1—
Hegel Avec Lacan

J.-A. Miller: . . . In short, are we to understand—Lacan against Hegel?

Lacan: What you have just said is very good, it's exactly the opposite of what Green just said to me—he came up to me, shook my paw, at least morally, and said, the death of structuralism, you are the son of Hegel. I don't agree. I think that in saying Lacan against Hegel, you are much closer to the truth, though of course it is not at all a philosophical debate.
Dr. Green: The sons kill the fathers!^[1]

I—
Introduction

A—
The Death of Property

Twentieth-century jurisprudence discovered that property, like God, was dead. Wesley Newcomb Hohfeld revealed that the unity, tangibility, and objectivity that were property's very essence were illusions—property was a mere phantom. Property was not a single identifiable thing but an aggregate of parts, an arbitrary collection of legal rights. Property was a "bundle of sticks"—a fasces .^[2] Hohfeld predicted that once property is recognized as a mere collection of other rights, it loses its distinctive quality and its essence. It therefore does not, or at

[1] Jacques Lacan, The Four Fundamental Concepts of Psycho-Analysis 215 (Jacques-Alain Miller ed. & Alan Sheridan trans., 1981) [hereinafter Lacan, Four Fundamental Concepts].

[2] See infra chap. 2, sec. I.

least should not, exist as a meaningful legal category.^[3] Moreover, he continued, the traditional distinction between in personam rights—with respect to persons—and in rem rights—with respect to things—is irrational. According to Hohfeld, only tangible objects can qualify as things, but not all property rights involve tangible objects. Without objectivity, property can only be a wraith, a myth.^[4] The rabble might still believe in the old gods of property, but the educated "specialists" now see property as vulgar superstition.^[5] If the populace could only be reeducated, then property would cease to be worshiped. This ghastly apparition could then finally be exorcised and replaced by a logical and scientific dichotomy between rights enforceable against specific individuals and rights enforceable against the world.

[3] Among the writings attacking the viability of property (either generally or in a specific context) are Thomas C. Grey, The Disintegration of Property, in Property 69 (J. Roland Pennock & John W. Chapman eds., 22 Nomos, 1980) [hereinafter Nomos, Property]; Charles W. Mooney, Jr., Beyond Negotiability: A New Model for Transfer and Pledge of Interests in Securities Controlled by Intermediaries , 12 Cardozo L. Rev. 305 (1990); James Steven Rogers, Negotiability, Property, Identity , 12 Cardozo L. Rev. 471 (1990); Joseph K. Sax, Some Thoughts on the Decline of Private Property , 58 Wash. L. Rev. 481 (1983); Joseph William Singer, The Reliance Interest in Property , 40 Stan. L. Rev. 611 (1988); Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property , 29 Buff. L. Rev. 325 (1980).

[4] See, for example, Jennifer Nedelsky's characterization of the commonly held American view of property in her excellent account of the significance of property to the Framers of the U.S. Constitution:

How can "the tradition" be characterized by both coherence and endurance and by an apparently unlimited mutability in the purported core of the structure? The paradox itself suggests the answers: it is the myth of property—its rhetorical power combined with the illusory nature of the image of property—that has been crucial to our system. And it is this mythic quality that current changes [i.e., disaggregation] in the concept may threaten.

Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy 224 (1990).

[5] According to Thomas Grey, "specialists" such as lawyers and economists already recognize the disintegrating nature of property, although lay people naively cling to a unitary, objective, physicalist ideal. As lay people eventually accept the specialist view, property will lose its traditional inspirational role. Grey, supra note 3, at 69, 76–79.

Other members of the legal priesthood who identify the death of "traditional" property seek to employ a technique successfully used by the early Church—harnessing the spiritual power of the discredited religion by accepting pagan ritual but changing the object of worship. That is, in order to win over the devotees of the old dead gods, the new God usurps the titles of His defeated predecessors so that He might be worshiped in a familiar form. Thus, certain self-styled progressives do not want the memory of discredited property to wither away entirely. Rather, they wish to preserve the powerful inspirational rhetoric of property but redirect it away from its traditional conservative and reactionary roles. See infra text accompanying chap. 4, notes 21–22.

But if a unitary and tangible conception of property is an illusion, like Banquo's ghost, it continues to haunt property's murderers. Those scholars who expressly claim to adopt an analysis of property as a disaggregated bundle of sticks implicitly reinstate a unitary view of property which places primacy on physical possession of tangible objects. As Sir James Frazer illustrates, the murder of the mythic hero—whether it be Osiris, Tammuz, Adonis, Jesus, or Superman—is only a precursor to his resurrection.^[6] The separate sticks of property are always tightly rebundled into the fasces.

And so I argue that property is alive and well. Most people in our society continue to hold a strong intuitive belief that property significantly differs from other legal rights. Let us not forget that since the "fall" of Communism in Eastern Europe and the recent official encouragement of private markets in China, the international belief that private property is necessary for economic development—and, at least in the West, for political freedom—is probably stronger now than it has been in a century. Yet many legal academics who study the situation persist in arguing either that property is dying or that the concept is incoherent, a mere mythic presence, a contentless rhetorical trope or cynical political tool.^[7] I fear that these theorists risk sounding very foolish—saying that because they cannot understand the phenomenon, it does not exist and the rest of the world is delusional or suffering from false consciousness.^[8] It is time-honored practice that when we do not understand something, we beat it with a stick. This has been property's sufferance of late.

In contradistinction, in this book I argue that Hegel's analysis explains how property is not only coherent as a concept but logically necessary for the creation of subjectivity and the eventual actualization of human freedom. Moreover, I demonstrate that property as an economic and legal practice is healthy and functioning. In other words, it is mod-

[6] See Sir James George Frazer, The Golden Bough: A Study in Magic and Religion 283–397 (Theodore H. Gaster ed., abr. ed. 1951).

[7] Nedelsky, supra note 4, at 8–9, 223–25, 239, 243, 247, 254.

[8] Alan Brudner makes a similar point:

So far from reflecting on the nature of property in light of 1989, many . . . have attempted to reveal a conceptual dynamic in private property that moves in a direction diametrically opposed to the momentum revealed in history. At a time when publicly-owned enterprises and resources are being massively transformed into private property; at a time when socialist law is being overthrown in favour of the legal categories of private law, our theorists disclose the inherent instability, indeed the conceptual impossibility, of private property.

Alan Brudner, Editor's Introduction , 6 Canadian J.L. & Jurisprudence 183, 183 (1993).

ern property jurisprudence and doctrine, and not property itself, that is incoherent.

This phenomenon can be explained through Lacanian psychoanalysis. Modern property theory is in the grip of what I will call a phallic metaphor. Just as we conflate the Phallic concept of the psychic object of desire with the male organ and the female body to create the positions of sexuality, we use metaphors of the male organ and the female body to describe the Phallic concept of property as the legal object of desire. These seductive metaphors, and not property, are incoherent.

The phallic notion of property is exacerbated by—or more precisely, is reflected in—the inherent ambiguity of the word "property" in contemporary English. The word "property" is now colloquially used to refer to the thing owned, in addition to the legal rights of ownership.^[9] Moreover, the owned thing is typically conceptualized as a physical thing—such as a car or a wedding ring—and the right of property is typically conceptualized as physically holding that thing. Our very terminology for nonphysical things—"intangible" or "noncorporeal" property—reflects the presumption that tangibility and corporeality are the norm.

Modern theorists fall into phallic conflation by describing property as both thing and right not in terms of just any physicalist imagery but in terms of phallic imagery. Specifically, property is metaphorically identified with seeing, holding, and wielding the male organ or controlling, protecting, and entering the female body. Loss of property is correspondingly imagined as mutilation or violation. The imagery of the bundle of sticks is itself a possessory and tangible metaphor. A stick is something that one can, and stereotypically does, see and hold in one's hand. And so, while most contemporary legal commentators dutifully intone the insight—typically attributed to Hohfeld^[10] —that property is neither a thing nor the rights of an individual over a thing but rather a legal relationship between legal subjects, few of them successfully or consistently resist the temptation of identifying property with the owned object.

Moreover, the bundle-of-sticks analysis does not solve the metaphysical problems supposedly inherent in the unitary, possessory, tangible concept of property. It merely postpones, and thereby replicates,

[9] This conflation of the legal right of a person with respect to a thing and the thing with respect to which the legal right is asserted may only go back to the seventeenth century. Prior to that time, one usually spoke of having a property in a thing. See Charles Donahue, Jr., The Future of the Concept of Property Predicted from Its Past, in Nomos, Property, supra note 3, at 28.

[10] See, e.g ., Vandevelde, supra note 3, at 359–61.

the unitary theory and its problems.^[11] If property is merely a bundle of arbitrary sticks, this bundle consists of separate little sticks, each a separate unity with its own metaphysical problems. These, of course, are addressed by supposing that each "stick" is itself a separate bundle of smaller little sticks, ad infinitum . This is the classic bad infinity of "turtles all the way down."^[12]

Consequently, the "bundle of sticks" metaphor marks a key psycho-

[11] Penner makes a similar point about the inaptness of the "bundle of sticks" approach as an alternative to traditional property. "It should strike us as a bit surprising that the best we can do to explain the nature of property is to treat it as a bundle of lesser units. Contract and tort would seem to be as amenable to the same disintegrative approach." J.E. Penner, The "Bundle of Rights" Picture of Property , 43 UCLA L. Rev. 711, 739 (1996).

[12] I refer to the famous unending terrapin tower which is fast becoming a cliché of infinite regress and spurious infinity. See, e.g ., James Boyle, Introduction to A Symposium of Critical Legal Studies , 34 Am. U. L. Rev. 929, 929 (1985); Anthony D'Amato, Can Legislatures Constrain Judicial Interpretation of Statutes? 75 Va. L. Rev. 561, 571 (1989); Steven Winter, Bull Durham and the Uses of Theory , 42 Stan. L. Rev. 639, 646 (1990). There are many versions of this story. My favorite involves the seeker of wisdom who travels to the far ends of the earth to consult a holy man about the meaning of life. "The world," the sage said, "lies on four columns which are supported by four enormous elephants." "On what, O Wise One, do the elephants stand?" asked the student. "The elephants," the sage replied, "stand on the back of the great cosmic turtle." The conversation continued: "But, Master, on what does the cosmic turtle stand?" "The cosmic turtle stands on the back of an even greater turtle." "Yes, Teacher, but on what does the greater turtle stand?" "On the back of a yet greater turtle." "But Sir, on what does that turtle stand?" "On the back of an even greater turtle." "And on what . . . " "Listen, Buster, it's turtles all the way down!"

Roger Cramton traces the anecdote back to William James (with rocks—the more amusing turtles having been added by later rewriters who knew a little about Hindu mythology). Roger C. Cramton, Demystifying Legal Scholarship , 75 Geo. L.J. 1, 1–2 (1986); William James, The Will to Believe and Other Essays in Popular Philosophy 104 (1897). Despite this, the story continues to have a life of its own, appearing in two general forms. In one, the anecdote poses as the cosmological myth of some exotic people. See, e.g ., Charles Krauthammer, Beware the Study of Turtles , Time, June 28, 1993, at 76 (told by a "swami" to a "sultan"); Mark C. Taylor, Current Interest in O.B. Hardison's "Disappearing Through the Skylight," L.A. Times, Nov. 4, 1990, Book Review, at 12 (with elephants as well as turtles, a popular version of an Indian creation myth); Carol Shifflett, Clay's the Villain , Wash. Post, Nov. 9, 1985, at F1 (related by an "Oriental sage" to a "Western traveler"); Dennis L. Breo, In the Beginning . . . Armed with the Tevatron and, They Hope, the Supercollider, Fermilab's Nobel Prize—Winning Director and His Scientists Are Seeking to Discover How the Whole Universe Came to Be , Chi. Trib., Nov. 6, 1988, Magazine, at 10 (classical Greek mythology, with Atlas standing on a turtle); Joan Williams, Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells , 62 N.Y.U. L. Rev. 429, 455 (1987) (Indian story about questions asked by Englishman); Mark Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles , 96 Harv. L. Rev. 781, 792 (1983) (Indian cosmology related by a wise man to a traveler).

The other version is a variation of the James anecdote. Sometimes the story involves a scientist giving a lecture on astronomical theory only to be countered by the superstitions of an audience member. See Judge Alvin B. Rubin, Honest Judges Offer More Than DisclosureForms , Manhattan Lawyer, June 6, 1989 (Stephen Hawking); Simon Barnes, Beetles & Turtles , The Times (London), Jan. 11, 1992 (Bertrand Russell); Rest Assured , Christian Sci. Monitor, Sept. 15, 1981 (William James). It is alternately presented as an old joke or an actual encounter involving a famous scientist. See, e.g ., Robert Wright, Did the Universe Just Happen? Edward Fredkin's Theory Is Just Not of Physics but of Metaphysics; It Leads to Speculation About the Supreme Being and the Purpose of Life , Atlantic, Apr. 1988; Kenny Hegland, Legal Theory: Goodbye to 2525 , 85 Nw. U. L. Rev. 127 (1990); Jerry J. Phillips, Opinion and Defamation: The Camel in the Tent , 57 Tenn. L. Rev. 647 (1990). In all but one of these examples, the ignorant amateur cosmologist is misogynistically described as an old woman (sometimes in tennis shoes). The exception is Professor Hegland, who merely refers to an anonymous heckler.

I have no idea whether the anecdote actually originated with James. It is such a good story that I suspect that it has been around in one version or another for an infinitely long time.

analytic moment in recent property theory. Progressives plotted the murder of property. In order to make sure it stayed dead, they disaggregated property, in the same way that the evil god Set dismembered the corpse of the murdered god Osiris.^[13] But, like Osiris's dismemberment, property's disaggregation has not prevented its resurrection. Rather, it enabled the resurrected god to fill the entire universe.^[14] Thanks to the "bundle of sticks" imagery, property threatens to permeate all legal relations. That is, Hohfeld was right that a disaggregated reconceptualization of property makes it indistinguishable from other legal rights. He was wrong in thinking that this proved that property was illusory. It is equally consistent with

[13] According to Egyptian mythology, Set murdered his twin brother, the corn god Osiris. First, Set tried hiding the corpse. Isis, Osiris's widow and sister, found the body and conceived the child-god Horus from her dead husband. Set, determined not to be defeated twice, again killed Osiris and tore him into fourteen parts which he strewed throughout Egypt. The New Larousse Encyclopedia of Mythology 18–19 (F. Giraud ed. & R. Aldington & D. Ames trans., 1968); see also Joseph Campbell, The Mythic Image 27 (1974).

[14] The grieving Isis once again set out in search of her husband's body. She built a temple to him wherever she found a piece of his body. Paradoxically, the myths say both that she buried each body part where she found it and that she brought all the pieces together, reconstituted the body, invented embalming, made Osiris into the first mummy, and then raised him from the dead. Although variants of the myth give different explanations for this apparent paradox—for example, Isis only buried facsimiles of the body parts, the body parts miraculously multiplied, and so on—they agree on the point that the dismemberment and multiple burials of Osiris enabled Isis to spread his divine presence and worship throughout Egypt. The resurrected Osiris now reigns as the god of death and resurrection. The New Larousse Encyclopedia of Mythology, supra note 13, at 18–19.

Particularly interestingly for the purposes of this book, the only part of Osiris's body that Isis could not find was his phallus—apparently a fish or a crab ate it—so the divine phallus remains forever lost in the world. Id,; Frazer, supra note 6, at 424–25. Lacan uses the metaphor of Osiris's lost phallus to describe his concept of the Phallus as the lost object. Jacques Lacan, The direction of the treatment and the principles of its power [hereinafter Lacan, The direction of the treatment ], in Jacques Lacan, Écrits: a Selection 226, 265 (Alan Sheridan trans., 1977) (1966) [hereinafter Lacan, Écrits].

the conclusion that not only is property real but all legal rights must be reinterpreted in terms of property. In Hegelian terms, property as pure nothing is the same thing as property as all-encompassing being. Disaggregation as ceasing-to-be is also a coming-to-be. If, however, we intuit that not all legal rights can be analyzed in terms of property, we must return to property and identify its essence which distinguishes it from other relations.

B—
Hegel's Totality

I suggest a parallel between Hegel and Lacan which should surprise neither Hegelians nor Lacanians. Hegel was a totalizing philosopher. He argued that the same structures and dynamics pervade all forms of human experience. In The Philosophy of Right ,^[15] Hegel described the dialectic through which a person becomes a legal, social, and political subject. A Hegelian would expect that the formation of a person as a psychoanalytical subject would follow the same dialectic. Hegelian philosophy purports to be a circular (or perhaps spiraling) system. Hegel did not merely show that his conception of subjectivity logically and necessarily developed from the application of his dialectical system. He also suggested that if one started instead with his conception of subjectivity, one would necessarily develop a dialectical system. This was Hegel's project in The Phenomenology of Spirit .^[16]

Lacan often acknowledged Hegel's influence on his rewriting of Freud. But he frequently tried to distinguish himself from his intellectual forebear, as illustrated by the quotation at the head of this chapter. I believe, however, that Lacan's "science of desire"^[17] derived as much from the Hegelian insight that "the desire of man is the desire of the other" as it did from the Freudian theory of the unconscious.^[18] Unlike the person hypothesized by classical liberal philosophy, unlike the masculine stereotype

[15] G.W.F. Hegel, Elements of the Philosophy of Right (Allen W. Wood ed. & H.B. Nisbet trans., 1991) [hereinafter Hegel, The Philosophy of Right].

[16] G.W.F. Hegel, The Phenomenology of Spirit (A.V. Miller trans., 1975) [hereinafter Hegel, The Phenomenology].

[17] See Jacques Lacan, The Seminar of Jacques Lacan, Book VII, The Ethics of Psychoanalysis 1959–1960 (Jacques-Alain Miller ed. & Dennis Porter trans., 1992) (1988) [hereinafter Lacan, Seminar VII].

[18] See Edward S. Casey & J. Melvin Woody, Hegel, Heidegger, Lacan: The Dialectic of Desire, in Interpreting Lacan 75 (Joseph Smith & William Kerrigan eds., 6 Psychiatry and the Humanities, 1983) [hereinafter Interpreting Lacan] for an elegant introduction to the influence of Hegel on Lacan.

of pop psychology and different-voice feminism, the Hegelian and Lacanian subjects are not preexisting, self-standing, autonomous individuals seeking to maximize their utility by owning and controlling things and people. Both Hegel and Lacan recognized that subjectivity is a human creation—a hard-won achievement but an incomplete and imperfect one. The subject is not autonomous but is driven by an erotic desire to be recognized by another human being—to be desired by another person. Subjectivity can only be intersubjectivity, and this intersubjectivity must be mediated by objectivity.

The influence of Hegel's theory of desire, as developed in The Phenomenology of Spirit in particular, on Lacan's early work is widely recognized.^[19] I am making a slightly different point. I am arguing that Hegel continued to exert an indirect and, perhaps, unconscious influence on Lacan throughout his life which is reflected in his late theory of feminine sexuality. I wish to show the similarity between Lacan's account of the origin of law, language, and sexuality and Hegel's account of the origin of law, property, and contract in The Philosophy of Right .

The interrelationship between Hegel and Lacan goes deeper than mere similarity. If Hegel was right that the totality of his dialectic is a logical necessity, and if I am right that the application of Hegel's dialectic results in Lacanian theory of the psychoanalytic subject, then one should be able to go back and reread Hegel and find the Lacanian subject already waiting there. If Lacan is a true son of Hegel, this can only be because Hegel's Minerva was already great with her Freudian child.

C—
The Hole in the Whole

Lacan's real is always traumatic it is a hole in discourse; Lacan said "trou-matique" [literally "hole-matic"]; in English one

could perhaps say "no whole without a hole"? I would be inclined to translate Lacan's "pas-tout"—one of his categories—by (w)hole.^[20]

[19] See, e.g ., Anthony Wilden, Lacan and the Discourse of the Other, in Jacques Lacan, Speech and Language in Psychoanalysis 159, 163, 284–93, 306 (trans. with notes and commentary by A. Wilden, 1968) [hereinafter Lacan, Speech and Language]; Casey & Woody, supra note 18, at 75; Wilfried Ver Eecke, Hegel as Lacan's Source for Necessity in Psychoanalytic Theory, in Interpreting Lacan, supra note 18, at 113; and Nancy & Lacoue-LaBarthe, supra note 18, at 121–27.

Lacan's work went through different periods. Slavoj Zizek,^[*] For They Know Not What They Do: Enjoyment as a Political Factor 148 (1991) [hereinafter Zizek,^[*] For They Know Not What They Do]. Nevertheless, his theory remained deeply Hegelian.

One might now be tempted to argue that my comparison of Hegelian and Lacanian subjectivity is inept because Hegel was the theorist of the "whole" and Lacan was the theorist of the "hole."^[21]

Hegel was, of course, a totalizing philosopher. To the casual reader this might suggest that, even if he argued that no individual moment of subjectivity could adequately encompass human consciousness, we have the potential to be part of an adequate whole—that is, the totality of Geist (of which subjectivity is but one moment).^[22] The creation which we call the human subject is, according to this analysis, simultaneously true as a moment of the whole and yet false and inadequate because it is merely part of the whole.

In contrast, one might be tempted to argue that Lacan rejected Hegel's totality.^[23] Like Hegel, Lacan thought that subjectivity, or even human consciousness, standing alone, is inadequate to the task of explaining personhood because it is only one moment of the psyche. But unlike Hegel,

[20] Jacques-Alain Miller, Microscopia: An Introduction to the Reading of Television, in Jacques Lacan, Television: A Challenge to the Psychoanalytic Establishment at xi, xxiii (Joan Copjec ed. & Denis Hollier et al. trans., 1990) (1974) [hereinafter Lacan, Television].

[21] Wilden makes this distinction in his otherwise excellent discussion of Hegel's influence on Lacan.

Lacan is speaking at both the psychological and the political level, for he is attempting to show the impossibility of the final reconciliation of [Hegel's] Phenomenology, whether it is viewed at the individual or at the societal level.

Wilden, supra note 19, at 307.

[22] But the individual who fully recognizes this [i.e., his own historicity and temporality] and understands that history is a human creation, is no longer a mere creature of history. . . . By fully understanding his own historicity, Hegel claims to transcend it, not by ascending to a realm of Platonic Ideas, nor by escaping into a timeless mystic unity, but precisely by insisting that man's freedom makes him radically temporal and historical; and yet to understand this history is to transcend it in a knowledge that is absolute because it grasps the truth of all the antecedent forms of consciousness and culture, and knows itself to be the product of those forms. It thereby comprehends the whole of history within itself.

Casey & Woody, supra note 18, at 87.

[23] Id . at 97–99.

Lacan did not think that there was an adequate whole in which the inadequate subject could participate. Lacan thought there was an unfillable hole—an unresolvable lack—at the center of the human psyche. There is no totalizing unity with Geist . This argument distinguishes Hegel and Lacan. For example, according to Edward S. Casey and J. Melvin Woody,

Hegelian phenomenology and Lacanian psychoanalysis part company here. For Lacan would forswear such a claim to absolute knowledge, emphasizing that the analyst must abjure any comparable assertion of omniscience. And this is surely not because of any modesty on Lacan's part, but because of his conviction that there is no final insight or definitive version of truth to be had.^[24]

Consequently, one might try to maintain that Hegel was ultimately profoundly optimistic while Lacan remained profoundly pessimistic. The inadequacy of the Lacanian subject remains inadequate; the creation remains mere fiction.^[25] Thus,

the subjection of man to culture foredooms him to what Hegel called 'the unhappy consciousness,' the consciousness of self as a dual-natured, merely contradictory being. Lacan reinforces Freud's grim conclusion that the contradiction is insuperable, that history can promise no final reconciliation, no splendid synthesis, not even an arena for the attainment of authenticity: cuttings and splittings, human lives in tatters, are all that remain in this darkened vision.^[26]

That is, a Lacanian might concede that the proof of a theory of the subject is the role it plays in the complete totalizing whole of Geist . But, insofar as there is always a hole in the middle of any potential whole, he cannot make a claim for the essential truth of his theory by definition .

Unfortunately, this analysis presents a misleading dichotomy between Hegel and Lacan. It misstates Lacan's conception of the split subject as well as Hegel's conception of his totality.

When Lacan asserted that the subject is "split," he was making precisely Hegel's point that the subject is not the self-sufficient, atomistic individual of liberalism. Rather, subjectivity is created in part from external forces. Whether or not the human infant has an innate capacity for

[24] Id . at 89.

[25] Nancy and Lacoue-Labarthe give an excellent example of this analysis of Lacan's dependence on, and difference from, Hegel. Nancy & Lacoue-Labarthe, supra note 18, at 121–25.

[26] Casey & Woody, supra note 18, at 111 (quoting Lacan).

speech and desire, this capacity can only be actualized through the relationships with other persons and by submission to an existing symbolic order of law, language, exchange, and sexuality. Lacan emphasizes that one implication of this process is that, at one moment, that which is most ourselves—our subjectivity—is externally imposed upon and therefore alienated from ourselves. This sense that part of ourselves is not ourselves but is somehow cut off from ourselves is one aspect of what Lacan called "castration."

As we shall see, this parallels Hegel's understanding that the abstract person can only actualize his capacity by submitting to other persons and a regime of law, exchange, and property. These institutions are created by mankind generally but are imposed on each man individually. Our legal subjectivity is, therefore, both internal and external to ourselves. Consequently, even though the Hegelian concept of totality relates to the whole, the Hegelian system is radically incomplete at the level of the individual subject, in the same way as Lacan's is. If a Hegelian were to stay with the Lacanian at her level of analysis—that is, of the subject—he would also present a similar picture of an incomplete, split, and radically negative subject. On this analysis, Hegel's theory seems optimistic only in the abstract sense that one might find intellectual satisfaction in the thought that Geist is working through the world. The theory, however, presents a fundamentally negative image of the individual as a moment separated from Spirit.

Moreover, Hegel's totalizing unity is a dynamic process based not only on the incomplete negative subject but on sublation—which I shall merely introduce here but discuss in detail later. In sublation, contradictions are not merely negated. They are also preserved. And yet there is always implicitly an unsublated trace, a vanishing mediator, an unaccountable fourth, which implicitly remains after the triadic operation of the dialectic.^[27] The resulting whole of sublation is, therefore, simultane-

[27] Michel Rosenfeld lucidly discusses the necessary interrelationship between Hegel's Science of Logic, The Phenomenology , and The Philosophy of Right in Michel Rosenfeld, Hegel and the Dialectics of Contract , 10 Cardozo L. Rev. 1199 (1989) [hereinafter Rosenfeld, The Dialectics of Contract ].

As Rosenfeld says:

The Philosophy of Right traces the dialectical journey that leads from the perspective of the abstract person to that of the modern state. . . . Thus, we are led back to the struggle for recognition and to the celebrated dialectic between lord and bondsman which Hegel addresses in the Phenomenology.

Id . at 1220.

ously contradictory. Slavoj Zizek,^[*] probably the most forceful proponent of the Hegelian influence on Lacan, insists that negativity lies at the heart of Hegel's totality:

The picture of the Hegelian system as a closed whole which assigns its proper place to every partial moment is therefore deeply misleading. Every partial moment is, so to speak, "truncated from within", it cannot ever fully become "itself', it cannot ever reach "its own place", it is marked with an inherent impediment, and it is this impediment which "sets in motion" the dialectical development. The "One" of Hegel's "monism" is thus not the One of an Identity encompassing all differences, but rather a paradoxical "One" of radical negativity which forever blocks the fulfillment of any positive identity. The Hegelian "cunning of Reason" is to be conceived precisely against the background of this impossible accordance of the object with its Notion; we do not destroy an object by mangling it from outside but, quite on the contrary, by allowing it freely to evolve its potential and thus to arrive at its Truth: . . .^[28]

To Zizek,^[*] the difference between Kant and Hegel is not, as is usually thought, that Kant identified a hole at the center of our understanding and concluded that we were incapable of grasping the thing-in-itself directly while Hegel developed a new form of logic which enabled him to get to the thing-in-itself. Rather, Hegel used the same reasoning as Kant but came to a startlingly different conclusion: the hole is part of the thing-in-itself, the totality requires an intrinsic emptiness.^[29]

In this analysis, Hegel's system is like Lacan's—closure does not imply fullness. The hole that lies at the center of the Hegelian totality is reflected in the emptiness at the heart of the Lacanian split subject. If one finds the Lacanian subject depressing, then one should find the Hegelian subject equally dreary. On the other hand, if the Hegelian dialectic of subjectivity reflects the possibility of the actualization of human freedom, then one should find Lacan similarly optimistic. I shall argue that it is precisely the negativity at the heart of the split Lacanian subject that opens up the possibility of radical freedom. This radical negativity is the impossible Feminine—Vesta, the hidden goddess.

The Hegelian dialectic is easily misconstrued as a crushing teleologi-

[28] Zizek,^[*] For They Know Not What They Do, supra note 19, at 68-69.

[29] Slavoj Zizek,^[*] The Indivisible Remainder: An Essay on Schelling and Related Matters 110 (1996) [hereinafter Zizek,^[*] The Indivisible Remainder]. Hegel makes this point forcefully in his Lesser Logic:

Further deficiencies in the treatment of the Antinomies I have pointed out, as occasion offered, in my [Greater Logic ]. Here it will be sufficient to say that the Antinomies are

 . . . But . . . Kant . . . never got beyond the negative result that the thing-in-itself is unknowable, and never penetrated to the discovery of what the antinomies really and positively mean. That true and positive meaning of the antinomies is this: that every actual thing involves a coexistence of opposed elements. Consequently to know, or, in other words, to comprehend an object is equivalent to being conscious of it as a concrete unity of opposed determinations.

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

cal necessity that inexorably leads humanity forward toward union with Geist . In the political context, the result is seen as union of the individual citizen with the state. Hegel's metaphor for the totality of the state, "the march of God in the world,"^[30] can suggest foreboding pictures of goose-stepping storm troopers to a late-twentieth-century reader. Hegel's notorious formulation of the necessity that logic be objectified in the world—"what is rational is actual; and what is actual is rational"^[31] —can sound like a depressing combination of grim determinism and a Panglossian defense of the status quo. These are serious misconceptions.

