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]