The Masculine Phallic Metaphor for Property
Property as the Object Petit A
In chapter 1, I argued that the phallic metaphor haunts property discourse because it is an abduction that comes so easily to us as to seem natural. Both property, according to Hegelian philosophy, and the Phallus , according to Lacanian psychoanalysis, serve as the defining objects of desire that enable us to create ourselves as acting subjects through the creation of law. The parallel roles reserved for property and for the Phallus in the political and psychoanalytic philosophies of Hegel and Lacan are the reason these metaphors so frequently recur in discourse about property law. Just as we conflate the psychoanalytic concept of the Phallus with the male organ and the female body, so we use these anatomical metaphors to describe the Phallic relation of property.
Although sexuality is an essentially symbolic or linguistic category, it becomes mapped onto anatomical differences by a conflation which I have called the imaginary collapse of the symbolic into the real. This is a doomed attempt to deny castration, recover the Feminine, and experience the jouissance of immediate relationships. The imaginary collapse of the symbolic and the real that Lacan noted at the psychic level is reflected in a similar conflation at the legal level. Property, like sexuality, exists at the linguistic-legal level of the symbolic in the sense that property, subjectivity, and law are mutually constituting. Property cannot, therefore, belong in the animalistic, physical, impossible, prelegal realm which we locate in the order of the real. It does not exist primarily to satisfy our physical, limiting,
needs . Property is Phallic and, as such, is an object of insatiable symbolic desire, not of satiable real need or even imaginary demand. Because desire can only be played out through intersubjectivity mediated through objectivity, desire and its objects are symbolic categories. That is, we desire the object of desire derivatively as a means of achieving our true desire—the love of other subjects.
According to Lacan, we sublimate our desires and identify the object of desire with a specific object that Lacan called the objet petit a . Although this object a is an imaginary—in the technical sense—substitute for the symbolic object of desire, we make it function retroactively as the object cause of the desire. The object little a, therefore, is the point at which the
three orders intersect. We insist that it is actually the desire for her body, his penis, my house, your car, her wedding ring, that drives us on. Although we look for a substitute object because we desire, we pretend that we desire because of the desirability of the object. We do this because it seems to hold out the hope that if we obtain the object, we will then fulfill our desire. But "[t]he phantasy is the support of desire; it is not the object that is the support of desire." By definition, we cannot fulfill desire; merging with the Other in an unmediated relation destroys subjectivity, consciousness, and speech. Because need can be met, through sublimation we identify the unattainable real object of our desire which was created and prohibited in the symbolic with an empirical or physical (i.e., seemingly real) object we can imagine as the object a.
Just as the masculine position has two failed strategies for avoiding confrontation with castration, the masculine phallic metaphor for property comes in two versions, positive and negative. The former sees the fasces
as the axe —a weapon to be grasped and wielded as a whole. The latter sees the fasces as the bundle of sticks—to be untied and separately distributed. The former emphasizes the masculine element of possession, the latter the masculine element of exchange. Like a modern lictor, the lawyer can use property in part or in whole to flog his case or execute his judgment. Theorists who adopt the masculine metaphor usually presume that the axe and the bundle of sticks are mutually inconsistent ways of ana-
lyzing property. They are, in fact, two sides of the same coin. The masculine imagery of property is a fasces—simultaneously both axe and sticks.
When we adopt the positive masculine phallic metaphor, we try to reduce property to physical objects we control. This is a strategy to avoid confronting the triune mediated nature of property and subjectivity. Property is reduced to possession, conceptualized as the simple immediate binary relation of subject to object—property is the wielding of the axe. While this accurately recognizes that a property interest in a physical object may include the right sensuously to see and grasp, property cannot be reduced either to sensuous contact or to the physical thing itself which is the object of the property right. Nor does the sensuousness of the contact or the physicality of the object epitomize the property relation. This seems to be self-evident, and yet we continue to identify property with physicality—to imagine that we can collapse the symbolic into the real.
When the implicit physicalist imagery underlying this view of property is made express, it appears painfully naive. But those writers who do confront the inadequacy of the imagery of property as tangible object do not escape the lure of the masculine phallic metaphor. Despite their protests to the contrary, they cannot imagine property as anything other than a phallic, physical object. As a result, they feel forced to condemn not this incompetent image of property but the entire institution of objective property. They argue that property as we know it does not exist (or is in the process of disappearing) and attempt to propose a new definition. This alternate approach of legal discourse insists that property is an unmediated binary legal relationship between subjects—a relationship that does not require a mediating res or object. The fasces of property is unbundled into a random and contingent bundle of rights with no essential characteristics.
I have suggested that the axe and the bundle of sticks—the positive and negative manifestations of the masculine phallic metaphor—reflect the failed two strategies by which the Masculine tries to avoid confronting castration and achieve the wholeness of immediate binary relationship. The first strategy is simple denial—the subject insists that he still has "it." In law this is done by repressing the relational, mediated
aspect of property and emphasizing the binary relation of subject to owned object in possession. Under the second strategy he pretends that he gave up the original Phallus in exchange for a promised future access to an object of desire. In law this is done by repressing the objective mediator of property and emphasizing the binary relation of subject to subject in exchange.
If we view property theory in terms of this urge to deny castration and achieve wholeness by collapsing the three orders, we gain insight into the tendency to picture property concepts in terms of phallic metaphor. We envision property in terms of the archetype of the penis and the female body. In the former manifestation, we imagine property as a physical object that we see, hold, and wield. In the latter manifestation, we imagine it as a physical object that we either protect from invasion or occupy and enjoy. When men speak of possessing a woman in sexual intercourse, they are not merely using a metaphor or invoking an analogy to the possession of property. The two are not merely similar; they are psychoanalytically identical.
If the conflation of the Phallic concept of property with phallic concepts of physicality reflects our psychic constitution, its recurrence no longer seems merely surprising. It risks seeming inevitable. It may be impossible for people situated in our society to speak about property without descending to phallic imagery to describe Phallic concepts. Thus, on one level I mean to critique, but not to criticize, those legal writers who reinstate the phallic metaphor of property even as they purport to deny it. On another level, however, I argue that psychoanalytical theory's exposure of the identification of the symbolic and the real as imaginary as a doomed attempt to collapse the three orders of the psyche enables us to rethink the relation and to try to imagine other, more adequate ways of thinking about property. The attempted collapse of the three orders through the use of the phallic metaphor is doomed because it is merely a denial or repression of the fact of castration—consciousness consists of three orders, the subject is split, and immediate sexual relations are impossible. What is required is not the denial but the sublation or transcendence of castration.
This will not be an easy task, however. The postmodern subject hypothesized by Lacan is paradoxically constrained by its own radical freedom. If subjectivity, law-property, and language-sexuality are mutually
constituting, then the subject is not merely the subject of the symbolic order; the subject is also subject to the symbolic order. Because the symbolic order in which we are currently located is neither natural nor inevitable, Lacanian thought holds out the theoretical possibility of creating radically different alternate orders. But changing the symbolic order would entail simultaneously and radically changing the subject. Destroying the symbolic would destroy the subject. The question, therefore, is whether the symbolic and subjectivity can be sublated in the sense of preserved as well as negated. This is the goal of achieving the Feminine in her guise as the not yet.
In this chapter, I will examine the work of a number of legal theories and doctrines which reflect the masculine phallic metaphor for property. I will discuss the positive version of the metaphor first and then turn to the negative. In each case, I will first present an example of the use of the metaphor in legal theory, and then follow it with an example from commercial law.
Representative of those who wield the axe of positive masculine phallic jurisprudence is Jeremy Waldron. Waldron agrees that contemporary neo-Hohfeldian analysis makes the task of defining property difficult, but he argues that it can be done by applying a Wittgensteinian family-resemblance analysis starting with the archetype of ownership of physical objects. Waldron represents the revival of property theory against the twenty-year assault that property has undergone from both the Critical Legal Studies and Law and Economics movements. I will show that Waldron's implicit masculine theory of property is inadequate because it reduces property to possession and conflates possession with sensuous grasp of tangible things and thereby has no account of the rights of enjoyment and alienation and can only deal with intangible property indirectly through analogy.
After examining Waldron's theory, I then turn in section II.B to what must be the most extreme version of the masculine phallic metaphor in positive law—the commercial law doctrine of "ostensible ownership" as
explicated by Douglas Baird and Thomas Jackson. This is presented as an example of the pernicious effect of unconscious use of this metaphor—unwieldy and confusing legal doctrine. This dogma holds that property is so archetypically physical that any property interest which cannot literally be reduced to the grasp of a tangible thing (either because the interest is noncustodial or because the object of the property interest is intangible) is problematic and fraudulent as a matter of law. Such interests are to be voided unless they can be "cured" through elaborate analogies to sensuous grasp. I will show that, regardless of the historicity of the doctrine, its presumptions are absurd as an empirical matter. We cling to this doctrine for psychoanalytic reasons despite its inaccuracy and disutility. Here I return to the Hegelian property theory introduced in chapter 1 and show how it enables us to get beyond the phallic metaphor in order to address directly the issues which the ostensible ownership tries unsuccessfully to solve.
I next consider the thesis that property, if not dead, is in the process of disintegration. Thomas Grey is probably the most prominent theorist who adopts the bundle-of-sticks metaphor. He argues that if property cannot be conceived as a unitary right with respect to tangible things, then it must lose its meaning as a legal category. Because property cannot have this meaning, it does not exist. But this thesis depends on the proposition that property only has meaning if conceptualized as the sensuous grasp of physical things by a single human being. I will show that the bundle-of-sticks theory of property is inadequate because it insists on denying the existence of property despite its continued existence as a well-recognized category of law and a vigorous legal and economic practice.
Finally, I turn to the supposed doctrinal basis for Grey's allegation of the disintegration of property. By examining the writings of Karl Llewellyn, I will disprove the well-known cliché that by rejecting common-law "title" analysis, the drafters of the Uniform Commercial Code (the "U.C.C.") disaggregated property into a bundle of sticks. The U.C.C., in fact, not only incorporates traditional unitary property concepts, it adopts the positive masculine phallic metaphor with a vengeance through a radically physicalist notion of property. Indeed, the realists departed from the common law precisely because they perceived it as insufficiently physical. In other words, although it is a common assumption among lawyers that the U.C.C. imagines property as a bundle of sticks, it in fact implicitly reimagines property as an axe. Or, more accurately, it unstably alternates between the two.
The Positive Version of the Masculine Phallic Metaphor
[O]ne must discard the prejudice that truth must be something tangible.
Waldron and the Embrace of the Masculine Phallic Metaphor
Jeremy Waldron is one of the few contemporary theorists who have tried to defend the institution of private property from attacks by progressives within the rights tradition without adopting the predominant "right wing" rights position—libertarian absolutism. In his insightful book The Right to Private Property, Waldron specifically examines a modified Lockean natural-law liberal philosophy or liberty justification, as well as a Hegelian speculative philosophy or freedom justification.
Unfortunately, Waldron unwittingly adopts the affirmative masculine phallic metaphor—property as axe. His definition of property reduces property to the single element of possession and envisions possession as the sensuous grasp of a tangible thing. Other rights with respect to other things are not property per se, although they might be analogized to property.
Waldron's analysis is particularly illuminating because, on the one hand, he avoids the error that many defenders of property make in assuming
that the core concept of property is self-evident and not in need of explication. Rather, he takes seriously the literature questioning the coherence of the concept of property and acknowledges that he cannot purport to justify property without first defining it:
Many writers have argued that it is, in fact, impossible to define private property—that the concept itself defies definition. . . . If private property is indefinable, it cannot serve as a useful concept in political and economic thought: nor can it be a point of interesting debate in political philosophy. Instead of talking about property systems, we should focus perhaps on the detailed rights that particular people have to do certain things with certain objects, rights which vary considerably from case to case, from object to object, and from legal system to legal system.
On the other hand, Waldron does not fall into the error committed by many leftist critics who adopt the bundle-of-sticks imagery. As we shall see, these critics assume that if a simple, sharp-edged analytic definition of property is not possible, then no definition of property is possible. On this view property ceases to exist as a meaningful legal and economic institution.
A term which cannot be given a watertight definition in analytic jurisprudence may nevertheless be useful and important for social and political theory; we must not assume in advance that the imprecision or indeterminacy which frustrates the legal technician is fatal to the concept in every context in which it is deployed.
Waldron makes reference to modern and postmodern theories of fuzzy definitions:
I want to consider whether any of the more interesting recent accounts of the nature and meaning of political concepts—such as Wittgenstein's idea of family resemblance, the idea of persuasive definition, the distinction between concept and conception, or the idea of "essential contestability"—casts any light on the question of the definition of private property.
Waldron argues that "private property is a concept of which many different conceptions are possible, and that in each society the detailed incidents of ownership amount to a particular concrete conception of this abstract concept." Waldron defines the "concept" of property as follows:
The concept of property is the concept of a system of rules governing access to and control of material resources . Something is to be regarded as a material resource if it is a material object capable of satisfying some human need or want. . . . Scarcity, as philosophers from Hume to Rawls have pointed out, is a presupposition of all sensible talk about property.
The concept of property does not cover all rules governing the use of material resources, only those concerned with their allocation. Otherwise the concept would include almost all general rules of behaviour. . . . As Nozick puts it, the rules of property determine for each object at any time which individuals are entitled to realize which of the constrained set of options socially available with respect to that object at that time.
I concur with Waldron's conclusions as to both the need for and the possibility of defining property and distinguishing it from other legal relations. In particular, Waldron's approach toward definitions, his recognition that property is and will probably remain a flourishing legal and economic institution in spite of—or because of—its open-ended and fluid nature, and his realization that the institution of private property seems intuitively related to liberty and freedom considerations are much more successful than the analysis offered by critics such as Grey which I discuss
in section III.A. Unfortunately, at the next stage Waldron's analysis devolves into precisely the unsophisticated thinking that Grey and Vandevelde associate with—and criticize as—the rigid, unworkable, traditional model of property. That is, Waldron adopts the paradigm of sensuous grasping as the norm or epitome of property against which all other forms of property must be analogized. Indeed, it is not even clear that he considers legal rights with respect to intangibles to be true property at all.
The Physicality of Property
As we have seen, Waldron first defines property as the regime for the allocation of material resources. That is, he reduces property to the single masculine element of possession—the identification of an object to a subject—and represses the elements of enjoyment and alienation. In turn, he defines the term material resources as those things that are possible objects of human wants and needs. In the following passage, however, he limits material objects to physical things, which he contrasts with noncorporeal things:
I have defined property in terms of material resources, that is, resources like minerals, forests, water, land, as well as manufactured objects of all sorts. But sometimes we talk about objects of property which are not corporeal: intellectual property in ideas and inventions, reputations, stocks and shares, choses in action, even positions of employment. . . . This proliferation of different kinds of property object is one of the main reasons why jurists have despaired of giving a precise definition of ownership. I think there are good reasons for discussing property in material resources first before grappling with the complexities of incorporeal property.
Note that Waldron has already taken an unacknowledged step toward the identification of property with physicality that will color the rest of his argument. He defines human wants and needs, and therefore property, in terms of purely animal satisfaction of physical limitations. This is an odd choice from a philosopher like Waldron who wishes to explore justifications of property from a Lockean and a Hegelian perspective. Neither Locke nor Hegel justifies property in terms of the satisfaction of animalistic physical needs. Rather, both justify property by reference to the most sublime and abstract notions of what makes humans truly human—liberty and freedom, respectively.
Waldron locates property in the uninterpreted, preimaginary, prelinguistic realm of the real in which humans experience "need." But, as we
have seen, property does not belong in the animalistic, physical realm we identify with the real, or the imagistic realm of the imaginary, in which Waldron immures it. Property is the object of human desire . Waldron, however, presumes that property relates to physical want—what Lacan calls "needs." He wants to find an object in the imaginary to take the place of the objet petit a that he can identify with some physical object to stand in for the symbolically prohibited real object of desire and function as the cause of desire. Consequently, Waldron wants to presume that property is originally a physical relationship.
This may explain why Waldron cannot—as he refreshingly admits —follow Hegel's argument as to the necessary role of property in the development of human personhood. Hegelian property has nothing to do with physical requirements. As I have discussed, property is the means by which the abstract person as self-consciousness attains subjectivity. This purely logical construct does not yet even have a body, let alone physical needs.
In other words, Waldron makes precisely the phallic metaphoric conflation that Lacan locates as the identification of gender roles—or sexuated positions—with anatomy. Waldron conflates the Phallic with the phallic and desire with need in an imaginary attempt to collapse the symbolic and the real.
Waldron's State of Nature
Waldron defends his emphasis on corporeal objects by an appeal to something like a state of nature. Waldron argues:
First, we should recall that the question of how material resources are to be controlled and their use allocated is one that arises in every society. . . . The question of rights in relation to in corporeal objects cannot be regarded
as primal and universal in the same way. In some societies, we may speculate, the question does not arise at all either because incorporeals do not figure in their ontology or, if they do, because human relations with them are not conceived in terms of access and control. That is a point about incorporeals in general. Turning to the incorporeal objects we are interested in, it is clear that questions about patents, reputations, positions of employment, etc. are far from being universal questions that confront every society. On the contrary, one suspects that these questions arise for us only because other and more elementary questions (including questions about the allocation of material objects) have been settled in certain complex ways.
In other words, Waldron tries to defend his analysis by hypothesizing an anthropology of societies without incorporeals.
Of course, liberal philosophers, including Locke, have traditionally started their analysis from a hypothetical state of nature. At first blush, therefore, Waldron's approach might seem worthwhile for the consideration of a Lockean natural-rights justification of property. On further reflection, however, Waldron's approach is inappropriate to an analysis of liberal philosophy. The state of nature posited by liberals such as Locke presupposes pre-social individuals. Waldron starts with a hypothesized second stage of human development in which social individuals are already living in societies. An analysis of property as it might exist in even such a primitive society is irrelevant to the Lockean search for a pre-social natural right of property.
More important, despite Waldron's assertions to the contrary, I believe that it is not possible to hypothesize a society of entities identifiable as human beings in which incorporeal property—such as status, religious objects, artistic creations, crafts, objects of beautification, and other symbolic and imaginary objects—does not play a central role. Creatures living together solely within the realm of physical needs and wants are not human subjects but only animals living in packs. The human subject is the speaking subject of language in the symbolic order. I can, on the other hand, hypothesize societies of human beings where incorporeals are the primary source of property. For example, such a society might exist on a hypothesized tropical island with abundant fruit, vegetables, water, and space obviating scarcity for basic human needs and wants. That is to say, Waldron believes that tangible property is more fundamental to human personality than incorporeal property. I argue that the opposite is true.
Waldron's approach poses even more difficulty when we move to the considerations of actual "primitive" or tribal societies. I am not an anthropologist, so I am wary of making empirical claims, but I nevertheless believe that no contemporary society exists solely in the world of physical needs without rich and complex symbolic objects of desire.
In the passage quoted above, Waldron tries to suggest that those primitive societies that do have symbolic objects—such as religious objects or status—do not allocate these objects through a recognizable property regime. This objection fails for at least two reasons.
First, Waldron's own definition of property—a regime of access and control of scarce resources—would apply on its face equally to incorporeals and corporeals. Even if we are squeamish about speaking of religious objects and worship in terms of property, any society that recognizes a priesthood with special access and passage to the divine, that recognizes the efficacy of ritual or taboo, or that requires initiation into religious mysteries or status—such as manhood—subjects incorporeals to a regime of access and control of the objects of human wants. This is Waldron's definition of property. Indeed, in his seminal anthropological study of archaic property relations, Marcel Mauss emphasized that in so-called primitive or premarket societies property, law, family, and religion were inextricably interconnected.
In contradistinction, the two philosophies on which Waldron supposedly relies—Hegelianism and Lockean liberalism—do not flinch from
identifying religion with property. Hegel expressly recognized that our beliefs, religious positions, and liturgical objects are every bit as much external symbolic objects of desire as food and clothing. Similarly, as I shall discuss later, the Framers of the U.S. Constitution, who were, of course, deeply influenced by Lockean liberalism, were not shy about analyzing religion in terms of property. They sought to justify constitutional freedoms of speech and religion precisely on the grounds that men have a natural property right in their opinions and beliefs.
Second, if Waldron wishes to assert that primitive regimes of access to religious or other symbolic objects significantly differ from the type of access and control that we associate with property, he has the burden of articulating that difference. Waldron recognizes that his stated project of justifying property requires that he be able to define property and distinguish it from other interests, and he starts from the proposition that a philosophic project requires careful definition. If he cannot identify the difference between the regime of access to religious and status objects and other regimes, his attempted definition of property fails on his own terms.
