Prologue

I—
The Vestal and the Fasces

The fasces symbolized the majesty of Roman law. It was an axe attached to a bundle of sticks. Consuls, emperors, and other high-ranking officials were escorted in public by lictors bearing the fasces as the visible representation of the enforcement powers of the state.^[1] Offenders could be mercifully flogged with one of the sticks or justly executed with the blade.

The Vestals symbolized the sanctity of the Roman family.^[2] These priestesses of the goddess Vesta guarded the sacred hearth of Rome,^[3]

ensuring the continuing warmth, intimacy, fertility, and order of the families of individual Romans.^[4]

During their thirty years of service,^[5] the six Vestals were required to maintain the strictest chastity. Impurity was punishable by premature burial.^[6] But unlike the holy virginity of Christian nuns,^[7] the Vestals' chastity was not a more perfect, spiritual form of life or a reproach to matrons. Their maidenhood was not exemplary but extraordinary—a form of ritual purity. It emphasized, through contrast, that matrimony and maternity were the norms.^[8] The Vestals dedicated themselves so that others could marry.^[9] They were guardians of the family. They officiated at fertility

rights.^[10] They guarded a ritual phallus which may have symbolized the ineffable goddess herself.^[11]

The Vestals' isolated world of women may have been less a convent than a seraglio without a visible sultan. The Vestals may have been symbolically married to the state. The Vestal did not dress as a maiden but wore the headdress of a Roman bride, and the stola , or dress, of a Roman matron. The Vestal's investiture ceremony—the captio , or "capture"—was reminiscent of a Roman wedding. The state's high priest, the Pontifex Maximus, roughly seized the initiate from her father in a mock abduction in memory of the legendary rape of the Sabine women by the followers of Romulus.^[12] He called her Amata , a mysterious name that implied she was both captured matron and invincible maiden.^[13]

The Vestals were guardians of the private yet lived a paradoxically public existence. Unlike other priests, they lived at the temple they served.^[14] The temple of the goddess was built to look like an ancient Roman house, yet it was located in the center of the marketplace.^[15] It was every Roman's right freely to enter this temple by day, although men were strictly barred from the house of the virgins at night. The Vestals attended and blessed most important government functions.^[16] They were the repositories of the Sibylline books containing the prophecies of Rome's future periodically consulted by the consuls and emperors.^[17] They had reserved boxes at the arenas and theaters.^[18]

Most mysteriously, upon their investiture these priestesses, who were paradoxically both symbolically raped virgins and unviolated wives, were also elevated to the legal status of men.^[19] The Vestals, alone of all women, were escorted by the fasces.^[20]

The seeming paradox posed by the juxtaposition of the symbolizations of the private and the public as well as its eventual explanation is suggested by true and folk etymologies of the terms the Romans used to describe them. The virgin is virgo . The rod bound to form the fasces is virga. Vir is man. A woman who has the virtue of a man—like a Vestal—is a virago. Fasces means "bound." Fas is divine law—that which binds man to god? The Vestal's ritual phallus is fascinus , which means not merely the male organ but also enchantment and the evil eye. It is the source of the English "fascination" and is obviously related to the fasces , but how? Clearly, we are fascinated with the phallus. When we are fascinated, are we spellbound ?

From the standpoint of the political philosophy of G.W.F. Hegel and the psychoanalytic theory of Jacques Lacan, the public and the private serve complementary functions and are mutually constituting. Both the law and the virgin served as the representation of the Other, the external object by which the Roman man was able to define himself as an acting subject—a Roman citizen. The Vestal and the fasces cannot be separated because they are one and the same: virgo is virga is vir ; Vesta is fascinus is fasces is fas .

II—
The Feminine and Property

This book is an encounter with Hegelian and Lacanian theory that shows that property—the law of the marketplace—and the Feminine are both Phalluses in the technical psychoanalytic sense of the lost

object of desire.^[21] They serve parallel functions in the creation of subjectivity as intersubjectivity mediated by objectivity. Property, according to Hegelian philosophy, and the Feminine, according to Lacanian psychoanalysis, are fictions we write to serve as the defining external objects enabling us to constitute ourselves as acting subjects. By serving as objects of exchange between subjects, property and the Feminine simultaneously enable subjects to recognize other humans as individual subjects—they enable us to desire and be desired. This creation of subjectivity is simultaneously the creation of the realm which Lacan called the symbolic: law, language, and sexuality.

