1—
Hegel Avec Lacan

J.-A. Miller: . . . In short, are we to understand—Lacan against Hegel?

Lacan: What you have just said is very good, it's exactly the opposite of what Green just said to me—he came up to me, shook my paw, at least morally, and said, the death of structuralism, you are the son of Hegel. I don't agree. I think that in saying Lacan against Hegel, you are much closer to the truth, though of course it is not at all a philosophical debate.
Dr. Green: The sons kill the fathers!^[1]

I—
Introduction

A—
The Death of Property

Twentieth-century jurisprudence discovered that property, like God, was dead. Wesley Newcomb Hohfeld revealed that the unity, tangibility, and objectivity that were property's very essence were illusions—property was a mere phantom. Property was not a single identifiable thing but an aggregate of parts, an arbitrary collection of legal rights. Property was a "bundle of sticks"—a fasces .^[2] Hohfeld predicted that once property is recognized as a mere collection of other rights, it loses its distinctive quality and its essence. It therefore does not, or at

least should not, exist as a meaningful legal category.^[3] Moreover, he continued, the traditional distinction between in personam rights—with respect to persons—and in rem rights—with respect to things—is irrational. According to Hohfeld, only tangible objects can qualify as things, but not all property rights involve tangible objects. Without objectivity, property can only be a wraith, a myth.^[4] The rabble might still believe in the old gods of property, but the educated "specialists" now see property as vulgar superstition.^[5] If the populace could only be reeducated, then property would cease to be worshiped. This ghastly apparition could then finally be exorcised and replaced by a logical and scientific dichotomy between rights enforceable against specific individuals and rights enforceable against the world.

But if a unitary and tangible conception of property is an illusion, like Banquo's ghost, it continues to haunt property's murderers. Those scholars who expressly claim to adopt an analysis of property as a disaggregated bundle of sticks implicitly reinstate a unitary view of property which places primacy on physical possession of tangible objects. As Sir James Frazer illustrates, the murder of the mythic hero—whether it be Osiris, Tammuz, Adonis, Jesus, or Superman—is only a precursor to his resurrection.^[6] The separate sticks of property are always tightly rebundled into the fasces.

And so I argue that property is alive and well. Most people in our society continue to hold a strong intuitive belief that property significantly differs from other legal rights. Let us not forget that since the "fall" of Communism in Eastern Europe and the recent official encouragement of private markets in China, the international belief that private property is necessary for economic development—and, at least in the West, for political freedom—is probably stronger now than it has been in a century. Yet many legal academics who study the situation persist in arguing either that property is dying or that the concept is incoherent, a mere mythic presence, a contentless rhetorical trope or cynical political tool.^[7] I fear that these theorists risk sounding very foolish—saying that because they cannot understand the phenomenon, it does not exist and the rest of the world is delusional or suffering from false consciousness.^[8] It is time-honored practice that when we do not understand something, we beat it with a stick. This has been property's sufferance of late.

In contradistinction, in this book I argue that Hegel's analysis explains how property is not only coherent as a concept but logically necessary for the creation of subjectivity and the eventual actualization of human freedom. Moreover, I demonstrate that property as an economic and legal practice is healthy and functioning. In other words, it is mod-

ern property jurisprudence and doctrine, and not property itself, that is incoherent.

This phenomenon can be explained through Lacanian psychoanalysis. Modern property theory is in the grip of what I will call a phallic metaphor. Just as we conflate the Phallic concept of the psychic object of desire with the male organ and the female body to create the positions of sexuality, we use metaphors of the male organ and the female body to describe the Phallic concept of property as the legal object of desire. These seductive metaphors, and not property, are incoherent.

The phallic notion of property is exacerbated by—or more precisely, is reflected in—the inherent ambiguity of the word "property" in contemporary English. The word "property" is now colloquially used to refer to the thing owned, in addition to the legal rights of ownership.^[9] Moreover, the owned thing is typically conceptualized as a physical thing—such as a car or a wedding ring—and the right of property is typically conceptualized as physically holding that thing. Our very terminology for nonphysical things—"intangible" or "noncorporeal" property—reflects the presumption that tangibility and corporeality are the norm.

Modern theorists fall into phallic conflation by describing property as both thing and right not in terms of just any physicalist imagery but in terms of phallic imagery. Specifically, property is metaphorically identified with seeing, holding, and wielding the male organ or controlling, protecting, and entering the female body. Loss of property is correspondingly imagined as mutilation or violation. The imagery of the bundle of sticks is itself a possessory and tangible metaphor. A stick is something that one can, and stereotypically does, see and hold in one's hand. And so, while most contemporary legal commentators dutifully intone the insight—typically attributed to Hohfeld^[10] —that property is neither a thing nor the rights of an individual over a thing but rather a legal relationship between legal subjects, few of them successfully or consistently resist the temptation of identifying property with the owned object.

Moreover, the bundle-of-sticks analysis does not solve the metaphysical problems supposedly inherent in the unitary, possessory, tangible concept of property. It merely postpones, and thereby replicates,

the unitary theory and its problems.^[11] If property is merely a bundle of arbitrary sticks, this bundle consists of separate little sticks, each a separate unity with its own metaphysical problems. These, of course, are addressed by supposing that each "stick" is itself a separate bundle of smaller little sticks, ad infinitum . This is the classic bad infinity of "turtles all the way down."^[12]

Consequently, the "bundle of sticks" metaphor marks a key psycho-

analytic moment in recent property theory. Progressives plotted the murder of property. In order to make sure it stayed dead, they disaggregated property, in the same way that the evil god Set dismembered the corpse of the murdered god Osiris.^[13] But, like Osiris's dismemberment, property's disaggregation has not prevented its resurrection. Rather, it enabled the resurrected god to fill the entire universe.^[14] Thanks to the "bundle of sticks" imagery, property threatens to permeate all legal relations. That is, Hohfeld was right that a disaggregated reconceptualization of property makes it indistinguishable from other legal rights. He was wrong in thinking that this proved that property was illusory. It is equally consistent with

the conclusion that not only is property real but all legal rights must be reinterpreted in terms of property. In Hegelian terms, property as pure nothing is the same thing as property as all-encompassing being. Disaggregation as ceasing-to-be is also a coming-to-be. If, however, we intuit that not all legal rights can be analyzed in terms of property, we must return to property and identify its essence which distinguishes it from other relations.

B—
Hegel's Totality

I suggest a parallel between Hegel and Lacan which should surprise neither Hegelians nor Lacanians. Hegel was a totalizing philosopher. He argued that the same structures and dynamics pervade all forms of human experience. In The Philosophy of Right ,^[15] Hegel described the dialectic through which a person becomes a legal, social, and political subject. A Hegelian would expect that the formation of a person as a psychoanalytical subject would follow the same dialectic. Hegelian philosophy purports to be a circular (or perhaps spiraling) system. Hegel did not merely show that his conception of subjectivity logically and necessarily developed from the application of his dialectical system. He also suggested that if one started instead with his conception of subjectivity, one would necessarily develop a dialectical system. This was Hegel's project in The Phenomenology of Spirit .^[16]

Lacan often acknowledged Hegel's influence on his rewriting of Freud. But he frequently tried to distinguish himself from his intellectual forebear, as illustrated by the quotation at the head of this chapter. I believe, however, that Lacan's "science of desire"^[17] derived as much from the Hegelian insight that "the desire of man is the desire of the other" as it did from the Freudian theory of the unconscious.^[18] Unlike the person hypothesized by classical liberal philosophy, unlike the masculine stereotype

of pop psychology and different-voice feminism, the Hegelian and Lacanian subjects are not preexisting, self-standing, autonomous individuals seeking to maximize their utility by owning and controlling things and people. Both Hegel and Lacan recognized that subjectivity is a human creation—a hard-won achievement but an incomplete and imperfect one. The subject is not autonomous but is driven by an erotic desire to be recognized by another human being—to be desired by another person. Subjectivity can only be intersubjectivity, and this intersubjectivity must be mediated by objectivity.

The influence of Hegel's theory of desire, as developed in The Phenomenology of Spirit in particular, on Lacan's early work is widely recognized.^[19] I am making a slightly different point. I am arguing that Hegel continued to exert an indirect and, perhaps, unconscious influence on Lacan throughout his life which is reflected in his late theory of feminine sexuality. I wish to show the similarity between Lacan's account of the origin of law, language, and sexuality and Hegel's account of the origin of law, property, and contract in The Philosophy of Right .

The interrelationship between Hegel and Lacan goes deeper than mere similarity. If Hegel was right that the totality of his dialectic is a logical necessity, and if I am right that the application of Hegel's dialectic results in Lacanian theory of the psychoanalytic subject, then one should be able to go back and reread Hegel and find the Lacanian subject already waiting there. If Lacan is a true son of Hegel, this can only be because Hegel's Minerva was already great with her Freudian child.

C—
The Hole in the Whole

Lacan's real is always traumatic it is a hole in discourse; Lacan said "trou-matique" [literally "hole-matic"]; in English one

could perhaps say "no whole without a hole"? I would be inclined to translate Lacan's "pas-tout"—one of his categories—by (w)hole.^[20]

One might now be tempted to argue that my comparison of Hegelian and Lacanian subjectivity is inept because Hegel was the theorist of the "whole" and Lacan was the theorist of the "hole."^[21]

Hegel was, of course, a totalizing philosopher. To the casual reader this might suggest that, even if he argued that no individual moment of subjectivity could adequately encompass human consciousness, we have the potential to be part of an adequate whole—that is, the totality of Geist (of which subjectivity is but one moment).^[22] The creation which we call the human subject is, according to this analysis, simultaneously true as a moment of the whole and yet false and inadequate because it is merely part of the whole.

In contrast, one might be tempted to argue that Lacan rejected Hegel's totality.^[23] Like Hegel, Lacan thought that subjectivity, or even human consciousness, standing alone, is inadequate to the task of explaining personhood because it is only one moment of the psyche. But unlike Hegel,

Lacan did not think that there was an adequate whole in which the inadequate subject could participate. Lacan thought there was an unfillable hole—an unresolvable lack—at the center of the human psyche. There is no totalizing unity with Geist . This argument distinguishes Hegel and Lacan. For example, according to Edward S. Casey and J. Melvin Woody,

Hegelian phenomenology and Lacanian psychoanalysis part company here. For Lacan would forswear such a claim to absolute knowledge, emphasizing that the analyst must abjure any comparable assertion of omniscience. And this is surely not because of any modesty on Lacan's part, but because of his conviction that there is no final insight or definitive version of truth to be had.^[24]

Consequently, one might try to maintain that Hegel was ultimately profoundly optimistic while Lacan remained profoundly pessimistic. The inadequacy of the Lacanian subject remains inadequate; the creation remains mere fiction.^[25] Thus,

the subjection of man to culture foredooms him to what Hegel called 'the unhappy consciousness,' the consciousness of self as a dual-natured, merely contradictory being. Lacan reinforces Freud's grim conclusion that the contradiction is insuperable, that history can promise no final reconciliation, no splendid synthesis, not even an arena for the attainment of authenticity: cuttings and splittings, human lives in tatters, are all that remain in this darkened vision.^[26]

That is, a Lacanian might concede that the proof of a theory of the subject is the role it plays in the complete totalizing whole of Geist . But, insofar as there is always a hole in the middle of any potential whole, he cannot make a claim for the essential truth of his theory by definition .

Unfortunately, this analysis presents a misleading dichotomy between Hegel and Lacan. It misstates Lacan's conception of the split subject as well as Hegel's conception of his totality.

When Lacan asserted that the subject is "split," he was making precisely Hegel's point that the subject is not the self-sufficient, atomistic individual of liberalism. Rather, subjectivity is created in part from external forces. Whether or not the human infant has an innate capacity for

speech and desire, this capacity can only be actualized through the relationships with other persons and by submission to an existing symbolic order of law, language, exchange, and sexuality. Lacan emphasizes that one implication of this process is that, at one moment, that which is most ourselves—our subjectivity—is externally imposed upon and therefore alienated from ourselves. This sense that part of ourselves is not ourselves but is somehow cut off from ourselves is one aspect of what Lacan called "castration."

As we shall see, this parallels Hegel's understanding that the abstract person can only actualize his capacity by submitting to other persons and a regime of law, exchange, and property. These institutions are created by mankind generally but are imposed on each man individually. Our legal subjectivity is, therefore, both internal and external to ourselves. Consequently, even though the Hegelian concept of totality relates to the whole, the Hegelian system is radically incomplete at the level of the individual subject, in the same way as Lacan's is. If a Hegelian were to stay with the Lacanian at her level of analysis—that is, of the subject—he would also present a similar picture of an incomplete, split, and radically negative subject. On this analysis, Hegel's theory seems optimistic only in the abstract sense that one might find intellectual satisfaction in the thought that Geist is working through the world. The theory, however, presents a fundamentally negative image of the individual as a moment separated from Spirit.

Moreover, Hegel's totalizing unity is a dynamic process based not only on the incomplete negative subject but on sublation—which I shall merely introduce here but discuss in detail later. In sublation, contradictions are not merely negated. They are also preserved. And yet there is always implicitly an unsublated trace, a vanishing mediator, an unaccountable fourth, which implicitly remains after the triadic operation of the dialectic.^[27] The resulting whole of sublation is, therefore, simultane-

ously contradictory. Slavoj Zizek,^[*] probably the most forceful proponent of the Hegelian influence on Lacan, insists that negativity lies at the heart of Hegel's totality:

The picture of the Hegelian system as a closed whole which assigns its proper place to every partial moment is therefore deeply misleading. Every partial moment is, so to speak, "truncated from within", it cannot ever fully become "itself', it cannot ever reach "its own place", it is marked with an inherent impediment, and it is this impediment which "sets in motion" the dialectical development. The "One" of Hegel's "monism" is thus not the One of an Identity encompassing all differences, but rather a paradoxical "One" of radical negativity which forever blocks the fulfillment of any positive identity. The Hegelian "cunning of Reason" is to be conceived precisely against the background of this impossible accordance of the object with its Notion; we do not destroy an object by mangling it from outside but, quite on the contrary, by allowing it freely to evolve its potential and thus to arrive at its Truth: . . .^[28]

To Zizek,^[*] the difference between Kant and Hegel is not, as is usually thought, that Kant identified a hole at the center of our understanding and concluded that we were incapable of grasping the thing-in-itself directly while Hegel developed a new form of logic which enabled him to get to the thing-in-itself. Rather, Hegel used the same reasoning as Kant but came to a startlingly different conclusion: the hole is part of the thing-in-itself, the totality requires an intrinsic emptiness.^[29]

In this analysis, Hegel's system is like Lacan's—closure does not imply fullness. The hole that lies at the center of the Hegelian totality is reflected in the emptiness at the heart of the Lacanian split subject. If one finds the Lacanian subject depressing, then one should find the Hegelian subject equally dreary. On the other hand, if the Hegelian dialectic of subjectivity reflects the possibility of the actualization of human freedom, then one should find Lacan similarly optimistic. I shall argue that it is precisely the negativity at the heart of the split Lacanian subject that opens up the possibility of radical freedom. This radical negativity is the impossible Feminine—Vesta, the hidden goddess.

The Hegelian dialectic is easily misconstrued as a crushing teleologi-

cal necessity that inexorably leads humanity forward toward union with Geist . In the political context, the result is seen as union of the individual citizen with the state. Hegel's metaphor for the totality of the state, "the march of God in the world,"^[30] can suggest foreboding pictures of goose-stepping storm troopers to a late-twentieth-century reader. Hegel's notorious formulation of the necessity that logic be objectified in the world—"what is rational is actual; and what is actual is rational"^[31] —can sound like a depressing combination of grim determinism and a Panglossian defense of the status quo. These are serious misconceptions.

The progression of the dialectic is logically, but not empirically, necessary. The logic of intellect—Geist —works its way through the world, but not necessarily in any specific, preordained way. Any number of events, including, most importantly, the free acts of human subjectivity, can affect the course. The lack of inevitability is, paradoxically, logically necessitated. If, as Hegel argues, the progression of Geist is the actualization of human freedom, then, even at its highest development in the state, there must remain a moment of pure, free, and arbitrary subjectivity. I will argue that this moment of radical freedom which must be created and preserved is the Feminine.

The necessity of the dialectic is retrospective rather than prospective—

it looks backward rather than forward. The retroactivity of the dialectic is reflected in Hegel's famous metaphor in his preface to The Philosophy of Right:

When philosophy paints its grey in grey, a shape of life has grown old and cannot be rejuvenated, but only recognized, by the grey in grey of philosophy; the owl of Minerva begins its flight only with the onset of dusk.^[32]

Only at the end of the day can we retrospectively examine events. No external "natural" standard exists by which one can judge the truth of Hegelian totality. In Hegelian philosophy, truth claims rest on the explanatory power of the resulting whole.^[33]

One might agree or disagree as to the similarities and consistencies between Hegel's philosophical system and Lacan's psychoanalytical theory taken as wholes. My principal point, however, is the similarity between two aspects of their theories which at first blush might seem widely diverse—Hegel's theory of the role of property and Lacan's theory of the role of the Feminine as Phallic Mother. Both theories explain the role which the exchange of the object of desire plays in the constitution of subjectivity as intersubjectivity mediated by objectivity.