Most important, there is a practical problem with Waldron's specific choice of the limited concept of property that serves as the starting point for his analysis. When one chooses to argue from a simple hypothetical, the ultimate issue is not whether there is any empirical society that matches the hypothetical. Rather, the question is whether the hypothetical simplifies and epitomizes fundamental aspects of our society so as to serve as a useful analytical model. Indeed, Waldron is very sensitive to the idea that property exists not merely as an abstract philosophical concept but as a fundamental legal, economic, political, and social institution in our society. Unfortunately, I believe that Waldron's hypothetical is so alien as to be misleading.
As we have seen, Waldron has reduced the concepts of material resources and human wants to what I have referred to as seemingly real needs. The problem with this should be obvious. By reducing these concepts in this fashion, he has excluded from his starting analysis of property all interests beyond those necessary for subsistence. As a result, all property interests in the symbolic economy—including incorporeals and
luxury goods defined broadly as anything above the satisfaction of animal need—have already been identified as problematic. It is possible to take the position that no institution of property can be philosophically justified beyond the subsistence level. By definition, that position would always lead to the conclusion that the property regime of a relatively wealthy, nonsubsistence economy, such as contemporary American society, could never be justified. Waldron's goal, however, is not to take the radical neo-Proudhonian or Marxian position that property is theft. He wishes to justify at least a limited property regime in a modern society. His choice as a starting point, though, seems antithetical to his purpose.
Waldron's Denial of Incorporeality
Need or Desire?
In his analysis of property, Waldron's rhetoric quickly falls into the Phallic -phallic confusion of the physicalist metaphor for property. Waldron states, for example, that "it is often illuminating to characterize the solutions [to questions concerning the allocation of incorporeals] in terms which bring out analogies with the way in which questions about property have been answered." Waldron continues:
For example, once it is clear that individuals have rights not to be defamed, it may be helpful to describe that situation by drawing a parallel between the idea of owning a material object and the idea of having exclusive rights in a thing called one's "reputation." Such talk may take on a life of its own so that it becomes difficult to discuss the law of defamation except by using this analogy with property.
Let us recapitulate Waldron's reasoning. First, he argues that property is a regime relating to the access and control of the objects of human wants and needs. Insofar as this definition refers to "wants," one does not necessarily have to limit property to the allocation of physical things. The colloquial term "want" could be read expansively to include the technical psychoanalytical concept of desire. This would make the theory con-
sistent with the Hegelian-Lacanian concepts of objects of property as potentially being anything external to abstract personality and of property as the regime of intersubjective exchange of the object of desire.
Waldron rejects this interpretation in his second move. Although he purports merely to restate this definition, he in fact changes it by limiting the term "want" to the Lacanian concept of need for physical objects. That is, he tries to move property out of the symbolic regime of law, into the preconscious, prelinguistic realm of the real.
Waldron's third move is to argue that by analogy we can apply to incorporeal objects legal principles developed by considering corporeal objects. In his fourth and final move, Waldron comes full circle to Grey's denial of noncorporeal property. Only corporeal object relations are property relations. Waldron no longer purports to apply principles developed in connection with corporeal objects by analogy to develop the property law of noncorporeals. Rather, he purports to apply property law concepts—which by implicit definition relate only to corporeal objects—by analogy in order to develop a new law of noncorporeal object relations.
Waldron continues his argument by assertorially denying the noncorporeal nature of the objects of legal relations that are traditionally considered to epitomize property. It has often been noted that the most archetypical type of property—real property—is not a right to soil or other physical things but to estates in land. Real property is not real in the Lacanian sense.
Waldron attempts to counter this view:
We might accept the argument but insist that spatial regions can still be regarded as material resources. Although they differ ontologically from cars and rocks they also seem to be in quite a different category from the complexes of rights that constitute familiar incorporeals—patents, reputations, etc. It is philosophically naive to think that the fact that we have to regard regions as property objects adds anything to the case for regarding, say, choses in action in that way. The second response is more subtle. We may concede that land, as conceived in law, is too abstract to be described as a material resource. But we may still insist that the primary objects of real
property are the actual material resources like arable soil and solid surfaces which are located in the regions in question. Until recently, these resources have been effectively immovable and so there has been no reason to distinguish "land as material" from "land as site." But developments like modern earth-moving and high-rise building necessitate a more complex and sophisticated packaging of rights over these resources. Thus the concept of land as site has now had to be detached from its association with immovable resources and employed on its own as an abstract idea for characterizing these more complicated packages of rights. Still, in the last analysis, the system of property in land is a set of rules about material resources and nothing more.
These arguments evidence Waldron's deep ambivalence concerning corporeality and property. He provides these arguments to support his assertion that, first, we should start by analyzing corporeal objects because they are more basic and, second, that real property interests are corporeal. The statement just quoted, however, seems to be an unacknowledged shift in position. After saying that he will start with the property of material objects because they are most basic, he makes an implicit admission that even though the most basic property rights concern realty, and realty is not a physical object, he finds it useful to analogize land to physical objects. Because it is convenient to think of realty interests as physical objects, we will say that realty interests are physical objects without considering whether or not this is actually the case. In other words, Waldron all but admits that he starts with material objects not because they are the most basic objects of property but because they seem simpler to think about.
Waldron's Empirical Arguments for the Phallic Metaphor
Waldron wants to suggest that only modern technology has made the identification of realty interests with the underlying land problematic. I question both the historical and empirical accuracy of his statement.
As any first-year law student knows, the concept of realty as a specific plot of land occupied and exploited by a single owner is a relatively modern development in Anglo-American culture. Historically, real property consisted of the system of estates. Estates did not consist merely in the
right to occupy, farm, mine, or otherwise physically exploit specific pieces of realty; they included a complex network of rights, responsibilities, and status. The estates granted to nobility, for example, were often tied to a title and were conditioned on the obligation to provide their liege with the military service (or its financial equivalent) of a specified number of men for a specified number of days. Numerous persons held different property rights with respect to a given piece of realty. Although some of these were merely temporal divisions of the right to occupy the land—such as life estates, reversions, and so on—many others were not. Not only social status but also what we would call governmental and ecclesiastical positions and functions were tied to estates. Other real property interests included, among others, banalities —which included the right to operate certain "utilities" in a village such as a mill, oil press, or bake oven located in a village—and advowsons —the right to name clerics to a specific church and income. Indeed, the traditional dichotomy between real and personal property may originally have been in large part jurisdictional rather than substantive. Real property rights referred not to property interests relating to land per se but to those causes of action for specific relief that could be brought in the king's court.
Although many of these medieval estates exist only as vestigial organs in late-twentieth-century America, other partial estates have taken their place. Let us look at a very simple example of residential real estate in New York City—my apartment. A corporation named Hudson Mews Apart-
ment Corporation owns the equity in the building and land where I live. A bank holds a mortgage on the building granted by the corporation. Various parties including Time-Warner Cable Television, Atlantic Bell, ConEdison, and the U.S. Postal Service have easements to enter and keep objects—such as coaxial cables and telephone and power lines—on the premises. The corporation owns rights of access to hook up to the water mains and pipelines that run under the street in front of the building. The use of the land and building is subject to extensive regulation by the City and State of New York. As the building is located in an unusual (for Manhattan) location behind a private courtyard, the corporation also owns a right-of-way across a narrow strip of land—owned in fee by someone else—which separates our garden from the street. I, as tenant in the entirety with my husband, own the equity in 625 common shares of the corporation, and we are lessees of a proprietary lease granted by the corporation for the apartment in which I live. A savings and loan association owns an Article 9 security interest in the shares and the lease. Although the terms of my lease are coterminous with my ownership of the shares, both my occupancy of the lease and my ownership of the shares are subject to my performance of certain obligations under the bylaws of the corporation—including paying an amount equivalent to my pro rata share of the corporation's mortgage debt and operating expenses—and under the terms of the agreement with my S and L. The corporation also has a security interest in my rights to secure my obligations and an intercreditor agreement with my S and L governing its respective property rights as a secured creditor. My right to alienate my shares and my lease is restricted by the terms of the bylaws of the cor-
poration and my security agreement with the S and L. Although shareholders occupy most of the other apartments in my building—sometimes individually and sometimes through various forms of joint tenancy—some shareholders sublet their apartments to unrelated tenants. The corporation has granted the shareholders and lessees limited rights to use the common areas of the building and the garden, as well as the right-of-way. Each tenant has the exclusive privilege to use a portion of the basement for storage. The corporation leases the basement apartment to our superintendent, whose lease is coterminous with his employment, and so on.
Commenting on modern-day estates in land, Waldron ends his argument with the following non sequitur:
Thus, the concept of land as site has now had to be detached from its association with immovable resources and employed on its own as an abstract idea for characterizing these more complicated packages of rights. Still, in the last analysis, the system of property in land is a set of rules about material resources and nothing more.
Thus, Waldron would conclude that ultimately all the interests concerning my apartment building are concerned with "material resources" in his definition of physical things. He might try to argue that my ownership interest primarily concerns my sensuous exploitation of physical walls, floors, ceilings, fixtures, and so on. But the interests of the financial institutions, the telephone company, the cable TV company, the electric company, the postal service, the laundry company, and Sal the Super are not primarily related to the physical location. Rather, they are rights to receive income and are not, as Waldron suggests, substantially different from the rights to income from the exploitation of any other form of noncorporeal property. Moreover, even my apartment's value to me is not primarily based on my physical needs. The value consists of a combination of its objective exchange value—the market price—and its subjective use value to me. The use value relates to a variety of symbolic and imaginary concerns, as well as my real needs. Examples include the apartment's physical attractiveness, its relative quietness, its proximity to both my office and a wide variety of restaurants and entertainment, the artsy population of the neighborhood, and so on. Indeed, when one compares the cramped quarters in which we New Yorkers tend to live with the housing occupied by people of comparable economic resources in other parts of the
country, it is obvious that we value our property despite its failure to meet our real physical wants.
Waldron admits that if ownership is defined in terms of wealth, then
we will certainly have to conjure up incorporeal things to correspond to the complex legal relations that in fact define their economic position. But if we say instead that property is a matter of rules about access to and control of material resources, but not necessarily about private ownership, then we may still say that a man's wealth is constituted for the most part by his property relations. He may not be the owner of very many resources; but the shares he holds, the funds he has claims on, and the options and goodwill he has acquired, together define his position so far as access and control of material resources is concerned.
Once again, Waldron distinguishes between relations concerning noncorporeals and "property"—that is, access to material (i.e., physical) resources. The only true property is what he sees and holds. His argument seems to be based on the agrarian myth that all wealth ultimately comes down to physical things—the land, gold, and so on. Everything else is merely an indirect interest in the physical. To Waldron, all our creations—art, music, medicine, technology, knowledge—ultimately relate to satisfaction of our physical, animal needs and wants. Like the infant, we remain preconscious in the domain of the real.
But even if one accepts Waldron's assertions as to the source of wealth, it does not follow from this that property relations are primarily or even archetypically relations affecting the access to and control of physical things. His very discussion indicates that access to and control of wealth—even if defined narrowly as physical things—are legal, symbolic relations, not the mere immediate sensuous contact with, and physical exploitation of, tangible things. Property, as a legal relation, is the way we as human beings move away from mere sensuous experience of the outside world to symbolic and social relations among human beings with respect to the outside world.
Indeed, as human beings, even our needs are not purely animalistic or natural. In the words of Renata Salecl:
For Lacan the concept of need is linked to the natural or biological requirements of human beings (food, for example). But for human beings it is essential that these needs are never manifest as purely natural needs. Needs are always defined by a symbolic context: if we are hungry, for ex-
ample, we do not simply grab the first available food, but rather we think about what we shall eat and then prepare food in a special way.
When put into words, a need becomes articulated in the symbolic order. . . . Desire arises as the excess of demand over need, as something in every demand that cannot be reduced to a need.
When I eat food, my property in the food is not the animal act of consumption and digestion but the legal recognition of my right to possess and use or alienate the food. In our society, property rights are these indirect, mediated relations among people through our relationship with the external world. It is meaningless to speak of property without speaking of our relation to these noncorporeal things, even if they ultimately indirectly lead to the access to and control of corporeal things. And yet, it is impossible to do so through the positive masculine phallic metaphor that Waldron unwittingly adopts.
Some Realism about Legal Surrealism:
The Positive Phallic Metaphor and Ostensible Ownership
Grasping at Straws
Much of commercial law doctrine—the private law of personal property—is firmly in the grasp of the masculine phallic metaphor of property as axe. The legal concept of possession is conflated with the sensuous experience of grasping a physical thing in one's fist. This metaphor is merely inept for the analysis of noncustodial property interests in tangible chattels which, at least theoretically, could be grasped. It is bizarre when applied to the property law of intangibles which is an increasingly important subject of commercial law. Rather than being simple and intuitive as its proponents claim, the metaphor of sensuous grasping can only be maintained through increasingly elaborate auxiliary metaphors and analogies. If legal realism was an attempt to make commercial law more nearly reflect actual economic practice, then the phallic metaphor is legal surrealism.
In this section, I explore the pernicious use of the physical metaphor in commercial law scholarship and doctrine with particular emphasis on the law of perfection of noncustodial security interests and security interests in intangible property. I will concentrate on the most extreme and
surrealistic example of the affirmative version of the physical paradigm in commercial law—the doctrine of "ostensible ownership." To the proponents of this doctrine, property should not merely be grasped, it must be wielded in the sense of being displayed for all to see. Not only does the sensuous grasp of a physical thing erect a legal presumption that the grasper is the owner, but property interests which do not, or cannot, take the form of sensuous grasping—such as when the object of the property interest is itself intangible—are deemed to be so problematic as to be presumptively fraudulent unless "cured." I will show that by enabling us to get beyond the masculine metaphor, the Hegelian theory of property offers a more satisfactory account of existing American property law and can serve as a paradigm for critiquing and revising existing law.
The traditional doctrine of ostensible ownership holds that creditors assume that property "held" by another person actually belongs to that person. In other words, this doctrine posits that the archetypical form of ownership is immediate physical contact with, and custody of, a visible and tangible object. Like Waldron, proponents of this doctrine implicitly reduce property to the single masculine element of possession. I take this imagery to its logical extreme and call it "property as sensuous grasp." Property interests that cannot be so reduced—either because the interest is nonpossessory or because the object of the property interest is itself intangible—are considered "problems" that need to be explained. In other words, this doctrine holds that reasonable creditors presume that the person in physical custody of a tangible thing is ostensibly the owner free and clear of any competing claims. Consequently, in order to prevent actual or constructive fraud on creditors, all noncustodial property interests (such as hypothecations) should be "perfected." "Possession," in the sense of immediate physical custody or sensuous grasp
by the secured party, is the preferred mode of perfection because it supposedly eliminates the ostensible-ownership problems with respect to the debtor's creditors. Hypothecations of most forms of personalty are governed by Article 9 of the Uniform Commercial Code (the "U.C.C."). Article 9's primary alternate mode of perfection by filing is permitted as a substitute—a form of fictive custody—in those situations where custody is impossible or impractical. This notion is unquestioningly adopted by a large percentage of the academy and the courts—a computer search will produce literally dozens of articles and cases which parrot it as dogma.
The high priests of ostensible ownership are Douglas Baird and Thomas Jackson. Starting with their 1981 article, Possession and Owner -
ship: An Examination of the Scope of Article 9 , and continuing up through Baird's Security Interests Reconsidered , they have taken the doctrine of "ostensible ownership" to its logical extreme and beyond. As described by Baird and Jackson:
Since Twyne's Case , . . . possession has been viewed as the best available source of information concerning "ownership" of most types of personal property. Separation of ownership and possession has been viewed as a source of mischief toward third parties, and for that reason as fraudulent.
They identify a negative pregnant in the traditional assertion that physical custody implies ownership. They infer from this that lack of physical custody implies no ownership. That is, the doctrine holds that the archetype of property is the sole element of possession reduced to the specific example of physical custody—an immediate, binary relation of subject to object. As this is the masculine strategy of denial, all attempts to complicate this simplistic account by revealing the mediated nature of noncustodial property interests must be repressed. This is why such interests are declared constructively fraudulent and voidable unless they can somehow be restated within the metaphoric imagery of the binary archetype.
Proponents try to justify this doctrine with a combination of ethical and economic grounds. Both these justifications are based on the unexamined and unverifiable empirical presumption that reasonable creditors assume (absent actual notice to the contrary) that all assets in a debtor's custody are unencumbered. This presumption is supposed to be bolstered by a historical analysis which purports to show that American
law has traditionally held that noncustodial property interests are presumptively voidable on the grounds of constructive fraud. Baird and Jackson do not merely argue that this historical account explains the existing positive law of perfection of security interests. Rather they believe that rationality itself insists upon the doctrine of ostensible ownership. It, therefore, should be unloosed from the confines of its traditional jurisdiction. Accordingly, not merely noncustodial security interests but all noncustodial property interests should be subjected to a perfection regime. That is, although they purport to justify ostensible-ownership doctrine in part by historical precedent, they conclude by arguing that we should adopt and expand the doctrine despite historical precedent to the contrary.
Opponents of ostensible-ownership theory have argued for years—persuasively in my opinion—that there is strong empirical evidence that, whether or not its basic underlying assumptions were ever justified, they are now obsolete. In our modern economy, property interests commonly, or even typically, are not accompanied by physical custody of tangible objects, and the persons in custody of the objects of property are commonly not the owners. An excellent example of this, which I shall discuss later in this section, is one of the most important categories of personal property in the modern economy—investment securities (i.e., stocks and bonds). The vast majority of publicly traded securities are no
longer evidenced by physical certificates held by the owners but are held indirectly through tiers of intermediaries in the form of electronic book-keeping entries. Consequently, the marketplace is fully aware that physical custody standing by itself has no evidentiary value. In other words, creditors do not have to undertake expensive investigation to learn that encumbrances exist. They can assume, based on empirical data concerning debtors on the whole, that they do.
My main argument against Baird and Jackson's theory is not, however, based on empirical claims or historical interpretation. Rather, my complaint is that they attempt not only to analyze current law but also to make policy recommendations for future law on the basis of unprovable assertions of accidental and contingent empirical facts rather than a consideration of the logical functions of property.
Custody as Evidence of Ownership
Baird and Jackson assert:
Possession of personal property is the best evidence of its ownership. The law of secured transactions has ordered itself around this principle for nearly four hundred years. . . . The drafters of the [Uniform Commercial] Code did not go far enough either in abolishing metaphysical and unobservable
distinctions based on concepts such as "title" or in adopting the more concrete concept of possession as their benchmark.
This is one of the clearest statements of property as sensuous grasping of physical things in contemporary legal scholarship. Those legal relationships which are not physically observable are slandered as mere "metaphysics." Their phrase echoes Karl Llewellyn's embrace of the physical metaphor in the Official Comment to U.C.C. § 2-101, which states that under the law of sales
[t]he legal consequences are stated as following directly from the contract and action taken under it without resorting to the idea of when property or title passed or was to pass as being the determining factor. The purpose is to avoid making practical issues between practical men turn upon the location of an intangible something the passing of which no man can prove by evidence and to substitute for such abstractions proof of words and actions of a tangible character.
As Llewellyn insisted, practical men need tangible things. Baird and Jackson seem never to use the word "title" without their intended pejorative, "metaphysical." Presumably, by "metaphysical" they intend connotations such as unreal, fictional, imperceptible, invisible, intangible, inaudible, too abstract, excessively subtle, "airy-fairy," supernatural, ambiguous, uncertain, and so on. Certainly it is not serious enough (or, dare I say, too feminine?) for real men who are only happy when grasping their tangible things. But, in context, Baird and Jackson use the term to mean the legal (symbolic) as opposed to that which physically exists (which we locate in the real). In other words, they have inadvertently limited the word "metaphysical" to a simpleminded, folk-etymological meaning—that which is other than the physical—and imply that only the physical is actual. This precisely reflects our psychoanalytic urge to achieve the impossible goal of unmediated relationships through the imaginary collapse of the symbolic into the real, as though property could be reduced to our animalistic, natural, physical relations with the material world.
Note, however, that Llewellyn's concern expressed in the Official
Comment is not the misleading nature of noncustodial interests but of nonobjective ones—that is, property interests which "no man can prove by evidence." Unfortunately, as I shall discuss in greater detail in section III.B of this chapter, his physicalist imagery already presupposes that "objective" means "physical" and that "intangible" means "subjective." This is exactly Baird and Jackson's error.
