A—
Constraints
Many scholars, including not only Grey and Vandevelde but also Singer, Beermann, Balkin, and Kennedy, expressly or implicitly assume that the identification of the separate elements of property means that the elements may be freely combined and recombined in any of an infinite number of combinations and that therefore property has no essence.[280] To use my recurring terminology, they assume from the fact that the fasces can be unbundled into separate sticks that it cannot also be rebundled to serve as an axe.
For example, Jack Balkin argues that Hohfeld's theory of jural correlatives and opposites closely parallels Ferdinand de Saussure's semiotic theory of the arbitrary nature of signification in language. A Hohfeldian legal semiotic, according to Balkin, logically leads to the de-objectification
[280] See, e.g ., Joseph William Singer & Jack M. Beermann, The Social Origins of Property , 6 Canadian J.L. & Jurisprudence 217 (1993); J.M. Balkin, The Hohfeldian Approach to Law and Semiotics , 44 U. Miami L. Rev. 1119, 1120–26 (1990); Kennedy, supra note 34.
of property and the disaggregation of legal concepts into a bundle of sticks that can be freely arranged and rearranged to suit any purpose.[281] But Balkin reveals himself to be a classical liberal sheep in postmodern wolf's clothing.[282] He implicitly presupposes an autonomous subject that creates, and therefore exists outside of, law and language. Law and language are, therefore, merely tools that can be freely changed and manipulated at will.
Lacan's theory is also by necessity a theory of linguistics, because he thought that the subject was always the subject of language. His linguistic theory relies heavily on Saussure.[283] Lacan shows, in contradistinction to Balkin's suggestion, that the logical implications of Saussure's linguistic theory are totally antagonistic to Hohfeld's—and Balkin's—jurisprudential project. The postmodern subject is not an external manipulator of language. Language and the subject are mutually constituting. This means that the subject is not only the subject of language. He is also subject to language.
Hohfeld's theory is what my colleague Arthur Jacobson calls a "correlating jurisprudence."[284] Such a jurisprudence assumes a closed legal universe in which all possible legal relationships are already captured in a complementary system of rights and obligations. This idea has been accurately conceptualized by Duncan Kennedy and Frank Michelman as a "Law of Conservation of Exposures"[285] —the only way I can increase my rights is by decreasing your rights in an equivalent manner. In contradistinction, the Lacanian-Saussurian system is a noncorrelative one.
In a Lacanian-Saussurian linguistic system, the arbitrary nature of significance means that meaning is always slipping; all language is metaphor and metonymy.[286] Consequently, true correlatives and negations of the type supposedly identified by Hohfeld are impossible or illusory. Such identification is imaginary, whereas signification is symbolic. To Lacan and Saussure, meaning is always a spurious infinity. "Each signifier refers not to any corresponding signified but rather to another signifier
[281] Balkin, supra note 280, at 1120–26.
[282] See David Gray Carlson, Derrida's Justice (1994) (unpublished manuscript, on file with author).
[283] See Jacques Lacan, The agency of the letter in the unconscious or reason since Freud [hereinafter Lacan, The agency of the letter ], in Lacan, Écrits, supra note 1, at 146, 149–59.
[284] Arthur J. Jacobson, Hegel's Legal Plenum , 10 Cardozo L. Rev. 877, 881 (1989).
[285] Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient? 8 Hofstra L. Rev. 711, 759 (1980).
[286] Lacan, The agency of the letter, supra note 283, at 156–57. Lacan identifies his concepts of metaphor and metonymy with Freud's concepts of "condensation" and "displacement." Id . at 160.
in a sequence or 'chain' of signifiers that Lacan describes as being like 'rings of a necklace that is a ring in another necklace made of rings.'"[287] Postmodern thought, as exemplified by Lacanian psychoanalysis, is precisely the denial of fit and complementarity; something is always missing, and something is always spilling over.
For example, although the Feminine is positioned as the negation of the Masculine, this cannot mean that if the Masculine is the positive, then the Feminine is the negative, or that woman is the complement to man. Rather, to Lacan, while the Masculine is the claim to be all, the Feminine is not nothing. She is the not-all (pas-toute ), as in not all things are Phallic .[288] She is the denial of the fictional hegemony of the Phallus , which is the very foundation of subjectivity. Woman is not the complement to man, therefore, but a supplement.[289] The Phallus is the forever-lost object from which we are castrated—the lack or hole that exists at the core of Lacanian subjectivity and Hegelian totality.[290] There is always something more
[287] William J. Richardson, Lacan and the Subject of Psychoanalysis, in Interpreting Lacan 51, 54 (Joseph Smith & William Kerrigan eds., 6 Psychiatry and the Humanities, 1983) (quoting Lacan, Écrits).