The progression of the dialectic is logically, but not empirically, necessary. The logic of intellect—Geist —works its way through the world, but not necessarily in any specific, preordained way. Any number of events, including, most importantly, the free acts of human subjectivity, can affect the course. The lack of inevitability is, paradoxically, logically necessitated. If, as Hegel argues, the progression of Geist is the actualization of human freedom, then, even at its highest development in the state, there must remain a moment of pure, free, and arbitrary subjectivity. I will argue that this moment of radical freedom which must be created and preserved is the Feminine.

The necessity of the dialectic is retrospective rather than prospective—

[30] Hegel, The Philosophy of Right, supra note 15, at 279. This unfortunate connotation is partly a matter of translation. Nisbet chose to translate the word "Gang " as "march." Although one meaning of "Gang " is "walk" or "march," it is not equivalent to these English words. For example, Walter A. Kaufman insisted that the translator should interpret the phrase as the "way of God." Shlomo Avineri, Hegel's Theory of the Modern State 176-77 (1984) (citing Walter A. Kaufman, Hegel's Political Philosophy 279 (1971)). Avineri himself argues that the meaning of the statement is not to justify any specific or existing governmental system, but "that the very existence of the state is part of a divine strategy, not a merely human arbitrary artefact." Id . at 177.

[31] Avineri provides an excellent explanation of the meaning of this phrase based on Hegel's concepts of "rationality" and "actuality." Id . at 126-27 (noting that Hegel distinguished actuality from "all that exists").

it looks backward rather than forward. The retroactivity of the dialectic is reflected in Hegel's famous metaphor in his preface to The Philosophy of Right:

When philosophy paints its grey in grey, a shape of life has grown old and cannot be rejuvenated, but only recognized, by the grey in grey of philosophy; the owl of Minerva begins its flight only with the onset of dusk.^[32]

Only at the end of the day can we retrospectively examine events. No external "natural" standard exists by which one can judge the truth of Hegelian totality. In Hegelian philosophy, truth claims rest on the explanatory power of the resulting whole.^[33]

One might agree or disagree as to the similarities and consistencies between Hegel's philosophical system and Lacan's psychoanalytical theory taken as wholes. My principal point, however, is the similarity between two aspects of their theories which at first blush might seem widely diverse—Hegel's theory of the role of property and Lacan's theory of the role of the Feminine as Phallic Mother. Both theories explain the role which the exchange of the object of desire plays in the constitution of subjectivity as intersubjectivity mediated by objectivity.

This seemingly narrow point, however, leads us inevitably back to the broader one. Both men believed that their respective theories of the creation of subjectivity were inextricably linked to the rest of their theories. One cannot understand or accept this one aspect of their theory, except in the context of the complete theoretical system of which it is an essential part. Consequently, similarities between the Hegelian and Lacanian accounts of the creation of subjectivity are some evidence for the propo-

[32] Hegel, The Philosophy of Right, supra note 15, at 23. A few sentences earlier, Hegel wrote that "on the subject of issuing instructions on how the world ought to be: philosophy always comes too late to perform this function." Id . Zizek,^[*] explains, "It is essential to grasp . . . this kind of relationship of contingency to necessity, where necessity derives from the retroactive effect of contingency—where necessity is always a 'backwards-necessity' (which is why Minerva's owl flies only at dusk). . . . "Zizek,^[*] For They Know Not What They Do, supra note 19, at 130. Hegel's statement also implies that Hegel thought he was writing at the end of a particular era of history. "This new world, which Hegel heralded . . . , is already reaching its maturity and is somehow, slowly but surely, on its way out." Avineri, supra note 30, at 129.

[33] For example, Hegel accepted the concept of the absolutely free will as a moment in the individual, but unlike liberalism, he not merely claimed to posit it but attempted to prove it. "The deduction that the will is free and of what the will and freedom are . . . is possible only within the context of the whole [of philosophy]." Hegel, The Philosophy of Right, supra note 15, at 36–37.

sition that there is a broader, necessary consistency between their respective theoretical systems.

And so I now turn to explications, first, of Hegel's theory of property and, second, of Lacan's theory of the Phallus .

II—
The Hegelian Story of Property

A—
The Internalist Approach of The Philosophy of Right

Hegel introduced his theory of property in the first part of The Philosophy of Right , in which he discusses the development of the legal subject, abstract right, and law.^[34] These will, in turn, lead logically, although not necessarily historically or biographically, to the development of the family, civil society, the state, and the individual.

Hegel's initial account of property, like his account of abstract right, civil society, and the state generally, purports to be an internal one:

To consider a thing rationally means not to bring reason to bear on the object from outside in order to work on it, for the object is itself rational for itself.^[35]

That is, Hegel explores the rationality of property within the rhetoric of property.

This is opposed to an external or utilitarian analysis which purports to examine the purposes property-law concepts are supposed to serve. One example of an external analysis would be a Law and Economics or utilitarian approach which asks whether property law is "efficient" and how

[34] That is, law in the sense of Recht , or "abstract right." Positive law (Gesetz ) will not be written until the logically subsequent stage of social development which Hegel calls "Civil Society."

[35] Hegel, The Philosophy of Right, supra note 15, at 60. According to Alan Brudner,

[a] faithful account of property law invokes no principle of unity that treats as dissimulating rhetoric the discourse by which the law of property presents itself. The unity it discloses is intuited and corroborated rather than concealed by that discourse.

Alan Brudner, The Unity of the Common Law: Essays in Hegelian Jurisprudence 21 (1995) [hereinafter Brudner, Unity of the Common Law]. In this section I cite extensively Brudner's excellent account of Hegel's dialectic of property. Although I greatly admire Brudner's work, I differ with him in that I believe he finds more positive content and temporality in Hegel than I think can be warranted.

property law can be used for "wealth maximization."^[36] "Pragmatists" on the left similarly take an instrumentalist approach by attempting to use property concepts and rhetoric to support any number of external social goals.^[37] Another example of the externalist, instrumentalist approach can be seen in certain schools of analysis of the term "property" as used in the Takings Clause of the U.S. Constitution, which I discuss in the last chapter of this book. This approach asks, "What concept of property best serves the purpose of protecting the individual from the power of the state?"^[38] The purpose of this analysis is not to examine the concept of property within the "private" law of property. Rather, it is to create a definition of the word "property" that can serve as a useful tool for the presupposed "public" law purpose of analyzing the respective rights and powers of the state and its citizens.^[39]

Instrumentalist or conceptualist views tend to see property as a creature of positive law. Any normative content in property law must, accordingly, be externally provided. Neo-Hegelian Alan Brudner comments that these instrumentalist approaches might tell us something about the goals the scholars want property to serve, but are not likely to tell us very much about property per se.^[40] Starting one's analysis from a presupposed arbitrary external purpose will almost inevitably lead to disappointment when it is found that property rules refuse to cooperate with the goals

[36] See, e.g ., Richard Posner, Economic Analysis of Law (4th ed. 1992). I am aware that some practitioners of Law and Economics try to distinguish their concept of wealth maximization from utilitarianism. Nevertheless, I find the two movements close enough to lump them together for my limited purposes.

[37] See, e.g ., Singer, supra note 3, in which Singer tries to use property concepts to establish a basis for judicial recognition of a legal right of workers to acquire a plant scheduled to be closed.

[38] This notion of property, of course, lay behind Charles Reich's advocacy of the recharacterization of certain entitlements against the state as the "new" property. "The institution called property guards the troubled boundary between the individual and the state." Charles Reich, The New Property , 73 Yale L.J. 733 (1964).

[39] See, e.g ., Frank Michelman, Property, Utility and Fairness: Comments on the Ethical Foundation of "Just Compensation ," 80 Harv. L. Rev. 1165 (1967); Margaret Jane Radin, Property and Personhood , 34 Stan. L. Rev. 957 (1982) [hereinafter Radin, Property and Personhood ]; Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings , 88 Colum. L. Rev. 667 (1977).

[40] Thus, no matter how numerous the instances of agreement between law and the instrumentalist's goal, identifying them will reveal nothing intrinsic about law and everything about the interests of the onlooker who is absorbed by a curious, surface feature of the object.

Brudner, Unity of the Common Law, supra note 35, at 23.

imposed upon them.^[41] For example, I will show in the last chapter of this book that it is logically impossible for property to fulfill the constitutional function assigned to it as standing as the barrier between the individual and the state. Consequently, Brudner argues that instrumentalist analyses are virtually destined to result in conclusions that property concepts are "incoherent,"^[42] contradictory, or merely rhetorical,^[43] or otherwise requiring reform or deserving abandonment. This approach also frequently leads to nominalism. Property itself is seen as having no essence but merely as a title for a legal conclusion—a bundle of sticks.

The libertarian branch of liberalism tries to justify the positive law of property by reference to a natural-law–labor theory of property. Like other classical liberal theories, this approach presupposes the priority of the autonomous individual. As articulated by John Locke, an individual acquires a legitimate property interest in an external object when he commingles his own labor with it.^[44] This is, once again, an instrumentalist and externalist theory—property serves as the boundary of the public/private distinction.^[45] Contemporary libertarian Robert Nozick argues that the only way truly to understand the political realm (which includes an analysis of the legitimacy of the state's right to interfere with what Nozick identifies as the individual's right to property) is by reference to some other "nonpolitical" realm.^[46] Nozick starts with a concept of the autonomous individual who is prior to the state. He locates property rights not in positive law but in natural law—the individual is entitled to any and all property which he acquires directly or indirectly through legitimate appropriation. The state can be justified, therefore, only insofar as it recognizes the individual's prior entitlement to property. Nozick's approach presumes,

[41] If understanding law means disclosing its own significance rather than imposing a foreign one, then an instrumentalist approach will succeed only if legal rules embody a conscious goal-oriented intention, . . . for only then are the rules veritably for the goal: their instrumentality is their true significance.

Id . at 22.

[42] Such critiques are usually, but not exclusively, associated with Critical Legal Studies. See, e.g ., Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient ? 8 Hofstra L. Rev. 711 (1980); Sax, supra note 3; Singer, supra note 3.

[43] For example, Posner states that "the true grounds of legal decision are concealed rather than illuminated by the characteristic rhetoric of opinion." Posner, supra note 36, at 21.

[44] John Locke, Two Treatises of Government (Peter Laslett ed., 2d ed. 1967) (3d ed. 1698, corrected by Locke).

[45] Nedelsky, supra note 4, at 8.

[46] "The only way to fully understand the whole political realm is to explain it in terms of the nonpolitical." Robert Nozick, Anarchy, State, and Utopia 6 (1974). The alternativeswhich Nozick identifies and rejects are to view it as emerging from the nonpolitical but irreducible to it, or to view it as completely autonomous. Neither of these alternatives accurately describes the way Hegelians conceive of their internalist method.

rather than explains, property. Hegelians would argue that Nozick's externalist approach might at most tell us something about his conception of nonpolitical life but is unlikely to provide much insight into the nature of the polity or property.

Another problem frequently identified in the libertarian version of the labor theory of value is its uneasy relationship between natural and positive law. Traditionally, liberalism has identified authenticity with nature and the individual in opposition with artificiality, the social contract, and the state.^[47] On the one hand, the proponents of the labor theory justify the legitimacy of property on the grounds of natural law—it is the inherent right of the individual. On the other hand, they realize that for legitimate, labor-based property rights to exist, there must be a state to enforce the rights. Otherwise, property devolves into mere physical possession by the strongest individual—an illegitimate regime. Libertarians argue that individuals enter into the social contract precisely to protect property rights. Moreover, probably all modern American lawyers agree with the familiar cliché, associated with Hohfeld,^[48] that property, like all legal categories, is a relationship between and among legal subjects. No atomistic individual could, then, have property rights which preexist the relationships of society. Consequently, the labor theory of property implicitly presupposes the state, and property is always already a creature of positive law—a paradox which causes insuperable problems for classic "takings" jurisprudence under the U.S. Constitution.

The internalist analysis, in contradistinction, claims to be an attempt to examine property law's own understanding of property law. This means it tries to determine whether there is any internal unity and logic to property both as an abstract matter and as concretely applied.^[49]

[47] See, e.g ., Nedelsky, supra note 4, at 91. In this book, I am not attempting to give a comprehensive account of either classical or modern liberal political theory. In particular, many contemporary scholars working in the liberal tradition recognize an essentially social aspect of human nature in addition to an atomistic aspect. I am self-consciously using extremely simplified epitomes of liberalism purely as a foil for my discussion of Hegelian theory.

[48] Hohfeld, of course, was not the discoverer of this truism, but he explicated it so well that it has become inextricably linked to his name. I discuss Hohfeldian property theory at length in chap. 2, sec. III.A.

[49] See, e.g ., Brudner, Unity of the Common Law, supra note 35, at 21–25.

B—
The Artificiality of the Subject

The Philosophy of Right is the Bildungsroman^[50] of personality. It is the story of the self-actualization of the abstract person into the complex individual located in the modern state. The initial stage in this philosophical biography is the person's achievement of subjectivity by being recognized as a legal subject by a person she recognizes as a legal subject. To Hegel, subjectivity is intersubjectivity mediated by objectivity. Property serves as this initial mediator. Although this struggle for recognition is described as a matter of necessity, this should not suggest that we experience this process as one of cold logic.^[51] Because the freedom which is the essence of personality can only be actualized through recognition by another whom we in turn recognize, we are driven by an insatiable desire for the other. To Hegel, the search for love rules man's universe.^[52] As Michel Rosenfeld has put it:

The struggle for recognition is part of the dialectic of self-consciousness. Self-consciousness for Hegel is desire. . . .

Indeed, once it is understood that the aim of desire is the preservation of self-consciousness, then it seems logical to conclude, as Hegel does, that self-consciousness can only achieve satisfaction in another self-consciousness. If desire seeks to maintain identity, then self-consciousness must seek an object which provides it with recognition. And the only ob-

[50] Arthur J. Jacobson, Hegel's Legal Plenum, in Hegel and Legal Theory 115 (Drucilla Cornell, Michel Rosenfeld & David Gray Carlson eds., 1991).

[51] Of course, to say that it is logically necessary for the free abstract person to actualize its freedom in concrete existence sounds as if the abstract person is not free at all but bound by necessity. This misunderstands the retroactive nature of Hegel's logic. He is considering the concept of the abstract free person retroactively from the position of a concrete individual situated in society. He is asking, "How did we get here from there?" And he is concluding not that it had to happen this way but that it must have happened this way.

To use a lurid but vivid example I have used elsewhere, from my standpoint sitting here at my computer in the summer of 1996, it is logically necessary for my parents to have had sexual intercourse sometime around September 1953. But what could have been more free and contingent from my parents' point of view back then?

This is not to suggest that there is no necessity in Hegel. As I shall explain at length in this essay, according to Hegel's dialectic logic abstractness, or pure potentiality, is at another moment identical to concreteness or actuality. At another moment, however, potentiality and actuality are totally separate. And the argument that a result is logically required does not result in any prediction as to the actual empirical result.

[52] The mutual recognition which constitutes subjectivity must be one of love not only in the sense of mutual admiration but also in the Lacanian sense of seeing in another more than she is. Attempted recognition in hate results in the failed lord-bondsman dialectic where the lord might force grudging obeisance from his bondsman, but this recognition does not "count" because the lord cannot recognize the bondsman as an equal person.

ject which can provide recognition to a self-consciousness is another self-consciousness.^[53]

Hegel's analysis of property and subjectivity is, therefore, desperately erotic to the point of hysteria. We desire the objects of property not for their own sake but derivatively as means to our true desire—the desire of and for other persons.

C—
The Presupposition of Human Nature

Perhaps the biggest problem we Americans have in understanding Hegel is that we tend to view political philosophy through the lens of our liberal philosophical tradition. Most schools of classical liberalism follow natural-law or intuitionist philosophies. They start from a presupposition of the state of nature or an intuition of the good and then posit a linear, logical, and developmental progression from this originary point. Human nature in its hypothesized natural state is conceived as "authentic" and normatively superior to "artificial" states. Deviations from this authenticity must be explained and justified. Specifically, if the free individual is posited as existing in the state of nature or is intuited as the authentic mode of being, the community and the state pose problems by definition . One of the most familiar ways to solve this problem is by theorizing that free individuals consent to live under the state through a real or hypothetical social contract. In other words, in liberal theory temporal order of development of the artificial state from the natural autonomous individual has essential normative significance for what constitutes a good or just community.

Hegelianism claims to differ from liberalism in that it does not presuppose the existence of the subject in the sense of the autonomous individual.^[54] This may, at first blush, seem inconsistent with the fact that Hegel, like Kant, used the abstract concept of free will as the starting place for his philosophy of right. Moreover, as indicated by its title, the recognition of formal rights plays a critical role in The Philosophy

[53] Rosenfeld, Dialectics of Contract, supra note 27, at 1220–21.

[54] In contrast to the libertarian, Hegel argues that individual selfhood is established as an end not prior to or outside of community but rather as an organic requirement of community. . . . In contrast to the communitarian, Hegel argues that community is authentically an end only insofar as it recognizes the rebellion of the self against its primacy. . . .

Brudner, Unity of the Common Law, supra note 35, at 17.

of Right , as it does in liberal political philosophy. This might suggest to a casual reader that Hegel held that human beings begin historically or empirically as autonomous individuals endowed with natural rights in the liberal sense of these terms. This would be a serious misreading.

The Hegelian critique is that liberal theory risks degenerating into a truism. Liberalism starts by presupposing that the essential human person is a pre-social, autonomous, self-acting individual.^[55] This initial assumption or intuition identifies the social as a problem that needs to be solved by definition . It follows that once social life has been identified as a problem, the legitimacy of the state also becomes problematical. A libertarian, for example, may very well be entitled to claim that he has proved that his conception of the minimal state is the only form of government which can be legitimated as consistent with his notion of human nature.^[56] The problem is, Hegel believes that liberals never adequately discuss how they originally decided on the notion of human nature which would serve as the bulwark of their political theory. Human nature is implicitly, or explicitly, declared to be self-evident, a matter of intuition, or otherwise in no need of explanation.

From a Hegelian viewpoint, a philosopher presupposing autonomous individualism is equivalent to a magician sneaking the rabbit into the hat. Hegel, of course, observed the same individualistic behavior in late-eighteenth- and early-nineteenth-century Western societies, as did liberal

[55] As that great liberal tract, the Declaration of Independence, states: "We hold these truths to be self-evident , that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . . " (emphasis added).

[56] Needless to say, libertarianism is not the only form of contemporary liberalism. There are, for example, egalitarianism, utilitarianism, and contractarianism. Michel Rosenfeld, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (1991) [here-inafter Rosenfeld, Affirmative Action]. Each of these derives slightly different conceptions of the just state from slightly different formulations of the individual.

Nozick's approach can be contrasted, for example, with that of John Rawls. Rawls also presumes the classical liberal view of the autonomous individual. But Rawls expressly tells the reader that he is doing so for reasons of intuition rather than logic. He in effect invites the reader to follow his argument so that we can decide whether the result of his intuition is intuitively attractive to us.

Perhaps I am being too hard on Nozick for not taking this initial step. Nozick is addressing liberals familiar with the liberal tradition. It may be that he is justified in assuming that his readers are well aware of the initial intuitive step which they all must take and is not wasting precious pages in repeating this. Indeed, his express recognition of the influence of Rawls on his thought might be shorthand for this—a sort of incorporation by reference. Indeed, Anarchy, State, and Utopia can be read as a rejoinder to Rawls's Theory of Justice . Nozick can then concentrate on his purpose of convincing other liberals why his libertarian conception of the state is more consistent with the liberal conception of the person than other possible liberal theories such as utilitarianism or egalitarianism.

philosophers and politicians of the time. But he did not argue that this meant that the essentially individualistic nature of humanity is self-evident, let alone pre-given. Indeed, it is questionable if essential individualism is ever empirically observable, whether humanity is studied sociologically (within our present culture), anthropologically (cross-culturally), historically (within the development of our culture), biographically (with reference to the history of our own personal lives), or psychoanalytically (with reference to the theory of the development of psychic subjectivity). Sociologically, individuality is observed in daily intercourse, but so are altruism, love, and communitarianism. Anthropologically, as far as we know, human beings have always lived in familial, tribal, or other social groups and have never lived as the solitary nomads of the primal liberal myth. As a historical matter, the concept of the liberal individual is a recent development of Western thought. Even if it has roots in classical philosophy and Christian theology, the individual as we know it today was only fully described in the so-called Enlightenment. Biographically, we are not born autonomous but as helpless infants totally dependent on others for all of our needs. Consequently the private is as problematical as the public. Liberalism identifies the individual and seeks to explain society. Hegel argues that the individual and society are equally in need of explanation.

The Hegelian approach is not antiliberal but extra liberal. The fact that individualism is not assumed to be pre-given in no way implies that it is illusory or unimportant. Hegel's eventual conclusion that individualism is artificial in no way implies that it is unreal or inessential. Hegel rejects the liberal identification of the authentic as the natural, in opposition to the inauthentic as the artificial. Rather, as etymology indicates, that which is artificial is made by art.^[57] As a human creation, autonomy is an achievement, a great accomplishment to be treasured, nurtured, and aggressively defended. Individuality is a moment in the essential nature of the human

[57] It is said that upon being shown the newly built St. Paul's Cathedral, King William III exclaimed, "How awful! How pompous! How artificial!" and knighted Christopher Wren. My colleague Paul Shupack reports that he first heard this delightful but probably apocryphal anecdote from John Rawls in a philosophy course delivered at Harvard College in the early sixties. I have not been able to find the original source. I have since read or heard many variations of this anecdote attributing the quotation variously to King William III or Queen Anne. I lean toward the former. St. Paul's was "completed" in the sense that the last stones were laid in 1710 during Anne's reign. However, it had been considered sufficiently complete that it had been dedicated and services had begun to be held in it by 1696, during William's. In any event the specific details of the story cannot be true because Wren was knighted before the cathedral was built.

creator and may be logically prior to other moments of humanness, but it is not necessarily either our initial natural state or our final self-creation.

In other words, Hegelians would argue that it is they who truly cherish the concept of the individual, while liberals take individuality and individuals for granted. In addition, unlike liberal philosophers, Hegel does not, and cannot, resort initially to consent theory to justify contract or property, let alone the state. He does not argue, as did Locke, that we enter into the social contract to protect our property to which we are naturally entitled by investing our labor into it.^[58] Nor did he argue, as did Hobbes, that property was a creation of the social contract.^[59]

As clarified by Seyla Benhabib, social-contract theory presupposes the existence of autonomous individuals capable of entering into, performing, and enforcing contracts.^[60] To be the classical liberal individual and to be a person capable of entering into contractual relationships are one and the same thing. One could say the same thing about the liberal concept of property—property, as a legal category, requires not merely one individual who can serve as an owner but other individuals against which the owner asserts her property rights. If the concept of the individual is problematic, then so are property, consent, and contract. The problem is, of course, that the autonomous individual can only express her freedom—the ability to own property and enter into contract—in social relationships. The task of Hegelian political philosophy and jurisprudence is precisely to explain how the individual, property, and the ability to contract came into being.^[61]

To put this another way, the liberal person in the "state of nature" is by its very definition pre-social and abstracted from all social intercourse. We

[58] Michel Rosenfeld, Contract and Justice: The Relation Between Classical Contract Law and Social Contract Theory , 70 Iowa L. Rev. 769, 788 (1985).

[59] Id . at 791.

[60] The act of contract cannot generate the conditions of its own validity but presupposes background norms and rules the compliance with which confers validity on the contractual transaction. Hegel derives these background norms and rules from the rights of personality and property.

Seyla Benhabib, Obligation, Contract and Exchange: On the Significance of Hegel's Abstract Right, in The State & Civil Society: Studies in Hegel's Political Philosophy 159, 162 (Z. Pelczynski ed., 1984) [hereinafter The State & Civil Society].

[61] Unlike [liberal contractarian philosophers] Hegel does not take as his starting point the condition of an isolated self motivated to recognize the right of others through the fear of death (Hobbes) or through an intuitive and presocial knowledge of the natural law (Locke). Nor does Hegel understand "persons" to be Kantian moral agents endowed with the noumenal ability to act in accordance with the categorical imperative. He proceeds from the condition of a society of individuals who have recognized one another'sentitlement to be persons in order to describe the concrete forms of interaction compatible with this norm.

Benhabib, supra note 60, at 160. See also id . at 170.

must explain, therefore, how these abstractions come to become social. It begs the question to argue that an act of social intercourse—contract—is the origin of the institution of social intercourse—society and property. One would be arguing that liberal society was created by autonomous individuals who contracted to form liberal society which created the individuals who created liberal society, and so on. Once again, the towering turtles raise their unending heads. To put this another way, liberals presume that the abstract autonomous person is already a subject, in the sense of a being who is capable of bearing legal rights. Hegel argues that the abstract person is too empty a concept to sustain this burden precisely because all legal rights are social relationships. Property serves a function in the creation of sociality by giving the person sufficient content to bear the weight of subjectivity.^[62] Or, more accurately, property and legal subjectivity will be mutually constituting.

D—
The Impossibility of Philosophy without Presuppositions; Sublation

In the introduction to the first chapter of his Greater Logic ,^[63] Hegel discusses his goal of creating a philosophy without pre-

[62] Alan Brudner presents still another way of looking at this problem. He argues that insofar as property is the act of the abstract free will to objectify itself, it is by definition a unilateral act by which the will recognizes itself as its own end. Basing property on consent of another denies this and denies the will's appetite for infinite appropriation. As Brudner states, "A complete property must therefore embody a reconciliation between the right to exclusive possession and the right to freedom of acquisition." Brudner, Unity of the Common Law, supra note 35, at 56. The resolution of this problem will be exchange and the concomitant right of alienation of property. But we cannot derive this from a preexistent ability of the person to consent because, as we have seen, the starting point of the individual will (as imagined by liberalism) is pre-social. Brudner also says:

Among the many difficulties with this solution [i.e., presupposing the ability to consent, rather than logically deriving and creating the ability to consent] one in particular concerns us most. No person could rationally, that is, consistently with his claim to be an end, consent to a unilateral and exclusive appropriation by another; for this would be to acquiesce in his permanent exclusion from the thing and hence in a permanent disparity between his self-conception and reality.

Id . at 55.

[63] G.W.F. Hegel, Hegel's Science of Logic (A.V.Miller trans., 1969) [hereinafter Hegel, The Greater Logic].

suppositions. To put it simply, he concludes that it is impossible to begin a logical analysis without intentionally, if tentatively, adopting presuppositions.^[64] One needs an initial working hypothesis or abduction. I have just explained that Hegel criticized other philosophers for basing their theories on unexamined presuppositions. Does this mean that Hegel himself is open to the same criticism despite his denials?

Hegel would argue "No." The problem with most philosophers is not that they start from presuppositions, which is inevitable. It is that they never return to critique their initial presuppositions. Presuppositions should only be accepted tentatively as working hypotheses to be developed and tested. Hegel argued that his totalizing philosophy and dialectic logic of Aufhebung (frequently translated into the dreadful English word "sublation") always turns back on itself. This enables one not only to develop the logical consequences of a hypothesis but also to return to and analyze the starting point—to test the hypothesis.

The essential requirement for the science of logic is not so much that the beginning be a pure immediacy, but rather that the whole of the science be within itself a circle in which the first is also the last and the last is also the first.^[65]

Sublation is a process by which internal contradictions of earlier concepts are resolved, but not in the sense of suppressing difference. The German word aufheben means paradoxically to preserve as well as negate.

"To sublate" [i.e., "aufheben" ] has a twofold meaning in [German]: on the one hand it means to preserve, to maintain, and equally it also means to cause to cease, to put an end to. Even "to preserve" includes a negative element, namely, that something is removed from its immediacy and so from an existence which is open to external influences, in order to preserve it. Thus what is sublated is at the same time preserved; it has only lost its immediacy but it is not by that account annihilated.^[66]

In trying to understand the dialectic, many Americans are hampered by having been taught a crude caricature of sublation as a simplistic trinity of thesis, antithesis, and synthesis. That is, a thesis is presented, an in-

[64] And yet we must make a beginning: and a beginning, as primary and underived, makes an assumption, or rather is an assumption. It seems as if it were impossible to make a beginning at all.

Hegel, The Lesser Logic, supra note 29, at 3.

[65] Hegel, The Greater Logic, supra note 63, at 71.

[66] Id . at 107.

ternal contradiction or antithesis in the original thesis is identified, and the two are resolved in a harmonizing synthesis, which destroys all previous contradictions. This serves as a new thesis, starting the logical process over. This formula is designed more as a means to discredit Karl Marx (who expropriated Hegel's method) than to understand philosophy. Indeed, this is how I was introduced to it in high school.

The problem with this description is that it suggests that sublation destroys all difference and deviation by converting them into an oppressive compromise.^[67] Rather, as the German term implies, sublation preserves, as well as negates, the prior concept. Sublation is not merely tertiary—it is quadratic.

Thesis and antithesis exist in contradiction. Through sublation these contradictions are simultaneously resolved into synthesis so that at one moment thesis and antithesis are revealed as identical. Yet there always remains an unmediated moment, a hard kernel of unsublated contradiction, a phantom fourth, the trace or differance of deconstruction, that resists mediation.^[68] That is, in sublation we have not only the thesis and antithesis and the moment of identity of synthesis, but also simultaneously the moment of difference which resists sublation.

In sublation the difference identified in the earlier stage is always preserved because it is always a necessary moment in the development of the later. To gussy it up with more fashionable terminology, the earlier concept is at one moment always already the subsequent concept, but simultaneously the very existence of the latter concept requires that the earlier concept is not yet the later concept.

Sublation (i.e., synthesis) can never destroy the differentiation between self and other (thesis and antithesis) precisely because sublation is the recognition that at one moment self and other are truly the same while at another moment they are truly different. Moreover, the moment of identity is itself different from the self-identity of self and other. In other words, in the differentiation of self and other, identity is a possibility. It is through sublation that the possibility of identity is actualized. But at

[67] Even as brilliant a philosopher as Charles Sanders Peirce criticized Hegel for subsuming "secondness" (awareness of distinctions) into "thirdness" (interrelations). See John E. Smith, Community and Reality, in Perspectives on Peirce: Critical Essays on Charles Sanders peirce 92, 96, 103 (R. Bernstein ed., 1965) [hereinafter Perspectives on Peirce]. Other scholars, however, recognize a cross affinity between Peircean secondness and thirdness and Hegelian sublation. See, e.g ., Paul Weiss, Charles S. Peirce, Philosopher, in Perspectives on Peirce, supra at 120, 133–34.