This seemingly narrow point, however, leads us inevitably back to the broader one. Both men believed that their respective theories of the creation of subjectivity were inextricably linked to the rest of their theories. One cannot understand or accept this one aspect of their theory, except in the context of the complete theoretical system of which it is an essential part. Consequently, similarities between the Hegelian and Lacanian accounts of the creation of subjectivity are some evidence for the propo-

sition that there is a broader, necessary consistency between their respective theoretical systems.

And so I now turn to explications, first, of Hegel's theory of property and, second, of Lacan's theory of the Phallus .

II—
The Hegelian Story of Property

A—
The Internalist Approach of The Philosophy of Right

Hegel introduced his theory of property in the first part of The Philosophy of Right , in which he discusses the development of the legal subject, abstract right, and law.^[34] These will, in turn, lead logically, although not necessarily historically or biographically, to the development of the family, civil society, the state, and the individual.

Hegel's initial account of property, like his account of abstract right, civil society, and the state generally, purports to be an internal one:

To consider a thing rationally means not to bring reason to bear on the object from outside in order to work on it, for the object is itself rational for itself.^[35]

That is, Hegel explores the rationality of property within the rhetoric of property.

This is opposed to an external or utilitarian analysis which purports to examine the purposes property-law concepts are supposed to serve. One example of an external analysis would be a Law and Economics or utilitarian approach which asks whether property law is "efficient" and how

property law can be used for "wealth maximization."^[36] "Pragmatists" on the left similarly take an instrumentalist approach by attempting to use property concepts and rhetoric to support any number of external social goals.^[37] Another example of the externalist, instrumentalist approach can be seen in certain schools of analysis of the term "property" as used in the Takings Clause of the U.S. Constitution, which I discuss in the last chapter of this book. This approach asks, "What concept of property best serves the purpose of protecting the individual from the power of the state?"^[38] The purpose of this analysis is not to examine the concept of property within the "private" law of property. Rather, it is to create a definition of the word "property" that can serve as a useful tool for the presupposed "public" law purpose of analyzing the respective rights and powers of the state and its citizens.^[39]

Instrumentalist or conceptualist views tend to see property as a creature of positive law. Any normative content in property law must, accordingly, be externally provided. Neo-Hegelian Alan Brudner comments that these instrumentalist approaches might tell us something about the goals the scholars want property to serve, but are not likely to tell us very much about property per se.^[40] Starting one's analysis from a presupposed arbitrary external purpose will almost inevitably lead to disappointment when it is found that property rules refuse to cooperate with the goals

imposed upon them.^[41] For example, I will show in the last chapter of this book that it is logically impossible for property to fulfill the constitutional function assigned to it as standing as the barrier between the individual and the state. Consequently, Brudner argues that instrumentalist analyses are virtually destined to result in conclusions that property concepts are "incoherent,"^[42] contradictory, or merely rhetorical,^[43] or otherwise requiring reform or deserving abandonment. This approach also frequently leads to nominalism. Property itself is seen as having no essence but merely as a title for a legal conclusion—a bundle of sticks.

The libertarian branch of liberalism tries to justify the positive law of property by reference to a natural-law–labor theory of property. Like other classical liberal theories, this approach presupposes the priority of the autonomous individual. As articulated by John Locke, an individual acquires a legitimate property interest in an external object when he commingles his own labor with it.^[44] This is, once again, an instrumentalist and externalist theory—property serves as the boundary of the public/private distinction.^[45] Contemporary libertarian Robert Nozick argues that the only way truly to understand the political realm (which includes an analysis of the legitimacy of the state's right to interfere with what Nozick identifies as the individual's right to property) is by reference to some other "nonpolitical" realm.^[46] Nozick starts with a concept of the autonomous individual who is prior to the state. He locates property rights not in positive law but in natural law—the individual is entitled to any and all property which he acquires directly or indirectly through legitimate appropriation. The state can be justified, therefore, only insofar as it recognizes the individual's prior entitlement to property. Nozick's approach presumes,

rather than explains, property. Hegelians would argue that Nozick's externalist approach might at most tell us something about his conception of nonpolitical life but is unlikely to provide much insight into the nature of the polity or property.

Another problem frequently identified in the libertarian version of the labor theory of value is its uneasy relationship between natural and positive law. Traditionally, liberalism has identified authenticity with nature and the individual in opposition with artificiality, the social contract, and the state.^[47] On the one hand, the proponents of the labor theory justify the legitimacy of property on the grounds of natural law—it is the inherent right of the individual. On the other hand, they realize that for legitimate, labor-based property rights to exist, there must be a state to enforce the rights. Otherwise, property devolves into mere physical possession by the strongest individual—an illegitimate regime. Libertarians argue that individuals enter into the social contract precisely to protect property rights. Moreover, probably all modern American lawyers agree with the familiar cliché, associated with Hohfeld,^[48] that property, like all legal categories, is a relationship between and among legal subjects. No atomistic individual could, then, have property rights which preexist the relationships of society. Consequently, the labor theory of property implicitly presupposes the state, and property is always already a creature of positive law—a paradox which causes insuperable problems for classic "takings" jurisprudence under the U.S. Constitution.

The internalist analysis, in contradistinction, claims to be an attempt to examine property law's own understanding of property law. This means it tries to determine whether there is any internal unity and logic to property both as an abstract matter and as concretely applied.^[49]

B—
The Artificiality of the Subject

The Philosophy of Right is the Bildungsroman^[50] of personality. It is the story of the self-actualization of the abstract person into the complex individual located in the modern state. The initial stage in this philosophical biography is the person's achievement of subjectivity by being recognized as a legal subject by a person she recognizes as a legal subject. To Hegel, subjectivity is intersubjectivity mediated by objectivity. Property serves as this initial mediator. Although this struggle for recognition is described as a matter of necessity, this should not suggest that we experience this process as one of cold logic.^[51] Because the freedom which is the essence of personality can only be actualized through recognition by another whom we in turn recognize, we are driven by an insatiable desire for the other. To Hegel, the search for love rules man's universe.^[52] As Michel Rosenfeld has put it:

The struggle for recognition is part of the dialectic of self-consciousness. Self-consciousness for Hegel is desire. . . .

Indeed, once it is understood that the aim of desire is the preservation of self-consciousness, then it seems logical to conclude, as Hegel does, that self-consciousness can only achieve satisfaction in another self-consciousness. If desire seeks to maintain identity, then self-consciousness must seek an object which provides it with recognition. And the only ob-

ject which can provide recognition to a self-consciousness is another self-consciousness.^[53]

Hegel's analysis of property and subjectivity is, therefore, desperately erotic to the point of hysteria. We desire the objects of property not for their own sake but derivatively as means to our true desire—the desire of and for other persons.

C—
The Presupposition of Human Nature

Perhaps the biggest problem we Americans have in understanding Hegel is that we tend to view political philosophy through the lens of our liberal philosophical tradition. Most schools of classical liberalism follow natural-law or intuitionist philosophies. They start from a presupposition of the state of nature or an intuition of the good and then posit a linear, logical, and developmental progression from this originary point. Human nature in its hypothesized natural state is conceived as "authentic" and normatively superior to "artificial" states. Deviations from this authenticity must be explained and justified. Specifically, if the free individual is posited as existing in the state of nature or is intuited as the authentic mode of being, the community and the state pose problems by definition . One of the most familiar ways to solve this problem is by theorizing that free individuals consent to live under the state through a real or hypothetical social contract. In other words, in liberal theory temporal order of development of the artificial state from the natural autonomous individual has essential normative significance for what constitutes a good or just community.

Hegelianism claims to differ from liberalism in that it does not presuppose the existence of the subject in the sense of the autonomous individual.^[54] This may, at first blush, seem inconsistent with the fact that Hegel, like Kant, used the abstract concept of free will as the starting place for his philosophy of right. Moreover, as indicated by its title, the recognition of formal rights plays a critical role in The Philosophy

of Right , as it does in liberal political philosophy. This might suggest to a casual reader that Hegel held that human beings begin historically or empirically as autonomous individuals endowed with natural rights in the liberal sense of these terms. This would be a serious misreading.

The Hegelian critique is that liberal theory risks degenerating into a truism. Liberalism starts by presupposing that the essential human person is a pre-social, autonomous, self-acting individual.^[55] This initial assumption or intuition identifies the social as a problem that needs to be solved by definition . It follows that once social life has been identified as a problem, the legitimacy of the state also becomes problematical. A libertarian, for example, may very well be entitled to claim that he has proved that his conception of the minimal state is the only form of government which can be legitimated as consistent with his notion of human nature.^[56] The problem is, Hegel believes that liberals never adequately discuss how they originally decided on the notion of human nature which would serve as the bulwark of their political theory. Human nature is implicitly, or explicitly, declared to be self-evident, a matter of intuition, or otherwise in no need of explanation.

From a Hegelian viewpoint, a philosopher presupposing autonomous individualism is equivalent to a magician sneaking the rabbit into the hat. Hegel, of course, observed the same individualistic behavior in late-eighteenth- and early-nineteenth-century Western societies, as did liberal

philosophers and politicians of the time. But he did not argue that this meant that the essentially individualistic nature of humanity is self-evident, let alone pre-given. Indeed, it is questionable if essential individualism is ever empirically observable, whether humanity is studied sociologically (within our present culture), anthropologically (cross-culturally), historically (within the development of our culture), biographically (with reference to the history of our own personal lives), or psychoanalytically (with reference to the theory of the development of psychic subjectivity). Sociologically, individuality is observed in daily intercourse, but so are altruism, love, and communitarianism. Anthropologically, as far as we know, human beings have always lived in familial, tribal, or other social groups and have never lived as the solitary nomads of the primal liberal myth. As a historical matter, the concept of the liberal individual is a recent development of Western thought. Even if it has roots in classical philosophy and Christian theology, the individual as we know it today was only fully described in the so-called Enlightenment. Biographically, we are not born autonomous but as helpless infants totally dependent on others for all of our needs. Consequently the private is as problematical as the public. Liberalism identifies the individual and seeks to explain society. Hegel argues that the individual and society are equally in need of explanation.

The Hegelian approach is not antiliberal but extra liberal. The fact that individualism is not assumed to be pre-given in no way implies that it is illusory or unimportant. Hegel's eventual conclusion that individualism is artificial in no way implies that it is unreal or inessential. Hegel rejects the liberal identification of the authentic as the natural, in opposition to the inauthentic as the artificial. Rather, as etymology indicates, that which is artificial is made by art.^[57] As a human creation, autonomy is an achievement, a great accomplishment to be treasured, nurtured, and aggressively defended. Individuality is a moment in the essential nature of the human

creator and may be logically prior to other moments of humanness, but it is not necessarily either our initial natural state or our final self-creation.

In other words, Hegelians would argue that it is they who truly cherish the concept of the individual, while liberals take individuality and individuals for granted. In addition, unlike liberal philosophers, Hegel does not, and cannot, resort initially to consent theory to justify contract or property, let alone the state. He does not argue, as did Locke, that we enter into the social contract to protect our property to which we are naturally entitled by investing our labor into it.^[58] Nor did he argue, as did Hobbes, that property was a creation of the social contract.^[59]

As clarified by Seyla Benhabib, social-contract theory presupposes the existence of autonomous individuals capable of entering into, performing, and enforcing contracts.^[60] To be the classical liberal individual and to be a person capable of entering into contractual relationships are one and the same thing. One could say the same thing about the liberal concept of property—property, as a legal category, requires not merely one individual who can serve as an owner but other individuals against which the owner asserts her property rights. If the concept of the individual is problematic, then so are property, consent, and contract. The problem is, of course, that the autonomous individual can only express her freedom—the ability to own property and enter into contract—in social relationships. The task of Hegelian political philosophy and jurisprudence is precisely to explain how the individual, property, and the ability to contract came into being.^[61]

To put this another way, the liberal person in the "state of nature" is by its very definition pre-social and abstracted from all social intercourse. We

must explain, therefore, how these abstractions come to become social. It begs the question to argue that an act of social intercourse—contract—is the origin of the institution of social intercourse—society and property. One would be arguing that liberal society was created by autonomous individuals who contracted to form liberal society which created the individuals who created liberal society, and so on. Once again, the towering turtles raise their unending heads. To put this another way, liberals presume that the abstract autonomous person is already a subject, in the sense of a being who is capable of bearing legal rights. Hegel argues that the abstract person is too empty a concept to sustain this burden precisely because all legal rights are social relationships. Property serves a function in the creation of sociality by giving the person sufficient content to bear the weight of subjectivity.^[62] Or, more accurately, property and legal subjectivity will be mutually constituting.

D—
The Impossibility of Philosophy without Presuppositions; Sublation

In the introduction to the first chapter of his Greater Logic ,^[63] Hegel discusses his goal of creating a philosophy without pre-

suppositions. To put it simply, he concludes that it is impossible to begin a logical analysis without intentionally, if tentatively, adopting presuppositions.^[64] One needs an initial working hypothesis or abduction. I have just explained that Hegel criticized other philosophers for basing their theories on unexamined presuppositions. Does this mean that Hegel himself is open to the same criticism despite his denials?

Hegel would argue "No." The problem with most philosophers is not that they start from presuppositions, which is inevitable. It is that they never return to critique their initial presuppositions. Presuppositions should only be accepted tentatively as working hypotheses to be developed and tested. Hegel argued that his totalizing philosophy and dialectic logic of Aufhebung (frequently translated into the dreadful English word "sublation") always turns back on itself. This enables one not only to develop the logical consequences of a hypothesis but also to return to and analyze the starting point—to test the hypothesis.

The essential requirement for the science of logic is not so much that the beginning be a pure immediacy, but rather that the whole of the science be within itself a circle in which the first is also the last and the last is also the first.^[65]

Sublation is a process by which internal contradictions of earlier concepts are resolved, but not in the sense of suppressing difference. The German word aufheben means paradoxically to preserve as well as negate.

"To sublate" [i.e., "aufheben" ] has a twofold meaning in [German]: on the one hand it means to preserve, to maintain, and equally it also means to cause to cease, to put an end to. Even "to preserve" includes a negative element, namely, that something is removed from its immediacy and so from an existence which is open to external influences, in order to preserve it. Thus what is sublated is at the same time preserved; it has only lost its immediacy but it is not by that account annihilated.^[66]

In trying to understand the dialectic, many Americans are hampered by having been taught a crude caricature of sublation as a simplistic trinity of thesis, antithesis, and synthesis. That is, a thesis is presented, an in-

ternal contradiction or antithesis in the original thesis is identified, and the two are resolved in a harmonizing synthesis, which destroys all previous contradictions. This serves as a new thesis, starting the logical process over. This formula is designed more as a means to discredit Karl Marx (who expropriated Hegel's method) than to understand philosophy. Indeed, this is how I was introduced to it in high school.

The problem with this description is that it suggests that sublation destroys all difference and deviation by converting them into an oppressive compromise.^[67] Rather, as the German term implies, sublation preserves, as well as negates, the prior concept. Sublation is not merely tertiary—it is quadratic.

Thesis and antithesis exist in contradiction. Through sublation these contradictions are simultaneously resolved into synthesis so that at one moment thesis and antithesis are revealed as identical. Yet there always remains an unmediated moment, a hard kernel of unsublated contradiction, a phantom fourth, the trace or differance of deconstruction, that resists mediation.^[68] That is, in sublation we have not only the thesis and antithesis and the moment of identity of synthesis, but also simultaneously the moment of difference which resists sublation.

In sublation the difference identified in the earlier stage is always preserved because it is always a necessary moment in the development of the later. To gussy it up with more fashionable terminology, the earlier concept is at one moment always already the subsequent concept, but simultaneously the very existence of the latter concept requires that the earlier concept is not yet the later concept.

Sublation (i.e., synthesis) can never destroy the differentiation between self and other (thesis and antithesis) precisely because sublation is the recognition that at one moment self and other are truly the same while at another moment they are truly different. Moreover, the moment of identity is itself different from the self-identity of self and other. In other words, in the differentiation of self and other, identity is a possibility. It is through sublation that the possibility of identity is actualized. But at

the same time, self and other must remain differentiated in order for actualization to remain possible. Hence Hegel's famous slogan of "the identity of identity and non-identity."^[69]

This is a necessary result of the circularity of the dialectic. Although worded in terms of the proactive resolution of what initially appeared to be contradictions into an implicit and inevitable whole, sublation is simultaneously the retroactive breakdown of what initially appeared as a harmonious whole into unresolved inherent contradiction.^[70]

E—
The Tentative Presupposition

1—
Hegel V. Liberalism

As a theoretical matter, Hegel's logic should eventually result in the same totalizing whole regardless of where one chooses to start. As a practical matter, however, one has to start somewhere.^[71] For practical reasons, some starting points are more productive than others. Hegel's chosen starting place for the Logic is pure being .^[72] The starting place chosen for The Philosophy of Right is the most abstract concept of selfhood which he calls "absolutely free will" —that which is an end in itself, and is not the means to some other entity's end.^[73] The fact that he logically derives the notions of property and abstract right from the notion of the absolutely free will before he derives the notion of the family does not mean that he thinks ancient human beings actually developed commercial and contractual relationships before they adopted the affective relationships of family.^[74] He is not taking the liberal position that the free individual is prior to society. Indeed, the autonomous individual of liberalism was only recognized relatively late as a historical matter.

