3—
The Vestal:
The Feminine Phallic Metaphor for Property

I—
Virgin Territory:
Property as the Inviolate Feminine Body

Her vestal livery is but sick and green, And none but fools do wear it.Cast it off!^[1]

In the 1980s, Margaret Jane Radin emerged as a prominent property theorist. Radin's project is to promote legal recognition of the role that identification with objects plays in the development of personhood. Radin labeled this a theory of "property for personhood."^[2] The essence of her theory is that proper object relations are necessary for the

[1] William Shakespeare, Romeo and Juliet, act 2, sc. 2.

[2] Margaret Jane Radin, Reinterpreting Property 41 (1993) [hereinafter Radin, Reinterpreting Property]. Radin originally formulated her theory in a series of articles, the most important of which are: Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings , 88 Colum. L. Rev. 1667 (1988) [hereinafter Radin, Cross Currents ]; Margaret Jane Radin, Market-Inalienability , 100 Harv. L. Rev. 1849 (1987) [hereinafter Radin, Market-Inalienability ]; Margaret Jane Radin, Property and Personhood , 34 Stan. L. Rev. 957 (1982) [hereinafter Radin, Property and Personhood ]. She later republished these articles with minimal changes in her book Reinterpreting Property . For the convenience of the reader I will usually cite to the compilation rather than to the original articles.

Radin has since revised some of the material in these articles and incorporated it into her more recent work. Margaret Jane Radin, Contested Commodities (1996) [hereinafter Radin, Contested Commodities]. Although grounded in her earlier theoretical work, this later book concentrates on trying to counter the "law and economics" tendency of analyzing all human relations in terms of the marketplace and making "pragmatic" arguments as to why certain specific objects should be wholly or partially market-inalienable.

development of subjectivity because we identify so closely with certain objects that we cannot distinguish our property from our personhood. Consequently, human flourishing requires the recognition of certain legal rights that protect these privileged objects, which she would call "personal" property, from invasion.

Radin's theory initially seems to be a feminist jurisprudence, reflecting feminine bodily experience. Radin protects and dignifies the feminine side of personhood as object by arguing that those objects that literally or figuratively constitute the female body should be market-inalienable. Her theory of property for personhood disrupts market alienations and allows the feminine self to enjoy herself as object as means to her own ends.

The appeal which Radin's account might have for feminists is obvious. My analysis, however, reveals an intrinsic dark side to Radin's theory.^[3] It is necessarily incomplete. Although she claims to account for the development of personhood within community, she provides no account of community (i.e., intersubjectivity). Community is just assumed to preexist. I will show that because Radin presupposes that persons begin as integrated members of a community, her ideal of personal property can only function to allow persons to withdraw from the community in order to enjoy a lonely autonomy. This is inconsistent with her stated goal in reinterpreting property, namely, to prevent separation.^[4]

Her theory is necessarily inadequate. It never suffices for feminists merely to disrupt misogyny by exposing and withdrawing from the masculine fiction of subjectivity. Withdrawal only serves to underline the logical necessity of community. Even in denial and condemnation, we recognize masculine subjectivity and silence ourselves in feminine objectivity. Nor is it possible merely to add a feminine narrative to the masculine fiction. Rather, we must write a new myth that supersedes the masculine fiction.

In chapter 2, I showed how the triune nature of property is in danger of becoming lost in contemporary legal scholarship. Generations of legal scholars have repeated Hohfeld's faux pas that property rights do not require a res , or object, at all. By repressing the object (and thereby also repressing the element of possession), Hohfeld reduces property to a binary subject-subject relationship which implicitly privileges the element

[3] Steven Schnably has embarked upon a similar project. See generally Stephen J. Schnably, Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood , 45 Stan. L. Rev. 347 (1993).

[4] As we shall see, Radin is somewhat equivocal as to whether personal property should be protected because it serves the value of connectedness or of separateness.

of alienation through exchange. Radin also adopts a binary theory of property. In contradistinction to masculinist theory, however, she centers her analysis of property on the relationship between a single subject and an object. Her dichotomy of property rights—personal property versus fungible property—is defined in terms of the nature of the owning subject's relationship with the object owned. According to Radin, the empirical process through which we develop our personality is the identification with favorite objects. In other words, we do not desire the object of personal property derivatively in order to be desired by others, but primarily as a form of narcissistic autoeroticism. Rather than seeking objects as a means of creating society, as in Hegel, Radin's person seeks objects as a means of establishing "personhood" as an inviolable refuge from a preexisting society. To Hegel, objects are the mediators between subjects which permit the establishment of intersubjective relations, but in Radin, it is the relation between subject and object which is mediated by the preestablished intersubjectivity of "society."^[5]

If Hohfeld's zeal to emphasize the intersubjective aspect of property caused him to lose sight of its objective aspect, Radin's insistence on its objective aspect results in loss of its intersubjective aspect. Being intersubjective, community requires both an intersubjective and objective account of property. Consequently, a wholly objective account of property inadequately promotes Radin's stated "pragmatic" goal of developing a theory of the individual within community.

But by concentrating on the object, Radin does not merely repeat Waldron's masculine phallic error of privileging possession. Her primary concern is not with the appropriate allocation of resources among people but with a single owner's subjective, sensuous experience of the object—enjoyment. Being masculine, Waldron's and Hohfeld's accounts of property are complementary and imaginary. They seek to cure castration by holding on to, or obtaining through exchange, the object of desire that

[5] In the preface to her compilation, Radin tries to defend herself against the criticism that she misreads Hegel. In so doing, however, she demonstrates that she has inverted Hegel's concept of the mediating roles of subject and object.

It was open for readers to think I misunderstood Hegel as holding that the property relationship is something unmediated between the person and the object, rather than always a matter of social mediation. . . . I did not mean to argue that "property" was a matter between an individual and an object alone in the universe. Instead I wanted to plug into a socially constructed understanding involving connections between persons and things that matter to them.

Radin, Reinterpreting Property, supra note 2, at 7–8.

fills the hole and makes the subject whole. Property is seen as an immediate binary relationship either of subject to object or of subject to subject. In contradistinction, Radin's concept of property for personhood, being feminine, is also imaginary but seeks to be unitary and real. She seeks to avoid castration by merging with the object of desire back into the primordial unity that preexisted the symbolic order of law. Subject does not relate to object; she identifies with, enjoys, and becomes object. The ecstatic experience she calls personal property "bridge[s] the gap or blur[s] the boundary . . . between what is subject and what is object."^[6]

If traditional property theorists have adopted either a positive or a negative version of the inadequate masculine phallic metaphor for property, Radin, in contradistinction, adopts an equally inadequate feminine phallic metaphor for property. Radin's concept of property for personhood seeks to allow the feminine self to enjoy herself as object without also being the desired object of possession and exchange by others—that is, to be her own end and not the means to another's ends. By seeking to reunite with the Phallic Mother, Radin calls us to obey the superego's obscene command to transgress the law of prohibition—Enjoy!

As with masculine property jurisprudence, Radin's reinterpretation of property reflects the desire to achieve wholeness through an imaginary collapse of the three orders. Her ideal of property serves as her objet petit a —the object cause of desire. She believes that if she can just enjoy the object a, then she can achieve the integrity which she calls "personhood"; that is, the separation of the symbolic order of law will be reconciled with the primordial unity of the real. In the imaginary she identifies specific, identifiable tangible objects to stand in for the lost object of desire. She calls these favored objects "personal property." As do we all, Radin falls "prey to imaginary lures which promise the healing of the original/constitutive wound of symbolization."^[7] As the lost object of desire is the Phallus, Radin's imaginary personal property is phallic.

However, to Radin, the archetype of the desired phallic object is no longer the male organ which is physically possessed and exchanged among masculine subjects. Instead, the archetypical object of personal property is literally the female body, as opposed to an abstract feminine position. Property is conflated with the object of property and with enjoyment of that object. Her project is to protect this object from market

[6] Radin, Contested Commodities, supra note 2, at 57.

[7] Slavoj Zizek,^[*] The Indivisible Remainder: An Essay on Schelling and Related Matters 96 (1996) [hereinafter Zizek, The Indivisible Remainder].

intercourse. The psychoanalytic model of Radin's notion of inalienable "personal" property is, consequently, property as chastity. If masculine theorists see property as the fasces —an axe or a bundle of sticks—Radin sees property as the Vestal .

Virginity can be integrity, but it can also be sterility, isolation, loneliness—and oblivion. If the masculine desire to possess and exchange the feminine object is Eros, the feminine desire to merge back into objectivity is Thanatos—the death wish. In her attempt to escape imprisonment in the masculinist seraglio, Radin immures feminine property in a cloister, seemingly free of the masculine fiction, but only because she is walled off from community. As Hegel argued, enjoyment standing alone is addiction. Radin seeks to be "bound up with"^[8] property. This violates the logic of both property and feminism as the actualization of freedom. Bound by property, woman becomes fascinated. By binding herself, the inviolate virgo becomes inanimate virga . That which is bound is a fasces . The fasces becomes fascinus , a curse as well as a phallus—that which is carried and displayed by men. Seeking personhood through chaste integrity, the Feminine remains the object of masculine subjectivity.

By suggesting that the favored objects of personal property should be given heightened constitutional protections against governmental takings^[9] and searches and seizures, Radin replicates the traditional womanly response to her own integrity—the insistence on an inviolate realm of privacy to which she can occasionally retreat. But Radin goes further and replicates the Masculine's morbid preoccupation with feminine chastity. She fears that the sale of personal property by any person can lead to the commodification of all women. Consequently, she seeks to make the most personal objects market-inalienable as a matter of law. In other words, feminine personhood is so frail and susceptible that the reputation and

[8] As we shall see, Radin posits that to achieve personhood one must become "bound up with" certain objects. Radin, Reinterpreting Property, supra note 2, at 65–66; see also id . at 38. This, of course, follows from her imaginary identification of personal property as the objet petit a . Imaginary objects are always, by definition, captivating.

[9] I present Radin's analysis of takings more thoroughly in Jeanne L. Schroeder, Virgin Territory: Margaret Radin's Imagery of Personal Property as the Inviolate Feminine Body , 79 Minn. L. Rev. 55, 94–99 (1994). Simplistically put, Radin believes that the Constitution should be read so as to further human flourishing. Human flourishing requires healthy intimate relationships with personal property, an avoidance of unhealthy close relationships with fungible property. Consequently, the Takings Clause of the Constitution should be read to give maximum protection of personal property to avoid violation of personhood and more minimal protection of fungible property both to avoid fetishization and to enable the promulgation of progressive regulation.

integrity of the female sex generally would be injured by the promiscuous intercourse of any one fallen woman. All women, therefore, need be protected not only for their own good but for the good of all, by the forced chastity of the veil.

And so, in her attempt to rewrite the fiction of property, Radin ends up telling the same old story that masculinist theory told. The feminine person merely identifies with her object of personal property, which she enjoys in her virgin solitude. The Feminine remains the passive object of desire—she can only claim the right to refuse her suitors, in an attempt to deny her commodification. Feminine enjoyment—jouissance —remains silent, because the virgin owner never leaves her cell to have social intercourse.

Although Radin insists that the relation of person to object is always already located within society, her concern is protecting "personal" property from society. How do we prevent the commodification of women through exchange? How do we prevent the loss of personhood through the invasion of our bodies and our homes by others? That is, to internalize and merge with objects of "personal" property is to expel and externalize the preexisting intersubjectivity of society. Like the odalisque in her seraglio or the nun in her cloister, life goes on outside without her.

Complete human development and freedom require community as well as individuality. Radin's theory of personhood seeks to describe the individual within community, yet it currently has no account of community. The dynamic Radin describes is the withdrawal of the individual from community into a cloistered universe, in which the subject has nothing to do but consume her precious objects. If the individual develops, she develops retrogressively from an intersubjective public being into a silenced private being. The virgo/virga is not only bound but gagged because she is no longer located in the community of discourse.

Radin's theory of property for personhood contains the contradiction that, although it is intended to prevent the objectification of women,^[10] it is based on the identification of personhood with objects. She seeks to prevent the commodification of women,^[11] but she has not yet understood that the Feminine is defined as the always already commodified. The Phal-

[10] See Margaret Jane Radin, Reflections on Objectification , 65 S. Cal. L. Rev. 341, 345–46 (1991). See also Radin, Contested Commodities, supra note 2, at 127, 154–60.

[11] Radin, Market-Inalienability, supra note 2, at 1921; Radin, Reinterpreting Property, supra note 2, at 137.

lic Woman is herself the archetypical and primal commodity. To be conscious and to speak is literarily, if not literally, to objectify the Feminine. This means that the feminist task cannot be to prevent the commodification and objectification of woman. It can only be to search for a way to subjectify and de commodify ourselves as women. Indeed, Radin's theory implicitly reflects this in that she starts out with individuals already located in society who seek to achieve personhood by removing certain objects from the preexisting market regime.

Radin's project is doomed because the feminine myth cannot be written within the masculine fiction.^[12] In the masculine fiction, as retold by Lacan, feminine enjoyment—jouissance —must be silent by definition. But the Feminine, also by definition, cannot be totally circumscribed by the symbolic order. On the one hand, even to identify the feminine person with the object, as Radin does, is to admit the masculine fiction and to deny feminine speech. It is to engage in the masculine fantasy which purports to give positive content to the Feminine,^[13] thereby depriving her of the radical freedom of her negativity. On the other hand, by insisting on speaking as a woman, one denies the objective position of the Feminine, which is the very basis of the fiction.

The fact that the feminine myth cannot be added to the masculine fiction of property does not mean that we can merely abandon either the fiction or the myth. Rather, we must write a new feminist myth that does not merely negate or modify the masculine account of the feminine position, but sublates and supersedes it in the myth of the Feminine as the not yet achieved actualization of freedom and immediate relation.

An adequate theory of the subject and the object, as expressed through our legal relations and interrelations with objects, cannot be created exclusively from the masculine position which alternately sees property as the intersubjective binary relationship of subject to subject in exchange or the objective binary relationship of subject to object in possession. Accordingly, Radin's attempted feminine objective theory of expanded bodily integrity is incomplete as written today and cannot serve as a substitute for the existing property regime. Thus, to develop a human theory of the legal person, we need to recognize that property is a necessary, but insufficient, aspect of the legal regime of object relations.

To show why Radin's theory of property cannot ground a supersed-

[12] I say this even though I am intuitively sympathetic with many, if not most, of her specific policy proposals.

[13] Zizek,^[*] The Indivisible Remainder, supra note 7, at 161.

ing myth of the Feminine, I begin by examining Radin's account of personal versus fungible property more thoroughly to explain how property for personhood privileges the objective aspect of property while disparaging the intersubjective. I argue that, although Radin's theory gives dignity to a concept of expanded bodily integrity, it is incomplete and offers an inadequate account of the legal institution of property, generally.^[14] Radin claims that her property theory is a critique of and improvement on Hegel's. This assertion is based on a fundamental misreading of Hegel. To demonstrate this, I return to the analysis of Hegel's property theory to discover the point where Radin made a wrong turn. Finally, I conclude by examining in greater detail how Radin's theory of property for personhood relates to the psychoanalytic position of the Feminine.

A—
Radin's Definition of Property

1—
The Identification with Objects

Radin begins her project by asking, in effect: What are the minimum material circumstances necessary to enable one to become a complete person as an empirical matter?^[15] What conception of property would further "human flourishing"?^[16] Radin states that human beings are, first, embodied: we relate to each other through our bodies. Consequently, it seems necessary to make some form of identification of the person with her body. Next it is necessary to compare the relationship of the individual to her body with the

[14] Radin's most recent work indicates that she may now at least implicitly intuit this. Although Contested Commodities is clearly grounded in her earlier work, and even though it still purports to set forth a property analysis, it is largely concerned with the proper legal status of the body. She considers at length the sale of body parts, female sexuality (i.e., prostitution and surrogacy), and babies and critiques the Law and Economics approach to torts which analyzes personal injury in terms of a market in bodily integrity. Although she speaks generally about the importance of the relationship of subject to certain objects (such as houses), the only nonbody issue which she analyzes at any length is the implications of the metaphor of the "marketplace of ideas."

[15] For example, Radin begins one of her articles by stating:

But if property for personhood cannot be viewed as other than arbitrary and subjective . . . to argue for their recognition by the legal system might collapse to a simple utilitarian preference summing. To avoid this collapse requires objective criteria differentiating good from bad identification with objects in order to identify a realm of personal property deserving recognition. The necessary objective criteria might be sought by appeal . . . to the concept of person itself. Taking the latter route, this section approaches the problem of developing a standard for recognizing claims to personal property by referring to the concept of "person" itself.

Radin, Reinterpreting Property, supra note 2, at 38.

[16] Radin, Market-Inalienability, supra note 2, at 1851.

individual's relationship to other physical things.^[17] A simple body/nonbody dichotomy does not satisfy Radin.^[18] People identify with, and are identified by, physical things other than their bodies.^[19]

This argument has some empirical appeal. Human adults rarely come

[17] Radin explains:

[M]arket rhetoric conceives of bodily integrity as a fungible object. . . . To speak of personal attributes as fungible objects—alienable "goods"—is intuitively wrong. Thinking of rape in market rhetoric implicitly conceives of as fungible something that we know to be too personal even to be personal property. Bodily integrity is an attribute and not an object.

Systematically conceiving of personal attributes as fungible objects is threatening to personhood, because it detaches from the person that which is integral to the person. . . . For someone who conceives bodily integrity as "detached," the same person will remain even if bodily integrity is lost; but if bodily integrity cannot be detached, the person cannot remain the same after loss.

