I—
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 .^[1] 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.^[2] The object little a, therefore, is the point at which the

three orders intersect.^[3] 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."^[4] 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.^[5]

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^[6] —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^[7] 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.^[8]

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.^[9] 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.