The meaning of this chain does not "consist" in any one of these elements but rather "insists" in the whole, where the "whole" may be taken to be the entire interlude as described, whose meaning, or rather whose "effect" of meaning, is discerned retroactively.
Id . at 55.
[288] "Her being not all in the phallic function does not mean that she is not in it at all. She is in it not not at all. She is right in it. But there is something more." Lacan, God and Jouissance, supra note 1, at 145; see also Rose, supra note 1, at 49–50; Zizek,[*] Looking Awry, supra note 2, at 44–45.
[289] "Note that I said supplementary. Had I said complementary, where would we be!" Lacan, God and Jouissance, supra note 1, at 144; see also Rose, supra note 1, at 51. As so clearly explained by Salecl:
Lacan thus moves as far as possible from the notion of sexual difference as the relationship of two opposite poles which complement each other, together forming the whole of "Man." "Masculine" and "feminine" are not the two species of the genus Man but rather the two modes of the subject's failure to achieve the full identity of Man. "Man" and "Woman" together do not form a whole, since each of them is already in itself a failed whole.
Salecl, supra note 37, at 116.
In his most recent work, Zizek[*] has used the word "complementarity" to describe the relationship of the Lacanian sexes. This is an uncharacteristically unfortunate and idiosyncratic choice of words by a usually eloquent scholar, albeit one for whom English is not his first, or even second, language. Zizek's[*] conception of sexuality totally lacks the type of simple imaginary fit connoted by the word "complementary."
[290] The école freudienne, The phallic phase and the subjective import of the castration complex [hereinafter the école freudienne, The phallic phase ], in Lacan, Feminine Sexuality, supra note 1, at 99, 116–17; Jacques Lacan, The direction of the treatment and the principles of itspower, in Lacan, Écrits, supra note 1, at 265; Jacques Lacan, The signification of the phallus, in Lacan, Écrits, supra note 1, at 281, 288; Jeanne L. Schroeder & David Gray Carlson, The Subject Is Nothing , 5 Law and Critique 94 (1994) (reviewing Zizek,[*] For They Know Not What They Do, supra note 1).
and something lacking that makes immediate relationship impossible. Mediation is always necessary because it is impossible.
The noncomplementarity of sexuality explains why woman is object of man's fears and hopes, Fury as well as Muse, Kali Ma as well as Virgin Mary. The masculine position is "all are subjected to the symbolic order." The Feminine is the denial "not all."[291] She is, therefore, on the one hand, the exposure of the lie of subjectivity and the symbol of universal castration. Woman in this aspect must be suppressed and subordinated. The Masculine tries to deny the freedom of feminine negativity by replacing her with fantasy images of femininity. On the other hand, by denying that all are castrated in the sense of subject to the law as prohibition, the feminine denial is the hope of freedom and the achievement of wholeness. She is the dream that the Phallus is not always already lost, but not yet found—that sexual relations are not impossible, merely forbidden. This aspect of the Feminine, like the superego, urges us "Enjoy!"
Moreover, the arbitrariness of significance does not mean that meaning or legal concepts can be freely manipulated. We do not bind ourselves to fixed linguistic and legal concepts despite the arbitrariness of signification but just because of its arbitrariness and slippage. In Lacan's metaphor, we must quilt together the shifting layers of signifier over signified.[292] Meaning and language, and subjectivity itself, consist precisely of this fiction of static significance. This is, of course, the masculine position of claiming to have "it"—to have captured that which cannot be captured. Consequently, subjectivity is a dialectic concept that is both free in that it is a fiction and bound because it is a fiction. If we change the fiction, we change ourselves. Because Lacanianism denies the naturalness or inevitability not only of the legal regime but of subjectivity itself, it holds out the possibility of the truly radical change of creating alternate sociolinguistic-legal universes. But a new alien species of subject will necessarily inhabit such new universes. The postmodern subject, unlike his liberal modern counterpart, who is at some level autonomous from the legal regime, cannot, therefore, merely "will" changes in the fundamental aspects of the legal and linguistic regime, which is the gender hierarchy. When we quilt
[291] Lacan, God and Jouissance, supra note 1, at 145. See also Rose, supra note 1, at 49–50.
[292] Lacan, Seminar III, supra note 5, at 258–70; Zizek,[*] Looking Awry, supra note 2, at 44–45.
signification, we sew our very subjectivity. Changes in the symbolic order require a dialectical and simultaneous change in every aspect of our subjectivity and society. The problem for those of us who are both Lacanians and progressives is how to start this chicken-and-egg process in motion. How can we ever sublate masculine subjectivity and feminine objectivity to achieve the not-yet immediacy of sexual relations, without submerging into the deadly unity of the real?