Radin, Market-Inalienability, supra note 2, at 1880–81. Radin develops this argument in greater detail in Contested Commodities , but despite her denial at this point that bodily integrity is an object, she continues to analyze one's relationship with the body as an object relationship continuous with property.

[18] In one of Radin's early works she expressly includes in her category of personal property the home, cars owned for personal use, and other "things" that have personal significance, such as wedding rings and furniture. Id . at 959–61. She discusses the body in terms of her background assumptions as to what is necessarily personal:

On the other hand, a few objects may be so close to the personal end of the continuum that no compensation could be "just." That is, hypothetically, if some object were so bound up with me that I would cease to be "myself" if it were taken, then a government that must respect persons ought not to take it. If my kidney may be called my property, it is not property subject to condemnation for the general public welfare.

Id . at 65–66.

It is only later that Radin expressly addresses the body—specifically the female body—as an object of personal property. See, e.g ., Radin, Market-Inalienability, supra note 2, at 1921–36 (discussing alienability of female reproductive capacity). Even then there is a tension in Radin's analysis on this issue. At some moments, she recognizes the body as property, see Radin, Reinterpreting Property, supra note 2, at 41, but at other moments she expresses the concern that there is something anti-intuitive and alienating in this analysis, see Radin, Market-Inalienability, supra note 2, at 1880–81. Rather than concluding from this that her theory does not reflect traditional property categories at all but is concerned with rights of bodily integrity, Radin suggests that some things (such as the body) might be both property and inalienable. The more an object of property is located on the personal end of the spectrum of relationships, the more market-inalienable it should be. Id . at 1903.

Personal property connects with inalienability, which means inseparability from the holder. Since personal property is connected with the self, morally justifiably, in a constitutive way, to disconnect it from the person (from the self) harms or destroys the self.

Radin, Contested Commodities, supra note 2, at 59–60. "Certain external things, for example, the shirt off my back, may also be considered personal property if they are closely enough connected with the body." Radin, Reinterpreting Property, supra note 2, at 41.

[19] For example, Radin notes:A person cannot be fully a person without a sense of continuity of self over time. To maintain that sense of continuity over time and to exercise one's liberty or autonomy, one must have an ongoing relationship with the external environment, consisting of both "things" and other people. One perceives the ongoing relationship to the environment as a set of individual relationships, corresponding to the way our perception separates the world into distinct "things." . . . In order to lead a normal life, there must be some continuity in relating to "things."

Id . at 64. See also Radin, Contested Commodities, supra note 2, at 55. This argument seems to imply that all things one owns and perceives as part of one's continuing environment are to some degree personal. Nevertheless, Radin insists that some objects are not significant to self-constitution and are, therefore, fungible.

into contact with other humans without symbolic, concealing, identifying, medical, useful, beautifying, and other objects. Even in our most intimate moments with our lovers, we are rarely if ever truly naked. We use diaphragms, condoms, and other barriers to protect ourselves from our relationship. Radin concludes from this that we can relate to objects external to our bodies in a way that is not merely analogous to, but substantially identical with, the way we relate to our bodies. She considers this to be intuitively self-evident.

Most people possess certain objects they feel are almost part of themselves. These objects are closely bound up with personhood because they are part of the way we constitute ourselves as continuing personal entities in the world. They may be as different as people are different, but some common examples might be a wedding ring, a portrait, an heirloom, or a house.^[20]

That is, we become sentimentally attached to things. Radin argues that these nostalgic object relations can serve the same positive function as body

[20] Id . at 959. I do not agree with the intuitiveness of Radin's observations. Instead, I believe such close identification with most objects is anti-intuitive—a combination of mawkish sentimentality and fetishism—as well as destructive to human freedom. Although I cannot imagine my self as separate from my body, I do not feel that my selfhood is reducible to my body. Rather than intuitive, I believe my understanding of my selfhood results from my strict Roman Catholic upbringing, which stressed the fundamental tenet of Catholicism that humans are not souls trapped in bodies—rather, we are both spirit and flesh. See generally Caroline W. Bynum, Fragmentation and Redemption: Essays on Gender and the Human Body in Medieval Religion (1991).

Whatever my personal identification with my body, I do not feel that I identify with other objects that I own. I have some sentimental attachment to my wedding ring in the sense that I usually wear a ring as a reminder of my husband and a symbol of my status as a married woman. I might agree that insofar as this relationship and status are intimate parts of my personality, wearing a ring could be considered significant to my sense of self—but I do not see how this leads to the conclusion that I identify my ring with myself. Despite what Radin says, although I would be disappointed if my ring were lost, I believe that I would feel perfectly satisfied if I received insurance or damages sufficient to purchase a replacement ring of at least equivalent value.

relations in enabling an individual to achieve personhood.^[21] Indeed, we cannot draw a bright line between those objects that are our bodies and other objects:^[22]

When an item of property is involved with self-constitution in this way, it is no longer wholly "outside" the self, in the world separate from the person; but neither is it wholly "inside" the self, indistinguishable from the attributes of the person.^[23]

Radin, consequently, claims that her theory is not based on a liberal notion of negative freedom, which posits "an absolute conception of property as sacred to personal autonomy," but that it reflects "an affirmative notion of an individual being bound up with an external "thing.'"^[24] Indeed, she argues that individuation and integrity require the continuity supplied by personal property object relations.^[25]

2—
The Elements of Property

a—
Possession

Implicit in Radin's use of the word "property" to describe the object of property, rather than the legal rights with respect to the object, is a decision not to specify the elements which constitute property. Indeed, she condemns the attempt to articulate an enumerated set of rights as property as "naive conceptualism."^[26] Thus, she criticizes the elaboration of what she calls the "liberal triad"^[27] of property rights (i.e., possession, use, and alienation) as conservative, rule-like thinking.^[28] Nevertheless, for Radin to speak of property, she could not avoid adopting implicit

[21] See, e.g ., Radin, Contested Commodities, supra note 2, at 57–58, in which she states that things generally can further self-constitution, while noting that overconnection with certain things (fungible property) might be destructive.

[22] Radin notes that although "the boundary between person and thing cannot be a bright line, still the idea of property seems to require some perceptible boundary." Radin, Property and Personhood, supra note 2, at 966.

[23] Radin, Contested Commodities, supra note 2, at 57.

[24] Id . at 957–58. More recently she cites with favor Martha Nussbaum's lists of human limits and capabilities, and circumstances necessary to live a good human life. Radin, Contested Commodities, supra note 2, at 66–67.

[25] Radin, Contested Commodities, supra note 2, at 55.

[26] Radin, Reinterpreting Property, supra note 2, at 122. Radin particularly condemns Richard Epstein for assuming there is a "real Platonic form" of property. Id . at 121–23.

[27] Id . at 121–22.

[28] Id . at 132. Radin describes the attempt to give fixed meaning to the word "property" as used in the Constitution as "semantic reductionism." Id . at 122. Radin discusses the three traditional elements of property only to critique a mode of constitutional analysis that would protect all three rights in all circumstances regardless of the type of object involved. Id . at 139–42.

definitions of property rights. That these definitions are left implicit does not mean that they do not function. To analyze fully Radin's arguments, it is necessary to make explicit these implicit definitions.

The binding of the individual to thing implies that Radin privileges use and enjoyment over alienation and even possession as the premier aspect of property. This enjoyment concept of property rights manifests itself in the specific examples of personal property that Radin offers. It is not clear that Radin even identifies "possession" per se as an essential personal property right. Because her personal/fungible dichotomy flows from an enjoyment/instrumental dichotomy, even the right of possession loses its importance and becomes conflated with, or subsumed into, the right of enjoyment. That is, possession is required only insofar it is the most primitive element of property, necessary before there can be enjoyment. For example, her discussion of whether we should recognize a constitutional right against governmental interference with possession of personal or fungible property quickly devolves into a discussion of use. Radin asks us to

[s]tart with physical occupation—possession or the fundamental right to exclude others. . . . A normative inquiry would also be required: for what types of property interests is it ethically appropriate to permit and foster interconnection with persons? Use of property as one's residence is more closely connected to personhood than use of property as a garbage dump for one's factory.^[29]

In other words, to Radin, it would seem that possession per se is not essential to property or particularly worthy of protection. Rather she would protect only that accidental possession which is necessary for specific, favored types of enjoyment—feminine sensuous experience.

Further evidence of the privilege of use over possession is the enhanced right that Radin would recognize in tenants to continue to occupy their primary residences upon the end of the lease term, limiting the right of commercial landlords to evict tenants at the end of their terms.^[30] Radin makes the distinction that the apartment is personal to the tenant, because the tenant's personhood is wrapped up in her home. The same apartment is fungible to the landlord, because his relationship to it is purely financial.^[31] The implication is that the favored right in personal property, as epitomized by the tenant and her apartment, is sensuous use as a primary

[29] Radin, Reinterpreting Property, supra note 2, at 139.

[30] Id . at 57–59.

[31] Radin notes, however, that some landlords have "personhood" interest in their rental property, such as duplex owners who rent out one-half of their building. Id . at 58.

residence. Not only is the tenant not attempting to alienate the apartment, Radin would limit the tenant's power to alienate it. She suggests making all residential leases automatically renewable at the option of the lessee, thereby denying the right, power, or privilege of a tenant to enter into a nonrenewable lease (which would almost certainly entail a lower rent).^[32]

b—
The Fear of Alienation

Because Radin's theory is based on identification with the feminine object of desire, alienation is not merely deemphasized like possession, it is affirmatively denigrated. Indeed, to the extent pragmatically possible, market-alienation should be prohibited:

Since personal property is connected with the self, morally justifiably, in a self-constitutive way, to disconnect it from the person (from the self) harms or destroys the self. The more something takes on the indicia of an attribute or characteristic of the self, or at least the self as the person herself would wish, the more problematic it seems to alienate it, and the stronger the inclination toward some form of inalienability.^[33]

That is, she imagines that if we can just remove the object of desire from the symbolic order of law, we can more easily merge with it and reenter the real. Radin's theory of personhood as identification with the female body as object is therefore reminiscent of Lacan's psychoanalytic theory, which states that in the symbolic order, the Feminine is conceptualized as the object of desire and that the masculine subject constitutes himself through the exchange with other subjects of the object as the Feminine. If one views personhood not from the psychoanalytically masculine position of subjectivity but from the psychoanalytically feminine position of objectivity, then to be the object of commodification (exchange) is threatening. According to Radin, "[c]ommodification stresses separateness both between ourselves and our things and between ourselves and other people."^[34] Sale of the female body is not a right but an un-right that should be a legal wrong.^[35]

Actually, Radin is deeply ambivalent both as to the relative values of separateness and connection and as to property's role with respect to these values. In at least one place, Radin argues that her concept of personal property increases, rather than decreases, separation.

[32] Id .

[33] Radin, Contested Commodities, supra note 2, at 59–60.

[34] Radin, Market-Inalienability, supra note 2, at 1907.

[35] That is, in an ideal world. Radin recognizes that a different legal result might be necessary in a nonideal world, however.

It may be shown that certain functionings can be served by a form of private property; individual separateness, in particular, and the need to live one's life in one's very own context. When property actually serves this function in a justifiable way, I have called it personal. . . . [T]his form of justification of private property is "contingent and controversial," since it will collapse as a justification if someone shows, to the contrary, that the context of noninterference required for human functioning does not include private property.^[36]

Following Martha Nussbaum, however, Radin considers individual separateness to be only one possible capability of humanness, and by no means the most elemental or important. Other human capabilities, which Radin seems to privilege, include affiliation with other humans and relatedness to other species and to nature.^[37] She insists that "[i]n human life as we know it, self-constitution includes connectedness with other human beings and also with things in the world. . . ."^[38] And so, Radin is on the one hand concerned that what she calls market-alienability or commodification of certain intimate objects will cause the over-separateness of radical individualism, and the resulting objectification and subordination of women, among others. On the other hand, since Radin concludes from the empirical fact that people are born as dependents in society that they start interconnected, she posits that we need property rights in intimate objects in order to achieve "proper" individuation.

Radin eventually comes to the conclusion I suggested at the beginning of this chapter. Feminine personhood requires the withdrawal from the intersubjectivity of society which the identification with, and enjoyment of, objects allows.

The conception of human flourishing we have been considering generates a basic requirement of "being able to live one's own life in one's very own surroundings and context." This requirement follows from the basic understanding that human beings are separate individuals; the idea is that separation from other human beings, individuation, is accomplished in part by particularized connection with things.

In other words, in this conception of human flourishing separation does not connote the idea of alienability of all of the self's attributes and possessions, but rather something like its opposite: it refers not to separation of the person from her environment, but rather to separation of one person from another person, with the premise being that for that kind of sep-

[36] Radin, Contested Commodities, supra note 2, at 75 (emphasis added).

[37] Id . at 66–68.

[38] Id . at 57.

aration to be instantiated in the world, a certain kind of specific connection to one's environment may be needed.^[39]

In Hegel, we seek objects derivatively in order to interrelate with others. In Radin, we seek objects in order to become disentangled from others.

3—
Enjoyment; Interference as Violation

Radin's identification of property with the female body is most apparent in her latest work.^[40] Consider two examples she discusses in detail—prostitution (which overwhelmingly involves male johns and female prostitutes) and surrogate motherhood. Her discussions of prostitution and surrogacy revolve around what she calls a "double bind"—that is, the conflict between woman's ability to enjoy her body sensuously in a personal, nonmonetary way and commercially in a fungible, monetary way.^[41]

Her powerful critique of Richard Posner's attempt to analyze rape in "terms of a marriage and sex market"^[42] provides an even stronger example. Radin condemns Posner's utilitarian balancing of the rapist's pleasure versus the victim's displeasure on the grounds that they are incommensurable.^[43] Although she does not use my terminology, her argument in essence is that a woman's enjoyment of her body is qualitatively different from any possible enjoyment which a rapist could have.^[44] She expressly argues that bodily integrity should not be thought of as an object separate from the subject that can be bought and sold.^[45] Posner applies the masculine metaphor for property to rape and therefore conceives of bodily integrity as an object that one can hold in the element of possession, or exchange through the element of alienation. When one privileges the

[39] Id . at 76.

[40] Id . Radin discusses the sale of body parts in another article as well as in Contested Commodities . Margaret Jane Radin, Justice and the Market Domain, in Markets and Justice 165 (John W. Chapman & J. Roland Pennock eds., 30 Nomos, 1989) [hereinafter Radin, Justice and the Market Domain ]. Although Radin calls this article a companion piece to Market-Inalienability , it does not expressly discuss selling body parts in terms of property law, which, in my opinion, makes it one of her stronger articles.

[41] Radin, Contested Commodities, supra note 2, at 123–30.

[42] Id . at 86.

[43] Posner's approach is wrong because "market rhetoric conceives of bodily integrity as a fungible object." Id . at 87. Radin argues that "[f]ungible property is related to commensurability," id . at 59, and that "[p]ersonal property is related to incommensurability," id . at 60.

[44] She chastises Posner for not citing "as an objection the idea that the purported pleasures of the rapist should not count at all." Id . at 86. That is, it is fundamentally wrong to even compare the rapist's enjoyment with the victim's experience.

[45] Or, in the case or rape, stolen. Id . at 87–88.

element of possession, then interference with bodily integrity as a property right can only be analyzed in terms of castration—my valuable thing has been taken from me. Consequently, the prevention of rape is analogized to the protection of possession. When a rape does occur, Posner adopts the alternate masculine responses to castration: he pretends that it can be cured by exchange—monetary compensation. In contradistinction, unlike a market transaction, or loss of an item of fungible property, the loss of rape changes the victim because it is a loss, or destruction, of some aspect of her personhood.^[46] This is because her theory holds that personhood is partially constituted by those objects which she calls personal property.

At one point in her critique of Richard Posner's analysis of rape she comes close to what I think is the stronger, Hegelian analysis, that some object relations are qualitatively different from the relation known as property. She states:

Bodily integrity is an attribute and not an object. . . . We feel discomfort or even insult, and we fear degradation or even loss of the value involved, when bodily integrity is conceived of as a fungible object.^[47]

Unfortunately, she retreats from this position. Throughout Contested Commodities , Radin insists that she is analyzing body relations in terms of her category of "personal property" and that her analysis is not limited to the body but includes any other thing, such as work and housing,^[48] that properly serves the goal of self-constitution or human flourishing. Indeed, she insists that "[n]ot everything we might be thus [i.e., in such a way as to further proper self-constitution] connected with in the world can be property, but in a property-owning culture, some such things can be property."^[49] In context, it is clear that she means that she believes that the intimate objects she discusses fall within the category of (personal) property.^[50]

Radin's analysis of rape is persuasive in that, psychoanalytically, the fem-

[46] Id . at 88.

[47] Id .

[48] Id . at 109.

[49] Id . at 57.

