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 . 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. 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. The rabble might still believe in the old gods of property, but the educated "specialists" now see property as vulgar superstition. 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. 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. 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. 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. 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 —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. 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."
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. But, like Osiris's dismemberment, property's disaggregation has not prevented its resurrection. Rather, it enabled the resurrected god to fill the entire universe. 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.
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 , 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 .
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" 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. 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. 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.
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.
See also Elizabeth Grosz, Jacques Lacan: A Feminist Introduction 64–65 (1990); Bice Benevenuto & Roger Kennedy, The Works of Jacques Lacan: An Introduction 130 (1986); Stuart Schneiderman, Jacques Lacan: The Death of an Intellectual Hero 22, 99 (1983); Jean-Luc Nancy & Phillipe Lacoue-LaBarthe, The Title of the Letter: A Reading of Lacan 30, 121–27 (F. Raffoul & D. Pettigrew trans., 1992).
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."
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). 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. 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.
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. 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.
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. 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: . . .
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.
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," 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" —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.
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.
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 .