[68] See Zizek,^[*] For They Know Not What They Do, supra note 19, at 179.

the same time, self and other must remain differentiated in order for actualization to remain possible. Hence Hegel's famous slogan of "the identity of identity and non-identity."^[69]

This is a necessary result of the circularity of the dialectic. Although worded in terms of the proactive resolution of what initially appeared to be contradictions into an implicit and inevitable whole, sublation is simultaneously the retroactive breakdown of what initially appeared as a harmonious whole into unresolved inherent contradiction.^[70]

E—
The Tentative Presupposition

1—
Hegel V. Liberalism

As a theoretical matter, Hegel's logic should eventually result in the same totalizing whole regardless of where one chooses to start. As a practical matter, however, one has to start somewhere.^[71] For practical reasons, some starting points are more productive than others. Hegel's chosen starting place for the Logic is pure being .^[72] The starting place chosen for The Philosophy of Right is the most abstract concept of selfhood which he calls "absolutely free will" —that which is an end in itself, and is not the means to some other entity's end.^[73] The fact that he logically derives the notions of property and abstract right from the notion of the absolutely free will before he derives the notion of the family does not mean that he thinks ancient human beings actually developed commercial and contractual relationships before they adopted the affective relationships of family.^[74] He is not taking the liberal position that the free individual is prior to society. Indeed, the autonomous individual of liberalism was only recognized relatively late as a historical matter.

It is true that in his analysis as a logical starting place, Hegel did start

[69] Hegel, The Greater Logic, supra note 63, at 74.

[70] Slavoj Zizek,^[*] Tarrying with the Negative: Kant, Hegel, and the Critique of Ideology 122–23 (1994) [hereinafter Zizek, Tarrying with the Negative].

[71] Philosophy forms a circle. It has a beginning, an immediate factor (for it must somehow make a start), something which is unproved which is not a result. But the terminus a quo of philosophy is simply relative, since it must appear in another terminus as a terminus ad quem . Philosophy is a sequence which does not hang in the air; it is not something which begins from nothing at all; on the contrary it circles back into itself.

Hegel, The Philosophy of Right, supra note 15, at 225.

[72] Hegel, The Greater Logic, supra note 63, at 82.

[73] Hegel, The Philosophy of Right, supra note 15, at 37.

[74] Consequently, Richard Posner's attempt to explain sexual behavior and family relationships in terms of economic decision making by autonomous individuals would have been anathema to Hegel. Richard Posner, Sex and Reason (1992).

with a creature bearing a strong family resemblance to liberalism's abstract individual. This may be, in part, because Hegel needed to address liberalism directly and immediately, as the foremost political philosophy of the time. But Hegel's dialectic is too generous ever to try to prove that his philosophical predecessors were simply wrong. Hegel agreed with Kant that there are reasons to begin one's consideration of a concept with its simplest, most universal, primitive, immediate, and minimal—and therefore least adequate—manifestation. If one wishes to study mankind generally—to make a universal statement as to human nature—there are advantages to abstracting down to the lowest common denominator.^[75] Hegel then builds upward to show how the more adequate, complex, and fully developed concept is already logically inherent in the more primitive.

Consequently, Hegel might be said to have started with liberalism and accepted that it contains a true if inadequate moment. His point was to show that liberalism's theory of the person was only partial. Accordingly, it logically and necessarily already includes its negation which will lead to the development of a more adequate concept of the person. If liberals start, and end, with the abstract, autonomous individual, Hegel starts with the autonomous individual, continues through a more complex notion of the subject, and ends with the rich concept of the individual in a state. As I have said, liberalism assumes that the abstract person is already a subject, whereas Hegel argues that the abstract person cannot yet perform this role. As Alan Brudner writes:

Our account of property law thus takes as its starting-point personality, conceived initially in the quite insular, decontextualized, and disembodied manner just described. It begins with this abstract self not because it aligns itself with a particular ideology for which this self is an unexamined prejudice, but because any quest for an unconditioned end as the foundation of right must begin with the abstraction from everything given or conditioned and hence with the most vacuous of concepts. Any richer or more affirmative conception of the self must prove itself worthy of rights from this starting-point, that is, through the immanent negation of abstract personality

[75] It seems, rather, that Hegel's aim is to start from what we might call the minimum characterization of a person; this minimum characterization is as someone capable of distinguishing what is him from what is not or, in Hegel's terms, capable of externalizing his will. This minimal, and thus abstract, personality allows two crucial distinctions to be made, between myself and other persons and between myself and what I can have an effect upon.

Alan Ryan, Hegel on Work, Ownership, and Citizenship, in The State & Civil Society, supra note 60, at 178, 185.

as the sole unconditioned reality. So, while our account of property law begins with decontextualized personality, it does not remain there.^[76]

Or, to put it another way, liberal theory's presupposition that the individual is prior to society gives individuality preeminent, exclusive normative import. The normative import in Hegelian philosophy is different. Since the autonomous individual is a true moment of personhood, the state must always preserve and respect individualistic abstract rights. However, insofar as there are also other true moments of personhood, the state can and must take other values into account as well.

2—
The Abstract Person and the Kantian Construct

As a nineteenth-century German, Hegel could not have done otherwise than to start his political analysis from the version of liberalism developed by Immanuel Kant,^[77] rather than those more familiar to American lawyers developed by John Locke, Thomas Hobbes, Jean-Jacques Rousseau, and Jeremy Bentham. Nevertheless, Hegel is relevant to American jurisprudence in that all of these theories share the notion of authentic human nature as containing elements of autonomy, self-standing individualism, and a natural right to negative liberty. Kant is an excellent starting point for the critique of liberalism precisely because he takes this shared notion of the autonomous individual in the state of nature to its logical extreme.

To oversimplify, Hegel agreed with Kant that the most basic, simple, and abstract (and, of course, least adequate) notion of what it could be to be a person is the notion of self-consciousness as free will.^[78] The bare minimum essence of personality which distinguishes someone from something is "consciousness of oneself as simple, contentless self-relatedness that is undetermined by inclination and unrestricted by anything given."^[79]

Hegel explained the minimal concept of the abstract person as follows:

The universality of this will which is free for itself is formal universality, i.e . the will's self-conscious (but otherwise contentless) and simple

[76] Alan Brudner, The Unity of Property Law , 4 Canadian J.L. & Jurisprudence 3, 14–15 (1991) [hereinafter Brudner, Unity of Property Law ].

[77] Hegel's imperative of abstract personality—"[b]e a person and respect others as persons"—is "consciously modeled on Kant's categorical imperative." Avineri, supra note 30, at 37.

[78] Hegel, The Philosophy of Right, supra note 15, at 67–68.

[79] Peter Benson, Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory , 10 Cardozo L. Rev. 1077, 1165 (1989).

reference to itself in its individuality. . . . [T]o this extent the subject is a person .

. . . .

Personality contains in general the capacity for right and constitutes the concept and the (itself abstract) bases of abstract hence formal right. The commandment of right is therefore: be a person and respect others as persons .^[80]

So, even though Hegel starts with free will, he is not presuming that free will is a necessary aspect of human nature. That can only be demonstrated retroactively through the internal logic and consistency of the entire totalizing philosophy. That is, the primitive concept of the abstract person is abstracted from the more developed concept of the individual living in the state.

To be free is to be the means to one's own ends, rather than the means to the ends of another.^[81] The Kantian construct is a totally negative notion of personhood. To be free means not to act under compulsion. In order truly to have free will, the person can have no needs, desires, relations, or other pathological characteristics.^[82] As a consequence, pure freedom is totally arbitrary—if the person acted for a reason, it would be bound by that reason, and not be free.^[83] The person at the start is, therefore, a pure negativity. The free person can only be defined in terms of what it is not. "For the same reason [Grund ] of its abstractness, the necessity of this right is limited to the negative—not to violate personality and what ensues from personality."^[84]

To say that essence of personality is pure negativity may initially seem depressing because in this society we tend to identify the negative as the opposite of the affirmative and, therefore, as that which is bad. But, as I shall emphasize throughout this book, the Hegelian concept of negativity can be seen as not just hopeful but as the very basis of human freedom. The negative and the affirmative require each other. Pure negativity is not nothing, but pure potentiality. It is the very possibility, and therefore ability, to grow, create, and love. And so, as we shall explore in the next section, the abstract negative person as free will contains an internal contradiction which sets the engine of the dialectic in motion.

[80] Hegel, The Philosophy of Right, supra note 15, at 67–69.

[81] Id . at 67.

[82] Id . at 67–70.

[83] Id . at 48–49.

[84] Id . at 69–70.

F—
The Contradictions of Personality

The problem with conceptualization of the self as absolutely free will is that it is empty, abstract, arbitrary, and negative^[85] —it is, by definition, totally stripped of all distinguishing characteristics. It is also, by definition, subjective (in the sense of solipsistic and impoverished) even as it claims to be universal. But real people are not abstract. They have content and concrete existence, experience themselves positively, and interrelate with other people. Since subjectivity is the ability to interrelate with others through legal rights, the empty abstract person cannot be a subject, as liberalism claims.

According to the reasoning of the dialectic, to be potential, abstract concepts must be manifested or actualized in concrete form. This is one of the meanings of Hegel's (wrongly) notorious assertion that "what is rational is actual, and what is actual is rational."^[86] If one starts with the person as abstract free will, then, in order for the concept of freedom to have "meaning"—that is, determinate being—it is logically necessary that the abstract person become a specific, concrete individual with positive existence.

For something to be possible it must be actualized—the failure of something eventually to become actualized means, in retrospect, that it had not been, in fact, possible. Something only retroactively becomes potential once it has already been fulfilled. This is why the abstract person as free will is driven to actualize its potential freedom as concrete freedom.^[87] But the dialectic works the opposite way as well. The logically later concept cannot exist except for the logical necessity of the continuance of the earlier, and the earlier cannot exist except for the logical necessity of the possibility of the later. The later concept is actuality, but the earlier concept is the possibility which allows it to come into being.

This concept of potentiality may initially seem opposed to our intuitions. We have a strong sense that many things that could happen, in fact, won't. Or, to put it another way, we feel that the fact that things turned out one way does not mean that things could not have been different. Isn't this why we are so moved by Marlon Brando's claim in On the Waterfront^[88] that he "could'a been a contender"?

[85] Id . at 27.

[86] Hegel, The Philosophy of Right, supra note 15, at 20.

[87] That is, freedom is negative and, therefore, mere possibility. Right is the actualization of freedom. Id . at 35.

[88] On the Waterfront (Columbia 1954). By my use of this example, I am not implyingthat Hegel formulated a theory of necessity at the level of the empirical individual. He is not a Pangloss who believes that, because right and freedom must be actualized in the world, then everything in the world is in fact right.

Hegel, The Lesser Logic, supra note 29, at 10.

I would argue that a more thoughtful reading of this line of dialogue shows that our intuitions are actually in accordance with the Hegelian view. When Brando asserts that he could have been a contender, he is not really making a claim about his abstract potentiality sometime in the past. Rather, he is making a claim about his actuality in the present. He is asserting a difference between the authentic internal essence of his selfhood and the illusory external accidents of his circumstances. Hidden deep below a shabby facade of failure lies a true noble self—the contender—only temporarily and unfairly obscured. His argument is based on a misuse of the Hegelian dialectic of potentiality and actuality. He says, in effect, "If you agree that I had the potential of being a contender in the past, then you must conclude that I am in actuality a contender today despite all appearances to the contrary because potentiality must always ripen into actuality." He is a frog asserting that he is now a prince because he once was one.

Brando's argument is facetious precisely because he tries to apply the dialectic prospectively. He wants us to believe in predestination. His statement strikes us as tragic, or more accurately, pathetic, because we intuitively understand that the dialectic can only be applied retroactively. He is deceiving himself not only about his present nobility but about his past promise. Only now that the owl of Minerva has flown can we look back and recognize from the fact that he is so obviously not in actuality a contender today that he never really had the possibility of being one. It is now painfully obvious that he never had the guts. He is a frog today, because he was only a polliwog yesterday.^[89]

And so the negative concept of abstract personality as free will contains contradiction and must go under. The self-consciousness as free will

When understanding turns this "ought" against trivial external and transitory objects, against social regulations or conditions, which very likely possess a great relative importance for a certain time and special circles, it may often be right. In such a case the intelligent observer may meet much that fails to satisfy the general requirements of right; for who is not acute enough to see a great deal in his own surroundings which is really far from being as it ought to be? But such acuteness is mistaken in the conceit that, when it examines these objects and pronounces what they ought to be, it is dealing with questions of philosophic science. The object of philosophy is the Idea: and the Idea is not so impotent as merely to have a right or an obligation to exist without actually existing. The object of philosophy is an actuality of which those objects, social regulations and conditions, are only the superficial outside.

[89] This understanding of possibility can also be seen in the common folktales knownas Cinderella stories. The familiar characterization of these as rags-to-riches stories—in which a poor girl is passively rescued by a good marriage—is a vulgar masculinist misunderstanding. In these stories, the heroine always starts as a girl of high estate—usually a princess or at least, as in the best-known version, that of Perrault, the heiress of a wealthy bourgeois. She is only temporarily plunged into a state of debasement and bodily filth upon the death of her mother (and, frequently, the attempted incest by her father). Aided by the supernatural intercession of her dead mother, Cinderella actively seeks out an ideal mate who can recognize her true self and thereby enable her to actualize her possibility revealed at the beginning of the story. That is, Cinderella is a true Hegelian-Lacanian subject. See, e.g ., Marina Warner, From the Beast to the Blond: On Fairy Tales and Their Tellers (1994).

on the one hand has positive existence, but on the other hand has no positive attributes and is pure negativity.^[90] As such, even though the free will is on the one hand an individual, on the other hand it is indistinguishable from all other individuals and, therefore, is not individual.^[91] Moreover, to be truly free the person must be beyond desire; yet, as Hegel explained in The Phenomenology of Spirit , self-consciousness as negativity is nothing but desire.^[92] Self-consciousness claims to be free, but since it is totally negative, its freedom can only be potential. It is, therefore, driven to actualize its freedom in order retroactively to prove its claim.

In order to resolve these contradictions, the will needs to give itself content by embodying or expressing itself somehow.^[93] In order to obtain the subjectivity that will eventually enable the person to develop into a full individual and actualize his freedom, the abstract person needs to objectify himself. As we shall see, although the will must be objectified to obtain positive freedom, immediate, binary object relationships will be inadequate to this task. According to Hegelian philosophy, subjectivity is a triune relationship—intersubjectivity mediated through objectivity. One can achieve subjectivity if and only if one is recognized as a subject

[90] Hegel, The Philosophy of Right, supra note 15, at 46–49; Brudner, Unity of the Common Law, supra note 35, at 21, 36.

[91] Hegel, The Philosophy of Right, supra note 15, at 41–42, 54–55; Brudner, Unity of the Common Law, supra note 35, at 26–28, 229–30.

[92] Hegel, The Phenomenology, supra note 16, § 167.

[93] The activity of the will consists in cancelling [aufzuheben ] the contradiction between subjectivity and objectivity and in translating its ends from their subjective determination into an objective one, while at the same time remaining with itself in this objectivity.

Hegel, The Philosophy of Right, supra note 15, at 57.

The person must give himself an external sphere of freedom in order to have being as Idea. The person is the infinite will, the will which has being in and for itself, in this first and as yet wholly abstract determination. Consequently this sphere distinct from the will which may constitute the sphere of its freedom, is likewise determined as immediately different and separable from it.

Id . at 73.

by another person, whom one recognizes as a subject. Human beings are driven by an erotic desire for mutual recognition.^[94] Property is "a moment in man's struggle for recognition."^[95] Abstract personality cannot be recognized by others because it has no positive individuating characteristics. Only through the possession and enjoyment of objects can the abstract person become individualized and thereby recognizable as a subject. Through the exchange of objects with another person one person can recognize another person as an acting subject deserving of rights. And through recognition by that other person, the first person can recognize herself as a subject capable of bearing rights. Consequently, in Hegel, subjectivity can only be achieved in what Lacan called the "symbolic"—the social order of law and language.

One of the steps in the will's development is property. Property is a means by which the abstract person objectifies itself. The self as abstract will claims to be essential reality, but the existence of external things, that is, objects, and our dependence on external reality contradict this.^[96] The self, therefore, needs to appropriate external objects—it must own property.^[97] The self becomes particularized and concrete, rather than abstract, through ownership.^[98] Potentiality becomes actuality.

[94] See Rosenfeld, Dialectics of Contract, supra note 27, at 1220–21.

[95] Avineri, supra note 30, at 89.

[96] It is therefore a self stripped of all corporeal, mental, and affective characteristics. It has no concrete needs, values, or goals, no qualities of physical or moral character, no attributes of social or economic status, nor any citizenship. It is simply and abstractedly a person. This conception of the essential reality as a self shorn of individuating features is paradoxically determined by an individualistic premise. Specifically, it is determined by the assumption that the individual's isolated or pre-social condition is its natural one, or that the atomistic individual has a fixed and stable reality. Since the determinate individual has the significance of the atomistic one exclusive of others, the self can arrive at a normative foundation only by abstracting from determinateness per se, for the latter is equated with the merely contingent and relative, with that true only for this individual or for that. No value that I seek as an isolated individual can objectively bind others to respect it, for such a value enjoys no privileged position with respect to their own. If I am necessarily isolated from others (if there is no natural community), then all values have this significance .

Brudner, Unity of Property Law, supra note 76, at 19 (emphasis added).

[97] "Because this reduction of things to an end is regarded as objective and absolute, it is said to be constitutive of a property." Brudner, Unity of the Common Law, supra note 35, at 42.

We can understand property, then, as the objectively realized claim of the person to be the end of things. . . . The universal and objective significance of property is that it embodies the end-status of personality.

Id . at 43.

[98] First, property is here private property, because it is the embodiment of the self ofthe atomistic individual, external and indifferent to others. At this stage the presumed end of things is the singular self, the self of the discrete individual, a self that therefore excludes the self of other individuals. The realization of this self as an absolute end is private property.

Id .

G—
Objectification and Objects

Before we turn to how property leads to intersubjectivity and contract, let us examine a little more closely what Hegel meant by objectivity and ownership. This is useful because the English translation of Hegel uses such words as "things," "objects," and "possession," which have an unfortunate tendency to suggest the very phallic metaphor for property—the physical holding and seeing of tangible things—that I am criticizing. Upon careful reading, however, it becomes clear that Hegel did not hold such unsophisticated concepts.

First, I wish to remind the reader of the ambiguity of the English word "property." On the one hand, as Hohfeld so eloquently explained, in a technical legal sense the term "property" refers to a legal interrelationship between at least two subjects.^[99] On the other hand, we also use the word "property" to refer to the object which is the subject of the property relationship. That is, property is both the term for the system of possession, enjoyment, and exchange and the name of the thing possessed, enjoyed, and exchanged within this system. In this book, I use both meanings of the word "property." When I refer to "property" as a type of Phallus , and compare it to the Feminine, I am primarily referring to "property" as the object of desire. When I refer to the legal regime called property, the psychoanalytic parallel is the linguistic system of ownership and exchange called sexuality.

Second, although the word "object" in colloquial English often refers to physical things, in philosophical and psychoanalytical discourse the term "object" refers to anything that is not a subject, that is, that which is not itself capable of having will.^[100] Hegel's definition of "object" is logically necessitated by his starting definition of the subject as free will. The subject is initially the will in the sense of being one's own end in oneself, rather than the means to the ends of another. External things which themselves

[99] See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning 65 (W. Cook ed., 1919) [hereinafter Hohfeld, Fundamental Legal Conceptions].

[100] What is immediately different from the free spirit is, for the latter and in itself, the external in general—a thing [Sache ], something unfree, impersonal and without rights.

Hegel, The Philosophy of Right, supra note 15, at 73.

have will (i.e., other human beings) cannot rightfully be objects of property. This is because appropriation is the infusion of the will of a subject into an object.^[101] External things which do not have their own ends but are merely the means to the ends of another can properly serve as objects. Objects lack the subject's capacity of self-transcendence, are not ends in themselves, and, therefore, offer no moral resistance to their appropriation.^[102] They can only be means to the ends of a will, and therefore appropriation of property by a will is legitimate.^[103]

In other words, an object is defined as that which is not a subject. This means that if one starts with a definition of the subject as abstract person, then a strict subject-object distinction is a simple definitional truism at this stage (but only at this stage) in the dialectic.

All external characteristics are, then, "objects." Although tangible things can be objects, it is not their tangibility which establishes their objectivity. Rather, it is negation by the subject that does it. Potential "objects" of property cannot be limited to actual physical things such as land and cattle, or even intangibles such as debts and intellectual property. Since the concept of the object is defined in terms of what is not (i.e., the subject), anything that "can be conceived as immediately different from free personality"^[104] can be a "thing," including desk, apartment, bank account, and stock portfolio, as well as my talents and ideas:

Intellectual . . . accomplishments, sciences, arts, even religious observances (such as sermons, masses, prayers, and blessings at consecrations), inventions, and the like, become objects . . . of contract; in the way they

[101] Slavery is wrong precisely because it is a system by which human beings are treated as the means to another's ends. Animals do not have "will" as that term is used in the Hegelian system. They are, therefore, proper objects of property. Hegel, The Philosophy of Right, supra note 15, at 86–88.

Our bodies are a special type of property, as I discuss briefly in chapter 3. Our responsibilities to the state also preclude an unqualified right of alienation through suicide. Id . at 102.

[102] [T]he person stands opposed to a world of particular things, some forming its own natural endowment, others lying outside it. A "thing" is a being that is not a person, or that lacks the capacity for self-transcendence. Lacking this capacity, the thing is not an unconditioned end and so offers no moral resistance (has no right) against its use and destruction by other beings.

Brudner, Unity of the Common Law, supra note 35, at 42.

[103] Being a thing is essentially external, its notion is not contradicted if it is given a purpose from the outside. In other words, what is essentially external can be used merely as a means: its end can be given to it by something that is other than it.

Benson, supra note 79, at 1164.

[104] Id .

are bought and sold, etc., they are treated as equivalent to acknowledged things .^[105]

Consequently, Brudner argues (correctly in my opinion) that the view expressed in much modern jurisprudence that the dematerialization of property is a recent invention inconsistent with, and subversive of, classic property theory is simply wrong.^[106] It is wrong on a jurisprudential basis, given the work of Hegel and others, not to mention the long history of nontangible forms of property recognized by the common law, such as incorporeal hereditaments.^[107] Indeed, as I shall discuss in chapter 2, section II.B, classical liberal jurisprudence as reflected in Blackstone's Commentaries and classical liberal political theory as reflected in the writings of Madison and the other Federalists both expressly adopt a definition of the objects of property which is fundamentally the same as Hegel's. They also include whatever is necessary for concrete personality: body, beliefs, opinions, talents, and so on. Property includes all that is proper to man.

H—
The Elements of Property

Hegel identifies three essential elements of property: possession, enjoyment, and alienation. For an interest to be "property," it must contain all three elements. These elements should not, however, be confused with any specific empirical manifestation of the elements, but should be understood as extremely abstract logical and symbolic concepts. Moreover, it does not follow from the proposition that the concept of property necessarily contains three elements that all legal interests either contain complete manifestations of all three elements or lack all three com-

[105] Hegel, The Philosophy of Right, supra note 15, at 74.

Anything, capacity or activity "external" to the person, can become an object of property. Externality does not mean simply that the thing is physically distinct from the person. Objects like books, works of art and mechanical inventions are external to the person, not in virtue of being physically distinct from him, but in virtue of being objectifications (Entaeusserungen ), i.e. concrete embodiments of human skills, talents and abilities.

Benhabib, supra note 60, at 163.

[106] Brudner, Unity of the Common Law, supra note 35, at 42 n.46. Brudner, in particular, takes Radin to task for misunderstanding what Hegel means by the external nature of things.

[107] Id . "All the same, Hegel stretched the notion of property in other contexts in much the same way that theorists of the 'new property' do." Ryan, supra note 75, at 179.

pletely. Some manifestations of property will be more complete and "adequate" actualizations of the abstract possibility of the concept than others. According to Alan Brudner:

Because these conditions will be the necessary and jointly sufficient ones of an objectively valid mastery of things, they will stand to each other not as isolated "sticks" in a "bundle," but as co-essential elements of a totality. That is to say, they will form what are commonly called the "incidents" of ownership—the particular rights that are involved in the notion of property. . . . Property in the full sense will be the interconnected totality of all its partial realizations. It will be possible to distinguish, therefore, between an imperfect and a fully realized property, and therefore between superior and inferior and superior (or relative and absolute) titles to things; and it will be possible to parcel out for finite periods some of the constituent elements of property while keeping intact its atemporal notion, thereby making possible the ideas of a remainder and a reversion.^[108]

1—
Possession

The most rudimentary or logically "first" element of property is possession^[109] —the intersubjectively recognizable identification of a characteristic (object) to a specific person (subject). Possession is the most primitive element of property as an empirical matter in that one can have a right of possession of an object without any right of enjoyment or alienation, as in a simple bailment,^[110] but in order to enjoy or alienate an object one must first have some rudimentary right to possess it. To have possession of something is to have "external power over" it so that the will is embodied in it.^[111] Possession is "man's physical and anthropological capacity to appropriate externality for human purposes."^[112]

By referring to possession, Hegel did not mean physical, sensuous holding. Even though the German word "Besitz " as well as its English cognate carry unfortunate physicalist connotations, both words are more accurately defined as "occupancy" or "ownership."^[113] Indeed, the English word might be even less physicalist than the German used by Hegel.

[108] Brudner, Unity of the Common Law, supra note 35, at 45.

[109] Hegel, The Philosophy of Right, supra note 15, at 76–88; Brudner, Unity of Property Law, supra note 76, at 23.

[110] A familiar example is a hatcheck at a restaurant. While you are dining, the restaurant has the right of physical possession of your checked coat until you request it back, but the maître d'may not wear it or try to sell it to other diners.

[111] Hegel, The Philosophy of Right, supra note 15, at 76.

[112] Benhabib, supra note 60, at 171.

[113] 12 The Oxford English Dictionary 171 (1989).

"Besitz " is derived from the same root as "Sitz " (sitting or seat) and implies occupancy in the sense of the place one physically sits or camps. German mythographer Erich Neumann suggests that the concept of possession as sitting derives from the nomadic nature of ancient German tribes who only temporarily possessed any specific piece of land by camping.^[114] The English word "possession," on the other hand, derives from a root meaning "power" and is etymologically related to such concepts as possibility and potency.^[115] In this light, possession relates not to physicality per se but to the power of the subject with respect to objects and other subjects. Consequently, in chapter 2, section II.B.3, I suggest that if I were granted the privilege of drafting the terminology of property from scratch, I might prefer the term "objectification" to convey the Hegelian concept of possession.

Hegel's definition of possession follows from his realization that the "objects" of property are not necessarily, or even archetypically, tangible.

Given the qualitative differences between natural objects, there are infinitely varied senses in which one can take control and possession of them, and doing so is subject to equally varied kinds of limitation and contingency.^[116]

Nor, by "rudimentary," did he imply that the concept of property originated historically in the physical possession of tangibles, and expanded to include other interests by analogy and metaphor. Property originates in the internal necessity of the will.

[114] Neumann, who has a Jungian perspective on mythology, goes further and suggests that "Besitz " also invokes the images of the mother goddesses worshiped by the Germans and displayed in their camps. "Sitz " was not just the generic term for "seat," it also referred specifically to the king's throne which in turn was identified with the mother's lap. German gods—and German kings—were depicted seated in the lap of the great mother goddess, in the same way as the ancient Egyptians depicted Horus seated in Isis's lap and Catholics depict Jesus seated in Mary's lap. This identification is specifically reflected in religious terminology. "Isis," the name of the great ancient Egyptian goddess, means "throne." Erich Neumann, The Great Mother: The Analysis of the Archetype 98–99 (Ralph Manheim trans., 1963). Even today, one of the Blessed Virgin's traditional titles is "Seat of Wisdom."

Neumann's point is that we confuse the source of power in property. The king thinks that his seat is a throne because he is a king, whereas he is only king because he sits on the throne. Similarly, men speak of possessing women in intercourse, but the man who thinks he possesses the woman is, in fact, possessed by his desire.

In other words, from the Jungian perspective, in possession, the object controls the subject, not the other way around. This is consistent with Hegel's analysis. The subject does not preexist the legal concept of property—it is constituted through property. We do not possess things because we are subjects, we are subjects because we possess things which make us recognizable to others.

[115] Joseph T. Shipley, The Origins of English Words: A Discursive Dictionary of Indo-European Roots 326, 579 (1988).

[116] Hegel, The Philosophy of Right, supra note 15, at 82.

Physical custody is, therefore, merely one possible way for possession to be actualized. This follows from the recognition that the class of objects cannot be limited to tangible things. Indeed, because physical custody is the most determinate^[117] form of possession, it is the most inadequate—a brute fact easily defeated by a brute.^[118] For possession to serve its function, it must be intelligible by others.

The essence of possession is thus intelligible possession. . . . As an aspect of intelligible possession, a person's connection with the object is conceived independently of physical contingencies. Therefore, something is one's own only if one's will should be recognized as present in the object, regardless of whether at any particular moment one has physical possession of it.^[119]

Consequently, Hegel identified at least two other, and more complete, ways of taking "possession" of an object: forming it and marking it.^[120] Forming the object is superior to physical holding because

[t]o give form to something is the mode of taking possession most in keeping with the Idea, inasmuch as it combines the subjective and the objective.^[121]

Moreover,

[117] Ever since "critical" legal scholars announced that the law was "indeterminate," there has been a tendency to associate determinacy with "good" and indeterminacy with "bad." Indeed, the slogan "law is indeterminate" is intended as a critique. In Hegel, determinacy is a descriptive, not a normative, term. Some things are more determinate, but this means that they are more contingent and less universal. Other things are more universal, but they are then less determinate.

[118] From the point of view of the sense, physical seizure is the most complete mode of taking possession, because I am immediately present in this possession and my will is thus also discernible in it. But, this mode in general is merely subjective, temporary, and extremely limited in scope, as well as by the qualitative nature of the objects.

Hegel, The Philosophy of Right, supra note 15, at 84.