[50] At this point she notes that "[l]ots of things" are not personal property (i.e., are fungible things which cannot serve the purpose of self-constitution), id ., but by negative pregnant this also means that many things are personal property. That is, her analysis of the body in Contested Commodities is not a break from her earlier analysis of the body as personal property but a continuation of it. Indeed, for her to limit her analysis to the body would violate Radin's fundamental belief that the "the terms 'fungible' and 'personal' do not mark out a rigid binary dichotomy but rather mark the end points of a continuum." Id . at 58.

inine position is the identification with and enjoyment of the object of desire, and we do identify the female body with the elusive object of desire. But the significance for my purposes is that Radin presents her rape analysis as an epitome of her theory of personal property. Personal property is like the female body which we identify with and enjoy. Interference with personal property rights cannot, therefore, be analogized to castration (a taking which can be remedied through exchange) but to rape and violation, an irretrievable loss of self which cannot be replaced. It can only be acknowledged and mourned in a process which enables the self to move on and rebuild a new, but inalterably different, life. Consequently, in the latter part of her book Contested Commodities ,^[51] Radin offers a persuasive criticism of our current system of monetary damages for personal injury on the grounds that it treats the tort as a sale of a body part from the tort victim to the tort-feasor, rather than as a loss of self. In my terminology, traditional tort law adopts the masculine metaphor which perceives loss as castration (the taking of the object of desire which can be cured by the future exchange for a new object of desire) whereas Radin adopts the feminine metaphor which perceives loss as violation (the irretrievable change in both the subject and her object of desire which cannot be cured, only acknowledged and mourned).^[52]

4—
The Donning of the Chador

Although this response seems initially feminine, as I have already suggested, a closer reading will reveal that Radin might be adopting a harsh masculine approach to female virginity. In her most recent work, Radin is primarily concerned with "commodification." She is not merely concerned that loss of personal property would deprive the owner of her personhood. If this were so, she would merely advocate stronger protections of the rights of enjoyment and, therefore necessarily, possession of personal property. Rather, as she makes clear in her analysis of the law of prostitution, surrogate motherhood, rape, and personal injury, she is concerned that allowing the free market-alienability of personal property by anyone can lead to the commodification of that class of personal property and, therefore, the subordination of women generally.^[53] She considers the very rhetoric of alien-

[51] Id . at 184–205.

[52] I develop at great length a similar analysis of the Law and Economics analysis of environmental nuisances first developed by Guido Calabresi and Douglas Melamed, in Jeanne L. Schroeder, Three's a Crowd: Calabresi and Melamed's Repression of the Feminine (1997) (unpublished manuscript, on file with author).

[53] "If sex were openly commodified in this way, its commodification would be reflectedin everyone's discourse about sex, and in particular about women's sexuality." Radin, Contested Commodities, supra note 2, at 133.

ation to be alienating.^[54] It is not enough that I protect my personal property and that I refrain from alienating it, it is necessary that we as a society discourage market-alienability of personal property as much as practical.^[55] In order for feminine subjectivity to reenter the real by merging back with the object of desire, the object of desire that is the Feminine must be rescued entirely from the symbolic order of exchange among masculine subjects. This reflects the masculine fear that feminine dignity is so delicate, and feminine will so weak, that for any woman's integrity to be preserved, it is necessary to require all women to be chaste. It is not enough that some be allowed occasionally to seek refuge in the privacy of the veil and the convent; all women must be hidden under the chador and in purdah.

5—
The Inalienability of Nonbody Objects

The problem with Radin's analysis is that she refuses to limit it to a consideration of a subject's proper interest in her own bodily integrity, but insists on applying it to the entire intersubjective realm of property. I have just shown how her attempt to analyze the sale of feminine sexuality in terms of property leads her to adopt imagery reminiscent of masculine control of feminine sexuality. When applied to more conventional categories of "personal" property, it leads to results which seem intuitively unattractive if not outright absurd.

What objects other than the body are personal property? Radin believes that the home is personal property, as can be seen in her analysis of automatic renewal clauses in leases and her defense of rent control. Radin also argues that the Fourth Amendment right against unreasonable searches should be extended to personal automobiles because of the close identification that Americans tend to have with their cars, as well as the

[54] Radin, Market-Inalienability, supra note 2, at 1877–87; see also Radin, Justice and the Market Domain, supra note 40, at 167–68, and Radin, Contested Commodities, supra note 2, at 79–101.

[55] Radin tries to distinguish herself from idealist anti-commodifiers like certain Marxists in that, although she believes that market-alienation of personal property leads to commodification, she does not believe that this is an either-or proposition, or a slippery slope where any market relations lead to complete commodification. She believes that we can have a regime of "incomplete commodification." See Radin, Contested Commodities, supra note 2, at 102–14. More important, as a pragmatist, she believes that absolute positions cannot work in a nonideal world. In an imperfect world, ideal solutions can lead to unanticipated side effects such as the "double bind" facing poor women. This is the familiar economic notion of the problem of the second best.

right to privacy.^[56] The rights which would be so protected would only be exclusive possession and quiet enjoyment but not the right to alienation or other rights to earn financial gains through the use or sale of the car.^[57] Indeed, locating the primary residence and the personal automobile on the personal end of the personal/fungible property spectrum suggests not just that alienation should not be especially protected but that perhaps it should be restricted. That is, Radin argues that alienation of the most personal of property is alienation of the self. If the consumer's relationship with her automobile is entitled to Fourth Amendment protection, because the automobile is personal property, should not the market-alienability of the personal automobile be prohibited or at least restricted?

Presumably, Radin would not argue that human flourishing requires such identification with our cars that we should be limited in our ability to sell them. Such identification would be precisely what she calls "fetishism." But does this suggest that we, in fact, either do not or should not identify automobiles with our personhood and that they are not personal property within Radin's schema? If so, her position on searches and seizures concerning automobiles is defeated. Radin might respond that the automobile may be personal for some purposes and fungible for others.

As we have seen, however, in limiting termination clauses in leases, Radin is suggesting some limitations on alienability of homes in that she advocates mandatory renewal clauses in the case of leases of primary residences. I would suggest, however, that even Radin does not really propose this because she recognizes, or wants to encourage, identification between the apartment dweller and her apartment. This can be seen by the fact that Radin is not suggesting that I, a highly educated, well-paid lawyer, should not have the right freely to alienate my expensive New York City apartment. Rather, she wants to protect poor people from richer people (landlords) who presumably have greater bargaining power. Conse-

[56] Radin, Reinterpreting Property, supra note 2, at 59–63. The discussion of the automobile exemplifies the problem of the "pragmatic" approach to identifying personal property. As Schnably points out, Radin's "consensus" approach in Property and Personhood risks degenerating into a conservative preservation of the status quo. See generally Schnably, supra note 3. I am aware that people in most of this country identify with their automobiles. Like most New Yorkers, however, I am delighted not to own an automobile. To me, an automobile is the ultimate fungible good—something to be rented on an as-needed basis. The American "love affair" with the private car strikes me as fetishistic on the individual level, but also destructive on the social level given the negative environmental effects of cars and the damage to inner cities from the commuting culture.

[57] See, e.g ., Radin, Reinterpreting Property, supra note 2, at 62 n.122 (220).

quently, although we, as a society, probably want to recognize the right of consumers freely to sell and trade in their own cars so that they get the highest price, we might also decide to limit their ability to transfer their cars through hypothecation in the sense of imposing restrictions on the power of a secured creditor to repossess an automobile from a defaulting consumer. Indeed, our law imposes many such paternalistic limits on the ability of consumers to hypothecate their possessions.^[58] This distinction cannot be grounded in Radin's definition of personal property as being necessarily bound up with personhood. The fact that for many purposes we consider the automobile to be fungible suggests that, despite Radin's intuitions, we do not confuse our cars with our personhood.

The problems of Radin's analysis can be seen vividly in one of Radin's favorite examples of a proper and healthy relationship with personal property—the bride who so identifies with her wedding ring that its loss would be a loss of self that could never be replaced. Fans of J.R.R. Tolkien will no doubt recognize the similarity of this relationship to that of Gollum and the Ring of Power. Poor Gollum so identified his selfhood with the Ring that he referred to both his self and the Ring by the same name, "My Precious." The loss of the Ring was such a loss of self that it drove

[58] For example, the Bankruptcy Code makes most non–purchase money security interests in personal and household goods unenforceable in bankruptcy. 11 U.S.C. 522(f)(2) (1988). The Federal Trade Commission's ("FTC's") Credit Practices Rules makes non–purchase money security interests in household goods unlawful as an unfair trade practice. 16 C.F.R. 444.2 (1994). Article 9 of the Uniform Commercial Code limits the enforceability of after-acquired property clauses in security agreements covering consumer goods and imposes somewhat greater protections of the debtor in the foreclosure of security interests in consumer goods than it does in the case of other forms of collateral. U.C.C. § 9-204(2), 504(2) (1994). Personal automobiles would not fall within the protected class of collateral under the Bankruptcy Code or the FTC rule, although they can constitute consumer goods under Article 9. Id . 9-109 cmt. 2.

We also restrict creditors in a variety of other financial transactions out of a paternalistic desire to save consumers from themselves and others. For example, the FTC attempts to limit people's ability to alienate their money by signing promissory notes in consumer sales transactions. FTC Rule 433, 16 C.F.R. 433.2 (1994). Certainly, we do not do this to foster an intimate relationship between a fool and her money. Instead, the case law under Bankruptcy Code 522(f)(2), 11 U.S.C. 522(f)(2) (1988), suggests that Congress made most non–purchase money hypothecations of household goods unenforceable because used household goods typically have substantial use value to the consumer but low resale value (i.e., exchange value) to the creditor. See David Gray Carlson, Security Interests on Exempt Property: Their Fate in Bankruptcy , 2 J. Bankr. L. & Prac. 247, 255 (1993). Consequently, creditors take such security interests not to obtain sufficient collateral to ensure the payment of their loans but to obtain hostage power over the debtor. Id . Presumably, automobiles are not exempt goods like household goods because used cars retain greater exchange value than used household goods.

Gollum to utter depravity, and eventually death.^[59] This is to be expected since the desire to achieve wholeness through identification with the object and submersion back into the real is Thanatos .

B—
Pluralism, Pragmatism, and Contradiction

Radin does not believe that her intuition about personal property leads to the conclusion that all object relations are good. Some relations with some objects are inappropriate and fetishistic.^[60] We need,

[59] J.R.R. Tolkien, The Hobbit, or There and Back Again (1938); J.R.R. Tolkien, The Lord of the Rings (2d ed. 1965).

For those few readers who somehow escaped adolescence without having read, or seen one of the animated versions of, The Hobbit and The Lord of the Rings , Gollum was once a hobbit (or similar creature) named Smeagol. He found the cursed mystical Ring and became so obsessed with it that he became a murderous recluse who shriveled to a miserable froglike form. When we first meet Gollum in The Hobbit , he dementedly mumbles his thoughts out loud, addressing himself as "My Precious" and referring to the Ring as the "Birthday Present." By the end of The Lord of the Rings , however, his identification with the Ring has become so complete that he now also addresses the Ring as the "Precious." In the final scene, Gollum achieves the ultimate jouissance of identity with object and submerges back into the real. He regains the Ring and plunges to his death in the fires of Mount Doom shrieking in ecstasy, "Precious, Precious, Precious! . . . My Precious, O my Precious." J.R.R. Tolkien, The Lord of the Rings, vol. 3, The Return of the King 224 (2d ed. 1965).

[60] Radin, Market-Inalienability, supra note 2, at 43. An interesting comparison can be made between Radin's personal/fungible dichotomy and John Ruskin's distinction between "wealth" and "illth":

Wealth, [Ruskin] concludes, is this the possession of useful things by those who can use them. Useful things are those that nurture life. . . . To the degree that possessions cause bodily harm, as in the story of the drowned man, to the degree that they incapacitate or make people ill, they are "illth."

Catherine Gallagher, The Bio-Economics of Our Mutual Friend, in 3 Fragments for a History of the Human Body 345, 346 (Michel Feher et al. eds. 1989). The story referred to is that of a man who drowns because he cannot let go of a bag of gold. "Now as he was sinking—had he the gold? or had the gold him?" Id . at 345 (quoting Ruskin). The primary difference between Ruskin and Radin is that the former seems to concentrate largely on the physical well-being of the owner whereas Radin is concerned primarily with her psychological well-being.

A seemingly more modest, but perhaps more fruitful, analysis of the apparent dichotomy between different forms of property holding is offered by Bernard Rudden in Things as Thing and Things as Wealth , 14 Oxford J. Legal Stud. 81 (1994). Rudden notes that people sometimes own some objects of property for their own sake, largely for sensuous enjoyment (things as things), and sometimes as a receptacle for value (things as wealth). Of course, sometimes the same object is owned for both purposes (such as one's home). Unlike Radin, he offers this as a descriptive fact, rather than as a normative judgment. He suggests that property law could be made more coherent if we were to be more express as to when we are picturing which form of property and trying to protect which function of property. Hebelieves that his characterization is richer and potentially more useful than the obviously similar economic use value–exchange value dichotomy.

therefore, to distinguish between the objects of property that "become justifiably bound up with the person"^[61] from those that do not. Radin defines that class of objects bound up with the personhood of their owners as "personal property."^[62] She describes property that people hold for purely instrumental reasons as "fungible property."^[63] The way to distinguish between the fungible and personal property is by comparing

the kind of pain that would be occasioned by its loss. . . . If a wedding ring is stolen from a jeweler, insurance proceeds can reimburse the jeweler, but if a wedding ring is stolen from a loving wearer, the price of a replacement will not restore the status quo—perhaps no amount of money can do so.^[64]

Radin's work, to date, has primarily concerned identifying and distinguishing objects that are personal property from those that are merely fungible property and explicating the protections that the law should accord her favored category of personal property. Styling herself a "pluralist"^[65] and a pragmatist,^[66] Radin claims to reject the notion that all mar-

[61] Radin, Reinterpreting Property, supra note 2, at 138; see also id ., at 38. The mere fact of being bound up is not sufficient to constitute an object as personal property. Radin's definition of personal property can differ between different subjects, but it is not purely subjective. Id . at 37. No one is more bound up with an object than a fetishist is with his fetish. Nevertheless, Radin deems this relationship to be unjustified and destructive of personhood. Id . at 38.

[62] Radin, Reinterpreting Property, supra note 2, at 37. I reluctantly adopt Radin's terminology for the purposes of this chapter. The terms "personal" and "fungible" property already have very well recognized meanings in private law that differ significantly from Radin's usage. Generally, "personal" property refers to objects that are not "real" property, such as chattels and intangibles. "Fungible" property refers to objects that are practicably indistinguishable from others. In conventional terminology the same item—such as a grain of wheat—can be both personal and fungible. Indeed, under traditional equitable principles only personal property is fungible in the sense that individual parcels of real estate are thought to be so unique as to justify specific performance of real property contracts.

[63] Radin, Reinterpreting Property, supra note 2, at 37. Radin recognizes that her dichotomy has similarities to, but is not identical with, Marx's dichotomy between objects held for use value and objects held for exchange value. Id . at 51, 53–55.

[64] Id . at 37. Radin further maintains that "object-loss is more important than wealthloss because object-loss is specially related to personhood in a way that wealth-loss is not." Id . at 65. Of course, in Hegelian vocabulary, "wealth" is every bit as much an "object" as physical things are.

[65] Radin, Market-Inalienability, supra note 2, at 1857–59.

[66] Id . at 1856, 1883.

ket relations inevitably alienate personhood.^[67] She does not, however, suggest an affirmative role for the market in the development of personhood. Rather, she remains, at best, ambivalent about it. She sees

a normatively appropriate but limited realm for commodification coexisting with one or more nonmarket realms. . . . For a pluralist, the crucial question is how to conceive of the permissible scope of the market.^[68]

Yet Radin comes close to suggesting that in an ideal world, we would reject markets and commodification entirely.^[69] As a pragmatist, however, she argues that in an imperfect world, markets and commodification need to be preserved as imperfect tools:

One ideal world would countenance no commodification; another would insist that all harms to personhood are unjust; still another would permit no relationships of oppression or disempowerment. But we are situated in a nonideal world of ignorance, greed, and violence; of poverty, racism, and sexism. In spite of our ideals, justice under nonideal circumstances, pragmatic justice, consists in choosing the best alternative now available to us. . . .

The possible avenues for justifying market-inalienability must be reevaluated in light of our nonideal world.^[70]

In other words, commodification of fungible goods is not harmful because they "have little to do with self-constitution."^[71] But Radin nowhere recognizes the possibility that market (commodification) may in property circumstances be affirmatively beneficial to personhood.

By way of pragmatic compromise, Radin argues that commercial prostitution can slide down the slippery slope whereby feminine sexuality and, therefore, female personhood and human relations become commodified and women objectified.^[72] But she also recognizes the "double bind" that prohibiting prostitution and criminalizing prostitutes may rob poor women of their only opportunity to make money and achieve even

[67] Id . at 1857, 1870–74. Radin states, "Market-inalienability posits a nonmarket realm that appropriately coexists with a market realm, and this implicitly grants some legitimacy to market transactions, contrary to the non-commodifier's premise." Id . at 1875.

[68] Id . at 1858.

[69] Radin does pull back and suggest, however, that even in an ideal world the commodification of some products in market relations would continue. Id . at 1903.

[70] Id . at 1915.

[71] Radin, Contested Commodities, supra note 2, at 57.

[72] Radin, Market-Inalienability, supra note 2, at 1922–23; and Radin, Contested Commodities, supra note 2, at 132–34.

a minimal amount of power and personhood.^[73] She concludes that, although it might be unjust to discuss women's sexuality completely in terms of the market, there may be a pragmatic argument for allowing some limited commodification of sexual services, for example, by decriminalizing prostitution, but prohibiting its commercial exploitation through pimping, recruitment, and advertisement.^[74] Consequently, Radin's theory fails to progress toward a complete law of property perse, in the sense of legal relationships among persons concerning external things.^[75] Instead, it offers an alternative to property for a specific favored class of objects that become internalized to the owner. This is the solution proposed by Hegel, although, as we shall see, Hegel's category of things which should be inalienable as a matter of abstract right is much smaller than Radin's category of objects which should be market-inalienable to further personhood. According to Hegel, although all external things may initially be candidates for being objects of property, some objects become so internalized to the owner as to become part of the owner's personality.^[76]

Perhaps most telling, Radin's disparagement of the market belies her personal/fungible property dichotomy and reveals the fundamentally solipsistic nature of her theory. As we have seen, she claims that if proper identification with personal property furthers human flourishing, then improper identification with fungible property is unhealthy fetishization. This implies that human flourishing requires that we should separate from, rather than identify with, fungible property. If, as Radin suggests, commodification and market relations (i.e., property and contract) are separating by their very nature, then human flourishing should be furthered by a market in fungible goods. Yet Radin can only grudgingly bring herself to support markets for pragmatic reasons in an imperfect world, and can imagine no intrinsic positive role for market in the development of personhood.