Like all proponents of the physical metaphor for property, Baird and Jackson do at some level recognize its impracticability, if not impossibility. And they offer one of the usual "solutions": denial through the adoption of the physical metaphor and attribution of the pejorative "metaphysical" to alternates. That is, certain forms of nonphysical possession are implicitly analogized as being equivalent to physical custody.
For example, they do not defend the filing regime on its own intrinsic utility. Rather, its utility is defended by metaphor—filing is just like sensuous contact:
Both public recording files and possession share one central feature: Information about competing property interests is concrete and trustworthy. It is trustworthy because the information is conveyed by events—making a filing or taking possession—that themselves determine legal systems.
This is despite the fact that Baird and Jackson also recognize that filing has distinct advantages over custody in that it allows the debtor to continue to use the collateral, thereby making it more likely that the secured party will eventually be paid.
A secured creditor need not take possession of the collateral, but if he does not, he must make a public filing in a designated place. . . . [A] filing system places fewer restrictions on the use of collateral yet it still provides information that allows a creditor to avoid the uncertainty caused by the possibility of debtor misbehavior.
At one moment Baird and Jackson do recognize that the requirement of perfection must relate to some requirement that property interests be objectively manifest as a condition of general enforceability, but do not understand its full implications:
The doctrine of ostensible ownership assumes that such contractual divisions [i.e., of property rights] are irrelevant insofar as third party rights are concerned. What matters is that third parties be able to observe the division easily and accurately.
Unfortunately, after this correct starting place, their argument gets lost. Based on historical, but unverified, empirical assumptions, they first assume that physical custody is clear and informative and can serve as an effective way of objectively evidencing a property interest. From this they draw the non sequitur that noncustodial property interests are so problematic that they must be voided unless they can be cured by analogy to custodial interests. This means that Baird and Jackson do not fully recognize that the question of objectification arises in all property claims. Because they conflate objectivity with physicality, they believe that the need for objectification (what they call the ostensible-ownership problem) is created not by the claim to property but by the separation of such claims and physicality. Consequently, the test of an enforceable property interest depends not on whether it is sufficiently objectified but on whether it is sufficiently physicalized:
A party who wishes to acquire or retain a nonpossessory interest in property that is effective against others must, as a general matter, make it possible for others to discover that interest.
Therefore, filing is judged by whether or not it can serve as a substitute for physical custody and thus become a form of fictive possession.
A similar conflation of objectification with physicality can be seen in Stephen Munzer's otherwise insightful property analysis. Munzer makes the quite remarkable statement that the only way that "embodied entities such as human persons can have property in nonmaterial things . . .
[is] through some physical manifestation." "It is, therefore, essential to property as it can exist for human beings that it involve, at some point, material objects. Without a physical manifestation people cannot have rights in nonmaterial things." He thinks that this is demonstrated by the fact that copyright and patent applications require a writing, drawing, or model. But in context, it becomes clear that his real concern is intersubjective communication. He refers to recent legislation as instituting "legal conventions that allow for more transitory physical manifestations." He gives as an example a California statute that recognizes property rights in "any original work of authorship that is not fixed in any tangible medium of expression." Music performed but not transcribed, or a mime performance seen but not filmed, is, to Munzer, a "fleeting" physical manifestation of property. Presumably, on this analysis, electronic records of property interests (such as uncertificated securities) and conveyances (such as wire transfers) are also "physical" manifestations.
Even if one buys (which I do not) their assertion that physical custody of goods is unproblematical in most cases, Baird and Jackson are presupposing an economy in which most (or at least the archetypical forms of) property interests involve tangibles. This means that the law of perfection of security interests in intangibles is developed by analogy to the presumed "norm" of tangibles. If the law of tangibles is based on the presence or absence of physical custody, the law of intangibles is developed by reference to the presence or absence of something that, by definition, cannot exist. This requires the development of ever more elaborate fictions and metaphors. This is precisely the same inverted logic which Waldron used to support the positive masculine phallic metaphor in property jurisprudence.
Benedict v. Ratner
It is significant that Baird and Jackson include the infamous case of Benedict v. Ratner in the chapter of their casebook which covers the history of the ostensible-ownership principle. In this pre-U.C.C. case, the United States Supreme Court invalidated an assignment of accounts receivable—what we would today call a non-notification security interest in accounts. Specifically, the court voided a purported assignment by a corporation of all of its existing and future accounts receivable when the assignee not only lacked the right to collect the accounts but the assignor had no obligation to account to the assignee for the collected accounts. The assignee did not notify the account debtors that he was now the owner of the accounts, collect, ask for an accounting, or attempt to assert any rights whatsoever with respect to the accounts until after the corporate-assignor's bankruptcy. That is, the assignor retained the right to collect, settle, or otherwise deal in the accounts without either paying the proceeds over to the assignee or substituting new accounts. The Supreme Court found that this transaction was a fraud on the corporate-assignor's debtor as a matter of law (i.e., it is objectively fraudulent even if the corporate-assignor acted with subjective good faith as a matter of fact) because the assignor retained, and the assignee did not obtain, "dominion" over the accounts.
Baird and Jackson's inclusion of this case as an example (or, at least, a close relative) of ostensible-ownership theory follows from their custodial/
noncustodial distinction: if noncustodial interests are defined as problematical, then property interests in accounts which are, by definition, intangible must always raise the concerns which underlie ostensible-ownership theory.
Baird and Jackson take the position that, when one is analyzing the validity of the secured party's property interest, then the logic of ostensible-ownership doctrine demands that we ask not only whether the debtor retains physical custody but also whether the secured party ever obtained physical custody. That is, under the classic version of the ostensible-ownership theory, the debtor's creditors supposedly would be fooled into thinking that the debtor owned his property free and clear of liens if they looked at the debtor and saw the debtor in possession of the collateral. In the rewritten theory, creditors would also be fooled into thinking that a rival creditor did not have a lien on the debtor's property if they looked at the creditor and did not see it in possession. This seems to follow directly from the underlying presumption that property is possession and possession is physical custody.
This, of course, is the logical extension of the phallic metaphor. If a secured party is claiming a property interest, it is not enough to show that the debtor has been castrated from her phallic property. Rather, the secured party must show that he now wields the Phallus . For this analysis, it is irrelevant whether the reason why the secured party lacks physical custody is that the debtor retains physical custody (as in classic ostensible-ownership analysis) or that the nature of the collateral makes physical custody an impossibility (as in the case of assignments of accounts and other intangibles). This approach may be implicit in the rule announced in Benedict v. Ratner . Justice Brandeis might be read as analo-
gizing ownership of accounts to the sensuous grasp of goods and fixating on the lack of physical custody, or its analogue, in the secured party. In this reading the term "dominion" stands in for physical custody of intangibles.
Perhaps tellingly, the assignee in this case was the father of the assignor's president. Does his paternal status of the assignee explain, in part, why the Supreme Court was so concerned with the assignee's lack of dominion? For the father to function as a father he needs to appear to be holding the Phallus . But in Benedict v. Ratner , the father is castrated and it is the son who wields phallic property.
Modern lawyers love to sneer at this case as a relic of a financially unsophisticated era. The drafters of the U.C.C. claimed that they rejected the rule of Benedict v. Ratner with respect to accounts. By this they meant that they did not adopt the Supreme Court's specific solution to the secured party's lack. That is, they did not insist that the secured party take dominion and control over an assigned account. Instead, as I shall discuss below, Article 9 permits secured parties to perfect their interest through filing. Consequently, Article 9 makes it much easier for lenders to offer what is known as "nonnotification" accounts receivable financing.
In contradistinction, I agree with Baird and Jackson's intuition that Benedict v. Ratner remains relevant because it identifies a recurring problem of commercial law, albeit in a partial and imperfect manner. Although the drafters sought to assure a different outcome from that of Benedict v. Ratner , they implicitly embraced both its obvious general conceptual errors as well as its hidden insight. This can be seen in Article 9's rules for the perfection of security interests.
The principal effect of the Benedict rule has been, not to discourage or eliminate security transactions in inventory and accounts receivable—on the contrary such transactions have vastly increased in volume—but rather to force financing arrangements in this field toward a self-liquidating basis. Furthermore, several lower court cases drew implications from Justice Brandeis' opinion in Benedict v. Ratner which required lenders operating in this field to observe a number of needless and costly formalities: for example it was thought necessary for the debtor to make daily remittances to the lender of all collections received, even though the amount remitted is immediately returned to the debtor in order to keep the loan at an agreed level.
[a] security interest is not invalid or fraudulent against creditors by reason of liberty in the debtor . . . to collect or compromise accounts . . . or to use, commingle or dispose of proceeds or by reason of the failure of the secured party to require the debtor to account for proceeds or replace collateral.
Hegelian Possession as an Alternative to the Paradigm of the Phallic Metaphor
The ostensible-ownership doctrine is supposed to explain the historical development of the positive law of security interests. Extremists, such as Baird and Jackson, argue that if one accepts the doctrine, then consistency and utilitarian considerations demand that we extend the concept of "perfection" beyond security interests to all noncustodial property interests. They cannot explain, however, why our supposedly efficient capitalist system has not yet done so. One is not required to "perfect" one's nonpossessory property interest in goods leased, coats left at the hatcheck in restaurants, clothes left with the dry cleaner, and so on. In the theory of Baird and Jackson, this remains an unexplained aberration. In this section, I suggest that a Hegelian analysis offers a much more convincing account of current law which avoids such embarrassments. To that end, it is helpful to review briefly the structure of Article 9 before moving on to my analysis.
Attachment and Perfection
Article 9 security interests can only be created by contract. They are not merely contract interests, however, but property interests in specific identifiable collateral. This means, among other things, in the event of the debtor's bankruptcy, a secured party does not share in the estate pro rata with general creditors but is entitled to distribution out of earmarked assets. Consequently, Article 9 makes a distinction between what it calls "attachment" and "perfection" of security interests which reflects their contractual and property aspects, respectively.
Roughly speaking, when we say a security interest has attached, we mean that it has become enforceable against the debtor who created the security interest as well as against a discrete class of third parties: donees and knowledgeable buyers out of the ordinary course of business. Perfection means that the attached security interest is also enforceable against a much larger class of third parties, most significantly, subsequent lien cred-
itors, the debtor's bankruptcy trustee, most subsequent secured parties, and certain others. Consequently, one can have unperfected but attached security interests in many categories of collateral, but there is no such thing as a perfected but unattached security interest.
Why is this so? One answer is suggested by the Hegelian theory of the function of property.
The Logic of Property
Classical Liberalism and Autonomy
Elsewhere I have shown that the existing positive law of property under the U.C.C. can be explained in terms of the classical liberal policy of furthering autonomy. This analysis is powerful and appealing in that it probably reflects the underlying liberal jurisprudential theories actually (implicitly or explicitly) held by the drafters. It is limited, however, in that it depends on a liberal presupposition of human nature as atomistic individuality with a natural right of negative liberty as personal autonomy (and, to a lesser extent, a natural right to property). These presuppositions are, perhaps, not so universally shared in our society as they once were. As a sublation of liberalism, Hegelian property theory can preserve
the liberal values of individuality, autonomy, and negative liberty as one true moment in the actualization of freedom while negating and superseding its false claims to universality.
As I discussed in chapter 1, Hegelian possession is the identification of a specific object as being "owned" by a specific legal subject with the right and power to exclude others from the object. Because the logic of property is to make the owner recognizable by others, the claim to ownership which is possession cannot be totally "subjective" in the sense of private to the so-called owner. It must be somehow public and "objective" in the sense that it is intersubjectively recognizable by the relevant legal community.
Unfortunately, the U.C.C., and much contemporary legal scholarship, conflates the English term "possession" with its more narrow meaning of physical custody, preferably in the form of sensuous grasp. Consequently, the Supreme Court's terminology in Benedict v. Ratner —dominion (from dominus , lord) —may in fact be more appropriate since it does not carry the unfortunate modern physicalist connotation of "possession."
In our legal system, both the debtor and the secured party to a security interest are deemed to have property rights in the collateral, although neither has the most full and adequate manifestation of property known as unfettered ownership. In a hypothecation, the debtor has possession in the sense of the right to have physical custody of a tangible object, or is otherwise recognized as the owner of an intangible object. She has the right to enjoy the object in the sense of using it or collecting it. Article 9 gives her the power to alienate her equity interest and sometimes the secured party's interest in the collateral (despite contractual restrictions to the contrary). These rights are all immediate, but they are also contingent in that their continued existence is subject to the condition that she satisfy the secured obligation. The secured party's rights of possession (through "repossession"), enjoyment (through collection or strict foreclosure), and alienation (through foreclosure sale) are inchoate because they are all contingent upon a future default by the debtor which may never occur. Consequently, the secured party's rights remain contractual in nature unless they are somehow immediately objectified. An unperfected security interest is objective only to a very small class of people: the
debtor and parties with actual notice. Consequently, attached but unperfected security interests are enforceable against certain knowledgeable buyers and against the debtors' donees, who do not act as independent legal subjects but inherit the status of their donor. The logic of property is recognition by others. In order to be a property right enforceable against a third party, it is necessary that it become objective in the sense of recognizable by that third party. It is the necessity for objectification which explains the requirement known as perfection. This is another way of saying that possession is the most primitive element of property, required for the other two.
Hegelianism and Pragmatism.
While the Hegelian dialectic is a powerful tool for analyzing the structures of society, it cannot answer specific questions of legal policy or daily life. This is why pragmatism is a necessary correlate of Hegelian idealism. The actual form of possession for any given property claim in any given society falls outside logic and within the province of positive law. In this interpretation, perfection of a security interest through filing of a financing statement would be a form of Hegelian possession through marking recognized by the positive law of the U.C.C. That is, filing is not a second-best substitution for possession as exemplified in the norm of sensuous grasping; through positive law, filing itself becomes a form of possession.
The Hegelian concept of possession can be used both to explain and to
critique some areas of property law which seem anomalous when considered within ostensible-ownership doctrine. Probably the most obvious of such apparent anomalies, as raised by Baird and Jackson, is the lack of any perfection requirement for leases and certain other arrangements where a noncustodial party has enforceable property rights. From a Hegelian viewpoint, the continued existence of this apparent anomaly can be explained if the lessor's noncustodial interest is otherwise objectively manifest in the sense of being observable, or at least discoverable, by a third-party creditor of the custodial lessee from evidence other than the self-serving subjective statements of the custodial party. This turns out to be the case.
If a creditor wishes to take a security interest on equipment or other goods in the custody of a debtor, it can investigate the equipment's provenance or chain of title. That is, it can demand from the debtor some evidence of the origin of the equipment—such as a bill of sale or other receipt. The creditor can then question the source of the equipment about the nature of the transaction by which the debtor obtained custody. In this way, the creditor has some ability to ascertain the existence of an adverse interest that is not totally dependent on the subjective statements of the debtor. The same reasoning could in part explain the traditional solicitude for purchase money financers—at least when the financer is also
the seller of the collateral. It cannot, however, justify the nonperfection of other forms of noncustodial security interests. That is, an investigation of the past chain of title of an object will not reveal the existence of a non–purchase money hypothecation.
I am not arguing that Hegelian property analysis shows that perfection of leases by filing is neither necessary nor a good idea. It merely argues that any given society may decide that different forms of objectification might be appropriate for different property interests for historic or pragmatic reasons. In my example, one might decide on abstract logical grounds that the unperfected interests of lessors are theoretically objective (i.e., possessory) and, therefore, property. Nevertheless, society could also pragmatically decide that investigation of provenance is too difficult, too time-consuming, and too subject to fraud by dishonest debtors who can forge fake receipts or collude with dishonest suppliers, to be considered sufficiently objective to justify enforcement of all leases against all competing interests. In other words, leases which can be discovered through investigation of provenance might be minimally objective and "possessory" in a Hegelian sense, but they are not necessarily the most adequate or full form of possessory interests.
Moreover, if lease financing is a significant rival for secured financing
in some industries, it might also make pragmatic sense to require the same form of objectification for all property interests. We might, therefore, pragmatically decide that with respect to some industries, or some types of collateral, creditors should have to engage in only one form of search to discover all potentially rival interests. Why make creditors search both the secured financing records and investigate provenance if it would not impose significant hardships on lessors to record their interests on a certificate of title?
For example, we have decided to require perfection formalities for all property interests—ownership, leasehold, and security interests, custodial as well as noncustodial—in aircraft and airplane engines and equipment which are frequently financed by sale-leasebacks and secured credit. Similarly, although the U.C.C. does not require that leases in automobiles be perfected as a condition of enforceability against creditors, both the interests in lessors (as owners) and secured parties (as lienholders) must be noted on the certificate of title on automobiles under state certificate-of-title statutes. Contrarily, in other industries we may decide that the expense imposed on the noncustodial party would not justify the investigative cost savings to third parties.
Of course, these pragmatic decisions depend on precisely the type of difficult-to-verify empirical questions which I have been seeking to avoid. But this is an inevitable characteristic of all pragmatic decisions. All we can do is develop a logical structure to help frame the type of pragmatic questions we need to ask, and develop a theory of political legitimacy for the process by which the pragmatic decision will be reached. Traditionally, in our political system, such decisions are considered to be within the competency of the legislature. My criticism of Baird and Jackson, then, is not so much that they raise a hypothesis which requires empirical investigation but that they assume the very empirical data on which a demonstration of their hypothesis depends.
Perfection, Filing, and Control.
An example of a pragmatic recognition that different forms of objectification may be more or less adequate is the priority regime for security interests in investment securities contained in the 1994 revisions to Articles 8 and 9 of the U.C.C. As revised, Articles 8 and 9 permit a variety of liberalized perfection alternatives for security interests in investment securities. In perhaps the most radical change from traditional law, the revisions provide for automatic perfection of security interests granted by broker-dealers and other securities intermediaries. Filing will be permitted in the case of other types of debtors. Both of these are examples of a minimum form of Hegelian possession through positive law—intersubjectively recognizable identification of object to subject.
In the case of automatic perfection, objectification consists of the general knowledge of the lending industry that securities held by broker-dealers are customarily subject to multiple competing noncustodial property claims. Based on their investigation of the actual practices of lenders in the securities industry, the drafters of the 1994 revisions to Articles 8 and 9 rejected the assumptions of the ostensible-ownership theory in light of a new ostensible-nonownership analysis: in the absence of actual notice to the contrary, reasonable creditors assume that all investment property held by securities professionals is encumbered. But note, the intersubjective knowledge which is "objectively" known by the lenders goes only to the existence of competing interests, generally, rather than of any specific property interests of any identified party. Consequently, revised Articles 8 and 9 only make these interests generally, but not specifically, enforceable. By this I mean all secured parties who rely only on automatic perfection and do not take one of the other objectifying acts permitted by the statute have priority over general creditors but share pro rata among themselves.
Perhaps more interestingly, the revisions further provide that secured parties who take "control" of investment securities have priority over security interests perfected by alternate means (such as automatic perfection). "Control" is a newly coined term of art defined as a variety of devices which give the secured party power to dispose of the property
without the further cooperation of the debtor. As we have seen, although physical custody can be a form of Hegelian possession, it is not the archetype of possession. Similarly, although actual physical custody of a securities certificate can be an element of control, it is not the archetypical form of control. Indeed, when a certificate is registered in the name of a specific person, mere physical custody does not even constitute control unless it is accompanied by all appropriate indorsements.
It is also significant that the forms of "control" defined by the revisions are all intersubjectively recognizable. For example, one form of investment property governed by the revisions is a new property interest known as a security entitlement. For my limited purposes it suffices to say that this is what an investor has when she owns her securities indirectly through her broker or other securities intermediary. This is now the most common form of securities holding in this country. If "control" by a secured party is thought of only as the power to dispose of the collateral without the further act of the debtor, then, theoretically, a debtor could give a secured party control by signing an irrevocable power of attorney to give instructions to the broker or other securities intermediary. But such an arrangement could be kept entirely private between the debtor and the secured party until such time as the secured party chose to exercise its power. Consequently, such private arrangements do not fall within the defined term "control" for the purposes of the revisions. In order for a secured party to obtain "control" over a security entitlement, the securities intermediary with whom the security entitlement is maintained must agree to obey such instructions. That is, there must be at least one third party who knows of the arrangement and can answer questions from other third parties.
The drafters, in effect, made a pragmatic judgment that security in-
terests perfected by "control" are more public and unambiguous than those perfected by automatic perfection and, therefore, should be given priority. Similarly, although public filing is given the status of perfection by positive law, it does not as adequately serve the possessory function of excluding others as does "control"; consequently, secured parties who perfect by filing are subordinate to perfection by "control." In other words, although security interests in investment securities may be minimally objectified through notoriety or filing, "control" prevails because it is a more adequate form of objectification.