It is true that in his analysis as a logical starting place, Hegel did start

with a creature bearing a strong family resemblance to liberalism's abstract individual. This may be, in part, because Hegel needed to address liberalism directly and immediately, as the foremost political philosophy of the time. But Hegel's dialectic is too generous ever to try to prove that his philosophical predecessors were simply wrong. Hegel agreed with Kant that there are reasons to begin one's consideration of a concept with its simplest, most universal, primitive, immediate, and minimal—and therefore least adequate—manifestation. If one wishes to study mankind generally—to make a universal statement as to human nature—there are advantages to abstracting down to the lowest common denominator.^[75] Hegel then builds upward to show how the more adequate, complex, and fully developed concept is already logically inherent in the more primitive.

Consequently, Hegel might be said to have started with liberalism and accepted that it contains a true if inadequate moment. His point was to show that liberalism's theory of the person was only partial. Accordingly, it logically and necessarily already includes its negation which will lead to the development of a more adequate concept of the person. If liberals start, and end, with the abstract, autonomous individual, Hegel starts with the autonomous individual, continues through a more complex notion of the subject, and ends with the rich concept of the individual in a state. As I have said, liberalism assumes that the abstract person is already a subject, whereas Hegel argues that the abstract person cannot yet perform this role. As Alan Brudner writes:

Our account of property law thus takes as its starting-point personality, conceived initially in the quite insular, decontextualized, and disembodied manner just described. It begins with this abstract self not because it aligns itself with a particular ideology for which this self is an unexamined prejudice, but because any quest for an unconditioned end as the foundation of right must begin with the abstraction from everything given or conditioned and hence with the most vacuous of concepts. Any richer or more affirmative conception of the self must prove itself worthy of rights from this starting-point, that is, through the immanent negation of abstract personality

as the sole unconditioned reality. So, while our account of property law begins with decontextualized personality, it does not remain there.^[76]

Or, to put it another way, liberal theory's presupposition that the individual is prior to society gives individuality preeminent, exclusive normative import. The normative import in Hegelian philosophy is different. Since the autonomous individual is a true moment of personhood, the state must always preserve and respect individualistic abstract rights. However, insofar as there are also other true moments of personhood, the state can and must take other values into account as well.

2—
The Abstract Person and the Kantian Construct

As a nineteenth-century German, Hegel could not have done otherwise than to start his political analysis from the version of liberalism developed by Immanuel Kant,^[77] rather than those more familiar to American lawyers developed by John Locke, Thomas Hobbes, Jean-Jacques Rousseau, and Jeremy Bentham. Nevertheless, Hegel is relevant to American jurisprudence in that all of these theories share the notion of authentic human nature as containing elements of autonomy, self-standing individualism, and a natural right to negative liberty. Kant is an excellent starting point for the critique of liberalism precisely because he takes this shared notion of the autonomous individual in the state of nature to its logical extreme.

To oversimplify, Hegel agreed with Kant that the most basic, simple, and abstract (and, of course, least adequate) notion of what it could be to be a person is the notion of self-consciousness as free will.^[78] The bare minimum essence of personality which distinguishes someone from something is "consciousness of oneself as simple, contentless self-relatedness that is undetermined by inclination and unrestricted by anything given."^[79]

Hegel explained the minimal concept of the abstract person as follows:

The universality of this will which is free for itself is formal universality, i.e . the will's self-conscious (but otherwise contentless) and simple

reference to itself in its individuality. . . . [T]o this extent the subject is a person .

. . . .

Personality contains in general the capacity for right and constitutes the concept and the (itself abstract) bases of abstract hence formal right. The commandment of right is therefore: be a person and respect others as persons .^[80]

So, even though Hegel starts with free will, he is not presuming that free will is a necessary aspect of human nature. That can only be demonstrated retroactively through the internal logic and consistency of the entire totalizing philosophy. That is, the primitive concept of the abstract person is abstracted from the more developed concept of the individual living in the state.

To be free is to be the means to one's own ends, rather than the means to the ends of another.^[81] The Kantian construct is a totally negative notion of personhood. To be free means not to act under compulsion. In order truly to have free will, the person can have no needs, desires, relations, or other pathological characteristics.^[82] As a consequence, pure freedom is totally arbitrary—if the person acted for a reason, it would be bound by that reason, and not be free.^[83] The person at the start is, therefore, a pure negativity. The free person can only be defined in terms of what it is not. "For the same reason [Grund ] of its abstractness, the necessity of this right is limited to the negative—not to violate personality and what ensues from personality."^[84]

To say that essence of personality is pure negativity may initially seem depressing because in this society we tend to identify the negative as the opposite of the affirmative and, therefore, as that which is bad. But, as I shall emphasize throughout this book, the Hegelian concept of negativity can be seen as not just hopeful but as the very basis of human freedom. The negative and the affirmative require each other. Pure negativity is not nothing, but pure potentiality. It is the very possibility, and therefore ability, to grow, create, and love. And so, as we shall explore in the next section, the abstract negative person as free will contains an internal contradiction which sets the engine of the dialectic in motion.

F—
The Contradictions of Personality

The problem with conceptualization of the self as absolutely free will is that it is empty, abstract, arbitrary, and negative^[85] —it is, by definition, totally stripped of all distinguishing characteristics. It is also, by definition, subjective (in the sense of solipsistic and impoverished) even as it claims to be universal. But real people are not abstract. They have content and concrete existence, experience themselves positively, and interrelate with other people. Since subjectivity is the ability to interrelate with others through legal rights, the empty abstract person cannot be a subject, as liberalism claims.

According to the reasoning of the dialectic, to be potential, abstract concepts must be manifested or actualized in concrete form. This is one of the meanings of Hegel's (wrongly) notorious assertion that "what is rational is actual, and what is actual is rational."^[86] If one starts with the person as abstract free will, then, in order for the concept of freedom to have "meaning"—that is, determinate being—it is logically necessary that the abstract person become a specific, concrete individual with positive existence.

For something to be possible it must be actualized—the failure of something eventually to become actualized means, in retrospect, that it had not been, in fact, possible. Something only retroactively becomes potential once it has already been fulfilled. This is why the abstract person as free will is driven to actualize its potential freedom as concrete freedom.^[87] 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 which allows it to come into being.

This concept of potentiality may initially seem opposed to our intuitions. We have a strong sense that many things that could happen, in fact, won't. Or, to put it another way, we feel that the fact that things turned out one way does not mean that things could not have been different. Isn't this why we are so moved by Marlon Brando's claim in On the Waterfront^[88] that he "could'a been a contender"?

I would argue that a more thoughtful reading of this line of dialogue shows that our intuitions are actually in accordance with the Hegelian view. When Brando asserts that he could have been a contender, he is not really making a claim about his abstract potentiality sometime in the past. Rather, he is making a claim about his actuality in the present. He is asserting a difference between the authentic internal essence of his selfhood and the illusory external accidents of his circumstances. Hidden deep below a shabby facade of failure lies a true noble self—the contender—only temporarily and unfairly obscured. His argument is based on a misuse of the Hegelian dialectic of potentiality and actuality. He says, in effect, "If you agree that I had the potential of being a contender in the past, then you must conclude that I am in actuality a contender today despite all appearances to the contrary because potentiality must always ripen into actuality." He is a frog asserting that he is now a prince because he once was one.

Brando's argument is facetious precisely because he tries to apply the dialectic prospectively. He wants us to believe in predestination. His statement strikes us as tragic, or more accurately, pathetic, because we intuitively understand that the dialectic can only be applied retroactively. He is deceiving himself not only about his present nobility but about his past promise. Only now that the owl of Minerva has flown can we look back and recognize from the fact that he is so obviously not in actuality a contender today that he never really had the possibility of being one. It is now painfully obvious that he never had the guts. He is a frog today, because he was only a polliwog yesterday.^[89]

And so the negative concept of abstract personality as free will contains contradiction and must go under. The self-consciousness as free will

When understanding turns this "ought" against trivial external and transitory objects, against social regulations or conditions, which very likely possess a great relative importance for a certain time and special circles, it may often be right. In such a case the intelligent observer may meet much that fails to satisfy the general requirements of right; for who is not acute enough to see a great deal in his own surroundings which is really far from being as it ought to be? But such acuteness is mistaken in the conceit that, when it examines these objects and pronounces what they ought to be, it is dealing with questions of philosophic science. The object of philosophy is the Idea: and the Idea is not so impotent as merely to have a right or an obligation to exist without actually existing. The object of philosophy is an actuality of which those objects, social regulations and conditions, are only the superficial outside.

on the one hand has positive existence, but on the other hand has no positive attributes and is pure negativity.^[90] As such, even though the free will is on the one hand an individual, on the other hand it is indistinguishable from all other individuals and, therefore, is not individual.^[91] Moreover, to be truly free the person must be beyond desire; yet, as Hegel explained in The Phenomenology of Spirit , self-consciousness as negativity is nothing but desire.^[92] Self-consciousness claims to be free, but since it is totally negative, its freedom can only be potential. It is, therefore, driven to actualize its freedom in order retroactively to prove its claim.

In order to resolve these contradictions, the will needs to give itself content by embodying or expressing itself somehow.^[93] In order to obtain the subjectivity that will eventually enable the person to develop into a full individual and actualize his freedom, the abstract person needs to objectify himself. As we shall see, although the will must be objectified to obtain positive freedom, immediate, binary object relationships will be inadequate to this task. According to Hegelian philosophy, subjectivity is a triune relationship—intersubjectivity mediated through objectivity. One can achieve subjectivity if and only if one is recognized as a subject

by another person, whom one recognizes as a subject. Human beings are driven by an erotic desire for mutual recognition.^[94] Property is "a moment in man's struggle for recognition."^[95] Abstract personality cannot be recognized by others because it has no positive individuating characteristics. Only through the possession and enjoyment of objects can the abstract person become individualized and thereby recognizable as a subject. Through the exchange of objects with another person one person can recognize another person as an acting subject deserving of rights. And through recognition by that other person, the first person can recognize herself as a subject capable of bearing rights. Consequently, in Hegel, subjectivity can only be achieved in what Lacan called the "symbolic"—the social order of law and language.

One of the steps in the will's development is property. Property is a means by which the abstract person objectifies itself. The self as abstract will claims to be essential reality, but the existence of external things, that is, objects, and our dependence on external reality contradict this.^[96] The self, therefore, needs to appropriate external objects—it must own property.^[97] The self becomes particularized and concrete, rather than abstract, through ownership.^[98] Potentiality becomes actuality.

G—
Objectification and Objects

Before we turn to how property leads to intersubjectivity and contract, let us examine a little more closely what Hegel meant by objectivity and ownership. This is useful because the English translation of Hegel uses such words as "things," "objects," and "possession," which have an unfortunate tendency to suggest the very phallic metaphor for property—the physical holding and seeing of tangible things—that I am criticizing. Upon careful reading, however, it becomes clear that Hegel did not hold such unsophisticated concepts.

First, I wish to remind the reader of the ambiguity of the English word "property." On the one hand, as Hohfeld so eloquently explained, in a technical legal sense the term "property" refers to a legal interrelationship between at least two subjects.^[99] On the other hand, we also use the word "property" to refer to the object which is the subject of the property relationship. That is, property is both the term for the system of possession, enjoyment, and exchange and the name of the thing possessed, enjoyed, and exchanged within this system. In this book, I use both meanings of the word "property." When I refer to "property" as a type of Phallus , and compare it to the Feminine, I am primarily referring to "property" as the object of desire. When I refer to the legal regime called property, the psychoanalytic parallel is the linguistic system of ownership and exchange called sexuality.

Second, although the word "object" in colloquial English often refers to physical things, in philosophical and psychoanalytical discourse the term "object" refers to anything that is not a subject, that is, that which is not itself capable of having will.^[100] Hegel's definition of "object" is logically necessitated by his starting definition of the subject as free will. The subject is initially the will in the sense of being one's own end in oneself, rather than the means to the ends of another. External things which themselves

have will (i.e., other human beings) cannot rightfully be objects of property. This is because appropriation is the infusion of the will of a subject into an object.^[101] External things which do not have their own ends but are merely the means to the ends of another can properly serve as objects. Objects lack the subject's capacity of self-transcendence, are not ends in themselves, and, therefore, offer no moral resistance to their appropriation.^[102] They can only be means to the ends of a will, and therefore appropriation of property by a will is legitimate.^[103]

In other words, an object is defined as that which is not a subject. This means that if one starts with a definition of the subject as abstract person, then a strict subject-object distinction is a simple definitional truism at this stage (but only at this stage) in the dialectic.

All external characteristics are, then, "objects." Although tangible things can be objects, it is not their tangibility which establishes their objectivity. Rather, it is negation by the subject that does it. Potential "objects" of property cannot be limited to actual physical things such as land and cattle, or even intangibles such as debts and intellectual property. Since the concept of the object is defined in terms of what is not (i.e., the subject), anything that "can be conceived as immediately different from free personality"^[104] can be a "thing," including desk, apartment, bank account, and stock portfolio, as well as my talents and ideas:

Intellectual . . . accomplishments, sciences, arts, even religious observances (such as sermons, masses, prayers, and blessings at consecrations), inventions, and the like, become objects . . . of contract; in the way they

are bought and sold, etc., they are treated as equivalent to acknowledged things .^[105]

Consequently, Brudner argues (correctly in my opinion) that the view expressed in much modern jurisprudence that the dematerialization of property is a recent invention inconsistent with, and subversive of, classic property theory is simply wrong.^[106] It is wrong on a jurisprudential basis, given the work of Hegel and others, not to mention the long history of nontangible forms of property recognized by the common law, such as incorporeal hereditaments.^[107] Indeed, as I shall discuss in chapter 2, section II.B, classical liberal jurisprudence as reflected in Blackstone's Commentaries and classical liberal political theory as reflected in the writings of Madison and the other Federalists both expressly adopt a definition of the objects of property which is fundamentally the same as Hegel's. They also include whatever is necessary for concrete personality: body, beliefs, opinions, talents, and so on. Property includes all that is proper to man.

H—
The Elements of Property

Hegel identifies three essential elements of property: possession, enjoyment, and alienation. For an interest to be "property," it must contain all three elements. These elements should not, however, be confused with any specific empirical manifestation of the elements, but should be understood as extremely abstract logical and symbolic concepts. Moreover, it does not follow from the proposition that the concept of property necessarily contains three elements that all legal interests either contain complete manifestations of all three elements or lack all three com-

pletely. Some manifestations of property will be more complete and "adequate" actualizations of the abstract possibility of the concept than others. According to Alan Brudner:

Because these conditions will be the necessary and jointly sufficient ones of an objectively valid mastery of things, they will stand to each other not as isolated "sticks" in a "bundle," but as co-essential elements of a totality. That is to say, they will form what are commonly called the "incidents" of ownership—the particular rights that are involved in the notion of property. . . . Property in the full sense will be the interconnected totality of all its partial realizations. It will be possible to distinguish, therefore, between an imperfect and a fully realized property, and therefore between superior and inferior and superior (or relative and absolute) titles to things; and it will be possible to parcel out for finite periods some of the constituent elements of property while keeping intact its atemporal notion, thereby making possible the ideas of a remainder and a reversion.^[108]

1—
Possession

The most rudimentary or logically "first" element of property is possession^[109] —the intersubjectively recognizable identification of a characteristic (object) to a specific person (subject). Possession is the most primitive element of property as an empirical matter in that one can have a right of possession of an object without any right of enjoyment or alienation, as in a simple bailment,^[110] but in order to enjoy or alienate an object one must first have some rudimentary right to possess it. To have possession of something is to have "external power over" it so that the will is embodied in it.^[111] Possession is "man's physical and anthropological capacity to appropriate externality for human purposes."^[112]

By referring to possession, Hegel did not mean physical, sensuous holding. Even though the German word "Besitz " as well as its English cognate carry unfortunate physicalist connotations, both words are more accurately defined as "occupancy" or "ownership."^[113] Indeed, the English word might be even less physicalist than the German used by Hegel.

"Besitz " is derived from the same root as "Sitz " (sitting or seat) and implies occupancy in the sense of the place one physically sits or camps. German mythographer Erich Neumann suggests that the concept of possession as sitting derives from the nomadic nature of ancient German tribes who only temporarily possessed any specific piece of land by camping.^[114] The English word "possession," on the other hand, derives from a root meaning "power" and is etymologically related to such concepts as possibility and potency.^[115] In this light, possession relates not to physicality per se but to the power of the subject with respect to objects and other subjects. Consequently, in chapter 2, section II.B.3, I suggest that if I were granted the privilege of drafting the terminology of property from scratch, I might prefer the term "objectification" to convey the Hegelian concept of possession.

Hegel's definition of possession follows from his realization that the "objects" of property are not necessarily, or even archetypically, tangible.

Given the qualitative differences between natural objects, there are infinitely varied senses in which one can take control and possession of them, and doing so is subject to equally varied kinds of limitation and contingency.^[116]

Nor, by "rudimentary," did he imply that the concept of property originated historically in the physical possession of tangibles, and expanded to include other interests by analogy and metaphor. Property originates in the internal necessity of the will.

Physical custody is, therefore, merely one possible way for possession to be actualized. This follows from the recognition that the class of objects cannot be limited to tangible things. Indeed, because physical custody is the most determinate^[117] form of possession, it is the most inadequate—a brute fact easily defeated by a brute.^[118] For possession to serve its function, it must be intelligible by others.