[73] Radin, Market-Inalienability, supra note 2, at 1915–17; and Radin, Contested Commodities, supra note 2, at 127–30, 132.

[74] Radin, Market-Inalienability, supra note 2, at 1934–35; and Radin, Contested Commodities, supra note 2, at 134–35.

[75] In her most recent work, she tries to make a virtue out of this. As a self-identified pragmatist, she claims that her explorations are "retail rather than wholesale—sticking fairly close to the details of context and [that she is] not engaging in a search for a grand theory. In [Radin's] view, no one theory is suitable for all cases of contested commodification." Radin, Contested Commodities, supra note 2, at xii.

[76] See G.W.F. Hegel, Elements of The Philosophy of Right 95–97 (H.B. Nisbet trans. & Allen E. Wood ed., 1991) [hereinafter Hegel, The Philosophy of Right].

C—
Market Rhetoric

One of Radin's main arguments against the utilitarian analysis of human relations as market relations is that rhetoric has substantive effect—the rhetoric of alienation is itself alienating. Although I sympathize with Radin's condemnation of utilitarian analysis, her specific critique defeats itself. By labeling what might be more accurately analyzed as a jurisprudence of expanded bodily integrity as an account of property, Radin has all but given in to, rather than successfully challenged, the super-Benthamite claim that all human-object relations are property relations. This reduces her fundamental critique—that there is something qualitatively unique about our relationship to our bodies and certain other bodylike objects—to a relatively trivial debate over the definition and scope of property rights. For example, because Radin has chosen to analyze both bodily and commercial transactions in terms of property, she tries to downplay the role of traditional property rights in fungible property in the development of subjectivity. This strategy, however, can backfire. The super-Benthamite can agree with Radin's insistence that personal and fungible property are located on the same property spectrum, argue that market-alienability is not only necessary but appropriate for fungible property, and conclude that market-alienability is appropriate for all species of property. Radin, therefore, turns her back on her initial intuition that certain object relations are fundamentally different from commodity relations. Instead, she must make mere prudential arguments justifying limited exceptions to the market.^[77]

Although Radin calls her theory "property for personhood" and insists that she is locating persons within community and that the relationship between person and object is socially mediated, she does not offer an account of property's role in community. To Radin, the property role of personal property is to remove and protect the owner from society. That is, because Radin presupposes community, property can only be seen as a means of separating from community. In an attempt to flee what she sees as the separation caused by property in community (i.e., alienation),

[77] It is for this reason that Steven Munzer insists that, although people have some property rights in their bodies, it is inappropriate to analyze all body rights in terms of property precisely because the concept of property includes alienability. Steven R. Munzer, A Theory of Property 37–58 (1990).

This is a flaw of Radin's argument in Market-Inalienability, supra note 2. Although in that work she claims to take the position that alienability is not a necessary element of property, the form of her argument consists in justifying the inalienability of certain objects, i.e., alienability is implicitly assumed to be the starting point.

she necessarily returns to the ideal of the separate individual protecting her property from societal interference. Accordingly, Radin's theory risks being an account of property of nonsocial individuals, restating the traditional liberal theory of subjectivity as atomistic individuality—the precise opposite of her goal.^[78] The likely result of concentrating only on the individual at this initial stage is the dilemma of classical liberalism—the individual is seen as authentic, but the community is a problem that needs to be explained. And yet, simultaneously, Radin's theory of the individual is not naturalistic but is based on an observation of individuals situated in a specific, concrete community. Such a theory can only be a tool for analyzing the positive law of property within a specific community. It cannot ground a critique of community.^[79]

More specifically, to date, Radin has developed a sensuous notion of property that is limited to protecting consumption. As I have discussed, Radin's main concern is with the sensuous enjoyment of certain objects and, to a lesser extent, with the possession necessary for that enjoyment. This overriding concern evinces a solipsistic notion of subjectivity. Accordingly, she has deemphasized the possessory aspect of property, but, more dramatically, she has disparaged, and in some instances condemned, the intersubjective exchange of property.^[80] Thus Radin leaves us with individuals who recognize themselves through their identification with property, yet never emerge from the walls of their self-imposed convent to interact as members of a community.

In so doing, Radin fails to consider that market alienation may encourage human flourishing in several ways. Market relations enable us to interrelate with other people and thereby become persons. Commodification frees us from overdependence on any specific objects. Market relations help us finance desirable intersubjective activities such as supporting children and other dependents. Market relations force us to become dependent on other persons. The market not only makes community possible, it makes it necessary.

Radin is concerned that too much emphasis on market rhetoric and

[78] The difference between traditional liberalism and Radin's theory is that the former sees the individual property owner as pre -social, whereas she sees him as post -social. That is, property separates people and takes them out of community.

[79] This may be another way of restating Schnably's critique of the inherent conservatism of Radin's theory. See generally Schnably, supra note 3.

[80] Although Radin does suggest that, even in an ideal world, markets would not be abolished, her primary critique of universal noncommodification is pragmatic, not theoretical. Market-Inalienability, supra note 2, at 1871–77, 1903.

too much emphasis on fungible goods will cause universal commodification (commodification of people as well as things). On the one hand, she believes that this is alienating and objectifying. If all commodities are fungible (indistinguishable) by definition, this suggests that the commodification of persons causes them to lose their specific separate identities which, presumably, enable them to interact with each other on a personal level. That is, one person is as good as any other. On the other hand, she states that objectification "conceives of certain characteristics of persons—such as race, sex, or sexual orientation—as marks of lesser personhood."^[81] This can result in the subordination of people who have these commodified characteristics.^[82] Commodification, therefore, does not make all persons fungible, but gives too much importance to specific distinguishing characteristics. In other words, Radin has a confused, but intuitive, sense that treating all "objects" in the Hegelian sense as properly within the regime of property is somehow inhuman. As I have already indicated in the first chapter of this book and shall discuss below, Hegel would totally agree—some objects can become so internalized that they become part of personality and, therefore, not property. The problem is, however, that Radin refuses to make the Hegelian distinction between property and nonproperty. Because she intuits that expanded bodily integrity cannot rightly be subjected to a market regime, but insists that bodily integrity is property, she feels forced to challenge the rightness of the market regime (commodification) generally.

Although her theory of commodification as fungibility in the sense of pure interchangeability permeates her most recent work, it can most graphically be seen in her chapter on the "marketplace of ideas" metaphor, which she thinks treats one idea as being as good as any other.^[83] Although a complete analysis of market theory is beyond the scope of this book, I believe that Radin is somewhat confused as to the nature of commodification because of the contradictory nature of much utilitarian writing on perfect markets. Radin thinks commodification means that all objects have the same status—we are indifferent among different objects of fungible property. It is no doubt true that Law and Economics would maintain that in a perfect market theory all objects eventually reach their exchange value and flow to the highest-valuing user—indeed, insofar as time and distance are themselves imperfections, they will always already

[81] Radin, Contested Commodities, supra note 2, at 157.

[82] Id .

[83] Radin, Contested Commodities, supra note 2, at 164–83.

have done so. Consequently, all market exchange stops in the perfect market because everyone is indifferent between all objects. The perfect market is real in the Lacanian sense.

Radin is correct that much Law and Economics rhetoric constitutes an ostentatious display of indifference. But this is because its practitioners are adopting the second masculine response to castration. As we have seen, the Masculine tries to achieve wholeness by repressing the necessity for the lost object and imagining that immediate binary subject-to-subject relations are possible. But, like all masculine responses to castration, this facade of indifference is a lie. The only reason the Masculine enters into the symbolic order of exchange is not because he is indifferent to the lost Phallus but because he can think about nothing else.

Similarly, the reason why individuals enter into market exchange is because market participants are not indifferent between different objects. I exchange my money for a new pair of shoes because I recognize the shoes as different from and preferable to my money or other objects I could buy with my money. The merchant, in contradistinction, feels the opposite. That is, the very existence of exchange is the confirmation and actualization of differentiation.^[84] For this reason, all real markets are necessarily imperfect.^[85]

It is the exchange of properly externalized objects among persons that leads to the creation of subjectivity. As market society becomes more developed, it becomes more specialized. In the words of Shlomo Avineri, "Man produces not the objects of his own needs, but a general product which he can then exchange for the concrete object or specific objects of his need."^[86] We, therefore, need to engage in transactions with others even to obtain the bare staples for survival. "The dialectics of civil society," according to Avineri, "create a universal dependence of man on man."^[87] That is, prior to a market society, one was limited in persons with whom one was required to interact. One interacted personally with one's family and, perhaps, certain others like neighbors. One had to choose to interrelate with a wider range of persons and, even then, such personal interrelation may have been difficult if not impossible since one was defined generally in society by one's status rather than by one's in-

[84] See Jeanne L. Schroeder, The End of the Perfect Market: A Psychoanalysis of Law and Economics (1997) (unpublished manuscript, on file with author).

[85] See David Gray Carlson, On the Margins of Microeconomics , 14 Cardozo L. Rev. 1867 (1993); and Schroeder, supra note 84.

[86] Shlomo Avineri, Hegel's Theory of the Modern State 91 (1984).

[87] Id . at 146.

dividuality. The market breaks down this structure and forces us to interact as individuals.

In a recent article, J.E. Penner comes to a conclusion similar to Hegel's, albeit approaching this problem from a very different theoretical direction. Property, as a legal right, can only be understood socially. That is, he agrees with Hohfeld that property can only be understood as a relationship between and among legal persons (although, like me, he chides Hohfeld for not recognizing that the relationship of property always relates to a thing). To Penner this means that the most characteristic element of property must by necessity be its most social element. Possession and enjoyment are exclusive by nature. Their intersubjectivity is latent and negative in the sense that they require the expulsion of others. It is only in alienation that property becomes expressly and affirmatively intersubjective. Alienation is, therefore, the quintessential aspect of property.^[88]

Finally, to anticipate a point I shall expand upon shortly, as an empirical matter, most of our relations with other members in our society are, in fact, the "fungible" object relations of commercial law—property and contract.^[89] These are, of course, distant, formal, and abstract relationships that many of us (at least those of us who are not utilitarians) intuitively believe are fundamentally different from, and inferior to, the close, affective relationships we have with friends and family members. Although Hegel insisted on the importance of commodification and the necessity for the regime of civil society (i.e., the marketplace), he was also quite clear that a total market regime impoverishes and demeans the underclasses and that totally commodified labor alienates workers.^[90] Civil society contains the contradiction that it is a regime of complete interde-

[88] J.E. Penner, The "Bundle of Rights" Picture of Property , 43 UCLA L. Rev. 711, 747 (1996). As I discuss in chapter 1, Penner's conclusions are not identical with Hegel's. In his zeal to champion the fact that the intersubjectivity of property is actualized in alienation, he comes close to denying that possession and enjoyment are essential elements of property. Moreover, he incorrectly concludes that alienation through gift is a more social manifestation of property than alienation through contract.

[89] That is, I strongly disagree on empirical grounds with Radin's assertion that "only a small fraction of everything we accept as property could possibly be justified by the conservative standard ideology [i.e., which sees all property as fungible and therefore freely alienable]." Radin, Reinterpreting Property, supra note 2, at 12. In contradistinction, I can think of very few objects I own—including my wedding ring—which I would not gladly trade for a price equal to one "util" above their replacement value.

Perhaps Radin has retreated somewhat from this position in that she has recently maintained that "lots of" and "many" things are fungible property which may be relatively harmlessly (if not properly or beneficially) commodified. Radin, Contested Commodities, supra note 2, at 57.

[90] Even though Hegel does not present his analysis of poverty at length in The Phi -losophy of Right , Westphal believes that Hegel's analysis of poverty represents an important critique of the market and constitutes one of the contradictions that will lead to the sublation of civil society by the state under Hegel's theory. Merold Westphal, Hegel, Freedom, and Modernity 34–35 (1982). As Avineri explains, Hegel expounds on the idea of the degradation of the "rabble" more thoroughly in his earlier writings, and only some dim echoes of it found their way into The Philosophy of Right . Avineri, supra note 86, at 98.

pendence of all of its members, but it is characterized by egoism, whereby each member considers himself to be the atomistic individual of classical liberalism. Consequently, Hegel argued that it is logically necessary both to preserve and yet to limit commodification. Limitation is achieved in the family, which is characterized by particular altruism, and in the state, which is characterized by universal altruism.^[91]

In other words, Radin is correct to chastise utilitarians for analyzing intimate love relations of family and friendship solely in terms of the market. But Radin herself must be chastised for criticizing all market relations for not being intimate. Indeed, it is precisely my point that it is incorrect to analyze erotic relations in terms of the traditional imagery of market relations because the latter does not recognize that even the market is erotic. In other words, Law and Economics is correct in recognizing that the market and other human relations share a fundamental essence, but incorrect in concluding from this that the latter can be reduced to the former. In contradistinction, the Hegelian would argue that the former is a primitive and inadequate aspect of the latter. It is desire for recognition by the Other, and not the accumulation of utility, that drives mankind.

D—
Fungible Property

Finally, most mundanely, Radin's "property for personhood" dichotomy does not provide a tool that is useful for analyzing fungible property. Even if one accepts her self-characterization that she is developing a theory of property per se, rather than, for example, a theory of expanded bodily integrity, her theory is still inadequate to her purpose at this time. Radin claims not to be engaged in the philosophical task of positing abstract human nature. Rather, she claims to be a pragmatist analyzing concrete individuals located within a specific society—postindustrial America. This is a society built in large part around market relations and hundreds of years of property practice. An analysis of property that fails to provide tools for analyzing the market and the role

[91] Id . at 134.

the market plays in developing the personality of people in our society has limited pragmatic utility. So far, Radin's analysis comes close to a condemnation of the market generally—commodification is dangerous to personality because it causes objectification and separateness—modified by a grudging realization that some market relations must be preserved as a practical matter. In an imperfect world, total decommodification may also be dangerous to personality because it might further disempower the weak. This analysis can be powerful if it justifies removing some human and object relations from the market and from property analysis. By labeling as "property" the objects that her theory teaches should be eliminated from the legal realm of property relations, however, she not only obscures the analysis but also leaves no tool for analysis of those object relations (what she calls relations with fungible property) that are appropriately left to the market and the traditional private law of property.

Moreover, Radin's use of the implicit feminine phallic metaphor for property, together with her disparagement of exchange, forces her to conflate property objects with physical objects, and property rights with sensuous enjoyment. This makes it an inappropriate starting place for analysis of some of the most economically important types of property in contemporary society, such as intellectual property and other incorporeals, which have no tangible existence. By justifying property solely in terms of its constituting function for the natural individual, she is left with no account of the way the largest aggregations of wealth are amassed and held in our society—collectively, but not governmentally, by private business organizations.

To put it another way, perhaps because she concentrates on the subject's identification with her objects, she does not consider the intersubjective reasons why people own fungible property. For example, investment property such as treasury notes and stock in publicly traded corporations would seem to be the ultimate "fungible property."^[92] People often choose to forgo acquiring "personal property," such as a nicer house, car, or wedding ring, in order to purchase "fungible property" as a means to finance activities which are central to human flourishing, such as saving to pay for one's children's education. And yet Radin would give the property of the thrifty parent a lower level of constitutional protection than that of the spendthrift. She prefers the grasshopper over the ant.

Most important for the sake of this essay, Radin's focus on personal

[92] As Radin recognizes. Radin, Contested Commodities, supra note 2, at 58.

property risks being subjective to the point of insular, if not altogether solipsistic and anti-community. That is, Radin condemns commodification as the source of separate subjectivity, as opposed to subjectivity as intersubjectivity. According to Radin:

Commodification stresses separateness both between ourselves and our things and between ourselves and other people. To postulate personal interrelationship and communion requires us to postulate people who can yield personal things to other people and not have them instantly become fungible.^[93]

In this passage, Radin admits to the existence of healthy intersubjectivity, but it is a matter of taste only for the solipsistic self. As we have seen, Radin simultaneously argues for the existence of personal property precisely because it furthers the development of separate individuality. The quoted passage shows that although gifts might be permitted or beneficial, in no sense is the gift of personal property developmentally required .^[94] That is, properly constituted persons are capable of gift, but gift does not make them into well-adjusted persons.

But more pertinent to the point at hand, although Radin admits that the institution of private property can further the goal of separate individuality, she does not yet recognize that it also furthers the competing goal of interrelation. Radin ignores the reality that the relations most of us share with other members of our community involve fungible property—that is, commercial relationships. Every day, I interact with thousands, if not millions, of other people in society through the marketplace.

Exchange also serves relationality and community on a philosophical

[93] Radin, Market-Inalienability, supra note 2, at 1907–08.

[94] We have already seen that Radin believes that one of the purposes of owning personal property is the furthering of individual separateness. In contrast,

gift takes place within a personal relationship with the recipient, or else it creates one. . . . To postulate personal interrelationship and bonding requires us to postulate people who can yield personal things to other people and not have them instantly become fungible. Seen this way, gifts diminish separateness.