Benedict v. Ratner Redux
A Hegelian analysis might also offer an aphysicalist reinterpretation, and partial rehabilitation, of some aspects of the apparently physicalist legal doctrines such as ostensible ownership and the Benedict v. Ratner rule. The doctrine of ostensible ownership is both archaic and based on insupportable empirical presumptions. Nevertheless, just "as the toad, ugly and venomous, wears yet a precious jewel in its head," this incoherent doctrine hides a valuable germ of Hegelian property analysis buried deep within it. Such an analysis would ask: What does it mean to say that a hypothecation or assignment has created a property interest in the underlying collateral in favor of the secured party/assignee? Under contemporary commercial law theory, substance is supposed to control over form. Because property rights always implicate third parties (such as creditors), courts are not supposed to look solely to the parties' self-serving characterization of their legal relationship. Consequently, we need to identify the minimum substantive requirements of property. This is another way of saying that property interests need to be at least minimally objective.
The principle that substance prevails over form usually arises when it is clear that the parties intended to create a property interest, but there is
a dispute as to how the interest is to be characterized. The classic example is the security interest disguised as a lease. But it is another example of the form/substance dichotomy which raises the concerns underlying ostensible-ownership analysis. Certain transactions which are structured in the form of present conveyances of property may, in substance, be mere options to acquire, or other forms of executory contracts to purchase property in the future. That is, when two parties to a contract self-servingly characterize the transaction as "hypothecation" or an "assignment" or another form of property interest, it does not necessarily make it so. It could just be a promise to prefer a creditor, to assign an asset, or to grant a call option on the asset exercisable in the future. Since property rights affect third parties directly, the characterization should be objectively determinable by third parties.
This means that we need to define the essential elements of property in order to identify when a bona fide, enforceable transfer of a property interest has occurred. My Hegelian approach argues that there must be an element of possession (objectification), as well as the elements of enjoyment and alienation, for a legal interest to be considered a full property. What the court labeled "dominion" in Benedict v. Ratner might be reinterpreted as an attempt to identify what it means to have a property interest in an intangible. Did the purported assignee have any publicly recognizable right to possess, enjoy, or alienate the accounts? It may be that an effective assignment of the accounts had not been made because the assignee's rights to the account were not "possessory" in the Hegelian sense: they were totally subjective, in the sense of private, and not objective, in the sense of publicly recognizable. Possession is the logically first, most primitive element of property. Since there was no "possession," the creation of a property interest was never completed. As the arrangement was private between two persons, and was not recognizable by third persons, any rights which the assignee had should be considered contractual in nature. Under this reasoning, one does not need to invent theories of constructive "fraud" in order to refuse to enforce an inchoate transfer which was never consummated.
The drafters of the U.C.C. claim to have rejected the rule of Benedict
v. Ratner . In my reinterpretation, this is an overstatement. The drafters contradict Benedict v. Ratner in the sense that the Supreme Court voided nonnotification assignments of accounts which are not sufficiently policed by the assignee, while the U.C.C. expressly provides that they can be valid and enforceable as Article 9 security interests. The U.C.C. does not, however, reject the underlying concept that to be an enforceable present property interest in accounts, rather than a mere contract right to future assignment of accounts, an assignment must be possessory in the Hegelian sense. They merely require a different form of objectification. The Benedict v. Ratner court required the assignee to objectify his property interest by notifying the account debtors and otherwise to obtain the direct power to deal with the collateral. In contradistinction, Article 9 provides that most assignments of accounts fall within the defined term "security interest" whether or not the assignment is an outright sale or only an assignment as security. Security interests are not enforceable against most third parties (i.e., are not legally recognizable as full property interests) unless they are perfected. The formality required for perfection of assignments of accounts is public filing.
In other words, even as the U.C.C. rejected the specific holding of Benedict v. Ratner , Article 9 also arguably adopted its inchoate general principle—security interests should not be enforceable against third parties (i.e., be recognized as property) unless they are made objectively recognizable by third parties. The proposed revisions to Articles 8 and 9 adopt a variation of dominion as the most adequate mode of objectifying a security interest when the collateral consists of investment property. That is, the highest priority is granted by the secured who obtains "control"—the power to deal in the collateral.
The ostensible-ownership doctrine dimly recognizes that property interests need to be possessory, in the Hegelian sense, but confuses the general concept with a specific example—physical custody of tangible things. Lacanian theory reveals why this doctrine is both erroneous and seductive. Hegelian theory enables us to identify the function which ostensible-ownership doctrine unsuccessfully tries to address. Used together, they enable us to get beyond the phallic metaphor to rewrite property doctrine.
The Bundle of Sticks:
The Negative Version of the Masculine Phallic Metaphor
Chix Nix Bundle-O-Stix:
A Critique of the Attempted Negation of Physicality
The most eloquent prophet of the death of property is Thomas Grey. In his justly famous 1980 essay "The Disintegration of Property," Grey argued that by reconceptualizing property as a bundle of sticks, modern jurisprudence had undermined its very foundation. As a result, property is doomed to disappear as an important category of law.
Unfortunately, despite the undeniable elegance and influence of this essay, Grey's analysis could not be more erroneous and his conclusions more wrong. In the name of rejecting the physicalist, phallic metaphor for property as object, Grey restates it apophatically through simple negation.
Grey claims a dichotomy between the idea of property held by the general public and the idea held by "specialists" such as lawyers and economists. The former, according to Grey, thinks of property as "things that are owned by persons ." The latter "tends both to dissolve the notion of ownership and to eliminate any necessary connection between property and things. . . . The specialist fragments the robust unitary conception of ownership into a more shadowy 'bundle of rights.'" That is, laypeople see the fasces of property as an axe, but specialists know that the fact that it can be untied and broken into its component parts means that it is really only a bundle of sticks. At best, property is a label for a legal conclusion. Grey concludes that "the substitution of a bundle-of-rights for a thing-ownership conception of property has the ultimate consequence that property ceases to be an important category in legal and political theory." Moreover, the concept of property is incoherent, as evidenced by the many different ways the word is used in both legal and colloquial discourse.
The intended implication of Grey's description is that the specialist's definition is more sophisticated and more accurate than the layperson's. The former will, therefore, eventually supplant the latter. By deemphasizing the objective aspect of property and emphasizing the intersubjective aspect, the specialist's definition breaks down the traditionally recognized distinction between property and other forms of legal relations. Accordingly, as property is shorn of its uniqueness, it will cease to play its traditional inspirational and political role in American society.
Grey gives a historical gloss to his analysis. He argues that the lay definition of property as "thing-ownership" is consistent with the eighteenth-century concept of property both as expressed by William Blackstone and, presumably, as adopted by the Framers of the Constitution.
The conception of property held by the legal and political theorists of classical liberalism coincided precisely with the present popular idea, the notion of thing-ownership. . . .
It is not difficult to see how the idea of simple ownership came to dominate classical liberal legal and political thought. First, this conception of property mirrored economic reality to a much greater extent than it did before or has since. . . .
Second, the concept of property as thing-ownership served important ideological functions. . . . A central feature of feudalism was its complex and hierarchical system of land tenure. . . . On the other hand, property conceived as the control of a piece of the material world by a single individual meant freedom and equality of status. . . .
Third, ownership of things by individuals fitted the principal justifications for treating property as a natural right.
In other words, Grey argues that the lay-traditional concept of property might have, in fact, cohered with the economic reality of property practice in the early capitalist period. The feudal period was characterized by highly complex, overlapping, and interrelated ownership rules, whereby the same object was subject to the property rights of numerous persons.
These rights were themselves intertwined with a complex system of mutual obligation and social, political, and religious status. The early capitalist era was, in contradistinction, characterized by the consolidation and simplification of property interests and the separation of property interests from obligation and status. Consequently, when compared with feudal property , capitalistic property seemed to be characterized by unitary interests in tangible objects epitomized by sensuous contact. According to Grey:
We have gone, then, in less than two centuries, from a world in which property was a central idea mirroring a clearly understood institution, to one in which it is no longer a coherent or crucial category in our conceptual scheme. The concept of property and the institution of property have disintegrated. . . .
My explanatory point is that the collapse of the idea of property can best be understood as a process internal to the development of capitalism itself. . . . [I]t is intrinsic to the development of a free-market economy into an industrial phase. . . . The decline of capitalism may also contribute to the breakdown of the idea of private property, so that the two phenomena mutually reinforce each other. . . .
How does Grey leap from the observation that contemporary legal scholarship tends to describe property as a bundle of rights to the conclusions that the connection between property and things has disappeared and that the concept of property is losing its significance in our economy? He does so by repeating an error made by Wesley Newcomb Hohfeld: he conflates the concept of the object of property and tangibility. He states, for example:
What, then, of the idea that property rights must be rights in things? Perhaps we no longer need a notion of ownership, but surely property rights are a distinct category from other legal rights in that they pertain to things. But this suggestion cannot withstand analysis either; most property in a modern capitalist economy is intangible.
That is, Grey cannot grasp the concept of a thing that he cannot grasp. But the concept of the object of property always included, and continues
to include, intangible things . Neither the concept of property as an interrelationship between subjects nor the concept of intangibility implies the elimination of the object from property jurisprudence. Grey's confusion does illustrate, however, how the archetypical image of property as physical custody of a tangible object is a misleading starting point for analyzing property interests generally. Yet it is this image that Grey implicitly keeps in his mind and that leads him to believe that modern concepts of property are becoming incoherent.
In support of this so-called lay-traditionalist/specialist-modern di-
chotomy of property, Grey contrasts the definitions of property expounded by Blackstone and Hohfeld. In order to analyze this dichotomy, it is useful to take an extended side trip through a lesser-known article—published the same year as Grey's—by Kenneth Vandevelde that more thoroughly, but succinctly, sets forth many of the assumptions about property theory that underlie Grey's work. I will then consider certain other examples Grey identifies of simplistic "thing-ownership" theories. Finally, I will explore the political context in which Grey's analysis is located. I will argue in contradistinction to Grey that the laity are not less sophisticated about property. Rather, they are much more sophisticated than the self-styled experts of academia, easily adopting and inventing fluid concepts of multiple and intangible property concepts. Property doctrine and scholarship lag far behind property practice. Grey incorrectly accuses the general public of making a mistake which is more accurately attributed to Waldron—reducing property to the single element of sensuous possession. Yet Grey himself ends up reducing property to a single element—this time the masculine element of intersubjective exchange—precisely because he conflates possession with sensuous grasp.
Back in the high and palmy days of Critical Legal Studies, a recent law-school graduate published an ambitious article that cogently presented the common contemporary account—or, as I would argue, misconception—of the differences between the property jurisprudence of the nineteenth and twentieth centuries. In The New Property of the Nineteenth Century: The Development of the Modern Concept of Property , Kenneth Vandevelde argued that certain common assumptions of property law are not universal but reflect a paradigm that developed with early capitalism and peaked in the nineteenth century. The nineteenth-century paradigm—exclusive, unitary, objective property expressed through the sensuous grasp of tangible things—was arguably appropriate to the early capitalist economy, according to Vandevelde, but this paradigm began degenerating in the twentieth century, as the capitalist economy became more complex. This demonstrates that in our current "information age" the old paradigm is ripe for replacement with a new paradigm that better explains contemporary property relations.
Unfortunately, the material Vandevelde presents does not support the dichotomy he (like Grey) wishes to set up. Vandevelde insists on a radi-
cal purist version of the nineteenth-century paradigm of property, which he attributes to Blackstone, and contrasts it with an equally radical purist negation, which he attributes to Hohfeld. This is precisely the same move which Grey makes in his article, albeit in lesser detail.
My point is not to criticize Vandevelde or Grey for using abstract, simplified models as tools for analyzing messy empirical reality. Rather, I will argue that their specific models do not serve the purpose for which they were invented. In the name of burying Blackstone and praising Hohfeld, Grey and Vandevelde actually imply that the Blackstonian paradigm is correct and that the Hohfeldian paradigm is not property!
Indeed, neither Hohfeld, Grey, nor Vandevelde can even imagine property other than as an ultra-"Blackstonian" phallic construct. Whereas Grey and Hohfeld present Blackstone as seeing only the object of property, Hohfeld and his progeny see only its subjects. Yet it is the Hohfeldians who are obsessed with the phallic physical object itself; their primary concern is its presence or absence in the discourse of property. In their insistence on denying castration by trying to forget the Phallic barrier to intersubjective relations, they not only seek to deny the mediating object—they deny all sophistication to Blackstone.
I do not deny that there has been evolution in the dominant legal conception of property. As I shall discuss below, Blackstone was a man of his time who could not entirely escape the masculine phallic metaphor. What I do argue is that the specific Hohfeldian criticism of Blackstone made by Grey and Vandevelde misses its mark. Moreover, the Hohfeldians have not made the paradigm shift or reconceptualization of property law they claim. At most they identify a crisis within the existing paradigm. The positive masculine phallic paradigm is inadequate precisely because it privileges one element of property—possession conflated with sensuous grasp—over the other two. Consequently, in order to make their argument, the Hohfeldians must repress and deny those aspects of Blackstone's theory that either implicitly or explicitly recognize the intersubjective nature of property. Conversely, they repeat Hohfeld's confusion as to the objective aspect of property rights. In an attempt to avoid the phallic metaphor, they privilege one masculine element of property—in this case alienation in the form of intersubjective relations—and repress the others. And, as any student of psychoanalysis knows, "repression and the return of the repressed are one and the same thing."
The Hohfeldian Attribution of the Phallic Metaphor to Blackstone
The contrast Vandevelde sets up is as follows: "At the beginning of the nineteenth century, property was ideally defined as absolute dominion over things." Vandevelde calls this the absolutist and physicalist conception of property and names Blackstone as its spokesman. This conceptualization became more and more unworkable throughout the nineteenth century as more and more intangible assets became subject to the property-law regime and as more and more exceptions to the absolutist nature of property rights were recognized. Finally, in the early twentieth century, Hohfeld created a new vocabulary to describe the new property interest: "This new property was defined as a set of legal relations among persons. Property was no longer defined as dominion over things. Moreover, property was no longer absolute, but limited, with the meaning of the term varying from case to case." This disaggregation of property, according to Vandevelde, threatens to undermine the traditional legal regime:
Once property was reconceived to include potentially any valuable interest, there was no logical stopping point. Property could include all legal relations. . . .
Such an explosion of the concept of property threatened to render the term absolutely meaningless in two ways. First, if property included all legal relations, then it could no longer serve to distinguish one set of legal relations from another. It would lose its meaning as a category of law. Second, the greater the variety of interests that were protected as property, the more difficult it would be to assert that all property should be protected to the same degree.
At first blush, there seems to be great power in this argument. Unfortunately, it rests on a misreading of Blackstone.
Vandevelde, following Grey, quotes Blackstone's well-known definition of property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." According to Vandevelde, "Blackstone's definition contained essentially two elements: (1) The physicalist conception of property that required some 'external thing' to serve as the object of property rights, and (2) the absolutist concep-
tion which gave the owner 'sole and despotic dominion' over the thing." Vandevelde, of course, considers this to be a notion of "property" as physical custody of a thing, with "thing" meaning "tangible thing"—property as possession, and possession as sensuous grasp. But Blackstone's own language, standing on its own, does not support this analysis.
First, Blackstone's definition of property emphasizes its intersubjective nature in addition to its objective nature. That is, he does not, as Vandevelde suggests, present property as an immediate, binary subject-object relation. Blackstone not only is aware but expressly states that the concept of dominion can only be understood as the right of one individual in relation to other individuals. Blackstone recognizes property as objective, not only in the sense of relating to an object but also in the sense of being generally enforceable against the relevant community of legal subjects. That is, Blackstone does not merely describe property as power over a thing, as Vandevelde suggests. This is reflected in Blackstone's very careful language. He speaks of property as a claim to dominion and of the exercise of that claim vis-à-vis any other individual in the universe . As we shall see, "a claim enforceable against the world" will be precisely Hohfeld's definition of in rem (that is, property) rights. Blackstone is scrupulous in his Commentaries to refer to "property" only in the sense of the legal right and never in the sense of the object with respect to which the right exists. He speaks of having "a property in" certain things but does not refer to owned objects as "property."
Second, although it is true that Blackstone recognizes that property is objective in that property rights among subjects always relate to an ex-
ternal object, nothing indicates that Blackstone's definition of property is necessarily limited to rights to physical things. He merely speaks of "external things."
Indeed, Blackstone makes it very clear that he uses the word "things" not in the sense of physical things but as the objects of property. Such objects are defined in the negative—as that which are not human. Blackstone defines the things that are the objects of property as follows: "The objects of dominion or property are things, as contradistinguished from persons . . . ." This is the traditional definition of object or thing used in philosophical discourse—including the discourse of Blackstone's day. This is, of course, the definition adopted by Hegel a little over fifty years later. An "object" is external to—in the sense of other than—the "subject."
Moreover, Blackstone not only is aware but absolutely insists that "things," as so defined, are not limited to the corporeal and the tangible. As Vandevelde admits, Blackstone divides the class of the types of realty that could serve as the objects of property into "corporeal hereditaments—things which could be detected by the senses, and incorporeal hereditaments—things which existed only 'in contemplation.'" Blackstone expressly tries to wean his readers away from the physicalist notion of the objects of property:
An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely an idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And
indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand.
Similarly, the types of personalty that could serve as the objects of property
also [were] divided into two categories: in possession and in action. Chattels personal in possession consisted of actual possession of some thing while chattels personal in action, or choses in action, consisted only of the right to hold the thing in possession at some future time. As Blackstone put it, a chose in action was a "thing rather in potential than in esse."
As I shall point out when I discuss Vandevelde's reading of Hohfeld, Vandevelde—and, as we shall see, Hohfeld—not Blackstone, assumes that the word "thing" means tangible thing. In so doing, he ignores not only Blackstone's own express definition but hundreds of years of Western tradition. As we will see, in making this error, Vandevelde is in good company.
The Lacanian Argument for Locating the Phallic Metaphor in Blackstone
Vandevelde and Grey grossly misinterpret Blackstone's theory. But to defend Blackstone from the fallacious charges leveled at him by the Hohfeldians is not to assert that his is a postmodern or philosophically adequate account of property. Although Blackstone recognized the intersubjective as well as the objective aspect of property and understood that
the objects of property could not be limited to the tangible, by defining property as the claim to a thing enforceable against others he followed the masculine tendency of reducing property to the single Hegelian element of possession and of repressing the element of enjoyment.
Moreover, Blackstone's treatment of personal property, generally, and intangible property, specifically, is sketchy when compared with his treatment of real property. This reflects the fact that this "branch of the law . . . was, in Blackstone's time, relatively less developed than that of real property. . . ." As A.W.B. Simpson notes, the Commentaries "smells of the countryside; the law is the law of the country gentry, not Cheapside. The Commentaries reflects the essentially rural character of the high civilization of the eighteenth century." Blackstone does include among the forms of choses in action a few of the most important objects of modern intangible property: insurance, copyrights, and debts. But many, or most, of the forms of intangible personal property that constitute a significant proportion of the wealth in contemporary society are "essentially emanations of the urban commercial world of merchants, principally though not exclusively taking the form of offshoots of commercial contract law." They were, therefore, still relatively new and exotic—or perhaps even not yet invented—in Blackstone's time and, therefore, are not discussed.
Finally, Blackstone's discussions of the modern forms of intangible objects of property are hardly satisfactory. Simpson notes in particular that Blackstone's attempt, reflecting the custom of his time, to distinguish intangibles from tangibles as those things that are "recoverable by legal action, as opposed to being in the actual possession of the owner," and his proposition that all intangibles are created by contract seem particularly defective. But even this analysis is inaccurate in that it adopts the phallic metaphor and assumes, like Waldron, that real property is tangible. I have already raised in my discussion of Waldron's theory in section II.A of this chapter how the traditional understanding of estates in land cannot be reduced to the land itself. Moreover, following eighteenth-century taxonomy, Blackstone includes as real property several of the incorporeal hereditaments that are forms of intangible property and might even be considered forms of personal property in contemporary parlance: advowsons, tithes, offices, dignities, some types of franchises, pensions,
and annuities. These discussions are quite well developed but are only of passing interest to the modern commercial lawyer concerned with problems of contemporary forms of intangible property.