The essence of possession is thus intelligible possession. . . . As an aspect of intelligible possession, a person's connection with the object is conceived independently of physical contingencies. Therefore, something is one's own only if one's will should be recognized as present in the object, regardless of whether at any particular moment one has physical possession of it.^[119]

Consequently, Hegel identified at least two other, and more complete, ways of taking "possession" of an object: forming it and marking it.^[120] Forming the object is superior to physical holding because

[t]o give form to something is the mode of taking possession most in keeping with the Idea, inasmuch as it combines the subjective and the objective.^[121]

Moreover,

[t]aking possession by designation is the most complete mode of all, for the effect of the sign is more or less implicit . . . in the other ways of taking possession, too. If I seize a thing or give form to it, the ultimate significance is likewise a sign, a sign given to others in order to exclude them and to show that I have placed my will in the thing. For the concept of the sign is that the thing does not count as what it is but as what it is meant to signify.^[122]

If marking is the most complete form of possession, it is, consequently, the most indeterminate.^[123] That is, there is a considerable role to be played by positive law (whether by statute, custom, or whatever) in specifying which modes of marking will be considered legally cognizable in any specific society. Unlike Locke,^[124] Hegel did not present possession of specific property by specific individuals as being normatively justified, but only as a logically required starting point for the abstract person.

What does it mean, then, to recognize that an object is possessed by (assigned to) a subject? At first blush, possession seems individualistic, but it implicitly requires the existence of others. Property, like all legal claims, is relational in the sense that it is a set of rights and obligations between and among legal subjects.^[125] Consequently, property cannot be a natural right or attribute of an autonomous individual in the state of nature, as Locke insists. Possession is not merely the objective relationship of assignment of object to a subject, therefore. Although my property interest in an apple might include the right to possess it, in

the sense of holding it in my hand, and the right to enjoy it, in the sense of eating it, my legal right cannot be reduced to the brute fact of my holding and eating it. A monkey can hold and eat an apple, but it cannot own it. Possession as a legal right, as opposed to a brute fact, is the intersubjective relationship whereby a specific object is assigned to an identifiable subject as opposed to another subject . In other words, possession of an object by one person can only be understood in terms of the exclusion of others from the same object.^[126] But more important, the person takes possession of property so that he can become recognizable by other persons.

Consequently, "possession" is the intersubjective recognition that a specific object is identified to a specific subject in the sense that the subject has some legal entitlement and ability to exclude others from the object.^[127] I say "some ability" because as an empirical matter this might include different combinations of Hohfeldian rights, privileges, powers, and immunities. The highest manifestation of this may be free and clear "ownership" by an individual of those personal goods which are exempt property in bankruptcy—such as a wedding ring or glass eye. That is, the owner has the right, power, and privilege to exclude almost everyone else from these objects and the immunity from having her property interests taken or violated by others. Most possessory rights are much more constrained. Even "fee simple absolute" ownership of real property is not absolutely perfect possession.^[128]

The Hegelian notion of possession, therefore, contains a contradiction in that it is solipsistic but can only be understood in terms of other persons. To possess something is to exclude others, thus possession seems to separate us. But insofar as the will was totally free of contingency, it was already separate. Possession, therefore, reflects rather than causes separation. At the same time, possession is dependent on other persons. The element of possession—the intersubjectively recognizable identification of an object to a subject—therefore presupposes the existence of another

subject who can recognize this identification. This means that possession is separate but contains the promise of relationship.

2—
Enjoyment

The next element of property is use—or what I prefer to call the "enjoyment"—of property. Standing alone, possession cannot achieve the person's goal of recognition because mere identification of an object to a person looks the same to an outside observer as identification of the object with the person. Passive owner is confused with owned object. In enjoyment, the person actively relates to the object. By using the object, the will actualizes the fact that the object is a means to the person's ends.

[T]he thing, as negative in itself, exists only and serves it.—Use is the realization of my need through the alteration, destruction, or consumption of the thing, whose selfless nature is thereby revealed and which thus fulfills its destiny.^[129]

What constitutes "use" or enjoyment will depend on the actual object.^[130] Just as possession should not be equated with physical custody, enjoyment cannot be limited to sensuous consumption. The nature of the right of enjoyment varies with the type of object involved. A tomato can be eaten, but one can also admire its beautiful color or fragrance or even use it as a weapon by throwing it at some politician. Although during the term of a lease, the lessee has the right to sensuous exploitation of the leased object, the lessor also retains a right of enjoyment in the form of economic exploitation (i.e., the right to rent). Enjoyment is often conflated with possession in the sense of physical custody, because one frequently, or even usually, needs to be in immediate physical contact with, or at least close proximity to, a tangible object in order to enjoy it. But even in the case of tangible goods, the rights of possession and enjoyment are distinguishable. As reflected in the cliché that you can't have your cake and eat it too, it is often the case that enjoyment destroys the object of

desire and, therefore, also destroys the other two property elements. Consumption is the ultimate form of enjoyment.

Enjoyment is the most solipsistic element of property, in that the subject turns inward to the object and away from other subjects. Enjoyment, standing alone, is, therefore, also inadequate. The danger of enjoyment is dependence on the object.^[131] Rather than being the means to her own ends (the definition of freedom), the person risks becoming subjected to the ends of the object. Because the enjoyer only has positive existence through enjoyment of her object, she is an addict who is a slave to, and lives only for, the object. This is inconsistent with the free nature of the person and with the function of property to actualize that freedom. So long as the person remains fascinated—spellbound—by the enjoyment of the object, she cannot turn to others.

Enjoyment also fails because solitary enjoyment implicitly presupposes the existence of others who must be excluded so that the object can be enjoyed,^[132] and who must observe if property is to fulfill its purpose. But without mutual recognition the enjoyer remains virgin and sterile, while the observer is reduced to perverse voyeurism. Moreover, to say that enjoyment presupposes exclusion is only another way to say that possession is the most primitive element of property. That is, although it is possible to have the naked right of possession (exclusion) without also having a right to enjoyment, it is hard to imagine having any right to enjoyment without first having some minimal right of possession.

Enjoyment is intersubjective not just because the mutual enjoyment of the same object by two different subjects can be inconsistent, but because one's enjoyment of one's own object can hinder or even preclude the ability of another to enjoy his own object. To give an easy example, even rabid libertarians would probably agree that society can legitimately limit the rights of car owners to enjoy their cars by driving them on the sidewalk because that would interfere with the rights of pedestrians to enjoy their bodily integrity. Another example is environmental nuisances. A factory owner's enjoyment of his object by exploiting its productive capacity and incidentally polluting the underlying aquifers can interfere with

a neighbor's ability to enjoy her water.^[133] Exactly what these limitations are (i.e., what degree of interference we will tolerate as a legal matter)^[134] must be determined by practical reasoning (i.e., positive law).

The first two elements of possession and enjoyment also reduce property to a brute fact, mere contingency, rather than a right, in the sense of something essential to humanity.^[135] These contradictions cannot remain. In order to actualize her freedom, the person needs to rid herself of the enslaving object.^[136] This requires the third element of property—alienation.

3—
The Triune Nature of Property

Before we continue further, it might be helpful to stop again briefly to examine where we have been. At this point, the Hegelian conceptualization of property appears to be binary, containing only two terms—the owning will and the owned object. But, as we have seen, this apparently binary relationship contains contradictions. These contradictions will be resolved through the addition of a third term—the other which recognizes the self's property interests and in relationship to which the self can assert its objectification through property. Through sublation, property is always already becoming a relationship between subjects, and subjectivity can only be intersubjectivity.

In my discussions of possession and enjoyment, I have shown that intersubjectivity is implicit and potential, but latent. It is only in alienation through exchange that it becomes express and actualized.

One should also note that even at this point before the recognition of the third term, the purpose of property and the three Hegelian elements of property are already implicitly and inherently intersubjective. The Hegelian analysis contradicts modern assertions that the Hohfeldian conception of property as relational between persons is a recent development inconsistent with the classic view that property is a relationship between

a person and a thing.^[137] It also contradicts the misinterpretation according to which Hegel reaffirms the liberal position that property is prior to community.^[138] Rather, Hegel shows that the liberal position is contradictory. If community presupposes property, property also necessarily presupposes community.

This Hegelian conclusion as to the triune nature of property parallels the common-law concept of personal property. In contemporary property law there must be a subject asserting the property rights (possession, enjoyment, and alienation). There must be an object in which the property rights are asserted via appropriation by the subject. And there must be at least one third person against which the property rights are asserted.

I—
Adding the Third Term:
Alienation

Accordingly, a person can have existence in relation to another only when each side has recognizable determinate existence through its being embodied as an owner of a thing. The relation between persons must be mediated through external things and must consequently be a relation between persons qua owners of things. For there to be such a relation, it must be possible for me to acquire or alienate something, not merely as an external thing, but as property—as what already embodies the will of another. My acquiring or alienating a thing would then occur through my relation to the other's will. This brings us to the third

phase of property, namely contract, which according to Hegel, completes its deduction.^[139]

1—
Abandonment and Gift

Hegel described alienation as the third fundamental element of property.^[140] Possessory rights tell you whom you can exclude from the object of desire. Enjoyment rights tell you what you may do with and to your object of desire. Alienability rights tell you how to rid yourself of the object you once desired.

We have seen how the person cannot remain in lonely enjoyment but must extricate herself from the trap of objectivity. To understand alienation, we must return to the logic of property as the objectification of the will: the free will is simultaneously totally universal and totally solipsistic, and, therefore, seeks to resolve its contradictions by making itself into something recognizable by others. Alienation enables the will to reassert its mastery over an object through indifference.

It is possible for me to alienate my property, for it is mine only in so far as I embody my will in it. Thus, I may abandon . . . as ownerless anything belonging to me or make it over to the will of someone else as his possession—but only in so far as the thing . . . is external in nature.^[141]

Abandonment is one way of demonstrating the nothingness of the object. But mere abandonment cannot be enough because in property the will is attempting to objectify itself. If the subject merely abandons the object, he destroys his objective confirmation.^[142] The only way out of this dilemma is to achieve objective confirmation through the recognition of the act by an equal acting subject—both subjectivity and objectivity must become intersubjectivity.

And so simple abandonment of the object is a self-defeating retreat back into abstraction and away from recognizability.^[143] The person must, therefore, find a way of untangling herself from the object, while simul-

taneously maintaining sufficient connection to the object to remain recognizable and enabling her to enter into a relationship of mutual recognition by another person.

Gift is more adequate than abandonment because it more explicitly recognizes the third term. Although superior to abandonment, gift is, surprisingly, also inadequate to this function. Although we tend to think of gift as benevolent, the dialectic of gift is similar to the malevolent lord/bondsman dialectic. True, in a gift the donee can recognize the donor as a person with identifying characteristics who is indifferent to the object given and is, therefore, free. The problem is that the donee's recognition doesn't count. This is because, in gift, the donor treats the donee as the means to the donor's end of achieving freedom.^[144] The donee does not herself exercise subjectivity in receiving the gift—she is literally the object of the donor's affection. The donor cannot requite the donee's love precisely because he has selfishly demanded love from her rather than helping her become lovable. The donee is a bondswoman who can never satisfy her lord's desire for recognition.^[145] How often have we seen this failed dialectic played out in actual "love" affairs?

Since the donor does not achieve his goal of being recognized by another subject, he also fails in achieving the subjectivity he desires. Instead of achieving the self-other relationship of mutual recognition, the donor remains in a subject-object relationship. Moreover, after the gift is made

(as in abandonment), the giver is once again left without an identifying object in his possession. He squandered his object in a failed attempt at recognition and is once again left unrecognizable.

2—
Exchange

The only way of making a person lovable is to love her—recognize her as a subject worthy of recognition. As Lacan explained, love must precede lovability.^[146] To love is, precisely, to see in someone more than she is. This results in the alchemy in which the beloved is able to give back to the lover that which she doesn't have.^[147] It is only at the moment when she, whom I now recognize as a subject, in turn recognizes me as a subject, that I truly know myself as "I."^[148] She is my mirror, and I am hers. In exchange—contract^[149] —one person does not give an object to the other; two persons exchange objects.^[150] Not only is the first party thereby recognized as a free subject by the counterparty, but since the counterparty is also alienating an object, the counterparty is simultaneously recognized as a free subject by the first party. Because in contract the two parties are briefly united in a common will—the agreement to engage in the exchange—they share ends.^[151] Neither is reduced to the subhuman objective level of a mere means to the ends of the other. This is the moment of mutual recognition between subjects which can only be achieved through the mediating object in the relationship known as property, contract, and abstract law.^[152]

A person, in distinguishing himself from himself, relates himself to another person , and indeed it is only as owners of property that the two per-

sons really exist for each other. Their identity in themselves acquires existence . . . through the transference of the property of the one to the other by common will and with due respect for the rights of both—that is, by contract .^[153]

Law is essential to this dialectic because it is only by being accorded rights that a person obtains the dignity of a subject who is capable of bearing rights. Law, contract, and the legal subject who is capable of contract are mutually self-constituting. The abstract person creates rights not so he can immediately claim them for himself, but in order to accord them to the other in order to bestow on her the dignity of subjectivity so that she may in turn recognize him and return the gift of subjectivity.

Contract recognizes a moment in which two persons are united, bound together in a common will at the same time that they recognize each other as separate individuals having specific rights and duties. The parties to contract are simultaneously the same and different, actualizing the identity of identity and difference.

But as the existence of the will , its existence for another can only be for the will of another person. This relation . . . of will to will is the true distinctive ground in which freedom has its existence . This mediation whereby I no longer own property merely by means of a thing and my subjective will, but also by means of another will, and hence within the context of a common will, constitutes the sphere of contract .^[154]

And so we see, property simultaneously leads to the creation of both the contract^[155] and the contracting person; they are mutually constituting. The object of property in this stage of development is the external object of desire exchanged between subjects. This exchange does more than merely enable persons to recognize each other as acting subjects. Rather, this mutual recognition is precisely what makes us into subjects with the capacity of acting and contracting.

For this reason, alienation—the exchange value of property—is essential to the idea of property as a moment in the formation of personality precisely because it subordinates the object to intersubjective rela-

tionship. Property is not about things, it is about people. True, in property people desire, possess, and enjoy objects, but only derivatively as a means of achieving their true desire—the desire of the other.

In most traditional liberalism, the authentic human being is the autonomous individual supposedly encountered in a hypothesized state of nature. This liberal tenet means that negative freedom is all that the state and other individuals can offer. To Hegel, however, this categorical imperative is merely the bare minimum that human beings owe each other, and fails to describe the more complex interrelations of which individuals are capable within families and communities.

If someone is interested only in his formal right, this may be pure stubbornness, such as is often encountered in emotionally limited people. . . . [F]or uncultured people insist most strongly on their rights, whereas those of nobler mind seek to discover what other aspects there are to the matter . . . in question. Thus abstract right is initially a mere possibility. . . . ^[156]

I have been describing the Hegelian dialectic in terms of desire and love, but the relationship achieved at the level of abstract right is only the cold impersonality of the marketplace. But Hegel's precise point is that although the market seems cold and abstract it is, in fact, fundamentally but potentially erotic. As its name suggests, abstract right is the most abstract, and therefore the least adequate, form of human relationships.^[157] Consequently, it is only the first logical step in, and not the culmination of, the process of the development of the personality and the actualization of freedom. This is why the last two-thirds of The Philosophy of Right concern how abstract right is sublated into the more adequate relationship of morality, which in turn is sublated into ethical life, thereby enabling the development of a complex individuality within a complex society. This means that, in contrast to utilitarian liberalism, Hegelianism refuses to analyze all human relations in terms of economic man interacting in the marketplace.^[158] This also means that, in contrast to libertarian liberalism, property rights, although necessary, cannot be absolute. Property rights will necessarily be limited not only by prop-

erty's own internal limitations but by the higher requirements of morality and ethics.

J—
From Hegel to Lacan

I now explore how the Feminine serves a function in the psychoanalytic-linguistic theory of Lacan parallel to the function of property in Hegel's theory of subject formation. At first blush, Hegel and Lacan seem to adopt different starting places for their analyses. As we have seen, Hegel tried to derive a philosophy without presuppositions, even as he realized that one must tentatively adopt a working presupposition in order to start the logical process. He chose to start with the Kantian construct—the most universal, and thereby abstract, conception of the individual—in order to derive the development of the complex, concrete experience of actual human beings. Hegel's description of the development of the subject and the society purports to be logical, not literally temporal in the psychological or historical sense. The logical necessity of the theory is retroactive, not prospective.

Lacan explored the development of the psychoanalytic subject. One might initially assume that his starting place and ending place are given as a biographical and empirical matter—we all start out as babies and we end up as adults.^[159] This makes the theory sound like a temporal, biographical account based on the observation that babies are speechless but learn to speak as children.^[160] The autonomous individual of liberalism would have no place in Lacan's theory, if for no other reason than that if he did exist, he would have no need of a psychiatrist's couch.^[161] On fur-

ther reflection, however, it becomes apparent that Lacan's theory, like Hegel's, is not inductively derived from the observation of children and does not necessarily purport to be an accurate description of human biography. Rather, as Lacan insists, his theory is a fiction—a story retroactively written through abduction and dialectic logic to explain a Hegelian conception of the person.