[119] Benson, supra note 79, at 1180. Similarly, Brudner states:

[P]ossession is a "property"—a right to possession—one that binds others whether or not the occupier is subsequently present. A distinction thus arises between sensuous and juridical possession, the latter dependent on the former but striving to transcend its limitations.

Brudner, Unity of the Common Law, supra note 35, at 140.

[120] Hegel, The Philosophy of Right, supra note 15, at 85–86. See also Brudner, Unity of Property Law, supra note 76, at 143.

[121] Hegel, The Philosophy of Right, supra note 15, at 85–86.

[t]aking possession by designation is the most complete mode of all, for the effect of the sign is more or less implicit . . . in the other ways of taking possession, too. If I seize a thing or give form to it, the ultimate significance is likewise a sign, a sign given to others in order to exclude them and to show that I have placed my will in the thing. For the concept of the sign is that the thing does not count as what it is but as what it is meant to signify.^[122]

If marking is the most complete form of possession, it is, consequently, the most indeterminate.^[123] That is, there is a considerable role to be played by positive law (whether by statute, custom, or whatever) in specifying which modes of marking will be considered legally cognizable in any specific society. Unlike Locke,^[124] Hegel did not present possession of specific property by specific individuals as being normatively justified, but only as a logically required starting point for the abstract person.

What does it mean, then, to recognize that an object is possessed by (assigned to) a subject? At first blush, possession seems individualistic, but it implicitly requires the existence of others. Property, like all legal claims, is relational in the sense that it is a set of rights and obligations between and among legal subjects.^[125] Consequently, property cannot be a natural right or attribute of an autonomous individual in the state of nature, as Locke insists. Possession is not merely the objective relationship of assignment of object to a subject, therefore. Although my property interest in an apple might include the right to possess it, in

[122] Id . at 88.

[123] Id .

[124] Locke argued that, although in the state of nature the object world belongs in common to all men, an individual is entitled to such property with which he has intermixed his labor, with certain limitations. Locke, supra note 44.

It is a common misperception that Hegel, like Locke, justified property on the basis of first appropriation. See, e.g ., Steven R. Munzer, A Theory of Property 69–70 (1990). I believe that this is a misreading of the following sentence:

That a thing [Sache ] belongs to the person who happens to be the first to take possession of it is an immediately self-evident and superfluous determination, because a second party cannot take possession of what is already the property of someone else.

Hegel, The Philosophy of Right, supra note 15, at 81. In context, I believe that this sentence is merely a descriptive definition of possession—the right and power of a first-in-time claimant to exclude later-in-time claimants—not a normative judgment of the justice of any individual's claim to possession of any specific object. Hegel does not seek to justify any property claim of any individual specifically, but to justify a property regime as abstract right, generally, on the grounds that it furthered the creation of subjectivity and the actualization of freedom.

[125] Hohfeld, Fundamental Legal Conceptions, supra note 99, at 65–115.

the sense of holding it in my hand, and the right to enjoy it, in the sense of eating it, my legal right cannot be reduced to the brute fact of my holding and eating it. A monkey can hold and eat an apple, but it cannot own it. Possession as a legal right, as opposed to a brute fact, is the intersubjective relationship whereby a specific object is assigned to an identifiable subject as opposed to another subject . In other words, possession of an object by one person can only be understood in terms of the exclusion of others from the same object.^[126] But more important, the person takes possession of property so that he can become recognizable by other persons.

Consequently, "possession" is the intersubjective recognition that a specific object is identified to a specific subject in the sense that the subject has some legal entitlement and ability to exclude others from the object.^[127] I say "some ability" because as an empirical matter this might include different combinations of Hohfeldian rights, privileges, powers, and immunities. The highest manifestation of this may be free and clear "ownership" by an individual of those personal goods which are exempt property in bankruptcy—such as a wedding ring or glass eye. That is, the owner has the right, power, and privilege to exclude almost everyone else from these objects and the immunity from having her property interests taken or violated by others. Most possessory rights are much more constrained. Even "fee simple absolute" ownership of real property is not absolutely perfect possession.^[128]

The Hegelian notion of possession, therefore, contains a contradiction in that it is solipsistic but can only be understood in terms of other persons. To possess something is to exclude others, thus possession seems to separate us. But insofar as the will was totally free of contingency, it was already separate. Possession, therefore, reflects rather than causes separation. At the same time, possession is dependent on other persons. The element of possession—the intersubjectively recognizable identification of an object to a subject—therefore presupposes the existence of another

[126] "[T]aking possession confers the title of property only if the individual is situated in a context of social relations that legitimatize this act." Benhabib, supra note 60, at 172.

[127] Elsewhere, I have argued extensively that intersubjective recognition is a necessary and essential element of possession on the grounds that it furthers both the classical liberal value of autonomy and the Hegelian teleological purpose of the actualization of freedom. Jeanne L. Schroeder, Some Realism About Legal Surrealism , 37 Wm. & Mary L. Rev. 455, 509–516 (1996).

[128] See, e.g ., Stewart E. Sterk, Neighbors in American Land Law , 87 Colum. L. Rev. 55 (1987), for a discussion of the limits on fee simple ownership.

subject who can recognize this identification. This means that possession is separate but contains the promise of relationship.

2—
Enjoyment

The next element of property is use—or what I prefer to call the "enjoyment"—of property. Standing alone, possession cannot achieve the person's goal of recognition because mere identification of an object to a person looks the same to an outside observer as identification of the object with the person. Passive owner is confused with owned object. In enjoyment, the person actively relates to the object. By using the object, the will actualizes the fact that the object is a means to the person's ends.

[T]he thing, as negative in itself, exists only and serves it.—Use is the realization of my need through the alteration, destruction, or consumption of the thing, whose selfless nature is thereby revealed and which thus fulfills its destiny.^[129]

What constitutes "use" or enjoyment will depend on the actual object.^[130] Just as possession should not be equated with physical custody, enjoyment cannot be limited to sensuous consumption. The nature of the right of enjoyment varies with the type of object involved. A tomato can be eaten, but one can also admire its beautiful color or fragrance or even use it as a weapon by throwing it at some politician. Although during the term of a lease, the lessee has the right to sensuous exploitation of the leased object, the lessor also retains a right of enjoyment in the form of economic exploitation (i.e., the right to rent). Enjoyment is often conflated with possession in the sense of physical custody, because one frequently, or even usually, needs to be in immediate physical contact with, or at least close proximity to, a tangible object in order to enjoy it. But even in the case of tangible goods, the rights of possession and enjoyment are distinguishable. As reflected in the cliché that you can't have your cake and eat it too, it is often the case that enjoyment destroys the object of

[129] Id . at 89.

[130] Hegel distinguished between partial or temporary use of a thing and ownership in a way that might imply that temporary interests can never be property or that there can never be more than one interest in the same piece of property. Id . at 90.

One should always keep in mind Hegel's concept of the object as anything external that the various partial temporal property interests in the "same" piece of real estate (i.e., a life estate, a fee subject to a condition subsequent, a remainder, etc.) can in Hegelian terms be reanalyzed as several complete ownership interests in different objects. For example, he describes a pledge as the granting by the debtor of possession, use, and right to alienate the value of the collateral. Any excess value belongs to the debtor. Id . at 112.

desire and, therefore, also destroys the other two property elements. Consumption is the ultimate form of enjoyment.

Enjoyment is the most solipsistic element of property, in that the subject turns inward to the object and away from other subjects. Enjoyment, standing alone, is, therefore, also inadequate. The danger of enjoyment is dependence on the object.^[131] Rather than being the means to her own ends (the definition of freedom), the person risks becoming subjected to the ends of the object. Because the enjoyer only has positive existence through enjoyment of her object, she is an addict who is a slave to, and lives only for, the object. This is inconsistent with the free nature of the person and with the function of property to actualize that freedom. So long as the person remains fascinated—spellbound—by the enjoyment of the object, she cannot turn to others.

Enjoyment also fails because solitary enjoyment implicitly presupposes the existence of others who must be excluded so that the object can be enjoyed,^[132] and who must observe if property is to fulfill its purpose. But without mutual recognition the enjoyer remains virgin and sterile, while the observer is reduced to perverse voyeurism. Moreover, to say that enjoyment presupposes exclusion is only another way to say that possession is the most primitive element of property. That is, although it is possible to have the naked right of possession (exclusion) without also having a right to enjoyment, it is hard to imagine having any right to enjoyment without first having some minimal right of possession.

Enjoyment is intersubjective not just because the mutual enjoyment of the same object by two different subjects can be inconsistent, but because one's enjoyment of one's own object can hinder or even preclude the ability of another to enjoy his own object. To give an easy example, even rabid libertarians would probably agree that society can legitimately limit the rights of car owners to enjoy their cars by driving them on the sidewalk because that would interfere with the rights of pedestrians to enjoy their bodily integrity. Another example is environmental nuisances. A factory owner's enjoyment of his object by exploiting its productive capacity and incidentally polluting the underlying aquifers can interfere with

[131] Brudner, Unity of Property Law, supra note 76, at 31.

[132] In possession and use, first of all, the person verifies its primacy in a self-contradictory way, for it finds itself dependent on things for the confirmation of its mastery of them. Hence the very act that cancels the independence of the object also reinstates it.

Id .

a neighbor's ability to enjoy her water.^[133] Exactly what these limitations are (i.e., what degree of interference we will tolerate as a legal matter)^[134] must be determined by practical reasoning (i.e., positive law).

The first two elements of possession and enjoyment also reduce property to a brute fact, mere contingency, rather than a right, in the sense of something essential to humanity.^[135] These contradictions cannot remain. In order to actualize her freedom, the person needs to rid herself of the enslaving object.^[136] This requires the third element of property—alienation.

3—
The Triune Nature of Property

Before we continue further, it might be helpful to stop again briefly to examine where we have been. At this point, the Hegelian conceptualization of property appears to be binary, containing only two terms—the owning will and the owned object. But, as we have seen, this apparently binary relationship contains contradictions. These contradictions will be resolved through the addition of a third term—the other which recognizes the self's property interests and in relationship to which the self can assert its objectification through property. Through sublation, property is always already becoming a relationship between subjects, and subjectivity can only be intersubjectivity.

In my discussions of possession and enjoyment, I have shown that intersubjectivity is implicit and potential, but latent. It is only in alienation through exchange that it becomes express and actualized.

One should also note that even at this point before the recognition of the third term, the purpose of property and the three Hegelian elements of property are already implicitly and inherently intersubjective. The Hegelian analysis contradicts modern assertions that the Hohfeldian conception of property as relational between persons is a recent development inconsistent with the classic view that property is a relationship between

[133] I apply my property analysis to environmental nuisances in Jeanne L. Schroeder, Three's a Crowd: Calabresi and Malamed's Repression of the Feminine (1997) (unpublished manuscript, on file with author).

[134] Of course, legal restrictions are not the only limitations society places on enjoyment. Other restrictions are imposed by religious belief, customs, and etiquette. That is, rudeness is legal but intolerable.

[135] [W]e have not yet bridged the gulf between fact and right. Possession and use are sensuous acts that claim to ground a conceptual or unconditioned right to exclude. Yet the supposedly unconditioned right is thus far self-contradictorily conditioned by physical possession and use.

Brudner, The Unity of Property Law, supra note 76, at 31–32.

[136] Id . at 34.

a person and a thing.^[137] It also contradicts the misinterpretation according to which Hegel reaffirms the liberal position that property is prior to community.^[138] Rather, Hegel shows that the liberal position is contradictory. If community presupposes property, property also necessarily presupposes community.

This Hegelian conclusion as to the triune nature of property parallels the common-law concept of personal property. In contemporary property law there must be a subject asserting the property rights (possession, enjoyment, and alienation). There must be an object in which the property rights are asserted via appropriation by the subject. And there must be at least one third person against which the property rights are asserted.

I—
Adding the Third Term:
Alienation

Accordingly, a person can have existence in relation to another only when each side has recognizable determinate existence through its being embodied as an owner of a thing. The relation between persons must be mediated through external things and must consequently be a relation between persons qua owners of things. For there to be such a relation, it must be possible for me to acquire or alienate something, not merely as an external thing, but as property—as what already embodies the will of another. My acquiring or alienating a thing would then occur through my relation to the other's will. This brings us to the third

phase of property, namely contract, which according to Hegel, completes its deduction.^[139]

[137] The division of right into the right of persons and things  . . . and the rights of actions , . . . like the many other divisions of this kind, aims primarily to impose an external order upon the mass of disorganized material between us. The chief characteristic of this division is the confused way in which it jumbles together rights which presuppose substantial relations, such as family and state, with those which refer only to abstract personality. . . . To enlarge upon the lop-sidedness and conceptual poverty of this division into the right of persons and the right of things , which is fundamental to Roman law . . . , would take us too far. Here, it is clear at least that personality alone confers a right to things , and consequently that personal right is in essence a right of things —"thing" . . . being understood in its general sense as everything external to my freedom, including even my body and my life.

Hegel, The Philosophy of Right, supra note 15, at 70–71.

Of course, Hohfeld himself did not purport to be inventing a new way of looking at law. Rather he created a taxonomy to describe classic legal concepts in an elegant, consistent, and therefore more readily usable, vocabulary. He made more readily apparent certain aspects of property which had not traditionally been recognized—a not inconsiderable achievement. Hohfeld, Fundamental Legal Conceptions, supra note 99. Unfortunately, as I discuss in chap. 2, sec. III.A, his specific attempt to analyze and reconceptualize property per se was woefully inadequate.

[138] Radin, Property and Personhood, supra note 39, at 972.

1—
Abandonment and Gift

Hegel described alienation as the third fundamental element of property.^[140] Possessory rights tell you whom you can exclude from the object of desire. Enjoyment rights tell you what you may do with and to your object of desire. Alienability rights tell you how to rid yourself of the object you once desired.

We have seen how the person cannot remain in lonely enjoyment but must extricate herself from the trap of objectivity. To understand alienation, we must return to the logic of property as the objectification of the will: the free will is simultaneously totally universal and totally solipsistic, and, therefore, seeks to resolve its contradictions by making itself into something recognizable by others. Alienation enables the will to reassert its mastery over an object through indifference.

It is possible for me to alienate my property, for it is mine only in so far as I embody my will in it. Thus, I may abandon . . . as ownerless anything belonging to me or make it over to the will of someone else as his possession—but only in so far as the thing . . . is external in nature.^[141]

Abandonment is one way of demonstrating the nothingness of the object. But mere abandonment cannot be enough because in property the will is attempting to objectify itself. If the subject merely abandons the object, he destroys his objective confirmation.^[142] The only way out of this dilemma is to achieve objective confirmation through the recognition of the act by an equal acting subject—both subjectivity and objectivity must become intersubjectivity.

And so simple abandonment of the object is a self-defeating retreat back into abstraction and away from recognizability.^[143] The person must, therefore, find a way of untangling herself from the object, while simul-

[139] Benson, supra note 79, at 1183.

[140] Id .

[141] Hegel, The Philosophy of Right, supra note 15, at 95. "By getting rid of the thing, I show conclusively that it belongs to me rather than I to it." Brudner, Unity of Property Law, supra note 76, at 34.

As I shall discuss in chapter 3, the logic of property will recognize that the continued possession of certain objects (such as the body) is necessary for the development of personality (i.e., recognizability) and should not be subject to the regime of exchange.

[142] "If I abandon it . . . however, I lack objective confirmation for my claim of right to dispose of it according to my will." Brudner, Unity of Property Law, supra note 76, at 34.

[143] Id .

taneously maintaining sufficient connection to the object to remain recognizable and enabling her to enter into a relationship of mutual recognition by another person.

Gift is more adequate than abandonment because it more explicitly recognizes the third term. Although superior to abandonment, gift is, surprisingly, also inadequate to this function. Although we tend to think of gift as benevolent, the dialectic of gift is similar to the malevolent lord/bondsman dialectic. True, in a gift the donee can recognize the donor as a person with identifying characteristics who is indifferent to the object given and is, therefore, free. The problem is that the donee's recognition doesn't count. This is because, in gift, the donor treats the donee as the means to the donor's end of achieving freedom.^[144] The donee does not herself exercise subjectivity in receiving the gift—she is literally the object of the donor's affection. The donor cannot requite the donee's love precisely because he has selfishly demanded love from her rather than helping her become lovable. The donee is a bondswoman who can never satisfy her lord's desire for recognition.^[145] How often have we seen this failed dialectic played out in actual "love" affairs?

Since the donor does not achieve his goal of being recognized by another subject, he also fails in achieving the subjectivity he desires. Instead of achieving the self-other relationship of mutual recognition, the donor remains in a subject-object relationship. Moreover, after the gift is made

[144] Id .

[145] Although we tend to think of gifts as benevolent, from a Hegelian property analysis they are parallel to the malevolent relationship described in Hegel's famous lord-bondsman dialectic. The lord, seeking recognition, enslaves a bondsman who is forced to bow down in obeisance. This does not have the desired result, however, because the lord has reduced the bondsman to a degraded state. By enslaving the bondsman, the lord has refused to recognize the bondsman as an equal human being whose judgment counts. Or, to put it the other way, the lord can only maintain his status as a lord by refusing to recognize the bondsman as a human being. The recognition by the bondsman is unsatisfying precisely because the lord craves admiration from someone better than himself, yet the lord cannot allow himself to admit that the bondsman is even his equal. Hegel, The Phenomenology, supra note 16, at 114–21.

Similarly, admiration which is bought—as in the case of gift—is suspect. We despise those who take bribes. Consequently, there is something unsatisfying in the recognition of thanks precisely because we do not really admire another person when he is thanking. It is a servile act. By demanding love, rather than giving it, the donor, like the lord, reduces the donee, like the bondsman, to an inferior position. The donee whose love is demanded is perceived as pathetic and clinging, and not lovable. This is why the seducer's desire turns to loathing the moment his paramour asks "When will I see you again?"

This is not to imply, of course, that gifts never have benevolent social functions. It merely implies that the relationship of gift does not further the specific function assigned to property, namely the creation of legal subjectivity.

(as in abandonment), the giver is once again left without an identifying object in his possession. He squandered his object in a failed attempt at recognition and is once again left unrecognizable.

2—
Exchange

The only way of making a person lovable is to love her—recognize her as a subject worthy of recognition. As Lacan explained, love must precede lovability.^[146] To love is, precisely, to see in someone more than she is. This results in the alchemy in which the beloved is able to give back to the lover that which she doesn't have.^[147] It is only at the moment when she, whom I now recognize as a subject, in turn recognizes me as a subject, that I truly know myself as "I."^[148] She is my mirror, and I am hers. In exchange—contract^[149] —one person does not give an object to the other; two persons exchange objects.^[150] Not only is the first party thereby recognized as a free subject by the counterparty, but since the counterparty is also alienating an object, the counterparty is simultaneously recognized as a free subject by the first party. Because in contract the two parties are briefly united in a common will—the agreement to engage in the exchange—they share ends.^[151] Neither is reduced to the subhuman objective level of a mere means to the ends of the other. This is the moment of mutual recognition between subjects which can only be achieved through the mediating object in the relationship known as property, contract, and abstract law.^[152]

A person, in distinguishing himself from himself, relates himself to another person , and indeed it is only as owners of property that the two per-

[146] "Not so long ago, a little girl said to me sweetly that it was about time somebody began to look after her so that she might seem lovable to herself." Lacan, Four Fundamental Concepts, supra note 1, at 257.

[147] Miran Bozovic^[*] , The Bonds of Love: Lacan and Spinoza , 23 New Formations 69 (1994).

[148] "To love is, essentially, to wish to be loved." Lacan, Four Fundamental Concepts, supra note 1, at 253.

[149] For simplicity, I am using the term "contract" to describe its more complete manifestation in exchange. Hegel, however, was careful to recognize that even gift has a contract aspect. "A contract is formal insofar as the two acts of consent whereby the common will comes into being—the negative moment of the alienation of a thing . . . and the positive moment of its acceptance—are performed separately by two separate persons: this is a contract of gift ." Hegel, The Philosophy of Right, supra note 15, at 106.

[150] This is as much the case in service contracts as in sales contracts. The services performed are as much an object (in the sense of being separable from the concept of personhood) as the money paid.

[151] Id . at 102–03.

[152] Id . at 104.

sons really exist for each other. Their identity in themselves acquires existence . . . through the transference of the property of the one to the other by common will and with due respect for the rights of both—that is, by contract .^[153]

Law is essential to this dialectic because it is only by being accorded rights that a person obtains the dignity of a subject who is capable of bearing rights. Law, contract, and the legal subject who is capable of contract are mutually self-constituting. The abstract person creates rights not so he can immediately claim them for himself, but in order to accord them to the other in order to bestow on her the dignity of subjectivity so that she may in turn recognize him and return the gift of subjectivity.

Contract recognizes a moment in which two persons are united, bound together in a common will at the same time that they recognize each other as separate individuals having specific rights and duties. The parties to contract are simultaneously the same and different, actualizing the identity of identity and difference.

But as the existence of the will , its existence for another can only be for the will of another person. This relation . . . of will to will is the true distinctive ground in which freedom has its existence . This mediation whereby I no longer own property merely by means of a thing and my subjective will, but also by means of another will, and hence within the context of a common will, constitutes the sphere of contract .^[154]

And so we see, property simultaneously leads to the creation of both the contract^[155] and the contracting person; they are mutually constituting. The object of property in this stage of development is the external object of desire exchanged between subjects. This exchange does more than merely enable persons to recognize each other as acting subjects. Rather, this mutual recognition is precisely what makes us into subjects with the capacity of acting and contracting.

For this reason, alienation—the exchange value of property—is essential to the idea of property as a moment in the formation of personality precisely because it subordinates the object to intersubjective rela-

[153] Id . at 70.

[154] Id . at 102.

[155] [Contract] is the process in which the following contradiction is represented and mediated: I am and remain an owner of property, having being for myself and excluding the will of another, only in so far as, in identifying my will with that of another, I cease to be the owner of property.

Id . at 104.

tionship. Property is not about things, it is about people. True, in property people desire, possess, and enjoy objects, but only derivatively as a means of achieving their true desire—the desire of the other.

In most traditional liberalism, the authentic human being is the autonomous individual supposedly encountered in a hypothesized state of nature. This liberal tenet means that negative freedom is all that the state and other individuals can offer. To Hegel, however, this categorical imperative is merely the bare minimum that human beings owe each other, and fails to describe the more complex interrelations of which individuals are capable within families and communities.

If someone is interested only in his formal right, this may be pure stubbornness, such as is often encountered in emotionally limited people. . . . [F]or uncultured people insist most strongly on their rights, whereas those of nobler mind seek to discover what other aspects there are to the matter . . . in question. Thus abstract right is initially a mere possibility. . . . ^[156]

I have been describing the Hegelian dialectic in terms of desire and love, but the relationship achieved at the level of abstract right is only the cold impersonality of the marketplace. But Hegel's precise point is that although the market seems cold and abstract it is, in fact, fundamentally but potentially erotic. As its name suggests, abstract right is the most abstract, and therefore the least adequate, form of human relationships.^[157] Consequently, it is only the first logical step in, and not the culmination of, the process of the development of the personality and the actualization of freedom. This is why the last two-thirds of The Philosophy of Right concern how abstract right is sublated into the more adequate relationship of morality, which in turn is sublated into ethical life, thereby enabling the development of a complex individuality within a complex society. This means that, in contrast to utilitarian liberalism, Hegelianism refuses to analyze all human relations in terms of economic man interacting in the marketplace.^[158] This also means that, in contrast to libertarian liberalism, property rights, although necessary, cannot be absolute. Property rights will necessarily be limited not only by prop-

[156] Id . at 69.

[157] Brudner describes the interpretation of all human relationships in terms of contract as "the distorted image peculiar to persons who define their worth independently of all connection to others." Brudner, Unity of Property Law, supra note 76, at 37.

[158] See also Avineri, supra note 30, at 139. Indeed, to describe more complex relationships, such as marriage, in terms of contract is not just impossible, it is "disgraceful." Hegel, The Philosophy of Right, supra note 15, at 105.

erty's own internal limitations but by the higher requirements of morality and ethics.

J—
From Hegel to Lacan

I now explore how the Feminine serves a function in the psychoanalytic-linguistic theory of Lacan parallel to the function of property in Hegel's theory of subject formation. At first blush, Hegel and Lacan seem to adopt different starting places for their analyses. As we have seen, Hegel tried to derive a philosophy without presuppositions, even as he realized that one must tentatively adopt a working presupposition in order to start the logical process. He chose to start with the Kantian construct—the most universal, and thereby abstract, conception of the individual—in order to derive the development of the complex, concrete experience of actual human beings. Hegel's description of the development of the subject and the society purports to be logical, not literally temporal in the psychological or historical sense. The logical necessity of the theory is retroactive, not prospective.

Lacan explored the development of the psychoanalytic subject. One might initially assume that his starting place and ending place are given as a biographical and empirical matter—we all start out as babies and we end up as adults.^[159] This makes the theory sound like a temporal, biographical account based on the observation that babies are speechless but learn to speak as children.^[160] The autonomous individual of liberalism would have no place in Lacan's theory, if for no other reason than that if he did exist, he would have no need of a psychiatrist's couch.^[161] On fur-

[159] Of course, this is only "given" in the vaguest sense. Isn't the whole problem of psychology and ethical philosophy that there can be great disagreement as to how a baby "starts" (i.e., how much of our personality and language capabilities are hardwired in our genes, and how much is software programmed into us later) and where we end up (i.e., are human beings inherently selfish, altruistic, individualistic, communitarian, good, bad, all or none of the above?)?

[160] The human subject is created from a general law that comes to it from outside itself and through the speech of other people, though this speech in its turn must relate to the general law.

Juliet Mitchell, Introduction I to Jacques Lacan and the école freudienne, Feminine Sexuality 1, 5 (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) [hereinafter Lacan, Feminine Sexuality].

[161] The Hegelian subject much more nearly recognizes the people encountered in therapy than does the autonomous self-interested individual of liberal political theory. Lacan's formulation that "the desire of man is the desire of the other" was specifically intended asa description of hysteria. Lacan, Écrits, supra note 14, at 264. But this is because Lacan believes that hysteria is not an aberration but the fundamental human condition. Zizek,^[*] The Indivisible Remainder, supra note 29, at 167.

ther reflection, however, it becomes apparent that Lacan's theory, like Hegel's, is not inductively derived from the observation of children and does not necessarily purport to be an accurate description of human biography. Rather, as Lacan insists, his theory is a fiction—a story retroactively written through abduction and dialectic logic to explain a Hegelian conception of the person.

To Lacan, the subject is the subject of language.^[162] In other words, subjectivity is intersubjectivity mediated through objectivity—just as it is in Hegelian philosophy. Human beings are driven by an erotic desire for mutual recognition; one can achieve subjectivity if and only if one is desired as a subject by another person whom one recognizes and desires as a subject.^[163] In order to become a speaking subject, the infant, like the Hegelian abstract person, must become recognizable and recognized by another speaking subject. Through the symbolic exchange of the Phallus as object of desire with another person—that is, language and the law as prohibition—the person can desire the other person as a speaking and desiring subject. And through recognition by that other person, the first person can recognize himself as a speaking subject capable of desire.

This subject's position with respect to possession, enjoyment, and exchange of the Phallus is sexuality. Sexuality is not, therefore, a biological function, although it is patterned by biology.^[164] Consequently, the moment a person attains sexuality is simultaneously the moment of creation both of subjectivity as intersubjectivity and of law as prohibition. In Hegel,

[162] "I have long established in the structure of the subject, defined as the subject that speaks . . . " Jacques Lacan, Introduction to the Names-of-the-Father Seminar [hereinafter Lacan, Names-of-the-Father Seminar ], in Lacan, Television, supra note 20, at 81, 82. "For Lacan the subject is constituted through language. . . . The subject is the subject of speech (Lacan's 'parle-être '), and subject to that order." Jacqueline Rose, Introduction II to Feminine Sexuality, supra note 160, at 27, 31; see also Mitchell, supra note 160, at 5.

[163] "If I have said that the unconscious is the discourse of the Other (with a capital O), it is in order to indicate the beyond in which the recognition of desire is bound up with the desire for recognition." Jacques Lacan, The agency of the letter in the unconscious or reason since Freud [hereinafter Lacan, The agency of the letter ], in Lacan, Écrits, supra note 14, at 146, 172.

[164] "[A]ny difficulties experienced by the individual in assuming his or her own sex, bear no direct relation to the biological facts of what is called intersexuality." The école freudienne, The phallic phase and the subjective import of the castration complex [hereinafter the école freudienne, The Phallic Phase ], in Lacan, Feminine Sexuality, supra note 160, at 99, 107. In the words of Mitchell, "the actual body of the child on its own is irrelevant to the castration process." Mitchell, supra note 160, at 17. "It is only . . . through deferred action that previous experiences such as the sight of the female genitals becomes significant." Id . at 16.

property, subjectivity, and law were mutually constituting. In Lacan, sexuality, subjectivity, and law are mutually constituting. Property in Hegelian philosophy, therefore, serves a function parallel to that of the Phallus in Lacanian psychoanalysis.

Like Hegel's, Lacan's reasoning is dialectic, retroactive, and abductive, not empirical, progressive, or inductive.^[165] He does not argue, as Freud sometimes seems to have done, that our adult sexuality is the culmination of an empirical process starting with our literal desire to have sexual union with our mothers and to kill our fathers. Rather, the logic of subjectivity and consciousness requires intersubjective recognition achieved through a regime of possession, enjoyment, and exchange of an object of desire. It is only when we retroactively try to understand this purely psychoanalytic process that we identify or conflate the stages with actual empirical stages we have lived through. Psychoanalysis is not an account of what the child is actually experiencing. It is, rather, the story told by the adult looking back at his own childhood. That is, we are not the way we are because we desired our mother, but our memory of our desire for our mother only retroactively takes on importance because of who we are today.

III—
The Lacanian Story of the Feminine

A—
Reading Lacan

The gender types described by Lacan are at least superficially consistent with contemporary gender stereotypes—many of which are highly misogynist. I would hope that feminists and feminist fellow travelers do not dismiss his theories out of hand because of this. I find his account not merely provocative but evocative. In particular, I find that his typology of the Feminine and Masculine functions much more accurately fits my experience of myself and others than does the pop psychology of cultural feminists. Lacan does reveal a tragic, misogynist world. But to condemn him for doing so is to kill the messenger because of the message.^[166] A theory of misogyny is not necessarily a misogynist theory.