Radin, Contested Commodities, supra note 2, at 93–94. This seems to imply that gifts of personal property actually defeat one of the primary purposes of personal property. I presume Radin would answer that separateness is only one aspect of human nature, and not necessarily the most important one. We cannot be human without also having relationships with other parties. Through a judicious combination of identification and enjoyment of personal property, on the one hand, and giving it, on the other, one can achieve the proper balance between separateness and connectedness.

basis. Radin condemns separateness but cannot do without it theoretically. For me to have a relationship with another person, I must first recognize and respect the other as a subject, not merely as an extension of myself or as a means to my ends. Zizek^[*] explains:

[W]e can recognize the other, acknowledge him as person, only in so far as, in a radical sense, he remains unknown to us—recognition implies the absence of cognition. A neighbor totally transparent and disclosed is no more a "person," we no longer relate to him as to another person: intersubjectivity is founded upon the fact that the other is phenomenologically experienced as an "unknown quantity," as a bottomless abyss which we can never fathom.^[95]

Intersubjectivity thus requires a mediator who simultaneously separates us and serves as a bridge between us. Property is one such mediator.

As I have already suggested, commodification not merely enables us to interrelate as subjects, it forces us to do so. The market, in the name of autonomy, destroys our atomism and makes us interdependent on each other for our very existence.

Radin is correct in arguing that it is somehow dehumanizing to analyze my relationship with my husband, family, and closest friends in terms of market exchange.^[96] But the market becomes more important to relationships as the circle of acquaintance widens. I have not always had close personal relations with colleagues, employees, clients, opposing counsel, or even my former law partners. Indeed, in many cases I did not want close personal relations because of personal dislike, simple disinclination, or snobbery. Commercial transactions are one of the ways to maintain cordial relations that are productive not merely in a financial sense but in an interpersonal and developmental sense as well. For example, I can easily relate to the new cashier at the grocery store in terms of fungible property relations even if I am shy, socially incompetent, or merely busy. Fungible property serves as a mediator, enabling me to form and to maintain relationships as a member of the same community with the store's employees and suppliers. One way in which modern industrial societies are superior to feudal or other traditional societies is that modern commercial relations allow us to form relationships and community far beyond our family or clan. This is the aspect of the Hegelian theory of property that Radin needs to reconsider if she is to account fully for property's relationship to per-

[95] Slavoj Zizek, For They Know Not What They Do: Enjoyment as a Political Factor 198–99 (1991) [hereinafter Zizek, For They Know Not What They Do].

[96] Even these relations are, however, mediated.

sonhood. Finally, market relations help to finance the intersubjective relation of the family. Market relations offer an important supplement to, not substitution for, the intimate relations that concern Radin.^[97]

II—
A Return to Hegel's Theory of Property

Radin claims a debt to Hegel's theory of property while simultaneously distancing herself from it.^[98] I believe Radin's desire to distance herself from Hegel stems in large part from misreading him. By misreading Hegel, Radin has forced herself into a dilemma in which she must choose between humans as atomistic, autonomous, and individually subjective and humans as victims submitted to the oppression of the objectivity of society. I suggest that to avoid Radin's dilemma and to begin to conceptualize a proper role for property in the development of both subjectivity and community, we should return to Hegel to identify Radin's fundamental misreading and, with luck, avoid her errors.

Radin's characterization of The Philosophy of Right is frustrating because it is highly accurate in detail but incorrect in whole. Accordingly, her account is partial and decentered. By concentrating only on certain elements of a holistic theory, Radin unintentionally achieves what Marx intentionally strove for: she stands Hegel on his head.

A—
Radin's Misreading

Hegel's view of the person, Radin argues, was "the same as Kant's—simply an abstract autonomous entity capable of holding rights, a device for abstracting universal principles, and by definition, de-

[97] As Hegel discussed, expanding market relations may reduce the scope of the family from the clan to the nuclear family and diminish the role of the family as a political unit. See Allen W. Wood, Editor's Introduction to Hegel, The Philosophy of Right, supra note 76, at viii, xxii–xxiii.

As Ronald Coase has emphasized (defending Adam Smith's classical liberal conception of human nature),

[t]he great advantage of the market is that it is able to use the strength of self-interest to offset the weakness and partiality of benevolence, so that those who are unknown, unattractive, or unimportant, will have their wants served.

R.H. Coase, Adam Smith's View of Man , 19 J.L. & Econ. 529, 544 (1976).

[98] See Radin, Market-Inalienability, supra note 2, at 1892–96; Radin, Reinterpreting Property, supra note 2, at 437–48.

void of individuating characteristics."^[99] Radin recognizes that Hegel departed from Kantian liberalism in The Philosophy of Right when he argued that the abstract will and society eventually develop through higher forms until they reach the "final ideal unity of individuals and the state."^[100] Radin also recognized that Hegel "implicitly claims that personhood in the richer sense of self-development and differentiation presupposes the context of human community."^[101] And yet she declares that, like Kant, Hegel "treats [the Kantian abstract personality] as both logically and developmentally prior to any relationships of right arising from the person's interaction with others in society."^[102]

Radin claims that her theory of property is superior to Hegel's because she bases her theory on a richer notion of the individual than the autonomous, abstract will on which Hegel relies, ignoring Hegel's later notions of the individual in community.^[103] Radin argues that Hegel had a not-so-secret agenda of justifying market relations.^[104] She criticizes Hegel's theory of alienability of property as arising from a strict subject/object distinction.^[105] She claims that Hegel's definition of "object"

fall[s] back on the intuition that some things are "external" and some are "internal." This answer is unsatisfactory because the categories "external" and "internal" should be the conclusion of a moral evaluation and cannot be taken as obvious premises forming its basis. . . . Hegel's solution is also unsatisfactory because (at least from our present vantage point) we can see that the external/internal distinction is a continuum and not a brightline dichotomy.^[106]

[99] Radin, Reinterpreting Property, supra note 2, at 44. Radin notes that the Kantian person "is a free and rational agent whose existence is an end in itself." Id . at 39. Radin argues that Hegel accepted this Kantian view of the person as the completely abstract, autonomous, individual will. Id . at 44–45, 47.

[100] Id . at 46.

[101] Id . at 47.

[102] Id . at 46.

[103] Specifically, Radin states:

Hegel departs from classical liberalism in discussing these other kinds of property relationships. For Hegel, individuals could not become fully developed outside such relationships. They are important in comparing Hegel's theory to a theory of personal property, because the concept of person in the theory of personal property refers to the fully developed individual .

Id . at 46 (emphasis added).

[104] Radin, Property and Personhood, supra note 2, at 974; Radin, Market-Inalienability, supra note 2, at 1888–89, 1894. She calls his analysis a "troubled apology for the market." Radin, Contested Commodities, supra note 2, at 38.

[105] Radin, Market-Inalienability, supra note 2, at 1892–94.

[106] Id . at 1908–09.

Radin contrasts her flexible personal/fungible property spectrum with what she sees as a hard-edged, either/or Hegelian dichotomy.

Very briefly, what Radin claims to take from Hegel is, first, his insistence that the autonomous individual of classical liberalism is not a satisfactory account of the free human being and, second, his recognition that personhood requires both the ownership of property and a community for complete development. She takes Hegel's analysis of the internal logic of property as abstract right to be an empirical account of actual property practices.

By comparing her theory of property for personhood within community to the Hegelian person and Hegel's initial analysis of the subject and property, Radin compares apples to oranges. As I have said, because Radin locates people originally within community, her concept of personal property can only serve to remove her from community—precisely the opposite of her goal. Instead, Radin should compare her property for personhood theory to the Hegelian notion of the fully developed individual and the role of property in the fully developed community, as embodied by the state. In the circular Hegelian dialectic, however, these fully developed concepts cannot be understood without first understanding their logically prior, more abstract, and undeveloped manifestations.

Specifically, Radin claims to agree with Hegel that the complete individual does not exist naturally but must be developed.^[107] This is precisely why Radin explores the role that property plays in this development and claims to be analyzing the individual within community. But because she confuses Hegel's logical analysis of abstract personhood with an empirical account of the development of human beings, she assumes that a specific community already exists at the beginning of the analysis.^[108] This assumption is problematic if, as Radin agrees, personhood (subjectivity) is not a preexisting abstraction but is a human creation, and if, as I suspect Radin would agree, community is also a human creation. As human creations, personhood and community are likely to be mutually constituting. Radin concentrates on the aspect of Hegelian property theory that relates to the creation of personhood (as subjectivity), but she ignores the

[107] Radin, Reinterpreting Property, supra note 2, at 45.

[108] In the preface of her book compiling her articles on property, Radin makes a half-hearted attempt to defend herself from the charge that she is positing a narcissistic immediate relationship between subject and object. Radin, Reinterpreting Property, supra note 2, at 7–8. The quotation set forth in note 5, supra , reveals that, rather than having an account of society, she seems to assume that society already exists. She does not understand that Hegel's account of property is an account of how the individual enters society.

aspect of property that relates to the creation of community, which then relates back to the full development of personhood (as individuality). In chapter 1, I showed how Hegel's analysis started with the abstract, presocial person because he believed that the individual and the community were mutually constituting—developing together—and that primitive property relations were an important step in this development.

Radin presents Hegel as justifying the liberal market agenda and promoting separateness. This is a serious misstatement, in the sense of a halftruth. In fact, as I have shown, Hegel simultaneously explains, justifies, and subverts the simple, liberal market agenda;^[109] it is Radin who implicitly adopts the liberal understanding of the market. Radin and classical liberalism understand or justify the market in terms of the separateness of individuals. Radin understands the utilitarian branch of liberalism as interpreting all human relations in terms of market transactions.^[110] Radin argues that we should remove certain object relations from the market to prevent overseparateness,^[111] but this presupposes the existence of community from which the market separates individuals. She seeks to prevent the objectification and commodification of certain privileged things,^[112] but this assumes that some things start out as interrelated with subjectivity. In Radin's view, submission to the market regime inexorably leads to commodification of all human relations. Thus, despite her denials, Radin implicitly accepts the strength of the utilitarian argument that once the market is introduced, the market is the only form of analysis possible.

In other words, Radin is correct in her observation that property is the link between the concept of the autonomous individual of liberalism and the ideal of community. But because she imagines that the person starts out as an integrated member of a preexisting community, she wrongly concludes that it is property which breaks down the community into separate atomistic individuals. To Radin, person bound to object is no longer person bound to community. Hegel, in contradistinction, does not presuppose individuality or community. Rather, he explores the internal

[109] See Westphal, supra note 90, at 34–35.

[110] Radin, Market-Inalienability, supra note 2, at 1861–70, 1883–87.

[111] Id . at 1907–08. Although Radin does see separateness as one aspect of personhood and admits that the ownership of personal property can further this function, this is only one of many aspects of personhood. Overseparateness would be destructive of human flourishing because "self-constitution includes connectedness with other human beings and also with things in the world." Radin, Contested Commodities, supra note 2, at 57.

[112] See, e.g., id . at 118–28, 159–60.

logic of community itself. As we shall see, he abstracts the concept of the abstract person as a logically necessary element of the concept of community. He then asks, "If, as this suggests, autonomy is a true moment of human nature, how do autonomous persons become interdependent as members of a community?" The answer will be, through property, the link between individual and community which binds subject to subject rather than person to object.

Specifically, as Hegel believes that one can only understand the actualization of a concept retroactively at the end of an era, he analyzes the development of the modern liberal state of the early nineteenth century. He, in effect, asks why the enlightenment concepts of individual liberty and democracy^[113] only arose simultaneously with the development of the free capitalist market. According to this analysis, the market (i.e., abstract right and civil society) simultaneously recognizes separateness and creates differentiation, allowing us to develop as autonomous free individuals, while lessening separateness by making people interdependent and thereby binding them together. In a proper Hegelian analysis, it is the Radinian person who is bound up with her things and refuses to come out to the market, thus isolating and separating herself. Such chaste virginity, perhaps initially necessary for integrity, withers over time to lonely sterility. Radin's person is not free. Like Gollum in The Lord of the Rings , or the genie of the lamp, she is a slave to an object—bound by the chains of property. If Radin's person is bound up with objects, Hegel's subject owns objects only so that she may become bound up with other subjects. For Hegel, although the intersubjective relation of the market is logically prior to other relations, the experience changes the subjects and enables them to have more complex moral and ethical relations.

Consequently, Radin is correct that Hegel justified the existence of the market. But whereas the utilitarian justifies all human relations in terms of the market, Hegel would justify the primitive relations of the market only in terms of their role in the development of more fully developed personality and social relations. Market relations embody the sphere that Hegel calls "civil society,"^[114] but civil society does not constitute all of so-

[113] Of course, the fact that the specific manifestation of the liberal state discussed in The Philosophy of Right is a constitutional monarchy in which people vote by estates seems one of the most problematic aspects of the book when read at the end of the twentieth century.

[114] "Civil society" for Hegel includes the market, although it is not completely limited to the market. See Wood, supra note 97, at xviii–xix.

ciety, let alone the highest stage of society. Erotic relations reflect market relations, but only because market relations are themselves essentially, albeit primitively, erotic.

Before going any further, let us discuss terminology to avoid a potential source of confusion for the reader. As I have suggested, Radin and Hegel use the term "person" in two different ways that are not directly comparable.^[115] Radin uses the words "person" and "personhood" to describe her concept of the fully developed, integrated, and mature human being situated in a community—that is, empirical people. She contrasts this with Hegel's use of "person" in The Philosophy of Right , in which Hegel began with the most minimal, abstract, and immediate concept of what a person could be: self-consciousness as absolutely free will. Radin is correct that Hegel's starting point is essentially the same as the Kantian construct. To say, however, that Hegel initially develops an inadequate concept of property based on a primitive, abstract, negative, and inadequate concept of the person is not a critique of Hegel. It is precisely Hegel's point: the initial concepts of the abstract person and the later concepts of subjectivity and private property at the level of abstract right are necessary building blocks of the full individual and full human relationships. As building blocks, however, these concepts are both necessary and inadequate by definition .

This minimal concept of "personality," like its liberal cousin the autonomous individual, is totally negative. But the Hegelian "person" does not stand, as Radin implies, in quite the same normative position as the autonomous individual of Kant or other liberal philosophers. Radin is confused because she purports to set forth an empirical description of how actual individuals are born into a society and become attached to objects as they grow up. She, mistakenly, assumes that Hegel is involved in a similar project. Consequently, Radin describes Hegel as believing that the abstract person is both logically and developmentally prior to the more

[115] Radin states that "even though Hegel does not use the word person for the entity described as the person in the theory of personal property, Hegel's theory can be seen as consistent with the idea of personal property." Radin, Reinterpreting Property, supra note 2, at 45. This statement is inconsistent with both T.M. Knox's well-known English translation and H.B. Nisbet's more recent translation, which use the words "person" and "personality" to describe the abstract will as soon as it begins to interact with property. See G.W.F. Hegel, Hegel's Philosophy of Right 40 (T.M. Knox trans., 1952) and Hegel, The Philosophy of Right (Nisbet trans.), supra note 76, at 489.

Of course, Radin also criticizes Hegel's property theory because the Hegelian "person" is not fully developed. But Hegel presented the "person" as merely a logical step in the development of the "individual."

complex individual in society.^[116] This is misleading because, in Hegel's view, the abstract person is not developmentally prior in any empirical sense. The abstract person of Hegel and Kant is not the unformed baby who eventually matures into an adult personality, and Hegel is not trying to describe the empirical process by which actual human beings acquire and become sentimentally attached to specific items of property. He is discussing the logical process of how one gets from the Kantian concept of the abstract person to the concept of the legal subject.

Hegel would agree with Radin that the economic man posited by Law and Economics theory does not accurately describe a human being. It is a caricature that grossly overemphasizes one feature. In this case, the feature may be seen as a lowest common denominator of human relations. It should not be disparaged in its proper context in that it not only allows us to have formal relations with those who are distant from us but also serves as a building block in more complex relations. Of this view of human nature, Hegel remarked that the contentions that all human actions are economically instrumental "belittle and debase all great deeds and individuals."^[117] Consequently, Hegelian theory must be read as a rejection of liberal theories that see society as merely an aggregate of isolated individuals and utilitarianism that seeks merely to maximize the aggregated wealth of those individuals at the expense of the freedom of any one individual.^[118] Although Hegel introduced the Mensch (i.e., the abstract person) early in The Philosophy of Right , the rest of the book logically demonstrates the inadequacy of both the abstract person and abstract right (i.e., property) standing alone and presents a theory of society that

[116] According to Radin, Hegel "treats them [rights and abstract personality] as both logically and developmentally prior to any relationships of right arising from the person's interactions with others in society." Radin, Reinterpreting Property, supra note 2, at 46 (emphasis added). Radin's description of the way an individual puts her will into an object reveals that Radin actually believes Hegel's developmental priority is empirical. For example, Radin critiques Hegel for assuming that object relations development takes place "overnight," while her theory accounts for development over time. See id . at 111; see also id . at 107.

[117] Hegel, The Philosophy of Right, supra note 76, at 152. As Avineri explains, "Hegel is aware that this tendency of civil society concepts to arrogate to themselves all other spheres of life is very strong; but he speaks against it when civil society encroaches on the realm of the family as well as when it encroaches on that of the state." Avineri, supra note 86, at 139.