To Lacan, the subject is the subject of language.^[162] In other words, subjectivity is intersubjectivity mediated through objectivity—just as it is in Hegelian philosophy. Human beings are driven by an erotic desire for mutual recognition; one can achieve subjectivity if and only if one is desired as a subject by another person whom one recognizes and desires as a subject.^[163] In order to become a speaking subject, the infant, like the Hegelian abstract person, must become recognizable and recognized by another speaking subject. Through the symbolic exchange of the Phallus as object of desire with another person—that is, language and the law as prohibition—the person can desire the other person as a speaking and desiring subject. And through recognition by that other person, the first person can recognize himself as a speaking subject capable of desire.

This subject's position with respect to possession, enjoyment, and exchange of the Phallus is sexuality. Sexuality is not, therefore, a biological function, although it is patterned by biology.^[164] Consequently, the moment a person attains sexuality is simultaneously the moment of creation both of subjectivity as intersubjectivity and of law as prohibition. In Hegel,

property, subjectivity, and law were mutually constituting. In Lacan, sexuality, subjectivity, and law are mutually constituting. Property in Hegelian philosophy, therefore, serves a function parallel to that of the Phallus in Lacanian psychoanalysis.

Like Hegel's, Lacan's reasoning is dialectic, retroactive, and abductive, not empirical, progressive, or inductive.^[165] He does not argue, as Freud sometimes seems to have done, that our adult sexuality is the culmination of an empirical process starting with our literal desire to have sexual union with our mothers and to kill our fathers. Rather, the logic of subjectivity and consciousness requires intersubjective recognition achieved through a regime of possession, enjoyment, and exchange of an object of desire. It is only when we retroactively try to understand this purely psychoanalytic process that we identify or conflate the stages with actual empirical stages we have lived through. Psychoanalysis is not an account of what the child is actually experiencing. It is, rather, the story told by the adult looking back at his own childhood. That is, we are not the way we are because we desired our mother, but our memory of our desire for our mother only retroactively takes on importance because of who we are today.

III—
The Lacanian Story of the Feminine

A—
Reading Lacan

The gender types described by Lacan are at least superficially consistent with contemporary gender stereotypes—many of which are highly misogynist. I would hope that feminists and feminist fellow travelers do not dismiss his theories out of hand because of this. I find his account not merely provocative but evocative. In particular, I find that his typology of the Feminine and Masculine functions much more accurately fits my experience of myself and others than does the pop psychology of cultural feminists. Lacan does reveal a tragic, misogynist world. But to condemn him for doing so is to kill the messenger because of the message.^[166] A theory of misogyny is not necessarily a misogynist theory.

More important, Lacan is, probably unintentionally, subversive of the gender status quo. I will show throughout this book that Lacan's very propositions undermine his conclusions from within. The Masculine is supposed to be the position of subjectivity, and the Feminine that of objectivity. The Feminine symbolizes lack—she does not exist. But it is only this radical negativity of the Feminine which can represent the negative that is at the heart of the split Lacanian subject. It is only this negativity which opens up a space in human existence for desire, creation, and freedom. It is the denial of the Feminine in what Lacan called "castration" which transforms the impossible into the merely forbidden.

Paradoxically, then, it is this impossibility of the Lacanian Feminine which creates the possibility of Hegelian freedom. Consequently, Lacanian theory shows that the self-actualization of human freedom requires not only property rights but feminine emancipation. This latter requires the impossible task of going beyond the limits of castration and creating an affirmative speaking feminine subjectivity. This is the concept of Hegelian freedom as "the ought"—that which, according to sublative logic, is the always already and the not yet. But it is never the now.

But we run before our horse to market.

1—
The Patriarchal Family

In reading Lacanian theory one needs to keep several things in mind. First and foremost, Lacan's theory does not "explain" patriarchy in a scientific or causative sense. Rather, it presupposes patriarchal family structures.^[167] Lacan's method was abduction—the logic of imagination.^[168]

Abduction is the logical process by which we try to imagine possible

explanations of initially surprising phenomena. As Julia Kristeva explains, she accepts Lacan's theory of castration as a working hypothesis because of its great explanatory power. She compares it to the "Big Bang" theory of the birth of the universe, which cannot be directly observed. Nevertheless, if we were to treat the story of the Phallus or the story of the Big Bang as though it were true, then so many initially surprising things we observe about human behavior, in the one case, or astrophysics, in the other, would no longer be surprising but would be a matter of course.^[169] It is a retroactive attempt at explaining the past, as opposed to a prospective prediction of the future. Consequently, Charles Sanders Peirce argued that abduction was better termed "retroduction."^[170]

In other words, Lacan did not merely observe infants acquiring language and deduce that conventional gender roles would inevitably develop. Rather, he observed the existence of the patriarchal family and tried to imagine a satisfying story which might make its existence seem understandable. This means that Lacan purports neither to show how patriarchy originally came into being as a historical matter nor to argue that patriarchy is inevitable. At most, it suggests the structures through which Western patriarchy, once in place, reproduces itself.^[171]

On the one hand, the theory holds out to feminists at least a theoretical possibility of change—a rewriting of gender roles. On the other hand, Lacan's retroactive account of patriarchy as a self-reproducing system takes seriously the crushing "reality" of the fiction of gender roles as lived. We cannot not merely wish away unhappiness and oppression.

2—
The Artificiality of Sexuality

Lacan can be seen as retelling Hegel after Freud, or perhaps more accurately, as rewriting Freud through Hegel.^[172] Lacan's greatest contribution to Freudian psychoana-

lytic theory may be that he moved it away from the anatomical and natural.^[173] Freud himself wavered between naturalistic and fictional accounts of the psyche.^[174] In his theory of "penis envy," Freud at times came close to saying that the penis is so impressive that the mere sight of it arouses an actual desire in little girls to want one of their own; the primal sighting (or non-sighting) of the little girl's lack of a penis causes the little boy to fear physical castration. The psychological experience of loss is a retroactive reinterpretation of these primal events. The traditional Freudian theory of the oedipus complex risks becoming an assertion concerning biological lust which is supposedly experienced by children as an empirical, biological matter.

In contradiction:

Sexuality . . . [on Lacan's rewriting of Freud] is not, in spite of popular conceptions, governed by nature, instincts or biology but by signification and meaning.^[175]

This signification is given by the man looking back at the child he once was.^[176] Penis envy and castration anxiety are retroactive, imaginary reinterpretations of earlier psychoanalytic experiences of loss, rather than the other way around.^[177]

3—
Sexuality as Language

When Lacan speaks about "men" and "women," he is not speaking about empirically anatomical male and female human beings.^[178] He is, rather, referring to the "Masculine" and the "Feminine" as psychoanalytical, or linguistic, positions which human beings must take up to become speaking creatures. These positions are only generally associated with the biological sexes.^[179] That is:

For Lacan, men and women are only ever in language ("Men and women are signifiers bound to the common usage of language" . . . ). All speaking beings must line themselves up on one side or the other of this division, but anyone can cross over and inscribe themselves on the opposite side from that to which they are anatomically destined.^[180]

To say that Lacan sought to destroy any lingering biological determinism in Freud's theories while explaining how gender difference becomes mapped upon biological sexual difference^[181] is not to imply that biological sexual difference does not exist or is not important. Lacan's

point is that our experience of sexuality as speaking, conscious subjects can never be simply reduced to our biological sex for the same reason that property cannot be reduced to our sensuous relationship with physical things. Sexuality is artificial, and therefore authentic to man the artist. The sexual status quo is neither natural nor inevitable in the sense that anatomy is destiny. Nevertheless, Lacan hypothesizes a mechanism by which a sexual status quo—once in place—maintains its position.

Male superiority is neither biologically nor psychoanalytically true. Rather it is a fantasy. Yet it is a fantasy in which we live.^[182] If gender is a lie, it is a lie that we believe . We must adopt a sex in order to become adult subjects. As we shall see, the theory holds that identification of these psychological categories with biological analogues is practically inevitable in our society, even if it is erroneous. Anatomy is, therefore, hardly irrelevant.

[A]natomy is what figures in the account: for me "anatomy is not destiny," but that does not mean that anatomy does not "figure" . . . , but it only figures (it is a sham ).^[183]

That is, the fictional sex we "choose" and live tends to be correlated, more or less strongly, with our anatomical sex. Lacan captures this by using terms for his psychoanalytical concepts, like Phallus and castration, which suggest this conflation. Consequently, a Lacanian would deny the fashionable sex/gender distinction (which identifies the former with anatomical difference and the latter with social difference) precisely because it presupposes that we can tell the difference and achieve an immediate experience of the "real" of anatomy as distinct from our imaginary and symbolic interpretations.^[184]

Neither does my reading of Lacanian theory require a denial of the physical and anatomical concept of the brain, in favor of a psychic explanation of the mind. Nor is his linguistic theory necessarily incompatible

with theories that emphasize the physical capacity of the human brain for language.^[185] Lacan's idea is held by many philosophers of science.^[186] Human consciousness cannot experience the physical in an unmediated way. Human beings, as speaking subjects, do not have a direct unmediated relationship to our biological sexuality. We always filter our experience of the physical through the orders of the real, the imaginary, and the symbolic. The moment we are aware that we are experiencing a sensation, the second we are aware of ourselves as differentiated from an object or sensation, our mind has mediated the experience of the brain.^[187] The moment we think about our sexual experiences (let alone fantasize or speak about them), we have already interpreted them.^[188]

4—
The Anatomy of Truth

Lacan's truth about lies is a story told through metaphors of male anatomical experience. But this leaves open the question whether other different "true" stories—perhaps feminine stories—could be told to explain other aspects of ourselves.

This possibility, of course, is more than just a little problematical. As we shall discuss, Lacan posits that the subject is psychologically positioned as masculine. What then could it possibly mean to tell a feminine story if we always speak in a masculine voice?^[189] It would not be an answer merely

to attempt to tell the story of development through female anatomical metaphor.^[190] Mere negation or reversal is always a reinstatement, not a rejection, of hierarchy. In negation, the categories of the original hierarchy are accepted, and thereby strengthened and essentialized; one merely argues about the relative valorization of the categories. Lacan's point of the essential antinomy of sexuality remains.^[191] If the Feminine is the position of lack (radical negativity), then any attempt to identify positive content replicates the deluded masculine fantasy that we can tame and dominate the Feminine by defining her.

For example, as I shall discuss, Lacan's psychoanalytical term of art Phallus is the lost object of desire and the signifier of subjectivity. It does not designate the male organ. The identification of the Phallus with the male

organ and the female body is, like all identification, imaginary. Lacan intentionally uses this misleading term in order to reflect conflations retroactively made by the subject upon taking on sexual identity and subjectivity.

Several feminists such as Grosz, Cornell, and Irigaray have, however, challenged Lacan's claims to a neutral terminology. Is he in fact engaging in a conflation of the psychic and the anatomical even as he denies it?^[192] That is, by using terminology which invokes the anatomical male organ to describe the object of desire, Lacan might be making the error of describing the psyche through phallic (as opposed to Phallic ) metaphor. Lacan's very terminology may not merely reflect but actually predetermine the conclusions of his analysis. Lacan's claims of nonessentialism might degenerate into the essentialization of the Feminine as silence. Sexuality is not biological, but biological men and women usually take up the fantasy positions of psychic men and women: but if all is fantasy, then the fantasy we live is the only reality. Theoretically we might be able to live another fantasy—but not in the current world. Our current fantasy is the only reality we can know. Nevertheless, I believe Lacan's misogynist paradox, whereby sexuality is not inevitable but always already predetermined, precisely describes the structure of society and the impossible task facing feminism. Lacan's terminology is not neutral. But this is because society is not.

But this seeming predestination is the inevitable effect of a retroactive dialectic. Lacan's theory of sexuation posits its necessity only in the sense that, standing here today as adults in this society, this is the process which must have happened . It is not necessary in the sense that, from the standpoint of any empirical infant, this is the process that must happen in all societies in all times. Theoretically the child could undergo different forms of sexuation in different types of societies. In addition, as we shall see, the Lacanian alchemy allows us to transform the impossible into the merely forbidden. As I shall discuss, to the Lacanian and the Hegelian, the existence of prohibition contains within it not merely the possibility but the ethical imperative of its transgression. It is precisely by denying feminine subjectivity that Lacan requires it. Consequently, implicit in the Lacanian-Hegelian notion of necessity is the possibility of reform. But we will never know whether it is really possible until we actualize it.

B—
The Real, the Imaginary, and the Symbolic

According to Lacan, we exist in the three orders of the symbolic, the imaginary, and the real.^[193]

[I]n the relation of the imaginary and the real, and in the constitution of the world such as results from it, everything depends on the position of the subject. And the position of the subject—you should know, I've been repeating it for long enough—is essentially characterized by its place in the symbolic world, in other words in the world of speech.^[194]

In one of Lacan's last seminars, he uses the metaphor of a "Borromean Knot" to describe the relationship between these orders. This "knot" consists of three rings that are not interlinked but are held together through overlapping.^[195] The metaphor points out that although each ring and each realm is distinct and does not interpenetrate any other, the whole of the knot and the psyche depends on the interrelationship between the three;

remove one, and the whole system collapses. The metaphor of the interlocking rings is also designed to counteract the tendency to hierarchize the three regimes—placing the symbolic realm above the imaginary, and the imaginary above the real. Another advantage of the metaphor of rings is that it offers an alternative to the common internal-external metaphors for human experience. A point within a ring can be described either as external to the ring or as internal to it. Because the three rings overlap, the metaphor illustrates how (as I shall discuss later) the object cause of desire, which Lacan calls the objet petit a , can exist in more than one order simultaneously.

The symbolic is the order of law and language.^[196] Since the Lacanian subject is the speaking subject, subjectivity is primarily in the symbolic—law, language, symbolization, and signification. In other words, the subject is not only the subject of language, it is also subject to language.^[197] The imaginary, as its name indicates, concerns the order of nonverbal imagery.^[198] It includes simple identification and differentiation of the

type of which animals are capable. Lacan's concept of the real is subtle and paradoxical. The real is our sense of the limit to the symbolic and the imaginary—that which cannot be captured in language or images. It is the world of impossibility, limitations, and necessity.^[199] The real is pure immediacy. It is the uterine unity that collapses all distinctions not only of people but of time and space. It is that which we feel we lose the moment we mediate our experience through imagery or language. To speak of or visualize the real is to lose touch with reality. Yet our sanity literally requires that we treat the real as though it were reality.^[200] We necessarily insist on a piece of the real in our symbolic and imaginary experience.^[201]

For some purposes it is useful, although admittedly simplistic, to say the real stands in for the physical or "object" world preexisting outside of human consciousness and language—that is, nature. Standing for the biological or natural, the real includes the realm of the infant before it

develops consciousness. Psychoanalytically, it also means all other forms of limitation of which we do not have direct experience, including the gods and death.^[202] It is the hard kernel that "exists when all . . . imaginary and symbolic factors are annihilated."^[203]

Before I give the plot of Lacan's Bildungsroman of sexuality, let me once again emphasize that the story I am about to tell is a retroactive re-creation of the development of the psyche. We will speak as though the infant actually, empirically passes through three orders of consciousness even though these orders are, in fact, mutually constituting. Lacan retroactively imagines the infant passing successively through these orders, but as he passes into the next order he never leaves the previous order.

This reflects the Hegelian dialectic in which each stage in the development of the subject is sublated into the next stage. All difference is not destroyed in sublation. An unsublated trace always remains. The "earlier" orders of psychic development, the real and the imaginary, do not totally disappear into the order of the symbolic to form consciousness.

Indeed, the two seemingly "earlier" orders do not, in fact, preexist the symbolic—the three are mutually constituting. Although we experience the real as that which preexists and binds the symbolic, in fact, the real, the imaginary, and the symbolic are mutually constituting. It is the ordering of the symbolic which walls off an outside called the real which retroactively serves as the impossible limit to the symbolic. The impossibility of a closed system has been familiar at least since Gödel proved that no mathematical system can be complete. Rather its closure always depends on assumptions imposed on the system from the outside.^[204] The real is logically required by the concept of the symbolic by

the same reasoning.^[205] We retroactively abduct the existence of the real from the traces or stains it seems to have left in the symbolic. As in Hegelian sublation, the creation of the symbolic reveals the necessary precondition of the real and the imaginary. That is, consciousness is a Borromean Knot of the three orders. The knot cannot exist unless there are at least three rings to overlap.

Lacan called the process of entering the symbolic (i.e., becoming a human subject who is capable of speech) "castration." It is the understanding that we only exist as subjects within law and language, yet law and language are external to, and imposed on, our subjectivity. It is reflected in our sense of being separated from a mythical, imaginary sense of unity with the Other (associated, of course, with the uterine union with the Mother). Castration is the loss of the mythical object of desire which is called the "Phallus" —the symbol of subjectivity.^[206] This separation is the creation of law which is always the law of prohibition: Thou shall not merge back into unconscious union with the world. In the imaginary, this union is the utopian mother-child dyad. Consequently, in modern West-

ern society this law of prohibition takes the form of the incest taboo.^[207] That is, the command, "Thou shalt not merge with the real" becomes "Thou shalt not identify with the Feminine" and, finally, "Thou shalt not sleep with your mother." Paradoxically, it is law's prohibition and its maiming of subjectivity in castration which create not only the possibility of but also the conditions for human growth, love, and freedom.^[208] "[L]ove is a mirage that fills over the void of the impossibility" of the relationship between the two sexes.^[209]

1—
The Opening Chapters of the Psyche's Bildungsroman

Just as Hegel "started" his analysis of property with an account of the abstract will, so Lacan "started" with the infant. When viewed retroactively, the infant seems to exist wholly in the order of the real. In the real, the infant has no consciousness. Its relation to the world is immediate; it experiences itself as one with the object world, including its "Mother." Most specifically, it has no awareness of the separation of itself and the rest of the world. As Hegel stated, the infant has being-in-itself, mere implicit being.^[210] At this point the infant experiences itself and its Mother as one.