[165] Zizek,^[*] Tarrying with the Negative, supra note 70, at 37, 58, 66, 200–01, 208, 211, 219; Slavoj Zizek, Looking Awry: An Introduction to Jacques Lacan Through Popular Culture 13, 17, 69–71, 78 (1992) [hereinafter Zizek, Looking Awry].

[166] As Mitchell states, Lacan's "task is not to produce justice but to explain this [i.e., existing sexual differences]." Mitchell, supra note 160, at 8.

More important, Lacan is, probably unintentionally, subversive of the gender status quo. I will show throughout this book that Lacan's very propositions undermine his conclusions from within. The Masculine is supposed to be the position of subjectivity, and the Feminine that of objectivity. The Feminine symbolizes lack—she does not exist. But it is only this radical negativity of the Feminine which can represent the negative that is at the heart of the split Lacanian subject. It is only this negativity which opens up a space in human existence for desire, creation, and freedom. It is the denial of the Feminine in what Lacan called "castration" which transforms the impossible into the merely forbidden.

Paradoxically, then, it is this impossibility of the Lacanian Feminine which creates the possibility of Hegelian freedom. Consequently, Lacanian theory shows that the self-actualization of human freedom requires not only property rights but feminine emancipation. This latter requires the impossible task of going beyond the limits of castration and creating an affirmative speaking feminine subjectivity. This is the concept of Hegelian freedom as "the ought"—that which, according to sublative logic, is the always already and the not yet. But it is never the now.

But we run before our horse to market.

1—
The Patriarchal Family

In reading Lacanian theory one needs to keep several things in mind. First and foremost, Lacan's theory does not "explain" patriarchy in a scientific or causative sense. Rather, it presupposes patriarchal family structures.^[167] Lacan's method was abduction—the logic of imagination.^[168]

Abduction is the logical process by which we try to imagine possible

[167] It is significant that this myth does not in fact explain patriarchy, for it already presupposes it. For the father to have control of all the women, for the sons to be dominated by him, patriarchy must already exist.

Grosz, supra note 18, at 69.

As Lacan noted:

Judging from experience [the function of woman as the symbolic object of exchange among men] can only happen within an androcentric and patriarchal framework, even when the structure is secondarily caught up in matrilineal ancestries.

Jacques Lacan, The Seminar of Jacques Lacan, Book II, The Ego in Freud's Theory and in the Technique of Psychoanalysis 1954–1955, at 272 (J.-A. Miller ed. & S. Tomaselli trans., 1988) [hereinafter Lacan, Seminar II].

[168] See generally Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination , 70 Tex. L. Rev. 179 (1991) [hereinafter Schroeder, Abduction from the Seraglio ].

explanations of initially surprising phenomena. As Julia Kristeva explains, she accepts Lacan's theory of castration as a working hypothesis because of its great explanatory power. She compares it to the "Big Bang" theory of the birth of the universe, which cannot be directly observed. Nevertheless, if we were to treat the story of the Phallus or the story of the Big Bang as though it were true, then so many initially surprising things we observe about human behavior, in the one case, or astrophysics, in the other, would no longer be surprising but would be a matter of course.^[169] It is a retroactive attempt at explaining the past, as opposed to a prospective prediction of the future. Consequently, Charles Sanders Peirce argued that abduction was better termed "retroduction."^[170]

In other words, Lacan did not merely observe infants acquiring language and deduce that conventional gender roles would inevitably develop. Rather, he observed the existence of the patriarchal family and tried to imagine a satisfying story which might make its existence seem understandable. This means that Lacan purports neither to show how patriarchy originally came into being as a historical matter nor to argue that patriarchy is inevitable. At most, it suggests the structures through which Western patriarchy, once in place, reproduces itself.^[171]

On the one hand, the theory holds out to feminists at least a theoretical possibility of change—a rewriting of gender roles. On the other hand, Lacan's retroactive account of patriarchy as a self-reproducing system takes seriously the crushing "reality" of the fiction of gender roles as lived. We cannot not merely wish away unhappiness and oppression.

2—
The Artificiality of Sexuality

Lacan can be seen as retelling Hegel after Freud, or perhaps more accurately, as rewriting Freud through Hegel.^[172] Lacan's greatest contribution to Freudian psychoana-

[169] Julia Kristeva, The Kristeva Reader 197–98 (Toril Moi ed. & Alice Jardine et al. trans., 1986).

[170] Schroeder, Abduction from the Seraglio, supra note 168, at 115 n.15.

[171] That is, the theory simultaneously recognizes that the status quo is not natural while recognizing that we do not develop into persons in a vacuum but within a specific society. As a consequence, anatomical difference does not cause sexual difference in a psychoanalytical sense, but sexual difference is retroactively overlaid onto anatomical difference "according to a pre-existing hierarchy of values." Rose, supra note 162, at 42.

[172] Lacan's insistence that he was "returning" to Freud should not be confused with an uncritical acceptance of Freud's theories. Lacan was perfectly aware that the theories of the historical Freud were not totally systematized but contained contradictory strands and a lingering naturalism. But this is to be expected in the works of any innovator. Lacan thought that much of contemporary Freudian psychoanalysis, particularly American object-relations theory, was unsuccessful because it had, so to speak, taken the wrong fork in Freud's theory. Lacan, therefore, argued that it was necessary to return to Freud in the sense of reopening his work to recover what had been lost. Id . at 28.

lytic theory may be that he moved it away from the anatomical and natural.^[173] Freud himself wavered between naturalistic and fictional accounts of the psyche.^[174] In his theory of "penis envy," Freud at times came close to saying that the penis is so impressive that the mere sight of it arouses an actual desire in little girls to want one of their own; the primal sighting (or non-sighting) of the little girl's lack of a penis causes the little boy to fear physical castration. The psychological experience of loss is a retroactive reinterpretation of these primal events. The traditional Freudian theory of the oedipus complex risks becoming an assertion concerning biological lust which is supposedly experienced by children as an empirical, biological matter.

In contradiction:

Sexuality . . . [on Lacan's rewriting of Freud] is not, in spite of popular conceptions, governed by nature, instincts or biology but by signification and meaning.^[175]

This signification is given by the man looking back at the child he once was.^[176] Penis envy and castration anxiety are retroactive, imaginary reinterpretations of earlier psychoanalytic experiences of loss, rather than the other way around.^[177]

[173] "Lacan's central insight has been to correct the biological readings of Freud's account of gender differentiation through the castration complex." Drucilla Cornell, The Doubly-Prized World: Myth Allegory and the Feminine , 75 Corn. L. Rev. 644, 660 (1990) [hereinafter Cornell, Doubly-Prized World ].

[174] See,e.g ., Grosz's account of Freud's account of the subject, sometimes taking what she refers to as a realist approach, while at other times taking a narcissistic approach. Grosz, supra note 18, at 24–31.

Wilden notes that although Freud "stated quite adamantly the discontinuity between psychic and other realities (biological reality . . .), . . . he had nevertheless indicated his own carelessness about maintaining the distinction in his writing." Wilden, supra note 19, at 199.

[175] Grosz, supra note 18, at 13. Note that in this passage, Grosz is emphasizing the nonanatomical aspect of Freud which Lacan developed further. In context, Grosz's point is that Freud wavered between the symbolic interpretation of sexuality and an anatomical, naturalist interpretation.

[176] "The legibility of sex in the interpretation of the unconscious mechanisms is always retroactive." Lacan, Four Fundamental Concepts, supra note 1, at 176. Freud was preoccupied with the actual historical event experienced by the child that would create subjectivity. "But for Lacan, this is not some mythical moment of our past, it is the present order in which every individual subject takes up his or her place." Rose, supra note 162, at 36.

[177] My disagreement with Judith Butler's reading of Lacan is so profound that a point-by-point refutation is beyond the scope of this book. Basically, I believe that her misreading springs largely from a failure to appreciate the retroactive nature of the dialectic. Thus, she thinks it is a criticism of Lacan's theory of the mirror stage that the infant is described as becoming aware of its body through the sight of its organs, which she believes Lacanconsidered to be typified by the male genitals, when the signification of the Phallus and its identification with the penis only takes place in the later oedipal stage. Judith Butler, Bodies That Matter: On the Discursive Limits of "Sex" 78–79, 86 (1993) [hereinafter Butler, Bodies That Matter]. This is not, however, a contradiction if one realizes that the signification of the organs in the mirror stage is not the empirical experience of the infant. Rather it is signification given by the adult looking at children and reconstructing his experience. Butler also seems peculiarly insensitive to how Lacan's theories developed over time, comparing his very early work on the mirror stage which dated from the 1930s, which arguably reflect traces of classic Freudian biologism, with his late writings on sexuality in the 1970s.

I do agree with Butler, however, that the Lacanian system, with its dichotomy of male and female sexuated positions, has not to date developed a satisfying account of homosexuality. But then, in my opinion, neither does Butler.

3—
Sexuality as Language

When Lacan speaks about "men" and "women," he is not speaking about empirically anatomical male and female human beings.^[178] He is, rather, referring to the "Masculine" and the "Feminine" as psychoanalytical, or linguistic, positions which human beings must take up to become speaking creatures. These positions are only generally associated with the biological sexes.^[179] That is:

For Lacan, men and women are only ever in language ("Men and women are signifiers bound to the common usage of language" . . . ). All speaking beings must line themselves up on one side or the other of this division, but anyone can cross over and inscribe themselves on the opposite side from that to which they are anatomically destined.^[180]

To say that Lacan sought to destroy any lingering biological determinism in Freud's theories while explaining how gender difference becomes mapped upon biological sexual difference^[181] is not to imply that biological sexual difference does not exist or is not important. Lacan's

[178] Lacan teaches us that there are not such "things" as men and women in any theoretically pure sense. As split subjects we are all defined as both Masculine and Feminine, because there can be no pure referent outside of the system of gender representation that designates our sex.

Cornell, Doubly-Prized World, supra note 173, at 672.

[179] This account of sexual desire led Lacan, as it led Freud, to his adamant rejection of any theory of the difference between the sexes in terms of pre-given male or female entities which complete and satisfy each other. Sexual difference can only be the consequence of a division; without this division it would cease to exist. But it must exist because no human being can become a subject outside the division into sexes. One must take up a position as either a man or a woman. Such a position is by no means identical with one's biological sexual characteristics, nor is it a position of which one can be very confident—as the psychoanalytical experience demonstrates.

Mitchell, supra note 160, at 6.

[180] Rose, supra note 162, at 49.

[181] Grosz, supra note 18, at 13; Cornell, Doubly-Prized World, supra note 173, at 660.

point is that our experience of sexuality as speaking, conscious subjects can never be simply reduced to our biological sex for the same reason that property cannot be reduced to our sensuous relationship with physical things. Sexuality is artificial, and therefore authentic to man the artist. The sexual status quo is neither natural nor inevitable in the sense that anatomy is destiny. Nevertheless, Lacan hypothesizes a mechanism by which a sexual status quo—once in place—maintains its position.

Male superiority is neither biologically nor psychoanalytically true. Rather it is a fantasy. Yet it is a fantasy in which we live.^[182] If gender is a lie, it is a lie that we believe . We must adopt a sex in order to become adult subjects. As we shall see, the theory holds that identification of these psychological categories with biological analogues is practically inevitable in our society, even if it is erroneous. Anatomy is, therefore, hardly irrelevant.

[A]natomy is what figures in the account: for me "anatomy is not destiny," but that does not mean that anatomy does not "figure" . . . , but it only figures (it is a sham ).^[183]

That is, the fictional sex we "choose" and live tends to be correlated, more or less strongly, with our anatomical sex. Lacan captures this by using terms for his psychoanalytical concepts, like Phallus and castration, which suggest this conflation. Consequently, a Lacanian would deny the fashionable sex/gender distinction (which identifies the former with anatomical difference and the latter with social difference) precisely because it presupposes that we can tell the difference and achieve an immediate experience of the "real" of anatomy as distinct from our imaginary and symbolic interpretations.^[184]

Neither does my reading of Lacanian theory require a denial of the physical and anatomical concept of the brain, in favor of a psychic explanation of the mind. Nor is his linguistic theory necessarily incompatible

[182] For example, as Ellie Ragland-Sullivan explains, "[i]n this signifying nexus, males defend against imaginary castration anxiety by linking identity, discourse, and sexual apparatus to a fantasy of superiority qua difference." Ellie Ragland-Sullivan, The Sexual Masquerade: A Lacanian Theory of Sexual Difference, in Lacan and the Subject of Language 49, 59 (E. Ragland-Sullivan & M. Bracher eds., 1991).

[183] Rose, supra note 162, at 44 (quoting M. Safoan, la sexualité féminine dans la doctrinne freudienne 131 (1976). Ragland-Sullivan criticizes Rose for stressing the role of anatomy in the development of sexual identity.

[184] See Mitchell, supra note 160, at 2. Curiously, this is one of the few points of agreement between Lacanian theory and MacKinnon's so-called feminism unmodified. Jeanne L. Schroeder, The Taming of the Shrew: The Liberal Attempt to Mainstream Radical Feminism , 5 Yale J.L. & Feminism 123, 138–39 n.42 (1992) [hereinafter Schroeder, The Taming of the Shrew ].

with theories that emphasize the physical capacity of the human brain for language.^[185] Lacan's idea is held by many philosophers of science.^[186] Human consciousness cannot experience the physical in an unmediated way. Human beings, as speaking subjects, do not have a direct unmediated relationship to our biological sexuality. We always filter our experience of the physical through the orders of the real, the imaginary, and the symbolic. The moment we are aware that we are experiencing a sensation, the second we are aware of ourselves as differentiated from an object or sensation, our mind has mediated the experience of the brain.^[187] The moment we think about our sexual experiences (let alone fantasize or speak about them), we have already interpreted them.^[188]

4—
The Anatomy of Truth

Lacan's truth about lies is a story told through metaphors of male anatomical experience. But this leaves open the question whether other different "true" stories—perhaps feminine stories—could be told to explain other aspects of ourselves.

This possibility, of course, is more than just a little problematical. As we shall discuss, Lacan posits that the subject is psychologically positioned as masculine. What then could it possibly mean to tell a feminine story if we always speak in a masculine voice?^[189] It would not be an answer merely

[185] Nevertheless, some Lacanians insist on such an incompatibility. For example, Ragland-Sullivan states: "There are . . . no innate Chomskian tendencies or capacities for language." Ellie Ragland, Essays on the Pleasures of Death 193 (1995).

[186] Including Peirce and Karl Popper. See Schroeder, Abduction from the Seraglio, supra note 168.

[187] Charles Sanders Peirce developed a particularly clear illustration of the mediated nature of consciousness:

Imagine me to wake and in a slumberous condition to have a vague, unobjectified, still less unsubjectified, sense of redness, or of salt taste, or of an ache, or of grief or joy, or of a prolonged musical note. That would be, as nearly as possible, a purely monadic state of feeling.

Charles Sanders Peirce, Collected Papers, vol. 1, Principles of Philosophy 149 (E. Hartshorne & Paul Weiss eds., 1931) [hereinafter Peirce, Collected Papers]. But as soon as one becomes conscious that one is tasting something, there is no longer one thing, the pure essence of the taste. There are two, the taste and the taster. You no longer have an unmediated experience of the quality of taste, but a mediated or interpretive experience. You can speculate that a few seconds before, you might have had an immediate, purely physical, experience, but you can never know this directly.

[188] Cornell, Doubly-Prized World, supra note 173, at 672. It is "never a question of arguing that anatomy or biology is irrelevant, it is a question of assigning their place. [Lacan] gave them a place—it was outside the field of psychoanalytic enquiry." Mitchell, supra note 160, at 20.

[189] Lacan's assertion, however, is also a way of insisting that women cannot tell of the experience of Woman, because it is exactly this universal experience which is beyond rep-resentations. Lacanianism, in other words, seems to undermine all attempts on the part of feminists or anti-feminists to tell us what Woman is. She is the beyond. At the same time, Woman, or the Feminine, is "there" in her absence, as the lack that marks the ultimate object of desire in all subjects. To say that She is unknowable is not, then, to argue that Her lack is not felt. Indeed, Woman as lack is constitutive of genderized subjectivity. Even so, Woman does not exist as a "reality," present to the subject, but as a loss.

Cornell, Doubly-Prized World, supra note 173, at 661.

to attempt to tell the story of development through female anatomical metaphor.^[190] Mere negation or reversal is always a reinstatement, not a rejection, of hierarchy. In negation, the categories of the original hierarchy are accepted, and thereby strengthened and essentialized; one merely argues about the relative valorization of the categories. Lacan's point of the essential antinomy of sexuality remains.^[191] If the Feminine is the position of lack (radical negativity), then any attempt to identify positive content replicates the deluded masculine fantasy that we can tame and dominate the Feminine by defining her.

For example, as I shall discuss, Lacan's psychoanalytical term of art Phallus is the lost object of desire and the signifier of subjectivity. It does not designate the male organ. The identification of the Phallus with the male

[190] Luce Irigaray, whose Lacanian-influenced writings are filled with female imagery, at first blush seems to be making this mistake. Cornell argues that this literal-minded analysis misses Irigaray's point:

Because of her refiguring of sexual difference, Irigaray has been falsely accused of once again understanding anatomy as destiny. But this accusation only makes sense if Irigaray is understood as describing the female body and then drawing conclusions about what women are from this description. Instead, the second aspect of her deconstruction should be understood to undermine the identification of gender with her "sex," now in the name of feminine desire. Sexual difference, in other words, reaches into the definition of desire itself. Irigaray, in effect, challenges Lacan's own writing of the split subject as a masculine version of desire. Perhaps women desire differently. Who's to know ?

Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law 16 (1991) [hereinafter Cornell, Beyond Accommodation].

Grosz is also extremely compelling in her discussion of Irigaray's attempt to explore the feminine and female imagery without falling into the trap of reinstating Lacan's binary sexual system, which is by definition Phallic. See Grosz, supra note 18, at 170–83. See also Judith Butler, Gender Trouble: Feminism and the Subversion of Gender 9 (1990) [hereinafter Butler, Gender Trouble].

[191] Zizek,^[*] explains the seeming contradiction whereby Lacan insisted both that the sexual positions are arbitrary and that his system of sexuality is universal. What is necessary (universal) in Lacan's system is the fundamental antinomy or noncomplementarity of sexuality where one "sex" is defined as the universal (the symbolic order) and the other as the exception to the order. But this antinomy can be played out in any number of ways. Consequently, in Lacan, the usual situation whereby there is one universal theory which has many particular manifestations is reversed. In Lacan there is one particular idea (sexual antinomy) which has many "universals" (sexual hierarchies) in different societies. Zizek,^[*] TheIndivisible Remainder, supra note 29, at 217. Lacan's Phallic language reflects how the sexual antinomy is universalized in contemporary Western society.

See also Jeanne L. Schroeder, Feminism Historicized: Medieval Misogynist Stereotypes in Contemporary Feminist Jurisprudence 74 Iowa L. Rev. 1135 (1990) [hereinafter Schroeder, Feminism Historicized ]; and Schroeder, Abduction from the Seraglio, supra note 168.

organ and the female body is, like all identification, imaginary. Lacan intentionally uses this misleading term in order to reflect conflations retroactively made by the subject upon taking on sexual identity and subjectivity.

Several feminists such as Grosz, Cornell, and Irigaray have, however, challenged Lacan's claims to a neutral terminology. Is he in fact engaging in a conflation of the psychic and the anatomical even as he denies it?^[192] That is, by using terminology which invokes the anatomical male organ to describe the object of desire, Lacan might be making the error of describing the psyche through phallic (as opposed to Phallic ) metaphor. Lacan's very terminology may not merely reflect but actually predetermine the conclusions of his analysis. Lacan's claims of nonessentialism might degenerate into the essentialization of the Feminine as silence. Sexuality is not biological, but biological men and women usually take up the fantasy positions of psychic men and women: but if all is fantasy, then the fantasy we live is the only reality. Theoretically we might be able to live another fantasy—but not in the current world. Our current fantasy is the only reality we can know. Nevertheless, I believe Lacan's misogynist paradox, whereby sexuality is not inevitable but always already predetermined, precisely describes the structure of society and the impossible task facing feminism. Lacan's terminology is not neutral. But this is because society is not.

[192] Even though Lacan claims the Phallus is not the penis, Elizabeth Grosz writes:

The phallus and penis can only be aligned if there are those who lack it. It is assumed on the basis of division and dichotomy, represented by the lack attributed to women. . . . In spite of Lacan's claims, the phallus is not a "neutral" term functioning equally for both sexes, positioning them both in the symbolic order. As the word suggests, it is a term privileging masculinity, or rather, the penis. The valorization of the penis and the relegation of female sexual organs to the castrated category are effects of a socio-political system that also enables the phallus as the "signifier or signifiers," giving the child access to a (sexual) identity and speaking position within culture.

Grosz, supra note 18, at 122.

Similarly, Cornell states:

Despite this facially gender-neutral account [i.e., of the development of language through the child's relationship with the mother], however, Lacan goes further and appropriates signification in general to the masculine. Although Lacanians maintain the difference between the penis and the phallus—the phallus represents lack for both sexes—

Cornell, Doubly-Prized World, supra note 173, at 661.

But this seeming predestination is the inevitable effect of a retroactive dialectic. Lacan's theory of sexuation posits its necessity only in the sense that, standing here today as adults in this society, this is the process which must have happened . It is not necessary in the sense that, from the standpoint of any empirical infant, this is the process that must happen in all societies in all times. Theoretically the child could undergo different forms of sexuation in different types of societies. In addition, as we shall see, the Lacanian alchemy allows us to transform the impossible into the merely forbidden. As I shall discuss, to the Lacanian and the Hegelian, the existence of prohibition contains within it not merely the possibility but the ethical imperative of its transgression. It is precisely by denying feminine subjectivity that Lacan requires it. Consequently, implicit in the Lacanian-Hegelian notion of necessity is the possibility of reform. But we will never know whether it is really possible until we actualize it.

B—
The Real, the Imaginary, and the Symbolic

According to Lacan, we exist in the three orders of the symbolic, the imaginary, and the real.^[193]

[I]n the relation of the imaginary and the real, and in the constitution of the world such as results from it, everything depends on the position of the subject. And the position of the subject—you should know, I've been repeating it for long enough—is essentially characterized by its place in the symbolic world, in other words in the world of speech.^[194]

In one of Lacan's last seminars, he uses the metaphor of a "Borromean Knot" to describe the relationship between these orders. This "knot" consists of three rings that are not interlinked but are held together through overlapping.^[195] The metaphor points out that although each ring and each realm is distinct and does not interpenetrate any other, the whole of the knot and the psyche depends on the interrelationship between the three;

[193] See generally Grosz, supra note 18.

[194] Jacques Lacan, The Seminar of Jacques Lacan, Book I, Freud's Papers on Technique 80 (J.-A. Miller ed. & J. Forrester trans., 1988) [hereinafter Lacan, Seminar I].

remove one, and the whole system collapses. The metaphor of the interlocking rings is also designed to counteract the tendency to hierarchize the three regimes—placing the symbolic realm above the imaginary, and the imaginary above the real. Another advantage of the metaphor of rings is that it offers an alternative to the common internal-external metaphors for human experience. A point within a ring can be described either as external to the ring or as internal to it. Because the three rings overlap, the metaphor illustrates how (as I shall discuss later) the object cause of desire, which Lacan calls the objet petit a , can exist in more than one order simultaneously.

The symbolic is the order of law and language.^[196] Since the Lacanian subject is the speaking subject, subjectivity is primarily in the symbolic—law, language, symbolization, and signification. In other words, the subject is not only the subject of language, it is also subject to language.^[197] The imaginary, as its name indicates, concerns the order of nonverbal imagery.^[198] It includes simple identification and differentiation of the

[196] Id . at 80. Because Lacan's subject is the subject of language, his psychoanalytic theory is also a linguistic theory consisting in large part of a rewriting of Ferdinand de Saussure. See Lacan, The agency of the letter, supra note 163, at 146.

[197] "For Lacan the subject is constituted through language. . . . The subject is the subject of speech (Lacan's "parle-être"), and subject to that order." Rose, supra note 162, at 31. See also Mitchell, supra note 160, at 1, 5.

[198] The Freudian ego, for example, is imaginary in that it is one's image of oneself. The imaginary is the least worked-out of the Lacanian orders. Like all great thinkers, Lacan refined his theories constantly throughout his life. In his early work, Lacan concentratedon the distinction between the symbolic and the imaginary. In his late work, however, Lacan had changed his concentration to the distinction between the symbolic and the real, with the real taking over some of the function which had originally been ascribed to the imaginary. Compare, for example, Lacan, Seminar I, supra note 194, with Lacan's twentieth seminar, Encore (portions of which have been translated as Jacques Lacan, God and the Jouissance of the Woman, in Lacan, Feminine Sexuality, supra note 160, at 127 [hereinafter Lacan, God and Jouissance ]; and Jacques Lacan, A Love Letter (Une lettre d'âmour ), in Lacan, Feminine Sexuality, supra note 160, at 149 [hereinafter Lacan, Love Letter ]. "With the development of Lacanian teaching in the sixties and seventies, what he calls 'the Real' approaches more and more what he called, in the fifties, the Imaginary." Slavoj Zizek,^[*] The Sublime Object of Ideology 162 (1989) [hereinafter Zizek, Sublime Object]. Consequently, it is not absolutely clear what functions were left to the imaginary in late Lacan. Because my theories are based largely on the late Lacanian theories of feminine sexuality and on the works of Slavoj Zizek, this book reflects this change of emphasis to the real.

type of which animals are capable. Lacan's concept of the real is subtle and paradoxical. The real is our sense of the limit to the symbolic and the imaginary—that which cannot be captured in language or images. It is the world of impossibility, limitations, and necessity.^[199] The real is pure immediacy. It is the uterine unity that collapses all distinctions not only of people but of time and space. It is that which we feel we lose the moment we mediate our experience through imagery or language. To speak of or visualize the real is to lose touch with reality. Yet our sanity literally requires that we treat the real as though it were reality.^[200] We necessarily insist on a piece of the real in our symbolic and imaginary experience.^[201]

For some purposes it is useful, although admittedly simplistic, to say the real stands in for the physical or "object" world preexisting outside of human consciousness and language—that is, nature. Standing for the biological or natural, the real includes the realm of the infant before it

[199] The Real cannot be experienced as such: it is capable of representation or conceptualization only through the reconstructive or inferential work of the imaginary and symbolic orders. Lacan himself refers to the Real as "the lack of a 'lack.'"

Grosz, supra note 18, at 34.

Grosz explains:

The child, in other words, is born into the order of the Real. The Real is the order preceding the ego and the organization of the drives. It is an anatomical, "natural" order (nature in the sense of resistance rather than positive substance), a pure plenitude or fullness. . . . The Real is not however the same as reality; reality is lived as and known through imaginary and symbolic representations.

Id .

[200] Indeed, in Lacanian theory, psychosis consists in large part of a subject's inability to maintain the barrier between the real and reality. See, e.g ., Zizek, Looking Awry, supra note 165, at 20.

[201] Id . at 17, 33.

develops consciousness. Psychoanalytically, it also means all other forms of limitation of which we do not have direct experience, including the gods and death.^[202] It is the hard kernel that "exists when all . . . imaginary and symbolic factors are annihilated."^[203]

Before I give the plot of Lacan's Bildungsroman of sexuality, let me once again emphasize that the story I am about to tell is a retroactive re-creation of the development of the psyche. We will speak as though the infant actually, empirically passes through three orders of consciousness even though these orders are, in fact, mutually constituting. Lacan retroactively imagines the infant passing successively through these orders, but as he passes into the next order he never leaves the previous order.

This reflects the Hegelian dialectic in which each stage in the development of the subject is sublated into the next stage. All difference is not destroyed in sublation. An unsublated trace always remains. The "earlier" orders of psychic development, the real and the imaginary, do not totally disappear into the order of the symbolic to form consciousness.

Indeed, the two seemingly "earlier" orders do not, in fact, preexist the symbolic—the three are mutually constituting. Although we experience the real as that which preexists and binds the symbolic, in fact, the real, the imaginary, and the symbolic are mutually constituting. It is the ordering of the symbolic which walls off an outside called the real which retroactively serves as the impossible limit to the symbolic. The impossibility of a closed system has been familiar at least since Gödel proved that no mathematical system can be complete. Rather its closure always depends on assumptions imposed on the system from the outside.^[204] The real is logically required by the concept of the symbolic by

[202] "The gods belong to the field of the real." Lacan, Four Fundamental Concepts, supra note 1, at 45.

The gods and the dead are real because the only encounter we have with the real is based on the canceling of our perceptual conscious, or our sense of being alive: the real is real whether we experience it or not and regardless of how we experience it. The real is most real when we are not there; and when we are there, the real does not adapt itself or accommodate itself to our being there. The concept of the real implies the annihilation of the subject.

Schneiderman, supra note 18, at 76.

[203] Renata Salacel, Editorial: Lacan and Love , 26 New Formations at v (1994). "The real may be represented by the accident, the noise, the small element of reality, which is evidence that we are not dreaming." Lacan, Four Fundamental Concepts, supra note 1, at 60.

[204] See generally Roger Penrose, Shadows of the Mind: A Search for the Missing Science of Consciousness (1994); Douglas R. Hofstadter, Gödel, Escher, Bach: An Eternal Golden Braid (1979).

the same reasoning.^[205] We retroactively abduct the existence of the real from the traces or stains it seems to have left in the symbolic. As in Hegelian sublation, the creation of the symbolic reveals the necessary precondition of the real and the imaginary. That is, consciousness is a Borromean Knot of the three orders. The knot cannot exist unless there are at least three rings to overlap.

Lacan called the process of entering the symbolic (i.e., becoming a human subject who is capable of speech) "castration." It is the understanding that we only exist as subjects within law and language, yet law and language are external to, and imposed on, our subjectivity. It is reflected in our sense of being separated from a mythical, imaginary sense of unity with the Other (associated, of course, with the uterine union with the Mother). Castration is the loss of the mythical object of desire which is called the "Phallus" —the symbol of subjectivity.^[206] This separation is the creation of law which is always the law of prohibition: Thou shall not merge back into unconscious union with the world. In the imaginary, this union is the utopian mother-child dyad. Consequently, in modern West-

[205] Miller, supra note 20, at xxiv.