[118] See Wood, supra note 97, at xvi. Utilitarian justifications for private property are based on maximizing the happiness (or wealth) of society as a whole. Hegel, in contradistinction, based his argument solely on the logic of personhood without regard to its implications for the satisfaction of needs or the creation of happiness or wealth. See, e.g ., Hegel, The Philosophy of Right, supra note 76, at 73. As I have discussed, Hegel was well aware that the regime of abstract right in civil society may actually lead to impoverishment and alienation.

could enable the development of a full individual within community. According to Hegel, the market regime of civil society is necessary for the development of the state but is not itself the state. In other words, the Mensch encountered at the beginning of The Philosophy of Right is not what we in New York would call "a real mensch."^[119]

In her critique, Radin does not grasp the implication of the circular nature of the Hegelian dialectic. The order of the logical presentation is important but does not have the same normative import that it has in liberalism. In liberalism, the state must be justified given the normative priority of the autonomous individual. To Hegel, the individual is prior to the state only in the sense that the individual is more primitive in a logical sense.^[120] Hegel therefore discussed the individual as a temporary presupposition. Hegel expressly denied that the progression he presented, from abstract will to family to civil society to state and from abstract right to morality to ethics, is developmentally true as an empirical fact.^[121] Hegel

[119] This familiar Yiddishism captures Hegel's point that to be a fully developed human being is a great accomplishment. Neither the "abstract will" presented at the beginning of The Philosophy of Right nor the Hegelian person, the "legal subject" who is created by property and contract in the realm of Abstract Right, is yet an individual. Rather, they are merely moments in the creation of a full individual. As one scholar explained:

Just as the individual whose behavior and attitudes are defined entirely in terms of rights is pathetically less than a real person, so the society implicit in the meeting of legal persons is abstract, immediate, formal, and false, because it is "only as owners that these two persons exist for each other."

Westphal, supra note 90, at 30 (quoting Hegel, The Philosophy of Right ). Another scholar states:

The abstract person is not yet a full person as she is severed from, among other things, all concrete family relations, the attributes of citizenship, and all roots in historical reality. Nevertheless, the abstract person who possesses an individual will and is a bearer of rights displays a sufficient identity to count as a subject of recognition.

Michel Rosenfeld, Hegel and the Dialectics of Contract , 10 Cardozo L. Rev. 1199, 1230 (1989) (footnote omitted).

[120] As I discuss extensively in chapter 1, Hegel's procedure in each of his major works was to start with the simplest, most primitive concept and to work up to the most complex. As Westphal explains:

Now, because property is the first embodiment of freedom (in the Hegelian sense of logical priority), his theory is also a critique of liberalism's (formalist) tendency to define freedom without paying sufficient attention to questions of morality, the family, the political community, and severe poverty. When Locke makes property rights first, it is because they are the end to which everything else is means. When Hegel puts them first it is because in their immediate form as the minimal mode of human freedom they are in radical need of correction and completion through contextualizing.

Westphal, supra note 90, at 31.

[121] For example, Hegel wrote:But it should be noted that the moments, whose result is a further-determined form [of the concept], precede it as determinations of the concept in the scientific development of the Idea, but do not come before it as shares in its temporal development. Thus the Idea, in its determination as the family, presupposes those determinations of the concept from which in a later section of this work, it [i.e., the Idea] will be shown to result. But the other side of this development is that these inner presuppositions should also be present for themselves as shapes , such as the right of property, contract, morality, etc., and it is only at a more advanced stage of culture [Bildung ] that the moments of development attain this distinctive shape of existence.

Hegel, The Philosophy of Right, supra note 76, at 61.

said that the "logical order" was not the "time order."^[122] Thus, for example, he addressed property before the family even though we are born into the family before we encounter property.

This does not mean that the abstract, inadequate concepts that begin Hegel's analysis lack normative significance. I have only said that logical priority does not have the same normative import in Hegel's philosophy as it does in liberal philosophy.

To call a subject matter or discussion abstract rather than concrete, immediate rather than mediated, or formal rather than substantial is to say that it is part of a complex whole that has been isolated from its proper context. In its isolation it can neither be, nor be seen to be, what it in truth is; for "the truth is the whole." Only in the totality of their relations to the whole can any of the parts (moments) either be, or be understood to be, what they truly are.^[123]

Hegel purported to prove that the Kantian autonomous person is inadequate and contradictory and is always already becoming the individual within the state.^[124] Nonetheless, the earlier moments of the dialectic are true moments in, and necessary building blocks of, the latter. As such,

[122] Id . at 61–62.

[123] Westphal, supra note 90, at 29.

[124] Stillman observes:

For Locke, Kant, and Rawls, not only is the state of nature primary, in the sense of coming first in order either historically or conceptually, but conclusions derived from it are also primary, in the sense of coming first in predominance. Or, as Dworkin would have it, institutions, and ideas that come later in order than those derived from the abstract original condition are always to be tested against, subjected to, and vulnerable to being "trumped" by the principles derived from the abstract original condition.

Given the structure of Hegel's thought, his abstract right functions in exactly the opposite way. Abstract right, being first or primary in the logical order of the major parts of Hegel's political philosophy, is therefore the least adequate part of "objective spirit." Peter Stillman, Hegel's Analysis of Property in The Philosophy of Right , 10 Cardozo L. Rev. 1031, 1038–39 (1980).

Rosenfeld explains Hegel's view this way:Actually, Hegel's abstract person is very much like Hobbes's individual found in the state of nature. There is, however, an important difference between the two conceptions. Hegel calls his counterpart to the Hobbesian individual in the state of nature the "abstract person," indicating that this person is a construct who has been cut off from many of the diverse concrete determinations of the real historical person. Thus, whereas the free willing subject who is the protagonist of the Philosophy of Right may at first view herself as embodying the characteristics of the abstract person, Hegel is well aware that the abstract person provides only a partial representation of the subject of legal and political relations. Hobbes, on the other hand, presents the abstract atomistic individual of his state of nature as the true representative of a universal and ahistorical conception of the human nature.

Rosenfeld, supra note 119, at 1209 (footnotes omitted).

they deserve respect and preservation. In other words, although the abstract person will be sublated into the concrete individual located within society, separateness and the need for mediation always remain. Even though Hegel claimed to prove that the abstract person is inadequate and is destined to be superseded, it simultaneously retains a moment of validity to which the system continually returns.

B—
Hegel and Community

Radin repeats another common and related misunderstanding of Hegel:

For Hegel, the properly developed state (in contrast to civil society) is an organic moral entity, "the actuality of the ethical Idea," and individuals within the state are subsumed into its community morality.

Hegel's theory of the state thus carries the seeds of destruction of all liberal rights attaching to individuals (because in the state particular arbitrary will passes over into willing the universal).^[125]

Radin's statement is once again incorrect because it is partial. The Hegelian concept of the state would crush the individual if Radin were correct that the dialectic "subsumed" all prior contradictions in the sense of obliterating them. But sublation preserves, as much as negates. The negative freedom of the arbitrary will and the primitive concept of property that Hegel introduced at the beginning of his political philosophy are elements of the more complex individual citizen of the state. In the dialectical logic of sublation, if the state supersedes civil society, it also preserves it. For individuals to exist who can be citizens of the state, there must be a moment when these individuals are separate from the

[125] Radin, Reinterpreting Property, supra note 2, at 46.

state.^[126] Thus, the state must preserve these liberal elements to some extent. In other words, although it is true that Hegel thought that the individual and the state would eventually attain unity, this is not the presymbolic, deadly lack of differentiation of the real, or the simple identity of the imaginary. Rather, like all Hegelian totalities, the union of individual and state will have a hole—a place of unbounded freedom—at its very heart.^[127]

As we have seen, Radin, the pragmatist, would grudgingly preserve some market relations for pragmatic and utilitarian reasons in an imperfect world.^[128] Hegel, the idealist, would preserve market relations, even in a perfect world, because they contain an important moment in the actualization of freedom.^[129]

Radin also misunderstands Hegel's theory of why it is necessary for private property to continue after the development of the state, and Hegel's thinking as to the possibility of collective property. Radin writes that "there is in Hegel's theory a foundation for the communitarian claim that each community is an organic entity in which private property ownership does not make sense. Hegel does not make this claim, perhaps because he is too firmly rooted in his own time."^[130]

I believe this reflects, once again, a conflation of Hegel's account of the logic of the development of the individual and the state with empirical accounts of human biography and European history. Abstract right (including property) is the subject of the first chapter of The Philosophy of Right , and the state is the subject of the last. Radin assumes from this that Hegel believes that the free market develops first temporally and that then, sometime in the future, a state will develop which could at least theoretically supplant private property.^[131] This is not correct. All but one of the types of intersubjective relations which Hegel identifies as being logically generated from the concept of the free individual have been around for an unspeakably long time—families of some sort (if not the monogamous nuclear family) have probably been around since man first started walk-

[126] Hegel, The Philosophy of Right, supra note 76, at 283–85.

[127] Zizek,^[*] The Indivisible Remainder, supra note 7, at 105.

[128] Radin, Market-Inalienability, supra note 2, at 1903.

[129] Avineri explains, "Since property is to Hegel the prime condition of personality, . . . the abolition of private property . . . spells for Hegel the disappearance and emasculation of personality. . . ." Avineri, supra note 86, at 171.

[130] Radin, Reinterpreting Property, supra note 2, at 46–47.

[131] She finds it is unclear whether Hegel thinks property and contract will continue, change, or disappear entirely in the realm of Sittlichkeit . Radin, Contested Commodities, supra note 2, at 39.

ing upright, governments have existed for thousands of years, corporations and other fraternal organizations for hundreds. What was missing was the free market regime of civil society with its related concepts of private property and freedom of contract (i.e., abstract right). That is, although abstract right is the most primitive form of intersubjectivity as a logical matter, it was the last to be actualized as a historic one. It was only when these logically necessary elements were actualized in the empirical world that the state and the individual could complete their self-actualization. If, at this stage, the government tried to abrogate these rights, it would stop the process of its own actualization dead in its tracks. Consequently, although the state is the sublation of abstract right, as is the case with all sublations, it cannot obliterate this earlier stage as unnecessary because the state only came into being at the moment that abstract right came into being. That is, as I shall explore in more detail in chapter 4, the necessity of sublation is retroactive. It is only now that we are starting to develop the state and individual freedom that we can retroactively understand that private property was necessary for this to happen.

Once the workings of sublation are understood, therefore, it is clear that there can be no communitarian claim for the total withering away of private property in Hegel's theory. A moment of private property must be preserved to allow for the constitution of intersubjective individuals as citizens. This moment of private property, however, does not preclude the possibility of collective property or limits on private property. Hegel mentioned in passing various types of collective ownership, including family and corporate ownership, throughout The Philosophy of Right . Hegel did not concentrate on collective ownership, however, presumably because he did not believe it serves the same logically necessary constitutive role for the family, corporation, or state that private property serves for the abstract person. This does not imply that collective property cannot or should not exist. Although collective property does not play a necessary constitutive role, collective property may be a contingent, empirical fact of life, a creature of positive law in any given society, so long as individuals hold some private property.

C—
The Starting Presupposition of Personality

One of the central concerns of Hegel's theory is that the individual and society develop together, but Radin does not internalize the spiraling, retrospective nature of the dialectic. Specifically, Radin mistakenly describes the choice of the abstract will as a starting place for analy-

sis as "assuming away" the attributes of personhood.^[132] To Hegel, individual characteristics are "abstracted" away, not "assumed" away. The distinction is subtle, but crucial, as it reflects the retroactive nature of Hegel's reasoning. Abstraction is the breaking down of the complex into simple, essential components. Hegelian analysis retrospectively applies the dialectic to the individual human being in the state and abstracts to the most universal, only to circle back to show how individuating characteristics necessarily and logically develop from the abstraction. In other words, the initial abstraction does not assume away individuating characteristics but rather presupposes that individuating characteristics are always already imminent.^[133] Abstraction is an attempt to explain individuation and community. For example, when an engineer considers the characteristics of a brick, she does not "assume" away the building but rather presupposes the brick's eventual function in the finished building.^[134] As I shall develop at greater length in chapter 4, pursuant to Hegel's concepts of potentiality and actuality, the actualization of complex individuating characteris-

[132] For example, Radin writes, "The intuitive personhood perspective on property is not equivalent to Hegelian personality theory, because that perspective incorporates the attributes of personhood that Hegel initially assumes away." Radin, Reinterpreting Property, supra note 2, at 47; see also id . at 44–45, 46.

Munzer similarly misunderstands Hegel's starting point of abstract personhood. He states:

Hegel's conception of personhood, in the section on "abstract right," seems to presuppose an individualistic moral and political personhood. Yet perhaps there are other, communitarian views of moral and political personhood. If so, private-property rights might diminish personhood in the event that they foster the isolation of persons from one another.

Munzer, supra note 77, at 82 (citing Radin, Property and Personhood ). As we have seen, Hegel does not "seem" to presuppose individualistic personhood, he expressly does so. Moreover, he does so not because he rejects a communitarian view of personhood, but because he wishes to show the inadequacy of the Kantian view of personhood and prove the necessity of a communitarian side of personhood.

[133] A good expression of the retroactivity of Hegel's logic is his description of the logical ordering of civil society and the state:

Civil society is the [stage of] difference . . . which intervenes between the family and the state, even if its full development . . . occurs later than that of the state; for as difference, it presupposes the state, which it must have before it as a self-sufficient entity in order to subsist . . . itself.

Hegel, The Philosophy of Right, supra note 76, at 220. This passage shows that the logically earlier stage presupposes the later stage, rather than the later presupposing the earlier.

[134] To give an analogy from physics, it is incorrect to say that the Heisenberg uncertainty principle initially "assumes away" determinacy merely because it posits that exact position and momentum do not exist simultaneously at the subatomic level. Rather, as Norwood Russell Hanson explained, Heisenberg's theory of indeterminacy at the subatomiclevel presupposes determinacy (i.e., exact position and momentum) at the macro level. Norwood R. Hanson, Patterns of Discovery 136–49 (1965). The theory was abducted precisely to explain the logical necessity of determinacy in that one cannot explain the presence of an element at one level by reference to the presence of a factor at a lower level without devolving into a bad infinity of "turtles all the way down." It is necessary to posit a level that does not contain the element to be explained to develop a theory of the building blocks to that element. Before the uncertainty principle, determinacy at the macro level depended on determinacy at the molecular level, which depended on determinacy at the atomic level, and so on. Heisenberg posited a level at which determinacy stopped, not to argue that determinacy did not exist but to explain how determinacy comes into being. The uncertainty principle is not merely the layman's vulgarized simplification that observation affects the thing observed, making simultaneous measurement of momentum and velocity impossible. Rather, the uncertainty principle stands for the proposition, absolutely fundamental to quantum mechanical theory, that momentum and velocity do not exist simultaneously, and perhaps do not exist, unless we observe and measure them. See id . at 119–20, 136–49.

tics of personality at the highest level of development logically requires that they were already potential at the primal level of abstract personhood. We can never know what was possible until it is actualized—possibility is abstracted from actuality.

Most fundamentally, Radin never grasps that Hegel's point is that the abstract person cannot develop subjectivity in lonely isolation but only through recognition by other subjects. Property does not, as Radin thinks, help the abstract person develop her individual separateness. Rather, the separate individual uses property to achieve the differentiation necessary for the relationship of intersubjectivity through mediation. We, therefore, seek to acquire property only derivatively to achieve our true desire—the desire of the Other.

Radin tries to explain Hegel's analysis as follows:

Hegel also cast the argument against alienation of personhood as a "contradiction." To alienate personhood is itself contrary to personhood, in that if I can relinquish my personhood, then no "I" remains to have done the relinquishing. If I treat "the infinite embodiment of self-consciousness" as something external and try to alienate it, Hegel argued, one of two things results: if I really possess these substantive attributes, they are not external and hence not alienated; if they are alienated, I did not possess them in the first place. Hegel might have been trying to say that substantive personhood is simply not capable of objectification. The "contradiction" consists in supposing that one could give up that which, "so soon as I possess it, exists in essence as mine alone and not as something external." If this interpretation is correct, then the contradiction poses the same subject/object problems as Hegel's general view of property and alienation: Why is it that personhood cannot be objectified while at the same time person-

hood requires objectification (in things)? Exactly what items are permanently "inside" the subject and incapable of objectifications?

If the person/thing distinction is to be treated as a bright line that divides the commodifiable from the inalienable, we must know exactly which items are part of the person and which not. The person/thing distinction and its consequences seemed obvious to Kant and Hegel, but such is not the case for many modern philosophers.^[135]

Radin states further:

From the view that attributes and characteristics are separate possessions, it is an easy step to conceptualize them as lying on the object side of the subject/object divide. This eliminates inalienabilities based on things internal to the person, because nothing is internal to the person. . . . It is not difficult to see them as fungible and bearing implicit monetary value.^[136]

She thinks she identifies a dilemma in Hegel:

If the person/thing distinction is to be treated as a bright line that divides the commodifiable from the inalienable, we must know exactly which items are part of the person and which not. . . .

Without the bright line, arguments delineating the market realm on the basis of the subject/object distinction lose their force. If the person/thing distinction is not a sharp divide, neither is inalienability/alienability. There will be a gray area between the two.^[137]

She concludes from this that maintenance of the subject/object distinction combined with a defense of the market can only lead to universal commodification. That is, since one cannot maintain the subject/object, inalienable/alienable distinction, then everything must either fall in one category or the other. If one wants a market for some things, therefore, one must require a market for everything. "[T]here is no obvious stopping place short of that."^[138] This is a gross misreading of Hegel which totally ignores his insistence that the logic of philosophy could only be applied at the highest level of abstraction and that concrete empirical questions of the type which concern Radin can only be decided by pragmatic reasoning. In addition, perhaps because Radin bases here analysis of Hegel entirely on the first chapter of The Philosophy of Right , which cannot be understood without some grounding in his philosophical system,

[135] Radin, Market-Inalienability, supra note 2, at 1896.

[136] Id . at 1897.

[137] Radin, Contested Commodities, supra note 2, at 40.

[138] Id .

she also does not understand Hegel's notion of the relationship between qualitative and quantitative differences, which I shall discuss at length in chapter 4. As we shall see, Hegel would say that it is not merely possible but necessary for categories such as subject/object and inalienable/alienable to be both logically separate and empirically continuous.

In other words, Radin assumes that Hegel started with a sharp subject/object distinction, and from this beginning it is an "easy step" to universal commodification. She thinks it is logically inconsistent with this starting point for Hegel to conclude that some "things" become "internal" to the person and inalienable.