Or more precisely, it has no sense of itself as a self, and no sense of its mother as a person.^[211] It is, therefore, misleading to say that the infant

"experiences" union with the Mother because as soon as it starts becoming aware of experience, it begins to be aware of itself as distinct from the Mother. Awareness is not experience but the interpretation of experience. It is entering the mirror stage that will bring it into Lacan's next order of existence, the imaginary.

The imaginary is the order of the image and, therefore, of identity and difference.^[212] It is the order of meaning, of captivation and ensnarement.^[213] Based on mirror images, the imaginary sees difference in terms of simple negation—the sexes are imagined to complement each other perfectly as yin and yang, active and passive, autonomous and connected, individualistic and nurturing, and so on. In this mirror stage, the child starts becoming aware of itself as separate through the mediating function of sexuality.^[214] This is the beginning of the subject/object distinction.^[215] The infant becomes aware of the Mother as Other—as radical alterity.^[216]

Note that the term "Mother" means the person initially recognized by the infant as the other, rather than his female parent. Consequently, it is sometimes written as "(M)other" by English-speaking Lacanians. In a patriarchal family structure, this person is also usually the child's mother in the usual sense, or a person socially recognized as a mother surrogate (i.e., nanny, nurse, guardian, widower, or whatever), hence the choice of terminology. The fact that the other, as second term, is identified with

(m)other in our society (and that, as we shall see, the third term will be identified with father) will determine the positions of sexuality.

Lacan's punning and metaphoric terminology is intentional. The infant sees its mirror —thereby enters the image -inary—in the mirror stage .^[217] It recognizes itself by seeing itself reflected in Mother who functions as its mirror. The experience of recognition is primarily one of vision—it sees the Mother, it sees its hand and begins to recognize parts of its body.

This concept of the Feminine as alterity has been misunderstood by so-called different-voice feminist legal scholars, such as Robin West, who are strongly influenced by the works of Carol Gilligan and other object-relations psychologists. On the basis of the assertion that most empirical psychological studies of childhood have concentrated on boys, they conclude that theories that claim to explain the development of personality, generally, are, in fact, accounts of masculine personality, specifically. They presume from this that since mainstream theory asserts that personality (i.e., masculinity) originates in a recognition of difference from the Mother, then feminine personality must originate in a recognition of similarity to the mother. From this they conclude that although men (whose development is characterized by separation) may be the autonomous individuals of liberal philosophy, women (whose development is characterized by connection) are more interrelated, following an ethic of care rather than justice.^[218] This vision of an affirmative Feminine which is the simple negation or mirror image of the Masculine is, as well shall see, not merely imaginary, but a masculine fantasy. Moreover, this particular conclusion is a non sequitur which springs from a fundamental confusion about the level of differentiation on which the theory relies.

The initial differentiation which is the starting point of Lacanian per-

sonality is the awareness that I and the Mother are not literally the same person—that is, the ability to formulate the third person pronoun (which precedes the development of the first person, let alone the second person). This cognitive step of recognizing the existence of another person as different must take place before the ability to identify, let alone evaluate, similarities to and differences from that other person. The former—mere imaginary identification of identity and nonidentity—is purely dual in nature and must be the same for both the girl and the boy in the mirror stage. That is, in the mirror stage, all children, male and female, both identify with the Mother yet recognize their difference from the Mother.

Indeed, for the different-voice feminist to posit that the girl child initially recognizes her similarity to the Mother and the boy initially recognizes his difference prior to the oedipal stage is to presuppose a natural or biological sexual difference which does not explain the psychoanalytic and social significance of sexuality.^[219] The two-party mother-child dyad is an imaginary relationship. In the imaginary, one can identify "meaning," in the sense that one can identify that X is like or not like Y, but all meanings (i.e., differences and similarities) have the same valorization because there is no external standard of comparison. For example, the blue-eyed little boy would see himself as like his mother in that she has blue eyes and different from her in that she lacks a penis, and the brown-eyed girl may see herself different from her blue-eyed mother despite their similarity in genitalia. But neither specific difference nor similarity could have precedence over the other.

Signification is not imaginary but symbolic. In order for a child to learn to privilege a specific anatomic difference, he must identify a third term to serve as the basis of comparison—what Lacan will call the Father. Consequently, the creation of sexual differentiation cannot take place in the mirror stage but must wait until the oedipal stage.

In other words, although both different-voice feminists and Lacanians agree that femininity is identification with the Mother and masculinity is identification away from the Mother, their respective interpretations of

this phenomenon are wildly disparate. Different-voice feminists believe that children identify with or away from their mother on the basis of their pre-given (i.e., natural) sexuality and that this difference causes gender characteristics. In contradistinction, Lacanians believe that sexuality is itself the decision to identify with or away from the mother. This decision can only be made when the child enters into the symbolic. Accordingly, one's sexuality is not necessarily correlated with one's biology.

Consequently, although the mirror stage is the child's first awareness of self, at this point it can only experience itself as that which it is not.^[220] It is not the "Other"—Lacan's term for radical alterity, which is identified with the role of the Mother, the unconscious, and the symbolic order.

The infant is not yet a subject, and to say the same thing, it does not yet recognize the Mother as another subject. She is just Other. Infant and other are merely negatives, oppositions. It is not an individual, it is not-Mother.^[221] It can now conceive of mother in the third person as "she" (or, perhaps at this stage, "it") but cannot yet think of itself as "I," let alone recognize "you."

The infant during the mirror stage, existing only in the real and the imaginary, resembles the Hegelian abstract personality—pure negativity.^[222] The mirror stage is consequently both a stage of great gain—the experience of self—and incalculable loss and violence. Since the child has no memory of alterity prior to the mirror stage, in the imaginary the in-

fant retroactively imagines that it had once been one with Mother before the mirror stage (as opposed to having been merely unaware of alterity). Consequently, as we shall see, when the child enters the symbolic, he will identify his subjectivity (castration) as loss or denial of the Feminine.

In other words, the relation between the infant and the object world, like the relationship between the will and the object of property in possession and enjoyment, is ostensibly dual. Because the relationship between the infant and the Mother is not yet mediated by a third term, the infant can only imagine union as absorption and destruction of separate personhood.^[223] This binary system is unstable and looks forward toward, and presupposes, its own overthrow. The self in the imaginary is contradictory in the same way as property before exchange—the infant is now both separate from and dependent on the defining Other. This can only be resolved by the addition of a third term. Or, more accurately (as we are looking backward over our shoulders), the third term is not added but is revealed as being always already there. The very act of recognizing the third term is simultaneously the creation of the imaginary binary mother-child opposition in the mirror stage and the real mother-child union prior to the mirror stage, as necessary preconditions to the tertiary symbolic relationship of adult sexuality.

2—
Longing in the Three Orders

Before discussing the third term, it is helpful to consider the categories of longing which correspond to the orders of the real, the imaginary, and the symbolic: "need," "demand," and "desire," respectively.^[224] In the first stage, the infant experiences the real longing of need.^[225] Needs are particular by definition. If one can be satisfied by a substitute, then one didn't need the missing ob-

ject, one only wanted it. For example, if one is dying of thirst, only drink will do. Need is always full in the sense that it is either fulfilled or not. That is, either you need something or you don't.

We have seen that, in the mirror stage, the realization that the Mother is Other—radical alterity—is the start of the infant's realization of self. As a result, it not only has needs.^[226] It also recognizes that it lacks^[227] —it demands of the (M)other.

Demand takes the form of the statement, "I want . . . " or the command "Give me . . . ". In Lacan's understanding, the demand is always transitive for it is always directed to an other (usually the mother). By being articulated in language, a language always derived and learned from the (m)other, demand is always tied to otherness.^[228]

Demand is not yet conscious language. It is the call to the Other.^[229] Unlike need, demand is not full. The infant can and does demand because it is aware that it wants something, and that there is someone else who has something which it does not have.^[230] "Ask yourselves what the call represents in the field of speech. Well, it's the possibility of refusal."^[231] As a result, unlike need, demand is general. "From this point on, the particularity of his need can only be abolished in demand, a demand which can never be satisfied, since it is always the demand for something else."^[232] That is, even if the Mother gives us everything we ask for, we are never satisfied because we really want her love and our demand is for an irrefutable proof

of the love. This, of course, is the inherent anxiety of deductive reasoning. No amount of positive evidence provided by the mother can ever verify the hypothesis that "Mommy loves baby" while every instance in which a demand is not instantly satisfied threatens to falsify it.

The infant desperately wants and demands to reexperience union with the lost Mother. This is a terrible, violent, and frightening demand.^[233] If it and the Mother become one again, then they will no longer be two. One must disappear.^[234] The new infantile self is terrified that it is the infant who will disappear. After all it is the Mother who is all-powerful, who has been the source of fulfillment of its needs, and who is now the object of its demands. But if it is the Mother who disappears, then the infant will no longer have a mirror. If the infant has no mirror in which to see itself, will the infant disappear?^[235] In the binary Mother-child relationship, the infant is like the abstract person in enjoyment—totally dependent on the object as other: a Mother-addict.

When the third term is added, the child enters the symbolic and becomes a subject, who, like a Hegelian subject, desires. Desire is what is left when need is separated from demand. "[T]he particularity of need . . . resurface[s] in the desire which develops on the edge of demand."^[236] Desire is sexual in that it is the creation of the linguistic categories of sexuality, but it is a conflation to identify it with anatomical sexual urge. Lacan is talking about the desperate Hegelian drive for recognition. "[D]esire is intrinsically inter-subjective. Consciousness desires the desire of another to constitute it as self-consciousness. . . . [D]esire is thus a movement, an energy that is always transpersonal, directed to others."^[237] For the subject, desire is the symbolic experiential counterpart of need and demand

in the real and imaginary. Like demand, and unlike need, desire is always incomplete.

Desire is a fundamental lack, a hole in being that can satisfied only by one "thing"—another('s) desire. Each self-conscious subject desires the desire of the other as its object. Its desire is to be desired by the other, its counterpart.^[238]

Thus

any satisfaction that might subsequently be attained will always contain this loss within it. Lacan refers to this dimension as "desire". The baby's need can be met, its demand responded to, but its desire only exists because of the initial failure of satisfaction. Desire persists as an effect of a primordial absence and it therefore indicates that, in this area, there is something fundamentally impossible about satisfaction itself. It is this process that, to Lacan, lies behind Freud's statement that "We must reckon with the possibility that something in the nature of the sexual instinct itself is unfavorable to the realization of complete satisfaction."^[239]

Just as the Hegelian abstract person desired recognition from another subject, the child now desires that the Mother desire him. As the Hegelian person sought to possess objects so that he could be recognized by other subjects, the Lacanian seeks to identify and possess whatever object it is that the Mother desires.

C—
Adding the Third Term:
The Oedipal Romance

1—
Enter the Father

It is in his search for the Mother that the child encounters Father. Once again, this is not the actual male parent but a symbolic father.

To Freud [i.e., as reinterpreted by Lacan], if psychoanalysis is phallocentric, it is because the human social order that it perceives refracted through the individual human subject is patro-centric. To date, the father stands in the position of the third term that must break the asocial dyadic unit of mother and child.^[240]

Consequently, Lacan often calls him the Name-of-the-Father.^[241] Nevertheless, empirically the role is usually filled by the male parent in the pa-

triarchal family. The sexuated positions are not the result of the actual biography of a specific child located in an empirical family, but the signification given by society to the roles played by family members. That is, even if one's primary caretaker is one's biological male parent, the child will understand that our society considers him to be taking on the role of mothering.^[242] The symbolic Father is the lawgiver, who, as the Mother's lover, must possess the object of desire. With the recognition of the Father, the child recognizes that the world is not divided into the duality of infant-M(O)ther. The Father is the child's rival. The law imposed in the Name-of-the-Father is prohibition—the incest taboo. The child may not

regain union with the Mother and may not murder the Father (i.e., the child must identify away from the Feminine and toward the Masculine). This separation from the Mother is experienced as the psychoanalytic concept of "castration" or permanent loss of the Phallic Mother. As recompense for the loss of the (M)Other, the child is promised access to other women and entrance into the society of Fathers through exchange.^[243] In order to form the fasces of property and to write the fas of law, the virgo must become virga —bound and carried by men.

Once a third term is introduced, the Mother is no longer merely the child's mirror, its negation. Nor is the Father. This allows the child to start to experience himself as an individual rather than merely not-Mother.^[244] The infant realizes that he is not the Mother's entire life. He has a rival; she desires the Father. The child imagines that he was once whole, in union with the Mother. Now that they are separated, by necessity, they must both be incomplete. The Mother's incompleteness or castration is confirmed when the child observes that his mother desires his father (or other persons filling the Father's role).^[245] He now realizes that Mother is not the all-powerful, self-sufficient, totally Other. If she were, she wouldn't desire.

If she desires Father, Father must be greater than she, he must have whatever object she desires. The psychological term for this object of desire is the "Phallus."^[246] The Phallus is one of the Names-of-the-Father;^[247] that is, it is the universal signifier of subjectivity. The incest taboo creates the symbolic by prohibiting the child from reuniting with the Phallic Mother. Law as prohibition is, therefore, the denial of the Feminine.

The irony, of course, is that the child turns to the Father solely out of desire for the Mother. The imaginary trinity of the relationship of wholeness is not Child-Mother-Father but Child-Mother-Phallus .^[248] In the symbolic, the Father is recognized solely in order to hold the Phallus for the other two. But "sexual difference is constructed at a price."^[249] The price the Father demands for holding the Phallus is castration—the permanent loss of the Mother. This has to be the case; if it is the Father who is holding the Phallus /Mother, obviously the child cannot also hold it/her. The turn to the Father is, therefore, a père-version .^[250] Consequently, adult sexuality is, in fact, quadratic. The imaginary trinity is replaced with the symbolic trinity of Child-Mother-Father which is haunted by the ghostly Phallus that resists sublation in the symbolic and is exiled into the real.

In order to learn what the Phallus is, the child wants to learn what the Name-of-the-Father is in order determine what it has that the (M)other

lacks yet desires.^[251] Unfortunately, the Name-of-the-Father, the (M)other, and the Phallus are linguistic concepts which cannot literally be seen. All the child can actually do is look at biological fathers and see how they differ anatomically from biological mothers. In a vain attempt to capture the real Phallus , in the imaginary the subject identifies the (real) Phallus with something that only seems real—that is, a physical object. He conflates the penis with the Phallus .^[252] Being a subject—a person who has the Phallus and is therefore desired as a subject by another—is confused with the empirical status of being a biologically male human being—a person who has a penis who inspires anatomical lust in biologically female human beings like his mother.^[253]

And yet, as we shall see, paradoxically, men do not escape castration. Lacan insisted on the "universality of the process of castration as the unique path of access to desire and sexual normativisation. . . ."^[254] Castration anxiety and penis envy are merely the masculine and feminine response to the universal initiation right of subjectivity.

2—
Castration

As I discuss in more detail later, the Phallus thus becomes the signifier of subjectivity. But the subject did not exist until it recognized the Phallus as signifier. That is, the Phallus is a signifier with-

out a signified. The subject is nothing, a zero, which exists only because it is signified. Signification—that is, the symbolic order of language—brings the fiction of subjectivity into being by the trick of making zero count as one.^[255] Subjectivity is created when the subject claims to have the Phallus as the signifier of subjectivity.

The child retroactively insists that the Name-of-the-Father imposes law as prohibition against the child.^[256] Castration is the "Big Bang" of subjectivity—the originary moment when our primeval unity exploded to create the expanding universe of our split subjectivity. Because we nostalgically long for this lost sense of wholeness which we locate in the real, we want to reverse this process and collapse the three orders of the psyche. We retroactively try to recapture the real by collapsing the symbolic back into it. We do this by conflating symbolic and real concepts, by imaginary identification of physical (i.e., seemingly real) objects with the lost objects of desire. As a result, the law of prohibition (thou shalt not merge with the real but enter the symbolic, thou shalt deny the Feminine and identify with the Masculine) is reimagined as the incest taboo (thou shalt neither sleep with thy mother nor murder thy father, lest thou be castrated). The Mother is the Father's object of desire, the child may not have her. We insist that it is the Father who castrates the child by forever separating him from his Phallus .^[257]

But this is not the case. Like the eunuch priests of the great mother goddess Cybele, we castrate ourselves in a failed attempt to identify with and worship the Feminine. But without the Phallus , we can never join with her. The symbolic (i.e., law as prohibition, language, and sexuality) is necessary for desire to be created and to function. Desire is that which by definition cannot be filled.^[258] The law, which separates the subject from

its object of desire, makes desire possible. Language itself is the barrier which separates us from the imaginary and the real.^[259] And so we see, just as with Hegel, the moment of the creation of law is the moment of creation of the subject: subjectivity and law are mutually constituted.

3—
Possession, Exchange, and Sexuality

The first element of the masculine position of subjectivity is the same as Hegel's first element of property—possession. The first masculine response to the universal condition of castration is simple denial. The Masculine lies and claims not to be castrated, to still have the Phallus . The "proof" of this is that he has a penis. In the masculine imaginary, therefore, only anatomically male persons are recognized as being full persons. This masculine strategy is obviously untenable. Deep in one's heart, everyone feels one is castrated. Consequently, the Masculine adopts a second fallback position.