In other words, the reason the Vestal is always accompanied by the fasces is that, at one moment, the Vestal is the fasces—both the Feminine and the legal regime of property are Phallic . The binding of the virgo as virga to create the fasces is the writing of the fas —the creation of law and subjectivity. As a consequence, the actualization of human freedom requires not only the recognition of property rights but also the simultaneously impossible but necessary goal of feminine emancipation.

Lacan explained how sexuality is created by the imaginary identification of the symbolic concept of the Phallus with seemingly real biological analogues—the male organ and the female body. I will show how a parallel conflation occurs in jurisprudence and legal doctrine—the symbolic or legal concept of property is described through elaborate metaphors of the penis and the virgin. This is an intuition or "abduction" which comes to us so easily as to seem natural. Indeed as a psychoanalytic matter, we may not be capable of speaking about property without resorting to phallic concepts.

My theory seeks to be a thoroughgoing reconstruction of both feminist and property theory. It gives a more complex and faithful account of sexual difference than does either of the two dominant schools of legal feminism—different-voice feminism and so-called radical feminism—which I believe merely adopt traditional gender stereotypes. It also helps to explain why we, as a society, tenaciously cling to certain property-law doctrines despite their disutility, and to certain theories despite empirical evidence to the contrary.

This book is intended for lawyers as well as jurisprudes and critical the-

orists, although different sections will no doubt appeal to different segments of my audience. I believe that my theory is not merely of abstract jurisprudential interest. I have personally found that my approach has been extremely useful not only in my teaching but also in my doctrinal scholarship and in my legal practice as a commercial lawyer.^[22]

Hegelian-Lacanian theory is an account not only of the structure of law but of the unconscious thinking processes which underlie our conscious legal thinking. Like a compass, it not only can help us locate our position when we know that we are lost, it can also occasionally show us that we are actually heading in a direction different from where we thought we were going. Once our position is located and our direction is reoriented, there is no immediate use for the compass and it can be safely put away temporarily while we rely on other markers to continue our journey. A reader of a travelogue can appreciate the resulting description of the author's ultimate destination even if she does not know how the author got there. She could not retrace the route and reproduce the trip—or successfully engage in a new but similar journey—without this information, however.

Similarly, I believe that Hegelian-Lacanian theory helps us not only to determine what is wrong with legal theories or doctrines that we intuit are faulty (such as, in my case, the so-called bundle of sticks theory of property) but also to reevaluate and critique theories and doctrines to which we cling because they are so intuitively attractive despite empirical evidence to the contrary (such as the commercial law doctrine of ostensible ownership). Hegelian-Lacanian theory helps us do this by revealing the unacknowledged, unconscious, but implicit assumptions, metaphors, and imagery—similar to what Thomas Kuhn would call paradigms—underlying the law. Once this initial analysis is completed, psychoanalysis, like a compass, can be temporarily put away in favor of the familiar conscious thought process of traditional legal analysis. Consequently, the lawyer reading this book, like the reader of the travelogue, may appreciate my ultimate legal analysis even if he does not know or understand the path that led me there. But he could not fully understand, reproduce, or critique my analysis, or engage in similar analysis or critique, without this information. Let me explain in greater detail.

I see myself as first and last a lawyer writing about law, not a philosopher. I had a successful practice as a finance lawyer in New York City for twelve years prior to entering academia and continue to consult in commercial litigation. In addition to theoretical work of the type reflected in my book, I also write highly technical commercial law doctrinal articles aimed at the practicing attorney. All of this work is intimately related to my developing jurisprudential theory. That is, I do not view myself as a Lacanian academic who happens to apply her theory to law. Rather, I am a lawyer who turned to Lacan and Hegel in order better to understand and practice law.