Radin's reasoning is the reverse of Hegel's logic. As I have discussed, Hegel defined the will as that which is an end to itself and not a means to another's end.^[139] This starting definition implies a correlate: The thing that is a means to another's end—the object. At the level of abstract right, the subject/object distinction is a strictly logical truism: If the self is abstract self-consciousness as pure negation, all things not capable of self-consciousness and all things that have positive existence are objects in the sense of being other or separate from the subject. This truism would be completely banal but for its further development through the dialectic.

Radin is correct that Hegel started from a subject/object distinction and used an internal/external metaphor, but she wrongly states that Hegel's starting point is a simple intuitive sense of inner and outer. Instead, Hegel's distinction is completely anti -intuitive in that he claims that our bodies, opinions, and all other aspects of our personality and individuality, everything we feel to be our true selves, are logically external to ourselves as persons. This is because if the will is totally free from all contingency, all contingency is "other" with relation to the will. The will is its own end. Anything that does not have consciousness or can serve as the means to the will's end is an object. Individuating characteristics of personality start out as external to the "abstract person" by logical tautology. They are not merely "objectified," as Radin suggests, but rather are objects by definition.^[140]

[139] Hegel, The Philosophy of Right, supra note 76, at 67.

[140] In chap. 2, sec. III.A, I criticized Duncan Kennedy and others for assuming that physical objects are naturally "things" whereas intangibles are artificially and inauthentically "reified" as though they were things. I stated that objectification is not a natural state—an object only takes on that status when recognized as such by a self-conscious person. I am not retreating from that position here. What I am saying here is that once one recognizes the concept of the person as self-consciousness, then the corresponding definition of an external object necessarily follows as a logical matter. Such an object is only potentially a res , in the sense of the object of a property relation. This reification requires an act of will.

Hegel's "internal/external" terminology is dictated by the German language. As H.B. Nisbet explains in a note to his translation of The Philosophy of Right , the English word "alienation" does not satisfactorily capture the connotations of the German equivalents Entaeusserung and Veraeusserung because these words also mean "externalization."^[141] In other words, when Hegel is translated into English as saying that one cannot "alienate" that which is "internal" by nature, he may merely be stating the truisms that one cannot alienate that which is inalienable by nature or externalize that which is internal by nature. Hegel may not have intended his internal/external distinction to carry the implications of mind/body that the English translation suggests to Radin.

The inalienability of minimum personality at this stage is, therefore, merely one of definition. If the minimum definition of the person is that which is left after everything is externalized, the free will cannot logically be externalized (i.e., alienated). This does not mean that one cannot alienate one's capacity for freedom as an empirical matter—one can be enslaved, sell oneself into indentured servitude, or commit suicide. But if the goal of the will is to actualize its freedom and to have this actualization verified through the recognition of other free subjects, Hegel describes any act that destroys the will's capacity for freedom as a wrong (Unrecht ). For the moment, it may be observed that any concrete individual empirically capable of such a wrong is far more developed than Hegel's starting point.

Of course, Hegel went beyond this logical truism that one cannot split the atom of personhood without destroying personhood. At the moment the abstract person begins to impose its will on objects, it begins to cease to be the abstract person and the subject/object distinction begins to dissolve. Among the objects that the will appropriates as part of its objectification are the individuating characteristics of personality. These characteristics started out as "objects" (i.e., external things) because they are contingent. Once these former objects are internalized, they become inalienable as a matter of abstract right, not as a matter of empirical fact, let alone morality or ethics.^[142] This conclusion is based on Hegel's theory of the rationality of property—recognition by other subjects. He was posit-

[141] Nisbet particularly bemoans that the English translation makes it "impossible to reproduce the resulting network of etymological associations." Hegel, The Philosophy of Right, supra note 76, at 95 (translator's note a).

[142] Speaking at the level of abstract right, we must ask what is minimally necessary for this first step in the actualization of human freedom, not what is moral, ethical, or best to further human flourishing. We have not yet even developed the concepts of morality and Sittlichkeit , which we need in order to answer these important questions.

ing that, as a logical matter, in order to be recognizable as a specific identified person distinguishable from other persons, one must have some continuity over time. As the abstract person itself has no recognizable characteristics, this continuity must be supplied by the continued possession of specific objects of property. That is, since Radin recognizes that people start out as dependent and located in society as an empirical matter, she assumes that the continuity and individuality that comes from the inalienability of certain objects serves the function of creating separateness.^[143] Hegel's point, however, is that if one starts with the theoretical proposition that the most primitive notion of what a person could be is abstract self-consciousness as free will with no pathological characteristics, then the continuity of inalienability serves the function of lessening separateness and creating intersubjectivity by making the person identifiable as a unique individual.

This means that it is logically necessary that some "internalized" objects remain inalienable for the goal of recognition to be achieved. That is, Hegel is not positing (by intuition or otherwise) that specific objects exist a priori as either internal or external to the subject. Rather, he is arguing that the logic of property (recognizability) requires that the abstract person seek to internalize some objects. He calls those bare minimum objects which must be continually possessed so that a person can be described and identified "personality."^[144] Hegel makes pragmatic arguments as to why certain identifiable objects will likely fall within the category of personality. In other words, although Hegel does argue, as Radin claims, that

[143] Radin, Contested Commodities, supra note 2, at 57.

[144] Hegel, The Philosophy of Right, supra note 76, at 95. If I have one criticism of Hegel's analysis of property, it is that, although I believe he does demonstrate that it is necessary for some objects of "personality" to be continually owned for property to work, he does not convince me that all of his examples of internalized objects necessarily serve this purpose as a logical matter. In other words, I suspect that this is a rare case in which Hegel might confuse logical and pragmatic arguments.

Objects of personality can serve an imaginary purpose. As Lacan explains, the imaginary includes the type of simple meaning such as animals can understand, as opposed to signification, which is in the symbolic. That is, to a male bird, a red breast does not symbolize something in the sense of standing for something else. But it might mean that the bearer of the red breast is a rival which it must fight, i.e., red breast equals rival. Jacques Lacan, The Seminar of Jacques Lacan, Book III, The Psychoses 1955–1956, at 9–10 (Jacques-Alain Miller ed. & Russell Grigg trans., 1993) [hereinafter Lacan, Seminar III]. Similarly, one's objects of personality are those which enable others to recognize one in the sense that my acquaintances identify the person who inhabits a specific forty-three-year-old, 5¢ 2¢¢ white female body as Jeanne Schroeder.

In contrast, the ultimate recognition achieved through a full property relationship is symbolic. To be recognized as a subject signifies that one has the dignity to bear legal rights.

there is a bright line between the qualities of alienability and inalienability, he would absolutely agree that empirical objects lie along a continuum between these categories. It is logically mandated that we make the distinction between alienability and inalienability, and we can logically derive the principles by which alienability and inalienability should be determined, but the judgment as to whether any specific object should be entirely or partially inalienable can only be made through the application of practical reasoning. Hegelian idealism requires pragmatism. This means that only at the extremes can we agree that any specific object should be inalienable.

For example, in order to be recognizable as a person, a person needs a living body.^[145] An abstract person must, therefore, internalize a body—that is, treat it at least partially inalienable. Thus, suicide cannot generally be a right, which is defined as that which furthers the recognition necessary for subjectivity and the actualization of freedom.^[146] Slavery is wrong because it is the legal declaration that a human being is not a person but a thing, and thereby denies the slave the human goal of recognition.^[147] Any status higher than slavery that gives minimum recognition to the hu-

[145] "[F ]or others , I am in my body. I am free for the other only in so far as I am free in my Existence . . . . Violence done to my body by others is violence done to me." Hegel, The Philosophy of Right, supra note 76, at 79. Consequently, there is a real difference between physical injury to the human body and damage to other types of owned objects. Id . at 86–88. But note, the logical argument that the body (or bodily integrity) as a whole should be inalienable does not answer such pragmatic questions as whether certain parts or capabilities of the body should be alienable. For example, Hegel believes that within abstract right one can sell a portion of one's productive capacity as labor. Can we also rightfully sell our re productive capacity?

[146] Id . at 101–02. Hegel wrote that there is no "unqualified right" to suicide, indicating that there may be a qualified right, in the case of the hero. Id .

[147] Id . at 96. I find Radin's discussion of baby selling (see, e.g ., Radin, Contested Commodities, supra note 2, at 131–53) to be particularly unsuccessful, even though I am intuitively sympathetic with her policy recommendations. This is probably because of her failure to recognize the importance of mutual recognition. Like the Law and Economics analysts whom she criticizes, she analyzes the issue primarily in terms of the competing sets of parents. By comparing baby selling to a woman's selling of her body in surrogacy and prostitution, Radin shifts the focus to the effect on the mother and society generally. Only in passing does she mention the problem that "babies do not choose their own commodification." Id . at 161. This seems to reflect Radin's intuition that we start out connected and dependent as an empirical matter and only later develop separate individuality through property and other relations.

From a Hegelian viewpoint, however, the problem with baby selling is that since a baby has the potentiality for self-consciousness, she cannot rightfully be the object of other people's property rights. She cannot be either fungible or personal property. A baby cannot be rightfully sold by parents because she cannot be rightfully owned by her parents.

Of course, this logical analysis does not solve the pragmatic questions as to who shouldraise a child or whether we should allow paid adoptions. It only argues that it is wrong to conclude from the fact that paid adoptions have some empirical characteristics similar to sales of babies (i.e., money and babies change hands) that we should analyze these arrangements in terms of property and contract. Such an analysis, like the traditional analysis of marriage as contract, is not merely a category mistake, it is "shameful."

manity of a person, as miserable as it may be, satisfies the limited goals of abstract right.^[148] Hegel did not, however, purport to address the positive law of slavery or to answer the practical question as to what empirical institutions (such as, for example, serfdom, peonage, untouchability, forced prostitution) constitute slavery. Moreover, the proposition that lesser alienations of human beings that do not constitute slavery (such as exploitative employment) are permitted in abstract right does not necessarily imply that all such alienations should always be permitted. Even if one decides that they do not violate abstract right, they may not meet the higher standards of morality and ethics.

Thus, in contradistinction to Radin's assertion, Hegel started with, but did not maintain, a simple subject/object distinction based on intuitions of internality. Sublation overcomes and preserves the subject/object distinction in property. The distinction will continue to exist as an abstract logical moment that captures that experience of separateness and distinction which Charles Sanders Peirce calls secondness, but must break down as a logical and an empirical matter as the person becomes more determinate.^[149]

Hegel's subject/object distinction also does not lead to universal commodification, contrary to Radin's assertion, even at the level of abstract right. It is true that Hegel believed that alienability is a necessary element of a full property. It is also true that the development of the person—which is the internal rationality of property—requires that certain minimum characteristics of personality be inalienable.^[150] Consequently, the very rationality of abstract right necessitates that property analysis exclude

[148] Id . at 97.

[149] Radin states: "Whether Hegel did or did not reinscribe the subject/object dichotomy is a matter of serious controversy." Radin, Reinterpreting Property, supra note 2, at 8. Once again, this quotation reveals Radin's confusion over Hegel's concept of sublation. When the subject/object distinction is sublated, it is preserved as well as overcome. At one moment the individual cannot imagine himself as distinct from the objects which form his personality, yet at another moment he distinguishes himself from them. Although she denies it, this dialectic can be imperfectly glimpsed in Radin's own analysis. Although she continually speaks of the importance of personal property as being part of or necessary for personality, by the grammatical act of identifying specific objects as property owned by the personality she is necessarily distinguishing subject from object.

[150] Hegel, The Philosophy of Right, supra note 76, at 95–97.

certain object relations. Property—commodification—is self-limiting by its own logic.

Despite her criticisms of Hegel, Radin bases her own theory on a presupposed internal/external distinction. Her very concern with universal commodification reflects an intuition that some objects are so internal to personhood that their market alienation is destructive. Conversely, her concern with fetishism reflects an intuition that some objects are so external to personhood that overattachment to them is destructive. Furthermore, Radin's whole analysis of expanded bodily integrity as "property"—as a form of ownership, possession, and use of objects—reflects a continuing subject/object relation. Whereas Hegel sees the subject/object distinction as a theoretical one, Radin sees it as a physical and empirical one based on literal internal/external distinctions and the empirical fact that individuals become "attached" to specific objects such as wedding rings or the old family homestead.

Indeed, Radin's argument for the affirmative role of personal property is based largely on a recognition of the need for continuity. She states:

A person cannot be fully a person without a sense of continuity of self over time. To maintain that sense of continuity over time and to exercise one's liberty or autonomy, one must have an ongoing relationship with the external environment, consisting of both "things" and other people. One perceives the ongoing relationship to the environment as a set of individual relationships, corresponding to the way our perception separates the world into distinct "things." . . . In order to lead a normal life, there must be some continuity in relating to "things."^[151]

Unfortunately, Radin attributes this longing for continuity to the person's own solipsistic sense of self and personal development, rather than to the desire for intersubjective recognition. Personal property is supposed to serve the goal of individual separateness. As a consequence, the personal property objects with which the Radinian person seeks continuity are not limited to the minimal elements of personality, such as beliefs, opinions, and, yes, the (female) body. Rather, she expands this class to include precisely those material objects which, as an empirical matter, serve as status symbols establishing one's place in the American social hierarchy—notably, the (big) house, the (fast) car, the (flashy) ring. I would argue that whether or not such object relations are relevant to eligibility for membership in a country club, they should be irrelevant to

[151] Radin, Reinterpreting Property, supra note 2, at 64.

recognizability as a member of the human race. Consequently, whether or not this type of object relations might be appropriately privileged in a premodern society—such as feudal Europe—in which people are defined by status, they should not be given priority in a modern (let alone postmodern) society which seeks to actualize human freedom through selfdefinition.

D—
Limitations of Positive Law

Hegel does not stop his analysis of property law at the level of abstract right. For Radin to compare her theory of property for personhood to Hegel, she must consider the role that property plays not only at the level of abstract right but also in terms of the individual in the state. Positive law and the administration of justice, as opposed to abstract right, are developments associated with the level of civil society. Hegel adds affirmative rights, such as rights for the satisfaction of needs, at this level.^[152] Equity alleviates the harshness of strict application of the law. Shared ownership through the family and corporations is recognized. Limitations on property for the sake of the community may become appropriate. The Hegelian state, guided by ethics (Sittlichkeit ) rather than abstract right, will impose further limitations on property to alleviate the degradation of the poor, which is likely to result from the laissez-faire, abstract regime of civil society.^[153]

Hegel implied various limitations on rights and insisted on the development of positive freedoms and duties at the more complex levels of human interrelationships. Because he wrote at a general level, however, he did not specify precisely what these limitations would be or try to write the correct positive law of property.^[154] Hegel insisted that any philosophy is a creature of its own time because Geist and individuals are always manifest in specific, concrete situations. Each society must develop its own specific, positive law of property.

Even though Hegel derived what Radin calls the "liberal triad" of property rights (possession, enjoyment, and alienation), his theory is not

[152] Hegel, The Philosophy of Right, supra note 76, at 227–31.

[153] See generally Westphal, supra note 90, at 26–35; Alan Brudner, The Unity of the Common Law: Essays in Hegelian Jurisprudence 77–85 (1995).

[154] Munzer, unfortunately, also misunderstands this point. He chides Hegel for only tacitly recognizing the need for social and legal conventions to proscribe property law. "But the need, it may be said, merits explicit, not tacit, recognition." Munzer, supra note 77, at 76. As I have already discussed, positive law is the creature of practical reasoning. Ratherthan being implicit, Hegel expressly states in the preface to The Philosophy of Right that in his system, practical reasoning is completely distinct from, albeit necessitated by, philosophy. Consequently, it is beyond the scope of his book.

merely an apologia for the laissez-faire market. Hegel did not believe that the harsh, inhuman world of abstract right, in which he located his analysis of property and contract, is the be-all and end-all of human society.^[155] Morality and ethics are superior to right. It is not merely impossible to speak of higher stages of social life in terms of abstract right, it is disgraceful. In the family, civil society, and the state, which are fuller manifestations of social life, restrictions on full property rights are appropriate.^[156] Unlike the Lockean tradition of liberalism, the state in Hegel's view does not exist primarily to protect property rights. Rather, we protect property rights because they are necessary for the existence of the individual and the state. Nor do property rights serve the Hobbesian liberal function as the barrier that protects the individual from the state. Rather, property is the most primitive link between persons which helps to form both the individual and the state. Property is, therefore, necessary for human freedom and intersubjectivity.^[157]

Hegel did not consider the great disparity of wealth and the degradation of the lower classes an accidental aspect of the market (i.e., civil society) that we could easily adjust. Rather, he considered degradation of the

[155] Westphal explains:

Property is the first embodiment of freedom because it is freedom in its immediacy, and the logic that determines the proper form of philosophical thinking. . . . The property rights of legal persons are the first embodiment of freedom, not because they are the most important form of freedom, not because they are the causal condition of other modes of freedom, but because they are the least developed, least adequate, least rational form that freedom can take without ceasing to be freedom. Hegel is very blunt about this.

Westphal, supra note 90, at 29.

[156] Brudner, supra note 153, at 64–69.

[157] See Westphal, supra note 90, at 28–31. Specifically, Westphal states:

Because property is the first embodiment of freedom for Hegel, his theory is a critique of liberalism's (naturalist) tendency to make biological survival and economic prosperity the end for which political and civil rights are the means. Now, because property is the first embodiment of freedom (in the Hegelian sense of logical priority), his theory is also a critique of liberalism's (formalist) tendency to define freedom without paying sufficient attention to questions of morality, the family, political community, and severe poverty. When Locke makes property rights first, it is because they are the end to which everything else is means. When Hegel puts them first it is because in their immediate form as the minimal mode of human freedom they are in radical need of correction and completion through contextualizing.