In other words, although Blackstone understood as a matter of theory that property rights were not limited to rights concerning those objects that can be seen and sensuously possessed, as a matter of practice he did not derive a convincing account of property rights in modern intangibles. This may have been in part because of one reason offered by Grey and Vandevelde. During the early capitalist era when Blackstone was writing, absolutist, possessory rights in corporeal objects had become relatively more important than divided rights in incorporeal objects, which characterized the previous feudal system of societal organization. Consequently, it may have become analytically convenient to view these newly developed forms of property as the epitome of liberal legal and political rights. Blackstone's vocabulary was sufficient for his time—as shown in his exhaustive discussions of eighteenth-century intangible "real" property. In other words, although the physical, unitary paradigm of property is technically inaccurate, a legal vocabulary which spoke of property as a unitary right may have been adequate to the task of analyzing most eighteenth-century property issues in precisely the same way that the eighteenth-century paradigm of Newtonian physics seemed adequate to describe the macroworld it measured, despite its inaccuracy.
To restate this argument in my Lacanian terminology, whether or not the historic Blackstone recognized that the positive masculine phallic paradigm of property was inaccurate, he did not need (and, perhaps, was unable) to construct an adequate substitute paradigm. Although on one level he recognized that property was a symbolic function, his vocabulary may indicate that he did not totally resist the temptation to collapse the symbolic into the real.
But even this goes too far if it infers from the fact that Blackstone adopted the unitary property vocabulary of his time that Blackstone—or his contemporaries—thereby did not recognize multiple property rights.
Atoms V. Molecules
Specifically, Vandevelde and Grey accuse Blackstone of adopting a unitary picture of property, as contrasted with the modern "bundle of sticks" approach. This is, once again, not strictly
accurate. Blackstone does not by any stretch of the imagination argue that ownership always consists of the complete and inviolable rights to possess, use, and alienate the object of the right. Indeed, the common-law concept of estates in land that Blackstone explicates in excruciating detail is an elaborate system of dividing and limiting these rights. The majority of Blackstone's volume on property concentrates precisely on the myriad ways in which these estates may be transferred and on the different limitations inherent in different property rights.
The difference is that Hohfeldian analysis focuses on the components of property, rather than on the various ways these components combine to form recognizable property interests. In contradistinction, Blackstone's common-law approach concentrates on identifiable combinations of property rights—with each combination given a specific name as a different estate or hereditament—rather than on the constituent components. Therefore, although in the Blackstonian paradigm the owner of each estate has all the unfettered rights, duties, and liabilities of that estate, the various estates themselves contain a wide variety of combinations of rights and liabilities. To put it another way, the Hohfeldian vocabulary describes the atoms of property; the Blackstonian vocabulary describes the molecules formed from these atoms.
This interpretation suggests that the Blackstonian unitary approach is neither less sophisticated than nor necessarily inconsistent with the Hohfeldian disaggregated approach toward property in theory. It might, however, suggest that application of the two approaches might be likely to lead to different results in practice.
The Hohfeldian atomic analysis might have an advantage in flexibility and creativity in that it highlights the possibility of crafting a seemingly infinite combination of legal rights in response to changing market needs. The Blackstonian molecular approach, highlighting specific, traditional combinations of rights, might not encourage the same degree of experimentation and adaption to changing circumstances. To switch metaphors, Hohfeldian property is made to order; Blackstonian property is off the rack. It might not be possible to alter Blackstonian property to "fit" all legal situations as well as Hohfeldian property could.
Duncan Kennedy has identified another related disadvantage of what I call the Blackstonian approach. The identification of molecules of property, rather than atoms, can make the identified molecules look natural or inevitable and thus hide the political choices inherent in any prop-
erty regime. Accordingly, the molecular approach can be used as a tool of the status quo.
But Blackstonian property might have relative advantages that could outweigh these disadvantages. Pret-a-porter is considerably cheaper than couture and may fit well, if not perfectly, and look good enough. As I have already suggested, and as I shall explore at greater length below, the Hohfeldian analysis risks losing sight of the necessity of an object of property and the common elements of property, as well as the significance of specific combinations of seemingly disparate property rights. It may, therefore, lack not only intuitive attractiveness but analytical strength when used as a tool for describing existing social and economic institutions and legal practices.
Leaving fashion and returning to chemistry, the Hohfeldian conclusion that property is merely a bundle of sticks and is indistinguishable from other types of legal rights is a non sequitur similar to concluding from the identification of elements either that there are no such things as compounds or that the distinction between different compounds is inessential. It may be technically correct, and analytically useful for some purposes, to recognize that both glucose and petroleum are made of oxygen, carbon, and hydrogen atoms and to understand that new combinations of these atoms could be identified or created. When I bake a cake or drive a car, however, I care little about the similarity and separability of the component atoms and a lot about being able to tell a sugar bowl from a gas tank.
Hohfeld's Attempt to Deny the Object
If Grey and Vandevelde do not acknowledge Blackstone's insistence on the intersubjective aspect of property, it may be because they too quickly accept Hohfeld's dismissal of the objective aspect of property rights. They thereby attribute to Blackstone a lack of philosophical sophistication that is more properly ascribed to Hohfeld. According to Vandevelde, one of the distinctions between Blackstone and Hohfeld was
[w]hether property was the thing or the right over the thing[.] Blackstone had made clear that property could exist only in relation to some thing. Hohfeld rejected even this minimal association with tangible objects, arguing that property could exist whether or not there was any tangible thing to serve as the object of the rights.
As we have seen, this statement is not just misleading but outright erroneous. Vandevelde assumes that because Blackstone insisted that property rights must relate to an object, Blackstone believed (i) that the object of property must be tangible and (ii) that property rights are not also intersubjective. Vandevelde assertorially denies Blackstonian intangibles through the extraordinary means of denying the existence of intangible things . Despite hundreds of years of Western philosophical and jurisprudential understanding to the contrary, Vandevelde denies the possibility of any type of thing except physical things.
Calling a right a thing did not make it one. Furthermore, if rights were things, then all legal rights could be considered property and Blackstone's fundamental distinction between rights over persons and rights over things was destined to evaporate.
Thus, with a stroke of a key, Vandevelde repeals modern commercial law—large chunks of Articles 3, 4, 5, 7, 8, and 9 of the U.C.C. disappear in a flash! He does not recognize that a right can be, and is on a regular basis recognized as, a thing and the object of property when it is a right against a third party to a transaction.
That is, if X buys a good from Y on credit, X's obligation to pay Y is called an "account." If we are only concerned with the two-party relationship between X and Y, we call this "contract" rather than "property," even though the account can be analogized as an "object," in the philo-
sophical sense of something external to the two legal subjects. This is because the property aspect adds nothing to the legal analysis of the twoparty relationship between X and Y at this point . If, however, Y sells the X account to Z, it becomes meaningful to recognize the object nature of the account and to conceptualize the assignment of the account as a transfer of a property interest in an object—that is, the X account—from Y to Z pursuant to personal-property conveyancing principles. Indeed, it is in precisely this sense that Blackstone correctly included debts within the category of choses in action that can serve as the object of personal property. Moreover, it is the approach to debt taken in Article 9 of the U.C.C. This characterization does not, as Vandevelde suggests, break down the distinction between rights over persons—contract—and rights over things—property. Y's contract rights against X to enforce the account remain distinguishable from Y's property rights vis-à-vis Z and the rest of the world to transfer Y's rights in the account to others. Consequently, modern commercial law and economic practice correctly recognize debts as objects of property.
Vandevelde and Grey come by their misconception honestly in that Hohfeld makes a similar conceptual error. Hohfeld may have been a great jurisprude, but he was an indifferent philosopher and no psychoanalyst. In his zeal to emphasize the intersubjective nature of legal rights, he adopted a radically physicalist conception of the object. In his attempt to identify intersubjective relations, he tried to deny that all relations are mediated.
Hohfeld's precise taxonomy of legal rights and liabilities was motivated by two closely related goals: (i) to avoid ambiguity and (ii) to differentiate between "legal relations [and] the physical and mental facts that call such relations into being." One of the areas that he thought particularly exhibited latent ambiguities is the concept of property. He
specifically criticized Blackstone's division of hereditaments into the corporeal and the incorporeal.
Since all legal interests are "incorporeal"—consisting, as they do, of more or less limited aggregates of abstract legal relations—such a supposed contrast as that sought to be drawn by Blackstone can but serve to mislead the unwary. The legal interest of the fee simple owner of land and the comparatively limited interest of the owner of a "right-of-way" over such land are alike so far as "incorporeality" is concerned; the true contrast consists, of course, primarily in the fact that the fee simple owner's aggregate of legal relations is far more extensive than the aggregate of the easement owner. Hohfeld's general proposition that all legal relations—including property—are relations among subjects and not relations between a subject and an object seems self-evidently correct today. Unfortunately, he missed the point that property is a relationship between subjects that is mediated through an object. This is because the only way Hohfeld could conceive of objectivity was through the phallic sensuous grasping metaphor. Hohfeld's ostensible rejection of the phallic metaphor was merely a repression and therefore a reflection and reinstatement of tangibility as the only possible way of thinking about the object. Simple negation is restatement. What is repressed in the symbolic always returns in the real.
The Hohfeldian approach seems attractive because at first blush it appears to offer a way of satisfying the insatiable human desire to achieve impossible immediate intersubjective relations. By showing that specific tangible things cannot adequately serve as a mediator between subjects, it seems, for a moment, to disprove the necessity for, and the fact of, mediation. Yet Hegel and Lacan argue that mediation always remains necessary for the creation of subjectivity and intersubjective relations. The inadequacy of the physical (i.e., seemingly real) objects chosen to stand in for the mediating Phallic object of desire does not mean that the necessity for mediation disappears. Rather, it makes it all the more necessary.
Hohfeld's denial of the objective mediating aspect of property can be seen in his discussion of the related subject of the distinction between in personam and in rem rights. First, Hohfeld warns that a simplistic, literal translation of the Latin terms implies that
if a right in personam is simply a right against a person, a right in rem must be a right that is not against a person, but against a thing . That is, the ex-
pression right in personam , standing alone, seems to encourage the impression that there must be rights that are not against persons. . . . Such a notion of rights in rem is, as already intimated, crude and fallacious; and it can but serve as a stumbling-block to clear thinking and exact expression.
So far, so good. At this point, however, Hohfeld makes a move that his argument does not require. He continues:
A man may indeed sustain close and beneficial physical relations to a given physical thing: he may physically control and use such thing, and he may physically exclude others from any similar control or enjoyment. But, obviously, such purely physical relations could as well exist quite apart from, or occasionally in spite of, the law of organized society: physical relations are wholly distinct from jural relations.
Even now, Hohfeld goes too far. His strong point is that legal relations are by definition social relations, which only exist between and among subjects. The legal symbolic relationship of property is not identical with the physical relation that exists between an owning subject and an owned object. It does not follow from this, however, that "physical relations are wholly distinct from jural relations." The different orders of experience overlap to form a Borromean Knot so that the same object can simultaneously perform functions in more than one order. Jural relations with respect to tangible objects, for instance, govern, among other things, who of a number of rival subjects is entitled to enjoy sensuous relations with the objects.
This physicalist confusion also leads Hohfeld to make the unnecessary assertion that not only are rights in rem rights against subjects as opposed to rights against objects, but they are not even rights among subjects with respect to objects —or, to put it in Hohfeld's vocabulary, rights "to a thing": limiting in rem rights to rights to a thing "would exclude not only many rights in rem , or multital rights, relating to persons , but also those constituting elements of patent interests, copyright interests, etc." Elsewhere, he writes:
[I]t must now be reasonably clear that the attempt to conceive of a right in rem as a right against a thing should be abandoned as intrinsically unsound, as thoroughly discredited according to good usage, and, finally, as
all too likely to confuse and mislead. It is desirable, next, to emphasize, in more specific and direct form, another important point which has already been incidently noticed: that a right in rem is not necessarily one relating to , or concerning a thing, i.e., a tangible object. Such an assumption, although made by Leake and by many others who have given little or no attention to fundamental legal conceptions, is clearly erroneous.
That is, to Hohfeld the word "thing" can only mean "tangible thing." This seems at first blush to contradict his and Vandevelde's contention that Blackstone was wrong to divide hereditaments between the corporeal and the incorporeal because they are in fact all incorporeal. I believe, however, that these passages are merely confusing, not contradictory.
Hohfeld tries to identify the minimum distinguishable elements of property rights. He argues that Blackstone's insistence on distinguishing between tangible and intangible property—that is, hereditaments—is not only unnecessary or irrelevant to scrutiny at the atomic level but actually pernicious insofar as it complicates the analysis. Hohfeld also tries to wean lawyers away from positive masculine phallic metaphor for property as sensuous grasp. As I have argued, the attempt to locate the elements of property through the use of a tangible archetype must be ultimately unsuccessful in that it requires the use of legal fictions that intangible objects constructively have characteristics that they could not possibly have. I also agree that not only in colloquial speech but also in judicial opinions and jurisprudential discussions, many lawyers conflate the word "thing" with physicality, despite a long intellectual history to the contrary.
It does not follow from any of this that property relations between subjects do not relate to an external object.
Subjectivity, Objectivity, Intersubjectivity
The word "objectivity" has many different meanings. I have so far generally used it in the sense I have elsewhere termed "Philosophical Objectivity"—that is, the relationship of subjects (conscious legal actors) with respect to objects (everything else). Another way of defining objectivity is to contrast it with its negative of subjectivity conceived as the viewpoint of a single individual subject; I term this "Individualistic Subjectivity." Consequently, what I have named "Community Objectivity" refers to the intersubjective agreement of a community of subjects. My earlier suggestion that the Hegelian element of possession might better be termed "objectification" reflects the
concepts of both Philosophical Objectivity and Community Objectivity. Possession is objective in that it is the way the abstract subject takes on individuating characteristics by investing its will into objects. It is Community Objective in that in order to serve property's function of recognition, possession must also include the exclusion of others in a way that is recognizable by the relevant community.
Hohfeld himself instinctively recognizes the need to identify an objective aspect of property or in rem rights to contrast with the subjective aspect of contract or in personam rights. To Hohfeld, in personam rights are rights that are Individualistically Subjectively enforceable. In Hohfeld's terminology:
A paucital right, or claim (right in personam ), is either a unique right residing in a person (or group of persons) and availing against a single person (or single group of persons); or else it is one of a few fundamentally similar, yet separate, rights availing respectively against a few definite persons.
Conversely, in rem rights are rights that are Community Objectively enforceable: "A multital right, or claim (right in rem ), is always one of a large class of fundamentally similar yet separate rights, actual and potential, residing in a single person (or single group of persons) but availing respectively against persons constituting a very large and indefinite class of people." In other words, a contract right is in personam because in most cases I can only enforce the contract against the specific person or persons who are parties to the contract. My property right in my apartment is in rem because I have the right to exclude not only specific persons from my apartment but the "whole world."
Notice that despite his denial, Hohfeld has come full circle to Blackstone's definition of property—a right is a property if it is dominion claimed and enforceable against the world . In explicating his theory of multital rights, Hohfeld by illustration tries to show that they do not all necessarily involve a thing. He lists five categories of multital rights:
1. Multital rights, or claims, relating to a definite tangible object . . . . 2. Multital rights (or claims) relating neither to definite tangible object nor to (tangible) person [such as patentee's rights] . . . ; 3. Multital rights, or claims, relating to the holder's own person [in the sense of one's body] . . . ;
4. Multital rights residing in a given person and relating to another person, e.g., the right of a father that his daughter shall not be seduced, or the right of a husband that harm shall not be inflicted on his wife so as to deprive him of her company and assistance; 5. Multital rights, or claims, not relating directly to either a (tangible) person or a tangible object, e.g., a person's right that another shall not publish a libel of him, or a person's right that another shall not publish his picture,—the so-called "right of privacy" existing in some states, but not in all.
On one level, one could try to argue that all of these are examples of rights with respect to things if anything external to the abstract subject (self-consciousness as free will) can potentially serve as the object of property. This includes our bodies (Hohfeld's third example), other persons (Hohfeld's fourth example), and our talents, qualities, and reputation (Hohfeld's fifth example). But even for Hegel, this is only true at the level of Abstract Right and may not be the case in the more developed realms of human relations: morality and ethical life. Moreover, even at the level of Abstract Right, Hegel argues that it is incorrect to analyze our relations to objects that become part of a person's personality in terms of property. Those objects of personality which are necessary for recognizability (the logical goal of property) should be inalienable—that is, not fully subject to the property regime. To Hegel, Hohfeld's fourth category—rights over other persons—cannot be properly analyzed as property because persons are capable of subjectivity and, therefore, cannot rightfully be treated as the objects of property. Similarly, Hohfeld's fifth category—reputation—may or may not come within Hegel's category of objects which become so internalized as personality that they should be inalienable.
In any event, whatever its philosophical integrity, I think that the characterization of all of Hohfeld's examples of multital rights as property has little specific utility in a discussion of American law. Rather, I would argue that Hohfeld's very examples reveal the weakness of his decision to reject the object. He lumps together legal relations which are fundamentally diverse. It also explains why, despite Hohfeld's influence over legal scholarship, his "paucital-multital" terminology has never been adopted and sounds as awkward today as it no doubt sounded in 1918.
The first two examples Hohfeld gives fall under the generally understood rubric of property law. Both of these relate to objects—tangible and intangible. But the last three examples fall under the generally understood rubrics of tort and civil-rights law, although it is both evocative and con-
sistent with my analysis that Hohfeld sees a man's claim to a woman's sexuality (his fourth example, which includes a father's interest in his daughter's virginity and a husband's in his wife's consortium) as indistinguishable from property. As we have seen, Vandevelde accepts Hohfeld's contention that there is no meaningful distinction at face value between property and other rights good against the world, and he concludes that property analysis has, therefore, lost its meaning. Grey also agrees with the Hohfeldian analysis and suggests that, accordingly, property will lose its inspirational role in political theory. Jennifer Nedelsky concludes from a Hohfeldian analysis that property is a myth that cannot fulfill its constitutional function of serving as the barrier between the private realm of individual freedom and oppression from the state. I would argue to the contrary. The fact that Hohfeld cannot distinguish between property and tort suggests more about the weakness of Hohfeld's analysis than it does about the incoherence of property.
Hohfeld asserts more than argues his conclusion that these traditionally disparate areas of law do not differ from each other. As an empirical matter, American legal discourse recognizes a distinction between property and tort. This distinction is so familiar as to seem natural to most Americans. Hohfeld may be correct that both property and tort differ from contract in that the former two are rights against the world and the latter consists of rights against an individual. It does not follow from this, however, that no relevant distinction exists between the concepts of property and tort. This may be true even if the empirical reality of legal practice in property and tort does not display the sharp lines of the theoretical, analytical distinctions, and even if certain rights are hybrids containing elements of both property and tort. Hohfeld at most points out a common element between property and tort, but two things that share a common element are not necessarily the same. In order to make a convincing case that it is not meaningful to distinguish between rights among persons with respect to an external object and other types of rights enforceable generally against the world, one must identify the perceived difference and the function it serves and then argue why this is misleading or useless.
For example, a significant jurisprudential question concerns whether
Hohfeld's third example of multital rights—one's rights vis-à-vis one's body—should be analyzed in terms of property law, tort law, or otherwise. Much of the Law and Economics analysis of tort law is an attempt to reconceptualize tort law in terms of property and contract doctrines. Those who take this point of view to its logical extreme, including Richard Posner, argue that because we have a property right in our bodies, we should be able to buy and sell our body and body parts, as well as our infants. On the other side of the political spectrum, Radin agrees that we have a property right in our bodies, but she comes to the opposite conclusion as to the permissibility of rights of market alienation. To Radin, although the body may be property, market alienability of female sexuality, in the form of either prostitution or surrogate motherhood, should be restricted as destructive of human flourishing. A neo-Hegelian might agree with Radin's policy recommendations on specific issues such as prostitution, but on the grounds that it is a category mistake to analyze body relations in terms of property relations.
The Reinstatement of "Blackstonian" Property
Now it should be apparent why I said that the Grey-Vandevelde-Hohfeldian ostensible denial of traditional Blackstonian property is, in fact, a reinscription of it. Their "denial" of Blackstone is, in effect, a "super-Blackstonian" approach that insists more firmly on a physical, unitary concept of property than the historical Blackstone ever did.
The Hohfeldian analysis of property does not, in fact, offer an alternate paradigm to the physicalist, phallic paradigm. It accepts the notion that the only possible definition of property is a unitary notion which privileges possession reduced to the sensuous grasping of physical things. Hohfeld, Grey, and Vandevelde believe that their analysis shows that the unitary, physical paradigm does not adequately describe actual jural relations. They observe anomalies that the paradigm does not explain.
