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.