific empirical manifestation. In this case, the logically most primitive possibility was the historically last actuality. As is so often the case, it took longer to accomplish simplicity than complexity. That is, that form of intersubjectivity necessary for a government to start to become a state which was the last to be actualized as a historical matter, was precisely the regime of abstract right—private property and freedom of contract which began to develop in the early capitalistic period.

Consequently, individuality and abstract right are not primitive in the sense of being early stages in development which the state can supplant. They are, instead, primitive in the sense of most basic. They are the im-

mediate conditions of the state's existence as a state. It is, therefore, crucial to a state's own continued existence that it respect and preserve them.

Nevertheless, one must always remain critically aware that even if the abstract person and the developed state mutually require each other as a theoretical matter, the interests of the government and the citizen will frequently conflict as an empirical matter. Sublation preserves difference and conflict. It is painfully obvious that not all empirical governmental institutions qualify as Hegelian "states." Rather, they constitute more or less adequate manifestations of the notion of "state." Consequently, rather than subordinating the individual to a totalitarian state, the Hegelian totalizing philosophy gives the individual an external standard by which to judge the state.

The point for takings law is, once again, that society needs both individualistic property rights and some communitarian limits on property rights but there is no logical algorithm that can determine the proper balance between the two. As we have discussed, the dialectical quantum leap between property and no property is simultaneously both not yet and always already from a logical standpoint. Since property is not a preexisting natural right but a human creation (albeit a necessary one), its limits can only be determined by humans.

Citizens, therefore, must be in a state of constant diligence, watching the government so that it doesn't (self-defeatingly) crush human freedom. This is not merely consistent with, but required by, the Hegelian concept of actualized freedom. Freedom cannot be actualized by passively submitting to a preexisting symbolic order. It requires a constant positive affirmation of its existence through the exercise of subjectivity through the active creation of law.

Hegel leaves this actualization of law as abstract right to positive law. As I have said, this can only be promulgated in the civil society and state on the basis of morality and ethical life. We also need to consider the pragmatic decision as to who should make this pragmatic decision—the executive, the legislature, the judiciary, or the "people" (through constitutional amendment).

The specific balance of rights will, by definition, be empirical and not logical. This is because as the actualization of freedom it will have to contain a purely subjective moment. If our actions were logically predetermined, then we wouldn't be free. It will always, therefore, have an unsatisfyingly ad hoc or arbitrary aspect to it. There is no way around this. As Zizek,^[*] said, the fundamental thesis of Hegel is that the human condition is a failed encounter by definition . But it is precisely this "failure" or

incompleteness that leaves a space, an opening, through which humans can and must seek constantly to actualize our freedom and subjectivity by always exceeding our limits. And so, even as I emphasize the necessity of achieving the sublated feminine position of freedom as the beyond of the limit, this first requires the masculine moment of subjectivity which sets the limit and creates the ought.