In my experience, law is in large part a subset of rhetoric. By this I do not mean that law is contentless cant, nor am I making the cynical layperson's gibe that lawyers are just sophists, or prostitutes, who can and will say anything for a buck. Rather, I mean that law is social, it governs relationships between and among people and, therefore, must be communicated in order to function. As such, law only exists in its expression—whether in statute, legal opinion, or argument. Law's content is, therefore, inextricably linked to its form. Consequently, I believe that understanding the symbolic order of language can greatly enhance our understanding of the symbolic order of law as well as lawyering.

It has become a banal cliché to claim that selfhood is socially constructed. Probably no expression has become so shopworn and meaningless so fast. Nevertheless, I do believe that in our postmodern economy it is increasingly true that we define our personality in terms of legal rights and responsibilities—that is, legal subjectivity. This can perhaps be most graphically seen in the civil rights, women's rights, and more recently disabled and gay rights movements where the claims of a group for social recognition and equality have been largely played out (as the common terminology suggests) in terms of claims for legal rights. This is just as true in areas of so-called private law which defines much of our relationships with people other than our immediate family—such as our employers, co-workers, students, landlords, shopkeepers, to name a few—where legal rights increasingly replace status. Indeed, even our family relationships have an important legal component as well as emotive and cultural ones. At least in our society, law and personality are, therefore, intimately, if not inextricably, interconnected. This suggests both that the study of personality (i.e., psychoanalysis) should enrich our understanding of law and that the study of law should enrich our understanding of personality.

Specifically, as a practicing lawyer I had long been troubled by the in-

adequacies of the law of intangible property, most specifically the law governing security interests in investment securities. I was particularly troubled by the continued use of what seemed to me inappropriate and unsuccessful analogies to physical relations with tangible property. And yet I could simultaneously neither account for the use of such analogies nor imagine any other way of thinking about intangibles. Indeed, the very term "intangibles" indicates how hard it is to think of intangibility except in terms of tangibility. It is this precise problem (which is reflected in chapter 2, section II.B on ostensible-ownership theory, and in much of my technical commercial-law scholarship) which led me to seek a way to analyze the structure of property law, specifically, and of legal thinking, generally.

In addition, when I graduated law school in 1978, it was quite uncommon for women to practice finance law. I found that although I was very skilled in understanding conventional legal analysis, I also had a talent for formulating novel modes of analysis, lines of arguments, and structures for transactions. I was conceited enough to attribute this in part to my own creativity, but I began to think that something more was going on. As a feminist I was, not surprisingly, intensely interested in the role of women lawyers and how this was affected by actual or illusory gender and sexual differences. I believed that I was perceiving a marked empirical difference in the type of imagery and metaphors which I and the few other women lawyers I knew tended to find, at least initially, to be appropriate to describe the legal world, on the one hand, and those initiated by my male colleagues, on the other. This is not to suggest that male and female lawyers could not or did not understand each other after discussion. Indeed, our success as lawyers shows the contrary. But I observed that male and female lawyers would often join discussion from different starting places. This led me to suspect that the problem of legal imagery and metaphors with which I had been struggling might also be related to sexuality. This seemed consistent with my other underlying assumptions that law is rhetorical in nature and that personality is in large part legal subjectivity. That women and men tend to speak differently as an empirical matter is a phenomenon widely recognized among linguists, although there is substantial disagreement as to the essential nature of these differences, let alone their cause. Nevertheless, I believed that the differences I perceived in masculine and feminine legal rhetoric did not follow traditional sexual stereotypes such as the cliché, embraced by different-voice feminists, that women think more in terms of relationship and men more in terms of individual rights. Not only did I believe that traditional finance law (i.e., as practiced by men) was intensely and expressly

concerned with building and maintaining relationships of the type celebrated by different-voice feminism, but I observed that I, and a large percentage of women lawyers whom I eventually met in practice, were intensely individualistic, competitive, and self-involved.

After several years, my interest in feminism led me to explore Lacanian theory. At around the same time, my interest in property led me to read Hegel. Eventually, I began developing my theory of the legal nature of sexuality and the erotics of property. Law is a practice as well as a theory, however. As the cliché goes, the proof of the pudding is in the eating. Consequently, I set about the task of applying my analysis to a large number of property issues. As I have stated, many of these applications appear in the book. Others I have incorporated in my practice as an expert in the law of investment securities. I have recently begun a new long-term project of applying my analysis to Law and Economics theory. If the reader finds my analysis of specific legal questions covered in this book to be insightful, then this is strong evidence (but, of course, not definitive proof) of the validity of my approach.