[206] The école freudienne, The phallic phase, supra note 164, at 116–17; Jacques Lacan, The direction of the treatment, supra note 14, at 226, 265.

On the one hand, this is different from the naturalistic side of Freud which sometimes seems to argue that sexuality is literally created when the boy sees the female genitals and then for the first time understands and fears the possibility that he could lose his own, or the girl's seeing the male genitals and immediately understanding that she is maimed. On the other hand, it is also different from those object relationists who argue that "castration" is merely the culmination of numerous small natural losses, such as the loss of the breast at weaning.

Castration is not any natural (real) loss as object-relations psychologists have wrongly concluded. It is, rather, the moment our sense of loss acquires sexual signification. That is, the real of castration is an event: the Big Bang of the symbolic. In the words of Mitchell:

There is a fundamental distinction between recognizing that the castration complex may refer back to other separations and technically seeing these separations as castrations. . . . Freud's [i.e., Lacan's interpretation of the non-naturalistic side of Freud] account is retroactive: fearing phallic castration the child may "recollect" previous losses, castration gives them relevance. . . . For Freud, history and the psychoanalytic experience is always a reconstruction, a retrospective account.

Mitchell, supra note 160, at 18–19. In Lacan's words:

The fear of castration is like a thread that perforates all the stages of development. It orientates the relations that are anterior to its actual appearance—weaning, toilet training, etc. It crystallizes each of these moments in a dialectic that has as its centre a bad encounter. If the stages are consistent, it is in accordance with their possible registration in terms of bad encounters.

The central bad encounter is at the level of the sexual.

Lacan, Four Fundamental Concepts, supra note 1, at 64.

ern society this law of prohibition takes the form of the incest taboo.^[207] That is, the command, "Thou shalt not merge with the real" becomes "Thou shalt not identify with the Feminine" and, finally, "Thou shalt not sleep with your mother." Paradoxically, it is law's prohibition and its maiming of subjectivity in castration which create not only the possibility of but also the conditions for human growth, love, and freedom.^[208] "[L]ove is a mirage that fills over the void of the impossibility" of the relationship between the two sexes.^[209]

1—
The Opening Chapters of the Psyche's Bildungsroman

Just as Hegel "started" his analysis of property with an account of the abstract will, so Lacan "started" with the infant. When viewed retroactively, the infant seems to exist wholly in the order of the real. In the real, the infant has no consciousness. Its relation to the world is immediate; it experiences itself as one with the object world, including its "Mother." Most specifically, it has no awareness of the separation of itself and the rest of the world. As Hegel stated, the infant has being-in-itself, mere implicit being.^[210] At this point the infant experiences itself and its Mother as one.

Or more precisely, it has no sense of itself as a self, and no sense of its mother as a person.^[211] It is, therefore, misleading to say that the infant

[207] In Lacanian usage, the "incest taboo" does not refer to the literal prohibition of biological incest but to the law of exclusion:

Thus, the incest taboo is not so much a biological "no" as it is a strong cultural injunction to boys to identify away from the maternal and the feminine, to substitute the name of a lineage to the desire of a mother. . . .

Ragland-Sullivan, supra note 182, at 50–51.

[208] "Law and desire, stemming from the fact that both are born together, joined and necessitated by each other in the law of incest . . . " Lacan, Names-of-the-Father Seminar, supra note 162, at 89.

[209] Salacel, supra note 203, at v.

[210] Hegel, The Lesser Logic, supra note 29, at 181. At least one commentator has previously pointed out the similarity between Lacan's concept of the real and Hegel's concept of "being in itself." John Muller, Negation in "The Purloined Letter": Hegel, Poe, and Lacan, in The Purloined Poe: Lacan, Derrida, and Psychoanalytic Reading 343 (John P. Muller & William J. Richardson eds., 1988).

[211] Which is why I am using the impersonal pronoun "it" to describe the selfhood of the infant in the first two stages.

The child forms a syncretic unity with the mother and cannot distinguish between itself and its environment. It has no awareness of its own corporeal boundaries. It is ubiquitous , with no separation between itself and "objects", for it forms a "primal unity" with its objects. It cannot recognize the absence of the mother (or breast).

Grosz, supra note 18, at 34.

"experiences" union with the Mother because as soon as it starts becoming aware of experience, it begins to be aware of itself as distinct from the Mother. Awareness is not experience but the interpretation of experience. It is entering the mirror stage that will bring it into Lacan's next order of existence, the imaginary.

The imaginary is the order of the image and, therefore, of identity and difference.^[212] It is the order of meaning, of captivation and ensnarement.^[213] Based on mirror images, the imaginary sees difference in terms of simple negation—the sexes are imagined to complement each other perfectly as yin and yang, active and passive, autonomous and connected, individualistic and nurturing, and so on. In this mirror stage, the child starts becoming aware of itself as separate through the mediating function of sexuality.^[214] This is the beginning of the subject/object distinction.^[215] The infant becomes aware of the Mother as Other—as radical alterity.^[216]

Note that the term "Mother" means the person initially recognized by the infant as the other, rather than his female parent. Consequently, it is sometimes written as "(M)other" by English-speaking Lacanians. In a patriarchal family structure, this person is also usually the child's mother in the usual sense, or a person socially recognized as a mother surrogate (i.e., nanny, nurse, guardian, widower, or whatever), hence the choice of terminology. The fact that the other, as second term, is identified with

[212] Rose sees Lacan as assigning unity to the imaginary in his earlier texts, but as identifying the fantasy of sameness within language (i.e., the symbolic) in his later work. I agree that it is not clear precisely what role the imaginary plays in late Lacan.

[213] Jacques Lacan, The Seminar of Jacques Lacan, Book III, The Psychoses 1955–56, at 54 (Jacques-Alain Miller ed. & Russell Grigg trans., 1993) [hereinafter Lacan, Seminar III].

[214] Jacques Lacan, The mirror stage as formative of the function of the I as revealed in psychoanalytic experience [hereinafter Lacan, The mirror stage ], in Lacan, Écrits, supra note 14, at 1, 2.

[215] Grosz explains this as the beginning of the subject/object distinction. Grosz, supra note 18, at 35. Rose observes:

For Lacan the subject is constituted through language—the mirror image represents the moment when the subject is located in an order outside itself to which it will henceforth refer. The subject is the subject of speech (Lacan's "parle-être "), and subject to that order. But if there is division in the image, and instability in the pronoun, there is equally loss, and difficulty in the word. Language can only operate by designating an object in its absence. Lacan takes this further, and states that symbolization turns on the object as absence.

Rose, supra note 160, at 31. According to Jane Gallop: "But Lacan posits that the mirror constructs the self, that the self as organized entity is actually an imitation of the cohesiveness of the mirror image." Jane Gallop, Reading Lacan 38 (1985).

[216] Grosz, supra note 18, at 42. Grosz explains, "It is by identifying with and incorporating the image of the mother that it [the infant] gains an identity as an ego." Id . at 43.

(m)other in our society (and that, as we shall see, the third term will be identified with father) will determine the positions of sexuality.

Lacan's punning and metaphoric terminology is intentional. The infant sees its mirror —thereby enters the image -inary—in the mirror stage .^[217] It recognizes itself by seeing itself reflected in Mother who functions as its mirror. The experience of recognition is primarily one of vision—it sees the Mother, it sees its hand and begins to recognize parts of its body.

This concept of the Feminine as alterity has been misunderstood by so-called different-voice feminist legal scholars, such as Robin West, who are strongly influenced by the works of Carol Gilligan and other object-relations psychologists. On the basis of the assertion that most empirical psychological studies of childhood have concentrated on boys, they conclude that theories that claim to explain the development of personality, generally, are, in fact, accounts of masculine personality, specifically. They presume from this that since mainstream theory asserts that personality (i.e., masculinity) originates in a recognition of difference from the Mother, then feminine personality must originate in a recognition of similarity to the mother. From this they conclude that although men (whose development is characterized by separation) may be the autonomous individuals of liberal philosophy, women (whose development is characterized by connection) are more interrelated, following an ethic of care rather than justice.^[218] This vision of an affirmative Feminine which is the simple negation or mirror image of the Masculine is, as well shall see, not merely imaginary, but a masculine fantasy. Moreover, this particular conclusion is a non sequitur which springs from a fundamental confusion about the level of differentiation on which the theory relies.

The initial differentiation which is the starting point of Lacanian per-

[217] In this stage the child becomes fascinated with actual mirror images. Grosz, supra note 18, at 36–37. This phenomenon is familiar to all of us who have seen infants squealing with delight at their reflected images, pictures in books, and other newly discovered "mirror images."

Lacan points out that the difference in capacity for language between human and ape first becomes apparent in this stage. Human and simian infants experience similar development up to this point. Both become fascinated with mirrors at approximately the same age. Eventually both the child and the chimp realize that the image in the mirror is itself, and not another animal on the other side. The chimp loses most of its interest. The child's fascination increases. Lacan, The mirror stage, supra note 214, at 1.

[218] I use the term "different-voice feminism" because the psychological study which has had the greatest influence on American feminist jurisprudence is Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (1982). This school of feminism is often called "cultural" feminism. See, e.g ., Robin West, Jurisprudence and Gender , 55 U. Chi. L. Rev. 1 (1988).

sonality is the awareness that I and the Mother are not literally the same person—that is, the ability to formulate the third person pronoun (which precedes the development of the first person, let alone the second person). This cognitive step of recognizing the existence of another person as different must take place before the ability to identify, let alone evaluate, similarities to and differences from that other person. The former—mere imaginary identification of identity and nonidentity—is purely dual in nature and must be the same for both the girl and the boy in the mirror stage. That is, in the mirror stage, all children, male and female, both identify with the Mother yet recognize their difference from the Mother.

Indeed, for the different-voice feminist to posit that the girl child initially recognizes her similarity to the Mother and the boy initially recognizes his difference prior to the oedipal stage is to presuppose a natural or biological sexual difference which does not explain the psychoanalytic and social significance of sexuality.^[219] The two-party mother-child dyad is an imaginary relationship. In the imaginary, one can identify "meaning," in the sense that one can identify that X is like or not like Y, but all meanings (i.e., differences and similarities) have the same valorization because there is no external standard of comparison. For example, the blue-eyed little boy would see himself as like his mother in that she has blue eyes and different from her in that she lacks a penis, and the brown-eyed girl may see herself different from her blue-eyed mother despite their similarity in genitalia. But neither specific difference nor similarity could have precedence over the other.

Signification is not imaginary but symbolic. In order for a child to learn to privilege a specific anatomic difference, he must identify a third term to serve as the basis of comparison—what Lacan will call the Father. Consequently, the creation of sexual differentiation cannot take place in the mirror stage but must wait until the oedipal stage.

In other words, although both different-voice feminists and Lacanians agree that femininity is identification with the Mother and masculinity is identification away from the Mother, their respective interpretations of

[219] Most different-voice feminists, including Carol Gilligan, present their theory as a psychological or social construction account of empirically observable gender differences. West is one of the very few who recognize that the theory implicitly requires a presumed natural, biological sexual difference. Unfortunately, her "connectedness thesis" uses bodily metaphor to explain supposedly psychic differences. She argues that women are more socially connected and interrelated than men, because women are physically connected to other human beings through childbearing, nursing, being penetrated during sexual intercourse, and through menstruation (which presumably reflects the ability to bear children). West, supra note 218, at 14.

this phenomenon are wildly disparate. Different-voice feminists believe that children identify with or away from their mother on the basis of their pre-given (i.e., natural) sexuality and that this difference causes gender characteristics. In contradistinction, Lacanians believe that sexuality is itself the decision to identify with or away from the mother. This decision can only be made when the child enters into the symbolic. Accordingly, one's sexuality is not necessarily correlated with one's biology.

Consequently, although the mirror stage is the child's first awareness of self, at this point it can only experience itself as that which it is not.^[220] It is not the "Other"—Lacan's term for radical alterity, which is identified with the role of the Mother, the unconscious, and the symbolic order.

The infant is not yet a subject, and to say the same thing, it does not yet recognize the Mother as another subject. She is just Other. Infant and other are merely negatives, oppositions. It is not an individual, it is not-Mother.^[221] It can now conceive of mother in the third person as "she" (or, perhaps at this stage, "it") but cannot yet think of itself as "I," let alone recognize "you."

The infant during the mirror stage, existing only in the real and the imaginary, resembles the Hegelian abstract personality—pure negativity.^[222] The mirror stage is consequently both a stage of great gain—the experience of self—and incalculable loss and violence. Since the child has no memory of alterity prior to the mirror stage, in the imaginary the in-

[220] Only at this moment [i.e., the mirror stage] does [the child] become capable of distinguishing itself from the "outside" world, and thus of locating itself in the world. Only when the child recognizes or understands the concept of absence does it see that it is not "one" complete in itself, merged with the world as a whole and the (m)other.

Grosz, supra note 18, at 35.

For Lacan the subject is constituted through language—the mirror image represents the moment when the subject is located in an order outside itself to which it will henceforth refer.

Mitchell, supra note 160, at 31.

[221] In the mirror stage the child develops an imaginary body-image.

This is the domain in which the self is dominated by images of the other and seeks its identity in a reflected relation with alterity. Imaginary relations are thus two-person relations, where the self sees itself reflected in the other. This dual, imaginary relation—usually identified with the pre-oedipal mother-child relation—although structurally necessary, is an ultimately stifling and unproductive relation. The dual relationship between mother and child is a dyad trapping both participants within a mutually defining structure. Each strives to have the other, and ultimately, to be the other in a vertiginous spiral from one term or identity to the other.

Grosz, supra note 18, at 46–47.

[222] The mirror stage both affirms and denies the subject's separateness from the other. If we look more directly at the privileged stage for acting out of the drama of the mir-ror stage—that is, at the mother-child relation, in which the mother takes on the position of the specular image and the child that of incipient ego, the mirror stage is an effect of the discord between the gestalt of the mother, a total unified, "completed" image, and the subjective, spatially dislocated, positionless, timeless, perspectiveless, immersing turmoil the child experiences.

Grosz, supra note 18, at 42.

fant retroactively imagines that it had once been one with Mother before the mirror stage (as opposed to having been merely unaware of alterity). Consequently, as we shall see, when the child enters the symbolic, he will identify his subjectivity (castration) as loss or denial of the Feminine.

In other words, the relation between the infant and the object world, like the relationship between the will and the object of property in possession and enjoyment, is ostensibly dual. Because the relationship between the infant and the Mother is not yet mediated by a third term, the infant can only imagine union as absorption and destruction of separate personhood.^[223] This binary system is unstable and looks forward toward, and presupposes, its own overthrow. The self in the imaginary is contradictory in the same way as property before exchange—the infant is now both separate from and dependent on the defining Other. This can only be resolved by the addition of a third term. Or, more accurately (as we are looking backward over our shoulders), the third term is not added but is revealed as being always already there. The very act of recognizing the third term is simultaneously the creation of the imaginary binary mother-child opposition in the mirror stage and the real mother-child union prior to the mirror stage, as necessary preconditions to the tertiary symbolic relationship of adult sexuality.

2—
Longing in the Three Orders

Before discussing the third term, it is helpful to consider the categories of longing which correspond to the orders of the real, the imaginary, and the symbolic: "need," "demand," and "desire," respectively.^[224] In the first stage, the infant experiences the real longing of need.^[225] Needs are particular by definition. If one can be satisfied by a substitute, then one didn't need the missing ob-

[223] Id . at 50–51.

[224] Need, demand, and desire are expressions or effects of the orders of human existence Lacan defines as the Real, the imaginary, and the symbolic. . . . The child's "development" from need to demand and desire is congruous with its movement out of the Real and into the imaginary and symbolic.

Id . at 59.

[225] Id . at 59–60.

ject, one only wanted it. For example, if one is dying of thirst, only drink will do. Need is always full in the sense that it is either fulfilled or not. That is, either you need something or you don't.

We have seen that, in the mirror stage, the realization that the Mother is Other—radical alterity—is the start of the infant's realization of self. As a result, it not only has needs.^[226] It also recognizes that it lacks^[227] —it demands of the (M)other.

Demand takes the form of the statement, "I want . . . " or the command "Give me . . . ". In Lacan's understanding, the demand is always transitive for it is always directed to an other (usually the mother). By being articulated in language, a language always derived and learned from the (m)other, demand is always tied to otherness.^[228]

Demand is not yet conscious language. It is the call to the Other.^[229] Unlike need, demand is not full. The infant can and does demand because it is aware that it wants something, and that there is someone else who has something which it does not have.^[230] "Ask yourselves what the call represents in the field of speech. Well, it's the possibility of refusal."^[231] As a result, unlike need, demand is general. "From this point on, the particularity of his need can only be abolished in demand, a demand which can never be satisfied, since it is always the demand for something else."^[232] That is, even if the Mother gives us everything we ask for, we are never satisfied because we really want her love and our demand is for an irrefutable proof

[226] Id . at 60.

[227] Id . at 35.

[228] Id . at 61.

[229] Lacan, Seminar I, supra note 194, at 84.

[230] Let us, therefore, start with lack, inscribed at the roots of the structure in so far as the subject is constituted in a dependency on the speech of the Other. From this point on, the particularity of his need can only be abolished in demand, a demand which can never be satisfied, since it is always the demand for something else. This is also why the particularity of need has to resurface in the desire which develops on the edge of demand.

The école freudienne, The phallic phase, supra note 164, at 116. The anonymous authorship of this article is a good example of Lacan's insufferable egotism.

François George mocks the Lacanians who swallow the gross injustice that no one has the phallus except Lacan: an injustice manifested, for example, in the outrageous fact that, in the Lacanian journal Scilicet , all articles were published anonymously except Lacan's, which bore his signature.

Gallop, supra note 215, at 42–43.

[231] Lacan, Seminar I, supra note 194, at 87.

[232] The école freudienne, The phallic phase, supra note 164, at 112.

of the love. This, of course, is the inherent anxiety of deductive reasoning. No amount of positive evidence provided by the mother can ever verify the hypothesis that "Mommy loves baby" while every instance in which a demand is not instantly satisfied threatens to falsify it.

The infant desperately wants and demands to reexperience union with the lost Mother. This is a terrible, violent, and frightening demand.^[233] If it and the Mother become one again, then they will no longer be two. One must disappear.^[234] The new infantile self is terrified that it is the infant who will disappear. After all it is the Mother who is all-powerful, who has been the source of fulfillment of its needs, and who is now the object of its demands. But if it is the Mother who disappears, then the infant will no longer have a mirror. If the infant has no mirror in which to see itself, will the infant disappear?^[235] In the binary Mother-child relationship, the infant is like the abstract person in enjoyment—totally dependent on the object as other: a Mother-addict.

When the third term is added, the child enters the symbolic and becomes a subject, who, like a Hegelian subject, desires. Desire is what is left when need is separated from demand. "[T]he particularity of need . . . resurface[s] in the desire which develops on the edge of demand."^[236] Desire is sexual in that it is the creation of the linguistic categories of sexuality, but it is a conflation to identify it with anatomical sexual urge. Lacan is talking about the desperate Hegelian drive for recognition. "[D]esire is intrinsically inter-subjective. Consciousness desires the desire of another to constitute it as self-consciousness. . . . [D]esire is thus a movement, an energy that is always transpersonal, directed to others."^[237] For the subject, desire is the symbolic experiential counterpart of need and demand

[233] Grosz, supra note 18, at 61.

[234] At first, before language, desire exists solely in the single plane of the imaginary relation of the specular stage, projected, alienated in the other. The tension it provokes is then deprived of an outcome. That is to say that it has no other outcome—Hegel teaches us this—than the destruction of the other.

The subject's desire can only be confirmed in this relation through a competition, through an absolute rivalry with the other, in view of the object towards which it is directed. And each time we get close, in a given subject, to this primitive alienation, the most radical aggression arises—the desire for the disappearance of the other in so far as he supports the subject's desire.

Lacan, Seminar I, supra note 194, at 170. See also Grosz, supra note 18, at 62.

[235] Grosz, supra note 18, at 50–51.

[236] The école freudienne, The phallic phase, supra note 164, at 116. Grosz, supra note 18, at 66.

[237] Grosz, supra note 18, at 65.

in the real and imaginary. Like demand, and unlike need, desire is always incomplete.

Desire is a fundamental lack, a hole in being that can satisfied only by one "thing"—another('s) desire. Each self-conscious subject desires the desire of the other as its object. Its desire is to be desired by the other, its counterpart.^[238]

Thus

any satisfaction that might subsequently be attained will always contain this loss within it. Lacan refers to this dimension as "desire". The baby's need can be met, its demand responded to, but its desire only exists because of the initial failure of satisfaction. Desire persists as an effect of a primordial absence and it therefore indicates that, in this area, there is something fundamentally impossible about satisfaction itself. It is this process that, to Lacan, lies behind Freud's statement that "We must reckon with the possibility that something in the nature of the sexual instinct itself is unfavorable to the realization of complete satisfaction."^[239]

Just as the Hegelian abstract person desired recognition from another subject, the child now desires that the Mother desire him. As the Hegelian person sought to possess objects so that he could be recognized by other subjects, the Lacanian seeks to identify and possess whatever object it is that the Mother desires.

C—
Adding the Third Term:
The Oedipal Romance

1—
Enter the Father

It is in his search for the Mother that the child encounters Father. Once again, this is not the actual male parent but a symbolic father.

To Freud [i.e., as reinterpreted by Lacan], if psychoanalysis is phallocentric, it is because the human social order that it perceives refracted through the individual human subject is patro-centric. To date, the father stands in the position of the third term that must break the asocial dyadic unit of mother and child.^[240]

Consequently, Lacan often calls him the Name-of-the-Father.^[241] Nevertheless, empirically the role is usually filled by the male parent in the pa-

[238] Id . at 64.

[239] Mitchell, supra note 160, at 6 (citations omitted).

[240] Id . at 23.

[241] Benevenuto & Kennedy, supra note 18, at 133; see also Translator's Note to Lacan, Four Fundamental Concepts, supra note 1.

Both Freud and Lacan believed the symbolic Father who imposes the law is the dead Father in whose name the child writes the law. The child not only wants to murder the Father as hated rival for access to the M(O)ther, in his mind he has already done so. Out of guilt for this psychic murder, the child denies it by writing and then submitting to the Law of the Father, namely, thou shalt not have access to the Mother and thou shalt not murder the Father. The child pretends the Father wrote the Law of the Father but, in fact, the child wrote the Law of the Father in the Name of the Father. Consequently, in Lacanian theory, the symbolic function of the Father is often called the Name-of-the-Father. See Grosz, supra note 18, at 67–69.

The child's strategy is to say "I cannot have murdered the Father because I am law-abiding and the law says I may not murder the Father," but this strategy is not effective. Indeed, it is the failure of this strategy that makes the law effective through the child's unforgivable guilt for having broken the law.

The child's strategy shows that Lacan's conception of dialectical necessity, like Hegel's, is retroactive. Only by prohibiting the murder of the father and incest with the mother do these unspeakable, impossible acts become speakable and possible. The child "murdered the Father" before the child wrote the Law of the Father. The child broke no law and cannot be guilty. The child creates his own guilt by retroactively writing and applying a law that is always already broken. "We are able to speak only under the aegis of the paternal metaphor—of the dead (murdered) father who returns as his Name." Zizek,^[*] For They Know Not What They Do, supra note 19, at 105. "In a way, Freud was already aware of it when, in Totem and Taboo, he wrote that, following the primordial patricide, the dead father 'returns stronger than when he was alive'. . . ." Id . at 134. It is ironic, but it is only by submitting to the law that we become subjects who could have a relationship with the Mother and Father. We were not even capable of the transgression which we retroactively believe we were guilty of. See Jeanne L. Schroeder & David Gray Carlson, The Subject Is Nothing , 5 Law & Critique 94 (1993) (reviewing Zizek, For They Know Not What They Do, supra note 19).

triarchal family. The sexuated positions are not the result of the actual biography of a specific child located in an empirical family, but the signification given by society to the roles played by family members. That is, even if one's primary caretaker is one's biological male parent, the child will understand that our society considers him to be taking on the role of mothering.^[242] The symbolic Father is the lawgiver, who, as the Mother's lover, must possess the object of desire. With the recognition of the Father, the child recognizes that the world is not divided into the duality of infant-M(O)ther. The Father is the child's rival. The law imposed in the Name-of-the-Father is prohibition—the incest taboo. The child may not

[242] "It seems that the father does not have to be present (i.e., there does not have to be a real father) for the acquisition of this vague name-of-the-father." Benevenuto & Kennedy, supra note 18, at 133.

See Translator's Note to Lacan, Four Fundamental Concepts, supra note 1, at 281–82.

This hypothesis is, interestingly, recognized by certain different-voice feminists who emphasize the activities which they correctly insist on calling "mothering" even when the actual caretaker is the father or even a nanny. See, e.g ., Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies (1995). For a Lacanian critique of Fineman, see M.M. Slaughter, Fantasies: Single Mothers and Welfare Reform , 95 Colum. L. Rev. 2156 (1995).

regain union with the Mother and may not murder the Father (i.e., the child must identify away from the Feminine and toward the Masculine). This separation from the Mother is experienced as the psychoanalytic concept of "castration" or permanent loss of the Phallic Mother. As recompense for the loss of the (M)Other, the child is promised access to other women and entrance into the society of Fathers through exchange.^[243] In order to form the fasces of property and to write the fas of law, the virgo must become virga —bound and carried by men.

Once a third term is introduced, the Mother is no longer merely the child's mirror, its negation. Nor is the Father. This allows the child to start to experience himself as an individual rather than merely not-Mother.^[244] The infant realizes that he is not the Mother's entire life. He has a rival; she desires the Father. The child imagines that he was once whole, in union with the Mother. Now that they are separated, by necessity, they must both be incomplete. The Mother's incompleteness or castration is confirmed when the child observes that his mother desires his father (or other persons filling the Father's role).^[245] He now realizes that Mother is not the all-powerful, self-sufficient, totally Other. If she were, she wouldn't desire.

[243] Lacan, Seminar I, supra note 194, at 262. This promise is never kept because it is impossible to keep. Because the Father does not have the Phallus , he can never keep his promise to exchange it. Consequently, nothing is ever really exchanged, there are no sexual relationships, and the subject is nothing. Schroeder & Carlson, supra note 241, at 100–01.

[244] The imaginary is the order of demand and appropriation: exchange is not possible between two individuals for whom there is no third term. In order for the dyadic structure to give way to the plurality constituting the symbolic order, the narcissistic couple must be submitted to symbolic regulation. Within the confines of the nuclear family, this order is initiated by a third family member—the father. . . .

Grosz, supra note 18, at 68.

The separation of the child from its mother "is the action upon which all subjectivity is based, the moment in which the human individual is born. It is also a necessary condition for the existence of language. . . . This is also the moment in which culture is born." Catherine Clément, The Lives and Legends of Jacques Lacan 87 (A. Goldhammer trans., 1983).

[245] These [i.e., clinical] facts go to show that the relation of the subject to the phallus is set up regardless of the anatomical difference between the sexes, which is what makes its interpretation particularly intractable in the case of the woman and in relationship to her, specifically on the four following counts:

. . . .

(3) as to why, correlatively, the meaning of castration only acquires its full (clinically manifest) weight as regards symptom formation when it is discovered as castration of the mother; . . .

Jacques Lacan, The meaning of the phallus [hereinafter Lacan, The meaning of the phallus ], in Lacan, Feminine Sexuality, supra note 160, at 74, 76.

Grosz, supra note 18, at 68. "Both sexes must accept the mother's castration; each must give her up to develop an exogamous libidinal relation and a symbolic and speaking position independent of her." Id . at 71.

If she desires Father, Father must be greater than she, he must have whatever object she desires. The psychological term for this object of desire is the "Phallus."^[246] The Phallus is one of the Names-of-the-Father;^[247] that is, it is the universal signifier of subjectivity. The incest taboo creates the symbolic by prohibiting the child from reuniting with the Phallic Mother. Law as prohibition is, therefore, the denial of the Feminine.

The irony, of course, is that the child turns to the Father solely out of desire for the Mother. The imaginary trinity of the relationship of wholeness is not Child-Mother-Father but Child-Mother-Phallus .^[248] In the symbolic, the Father is recognized solely in order to hold the Phallus for the other two. But "sexual difference is constructed at a price."^[249] The price the Father demands for holding the Phallus is castration—the permanent loss of the Mother. This has to be the case; if it is the Father who is holding the Phallus /Mother, obviously the child cannot also hold it/her. The turn to the Father is, therefore, a père-version .^[250] Consequently, adult sexuality is, in fact, quadratic. The imaginary trinity is replaced with the symbolic trinity of Child-Mother-Father which is haunted by the ghostly Phallus that resists sublation in the symbolic and is exiled into the real.

In order to learn what the Phallus is, the child wants to learn what the Name-of-the-Father is in order determine what it has that the (M)other

[246] The duality of the relation between mother and child must be broken. . . . In Lacan's account, the phallus stands for that moment of rupture. It refers mother and child to the dimension of the symbolic which is figured by the father's place. The mother is taken to desire the phallus not because she contains it (Klein), but precisely because he does not. The phallus therefore belongs somewhere else. . . . Castration means first of all this—that the child's desire for the mother does not refer to her but beyond her, to an object, the phallus, which status is first imaginary (the object presumed to satisfy her desire) and then symbolic (recognition that desire cannot be satisfied).

Mitchell, supra note 160, at 35.

[247] Another Name-of-the-father, another term for the Phallus, is, as we will see, The Woman (i.e. the feminine). . . . Woman [la Femme ] is "one of the Names-of-the-Father": the figure of Woman, its fascinating presence, simultaneously embodies and conceals a certain fundamental impossibility (that of sexual relationship). Woman and Father are two ways for the subject to "give way as to its desire" by transforming its constitutive deadlock into an external agency of prohibition or into an inaccessible Ideal.

Zizek,^[*] For They Know Not What They Do, supra note 19, at 276 n.51.

[248] Lacan, Seminar III, supra note 213, at 319.

[249] Rose, supra note 162, at 28.

