III—
The Implications for Feminist Property Theory

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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