As should be obvious from this Prologue, I use a lot of wordplay, including true and folk etymologies and classical allusions. This is relatively unusual in jurisprudential writings and I fear might be initially off-putting to some lawyers. At worst I might be accused, as Hegel often is, of confusing puns with analysis, of finding too much significance in purely accidental and inconsequential similarities between words and images. This argument misses the point that in Hegelian and Lacanian theory subjectivity, law, and language are considered to be mutually constituting. The structure of language, therefore, reflects the unconscious structure of law and personality. As a result, the similarities identified in wordplay as well as in humor are not always accidental; they can be serendipitous, suggesting unexpected connections between ideas as well as words. If nothing else, I hope they are occasionally amusing, leavening what might otherwise be a tediously dry narrative.

I proceed as follows: in chapter 1, I present the parallels between Hegelian and Lacanian theory at a high degree of theoretical abstraction. In chapter 2, I explore the dominance of the masculine phallic metaphor for property in American law. The masculine metaphor recalls the imagery of the fasces. In its affirmative mode the archetype of property is expressly or implicitly visualized as the grasping of a physical thing in one's hand like an axe. In its negative mode, it reinstates the metaphor through simple negation and the image of the bundle of sticks. The former privileges the masculine property element of possession and the latter the mascu-

line element of alienation through exchange. Using the work of a number of prominent legal scholars, I will first show not only how this metaphor is developed in jurisprudence but also how it is played out in contemporary commercial law doctrine. I then return to a theoretical analysis and argue that all of the variations on the masculine metaphor are failed attempts to achieve immediate relations through disparagement of the Feminine in her role as the mediatrix of subjectivity.

In chapter 3, I examine an alternate jurisprudential theory of property recently offered by Margaret Jane Radin. I show how Radin implicitly adopts a feminine phallic metaphor in which property is visualized in terms of the female body. Indeed, to Radin the archetype of "personal property" is not just metaphorically but, in many cases, literally the female body as the object of desire. At first blush, Radin might be seen as adding the feminine property element of enjoyment missing from masculinist theory, thereby completing a single harmonious and complete property theory. This is wrong. As Lacan showed, the masculine and feminine positions are not opposites or complements which can together form a satisfying whole. Each is itself a failed attempt at wholeness. Correspondingly, Radin's feminine theory cannot be added as a corrective of the failed masculine theory of property, because it is itself a failed attempt at a simple comprehensive account of property. It is true that in order to further the development of (feminine) personhood, Radin seeks to protect the object of desire from violation in the masculine regime of exchange by privileging the feminine property element of enjoyment or jouissance . But by doing so she imagines the feminine object of desire as a virgin—the Vestal. She silently enjoys her own feminine integrity but never engages in the market intercourse which is necessary for subjectivity. Like the masculinist theorists I discuss in chapter 2, she denies the Feminine her role as mediatrix of subjectivity. As Radin's theory is based in large part on a common misreading of Hegel, I use the opportunity of critiquing Radin to further develop my reading. I argue that my reading of Hegel and Lacan demonstrates that the actualization of human freedom does require us to continue the task attempted by Radin—the recognition of the feminine rights of property and the creation of an impossible feminine subjectivity.

In chapter 4, I use my theory to analyze the Takings Clause of the U.S. Constitution. I argue that although the Takings Clause accurately reflects that a private property regime is necessary for the actualization of freedom, an understanding of Hegel's concepts of quality and quantity shows it is not possible for the Takings Clause to serve its traditional function

as the bulwark protecting private freedom from government oppression. I conclude by arguing that this impossibility of Hegelian property reflects the impossibility of the Lacanian Feminine which, ironically, is the condition precedent of freedom. The Woman does not exist. She is that which cannot be constrained by the Phallic order of the symbolic. Exiled from symbolic order of law into the real, the Feminine changes the impossible into the forbidden, and therefore not merely possible but ethically necessary. The impossible Feminine is the potentiality of a freedom which has not yet been actualized.