As the theory of sophisticated falsifiability reminds us, we cannot as a psychological or logical matter reject a paradigm merely because we find that it is inconsistent with empirical observations. Rather, it remains as the paradigm until a new paradigm is developed. Vandevelde and Hohfeld are left with the existing paradigm in its purest form, without its protective belt, and argue that it is the only paradigm of property. They recognize that those relations we call property always include an expressly intersubjective element (i.e., alienation in the form of exchange) which cannot be comprehended by an impoverished conception of property as sensuous grasp. Because this paradigm does not accurately describe our empirical legal world, they conclude that no examples of property in fact exist. The definition of property remains, but examples of property form a null set. The old paradigm remains, but it is declared moribund.
Unfortunately for this approach, property as an economic and legal practice continues to flourish. Property concepts have not come crashing down in the face of this arid and acontextual legal argument. As J.E. Penner has so succinctly put it in a recent article, the dominant bundle-of-sticks paradigm championed by Grey "is really no explanatory model at all, but represents the absence of one." The Hohfeldian approach refuses to analyze contemporary property qua property on the grounds that property is dead as an analytical category. The marketplace, however, has proved indifferent to this development.
The Supposed Disaggregation of Property in Constitutional and Private Law
In addition to their analytic argument as to why property should die, Grey and Vandevelde also make an empirical claim that property is in fact in the process of disintegrating. This is based in large part on a consideration of constitutional law
and, to a lesser extent, on the history of twentieth-century commercial-law reform.
Physicality and the Federalists
In addition to Blackstone, Grey describes the Framers of the U.S. Constitution as holding the so-called traditionalist-lay conception of property as "thing ownership." This relates to Grey's implicit political agenda. He fears that oversolicitousness toward the Takings Clause of the Constitution may hinder progressive legislation. He hopes that, once the definition of property is shown to be meaningless or, at least, unworkable in our modern economy, even originalist Supreme Court Justices will have to adopt an alternate interpretation of the Fifth Amendment more amenable to liberal political goals.
Unfortunately, even a cursory analysis of the theories of the Framers suggests that the vision of property reflected in the language of the Constitution is far more sophisticated than the crude view attributed to them by Grey. Moreover, Grey's proposed disaggregated "bundle of sticks" concept of property, which covertly reinstates the phallic metaphor, actually could lead to a stricter, less progressive reading of the Constitution.
The Objects of Property
In her illuminating book Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy , Jennifer Nedelsky parses the writings of the Federalists in order to explicate their theory of property and the fundamental role it played in their notion of political freedom. She emphasizes, as Grey does, that for the most part, the Federalists thought the concept of property was so self-evident that it did not need defining. Nevertheless, the examples they used of the potential oppression of property rights by an unjust political system provide strong evidence that their concept of property was not limited to the physical thing–sensuous grasping model Grey posits. They spoke of property rights not only in connection with land and the means of production—stock-in-trade, manufacturing plants, and so on—as one would expect in a thing-holding regime. They also spoke of property in moneylending and investment. They were not only concerned with the state's wresting of physical things from their owners' grasp. They were also concerned with more subtle "takings" that destroyed the value of intangible property such as inflationary monetary policies, the
printing of paper money, and bankruptcy legislation. That is, they feared government interference with the rights of enjoyment and alienation as well as possession.
My colleague, John O. McGinnis, who explores the natural-law aspects of the Framers' political theory, goes even further. According to McGinnis, both the Federalists and the anti-Federalists recognized property as the natural right of man. Related to this is the fact that other essential rights necessary for human liberty were justified precisely because they were forms of property rights. For example, James Madison argued for the freedoms of speech and religion on the express ground that each man has a natural property in "his opinions and the free communication of them" and in "the free use of his faculties and free choice of the objects on which to employ them."
In other words, although the Framers of the Constitution were not Hegelians, their writings clearly reflect the Western philosophical tradition which does not limit the potential objects of property to physical objects or property relations to the satisfaction of physical, or real, needs. Rather, the objects of property include everything other than the self. In the words of John Lilly, an eighteenth-century popularizer of Locke, "Every Man . . . hath a Property and Right which the Law allows him to defend his Life, Liberty, and Estate. . . ." And property relations are necessary in order for humans to constitute themselves as subjects who can seek to actualize their freedom. In other words, property relates to all that is proper to mankind.
Conceptual Severance, or "Rights Chopping."
The problem that Grey and Vandevelde may really see is not that the disaggregation of property is
killing property but that it is giving property new life. Disaggregated property, like the dismembered god Osiris, threatens to fill the world with its power.
As other left-leaning critics have lamented, the trend under the Rehnquist Court has not been toward the withering or even the diminution of the traditional view of property—the exclusive rights to possess, enjoy, and alienate objects—but toward its strengthening . Moreover, this trend has been abetted, not hindered, by the disaggregation of property.
Margaret Radin has identified a tendency of certain Justices to find that any governmental interference with any one of the many disaggregated rights associated with property may be a "taking." This approach, which Radin critiques under the awkward name "conceptual severance,"
consists of delineating a property interest consisting of just what the government action has removed from the owner, and then asserting that that particular whole thing has been permanently taken. Thus, this strategy hypothetically or conceptually "severs" from the whole bundle of rights just those strands that are interfered with by the regulation, and then hypothetically or conceptually construes those strands in the aggregate as a separate whole thing.
Believing that short and common Anglo-Saxon words are better than complicated heptasyllabic, Latinate neologisms, I accept a suggestion made by Frank Michelman and call this process "rights chopping." Radin condemns this approach as incorporating a conservative political and jurisprudential philosophy. It puts governmental regulation she deems progressive at risk of being invalidated as unconstitutional under the Takings Clause—precisely the harm which Grey wished to avoid. If one recognizes for constitutional-law purposes that property consists of a bun-
dle of severable sticks, it is "an easy slippery slope" to the conclusion that "every regulation of any portion of an owner's 'bundle of sticks' is a taking of the whole of that particular portion considered separately."
Implicitly, she criticizes the Court precisely for adopting a bundle-of-sticks analysis in lieu of a unitary notion of property. In other words, Grey argues that Hohfeld's revelation that property rights are severable and indistinguishable from other legal rights meant that property does not exist. If property is everything, then property is nothing. Radin shows how a libertarian can come to the opposite conclusion. Consequently, as I shall discuss in chapter 3, she rejects the Hohfeldian intersubjective account of property in favor of a radically objective account. I shall return to, and partially defend, rights chopping as inevitable from both an empirical and logical standpoint in chapter 4.
Property as the Public-Private Distinction
Grey and other property critics may feel the need to adopt such sharp, either-or, clear, visible, and absolute distinctions between property and nonproperty because they analyze property primarily for the instrumental purposes of public law. It is traditional in legal political and jurisprudential theory to view property as one of the barriers between the individual and the state. In chapter 4, I will argue that the necessity of rights chopping means that it is logically impossible for the institution of property to serve the barrier function assigned to it by the Founders. Nevertheless, the fact that property cannot serve this political function carries no necessary implication for the continued validity of property notions generally.
Most property relations, however, take place in the context of so-called private law—commercial and real-property transactions between legal actors. In the fluid and intersubjective world of the market, fluid and intersubjective notions of property arguably function more, not less, adequately than rigid and absolutist notions. That is probably why they have developed. Thus, one of the problems with contemporary property scholarship may be precisely that we still try to use one concept—property—for at least two very different functions: first, to allow legal actors to re-
late with each other as subjects in the marketplace, and second, to serve as the line between the public and the private. Whether or not property ever successfully fulfilled this dual function in the past, it may no longer be able to do so if the market moment of property requires fluidity and the political moment of property requires rigidity.
In arguing that property law never could bear the full weight of serving as the constitutional public-private boundary between citizen and state, Grey makes another brief, but clever, argument. Grey tries to claim that property died for commercial law purposes and, therefore, is doubly dead for constitutional-law purposes. Property's murder in private law was supposedly the work of the legal realists.
In the next section I shall show that Grey's claim that the legal realists' "bundle of sticks" imagery challenges the phallic metaphor of property as thing ownership is simply incorrect. In fact, the greatest monument to legal realism, the Uniform Commercial Code, adopts an ultraphysicalist, phallic, unitary paradigm of property that out-Blackstones Blackstone.
Musings on the Myth That the Uniform Commercial Code Disaggregated and Killed Property
The Gates of Ivory and Horn
Circumspect Penelope said to him in answer: "My friend, dreams are things hard to interpret, hopeless to puzzle out, and people find that not all of them end in anything. There are two gates through which the insubstantial dreams issue. One pair of gates is made of horn, and one of ivory. Those of the dreams which issue through the gate of sawn ivory, these are deceptive dreams, their message is never accomplished. But those that come into the open through the gates of the polished horn accomplish the truth for any mortal who sees them."
Private-law doctrinalists, like public-law theorists, tell a myth about the death of property. Grey asserts that these myths are fundamentally the same. They both speak of an evil demon worshiped by our ancestors—unitary physical property—and slain by academic demigods who then bring about a new age of truth and justice. Grey seeks to convince us that the concept of property should fade away in constitutional discourse because it has already been killed off in private-
law doctrine. I agree that there are similarities between the two myths but believe that they convey different messages. The account of the death of property turns out to be mythic in the pejorative sense of illusory and misleading. Private law only claims to have killed off unitary physicalist property. The murder of the Phallic god is always the prelude to his resurrection.
The creation myth, or "just-so" story, of commercial law doctrine tells how in ancient times our benighted legal ancestors worshiped a metaphysical concept known as "Title." The lionlike Llewellyn and his fellow legal realists fulfilled the prophecies of Hohfeld by killing "Title." They shattered or disaggregated it into a bundle of sticks. Their deeds are enshrined in their holy book—the Uniform Commercial Code.
Specifically, the code drafters declared that the different legal questions
supposedly answered by "Title" analysis were just that—different legal questions. These differences had been obscured by the fact that the single term "Title" was used as shorthand for a bundle of separate rights. Common lawyers were idealists who assumed that unity of terminology reflected a unitary essence. The legal realists were nominalists who sought to examine the reality of practice that words obscured. Title, they declared, was a chimera, initially frightening until one realizes that it is an illusion or, in the words of Llewellyn, an "intangible something."
According to Homer, the faithful Penelope learned the hard way that one should not place one's trust in dreams. Those myths (the collective dreams of a people) that originate at the gate of horn present a simplified and idealized image of those ideals which give structure and meaning to a culture. They can, therefore, claim a truth which is beyond literal empirical fact. Most myths, however, come through the gates of ivory and are mere fairy tales, delusions, or outright lies.
A cursory examination may lead one to believe that the U.C.C. creation myth is horny in the Homeric sense. It seems to be an accurate, albeit simplified, account of trends in twentieth-century commercial law. I shall show, however, that the myth of the bundle of sticks is, in fact, merely a lovely, but deceptive, ivory dream. The analysis that the U.C.C. killed or even weakened property is, in fact, a classic "academic" argument, in the pejorative sense of that term. It concentrates on the aesthetics of Hohfeld's admittedly elegant taxonomy and ignores the economic, social, legal, and political practice of property, as well as the language of the U.C.C. itself, and the writings of its chief reporter, Llewellyn.
Practical Men and Their Tangible Things
The purpose is to avoid making practical issues between practical men turn upon the location of an intangible something, the passing of which no man can prove by evidence and to substitute for such abstractions proof of words and actions of a tangible character.
A revisionist view of this history is both less and potentially more earthshaking than the bundle-of-sticks myth. The U.C.C. neither abandoned nor disaggregated property. The U.C.C.'s drafters did
try to deny title or wish it away, but they also enacted a property concept containing a unity of certain minimal rights. Moreover, and most significantly for the present purposes, the drafters did not even try to replace the common-law phallic paradigm, which identified property with sensuous grasping of physical things. They embraced it wholeheartedly. The U.C.C. represses title, and what is repressed in the symbolic always returns in the real.
As the quotation at the head of this section indicates, the legal realists rejected the common-law terminology of "Title" not because it was unitary or objective but precisely because it was insufficiently tangible . These self-proclaimed "practical men" found elusive, feminine intangibility to be seductive, but also dangerous because elusive. Intangibility is metaphysical and flaccid. They longed for that determinate masculine firmness which is so hard to achieve and so easy to lose. They demanded that not only goods but also acts and words must become tangible. In the legal imaginary of the U.C.C., not only property but the entire symbolic realm of law must be collapsed into the real. Like Odysseus, the drafters heard the Sirens' song, but in order to prevent their own destruction, they bound themselves to the mast of tangibility—binding themselves like a bundle of sticks, turning themselves into fasces. The realists turn out to have been "real-ists."
Thus, on the one hand, my analysis suggests that, rather than a radical escape from the past, the U.C.C. can be seen as a reactionary embrace of its most simplistic, physicalist aspects. As in public law, the adoption of the bundle-of-sticks metaphor in private law is not a challenge to, but a strengthening of, the masculine phallic property paradigm.
Article 2 as Text
Evidence for the Disaggregation of Property
To determine whether either the U.C.C. or contemporary commercial legal practice actually adopts such a disaggregated concept of property, we must look at the
language of the U.C.C. itself. The strongest argument for the supposed rejection of title is contained in the opening sentence of U.C.C. § 2-401:
Each provision of this Article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title.
This ostensible denial of title and freedom of contract also seems to be reflected in the first subsection of U.C.C. § 2-401, which reads in relevant part:
Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest.
One might also find evidence of the rejection of traditional notions of "Title" and the disaggregation of property in several of the substantive provisions of Article 2. Consistent with the language of U.C.C. § 2-401, the location of title is irrelevant to the risk-of-loss rules of U.C.C. §§ 2-509 and 2-510 and the good-faith-purchaser rules of U.C.C. § 2-403.
And yet the rest of Part 4 of Article 2, including U.C.C. § 2-401, consists of conveyancing rules which govern when title passes, and when title is "good" or "voidable." Indeed, U.C.C. § 2-106(1) defines "sale"—the very subject matter of Article 2—as "the passing of title from the seller to the buyer for a price" even as it cross-references U.C.C. § 2-401—the U.C.C.'s famous denial of title.
What is going on here? Is property a secret mistress which commercial law publicly repudiates, yet privately embraces?
"[s]ecurity interest" means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (Section 2-401) is limited in effect to a reservation of a "security interest."
Article 2's Clandestine Affair with Title
A legal-realist statute is supposed to reflect actual practices rather than legal abstractions. The institution of private property is the sun about which our capitalistic solar system revolves. It would be shocking indeed if the primary legal-realist artifact—the Uniform Commercial Code—denied property on the grounds of any supposed theoretical incoherence.
Just as bumblebees continue to fly in derogation of aerodynamic theory, the continued viability of private property is strong evidence that the so-called Hohfeldian attempt to describe property was not a successful new "revolutionary" paradigm of property but merely another failed attempt to add auxiliaries to the existing degenerating paradigm. Or more accurately, truth is, if not stranger, then more complex, than fiction.
Llewellyn and his fellow code drafters were tremendously influenced by Hohfeld's work. But the myth of the death of property fails to reflect that Hohfeld's project had two distinct and separable parts which I discussed in the immediately preceding section of this chapter. Llewellyn and the realists adopted the better-known part of Hohfeld's project: his taxonomy of jural conceptions or lowest common denominators of legal rights. However, Llewellyn expressly rejected his other part discussed at length in that section: the definition of property without an object. The U.C.C. reflects the traditional "Blackstonian" conceptualization of property as a legal relation among subjects with respect to objects.
First and foremost, U.C.C. Article 2, which governs sales of goods, cannot reject property because the very nature of a sale presupposes property rights in a good. Nor can it reject the traditional concept of property as rights with respect to an object because sales transactions, by definition, involve a specific class of objects known as "goods." The conveyance of property in specified goods is the raison d'être of sales. A sales transaction is based on the proposition that the seller has some valuable rights in an identifiable good which can be conveyed to a buyer. Unless the prior claimant (i.e., the seller) has an enforceable right of possession (i.e., exclusion) in the good, the subsequent claimant (i.e., the buyer) does not have to buy the good; she could just try to take it. Moreover, a buyer will have little reason to give value to buy a good unless she can be assured that she will obtain security of possession. To induce a buyer to pay for a good, she must obtain the right of enjoyment—i.e., the right to consume, collect, or otherwise use the good. Finally, it is obvious
that unless the seller has the power of alienation, the sale cannot occur.
The Wit and Wisdom of Karl Llewellyn
Despite this, some of Llewellyn's most stinging vituperatives are launched at title concepts in sales law. Sometimes he railed against "the property"—the British equivalent of the American term "title." He described the drafters of Article 2 (of which he was the most prominent) as having "deemed it imperative to abandon title as the focal point of a sales contract. . . . " But by attacking "title" Llewellyn was not attempting to attack or disaggregate "property" per se. And the fact that Llewellyn referred to that package of "Hohfeldian desirabilities [which] we know together as 'property in specific goods'" does not imply that he believed that property was a random bundle of Hohfeldian sticks. Rather, Llewellyn was trying to rescue property from distortions caused by a specific common-law doctrine known as "Title." For clarity, I shall capitalize the word "Title" when referring to the grandiose common-law sense, to distinguish it from the more modest or "cheerful" use adopted in the U.C.C. In addition, Llewellyn intuitively understood the necessity of distinguishing between the elements of possession (identification of object to subject) and exchange (conveyance).
Llewellyn had two closely related critiques of the common law of "Title." First, by analyzing substantially all sales issues through the loca-
tion of "Title," the common law had inappropriately allowed contract to be subsumed into property. Second, "Title" analysis reflected an obsolete paradigm of the sales transaction—a premodern agricultural model of a sale as an event , as opposed to a modern mercantile model of a sale as a process . Llewellyn also had a third, implicit, critique of the common law. He thought that "Title" was too obviously symbolic, and not sufficiently physical or real.
Differentiating Property from Contract
In Llewellyn's words, "Title-thinking [is] Sales law viewed as property law. . . . " In contradistinction, he characterized his analytical approach as being rooted "in the proposition that the modern law of Sale is a law of contract for future delivery; that the present sale plays little part today in litigation; and that most problems commonly dealt with under the heading of 'title' are obscured rather than clarified by that dealing."
In other words, although sales, by definition, involve the conveyance of property, modern mercantile transactions cannot be reduced to conveyancing. There are aspects of sales relations which are purely contractual in nature—such as terms relating to production specifications, requirements, warranties, credit, transportation, storage, and so on. They should, therefore, be left to the general principle of freedom of contract.
Unfortunately, according to Llewellyn, the common law tended to assume that all legal issues relating to sales were property issues and that all property rights could be reduced to possession. This is why he entitled one of his critiques Through Title to Contract and a Bit Beyond and began it with the reminder that "[t]he law of Sales, as is well known, is in one
phase part of the law of contract, in another phase part of the law of property." The common law of sales repressed contract and subordinated the contract aspects of sales to the property aspect.
The approach of prevailing Sales doctrine . . . is this: Unless cogent reason be shown to the contrary, the location of Title will govern every point which it can be made to govern.
In other words, Llewellyn denied neither the coherence or unity of the concept of property, generally, nor the property aspects of sales, specifically. But he condemned common-law property analysis for making the grave category mistake of trying to analyze contract issues in terms of property principles. He hoped that he could avoid this error by concentrating on the contract aspects of sales and deemphasizing the property aspects and by developing new language for the analysis of sales.
The Common-Law Sales Paradigm.
(1) Horsing Around with Karl
Anyway . . . after much screaming and yelling and horsing around, . . . we had a Uniform Revised Sales Act.
Llewellyn's other related critique of the common law of sales was that it did not and could not deal with modern commercial transactions because its underlying imagery was obsolete. According to Llewellyn, the legal analyst is informed by "his problems, his illustrations, the tacit and often unconscious fact-pictures against which he tests the meaning and bearing of words, the whole stock of implicit orientations to solution which are the life of active work with law. . . ." For there to be a significant change in the law it is necessary for "the facts and their connotations of practice, need and context [to be] effectively iterative, cumulated without interruption, . . . so clustered as to become moderately familiar to the run of relevant lawyers." This is because "[o]ur fields of law, our patterns of legal thinking, our legal concepts, have grown up each one around some 'type' of occurrence or transaction, felt as a typical something, seen in due course as a legally significant type, and, as a type-picture, made a standard and a norm for judging."