Id . at 32.

poor to be an inevitable result of laissez-faire capitalism. Hegel did not excuse this degradation but saw it as a reflection of internal contradictions within the market. To Hegel, market relations would logically develop to serve the internally rational goal of the development of human freedom but leave a section of society in a subhuman state. Moreover, although the market requires us to act as radical individualists, by coming to the market we become dependent on all others who trade in the market. Consequently, the civil society must eventually collapse and be superseded by the state, which will not replace but can harmonize the market.^[158]

E—
Is Hegel Useful in a Feminist Challenge to Masculinism?

Radin nevertheless implicitly makes one powerful critique of traditional Hegelian theory. This critique, when combined with Lacan's psychoanalytic theory, can form a devastating feminist-Hegelian critique of patriarchy.

Hegel was empirically writing from the masculine position. At first blush, he seems the most psychoanalytically masculine of philosophers—emphasizing the symbolic order of exchange. Perhaps reflecting traditional European-Christian misogynist theology, which identifies the body and sexuality with the Feminine and the mind and personality with the Masculine,^[159] Hegel never attempted to account for sexuality per se. Specifically, he never reflected upon whether one's sexuality is so intrinsic to one's personality as to be inalienable even at the level of abstract right. One possible Hegelian argument might be that the very concept of "abstract right" deals with "abstract personality," stripped of all contingent, concrete characteristics, including sexuality. This would suggest that Hegel has postponed this issue to a later stage in the dialectic.

Indeed, Hegel did discuss sexual difference briefly in The Philosophy of Right and The Phenomenology of Spirit . Despite Hegel's claims to logic and his disdain for unsupported presuppositions, as is so often the case when men talk about women, logic flies out the window. Hegel's discussion of marriage consists largely of conclusory statements reflective of nineteenth-

[158] See Wood, supra note 97, at xxiv–xxvi (explaining Hegel's vision of the state as "ultimate end"); Westphal, supra note 90, at 44–45.

[159] See generally Jeanne L. Schroeder, The Taming of the Shrew: The Liberal Attempt to Neutralize Radical Feminism , 5 Yale J.L. & Feminism 123 (1992); and Jeanne L. Schroeder, Feminism Historicized: Medieval Misogynist Stereotypes in Contemporary Feminist Jurisprudence , 75 Iowa L. Rev. 1135, 1160–97 (1990).

century misogyny.^[160] He echoes nineteenth-century sexual stereotypes and then claims that these sexual differences are rational. He does not logically prove the existence of sexual difference as a theoretical necessity. He merely declares that because these differences could exist, they do and must exist. Moreover, he assumes, without proof, that these "rational" sexual positions are inevitably assigned to the two biological sexes.^[161]

A combination of Radin's legal theory and Lacan's psychoanalytic theory opens up the issue of whether the positions of sexuality are already logically necessitated, even at the levels of abstract personality and abstract right. Lacan characterizes the Hegelian theory of subjectivity as inter-subjective recognition (i.e., the desire of man is the desire of the Other) as hysterical. But hysteria is not a defect, it is the paradigmatic mode of desire.^[162] The hysteric's question is always one of sexual identity, "Am I a man or a woman?"^[163] This is the great question which Hegel, the most

[160] Women may well be educated, but they are not made for the higher sciences, for philosophy and certain artistic productions which require a universal element. Women may have insights . . . , taste, and delicacy, but they do not possess the ideal. The difference between man and woman is the difference between animal and plant; . . . When women are in charge of government, the state is in danger.

Hegel, The Philosophy of Right, supra note 76, at 207. Unfortunately, Hegel's viciously misogynist account of women's knowledge is frequently echoed today by many self-identified feminists who speak of women's concrete knowledge and women's ways of knowing generally.

[161] Specifically, Hegel wrote:

The natural determinacy of the two sexes acquires an intellectual and ethical significance by virtue of its rationality. . . .

The one [sex] is therefore spirituality which divides itself up into personal self-sufficiency with being for itself and the knowledge and violation of free universality , i.e. into the self-consciousness of conceptual thought and the violation of the objective and ultimate end. And the other is spirituality which maintains itself in unity as knowledge and volition of the substantial in the form of concrete individuality  . . . and feeling . . . . In its external relations, the former is powerful and active, the latter is passive and subjective.

Id . at 206.

A complete analysis of Hegel's inadequate treatment of sexuality is beyond the scope of this book. I would suggest, however, that certain aspects of Hegel's seemingly misogynist analysis may look forward to a more sophisticated Lacanian analysis. For example, Hegel's notorious assertion that women have only an unconscious intuitive understanding of ethics, as opposed to the masculine conscious understanding, G.W.F. Hegel, The Phenomenology of Spirit 274 (A.V. Miller trans., 1975), may look forward to the Lacanian concept of the feminine as the position of being and the masculine as the position of having and speaking, as well as to the Freudian analysis of the feminine and masculine superego.

[162] Zizek,^[*] The Indivisible Remainder, supra note 7, at 167.

[163] Lacan, Seminar III, supra note 144, at 171. See also Stuart Schneiderman, Jacques Lacan: The Death of an Intellectual Hero 59 (1983).

hysterical (and, therefore, the most feminine) of all philosophers, refuses to confront directly. But because he represses it, this question pervades his entire philosophy.

Consequently, when Lacan psychoanalyzes the Hegelian dialectic and brings out what has been repressed, he shows that Hegelian recognition requires a sexuated position, with the Masculine taking on the subjective and the Feminine taking on the objective role. Sexuality would, therefore, seem to fall within that category of objects of personality minimally required for recognizability as a subject and, therefore, inalienable as a matter of abstract right. Sexuality, in this view, is not contingent, but is constitutive of subjectivity. The Lacanian insight supports the feminist insistence that the Hegelian system cannot fulfill its claim to being a theory of concrete human freedom in society unless it expands to include both a theory of sexuality, generally, and a theory of property that deals with the objectification of the female body, specifically. In light of Lacan's theory, Hegelians must address whether sexuality is essential to personality at the level of abstract right.

III—
The Implications for Feminist Property Theory

I began this chapter by suggesting that Jacques Lacan's psychoanalytic theory may provide an insight into Radin's insistence on the objective, and denial of the intersubjective, aspects of property. If Lacanian theory sounds depressing, that's because it is. But there is also an affirmative side of Lacan, and of Hegel. The emptiness that lies at the center of Lacanian masculine subjectivity and the lack that constitutes Lacanian feminine objectivity—like the negativity that is the essence of Hegelian abstract personality—enable desire to function. If we were full and satisfied, we would not desire. Because subjectivity is negative, personality is limitless capacity and potentiality. Moreover, it is only the Feminine in her position as lack who can serve as the radical negativity which is not only the condition precedent of freedom but the center of split subjectivity. In other words, when we look into the supposedly masculine subject, we find the Feminine. In Lacan's words, woman is the symptom of man.

The Lacanian system, written from the masculine position, includes two mediating elements—possession and alienation (i.e., exchange) of the

object of desire. The element of use as enjoyment is, however, located within feminine jouissance .

Lacan recognized that use as enjoyment, jouissance , reflects the feminine position. It is a concept of enjoyment that includes not only pleasure, but obscene delight in pain and death.^[164]Jouissance may be thought of as the fulfillment of desire in the sense of the breakdown of the subject/object distinction. It is the psychoanalytic experience of breaking out from the symbolic order of speech and the imaginary order of imagery and of achieving direct, unmediated contact with the real. Although anatomical men are capable of jouissance, jouissance requires one to take on the position of the Feminine^[165] as speaking requires one to take on the position of the Masculine.^[166] Exchange is Eros. Jouissance is Thanatos . In the masculine story of Lacanian psychoanalysis, the destruction of the subject/object distinction would be suicidal in the sense that it also destroys subjectivity, consciousness, and language.

Consequently, this part of the fiction must be retold from the feminine position. Lacan said the story so far remains untold because it is literally unspeakable in a psychoanalytic sense. Jouissance —the experience of the real—is by definition not symbolic. This, of course, is the untold part of the story of property that Radin glimpses but unsuccessfully attempts to tell.

Jouissance is the experience of the feminine object for herself, as opposed to the feminine object as the object of exchange of masculine subjectivity since the Feminine symbolizes the castration which men must deny in order to be masculine. It is the transgression of the law as prohibition. This understanding of jouissance parallels Radin's attempt to protect exclusive use of the object of personal property for the development of (feminine) personhood. It is an attempt to give dignity and meaning to the feminine person as other than the commodified object of masculine desire.

I agree with Radin's intuition that this moment of feminine selfhood as virginity—the ecstatic, unmediated relationship, and the breakdown of the subject/object distinction—is essential for an affirmative rewriting

[164] Because enjoyment is a forbidden domain and obscene, pleasure always involves a certain displeasure. Zizek,^[*] For They Know Not What They Do, supra note 95, at 239.

[165] Jacques Lacan, God and the Jouissance of the Woman, in Jacques Lacan and the école freudienne, Feminine Sexuality 137, 144–45 (Juliet Mitchell & Jacqueline Rose eds., Jacqueline Rose trans., 1985) [hereinafter Lacan, Feminine Sexuality]; Jacqueline Rose, Introduction II to Lacan, Feminine Sexuality, supra at 27, 51.

[166] Elizabeth Grosz, Jacques Lacan: A Feminist Introduction 71–72 (1989).

of the Feminine as other than the negative of the Masculine. Psychoanalytic theory insists that to become "mature women," we must accept our castration and our roles as the objects of desire and as negativity and lack.^[167] It is a grave error, however, to confuse the concept of feminine negativity with female inferiority. Lacan insisted that the masculine perspective is a lie—a fiction. The masculine function claims to be universal—to be a subject is to have the Phallus and to be a man. But the feminine function is not the simple negation of the positivity of the Masculine in the sense of nothing (as men insist). The Feminine is not merely the negative of not having the Phallus . It is the difference of being the Phallus . The Feminine is "not-all"—a denial of the crushing hegemony of the false universal of the Masculine and an insistence that the masculinist story of psychoanalysis is not the truth but a fiction. The Lacanian Feminine is not the simple negative of the masculine subject as his complement. Rather, she is his sublation—a supplement.

This is the secret of Lacan's concept that the Feminine is a masquerade, that the Phallus can only function when veiled. The Woman wears masculine fantasies of feminity as a mask. The very concept of the mask or the veil implies that there is a true image, some positive content underneath which is merely hidden from view. But this implication is itself another mask, a feminine wile, a masculine fantasy. The moment of radical human freedom which is the Feminine rests on her total negativity—there is nothing under the mask.^[168] She is the hole, the antinomy, the contradiction which Hegel believed "appear[s] in all objects of every kind, in all conceptions, notions and Ideas."^[169] She is the space which allows us to move.

What Radin's approach to property glimpses is the possibility of a feminine role as object that is neither passive nor silent: she does not merely allow herself to be commodified in exchange by an active, masculine principle. The affirmative moment of the rewriting of the Feminine shows that the masculine nightmare of castration did not occur precisely because we never were united with the Phallic Mother. In the moment of jouissance , the Feminine—the unmediated relationship—is not the "forever

[167] As Luce Irigaray says, criticizing Freud's theory of feminine sexual development (and thereby implicitly criticizing Lacan's theory), the mature woman is "to have only one desire—that of being as much as possible like man's eternal object of desire ." Luce Irigaray, Speculum of the Other Woman 32 (Gillian C. Gill trans., 1985); see also Grosz, supra note 166, at 69.

[168] Zizek,^[*] The Indivisible Remainder, supra note 7, at 158–61.

[169] G.W.F. Hegel, Hegel's Logic 78 (William Wallace trans., 1975).

lost" of lack. The prohibition of the Phallic Mother that created the symbolic order moves the Feminine out of the impossible of the real and into the possible. The Feminine is messianic, the "not-all" as the "something more."^[170] It is a "not yet," which might be briefly glimpsed by taking on the position of the Feminine. In this view, the Feminine becomes not the simple negation of the Masculine that reinstates the status quo but instead the creative negativity of sublation.

It is important not only to emphasize the positive moment of feminine objectivity in sexuality and property, but to overemphasize it, because it has been traditionally deprivileged. It would be a mistake, however, to forget the positive moment of masculine subjectivity. To desire and to experience the breakdown of the subject/object distinction, we must first become subjects. To function and to speak, we must submit to the symbolic order of language and take on the position of masculine subjectivity as intersubjectivity. To perceive the Feminine as possible, we must prohibit or deny her, thereby creating the temptation of transgression. It is tempting to try to get around this impasse by adopting a romantic "New Age" ideal of the ancient goddesses who were simultaneously lovers and virgins in an attempt to preserve our feminine objectivity while fulfilling our subjectivity. But like all attempts to give an affirmative image to the Feminine, this is merely another masculine fantasy.

But as we try to describe the experience of jouissance by speaking it, we reenter the symbolic order and lose our jouissance . It is impossible to sing the dream of the Feminine within the inadequate masculine speech of Lacanian and Hegelian theory, but the theory has a true moment as well in its internal contradiction. It is within this contradiction that one can locate a powerful feminist moment. Hegel argued that it is fundamentally and essentially un-right to deny another person the status of an equal human subject. It is wrong at the primitive, minimal level of abstract right, even without considering morality and ethics. Denying equal status is not merely a wrong against the person treated as nonhuman, it is a wrongful destruction of the personhood of the person who refuses to recognize the other person, because the fundamental desire to be recognized and desired by others drives persons. We accord rights to the Other precisely to give her dignity so that her recognition counts.

[170] Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law 13–17 (1991); Drucilla Cornell, The Doubly-Prized World: Myth Allegory and the Feminine , 75 Cornell L. Rev. 644, 645, 656–57, 686–87, 699 (1990). In the bi-linguistic pun, Mother is always (M)-other and "mere" is always "mehr."

Lacan argued that in our patriarchal society we identify subjectivity with the masculine position but identify the feminine position with the silent, passive role of the object of desire that active male subjects exchange. One of Lacan's most infamous tenets is that Woman is a symptom of Man—that is, the Feminine is a fiction retroactively abducted as a necessary building block in the construction of men as psychoanalytic subjects. For anatomically female humans to speak and otherwise to function in society, we must occasionally mime the Masculine. Insofar as we are recognized as feminine, we are recognized as lack of subjectivity. Accordingly, patriarchy is incapable of admitting that it recognizes feminine subjectivity. This is an abstract wrong—Unrecht . Within the terms of Hegel's own dialectic, as a logical matter we cannot even begin to speak of creating a moral family structure, let alone an ethical civil society or state, without establishing the minimal abstract right of feminine personhood.

Furthermore, Lacan (like Hegel) argued that the desire of man is the desire of the Other. Humans are driven by the erotic desire to be recognized and desired by an equal human being. It is only this recognition and desire that makes an abstract person into a full subject who can in turn recognize and desire others. Lacan argued that the masculine subject is constituted by constituting the feminine position as non-subject. This is not merely an abstract wrong against those of us who are positioned as feminine objectivity but renders the desire of the heterosexual, masculine subject in patriarchy impotent. He cannot accord the woman he desires the full subjectivity that would make her desire count because as soon as he did so, he would confront his own castration. Like Cybele, the Feminine can never be captured by the eunuch priests who worship her. The Phallic Mother always escapes from the subject's impotent embrace. Indeed, insofar as subjectivity is negative, and negativity is the condition of freedom, it is only the Feminine in her radical position of lack who can truly stand in the place of the subject. All claims of masculine subjectivity are thus hollow.

To put it another way: the essence of personality is freedom. The condition of freedom is the radical negativity of the Feminine. We create the possibility of the Feminine through the incest taboo which changes her from the impossible to the forbidden and, therefore, possible. The Hegelian dialectic teaches us, however, that we can only retroactively tell what is potential after it is actualized. Consequently, if man's claim to freedom is to be more than an empty boast, it is necessary for us to take on the impossible task of putting feminine freedom—including the emancipation of women—into effect.

And so, patriarchy contains its own contradiction and must go under as a logical matter. But this end is not predestined through the impersonal workings of the hypothetical Geist . It can only happen through the affirmative actualization of feminine subjectivity's negative potentiality.

Eros is the desire to achieve the lost Feminine. It cannot, however, serve the goal of the actualization of freedom to achieve the Feminine through a doomed attempt to negate the subject/object distinction. The lost Feminine has no positive content, she is nothing in the sense of radical negativity. Such a yearning, therefore, is the morbid nostalgia of Thanatos —the death wish. It is an attempt to deny castration by regressing back to a preconscious union with the M(O)ther in the real. Even if we could achieve the real of jouissance by denial of the symbolic, we also thereby destroy the real which does not preexist, but is constituted by, the symbolic. Desire is the attempt to achieve wholeness. Eros is the masculine position of desire—the attempt to acquire and join with the perfect complementary mate who in the imaginary will fill out the hole left by castration. Thanatos is the feminine position of desire—the attempt to once again become unviolated and complete within ourselves by merging back into the real.

The myth of Eurydice teaches that if we give in to the masculine desire of Eros and look back at the lost Feminine, we lose her forever. We can only keep her by not having her. To have her—to give the Feminine positive content—is to replace her with a masculine fantasy. Even more horribly, however, the myth of Lot's wife teaches that if we give in to the feminine desire of Thanatos and gaze back into the abyss of the real, we are forever silenced into inanimate objectivity, so bereft of subjectivity that even our name has been forgotten. Consequently, the obscene command to Enjoy! requires us not to look backward but to go forward on an impossible and unrealizable quest to sublate masculine subjectivity and feminine objectivity and achieve a re union with the Feminine as identical with and different from the Masculine.