Slavoj Zizek[*] gives a wonderful illustration of the difference between the modern (Hohfeldian-Balkinian) and postmodern (Lacanian-Saussurian) concept of the subject. Near the end of the movie Blow-Up ,[293] the protagonist passes a group of people miming a game of tennis without a ball. One of the players pretends to hit the ball out of bounds. The protagonist plays along and pretends to retrieve the ball and toss it back into the court. Modernism concludes from the observation that the "game" of society is not inevitable or natural, it has no content; content resides solely in the subject itself. Postmodernism, in contradistinction, does not deny the necessity of the object merely because it is arbitrary. Rather, it shows us the object in all its "indifferent and arbitrary character."[294] In other words, the modern subject is conceived of as autonomous from, and therefore in control of, the game. He not only can change the game or leave the game but does not even need a ball or other external object to play the game. The postmodern subject, however, is not autonomous with respect to the game of law and language. He exists as a subject only insofar as he plays the game. Consequently, there must always be a game and a mediating object of desire.
Thus, insofar as legal concepts serve functions—social, economic, psychic, or philosophical—the combinations of jural elements cannot be random or arbitrary and cannot be freely altered at will. Hegelian philosophic theory, combined with Lacanian psychoanalytic theory, indicates that the possession, enjoyment, and alienation of external objects serve necessary roles in the development of subjectivity in this society. Consequently, it is meaningful and not random for a legal regime to recognize a distinctive category of legal rights called "property" that contains all three of these elements.[295] This does not mean that all legal relationships need be full
[293] Blow-Up (Bridge Films 1966).
[294] Zizek,[*] Looking Awry, supra note 2, at 143. Another example of the modern work of art given by Zizek is Waiting for Godot , in which, of course, Godot never arrives. Id . at 145. In a postmodern play, Godot is always there, although he may not be what you expected. Id .
[295] Hegel can identify three elements of property precisely because he speaks at the highest levels of abstraction. A Hegelian would argue that so many discussions of property, including Grey's, wind up concluding that property is incoherent or infinitely variable pre-cisely because they confuse the general concept of property with specific applications of positive law. For example, Lawrence C. Becker (following Honoré) identifies at least thirteen—or ten, depending on how one subdivides the rights—possible elements of property rights, not all of which need be present for a right to be considered property. These rights are: (i) the right (claim) to possess; (ii) the right (liberty) to use; (iii) the right (power) to manage; (iv) the right (claim) to the income; (v) the right (liberty) to consume or destroy; (vi) the right (liberty) to modify; (vii) the right (power) to alienate; (viii) the right (power) to transmit; (ix) the right (claim) to security; (x) the absence of term; (xi) the prohibition of harmful use; (xii) liability to execution; and (xiii) residuary rules. Lawrence C. Becker, The Moral Basis of Property Rights, in Nomos, Property, supra note 109, at 187, 190–91 (citing A. M. Honoré, Ownership, in Oxford Essays in Jurisprudence 107–47 (A.G. Guest ed., 1961)).
A Hegelian would argue that these thirteen "elements" are more accurately described as specific empirical manifestations of the three more general elements of property, or of limitations of the three elements imposed by positive law. For example, rights i, vi, ix, and x are different actualizations of the Hegelian concept of possession.
property relations. Nor does it mean that all property relations must be absolute; we may want to recognize limitations on any or all of the three general categories of property rights. Indeed, as Hegel himself argued, the logic of the concept of property is both self-limiting—unlimited property rights of different subjects would be mutually inconsistent—and limited by other, more developed concerns of human development, such as morality and ethics.
Nevertheless, the Hegelian-Lacanian approach only defines the parameters of property at the most abstract level and has little or no practical use in prescribing the minutiae of specific property regimes. The specific limitations and applications of the broad and abstract concept of property to meet the needs of any given society are properly to be determined by practical reasoning and adopted into positive law—precisely as pragmatists such as Grey argue. This is why the Hegelian idealist philosophic tradition is arguably the precursor not only of Continental postmodern philosophy but also of American pragmatic philosophy. The flexibility of Hohfeldian atomic analysis arguably gives it an advantage over a molecular approach in the pragmatic enterprise of promulgating the positive law of property. But it has the danger of making us think that by fiddling with the details of the positive law of property, we can undermine the crushing hegemony of the regimes of property and gender, rather than merely replicate them.