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.