[250] Ragland, supra note 185, at 12–13.

lacks yet desires.^[251] Unfortunately, the Name-of-the-Father, the (M)other, and the Phallus are linguistic concepts which cannot literally be seen. All the child can actually do is look at biological fathers and see how they differ anatomically from biological mothers. In a vain attempt to capture the real Phallus , in the imaginary the subject identifies the (real) Phallus with something that only seems real—that is, a physical object. He conflates the penis with the Phallus .^[252] Being a subject—a person who has the Phallus and is therefore desired as a subject by another—is confused with the empirical status of being a biologically male human being—a person who has a penis who inspires anatomical lust in biologically female human beings like his mother.^[253]

And yet, as we shall see, paradoxically, men do not escape castration. Lacan insisted on the "universality of the process of castration as the unique path of access to desire and sexual normativisation. . . ."^[254] Castration anxiety and penis envy are merely the masculine and feminine response to the universal initiation right of subjectivity.

2—
Castration

As I discuss in more detail later, the Phallus thus becomes the signifier of subjectivity. But the subject did not exist until it recognized the Phallus as signifier. That is, the Phallus is a signifier with-

[251] The signifiers that seem to answer the question "what do I want/what does mother want" give a pseudo- or semi-answer. She wants something that is referred to the father's name. Not his penis, per se , but whatever fulfillment he is supposed to provide for her unconscious desire.

Ragland-Sullivan, supra note 182, at 56.

[252] Sexual difference is based on the significance that this experience of "sighting" comes to have in the symbolic. To have the penis is identified with being potent, able to satisfy the mother's desire. This fantasy identification explains why, for Lacan, the symbolic is never fully separated from the masculine imaginary, in which the masculine subject invests in the illusion that he can regain what he lost, the power to forever call her back.

Cornell, Beyond Accommodation, supra note 190, at 38.

The penis is removed from its merely anatomical and functional role within ("natural") need . . . to the role of object . . . in a circuit of demand addressed to the (m)other. It is then capable of taking on the symbolic role of signifier at the level of desire, an object of unconscious fantasy.

Grosz, supra note 18, at 116.

[253] The price of the subject's access to the world of desire is that the real organ must be marked at the imaginary level with this bar, so that its symbol can take up its place as the signifier of this very point where the signifier is lacking. And when Freud gives the boy's narcissistic attachment to his penis as his motive for renouncing the mother, he is indicating how the imaginary function lends itself to such symbolization.

The école freudienne, The phallic phase, supra note 164, at 117.

[254] Id . at 118.

out a signified. The subject is nothing, a zero, which exists only because it is signified. Signification—that is, the symbolic order of language—brings the fiction of subjectivity into being by the trick of making zero count as one.^[255] Subjectivity is created when the subject claims to have the Phallus as the signifier of subjectivity.

The child retroactively insists that the Name-of-the-Father imposes law as prohibition against the child.^[256] Castration is the "Big Bang" of subjectivity—the originary moment when our primeval unity exploded to create the expanding universe of our split subjectivity. Because we nostalgically long for this lost sense of wholeness which we locate in the real, we want to reverse this process and collapse the three orders of the psyche. We retroactively try to recapture the real by collapsing the symbolic back into it. We do this by conflating symbolic and real concepts, by imaginary identification of physical (i.e., seemingly real) objects with the lost objects of desire. As a result, the law of prohibition (thou shalt not merge with the real but enter the symbolic, thou shalt deny the Feminine and identify with the Masculine) is reimagined as the incest taboo (thou shalt neither sleep with thy mother nor murder thy father, lest thou be castrated). The Mother is the Father's object of desire, the child may not have her. We insist that it is the Father who castrates the child by forever separating him from his Phallus .^[257]

But this is not the case. Like the eunuch priests of the great mother goddess Cybele, we castrate ourselves in a failed attempt to identify with and worship the Feminine. But without the Phallus , we can never join with her. The symbolic (i.e., law as prohibition, language, and sexuality) is necessary for desire to be created and to function. Desire is that which by definition cannot be filled.^[258] The law, which separates the subject from

[255] Zizek,^[*] For They Know Not What They Do, supra note 19, at 50.

[256] "The father regulates the child's demands and its access to the mother by prohibiting (sexual) access to her." Grosz, supra note 18, at 68. "Indeed, the figure of the male qua male might be called the cultural lie which maintains that sexual identity can be personified by making difference itself a position." Ragland-Sullivan, supra note 182, at 50–51.

Lévi-Strauss' symbolic function depends on the law of incest, while Lacan's notion of the Symbolic Order depends on the law of the father.

Benevenuto & Kennedy, supra note 18, at 102.

[257] He construes the father's (or mother's) prohibitions as castration threats, and these eventually lead him to renounce his desire of the mother because of his fear of the organ's loss, i.e. because of the father's authority and power as "possessor" of the phallus.

Grosz, supra note 18, at 68.

[258] Lacan, The meaning of the phallus, supra note 245, at 71, 81–83; Grosz, supra note 18, at 64–67.

its object of desire, makes desire possible. Language itself is the barrier which separates us from the imaginary and the real.^[259] And so we see, just as with Hegel, the moment of the creation of law is the moment of creation of the subject: subjectivity and law are mutually constituted.

3—
Possession, Exchange, and Sexuality

The first element of the masculine position of subjectivity is the same as Hegel's first element of property—possession. The first masculine response to the universal condition of castration is simple denial. The Masculine lies and claims not to be castrated, to still have the Phallus . The "proof" of this is that he has a penis. In the masculine imaginary, therefore, only anatomically male persons are recognized as being full persons. This masculine strategy is obviously untenable. Deep in one's heart, everyone feels one is castrated. Consequently, the Masculine adopts a second fallback position.

The other element of the masculine position is the third Hegelian element of alienation through exchange. From the masculine position, the origin of law and of subjectivity as intersubjectivity is created by an attempted exchange of the object of desire.

[259] Zizek,^[*] explains the development of subjectivity from the mirror to the oedipal stage as follows:

Before the reign of Law, Mother (the "primordial Other") appears as the "phantom of the Omnipotence"; the subject depends totally on its "whim," on its arbitrary (self) will, for the satisfaction of its needs; in these conditions of total dependence on the Other, the subject's desire is reduced to the demand for the Other's love—to the endeavor to comply with the Other's demand and thus gain its love. The subject identifies its desire with the desire of the Other-Mother, assuming a position of complete alienation: it finds itself totally submitted to the Other-without-place, non-subjected to any kind of law, which, according to its momentary whim, can satisfy or not satisfy the subject's demand.

The advent of symbolic Law breaks this closed circle of alienation: the subject experiences how the Other-Mother itself obeys a certain Law (the paternal Word); the omnipotence and self will of the Other are thereby "checked", subordinated to an "absolute condition". . . . [T]he Other is no longer a figure of full omnipotence: what the subject obeys is no longer the Other's will but a Law which regulates its relationship to the Other—the Law imposed by the Other is simultaneously the Law which the Other itself must obey.

The "Other's whim"—the fantasy-image of an omnipotent Other upon the self-will of which our satisfaction depends—is therefore but a way to avoid the lack in the Other: the Other could have procured the object of full satisfaction; the fact that it did not do so depends simply upon its inscrutable self-will.

Zizek, For they Know Not What They Do, supra note 19, at 265–66.

Lacan's insight that prohibition itself creates the possibility of and desire for transgression originated with St. Paul. Lacan, Seminar VII, supra note 17, at 83.

Since the Child imagines that he once had the Phallus (i.e., wholeness, union with the Mother) prior to the mirror stage, he must retroactively explain its loss, but in a way that can deny his loss. He tells himself that the Father threatened to take away the Phallus which the male child conflates with his penis. The Father and son reached an agreement that if the son submitted to castration (the Law-of-the-Father), the Name-of-the-Father will recompense him by allowing him to adopt the Father's name and marry another woman.^[260] The son would then be recognized as a speaking subject, a member of the symbolic community, and thereby regain his wholeness. As in Hegel, the son sees himself and the Father as being mutually constituted as subjects through the exchange of the object of desire.^[261] Each recognizes the other as a subject objectified through objects of desire, yet not dependent on any specific object of desire. Through this symbolic exchange of the Phallic Woman, the community of subjects is created, just as the actual exchange of property constitutes abstract right, the first stage in the eventual development of the community of the state.^[262]

Of course, a typical initial reaction to this theory is that this story seems less satisfactory for girls than for boys.

[260] The renunciation is only temporary; he gives up the mother in exchange for the promise (a "pact" between father and son) of deferred satisfaction with a woman of his own.

Grosz, supra note 18, at 68.

At bottom, the woman is introduced into the symbolic pact of marriage as the object of exchange between—I wouldn't say "men," although it is men who effectively are supports for it—between lineages, fundamentally androcentric lineages. To understand the various elementary structures is to understand how these objects of exchanges, the women, circulate between these lineages. . . . The fact that the woman is thus bound up in an order of exchange in which she is object is really what accounts for the fundamentally conflictual character, I wouldn't say without remedy, of her position—the symbolic order literally subdues her, transcends her.

Lacan, Seminar I, supra note 194, at 262.

[261] "Thus, at the moment when sexual exchange, governed by the law of supply and demand, is initiated, the woman comes to figure as the object of jouissance ." The école freudienne, The phallic phase, supra note 164, at 121.

[262] This pact, in other words, founds patriarchy anew for each generation, guaranteeing the son a position as heir to the father's position in so far as he takes on the father's attributes.

Grosz, supra note 18, at 68.

The parallels between Lacan's concept of the role of the symbolic exchange of Woman in the formation of the subject and language and Lévi-Strauss's structuralist anthropological theory of the role of the exchange of actual women in the origin of culture is obvious and has been frequently noted. See, e.g ., Butler, Gender Trouble, supra note 190, at 36–43; Grosz, supra note 18, at 126.

Of course, for feminists, one of the most significant aspects of these theories is that the community is conceived as a community of men that necessarily excludes women. As Butler says (specifically referring to Lévi-Strauss but in a context which compares his theory of the incest taboo with Freud's):

The relation of reciprocity established between men, however, is the condition of a relation of radical nonreciprocity between men and women and a relation, as it were, of nonrelation between women.

Butler, Gender Trouble, supra note 190, at 41.

For her, the oedipus complex involves no rewards, no authority, no compensation for her abandonment of the mother; rather, it entails her acceptance of her subordination. It involves the "discovery" that what the boy has been threatened with—castration—has already taken place in the girl. He believes that she and the mother are castrated. In her "recognition" of her narcissistic inadequacy, the girl abandons the mother as a love-object, and focuses her libidinal drives on the father now recognized as "properly" phallic. The girl has quickly learned that she does not have the phallus, nor the power it signifies. She comes to accept, not without resistance, her socially designated role as subordinate to the possessor of the phallus, and through her acceptance, she comes to occupy the passive, dependent position expected of women in patriarchy.^[263]

Didn't Lacan admit that there is "something insurmountable, something unacceptable in the fact [that woman is] placed as an object [of exchange] in a symbolic order to which, at the same time, she is subjected just as much as the man"?^[264]

Because of the conflation of gender and sex, the female child, insofar as she takes on the position of "woman," tends to identify with her mother, as the castrated self. She can never fully join the community of castrating Fathers because she, and they, conflate her lack of the penis with the inability to have the Phallus .^[265] She, therefore, can only aspire to be the Phallus ,^[266] to be the object of desire for men. As a woman she is forever barred

[263] Grosz, supra note 18, at 69.

[264] Lacan, Seminar II, supra note 167, at 304–05.

[265] The differences between genitals become expressed in terms of the presence or absence of a single (male) term. The Real, where the vagina, clitoris, or vulva have the same ontological status and functional utility as the penis and testicles, must be displaced and recoded if women's bodies are to be categorized as necessarily incomplete. The narcissistic imaginary order mediates between the Real, in which there is no lack, and the symbolic, where women represent for men a lack men have disavowed.

Grosz, supra note 18, at 117.

[266] The mother . . . is positioned in relation to a signifier, the phallus, which places her in the position of being rather than having (the phallus, the object of the other's desire).

Grosz, supra note 18, at 71.

from the intersubjective regime which creates subjectivity because she is the object of that regime.

As a result, women experience Peniseid (penis envy) not in the literal sense of wanting an actual penis but in the sense of a depressive nostalgic longing for an imaginary lost state of wholeness^[267] —of a subjectivity and community she is denied insofar as she is positioned as a "woman." The desire to have the Phallus is forever thwarted because the symbolic order names the Phallus as that which is possessed and exchanged only between those positioned as "men." Insofar as she is recognized as a "woman," she is a person without a Phallus —she is castrated. Castration is, therefore, denial of an affirmative femininity.

But in fact, the girl's situation only seems less satisfactory than the boy's at first blush. Lacan's description of the woman as object of exchange comes from one of his earliest seminars, and, even then, he recognized that men as well as women were subjected. As his ideas developed, it became clear that the apparent exchange between those who are positioned as "men" cannot be truly satisfactory, because it is not real. It is a lie. Indeed, the Masculine failed strategy for dealing with castration is, in fact, the simultaneous adoption of two mutually inconsistent strategies. First, the Masculine merely denied castration, he claimed that he still does have the Phallus . Second, when he was forced to recognize that he has lost the Phallic Mother, he claimed that he narrowly escaped castration in the sense of the involuntary taking of the Phallus by his retroactive consent in exchange for a promise for a replacement in the future. "For whereas in the earlier texts the emphasis was on the circulation of the phallus in the process of sexual exchange, in these texts it is effectively stated that if it is the phallus that circulates then there is no exchange (or relation)."^[268] Desire can never be satisfied. The son exchanges something he does not have (access to the Phallic Mother, identity with the Feminine) for something that does not exist (the Phallus , access to the Feminine) in order to achieve something with no content (subjectivity).^[269]

[267] See Gallop, supra note 215, at 148; Jacques Lacan, The signification of the phallus [hereinafter Lacan, The signification of the phallus ], in Lacan, Écrits, supra note 14, at 281, 289.

[268] Rose, supra note 162, at 48.

[269] Lacan rejects all usual attempts to account for the prohibition of incest: from utilitarianism to Lévi-Strauss, they all promise something in exchange for this radical renunciation; they all present it as a "reasonable" decision which provides a greater amount of long-term pleasure, a multitude of women, and so on—in [short], they all refer to some Good as its ground, contrary to Lacan for whom the prohibition of incest is unconditional, since it is radically unaccountable. In it, I give something in exchange for nothing —or (and therein consists its fundamental paradox) in so far as the incestuousobject is in itself impossible, I give nothing in exchange for something (the "permitted" non-incestuous object).

Zizek,^[*] For They Know Not What They Do, supra note 19, at 230–31.

Castration is universal. Those who are positioned as men dread the loss of their subjectivity through the loss of its signifier, the Phallus , precisely because it is always already lost—it is exiled into the real. Men are trying to deny the horrible truth. Men experience castration fear not in the literal sense of fearing genital mutilation but in the sense of a morbid dread of confronting the "fact" of their symbolic castration. In other words, men are every bit as castrated as women are, but the masculine strategy is different from the feminine strategy. Men identify with the Name-of-the-Father who bears the Phallus . They try to assert their paternal wholeness by projecting their lack onto Woman as the symbol of lack. They do this by the imaginary identification of the Phallus , which everyone lacks, with the one organ that men have but women lack. In this sense, Woman is the symptom of man.^[270]

Although this formulation makes it sound as if femininity is subordinated to masculinity, one can read it to mean the opposite. Women are in the arguably more successful psychic position in that they are not self-deluded in quite the way that men (always unsuccessfully) try to be. It is not Woman who is a mutilated man, as men claim. Rather, men are failed women—vir is incomplete virgo .^[271]

The real is, therefore, not the threat of castration,^[272] it is the fact of a castration which has always already occurred. There is a hole, a lie, and a

[270] One should not confuse this with a simple misogynist view of the feminine as dependent on, inferior to, or somehow less authentic than the masculine. In Lacan's theory, "symptom" does not have the layperson's meaning. Zizek, explains:

If, however, we conceive the symptom as it was articulated in Lacan's last writings and seminars . . . namely, as a particular signifying formation which confers on the subject its very ontological consistency, enabling it to structure its basic, constitutive relationship toward jouissance, then the entire relationship between the symptom and the subject is reversed: If the symptom is dissolved, the subject loses ground under his feet, he disintegrates. In this sense, "Woman is a symptom of man" means that Man himself exists only through woman qua his symptom: all his ontological consistency hangs on, is suspended from, is "externalized" in his symptom. In other words, man literally ex-sists: his entire being lies "out there," in woman. Woman, on the other hand, does not exist, she insists , which is why she does not come to be only through man. Something in her escapes the relation to Man, the reference to the phallic enjoyment; and, as is well known, Lacan endeavored to capture this excess by the notion of a "non-all" feminine jouissance .

Zizek, Tarrying with the Negative, supra note 70, at 188 (footnote omitted).

[271] Ragland-Sullivan, supra note 182, at 62.

[272] As Butler contends. Butler, Bodies That Matter, supra note 177, at 104–05.

fiction at the heart of subjectivity.^[273] The subject is nothing.^[274] There are no sexual relations, only failed attempts because all human relations must be mediated and mediation is impossible.^[275] This leads to love—the impossible relation of seeing in someone more than she is and in giving back more than one has in order to fill in the hole of subjectivity. Love is seeing the lost kernel of the real in the other.^[276]

As is so often the case, this truth is reflected in classical mythology. The personification of the perfect sexual relationship—marriage—is the god Hymen. The god also personifies the female organ which prevents sexual union and bears his name to this day. As a result, any attempt to actualize Hymen necessarily destroys Hymen. As Lacanian theory insists, the promise of sexual union is only established by its very impossibility.

This perhaps explains the morbid fascination of many traditional societies with the physical virginity of women. Although we seek immediate relations, there is always a ghostly third mediating sexuality. In the imaginary, this third is identified with the seducer whose presence is abducted from the scar of defloration. Men dream that if they can just keep the virgin intact, perhaps union can be achieved.

D—
The Phallus, Castration, and the Imaginary Collapse of the Symbolic into the Real

Let me explain in greater detail how the sexual roles described in the previous section become mapped onto anatomical sexuality. According to Lacan, in the imaginary we conflate the symbolic concept of the Phallus with seemingly real—but actually physical—analogues. Why? Let us stop briefly and reconsider the location of the Phallus . Sex-

[273] Gallop suggests:

If we understand the nostalgia resulting from the discovery of the mother's castration [as a homesickness], then the discovery that the mother does not have the phallus means that the subject can never return to the womb. Somehow the fact that the mother is not phallic means that the mother as mother is lost forever, that the mother as womb, homeland, source, and grounding for the subject is irretrievably past. The subject is hence in a foreign land, alienated.

Gallop, supra note 215, at 148.

[274] Schroeder & Carlson, supra note 241, at 101; Zizek,^[*] For They Know Not What They Do, supra note 19, at 50.

[275] Grosz, supra note 18, at 136; Ragland-Sullivan, supra note 182, at 67.

[276] Consequently,

For Lacan, love is an entanglement, a knot, of imaginary gratifications and symbolic desires. It is always structured with reference to the phallus, which, in a sense, is the

Grosz, supra note 18, at 137.

uality is created by law—the symbolic. The Phallus would, therefore, seem to be a symbolic object. But in the symbolic, we are castrated from the Phallus . Since the Phallus is the signifier of subjectivity, it is that which cannot itself be signified. In other words, we cannot achieve the Phallus in the symbolic—it is defined as that which cannot be captured in language. This means that the Phallus must be in the order of the real. Although sexuality is created in the symbolic, sexual relationship is impossible in the symbolic.

Like differentiation, the achievement of subjectivity is a moment of pain and loss, as well as gain. According to both Hegel and Lacan, in order to be a speaking subject we must experience ourselves as individuated subjects separate from other individuals and the world. All relations are mediated through the symbolic exchange of the object of desire. Subjectivity is intersubjectivity mediated through objectivity. Consequently, when we experience ourselves as speaking beings, we lose our sense of being one with the world which we imagine we must have had as infants. This sense of loss is castration .

And yet we long for immediate relations and union with the Other. In order to achieve this, we want to destroy mediation and reduce the symbolic back to the real. By doing so we engage in the fantasy that if we can acquire the "real" object that we imagine is the cause of our desire, then we will achieve our desire. So we imagine that the real Phallus , created by the symbolic, is actually a real object. This doomed operation is the "masculine metaphor of property" which is the subject of the second chapter of this book. The imaginary, being the realm of mirror images, meaning, and negation, is a fantasy of perfect sexual fit. It is the fantasy that we can find an object which will plug the hole left by castration.

This operation is doomed for two reasons which I shall discuss in greater detail later. First, the real cannot be reduced to reality. The acquisition of any real object can never satisfy our desire. Second, and more important, if one were actually to achieve immediate relationships, one

would necessarily lose subjectivity, freedom, and sanity. Castration—the creation of the real and the loss of the Phallus —is the erection of the wall that binds and delineates the symbolic. If we regained the Phallus and entered the real, both the real and the symbolic would cease to exist by definition. Those who fail to maintain these walls are psychotics. Consequently, in order to preserve our subjectivity, we impose upon ourselves an injunction not to merge with the Other, despite our desire to do so. This is the incest taboo —law as prohibition. We tell ourselves that the law has been imposed upon us by the Father, but in fact we can only impose it on ourselves.

As we have seen, we retroactively identify the symbolic Phallus with something we imagine to be real that one of the anatomical sexes physically has and that the other physically is. Two possible positions that an individual can take with respect to the Phallus are that of having the Phallus and that of being the Phallus .^[277] This is reflected in European languages that divide all predicate forms into having and being.^[278] It is a (psychoanalytically) unexplained historical fact that in masculinist societies, such as our own, the Masculine is the dominant sex and the Feminine the subordinate. We identify the seemingly "superior" position of subjectivity—having and exchanging the Phallus —with the Masculine, and the "inferior" position of objectivity—being and enjoying the Phallus —with the Feminine. The penis (what males have) and the female body (what females are) are identified in the imaginary as the real correlates to the Phallus .^[279] The symbolic—that is, legal and linguistic—concepts of sexuality are imagined as anatomy. Paradoxically, the Phallus is the signifier of both male subjectivity and the Feminine.

It is easy to see how the Phallus in the role of what women are becomes identified with the female body. But the mere fact that we need to erect a part of the male anatomy to stand in for the Phallus in the role of what men have does not in and of itself explain why the penis is chosen as the privileged organ. Why not the beard, or the deep voice? The penis is chosen not because of its impressiveness but because of its fragility. The Phallus is not merely the object of desire, it is the lost object of desire. Its standin, therefore, must be something which suggests the possibility of loss.

[277] Id .

[278] Id .

[279] Id . at 133. This is totally arbitrary; in a different hypothetical society the position of having the Phallus could be identified with some part of women's anatomy; in that case, the Lacan equivalent in this hypothetical society would not use the term "phallus" for this concept.

The penis can play this role not only because of its failure to appear on women but also because of its disappearance on men. The penis stands in for the Phallus because of its unpredictable failure to stand up.

Lacan's theory of castration subtly echoes St. Augustine's theory of sexuality, which has so greatly influenced traditional Christian teaching.^[280] St. Augustine, like Lacan, insisted that human beings are irreparably split. Adam's sin sundered the prelapsarian harmony between man and God, man and woman, and soul and body.^[281] God literally inscribed Adam's Fall into the male body as a constant reminder of Original Sin.^[282] Before the Fall, the penis was a limb subject to the conscious control of the soul like an arm and a leg.^[283] As soon as Adam and Eve ate of the Forbidden Fruit, they "knew that they were naked."^[284] St. Augustine interpreted this as meaning that Adam had the first involuntary erection.^[285] The loss of control of the penis is, therefore, the holy symbol of the debased and split nature of man in the state of sin—in Augustine's words, man's desire "is divided against itself."^[286] Although this can be seen in the embarrassing masculinity of inopportune tumescence, it is even more forcefully shown by the humiliating failure of impotence.^[287] What was once limb is now limp.

Consequently, the penis can stand for the lost Phallus because it is already partly gone. It is what men think of simultaneously as being most themselves yet not themselves. It seems to have a mind of its own. How can men have the Phallus when they do not even control the penis?

The facts that the Phallus is the symbol of the Feminine and that the Phallus is exiled into the real means that the Phallic Mother (i.e., the ideal

[280] I discuss Augustinian theory and show how it is reflected in Catharine MacKinnon's supposedly radical theory of sexuality in Schroeder, The Taming of the Shrew, supra note 184.

[281] Peter Brown, The Body and Society: Men, Women, and Sexual Renunciation in Early Christianity 405, 407, 418 (1988); see also Augustine, The City of God 413–14, 416–17, 457, 471 (Marcus Dods trans., 1950).

[282] Augustine called sexuality the poena reciproca . The human body serves as a "tiny mirror, in which men and women could catch a glimpse of themselves." Brown, supra note 281, at 418.

[283] Augustine, supra note 281, at 470–72.

[284] Genesis 3:7.

[285] Augustine, supra note 281, at 422, 440, 465; Brown, supra note 281, at 416.

[286] Augustine, supra note 281, at 465; Brown, supra note 281, at 417.

[287] [S]ometimes this lust importunes them in spite of themselves, and sometimes fails them when they desire to feel it, so that though lust rages in the mind, it stirs not in the body. Thus strangely enough, this emotion not only fails to obey the legitimate desire to beget offspring, but also refuses to serve lascivious lust. . . .

Augustine, supra note 281, at 465.

of the Feminine) does not exist.^[288] She is beyond the discourse and interpretation of the symbolic realm of language and beyond the imagery of the imaginary. She is at least partly in the real in this technical sense—that which serves as the limit and the impossible. We are speaking subjects, however, who only exist in discourse.

As I have already emphasized, the fact that Lacanian theory helps us understand that our psyches contain delusional aspects does not imply that we can simply choose not to believe our delusions. We experience ourselves as our lies and live our lies. Our lies are our truth. We cannot leave the lies of the symbolic without giving up the language which is created in the symbolic. We cannot reverse repression without becoming babbling infants.

Many feminisms envision woman's freedom as lying just around the corner. Freedoms will readily be won, for example, by our changing language lest language—itself the mask of patriarchy—appropriate woman's voice. . . . But such one-dimensional terms do little to address the larger questions attached to women's and men's issues. In Lacan's clinical work, he came to understand that any dismantling of ego, language, or desire placed the analysand at the risk of death. The "self" may only be imagined, but individuals live from such "necessary fictions."^[289]

That is, repression is not a mental disease. We need language and repression to function and speak.^[290] Repression is not the suppression of desire, it is the creation of desire. Lacan believes he is telling truth about lies, because lies are the only truth we are capable of.^[291]

Moreover, as we have seen, the community of subjects is constituted

[288] As I shall discuss shortly, this does not suggest that anatomical female human beings are less real than males, but that the Feminine per se is beyond the grasp of the symbolic order of language and consciousness. It defines the Feminine as beyond discourse. Jacques Lacan, God and Jouissance, supra note 198, at 144; see also Rose, supra note 162, at 50.

[289] Ragland-Sullivan, supra note 182, at 54.

[290] Consequently, although Lacanians encourage analysands to engage in the free-association of metonymy in sessions as a means of accessing the unconscious, derepression in daily life cannot be a goal.

The patient must say "whatever comes into his mind." This violates the most basic conventions of any culture. Just think what any group of human beings would be like if everyone went around free-associating out loud. All civility would go by the boards.

Clément, supra note 244, at 62.

[291] If the penis is identified with the phallus, not only on the level of fantasy, but also as reinforced by a cultural system of patriarchal pregiven conventions, then Woman, who lacks the penis, is "seen" as lacking the affirmative qualities associated with the phallus.But from within her own feminine "identification" she is also the one who cannot bring the desired other back. As a result, women suffer a severe sense of inadequacy—not, now, because they do not have a penis, but because they cannot make up for their primary narcissistic wound.

Drucilla Cornell, The Philosophy of the Limit 173 (1992) [hereinafter Cornell, Philosophy of the Limit].

through the symbolic exchange of the Phallus between Father and son. Unfortunately for those of us who are positioned as women, the Phallic object of desire, which is identified with the Feminine, is conflated not only with the phallic male organ but with actual women. For this linguistic system to work, those who position themselves as men (who tend to be those who are also biologically male) must objectify women. The feminist cliché that men treat women as sex objects takes on new meaning in Lacan. The theory gives essential significance to empirically familiar phenomena. Many men identify themselves with, and through, social groups which are characterized primarily through their exclusion of women—fraternities, private "business clubs," the priesthood, and until very recently the military, academia, and government. We continue to try to lead our lives this way even though it doesn't and can't work. In order to experience themselves as subjects, men need to seek to experience women as objects. To deny castration, men project their own lack onto the Feminine. Man requires Woman as his symptom. Feminine aggressiveness is destructive of masculinity because it gives the lie to the femininity of lack. If man recognizes feminine positivity, then he also confronts his own negativity and castration which his sexual position requires him to deny.

Lacan particularly notes that the institution of patriarchal marriage requires the exchange of women as objects. Giving women property rights, therefore, threatens the very structure of our society. This is because Lacan, as a good Hegelian, agrees that allowing a woman to own and exchange property with subjects must lead to the recognition of her as a subject. If she becomes a subject, she can no longer serve her function as object.^[292] And so a Lacanian feminist would agree with the rhetoric of the American religious right—feminine emancipation is a threat to traditional family values.

I have argued elsewhere that both American cultural and radical feminist jurisprudes are implicitly and imminently conservative in that they

[292] In other words, it is when the woman begins to emancipate herself, when she has the right to property as such, when she becomes an individual in society, that the significance of marriage begins to be abraded.

Lacan, Seminar II, supra note 167, at 263.

accept and reinstate, rather than effectively critique, the masculinist status quo. This is because they accept the traditional American stereotype of masculinity and femininity, although they disagree as to what women's response to these stereotypes should be (i.e., different-voice feminists celebrate the feminine stereotype, while radical feminists denigrate it and encourage women to adopt behavior more similar to the masculine stereotype).^[293] That is, both schools accept the characterization (associated with Carol Gilligan)^[294] that men tend to be more separate, individualistic, concerned with right and justice. This liberal ideal is treated as an empirically accurate description of men. Women, who in this view are the negative of men, are declared to be (either essentially or as a result of social conditioning) more relational and communitarian, concerned with needs and care.^[295] This, of course, is the imaginary view of sexuality in which the sexes are mirror images and, therefore, perfect complements. Different-voice feminism's insistence that girls never separate from their mothers in the way that boys do, that women are fundamentally and essentially connected to other human beings and its simplistic view of spontaneous, immediate relationship of self and other,^[296] reflects the masculine strategy of denying castration and imagining that one still has union with the

[293] See Schroeder, Feminism Historicized, supra note 191; and Schroeder, Abduction from the Seraglio, supra note 168.