The other element of the masculine position is the third Hegelian element of alienation through exchange. From the masculine position, the origin of law and of subjectivity as intersubjectivity is created by an attempted exchange of the object of desire.

Since the Child imagines that he once had the Phallus (i.e., wholeness, union with the Mother) prior to the mirror stage, he must retroactively explain its loss, but in a way that can deny his loss. He tells himself that the Father threatened to take away the Phallus which the male child conflates with his penis. The Father and son reached an agreement that if the son submitted to castration (the Law-of-the-Father), the Name-of-the-Father will recompense him by allowing him to adopt the Father's name and marry another woman.^[260] The son would then be recognized as a speaking subject, a member of the symbolic community, and thereby regain his wholeness. As in Hegel, the son sees himself and the Father as being mutually constituted as subjects through the exchange of the object of desire.^[261] Each recognizes the other as a subject objectified through objects of desire, yet not dependent on any specific object of desire. Through this symbolic exchange of the Phallic Woman, the community of subjects is created, just as the actual exchange of property constitutes abstract right, the first stage in the eventual development of the community of the state.^[262]

Of course, a typical initial reaction to this theory is that this story seems less satisfactory for girls than for boys.

For her, the oedipus complex involves no rewards, no authority, no compensation for her abandonment of the mother; rather, it entails her acceptance of her subordination. It involves the "discovery" that what the boy has been threatened with—castration—has already taken place in the girl. He believes that she and the mother are castrated. In her "recognition" of her narcissistic inadequacy, the girl abandons the mother as a love-object, and focuses her libidinal drives on the father now recognized as "properly" phallic. The girl has quickly learned that she does not have the phallus, nor the power it signifies. She comes to accept, not without resistance, her socially designated role as subordinate to the possessor of the phallus, and through her acceptance, she comes to occupy the passive, dependent position expected of women in patriarchy.^[263]

Didn't Lacan admit that there is "something insurmountable, something unacceptable in the fact [that woman is] placed as an object [of exchange] in a symbolic order to which, at the same time, she is subjected just as much as the man"?^[264]

Because of the conflation of gender and sex, the female child, insofar as she takes on the position of "woman," tends to identify with her mother, as the castrated self. She can never fully join the community of castrating Fathers because she, and they, conflate her lack of the penis with the inability to have the Phallus .^[265] She, therefore, can only aspire to be the Phallus ,^[266] to be the object of desire for men. As a woman she is forever barred

from the intersubjective regime which creates subjectivity because she is the object of that regime.

As a result, women experience Peniseid (penis envy) not in the literal sense of wanting an actual penis but in the sense of a depressive nostalgic longing for an imaginary lost state of wholeness^[267] —of a subjectivity and community she is denied insofar as she is positioned as a "woman." The desire to have the Phallus is forever thwarted because the symbolic order names the Phallus as that which is possessed and exchanged only between those positioned as "men." Insofar as she is recognized as a "woman," she is a person without a Phallus —she is castrated. Castration is, therefore, denial of an affirmative femininity.

But in fact, the girl's situation only seems less satisfactory than the boy's at first blush. Lacan's description of the woman as object of exchange comes from one of his earliest seminars, and, even then, he recognized that men as well as women were subjected. As his ideas developed, it became clear that the apparent exchange between those who are positioned as "men" cannot be truly satisfactory, because it is not real. It is a lie. Indeed, the Masculine failed strategy for dealing with castration is, in fact, the simultaneous adoption of two mutually inconsistent strategies. First, the Masculine merely denied castration, he claimed that he still does have the Phallus . Second, when he was forced to recognize that he has lost the Phallic Mother, he claimed that he narrowly escaped castration in the sense of the involuntary taking of the Phallus by his retroactive consent in exchange for a promise for a replacement in the future. "For whereas in the earlier texts the emphasis was on the circulation of the phallus in the process of sexual exchange, in these texts it is effectively stated that if it is the phallus that circulates then there is no exchange (or relation)."^[268] Desire can never be satisfied. The son exchanges something he does not have (access to the Phallic Mother, identity with the Feminine) for something that does not exist (the Phallus , access to the Feminine) in order to achieve something with no content (subjectivity).^[269]

Castration is universal. Those who are positioned as men dread the loss of their subjectivity through the loss of its signifier, the Phallus , precisely because it is always already lost—it is exiled into the real. Men are trying to deny the horrible truth. Men experience castration fear not in the literal sense of fearing genital mutilation but in the sense of a morbid dread of confronting the "fact" of their symbolic castration. In other words, men are every bit as castrated as women are, but the masculine strategy is different from the feminine strategy. Men identify with the Name-of-the-Father who bears the Phallus . They try to assert their paternal wholeness by projecting their lack onto Woman as the symbol of lack. They do this by the imaginary identification of the Phallus , which everyone lacks, with the one organ that men have but women lack. In this sense, Woman is the symptom of man.^[270]

Although this formulation makes it sound as if femininity is subordinated to masculinity, one can read it to mean the opposite. Women are in the arguably more successful psychic position in that they are not self-deluded in quite the way that men (always unsuccessfully) try to be. It is not Woman who is a mutilated man, as men claim. Rather, men are failed women—vir is incomplete virgo .^[271]

The real is, therefore, not the threat of castration,^[272] it is the fact of a castration which has always already occurred. There is a hole, a lie, and a

fiction at the heart of subjectivity.^[273] The subject is nothing.^[274] There are no sexual relations, only failed attempts because all human relations must be mediated and mediation is impossible.^[275] This leads to love—the impossible relation of seeing in someone more than she is and in giving back more than one has in order to fill in the hole of subjectivity. Love is seeing the lost kernel of the real in the other.^[276]

As is so often the case, this truth is reflected in classical mythology. The personification of the perfect sexual relationship—marriage—is the god Hymen. The god also personifies the female organ which prevents sexual union and bears his name to this day. As a result, any attempt to actualize Hymen necessarily destroys Hymen. As Lacanian theory insists, the promise of sexual union is only established by its very impossibility.

This perhaps explains the morbid fascination of many traditional societies with the physical virginity of women. Although we seek immediate relations, there is always a ghostly third mediating sexuality. In the imaginary, this third is identified with the seducer whose presence is abducted from the scar of defloration. Men dream that if they can just keep the virgin intact, perhaps union can be achieved.

D—
The Phallus, Castration, and the Imaginary Collapse of the Symbolic into the Real

Let me explain in greater detail how the sexual roles described in the previous section become mapped onto anatomical sexuality. According to Lacan, in the imaginary we conflate the symbolic concept of the Phallus with seemingly real—but actually physical—analogues. Why? Let us stop briefly and reconsider the location of the Phallus . Sex-

uality is created by law—the symbolic. The Phallus would, therefore, seem to be a symbolic object. But in the symbolic, we are castrated from the Phallus . Since the Phallus is the signifier of subjectivity, it is that which cannot itself be signified. In other words, we cannot achieve the Phallus in the symbolic—it is defined as that which cannot be captured in language. This means that the Phallus must be in the order of the real. Although sexuality is created in the symbolic, sexual relationship is impossible in the symbolic.

Like differentiation, the achievement of subjectivity is a moment of pain and loss, as well as gain. According to both Hegel and Lacan, in order to be a speaking subject we must experience ourselves as individuated subjects separate from other individuals and the world. All relations are mediated through the symbolic exchange of the object of desire. Subjectivity is intersubjectivity mediated through objectivity. Consequently, when we experience ourselves as speaking beings, we lose our sense of being one with the world which we imagine we must have had as infants. This sense of loss is castration .

And yet we long for immediate relations and union with the Other. In order to achieve this, we want to destroy mediation and reduce the symbolic back to the real. By doing so we engage in the fantasy that if we can acquire the "real" object that we imagine is the cause of our desire, then we will achieve our desire. So we imagine that the real Phallus , created by the symbolic, is actually a real object. This doomed operation is the "masculine metaphor of property" which is the subject of the second chapter of this book. The imaginary, being the realm of mirror images, meaning, and negation, is a fantasy of perfect sexual fit. It is the fantasy that we can find an object which will plug the hole left by castration.

This operation is doomed for two reasons which I shall discuss in greater detail later. First, the real cannot be reduced to reality. The acquisition of any real object can never satisfy our desire. Second, and more important, if one were actually to achieve immediate relationships, one

would necessarily lose subjectivity, freedom, and sanity. Castration—the creation of the real and the loss of the Phallus —is the erection of the wall that binds and delineates the symbolic. If we regained the Phallus and entered the real, both the real and the symbolic would cease to exist by definition. Those who fail to maintain these walls are psychotics. Consequently, in order to preserve our subjectivity, we impose upon ourselves an injunction not to merge with the Other, despite our desire to do so. This is the incest taboo —law as prohibition. We tell ourselves that the law has been imposed upon us by the Father, but in fact we can only impose it on ourselves.

As we have seen, we retroactively identify the symbolic Phallus with something we imagine to be real that one of the anatomical sexes physically has and that the other physically is. Two possible positions that an individual can take with respect to the Phallus are that of having the Phallus and that of being the Phallus .^[277] This is reflected in European languages that divide all predicate forms into having and being.^[278] It is a (psychoanalytically) unexplained historical fact that in masculinist societies, such as our own, the Masculine is the dominant sex and the Feminine the subordinate. We identify the seemingly "superior" position of subjectivity—having and exchanging the Phallus —with the Masculine, and the "inferior" position of objectivity—being and enjoying the Phallus —with the Feminine. The penis (what males have) and the female body (what females are) are identified in the imaginary as the real correlates to the Phallus .^[279] The symbolic—that is, legal and linguistic—concepts of sexuality are imagined as anatomy. Paradoxically, the Phallus is the signifier of both male subjectivity and the Feminine.

It is easy to see how the Phallus in the role of what women are becomes identified with the female body. But the mere fact that we need to erect a part of the male anatomy to stand in for the Phallus in the role of what men have does not in and of itself explain why the penis is chosen as the privileged organ. Why not the beard, or the deep voice? The penis is chosen not because of its impressiveness but because of its fragility. The Phallus is not merely the object of desire, it is the lost object of desire. Its standin, therefore, must be something which suggests the possibility of loss.

The penis can play this role not only because of its failure to appear on women but also because of its disappearance on men. The penis stands in for the Phallus because of its unpredictable failure to stand up.

Lacan's theory of castration subtly echoes St. Augustine's theory of sexuality, which has so greatly influenced traditional Christian teaching.^[280] St. Augustine, like Lacan, insisted that human beings are irreparably split. Adam's sin sundered the prelapsarian harmony between man and God, man and woman, and soul and body.^[281] God literally inscribed Adam's Fall into the male body as a constant reminder of Original Sin.^[282] Before the Fall, the penis was a limb subject to the conscious control of the soul like an arm and a leg.^[283] As soon as Adam and Eve ate of the Forbidden Fruit, they "knew that they were naked."^[284] St. Augustine interpreted this as meaning that Adam had the first involuntary erection.^[285] The loss of control of the penis is, therefore, the holy symbol of the debased and split nature of man in the state of sin—in Augustine's words, man's desire "is divided against itself."^[286] Although this can be seen in the embarrassing masculinity of inopportune tumescence, it is even more forcefully shown by the humiliating failure of impotence.^[287] What was once limb is now limp.

Consequently, the penis can stand for the lost Phallus because it is already partly gone. It is what men think of simultaneously as being most themselves yet not themselves. It seems to have a mind of its own. How can men have the Phallus when they do not even control the penis?

The facts that the Phallus is the symbol of the Feminine and that the Phallus is exiled into the real means that the Phallic Mother (i.e., the ideal

of the Feminine) does not exist.^[288] She is beyond the discourse and interpretation of the symbolic realm of language and beyond the imagery of the imaginary. She is at least partly in the real in this technical sense—that which serves as the limit and the impossible. We are speaking subjects, however, who only exist in discourse.

As I have already emphasized, the fact that Lacanian theory helps us understand that our psyches contain delusional aspects does not imply that we can simply choose not to believe our delusions. We experience ourselves as our lies and live our lies. Our lies are our truth. We cannot leave the lies of the symbolic without giving up the language which is created in the symbolic. We cannot reverse repression without becoming babbling infants.

Many feminisms envision woman's freedom as lying just around the corner. Freedoms will readily be won, for example, by our changing language lest language—itself the mask of patriarchy—appropriate woman's voice. . . . But such one-dimensional terms do little to address the larger questions attached to women's and men's issues. In Lacan's clinical work, he came to understand that any dismantling of ego, language, or desire placed the analysand at the risk of death. The "self" may only be imagined, but individuals live from such "necessary fictions."^[289]

That is, repression is not a mental disease. We need language and repression to function and speak.^[290] Repression is not the suppression of desire, it is the creation of desire. Lacan believes he is telling truth about lies, because lies are the only truth we are capable of.^[291]

Moreover, as we have seen, the community of subjects is constituted

through the symbolic exchange of the Phallus between Father and son. Unfortunately for those of us who are positioned as women, the Phallic object of desire, which is identified with the Feminine, is conflated not only with the phallic male organ but with actual women. For this linguistic system to work, those who position themselves as men (who tend to be those who are also biologically male) must objectify women. The feminist cliché that men treat women as sex objects takes on new meaning in Lacan. The theory gives essential significance to empirically familiar phenomena. Many men identify themselves with, and through, social groups which are characterized primarily through their exclusion of women—fraternities, private "business clubs," the priesthood, and until very recently the military, academia, and government. We continue to try to lead our lives this way even though it doesn't and can't work. In order to experience themselves as subjects, men need to seek to experience women as objects. To deny castration, men project their own lack onto the Feminine. Man requires Woman as his symptom. Feminine aggressiveness is destructive of masculinity because it gives the lie to the femininity of lack. If man recognizes feminine positivity, then he also confronts his own negativity and castration which his sexual position requires him to deny.

Lacan particularly notes that the institution of patriarchal marriage requires the exchange of women as objects. Giving women property rights, therefore, threatens the very structure of our society. This is because Lacan, as a good Hegelian, agrees that allowing a woman to own and exchange property with subjects must lead to the recognition of her as a subject. If she becomes a subject, she can no longer serve her function as object.^[292] And so a Lacanian feminist would agree with the rhetoric of the American religious right—feminine emancipation is a threat to traditional family values.

I have argued elsewhere that both American cultural and radical feminist jurisprudes are implicitly and imminently conservative in that they

accept and reinstate, rather than effectively critique, the masculinist status quo. This is because they accept the traditional American stereotype of masculinity and femininity, although they disagree as to what women's response to these stereotypes should be (i.e., different-voice feminists celebrate the feminine stereotype, while radical feminists denigrate it and encourage women to adopt behavior more similar to the masculine stereotype).^[293] That is, both schools accept the characterization (associated with Carol Gilligan)^[294] that men tend to be more separate, individualistic, concerned with right and justice. This liberal ideal is treated as an empirically accurate description of men. Women, who in this view are the negative of men, are declared to be (either essentially or as a result of social conditioning) more relational and communitarian, concerned with needs and care.^[295] This, of course, is the imaginary view of sexuality in which the sexes are mirror images and, therefore, perfect complements. Different-voice feminism's insistence that girls never separate from their mothers in the way that boys do, that women are fundamentally and essentially connected to other human beings and its simplistic view of spontaneous, immediate relationship of self and other,^[296] reflects the masculine strategy of denying castration and imagining that one still has union with the

Feminine. The true Feminine, in contradistinction, is the acceptance of castration and the resulting need for mediation in relationship. Consequently, different-voice feminism, like all attempts to give positive content to the radical negativity of the Feminine, is merely another masculine fantasy.

As we shall see in chapter 2, where I explore masculine phallic metaphors for property, the simple, immediate, one-to-one relationship privileged by cultural feminism as being characteristically feminine reflects the psychoanalytically masculine strategy of denying castration. In contradistinction, the feminine position is the acceptance of castration as the impossibility of binary relationship and the insistence on the necessity of mediation.

Many read Lacan as saying that women should take on the traditional masculine fantasy roles—such as the mother-whore dichotomy—so that masculinity can be maintained.^[297] The man known as Jacques Lacan may or may not have actually drawn the misogynist normative conclusion that women should submit to masculine fantasies of femininity in order to support the norm of masculine subjectivity. Nevertheless, his theories, intentionally or not, actually subvert the gender hierarchy.^[298] It is the Masculine which is the key to community. The masculine subject is not individualistic, because the subject is an intersubjective linguistic concept totally dependent on the exchange of Phalluses with other men.

E—
"Woman Does Not Exist"

The assertion that "Woman does not exist" is perhaps the most notorious and most misunderstood catchphrase associated with Lacan.^[299] We can now explore what this means in greater detail.

During the mirror stage, the infant experienced the tragedy of separation from the Mother/(m)other and demanded that she come back. Now he sees himself as a separate subject and desires the Mother. The Mother is the object of his desire. Mother is his Phallus .^[300]

The problem, of course, is that the subject can never again reunite with the Mother because of the incest taboo. Or, more accurately, it is castration from the Phallus pursuant to the law as prohibition which creates subjectivity. If the subject regained the Phallus , it would cease to be a subject. He can never again have the Phallic Mother. The Phallic Mother as the Feminine represents the dream of an unmediated relationship with the other. This utopian relationship exists in the real.