To translate Llewellyn's point into Kuhnian-Lakotosian language, Llewellyn thought that law is governed by specific, implicit images of the typical transaction which are shared by the legal community—a paradigm. Under the theory of sophisticated falsification as developed by Imre Lakatos, paradigm shifts do not occur merely because the community observes inconsistent empirical evidence which falsifies the original hypothesis. Rather, the community formulates an "auxiliary" hy-
pothesis to explain away the apparent anomaly. Paradigms eventually degenerate when they become so encrusted with "protective belts" of auxiliaries that they begin to explain less and less as more and more empirical evidence is explained away as exceptions which prove the rule. Although degenerative paradigms are ripe to be overthrown, this cannot occur until a revolutionary paradigm is devised.
Llewellyn posits that significant changes in the law only occur when a new image (paradigm) of the typical transaction becomes dominant in the profession. The early-twentieth-century paradigm of sales was what Llewellyn called a "farmer's transaction."
In the traditional agrarian economy, an individual seller sells a readily identifiable and unique good to an individual buyer whom he already knows, in an isolated face-to-face cash transaction, probably for the buyer's personal consumption or use. The quintessential "good" in this picture was a horse.
In this archetypical sale of a horse between farmers, property rules are very simple. Old MacDonald and Mr. Greenjeans know each other and have a basis to make a judgment on their relative honesty and creditworthiness. MacDonald shows Dobbin to Greenjeans. Greenjeans has ample opportunity to look the horse in the mouth at the MacDonald farm or at a public market established for this purpose and, therefore, has no need for MacDonald to warrant Dobbin's qualities. If Greenjeans decides to buy Dobbin, he will hand cash to MacDonald. MacDonald will take the cash and hand the reins over to Greenjeans, who will then ride Dobbin home. The contract and the conveyance happen simultaneously. The time of the sale and the time of the passing of "Title" are clear. MacDonald had all rights in Dobbin until Greenjeans paid the purchase price, and
Greenjeans had all rights thereafter. Risk of casualty loss was also perfectly correlated with the sale and therefore seemed to be a function of "Title." If Dobbin was killed in a barn burning the night before the sale, that was MacDonald's problem. If Dobbin fell and broke his leg when Greenjeans rode him home, it was Greenjeans's loss. In the life of a farmer, a sale is an event.
The agricultural imagery of "Title" analysis reflects the solid physical metaphor which imagines that archetypical property relationship is possession reduced to the sensuous grasp of a solid, physical thing. The correlative imagery of a conveyance or transfer of property is the handing over of a solid object from one person to another, such as the passing of a baton from runner to runner in a relay race or the passing of the reins of a horse from farmer to farmer. Such a transfer of a solid thing takes place instantaneously. Accordingly, this imagery reflects the longing for the real. The real is the collapse of all castrating distinctions of time and space into an ideal, immediate uterine unity. The real is, therefore, an event, not a process.
Although this imagery conflates the property right in the thing with the thing-in-itself, this theoretical confusion arguably causes few practical problems in an agricultural economy where most property transactions in fact concerned tangible objects such as horses, when all property interests in the object tended to reside in the person who had actual physical custody of the object, and where conveyances of property tended to be accomplished through transfer of physical custody of the tangible objects.
This premodern agricultural imagery is poorly suited to the commercial reality of twentieth-century mercantilism. Llewellyn was not im-
plying that the common law was totally blind to the mercantile nature of many sales. His point was that the common law continued to treat the agricultural transaction as the norm upon which exceptional mercantile rules were layered—that is, a protective belt of auxiliary merchant rules was added to the basic agricultural paradigm. In Llewellyn's metaphoric words:
The mercantile rules of law—and they are solid—which I have been describing make their way through this like ivy through a wall, live, growing, spreading, finding cranny after cranny. But the wall is still there, it is still in the way.
The Process of Mercantile Sales
The agricultural imagery sees sale as an event—a single, definitive, unique moment of time at which all aspects of the transfer of "Title" occur. In contradistinction, mercantile imagery sees sale as the process by which ownership rights are conveyed and other legal rights and obligations are created. It concentrates on exchange—the process by which possession changes. Unlike an event, which occurs instantaneously and, therefore, "in no time at all," a process takes place in time. The legal issues which arise during a mercantile sale involve how this process works over time. The agricultural paradigm is inadequate precisely because it does not include a concept of time. The agricultural paradigm is real, but legal relations are symbolic.
This does not mean property or "Title" analysis is always useless in mercantile paradigm. One can successfully use a paradigm which lacks an account of time to analyze those static legal issues which do not take place over time. But applying common-law "Title" analysis to the property issues which arise during a sale begs the question by assuming that the ongoing process to be analyzed—the passing of property—has already been completed: title has passed. A sale is the temporary disruption of "Title."
The precise situation to which "the property" is the key is not suited to the situation of commerce-in-action, the situation in which "the property" is not static but in motion, not in one fist, but in the spread interlocked fingers of at least two different hands; not lumped and obvious with its history a firm key to its location, but scattered and divided, with its history showing only where it is not to be at the end.
To give an analogy, suppose I, who live in New York City, wished to visit my in-laws in Irvine, California. Until we invent a teletransporter like the one in Star Trek , this trip will not be an event but a process that can take hours or even days, depending on the mode of transportation. If we were to analyze my trip in terms of "Title" concepts which analyze changes as instantaneous events, we would declare that I was either "in New York" or "in California" when certain conditions were met. If, for example, this were analogized as an FOB point of shipment contract, then I would "leave" New York, and "arrive" in California, when I had hailed the cab to the airport. This proposition is so intuitively ludicrous that it is virtually incomprehensible. Obviously, during the trip one can speak meaningfully of my speed, my direction, my estimated time of arrival, and my relative position with respect to my home and my destination. But it is nonsense to say that I am at either location during my journey. Nevertheless, it does roughly describe the problems with the law of "Title" in
the sense of an instantaneous moment in which all rights in property are deemed transferred.
Notice that the obverse side of this is that before and after my journey it is meaningful for me to speak of being in New York or in California. And so, before and after a sales transaction it remains meaningful to speak of one party or another as having "title" in (i.e., in the sense of ownership of) the good. As I shall discuss in the last chapter of this book, in the context of the Takings Clause of the U.S. Constitution the fact that the change from being the owner to not being the owner (when viewed from the position of the seller), or from not being the owner to being the owner (when viewed from the position of the buyer), is gradual does not in itself mean that the concept of property or ownership is incoherent. Rather, in Hegelian terms, having and not having ownership are qualitatively different. Having more and having fewer indices of ownership, however, are quantitatively different. Changes in quantity eventually become changes in quality through sublation. As we shall see, the pragmatic problem for the lawyer and the judge is that it is logically impossible for there to be an exact point at which this change happens.
Llewellyn and Hohfeld
Llewellyn frequently used Hohfeld's taxonomy of jural conceptions as an analytic tool. A Hohfeldian analysis can be used to show that traditional "Title" analysis is backward. The common law purported first to locate property and then to allocate its constituent rights. But this is impossible if (as Hohfeld suggested) property can only be identified as the sum of its constituent rights. This means that one must first locate those rights which constitute property, and only when one has assigned all of these to one party can one then identify "title"
or ownership (i.e., as the sum of these rights). The implications for sales law is that one can, therefore, locate "title" (ownership) in the seller before the sale, and "title" (ownership) in the buyer after the sale, but it is meaningless to speak of the location of "Title" during the sales process.
But, although Llewellyn was influenced by Hohfeld's taxonomy, he rejected the other half of Hohfeld's analysis which held that property, as a legal relation between subjects, does not also require an external object or res which is the subject of these relations. Llewellyn is clear that property relations are "with respect to a particular thing." He maintained that
[p]roperty rights in non-existing goods are either impossible, or of no importance as long as the goods in question remain non-existent. The problem becomes a real one only when, following yesterday's apparent attempt to create property in non-existing goods, the goods today come into existence and become a subject of dispute.
Llewellyn's analysis is enshrined in Article 2, which provides that
[g]oods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein, operates as a contract to sell.
In other words, an agreement which purports to transfer goods not yet owned by the seller is a mere contract relationship, and cannot operate as a present conveyance of a property interest until the parties identify a specific res to serve as the object of the relationship. Consequently, contrary to Thomas Grey's analysis, property remains a distinct, distinguishable legal category under the U.C.C.
Conditional Sales and Risk of Loss
Let us look more closely at two supposed examples of the abandonment of title and the disaggregation of property in Article 2 of the U.C.C.—the treatment of conditional sales and risk of loss.
Conditional Sales as Substance over Form
U.C.C. § 2-401(2) states, in effect, that even if a seller and buyer expressly agree that the passage of title in a good which is sold on credit is conditioned upon the buyer's payment in full of the purchase price, the U.C.C will treat the transaction as though title vested in the good to the buyer immediately. The seller will only have a purchase money security interest in the good, subject to the perfection and other requirements of Article 9. This can be read, at first blush, as not merely a rejection or disaggregation of "Title" analysis but an abrogation of freedom of contract. These impressions are inaccurate.
U.C.C. § 2-401(2) can only be understood in context. U.C.C. § 9-102(1)(a) provides that Article 9 applies "to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures. . . ." U.C.C. § 2-401(2) is not, therefore, a rejection of property or freedom of contract per se but merely a restatement of the general U.C.C principle that substance should prevail over form. A selfserving statement as to the location of "Title" standing alone should not necessarily determine all property-related issues for all commercial-law purposes. This is a corollary to the proposition which I discussed in section II.B of this chapter that conveyances of property, which affect third-party rights, should be "objectively" recognizable and verifiable by third parties. Among themselves (i.e., contract), the two parties may characterize their relationship according to their private, subjective, idiosyncratic will. But if they wish to bind third parties (property), their actions must be public, objective, and recognized by the community. In other words, if possession (title) must be objectified and if exchange (conveyancing) is the process by which possession is altered, the contract of conveyance should also have a Community Objective aspect.
In contradistinction, common-law "Title" doctrine raised form over substance. The (subjective) declaration of the location of "Title" determined property issues despite, not because of, the allocation of the (objective) substantive rights constituting property. Llewellyn called such
declarations of the form of "Title" over the substance of property "paper thunderings."
Formal declarations of "Title" become even more troublesome when one examines the substance of the typical mercantile transaction. During the sales process, "Title" (understood as the totality of all incidences of property) by definition cannot be definitively located because it is a moving target. It cannot, therefore, be fixed through the subjective intent of the contracting parties. This was precisely Llewellyn's criticism of the common law of conditional sales in which
the papers . . . make clear that it is not to be a sale, that "property" is not to pass. Something is to pass: The "buyer" is to get possession, and privileges of user, and come under a solid debt for the price; but "property" he is not to get.
In other words, in a so-called conditional sale the transferee has conditionally acquired significant elements of ownership—the right to immediate physical possession and use. Although the transferee in these transactions may not immediately have the third traditional right of alienation, it is anticipated that she will obtain this right as well upon the payment of the purchase price. Indeed, even when the further alienation of the entire property interest in the collateral by the buyer-debtor is wrongful under the terms of the contract, the debtor always has the power to convey her equity in the collateral.
The seller–secured party also has some property rights in the good. In section II.B of this chapter I discussed how a secured party has rights to repossess the good, and to alienate it in a foreclosure sale or to use it through collection or, less often, in strict foreclosure. Since buyer and seller can both be said to have some form of property rights in a conditionally
sold good, we cannot say that either party owns the good free and clear—that is, full "Title." Nevertheless, in our legal system, when property rights are divided, we customarily say one party "owns" the property, subject to the rights of the other party. Consequently, we need to make a pragmatic decision as to which of the parties—the conditional seller or the buyer—will be called the "owner."
If property should be "objective," then all transactions structured in the same way should be given the same legal treatment. The drafters of the U.C.C. made a pragmatic decision that the division of the significant incidences of property in a conditional sale is substantially identical with the division in a hypothecation. We are accustomed to call the debtor's present rights in a hypothecation "ownership." These rights consist of the residual value in the collateral after payment of the secured transaction. As a buyer in a conditional sale similarly acquires the residual upon payment of the purchase price, it seems consistent also to call the conditional buyer the "owner."
In contradistinction, the common law allowed the private, subjective intent or opinion of the contracting parties to override the public, objective analysis of the transaction—that is, form governed over substance.
This is inconsistent with the competing common-law doctrine of ostensible ownership—property interests which are not open and notorious are constructively fraudulent against creditors.
In other words, the concept of location of "Title" as a matter of subjective intent is inadequate in theory and practice to the lengthy processes of mercantile sales which require property to be determinable by objective evidence. Accordingly, Llewellyn described Article 2's treatment of title as follows:
[A]n objectively manifested act becomes the title-passing point without regard to the intention of the parties to pass or retain title. Such intention is controlling under present law.
This is why U.C.C. § 2-401 provides that the objective rules of Articles 2 and 9 apply despite subjective declarations of the location of "Title" to the contrary.
Risk of Loss and the Movement of the Indicia of Ownership
The risk-of-loss rules of Article 2 are another familiar example of the supposed disaggregation of property. Risk of loss is not one of the three traditional elements of property—unless one masochistically believes risk to be the dark side of enjoyment. Nevertheless, it has traditionally been considered closely related to property because it deals with certain obligations of contract parties with respect to specific objects of property. In the great majority of cases, simple unitary property concepts (i.e., "Title") still determine who bears the loss from casualty to a good—the "owner." This is the farmer's world, where "use and control and possession and risk and power of disposition sit comfortably in the same fist. . . ." In this paradigm, risk of loss passes at the same time as "Title" (in the sense of the totality of ownership) not because risk of loss is related to "Title" per se but because all aspects of the sale—contract as well as conveyance—are consummated simultaneously. What the drafters of Article 2 questioned was whether this simple rule results in an appropriate answer during the ambiguous period when the ownership of the good is itself in flux—during the sales process.
Since the elements of property are dispersed during the sales process, contractual statements of the location of "Title" confuse, rather than aid, the analysis of property issues during the transition period. Recognizing that property is temporarily dispersed places us in the position to ask which, if any, incident of property is related to risk of loss. Llewellyn's analysis reveals that during the pendency of the sales process, risk of loss can always be reduced to a pricing term of the sales contract. The cost of the risk (monetized into the cost of insurance) can either be included in the price quoted by the seller (i.e., the seller bears the risk of loss) or be an additional cost charged to the buyer over and above the purchase price (i.e., the buyer bears the risk of loss). Consequently, risk of loss is not an incident of property (conveyancing) at all. It is just another two-party contract term which does not directly affect third-party rights. Its allocation should, therefore, be governed by the U.C.C.'s general principle of freedom of contract. The U.C.C., therefore, merely needs to set forth "default" rules which apply when a contract is silent.
The Continuing Primacy of Physicality in the U.C.C
Nothing we have seen so far about the supposed disaggregation of property by the U.C.C. has involved a rejection of the traditional identification of property with the physical custody or sensuous grasp of tangible things in favor of an adoption of a Hohfeldian notion of property which does not necessarily require an object of the property rights. Even a brief examination of the conveyancing rules of the U.C.C. will show that its property paradigm continues to be imagined as the real relationship of a person with a physical object, not a symbolic relationship among persons.
The Primacy of Physical Custody
The basic rule of property conveyancing is that upon a transfer of an object of property, the transferee receives only the transferor's interest. Elsewhere, I have referred to this as a "derivation" rule, because the transferee's rights "derive" from the
transferor's. This is, of course, a corollary of the basic property priority rule of "first in time, first in right." It relates both to the very definition of possession (i.e., the rightful claim to ownership with the power to exclude others) and to the liberal concern for autonomy (the first claimant's property rights cannot be abrogated without her private consent).
Nevertheless, there are many instances in which a transferee can acquire greater rights than her transferor possessed and cut off the property claims of a prior owner or other claimant. I refer to these rules which promote the property element of alienation and the liquidity of the market by favoring certain preferred purchasers, as "negotiability" rules. In most American property regimes, the derivation principle is the default rule. In other words, the first-in-time claimant prevails unless the second-in-time can establish the elements of an appropriate negotiation exception. The availability of the negotiation exception is based in large part, either expressly or implicitly, on physical custody of the object of the property right.
This is self-evident in the case of negotiable instruments and negotiable
documents where the intangible claim evidenced by the instrument or document is actually reified into a piece of paper. Consequently the favored claimant who has the right to enforce the rights reified in the paper is actually called the "holder" because she must literally have physical custody of the paper and tender physical custody to the obligor to satisfy the requirements of presentment. These negotiation rules are, obviously, closely related to the doctrine of ostensible ownership discussed at length in section II.B of this chapter which reduced ownership to possession and possession to sensuous grasp.
The Physical Metaphor in the Law of Sales
Privileging physical custody seems intuitive in the case of goods. Goods are tangible. Enjoyment of a good typically requires some form of physical custody. Frequently, the sale takes the form of the delivery of physical custody of the good from the seller to the buyer in exchange for payment—as in Llewellyn's farmer's transaction. Consequently, it might initially seem reasonable to relate claims to goods with physical custody of the good. To do so, however,
risks confusing the property right in the good with the good itself—the imaginary collapse of the symbolic into the real.
More mundanely, it replicates one of the very problems Llewellyn sought to overcome. It implicitly assumes that a sale is an event. To decide a sales issue by reference to the actual contingent physical location of the good itself, Llewellyn complained, is to beg the question because property disputes in sales revolve around precisely who gets the rights in the goods during the time when property is in flux.
The very fact that we distinguish the "void title" of a custodial thief and the "voidable title" of a custodial scoundrel from the "good title" of a noncustodial owner indicates that the concept of rightful possession is significantly different from the contingent fact of actual physical custody.
This distinction can be seen in the conveyancing rules of Article 2. The law of sales reflects the usual regime whereby the derivation is the default rule, and negotiation the exception. An example of a derivation rule is the first sentence of Section 2-403(1), which provides that "a purchaser of goods acquires all title which his transferor had or had power to transfer." There are a number of negotiation exceptions to this rule. Pursuant to the second sentence of Section 2-403(1), a good faith purchaser of goods for value takes good "title from a person with voidable title." Moreover, if one entrusts goods to a merchant in the business of selling goods of that kind, the merchant can sell the goods to a buyer in the ordinary course of business free and clear of the entrustor's claims. Similarly, when a seller (or consignor) delivers goods to a buyer (or consignee) in a transaction which is deemed to be a "sale or return," not only does the buyer-consignee, as an entrustee, have the power to sell the goods free and clear of the seller's interest to a buyer in the ordinary course, but the seller's rights are subject to the rights of the buyer-consignee's creditors.
Article 9 contains a negotiation exception when the first-in-time claimant is a secured party with a perfected security interest in a good, which parallels the negotiation provision of Article 2 governing when the first-in-time claimant is the owner of the good. A buyer in the ordinary
course of goods from a merchant in the business of selling goods of that kind can take free of any perfected or unperfected security interests created by the transferring merchant.
All of these rules are formulated on the assumption that the transferor is physically grasping and handing over a tangible thing. The entrustment rule of Article 2 is expressly dependent on physical holding. Entrustment is defined as "any delivery and any acquiescence in retention of possession." (As mentioned before, the U.C.C. uses the term "possession" not in the Hegelian sense but in the limited sense of physical custody by a party individually or through his agent or bailee.) The other Article 2 negotiation rule, permitting holders of "voidable title" to transfer "good title" to good faith purchasers for value, does not so obviously relate to physical custody. The rules of Article 2 which provide when a consignment shall be treated as a "sale or return" are similarly based on physical custody. They apply only "[w]here goods are delivered to a person
for sale and such person maintains a place of business at which he deals in goods of the kind involved. . . ." Moreover, "goods held on sale or return are subject to such claims (i.e., of the buyer-consignee's creditors) while in the buyer's possession ." Although the provision relating to consignments is a famous example of ambiguous and confusing drafting, I believe that this language envisions that the buyer-consignee have physical custody of the goods and (in the case of true consignments deemed to be a "sale or return") that she actually keep the goods at a specific business premises.
The buyer-in-the-ordinary-course rule of Article 9 obviously parallels the similar rule of Article 2 but does not expressly speak of physical custody. Nevertheless, most commercial lawyers presumed that custody is implicitly required.
This presumption—that the grasper has the power to convey good title—was challenged in the famous case Tanbro Fabrics Corp. v. Deering Milliken, Inc . There, Judge Charles Breitel ruled that a buyer of goods took free of a security interest even though neither the seller-debtor nor the buyer had physical custody of the goods in question. Rather, the secured party retained physical custody! Nevertheless, the court found that the
buyer qualified for the privileged status of a "buyer in the ordinary course of business" because the parties stipulated that the custody arrangements were customary in this industry.