[294] See, e.g ., Gilligan, supra note 218.

[295] See, e.g ., West, supra note 218. Cornell has criticized cultural feminists such as West as confusing sociology (how people act in social groups) and psychology. Cornell, Beyond Accommodation, supra note 190, at 50–51.

Grosz criticizes Nancy Chodorow's work on mothering, a mainstay of different-voice feminist jurisprudential thought, as using psychoanalysis to provide a sociological explanation. That is, she concentrates on "behavioral patterns, tendencies, and regularities of social life." Grosz, supra note 18, at 21. Chodorow does not, in Grosz's view, question the distinctions between masculine and feminine, the psyche and reality, consciousness and unconsciousness. Consequently, Chodorow "leaves the structures of patriarchal, and particularly phallocentric, oppression intact and unexplained," id . at 22, and is imminently conservative. Lacan also suggests that Chodorow is also implicitly, if unintentionally, misogynist. She adopts the traditional approach of blaming women for our problems. Chodorow says, in effect, that if someone has a mental illness, the mother should be blamed for not living up to Chodorow's ideal of being a good mother. I have made similar arguments about the implicit and inherent conservatism of cultural feminisms elsewhere. See Schroeder, Feminism Historicized, supra note 191; and Schroeder, Abduction from the Seraglio, supra note 168.

[296] This view of different-voice feminism is most starkly expressed by Robin West in Jurisprudence and Gender, supra note 218. For example, West asserts,

More generally, women do not struggle toward connection with others, against what turn out to be unsurmountable obstacles. Intimacy is not something which women fight

West goes further than most other different-voice feminists such as Gilligan in that West tries to make the uncastrated nature of the feminine "real" by positing that women's connection to others is not merely psychological but physical. "[W]omen are actually or potentially materially connected to other human life. Men aren't." Id . at 14.

Feminine. The true Feminine, in contradistinction, is the acceptance of castration and the resulting need for mediation in relationship. Consequently, different-voice feminism, like all attempts to give positive content to the radical negativity of the Feminine, is merely another masculine fantasy.

As we shall see in chapter 2, where I explore masculine phallic metaphors for property, the simple, immediate, one-to-one relationship privileged by cultural feminism as being characteristically feminine reflects the psychoanalytically masculine strategy of denying castration. In contradistinction, the feminine position is the acceptance of castration as the impossibility of binary relationship and the insistence on the necessity of mediation.

Many read Lacan as saying that women should take on the traditional masculine fantasy roles—such as the mother-whore dichotomy—so that masculinity can be maintained.^[297] The man known as Jacques Lacan may or may not have actually drawn the misogynist normative conclusion that women should submit to masculine fantasies of femininity in order to support the norm of masculine subjectivity. Nevertheless, his theories, intentionally or not, actually subvert the gender hierarchy.^[298] It is the Masculine which is the key to community. The masculine subject is not individualistic, because the subject is an intersubjective linguistic concept totally dependent on the exchange of Phalluses with other men.

E—
"Woman Does Not Exist"

The assertion that "Woman does not exist" is perhaps the most notorious and most misunderstood catchphrase associated with Lacan.^[299] We can now explore what this means in greater detail.

[297] See, e.g ., Teresa Brennan, History After Lacan 9–10 (1993); Somer Brodribb, Nothing Mat(t)ers: A Feminist Critique of Postmodernism 3, 97 (1992).

[298] "The Lacanian account turns [the cultural feminist] story on its head." Cornell, Doubly-Prized World, supra note 173, at 664.

[299] Clément points out that this quotation is frequently used by the ill-informed as evidence of Lacan's "deep-seated misogyny." "He doesn't like women. He said they don'texist." This interpretation is "nonsense of monumental proportions." Clément, supra note 244, at 51.

During the mirror stage, the infant experienced the tragedy of separation from the Mother/(m)other and demanded that she come back. Now he sees himself as a separate subject and desires the Mother. The Mother is the object of his desire. Mother is his Phallus .^[300]

The problem, of course, is that the subject can never again reunite with the Mother because of the incest taboo. Or, more accurately, it is castration from the Phallus pursuant to the law as prohibition which creates subjectivity. If the subject regained the Phallus , it would cease to be a subject. He can never again have the Phallic Mother. The Phallic Mother as the Feminine represents the dream of an unmediated relationship with the other. This utopian relationship exists in the real.

If we understand the nostalgia resulting from the discovery of the mother's castration in this way, then the discovery that the mother does not have the phallus means that the subject can never return to the womb. Somehow the fact that the mother is not phallic means that the mother as mother is lost forever, that the mother as womb, homeland, source, and grounding for the subject is irretrievably past. The subject is hence in a foreign land, alienated.^[301]

"Woman, as a result, is identified by her lack of the phallus. She is difference from the phallus"^[302] even as she also "is" the Phallus —but the Phallus which is always desired and never obtained. The Feminine is therefore projected as "lack."^[303] She does not exist as "not-all" in the sense of "not all subjects are phallic."^[304]

Consequently, the quotation about Woman ascribed to Lacan can be misleading. Indeed, it is a misquotation. The more accurate translation is "The Woman does not exist":

[300] "The man has the illusion of having the phallus, in the sense of the potency to keep her. The woman 'is' for him as the phallus, as his projected desire." Cornell, Beyond Accommodation, supra note 190, at 38.

[301] Gallop, supra note 215, at 148.

[302] Cornell, Beyond Accommodation, supra note 190, at 38.

[303] Once projected into language, however, the primary identification with the mother is projected only as lack. The phallic Mother and what she represents cannot be expressed in language. . . . Thus, Kristeva insists that the Feminine, when "identified" as the phallic Mother, embodies the dream of an undistorted relation to the Other which lies at the foundation of social life, but which cannot be adequately represented.

Cornell, Doubly-Prized World, supra note 173, at 660–61.

[304] Grosz, supra note 18, at 138.

[T]he woman can only be written with The crossed through. There is no such thing as The woman, where the definite article stands for the universal. There is no such thing as The woman since of her essence—having already risked the term, why think twice about it?—of her essence, is not all.^[305]

As negative to the man, woman becomes a total object of fantasy (or an object of total fantasy) elevated into the place of the Other and made to stand for its truth. Since the place of the Other is also the place of God, this is the ultimate form of mystification.^[306]

As we shall explore, this insistence that the Feminine has no positive content increases, rather than destroys, her presence. She is the potential moment of negativity as radical freedom which is the heart of subjectivity.

F—
The Woman, Property, and Jouissance

The Phallic Mother, like property, constitutes the subject through signification. My analogy is still, however, incomplete. I have shown that our masculine subject lies to himself in saying that he possesses the Phallic Mother. He seeks self-recognition through the fiction that he engages in the alienation and exchange of the Phallic Mother with other male subjects through submission to the incest taboo and initiation into the symbolic. But, Hegel argued, there are three necessary elements of a full property necessary for the formation of a subject. It is not enough to possess and alienate the desired object of property. One must also have the ability to enjoy the object. Our split masculine subject cannot achieve his desire and enjoy the Feminine. If he did so, he would no longer be the masculine subject. We have seen that, by definition, language is the bar to enjoyment which makes desire possible.^[307] But that does not mean that enjoyment cannot occur. Not everyone is always positioned as masculine speaking subjects totally trapped in the symbolic. Consequently, we must now approach subjectivity from the feminine position of being and enjoying the Phallus .

It is fairly simple to see how the Lacanian idea of having and exchanging

[305] Lacan, God and Jouissance, supra note 198, at 144.

[306] Rose, supra note 162, at 50.

[307] Law is the agency of prohibition which regulates the distribution of enjoyment on the basis of a common, shared renunciation (the "symbolic castration"), whereas superego marks a point at which permitted enjoyment, freedom-to-enjoy, is revered into obligation to enjoy—which, one must add, is the most effective way to block access to enjoyment.

Zizek,^[*] For They Know Not What They Do, supra note 19, at 237.

the Phallus (which is conflated with having a penis) recalls the elements of possession and alienation of property. Lacan's concept of feminine jouissance is more complex. But it captures Hegel's critique of the solipsistic, addicted side of enjoyment which requires the additional element of alienation or castration.

The French word "jouissance ," which can be literally translated as "enjoyment," includes both the legal concept of quiet enjoyment of property and sexual orgasm.^[308] In jouissance the subject takes on the feminine position of being the object of desire and submerges into the real. Being and enjoying the Phallus become one and the same. This is like the Hegelian subject who becomes so identified with the object of enjoyment that she cannot reach out to others. Nevertheless, even as Hegel showed that enjoyment standing alone is inadequate, he insisted that it is indispensable to the logic of subjectivity.

The order of the real is that which is beyond, and therefore limits, the symbolic realm of language and law. Consequently, by submerging with the real, the subject loses her subjectivity in the sense of losing her place in the symbolic. She cannot speak to others and achieve the intersubjective recognition which is the condition of subjectivity while standing in the feminine position of jouissance . This is because the moment she tries to describe her experience of jouissance , she is no longer in an unmediated relationship with the real. To speak is to interpret experience in the symbolic. To picture it is to interpret it in the imaginary. In order to attain subjectivity, therefore, she must reject her enjoyment and submit herself to the symbolic.^[309] This is why the speaking subject is not merely the subject of the symbolic, he is always also subject to the symbolic.

[308] There is no precise English cognate for the French word "jouissance " used by Lacan. Literally, it refers to enjoyment or joyfulness generally. It includes the legal right of "enjoyment" of property, but is also a slang term for sexual orgasm specifically. Benevenuto & Kennedy, supra note 18, at 179. Lacan's term is not perfectly translatable because it is defined as that which is beyond the masculine, symbolic order of language.

If, as Lacan taught, unconscious drives do not always wish one's good, feminist theories that have equated jouissance with pleasure and the erotic pleasure of sexual freedom to gender liberation, have missed the meaning of Lacan's rethinking of the links between repetition, the death beyond the pleasure principle, and jouissance .

Ragland-Sullivan, supra note 182, at 70.

Jouissance is not the same as what Lacan calls "pleasure" (plaisir ). Pleasure, for Lacan, is bound to desire as a defence against jouissance, and is a prohibition against going beyond a certain limit of jouissance. Jouissance, like death, represents something whose limits cannot be overcome .

Benevenuto & Kennedy, supra note 18, at 179.

[309] Grosz, supra note 18, at 139.

This parallels Hegel's argument that to obtain subjectivity the person cannot lose herself in enjoyment but must become indifferent to the objects of desire and turn to others. This causes a paradox. If one abandons the object of desire in order to escape the trap of enjoyment, one loses the recognizability which is the purpose of property. Castration creates the potential for desire while simultaneously making desire impossible to satisfy.

But this in turn makes jouissance , like Hegelian enjoyment, necessary to subjectivity, even though it is inadequate. Subjectivity is only created by the incest taboo which walls off the real from the symbolic. But one cannot forbid what is impossible. Jouissance —the momentary achievement of the Feminine as merger with the real—is the transgression of the incest taboo which proves that what was once impossible is now merely forbidden.

Because the symbolic is linguistic, women, in a curious way, can never "speak" in a feminine voice. Anatomically female persons must always in a way take on the masculine position in order to speak.^[310] That is, language is Phallic in that the Phallus is the universal signifier of the speaking subject. In order to be heard, one must take the position of the one who has the Phallus . To have the Phallus is to be symbolically masculine. People who are positioned as women must somehow take on the position of, or mime, the Masculine to act as a speaking subject. The Feminine is silenced because she is the object of the symbolic exchange between subjects. To form the fas/fasces the virgo/virga is not merely bound, she is gagged. The Feminine is defined as that which is not Phallic . The Feminine is that which cannot be captured in language (enjoyed in the symbolic order of consciousness). In the words of Drucilla Cornell:

Although both genders are cut off from the repressed Mother, and, theoretically, have access to the position of the other, only men, to the degree they become traditional, heterosexual men, are fundamentally "connected" to one another in the order of the symbolic. Without this connection, there would be no ground for masculine identity.^[311]

[310] In one sense, in so far as [the girl] speaks and says "I", she too must take up a place as a subject of the symbolic; yet, in another, in so far as she is positioned as castrated, passive, an object of desire for men rather than a subject who desires, her position within the symbolic must be marginal or tenuous; when she speaks as an "I" it is never clear that she speaks (of or as) herself. She speaks in a mode of masquerade, in imitation of the masculine, phallic subject. Her "I", then, ambiguously signifies her position as a (pale reflection of the) masculine subject; or it refers to a "you" the (linguistic) counterpart of the masculine "I".

Grosz, supra note 18, at 71–72.

[311] Cornell, Doubly-Prized World, supra note 173, at 664. This passage, slightly edited, also appears in Cornell, Beyond Accommodation, supra note 190, at 52.

Women, insofar as they are identified with the Feminine, are isolated from community.^[312] It is only by taking on the masculine role of subjectivity that they have access to community. In Cornell's words, "to enter into the masculine world, women must take up the masculine position."^[313]

But slippage always occurs.^[314] The gag temporarily falls from the virgin's mouth. In this slippage we glimpse the real. Access to the real cannot come directly through words but through that which is beyond words, what Lacan calls the jouissance or enjoyment of and by the Feminine. But we only glimpse her; the Feminine remains "Eurydice twice lost."^[315]

Consequently, Lacan posits that woman experiences an enjoyment which is beyond the Phallic . Those who are positioned as men, of course, also experience enjoyment in the sense of the nonverbal access to the unconscious, but the enjoyment of women is posited as something different, something more.^[316]

There is woman only as excluded by the nature of things which is the nature of words, and it has to be said that if there is one thing they themselves are complaining about enough at the moment, it is well and truly that—only they don't know what they are saying, which is all the difference between them and me.

It none the less remains that if she is excluded by the nature of things, it is precisely that in being not all, she has, in relation to what the phallic function designates of jouissance , a supplementary jouissance .^[317]

In other words, jouissance as access to the real is that which is beyond speech, and therefore not symbolic and not Phallic . It is consequently associated with women. Men, who define their sexuality as not women, need

[312] Cornell, Doubly-Prized World, supra note 173, at 664; Cornell, Beyond Accommodation, supra note 190, at 53–54.

[313] Cornell, Philosophy of the Limit, supra note 291, at 175.

[314] "[T]he sliding of the signified under the signifier, which is always active in discourse (its action, let us note, is unconscious), is the function of the dream." Lacan, The agency of the letter, supra note 163, at 160. And yet "the efficacy of the unconscious does not cease in the waking state." Id . at 163.

[315] Lacan, Four Fundamental Concepts, supra note 1, at 25. Lacan's metaphor also beautifully captures the retroactive nature of Hegelian and Lacanian dialectics. Hegel and Lacan, like Orpheus, are glancing backward. But according to Lacan, the Feminine, like Eurydice, escapes our understanding. The second she is glimpsed, we enter the symbolic and she is lost.

[316] "[M]asculine jouissance differs from feminine jouissance , except perhaps, in the case of male mystics. . . ." Ragland-Sullivan, supra note 182, at 63.

[317] Lacan, God and Jouissance, supra note 198, at 144.

The woman belongs on the side of the Other in this second sense, for in so far as jouissance is defined as phallic so she might be said to be somewhere else. The woman is implicated, of necessity, in phallic sexuality, but at the same time it is "elsewhere" that she

Rose, supra note 162, at 51 (citations omitted).

[318] In relation to the man, woman comes to stand for both difference and loss: "On the one hand, the woman becomes, or is produced, precisely as what he is not, that is sexual difference, and on the other, as what he has to renounce that is, jouissance ". . . .

Id . at 49.

to reject enjoyment .^[318] Being non-Phallic , the experience of enjoyment is by definition beyond discourse. Even to think it, let alone speak it, is to enter the Phallic world of the symbolic and lose jouissance .^[319] But without enjoyment of the Feminine, how can we be complete?

Is this theory misogynist?^[320] On the one hand, Lacan might argue that it "accords women the possibility of refusing a pleasure and desire that is not theirs."^[321] On the other hand, he not does permit them to claim "one that is there."^[322] This leads Elizabeth Grosz to ask:

If phallic jouissance is "the jouissance of the idiot," what is a jouissance beyond the phallus? Women can't know and won't say. It is not clear from Lacan's discussion whether it is because this jouissance is in itself unknowable; or simply that women can't know it.^[323]

Should we see jouissance as an empowering, ecstatic possibility through

[319] Grosz, supra note 18, at 139.

[320] Julia Kristeva, at least in her earlier writings, seemed to suggest that woman, through jouissance and the experience of actual pregnancy and mothering, might be able to have access to the Phallic Mother. See, e.g ., Kristeva, supra note 169, at 204; Drucilla Cornell & Adam Thurschwell, Feminism, Negativity, Intersubjectivity , 5 Praxis Int'l 484, 488 (1986). Kristeva apparently abandoned this concept in her later writings. See Cornell, Beyond Accommodation, supra note 190, at 7, 41–50. See also Grosz's critique of Kristeva as Lacan's "dutiful daughter." Grosz, supra note 18, at 150–73. Cornell has posited the feminine as a messianic ideal of the "not yet," as opposed to the Lacanian concept of the castrated never again. Cornell, Doubly—Prized World, supra note 173.

[321] Grosz, supra note 18, at 139. Cornell sometimes comes close to taking this position. "Her jouissance overflows any attempt to confine her or to designate her desire." Cornell, Beyond Accommodation, supra note 190, at 17.

[322] Grosz, supra note 18, at 139.

[323] Id .

which women can glimpse the psychological goal of union with the Feminine, or a rationalization for the traditional infantile, idiotic, and silent role of women?

It is both. Lacanianism is a misogynist theory only in the sense that it is an account of misogyny. As such, it opens up the possibility of moving beyond misogyny. The Feminine is the silent Phallic Mother who is always already lost in castration. But she is also the freedom of not being bound by the law of castration which has not yet been achieved.

IV—
An Abduction from the Seraglio

A—
Abduction and Jouissance

I have referred to the phallic metaphor of property as an "abduction" in the sense of the logic of imagination^[324] as developed by pragmaticist philosopher Charles Sanders Peirce. He considered abduction to be a form of logic equal to induction and deduction. It is an absolutely essential element of science and philosophy because it is the only form of logic capable of generating new ideas.^[325]

The process of abduction is as follows: I observe a surprising thing. I do not like to stay surprised. Consequently, I try to make up a story which, if it were true, would make the surprising thing no longer surprising but a matter of course.^[326]

An abduction is not proof.^[327] Its causality is retroactive. It is only the way

[324] Schroeder, Abduction from the Seraglio, supra note 168. The term has other more common sexual and violent meanings. Other terms for abduction in the sense of the logic of imagination are "retroduction" and "hypothesis."

[325] Id . at 180.

[326] Id . at 179–81. To give a silly example, if I were to see a magician make his assistant float through the air, I might initially be surprised because in my experience women aren't so buoyant. Consequently, I start spinning explanatory stories: for example, it's all done with mirrors. This story, if it were true, would make the surprising thing no longer surprising because I believe from my previous experience that it is ordinary course that one can use mirrors to make things appear to be where they are not (e.g., in midair). This abduction might become my working hypothesis which I deem worthy of further exploration. If I had the opportunity to go up on stage, I could test my abduction inductively by trying to touch the airborne assistant in order to determine if she were physically located where she appeared to be. If I could touch the assistant, I would abandon the hypothesis that I was looking at a mirror image and try to abduct a new hypothesis to test.

[327] There are differences of opinion on this, of course. One way one can avoid testing one's abductions is by developing a meta-abductive theory which explains why one's abductions are true. For example, if one theorized that our thought process is governed by a God seeking to reveal Himself to us, one might also theorize that God reveals Himselfthrough our instinctive thoughts—our abductions about God. We would then believe that our abductions are always (or usually, leaving room for demonic interference) true and in no need of further confirmation. Leibniz's theory whereby our mind, as God's creation, has a natural ability to understand the world, as God's creation, is, perhaps, a more palatable semireligious meta-abductive theory.

But not all meta-abductive theories are religious. It can be argued that Peirce himself occasionally fell back onto a meta-abductive theory of the similarity between the structures of our mind and scientific truth about the object world to explain why our (collectively, if not individually) abductions can be expected to be correct a statistically significant percentage of the time. Id . at 183–85.

we generate hypotheses. If I decide an abduction is worthy of serious consideration, I will tentatively accept it as my working hypothesis as to the state of the world, to be tested through other means such as the familiar logical processes of induction and deduction accepted by traditional American science, or by the circular and retroactive dynamic of the dialectic, accepted by Hegelians and Lacanians. Generally, we consider an abduction to be worthy of further testing when it seems "natural" and "reasonable" to us, in the colloquial sense of those words.^[328] That is, through abduction we try to take the surprise out of surprising things. We, therefore, try to abduct explanations consistent with the ordinary course of our life experiences.

As I shall explain in chapter 2, the traditional abduction of property law reflects the experience of the Masculine. In chapter 3, I shall show how Margaret Radin has tried to abduct an alternate property law which reflects the experience of the Feminine. Both traditional jurisprudence and Radin's theories are replete with phallic metaphors. The former adopts the phallic metaphor of property as the male organ, and the latter, the phallic metaphor of property as the female body. The former emphasizes possession and exchange, and the latter, enjoyment.

The point of my analysis is not to suggest that phallic metaphors are psychoanalytically inevitable in all cultures and under all circumstances. The goal of psychoanalysis is not the recognition of inexorable fate but the furthering of human freedom through the increase of knowledge. Nor am I arguing in the alternative that the phallic metaphors are delusional instruments of oppression. Indeed, Lacan's linguistic theory holds that

[328] To return to my example, I would probably reject the following initial abductions because they do not sound "natural" or "plausible" to me, given my past experiences (in fact, they sound downright ridiculous, more surprising than the surprising thing they are supposed to be explaining): "the magician has magic powers," "the assistant is an angel," or even "I am locked in an insane asylum and am experiencing hallucinations." I would only start seriously considering such explanations of the surprising thing after testing and eliminating all other hypotheses which initially sounded more reasonable.

metaphors and metonymy are always necessary elements of all language and, therefore, law.

I am merely suggesting reasons why these particular metaphors for property—the male organ and the female body—might seem so "natural" and reassuring. Lacan explains how we tend to conflate the psychological concept of the Phallus/the Feminine (the object of desire) with the physical organ of the penis and the female body, to equate the Phallic with the phallic. In parallel, we might have a psychological tendency to conflate the parallel legal Phallic concept of property (as the object of desire) with the phallic metaphors of holding and seeing or entering, enjoying and protecting. The psychological conflation can serve positive functions, such as the development of gender identity and the creation of language. But it can also cause tragedy in the form of mental illness, the oppression and rage of women, and the despair of men. Similarly, I am suggesting that the parallel jurisprudential conflation might also serve positive functions, as well as risk not merely confusing, but unjust, legal results. This does not necessarily mean that we should abandon such metaphors, but does mean that we should be aware that we use them, so that we can consider whether it is the best alternative.

Lacan offers one explanation for the use of masculinist phallic metaphors in the law. Another explanation might initially seem simpler. Until very recently, all lawyers were men. In this simplistic view, the empirical fact that some of us are now biological women should add a feminine "different" voice to the law.

The power of Lacanian theory to me lies in its insight that things are not so simple. It suggests that insofar as I am writing this and communicating with you, I am also speaking in the masculine voice. Even different-voice feminists speak in a masculine rather than a "different" voice. They adopt a stereotype of femininity which is merely the negative of the archetype of masculinity. It essentializes what they believe is the empirical experience of women who are psychically positioned as the defining other of man. Consequently, the purported "Feminine" of the different-voice feminist is in fact a mirror image reflecting back the Masculine. Different-voice feminism's account of sexuality is, therefore, imaginary in the technical Lacanian sense. Its image of femininity is the masculine fantasy that woman has an affirmative content that can fill the hole carved in man by castration, enabling the sexes to achieve immediate relation.

Does this mean that legal abductions can only replicate the Masculine? I have stated that Lacanian psychoanalysis does not explain the in-

evitability of patriarchy or the use of phallic metaphors to describe Phallic concepts such as property. However, in our society it is mandatory that we adopt a sexual identity with respect to having or being the Phallus to even be able to speak. Doesn't this show that, while patriarchy may not be natural or inevitable, it has a rapacious reproductive potency?

The very terminology of abduction makes it initially appear to be masculine. As I have explained elsewhere,^[329] the more common meaning of the English word "abduction" is not the logic of imagination, but kidnapping for sexual purposes. To be blunt, it means rape. Abduction was one of the ancient forms of marriage^[330] —indeed, the form memorialized in the Vestal's initiation rite of captio (capture).

At first blush, this might suggest either the symbolic exchange of the Feminine posited by Lacan as the origin of the subject and law, or the actual abduction or exchange of women posited by Claude Lévi-Strauss as the origin of culture. But at second look, the image is more ambiguous. The thinker does not rape his ideas, he is raped by them; he is ravished by his imagination, taken by a new thought. The imagery reflects the masculine vision of female sexual experience—silent, passive, and orgasmic. And so, at one moment, the theory of abduction is the masculine myth of the feminine joy of rape.

But it is more. The imagery of imagination as abduction is precisely the Lacanian concept of the Feminine's access to the real through jouissance . Lacan said that the masculine subject is stuck in the symbolic order of language. The terminology of abduction reflects the concept that in order to give birth to new ideas and to experience jouissance , "he" must take on the position of the Feminine. That is, if we need to take up the position of the Masculine to speak, we must take up the position of the Feminine to enjoy.

This is the fundamental anxiety of masculinity which Freud called castration fear. To achieve subjectivity, the Masculine must identify lack with the Feminine, and then turn away from her. And yet, in fact, all human beings experience jouissance , the experience of the Feminine. Consequently, according to Zizek,^[*] the real problem with the real (and with the Woman who doesn't exist) is not that it (she) is unattainable, but that it (she) cannot be avoided.^[331] We must all face our castration.

[329] Schroeder, Abduction from the Seraglio, supra note 168, at 115–17.

[330] In classical Roman times, marriage was contractual, but the concept of marriage through abduction continued into the Middle Ages. Schroeder, Feminism Historicized, supra note 191, at 1165.

[331] Zizek, The Indivisible Remainder, supra note 29, at 93.

B—
The Radical Critique Implicit in Lacan

We have seen how Hegel solved the paradox of subjectivity in jurisprudence through the concept of exchange. Similarly, in Lacan, the psychoanalytic subject tries to cure the paradox of desire and castration—the need to simultaneously be, have, enjoy, and lose the Phallus —through an attempted regime of exchange. As I have just said, the law which castrates and thereby constitutes the psychoanalytic subject is the law of prohibition: thou shalt respect the borders of the symbolic order by renouncing the real and the Feminine in the form of jouissance; thou shalt no longer be the Phallus or enjoy it.

This attempt at resolution is, of course, impossible. The Feminine cannot be exchanged because she is lost in the real and cannot be described in the symbolic. Men invent imaginary fantasy images of Femininity to take her place.^[332] Of course, this makes her even harder to grasp. As the Hegelian dialectic of property showed, by treating the subject of love as the object of desire (in the regime of possession and exchange), men cannot achieve the goal of affirmative subjectivity as intersubjectivity. Since their own femininity is prohibited, women often hopelessly attempt to live this fantasy image. They proudly proclaim that they are speaking in a feminine "different voice," when they are, in fact, merely reciting a script written for them in the Masculine.^[333]

The Lacanian story is one of emptiness and desire. It denies the sexual status quo by showing that masculine superiority is a sham, a pathetic lie. It reverses our sexual stereotypes—accepted as much by radical and cultural feminists as by traditionalists—that men are more independent and autonomous and women more relational and communitarian. It is only in our masculine aspect that we can be members of the symbolic community. The radicalism of Lacan resides in the fact that it is not a mere reversal in the sense of a mirror image which would merely reflect back upon the status quo. Rather, it is a subtle warping and revalorization of the status quo. The Lacanian community of castrating Fathers is not that of warmth and fulfillment imagined by cultural feminists. It is based on repression, castration, and law.^[334] It is not, therefore, surprising that men often engage in aggressive attempts at individuality in order to achieve a separation from community which they cannot

[332] See Lacan, Love Letter, supra note 198, at 50.

[333] See Schroeder, Abduction from the Seraglio, supra note 168, at 120–51.

[334] Cornell, Doubly-Prized World, supra note 173, 664; Cornell, Beyond Accommodation, supra note 190, at 53–54.

achieve.^[335] Similarly, as Julia Kristeva argues, many women engage in desperate clinging and seemingly relational behavior in a desperate attempt to have relations and achieve the closeness of community which is always denied them.^[336]

If this were all that Lacan had to say, however, his theory would merely be a depressing condemnation of society. It is depressing precisely because it simultaneously reveals our life as a fiction, but as one which we are incapable of rewriting. There is, however, another optimistic, affirmative, and creative way of reading Lacan.

Through castration we have exiled the Feminine—immediate relationship and jouissance —to the real. As we have seen, the real is the realm of the impossible, of the limit. This constitutes the Feminine as radical negativity. We Americans with our "positive attitude" assume that the negative is bad, that to identify the Feminine with the negative is to denigrate her. Indeed, it is precisely the negative hole at the center of the split masculine Lacanian subject which is often considered his most depressing discovery. This is a serious misreading.

Hegel shows that negativity is the very condition of freedom. It is the failure of constraints. It is the emptiness as the heart of subjectivity which allows us to desire and love. Consequently, although Lacan speaks of the Masculine as the subjective position, only the Feminine in her radical negativity can symbolize the free subject.

One might assume from this that since the Feminine is exiled to the real, then, by definition, freedom cannot be achieved. No. Castration as the incest taboo is an alchemy. It turns the impossible into the forbidden. It is not merely impossible for a speaking subject to enter the real, to be feminine. The Name-of-the-Father prohibits us from doing so. Prohibition, however, necessarily implies the possibility of its transgression. In denying the Feminine it, in fact, creates the Feminine as the possible—the not yet.

[335] Cornell, Doubly-Prized World, supra note 173, at 664–65.

[336] Kristeva, supra note 169, at 201.