If we understand the nostalgia resulting from the discovery of the mother's castration in this way, then the discovery that the mother does not have the phallus means that the subject can never return to the womb. Somehow the fact that the mother is not phallic means that the mother as mother is lost forever, that the mother as womb, homeland, source, and grounding for the subject is irretrievably past. The subject is hence in a foreign land, alienated.^[301]

"Woman, as a result, is identified by her lack of the phallus. She is difference from the phallus"^[302] even as she also "is" the Phallus —but the Phallus which is always desired and never obtained. The Feminine is therefore projected as "lack."^[303] She does not exist as "not-all" in the sense of "not all subjects are phallic."^[304]

Consequently, the quotation about Woman ascribed to Lacan can be misleading. Indeed, it is a misquotation. The more accurate translation is "The Woman does not exist":

[T]he woman can only be written with The crossed through. There is no such thing as The woman, where the definite article stands for the universal. There is no such thing as The woman since of her essence—having already risked the term, why think twice about it?—of her essence, is not all.^[305]

As negative to the man, woman becomes a total object of fantasy (or an object of total fantasy) elevated into the place of the Other and made to stand for its truth. Since the place of the Other is also the place of God, this is the ultimate form of mystification.^[306]

As we shall explore, this insistence that the Feminine has no positive content increases, rather than destroys, her presence. She is the potential moment of negativity as radical freedom which is the heart of subjectivity.

F—
The Woman, Property, and Jouissance

The Phallic Mother, like property, constitutes the subject through signification. My analogy is still, however, incomplete. I have shown that our masculine subject lies to himself in saying that he possesses the Phallic Mother. He seeks self-recognition through the fiction that he engages in the alienation and exchange of the Phallic Mother with other male subjects through submission to the incest taboo and initiation into the symbolic. But, Hegel argued, there are three necessary elements of a full property necessary for the formation of a subject. It is not enough to possess and alienate the desired object of property. One must also have the ability to enjoy the object. Our split masculine subject cannot achieve his desire and enjoy the Feminine. If he did so, he would no longer be the masculine subject. We have seen that, by definition, language is the bar to enjoyment which makes desire possible.^[307] But that does not mean that enjoyment cannot occur. Not everyone is always positioned as masculine speaking subjects totally trapped in the symbolic. Consequently, we must now approach subjectivity from the feminine position of being and enjoying the Phallus .

It is fairly simple to see how the Lacanian idea of having and exchanging

the Phallus (which is conflated with having a penis) recalls the elements of possession and alienation of property. Lacan's concept of feminine jouissance is more complex. But it captures Hegel's critique of the solipsistic, addicted side of enjoyment which requires the additional element of alienation or castration.

The French word "jouissance ," which can be literally translated as "enjoyment," includes both the legal concept of quiet enjoyment of property and sexual orgasm.^[308] In jouissance the subject takes on the feminine position of being the object of desire and submerges into the real. Being and enjoying the Phallus become one and the same. This is like the Hegelian subject who becomes so identified with the object of enjoyment that she cannot reach out to others. Nevertheless, even as Hegel showed that enjoyment standing alone is inadequate, he insisted that it is indispensable to the logic of subjectivity.

The order of the real is that which is beyond, and therefore limits, the symbolic realm of language and law. Consequently, by submerging with the real, the subject loses her subjectivity in the sense of losing her place in the symbolic. She cannot speak to others and achieve the intersubjective recognition which is the condition of subjectivity while standing in the feminine position of jouissance . This is because the moment she tries to describe her experience of jouissance , she is no longer in an unmediated relationship with the real. To speak is to interpret experience in the symbolic. To picture it is to interpret it in the imaginary. In order to attain subjectivity, therefore, she must reject her enjoyment and submit herself to the symbolic.^[309] This is why the speaking subject is not merely the subject of the symbolic, he is always also subject to the symbolic.

This parallels Hegel's argument that to obtain subjectivity the person cannot lose herself in enjoyment but must become indifferent to the objects of desire and turn to others. This causes a paradox. If one abandons the object of desire in order to escape the trap of enjoyment, one loses the recognizability which is the purpose of property. Castration creates the potential for desire while simultaneously making desire impossible to satisfy.

But this in turn makes jouissance , like Hegelian enjoyment, necessary to subjectivity, even though it is inadequate. Subjectivity is only created by the incest taboo which walls off the real from the symbolic. But one cannot forbid what is impossible. Jouissance —the momentary achievement of the Feminine as merger with the real—is the transgression of the incest taboo which proves that what was once impossible is now merely forbidden.

Because the symbolic is linguistic, women, in a curious way, can never "speak" in a feminine voice. Anatomically female persons must always in a way take on the masculine position in order to speak.^[310] That is, language is Phallic in that the Phallus is the universal signifier of the speaking subject. In order to be heard, one must take the position of the one who has the Phallus . To have the Phallus is to be symbolically masculine. People who are positioned as women must somehow take on the position of, or mime, the Masculine to act as a speaking subject. The Feminine is silenced because she is the object of the symbolic exchange between subjects. To form the fas/fasces the virgo/virga is not merely bound, she is gagged. The Feminine is defined as that which is not Phallic . The Feminine is that which cannot be captured in language (enjoyed in the symbolic order of consciousness). In the words of Drucilla Cornell:

Although both genders are cut off from the repressed Mother, and, theoretically, have access to the position of the other, only men, to the degree they become traditional, heterosexual men, are fundamentally "connected" to one another in the order of the symbolic. Without this connection, there would be no ground for masculine identity.^[311]

Women, insofar as they are identified with the Feminine, are isolated from community.^[312] It is only by taking on the masculine role of subjectivity that they have access to community. In Cornell's words, "to enter into the masculine world, women must take up the masculine position."^[313]

But slippage always occurs.^[314] The gag temporarily falls from the virgin's mouth. In this slippage we glimpse the real. Access to the real cannot come directly through words but through that which is beyond words, what Lacan calls the jouissance or enjoyment of and by the Feminine. But we only glimpse her; the Feminine remains "Eurydice twice lost."^[315]

Consequently, Lacan posits that woman experiences an enjoyment which is beyond the Phallic . Those who are positioned as men, of course, also experience enjoyment in the sense of the nonverbal access to the unconscious, but the enjoyment of women is posited as something different, something more.^[316]

There is woman only as excluded by the nature of things which is the nature of words, and it has to be said that if there is one thing they themselves are complaining about enough at the moment, it is well and truly that—only they don't know what they are saying, which is all the difference between them and me.

It none the less remains that if she is excluded by the nature of things, it is precisely that in being not all, she has, in relation to what the phallic function designates of jouissance , a supplementary jouissance .^[317]

In other words, jouissance as access to the real is that which is beyond speech, and therefore not symbolic and not Phallic . It is consequently associated with women. Men, who define their sexuality as not women, need

to reject enjoyment .^[318] Being non-Phallic , the experience of enjoyment is by definition beyond discourse. Even to think it, let alone speak it, is to enter the Phallic world of the symbolic and lose jouissance .^[319] But without enjoyment of the Feminine, how can we be complete?

Is this theory misogynist?^[320] On the one hand, Lacan might argue that it "accords women the possibility of refusing a pleasure and desire that is not theirs."^[321] On the other hand, he not does permit them to claim "one that is there."^[322] This leads Elizabeth Grosz to ask:

If phallic jouissance is "the jouissance of the idiot," what is a jouissance beyond the phallus? Women can't know and won't say. It is not clear from Lacan's discussion whether it is because this jouissance is in itself unknowable; or simply that women can't know it.^[323]

Should we see jouissance as an empowering, ecstatic possibility through

which women can glimpse the psychological goal of union with the Feminine, or a rationalization for the traditional infantile, idiotic, and silent role of women?

It is both. Lacanianism is a misogynist theory only in the sense that it is an account of misogyny. As such, it opens up the possibility of moving beyond misogyny. The Feminine is the silent Phallic Mother who is always already lost in castration. But she is also the freedom of not being bound by the law of castration which has not yet been achieved.

IV—
An Abduction from the Seraglio

A—
Abduction and Jouissance

I have referred to the phallic metaphor of property as an "abduction" in the sense of the logic of imagination^[324] as developed by pragmaticist philosopher Charles Sanders Peirce. He considered abduction to be a form of logic equal to induction and deduction. It is an absolutely essential element of science and philosophy because it is the only form of logic capable of generating new ideas.^[325]

The process of abduction is as follows: I observe a surprising thing. I do not like to stay surprised. Consequently, I try to make up a story which, if it were true, would make the surprising thing no longer surprising but a matter of course.^[326]

An abduction is not proof.^[327] Its causality is retroactive. It is only the way

we generate hypotheses. If I decide an abduction is worthy of serious consideration, I will tentatively accept it as my working hypothesis as to the state of the world, to be tested through other means such as the familiar logical processes of induction and deduction accepted by traditional American science, or by the circular and retroactive dynamic of the dialectic, accepted by Hegelians and Lacanians. Generally, we consider an abduction to be worthy of further testing when it seems "natural" and "reasonable" to us, in the colloquial sense of those words.^[328] That is, through abduction we try to take the surprise out of surprising things. We, therefore, try to abduct explanations consistent with the ordinary course of our life experiences.

As I shall explain in chapter 2, the traditional abduction of property law reflects the experience of the Masculine. In chapter 3, I shall show how Margaret Radin has tried to abduct an alternate property law which reflects the experience of the Feminine. Both traditional jurisprudence and Radin's theories are replete with phallic metaphors. The former adopts the phallic metaphor of property as the male organ, and the latter, the phallic metaphor of property as the female body. The former emphasizes possession and exchange, and the latter, enjoyment.

The point of my analysis is not to suggest that phallic metaphors are psychoanalytically inevitable in all cultures and under all circumstances. The goal of psychoanalysis is not the recognition of inexorable fate but the furthering of human freedom through the increase of knowledge. Nor am I arguing in the alternative that the phallic metaphors are delusional instruments of oppression. Indeed, Lacan's linguistic theory holds that

metaphors and metonymy are always necessary elements of all language and, therefore, law.

I am merely suggesting reasons why these particular metaphors for property—the male organ and the female body—might seem so "natural" and reassuring. Lacan explains how we tend to conflate the psychological concept of the Phallus/the Feminine (the object of desire) with the physical organ of the penis and the female body, to equate the Phallic with the phallic. In parallel, we might have a psychological tendency to conflate the parallel legal Phallic concept of property (as the object of desire) with the phallic metaphors of holding and seeing or entering, enjoying and protecting. The psychological conflation can serve positive functions, such as the development of gender identity and the creation of language. But it can also cause tragedy in the form of mental illness, the oppression and rage of women, and the despair of men. Similarly, I am suggesting that the parallel jurisprudential conflation might also serve positive functions, as well as risk not merely confusing, but unjust, legal results. This does not necessarily mean that we should abandon such metaphors, but does mean that we should be aware that we use them, so that we can consider whether it is the best alternative.

Lacan offers one explanation for the use of masculinist phallic metaphors in the law. Another explanation might initially seem simpler. Until very recently, all lawyers were men. In this simplistic view, the empirical fact that some of us are now biological women should add a feminine "different" voice to the law.

The power of Lacanian theory to me lies in its insight that things are not so simple. It suggests that insofar as I am writing this and communicating with you, I am also speaking in the masculine voice. Even different-voice feminists speak in a masculine rather than a "different" voice. They adopt a stereotype of femininity which is merely the negative of the archetype of masculinity. It essentializes what they believe is the empirical experience of women who are psychically positioned as the defining other of man. Consequently, the purported "Feminine" of the different-voice feminist is in fact a mirror image reflecting back the Masculine. Different-voice feminism's account of sexuality is, therefore, imaginary in the technical Lacanian sense. Its image of femininity is the masculine fantasy that woman has an affirmative content that can fill the hole carved in man by castration, enabling the sexes to achieve immediate relation.

Does this mean that legal abductions can only replicate the Masculine? I have stated that Lacanian psychoanalysis does not explain the in-

evitability of patriarchy or the use of phallic metaphors to describe Phallic concepts such as property. However, in our society it is mandatory that we adopt a sexual identity with respect to having or being the Phallus to even be able to speak. Doesn't this show that, while patriarchy may not be natural or inevitable, it has a rapacious reproductive potency?

The very terminology of abduction makes it initially appear to be masculine. As I have explained elsewhere,^[329] the more common meaning of the English word "abduction" is not the logic of imagination, but kidnapping for sexual purposes. To be blunt, it means rape. Abduction was one of the ancient forms of marriage^[330] —indeed, the form memorialized in the Vestal's initiation rite of captio (capture).

At first blush, this might suggest either the symbolic exchange of the Feminine posited by Lacan as the origin of the subject and law, or the actual abduction or exchange of women posited by Claude Lévi-Strauss as the origin of culture. But at second look, the image is more ambiguous. The thinker does not rape his ideas, he is raped by them; he is ravished by his imagination, taken by a new thought. The imagery reflects the masculine vision of female sexual experience—silent, passive, and orgasmic. And so, at one moment, the theory of abduction is the masculine myth of the feminine joy of rape.

But it is more. The imagery of imagination as abduction is precisely the Lacanian concept of the Feminine's access to the real through jouissance . Lacan said that the masculine subject is stuck in the symbolic order of language. The terminology of abduction reflects the concept that in order to give birth to new ideas and to experience jouissance , "he" must take on the position of the Feminine. That is, if we need to take up the position of the Masculine to speak, we must take up the position of the Feminine to enjoy.

This is the fundamental anxiety of masculinity which Freud called castration fear. To achieve subjectivity, the Masculine must identify lack with the Feminine, and then turn away from her. And yet, in fact, all human beings experience jouissance , the experience of the Feminine. Consequently, according to Zizek,^[*] the real problem with the real (and with the Woman who doesn't exist) is not that it (she) is unattainable, but that it (she) cannot be avoided.^[331] We must all face our castration.

B—
The Radical Critique Implicit in Lacan

We have seen how Hegel solved the paradox of subjectivity in jurisprudence through the concept of exchange. Similarly, in Lacan, the psychoanalytic subject tries to cure the paradox of desire and castration—the need to simultaneously be, have, enjoy, and lose the Phallus —through an attempted regime of exchange. As I have just said, the law which castrates and thereby constitutes the psychoanalytic subject is the law of prohibition: thou shalt respect the borders of the symbolic order by renouncing the real and the Feminine in the form of jouissance; thou shalt no longer be the Phallus or enjoy it.

This attempt at resolution is, of course, impossible. The Feminine cannot be exchanged because she is lost in the real and cannot be described in the symbolic. Men invent imaginary fantasy images of Femininity to take her place.^[332] Of course, this makes her even harder to grasp. As the Hegelian dialectic of property showed, by treating the subject of love as the object of desire (in the regime of possession and exchange), men cannot achieve the goal of affirmative subjectivity as intersubjectivity. Since their own femininity is prohibited, women often hopelessly attempt to live this fantasy image. They proudly proclaim that they are speaking in a feminine "different voice," when they are, in fact, merely reciting a script written for them in the Masculine.^[333]

The Lacanian story is one of emptiness and desire. It denies the sexual status quo by showing that masculine superiority is a sham, a pathetic lie. It reverses our sexual stereotypes—accepted as much by radical and cultural feminists as by traditionalists—that men are more independent and autonomous and women more relational and communitarian. It is only in our masculine aspect that we can be members of the symbolic community. The radicalism of Lacan resides in the fact that it is not a mere reversal in the sense of a mirror image which would merely reflect back upon the status quo. Rather, it is a subtle warping and revalorization of the status quo. The Lacanian community of castrating Fathers is not that of warmth and fulfillment imagined by cultural feminists. It is based on repression, castration, and law.^[334] It is not, therefore, surprising that men often engage in aggressive attempts at individuality in order to achieve a separation from community which they cannot

achieve.^[335] Similarly, as Julia Kristeva argues, many women engage in desperate clinging and seemingly relational behavior in a desperate attempt to have relations and achieve the closeness of community which is always denied them.^[336]

If this were all that Lacan had to say, however, his theory would merely be a depressing condemnation of society. It is depressing precisely because it simultaneously reveals our life as a fiction, but as one which we are incapable of rewriting. There is, however, another optimistic, affirmative, and creative way of reading Lacan.

Through castration we have exiled the Feminine—immediate relationship and jouissance —to the real. As we have seen, the real is the realm of the impossible, of the limit. This constitutes the Feminine as radical negativity. We Americans with our "positive attitude" assume that the negative is bad, that to identify the Feminine with the negative is to denigrate her. Indeed, it is precisely the negative hole at the center of the split masculine Lacanian subject which is often considered his most depressing discovery. This is a serious misreading.

Hegel shows that negativity is the very condition of freedom. It is the failure of constraints. It is the emptiness as the heart of subjectivity which allows us to desire and love. Consequently, although Lacan speaks of the Masculine as the subjective position, only the Feminine in her radical negativity can symbolize the free subject.

One might assume from this that since the Feminine is exiled to the real, then, by definition, freedom cannot be achieved. No. Castration as the incest taboo is an alchemy. It turns the impossible into the forbidden. It is not merely impossible for a speaking subject to enter the real, to be feminine. The Name-of-the-Father prohibits us from doing so. Prohibition, however, necessarily implies the possibility of its transgression. In denying the Feminine it, in fact, creates the Feminine as the possible—the not yet.