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.