This case continues to outrage commercial law scholars. Homer Kripke, who had the twin honor of having influenced the drafting of Article 9 as well as having served as a consultant to the losing party in Tanbro , started a public dialogue on this case which briefly threatened to become a cottage industry. Kripke argued that the drafters always intended seller custody to be a necessary and inherent element of buying in the ordinary course. Moreover, he maintained that the drafters had also always intended that custodial security interests have a special position because custody has not only publicity value but also policing value. Unfortunately, the language of the U.C.C. does not expressly set forth this rule, nor does the logic of property require it. Kripke suggested that this was because it was thought self-evident that a noncustodial party could not sell property out from under a custodial party.
Kripke's analysis is problematic because it presupposes rather than proves the empirical facts that are supposed to be its basis. To argue that
the requirement of physical custody is implicit in the "ordinary" element of the ordinary-course rule is to presume that sellers ordinarily retain physical custody until sale and that buyers ordinarily take physical custody upon sale. This is an empirical question.
Realist rules are supposed to reflect actual practice, not abstract logical reasoning. In Tanbro , the parties stipulated that the procedures followed by the parties were customary in the fabric industry. If, as an empirical matter, it is customary for buyers to resell goods prior to taking custody, then, by definition, the absence of custody is ordinary. Kripke's argument fails because it is based not on what is, in fact , ordinary but on what he thinks should be ordinary. He would make custody part of the legal definition of "ordinary" even when it is, in fact, "extraordinary." This is not legal realism but legal sur realism.
We insist on the real—immediate, physical—nature of property not because of, but despite, empirical evidence to the contrary.
The primacy of physicality in the U.C.C. reflects Llewellyn's third, unspoken but implicit, complaint about classic "Title" law. It moved the concept of property too far away from the physical. "Title" is too obviously a legal construct—too symbolic. It makes it clear that property is a relationship between people and things which is mediated and artificial. The realists—like us all—longed for immediate, natural re-
lationships with the real and with each other which preexist our artificial, legal, and symbolic creations. We, therefore, envision imaginary identifications of legal rights with specific tangible objects. To put it another way, I (and Llewellyn) critique "Title" analysis of property as being inadequately "objective." Llewellyn, however, conflated objectivity with tangibility—the "real" with reality.
Llewellyn's "real-ism" is revealed in the following comment to the opening provision of Article 2, to which I have already referred. If not actually penned by Llewellyn, it is a brilliant pastiche of his distinctive writing style.
The legal consequences are stated as following directly from the contract and action taken under it without resorting to the idea of when property or title passed or was to pass as being the determining factor. The purpose is to avoid making practical issues between practical men turn upon the location of an intangible something, the passing of which no man can prove by evidence and to substitute for such abstractions proof of words and actions of a tangible character.
Llewellyn accused legal academics of turning law "into words—placid, clear-seeming, lifeless, like some old canal. [In contrast, p]ractice rolled on, muddy, turbulent, vigorous. It is now spilling, flooding, into the canal of stagnant words." Traditional academics committed the crime of revealing that law is symbolic. The realists, on the other hand,
[w]ant law to deal, they themselves want to deal, with things, with people, with tangibles, with definite tangibles and observable relations between definite tangibles—not with words alone; when law deals with words, they want the words to represent tangibles which can be got at beneath the words, and observable relations between those tangibles.
Llewellyn condemns legal constructs (i.e., symbolic objects) with a realist's greatest insult—"an intangible something." That legal ideas can be proved, that they have any existence, that they are objective in a symbolic sense, is denied. Only the physical is deemed to have reality. Even language—the realm of the symbolic itself—must become real. Words must take on a tangible character.
The spirit behind this comment is reflected in Llewellyn's writings. He ridiculed the concept of "Title" as "mythical—or should I say more accurately mystical?" He calls "Title" a "halo." Elsewhere he referred to "Title" as a "mystical something." He thought "Title" was crazy because traditional sales-law issues are, "technically, silly. To a silly issue no sane answer is possible." Why is "Title" supposedly so irrational? Because "[n]obody ever saw a chattel's Title. Its location in Sales cases is not discovered, but created, often ad hoc ." "The difficulty is plain. 'Title' cannot be seen. . . ." True property, in contradistinction, is according to Llewellyn something which is "held in one's fist."
Llewellyn argues, in effect, that since title is not corporeal and not visible, it cannot exist. Because title, like all legal, "symbolic" relationships,
does not preexist the law, but is its creature—that is, it is not "real"—Llewellyn denies that it can properly function as legal actuality.
Of course, as Llewellyn realized, the law not only recognizes property concepts but, in the case of real property, imposes a comprehensive regime of title recognition. In explaining the difference between the reality of realproperty title and the unreality of chattel title, Llewellyn falls back on the imagery and metaphors of physicality. While title can't be seen "[i]n realproperty matters, to be sure [title] is a meaningful concept, because a chain of documents is there for art to construe; it is possible, objectively and definitely, to determine and agree in the great run of cases where title to a disputed piece of land lies."
Llewellyn imagines real-property title as being real in that it is somehow essentially embodied in the visibly recorded chain of title, whereas he imagines common-law chattel "Title" as being essentially intangible. It cannot be captured in its visible evidentiary tokens. This is because it is impracticable to subject all property transactions in chattel to a realproperty–type recording regime. He is making two potentially valid points—first, title, as a legal relation, is not the same as the evidentiary tokens we use to identify it, and, second, the early-twentieth-century evidentiary rules for identifying common-law chattel "Title" may have been inadequate to their task as a practical matter. From this Llewellyn draws the non sequitur that chattel title itself is necessarily unreal or incoherent.
Llewellyn is, of course, requiring that property claimants take on the masculine position of the subject who claims to have "it." This position is one of anxiety that this lie will be exposed. Consequently, the masculine subject constantly needs to reassure others (and try to fool himself) that he actually has "it" by identifying an objet petit a —an imaginary ob-
ject that stands for a place in the real. He grasps the phallic substitute for the Phallus in his hand and wields it shouting, "See, here 'it' is!"
The Imagery of Destruction and the Bundle of Sticks
Combining Llewellyn's stunning insight that a sale is a process (not an event) with his traditionalist conflation of property with a physical thing in a physical metaphor does have an unfortunate side effect. It leads to the subsidiary metaphor of the bundle of sticks. The imagery of the disaggregation of property conflicts with a concept of unitary property which implicitly, but necessarily, underlies sales law.
The conclusion that a sale is a process which takes place over time implies that during the process feckless "Title" resides in neither the seller nor the buyer. The masculine phallic metaphor requires that "Title" have the firmness of the male member, not the soft elusiveness of the female body. But the identification of property with a hard thing suggests that we should be able to locate property at any given time—a thing is either here or there. The most obvious way of resolving this apparent paradox is to imagine that during the sales process, physical property is broken into pieces. Although each individual piece has location and is passed simultaneously as an event, full "Title" cannot be reassembled until all pieces have passed. This is Llewellyn's imagery. Not only did he speak of traditional property as the sensuous grasp of a single physical thing held in a "fist," he also contrasted the "modern" approach as imagining property "not in one fist, but in the spread interlocked fingers of at least two different hands; not lumped and obvious . . . but scattered and divided. . . ."
Rather than the fasces being seen as one big axe, it now appears as a bundle of little sticks. A sale can now be imagined as the untying of the bundle and the passage of the little sticks separately, followed by the rebundling of the sticks at the other end. This analysis suggests, however, that there is nothing unique about the bundle—it is at most the label for the conclusion of the sales process, rather than a category of legal analysis. As the bundle starts to look contingent, the sticks take on essential characteristics. The image of the fasces breaks down into the two competing alternatives of the axe and the bundle which we must choose between. The more we look at the sticks as the essential pieces, other images are formed. Llewellyn wanted property to remain hard, but he made it brittle. To ac-
count for property as a process, the realists did not so much dismantle property, they shattered it. They tied it back together like a bundle, but like Humpty Dumpty, once shattered, it is never really the same again.
Consequently, the imagery implicit in Article 2 suggests the disaggregation or disintegration of property, but it does not do so in the way supposed by Grey et al. Observing that the property paradigm is degenerating is far from saying that property itself is disintegrating. The planets did not fly off into space when the Copernican paradigm of the universe replaced the Ptolemaic, nor again when Einsteinian physics replaced Newtonian.
Llewellyn was correct that the common-law property paradigm was degenerate and ripe to be overthrown. He was incorrect, however, in identifying the basic paradigm of common-law property with its specific manifestation in the agricultural metaphor. Consequently, the substitution of mercantile imagery for agricultural imagery was not a complete paradigm shift, merely a modification of the "protective belt" which surrounds the core paradigm—the phallic metaphor.
Axe and Bundle of Sticks
Many scholars, including not only Grey and Vandevelde but also Singer, Beermann, Balkin, and Kennedy, expressly or implicitly assume that the identification of the separate elements of property means that the elements may be freely combined and recombined in any of an infinite number of combinations and that therefore property has no essence. To use my recurring terminology, they assume from the fact that the fasces can be unbundled into separate sticks that it cannot also be rebundled to serve as an axe.
For example, Jack Balkin argues that Hohfeld's theory of jural correlatives and opposites closely parallels Ferdinand de Saussure's semiotic theory of the arbitrary nature of signification in language. A Hohfeldian legal semiotic, according to Balkin, logically leads to the de-objectification
of property and the disaggregation of legal concepts into a bundle of sticks that can be freely arranged and rearranged to suit any purpose. But Balkin reveals himself to be a classical liberal sheep in postmodern wolf's clothing. He implicitly presupposes an autonomous subject that creates, and therefore exists outside of, law and language. Law and language are, therefore, merely tools that can be freely changed and manipulated at will.
Lacan's theory is also by necessity a theory of linguistics, because he thought that the subject was always the subject of language. His linguistic theory relies heavily on Saussure. Lacan shows, in contradistinction to Balkin's suggestion, that the logical implications of Saussure's linguistic theory are totally antagonistic to Hohfeld's—and Balkin's—jurisprudential project. The postmodern subject is not an external manipulator of language. Language and the subject are mutually constituting. This means that the subject is not only the subject of language. He is also subject to language.
Hohfeld's theory is what my colleague Arthur Jacobson calls a "correlating jurisprudence." Such a jurisprudence assumes a closed legal universe in which all possible legal relationships are already captured in a complementary system of rights and obligations. This idea has been accurately conceptualized by Duncan Kennedy and Frank Michelman as a "Law of Conservation of Exposures" —the only way I can increase my rights is by decreasing your rights in an equivalent manner. In contradistinction, the Lacanian-Saussurian system is a noncorrelative one.
In a Lacanian-Saussurian linguistic system, the arbitrary nature of significance means that meaning is always slipping; all language is metaphor and metonymy. Consequently, true correlatives and negations of the type supposedly identified by Hohfeld are impossible or illusory. Such identification is imaginary, whereas signification is symbolic. To Lacan and Saussure, meaning is always a spurious infinity. "Each signifier refers not to any corresponding signified but rather to another signifier
in a sequence or 'chain' of signifiers that Lacan describes as being like 'rings of a necklace that is a ring in another necklace made of rings.'" Postmodern thought, as exemplified by Lacanian psychoanalysis, is precisely the denial of fit and complementarity; something is always missing, and something is always spilling over.
For example, although the Feminine is positioned as the negation of the Masculine, this cannot mean that if the Masculine is the positive, then the Feminine is the negative, or that woman is the complement to man. Rather, to Lacan, while the Masculine is the claim to be all, the Feminine is not nothing. She is the not-all (pas-toute ), as in not all things are Phallic . She is the denial of the fictional hegemony of the Phallus , which is the very foundation of subjectivity. Woman is not the complement to man, therefore, but a supplement. The Phallus is the forever-lost object from which we are castrated—the lack or hole that exists at the core of Lacanian subjectivity and Hegelian totality. There is always something more
and something lacking that makes immediate relationship impossible. Mediation is always necessary because it is impossible.
The noncomplementarity of sexuality explains why woman is object of man's fears and hopes, Fury as well as Muse, Kali Ma as well as Virgin Mary. The masculine position is "all are subjected to the symbolic order." The Feminine is the denial "not all." She is, therefore, on the one hand, the exposure of the lie of subjectivity and the symbol of universal castration. Woman in this aspect must be suppressed and subordinated. The Masculine tries to deny the freedom of feminine negativity by replacing her with fantasy images of femininity. On the other hand, by denying that all are castrated in the sense of subject to the law as prohibition, the feminine denial is the hope of freedom and the achievement of wholeness. She is the dream that the Phallus is not always already lost, but not yet found—that sexual relations are not impossible, merely forbidden. This aspect of the Feminine, like the superego, urges us "Enjoy!"
Moreover, the arbitrariness of significance does not mean that meaning or legal concepts can be freely manipulated. We do not bind ourselves to fixed linguistic and legal concepts despite the arbitrariness of signification but just because of its arbitrariness and slippage. In Lacan's metaphor, we must quilt together the shifting layers of signifier over signified. Meaning and language, and subjectivity itself, consist precisely of this fiction of static significance. This is, of course, the masculine position of claiming to have "it"—to have captured that which cannot be captured. Consequently, subjectivity is a dialectic concept that is both free in that it is a fiction and bound because it is a fiction. If we change the fiction, we change ourselves. Because Lacanianism denies the naturalness or inevitability not only of the legal regime but of subjectivity itself, it holds out the possibility of the truly radical change of creating alternate sociolinguistic-legal universes. But a new alien species of subject will necessarily inhabit such new universes. The postmodern subject, unlike his liberal modern counterpart, who is at some level autonomous from the legal regime, cannot, therefore, merely "will" changes in the fundamental aspects of the legal and linguistic regime, which is the gender hierarchy. When we quilt
signification, we sew our very subjectivity. Changes in the symbolic order require a dialectical and simultaneous change in every aspect of our subjectivity and society. The problem for those of us who are both Lacanians and progressives is how to start this chicken-and-egg process in motion. How can we ever sublate masculine subjectivity and feminine objectivity to achieve the not-yet immediacy of sexual relations, without submerging into the deadly unity of the real?
Slavoj Zizek[*] gives a wonderful illustration of the difference between the modern (Hohfeldian-Balkinian) and postmodern (Lacanian-Saussurian) concept of the subject. Near the end of the movie Blow-Up , the protagonist passes a group of people miming a game of tennis without a ball. One of the players pretends to hit the ball out of bounds. The protagonist plays along and pretends to retrieve the ball and toss it back into the court. Modernism concludes from the observation that the "game" of society is not inevitable or natural, it has no content; content resides solely in the subject itself. Postmodernism, in contradistinction, does not deny the necessity of the object merely because it is arbitrary. Rather, it shows us the object in all its "indifferent and arbitrary character." In other words, the modern subject is conceived of as autonomous from, and therefore in control of, the game. He not only can change the game or leave the game but does not even need a ball or other external object to play the game. The postmodern subject, however, is not autonomous with respect to the game of law and language. He exists as a subject only insofar as he plays the game. Consequently, there must always be a game and a mediating object of desire.
Thus, insofar as legal concepts serve functions—social, economic, psychic, or philosophical—the combinations of jural elements cannot be random or arbitrary and cannot be freely altered at will. Hegelian philosophic theory, combined with Lacanian psychoanalytic theory, indicates that the possession, enjoyment, and alienation of external objects serve necessary roles in the development of subjectivity in this society. Consequently, it is meaningful and not random for a legal regime to recognize a distinctive category of legal rights called "property" that contains all three of these elements. This does not mean that all legal relationships need be full
property relations. Nor does it mean that all property relations must be absolute; we may want to recognize limitations on any or all of the three general categories of property rights. Indeed, as Hegel himself argued, the logic of the concept of property is both self-limiting—unlimited property rights of different subjects would be mutually inconsistent—and limited by other, more developed concerns of human development, such as morality and ethics.
Nevertheless, the Hegelian-Lacanian approach only defines the parameters of property at the most abstract level and has little or no practical use in prescribing the minutiae of specific property regimes. The specific limitations and applications of the broad and abstract concept of property to meet the needs of any given society are properly to be determined by practical reasoning and adopted into positive law—precisely as pragmatists such as Grey argue. This is why the Hegelian idealist philosophic tradition is arguably the precursor not only of Continental postmodern philosophy but also of American pragmatic philosophy. The flexibility of Hohfeldian atomic analysis arguably gives it an advantage over a molecular approach in the pragmatic enterprise of promulgating the positive law of property. But it has the danger of making us think that by fiddling with the details of the positive law of property, we can undermine the crushing hegemony of the regimes of property and gender, rather than merely replicate them.
The Denial of the Feminine
The imagery of the bundle of sticks—the attempt to disaggregate property—is self-defeating. It reflects the desire to capture the
symbolic aspect of property as human interrelationships, but it denies the mediating object that permits the development of subjectivity as intersubjectivity. In an attempt to recognize the element of exchange, it represses possession and enjoyment. Property as alienation reflects the failed masculine strategy of trying to attain wholeness by retroactively "consenting" to castration in exchange for the promise of a future substitute object.
The imagery of the axe—the attempt to epitomize property as the sensuous grasping of physical things—is the mirror image of that error and is equally self-defeating. It denies property its very nature as a legal relation—symbolic, abstract, social, and mediated—in favor of an imagined, infantile, immediate, real union of the subject and the object. The traditional approach taken by Waldron privileges the elements of possession and represses those of enjoyment and alienation. This is particularly inappropriate in the merchant's transaction where alienation through market exchange is of the essence. Property as possession reflects the failed masculine strategy of pretending to be whole by denying castration and the resulting necessity for mediation.
The symbolic Phallus is the object of desire. Our ultimate desire is the imaginary, forever-lost union with the Other imagined as the Mother, which we place in the real world beyond interpretation. Consequently, the Phallus —what men are supposed to have and women are supposed to be—is paradoxically both the Feminine and the signifier of masculine subjectivity.
Men try to attain subjectivity and hold the Phallus , not only by having the real penis but also by trying to control women's bodies. Of course this is unsatisfactory. They can never attain the Phallic Mother. So, in frustration, they deny the existence of the lost Feminine. They try to pretend that they achieve unmediated relationships by denying the existence of the mediator. In Lacan's terms, "The Woman does not exist." She is real in the technical sense that she cannot be adequately described in symbolic language, but she cannot be reduced to or grasped as a real object. The Woman—the Feminine—becomes purely the imaginary object of men's fantasy; woman becomes a symptom of man.
We try to explain our desire by retroactively positing a cause—the object petit a —which sits at the crossroads of the symbolic and the real. In the imaginary we identify the object a with a specific thing that is actual, biological, natural—that is, seemingly real. This is in the vain hope that
if we can attain the real object, then our desire will be fulfilled. Or, we deny mediation entirely.
Waldron, Baird, Jackson, and Llewellyn insist that property is archetypically sensuous on the grounds that sensuous things exist, can be seen, and are easier to identify and think about. This attempt to embrace the lost Feminine by grasping tangible things is, once again, reflected in etymology. The word "material" derives from the word for "mother." But property interests as a legal matter are abstract and symbolic and as an empirical matter are often concerned with noncorporeal objects. Consequently, sensuous grasping is inadequate to the role of the archetypical relation of the subject with the object of desire of property in precisely the same way as the penis and the female body are inadequate to serve the psychoanalytic role of the Phallus . This is the psychoanalytic position of the Masculine—the deluded, split, and despairing Lacanian subject who continues to repeat the lie that he is not castrated: he has the Phallus merely because he has and controls tangible property, just as he has a penis and controls women. The masculine position is not to have "it" in fact, but to claim falsely to do so.
Noncorporeal property, like feminine sexuality, is at once hidden and ubiquitous, lack and surplus. We try to deny the Feminine her role as Phallus precisely because she cannot be easily seen and held. Feminine sexuality must be tamed by defining her as the female body that is occupied—possessed—by the penis in heterosexual intercourse. Thus Waldron says that only the tangible, and no other form of property, exists. The noncorporeal can only be discussed if it can be analogized to the corporeal. To Waldron we possess but don't exchange, to Grey we exchange but don't possess. Neither can recognize feminine enjoyment.
Because feminine intangibility is hard to identify and think about, it
must be denied. The Feminine and property are identified with "lack." The Lacanian masculine subject insists that The Woman does not exist. Thus Hohfeld, Grey, and Vandevelde mirror back Waldron's psychoanalytically masculine position. They say that the res of property does not exist.