A—
Waldron and the Embrace of the Masculine Phallic Metaphor

1—
Defining Property

Jeremy Waldron is one of the few contemporary theorists who have tried to defend the institution of private property from attacks by progressives within the rights tradition without adopting the predominant "right wing" rights position—libertarian absolutism.^[11] In his insightful book The Right to Private Property,^[12] Waldron specifically examines a modified Lockean natural-law liberal philosophy or liberty justification, as well as a Hegelian speculative philosophy or freedom justification.^[13]

Unfortunately, Waldron unwittingly adopts the affirmative masculine phallic metaphor—property as axe. His definition of property reduces property to the single element of possession and envisions possession as the sensuous grasp of a tangible thing. Other rights with respect to other things are not property per se, although they might be analogized to property.

Waldron's analysis is particularly illuminating because, on the one hand, he avoids the error that many defenders of property make in assuming

[10] G.W.F. Hegel, Hegel's Science of Logic 50 (A.V. Miller trans., 1969).

[11] See generally Jeremy Paul, Can Rights Move Left? 88 Mich. L. Rev. 1622 (1990) (reviewing Jeremy Waldron, The Right to Private Property (1988)). I will not here address Waldron's often insightful analysis of how to reconcile the concept of an individual's rights to private property with the rights of the community to limit those rights. For present purposes I am only interested in the imagery implicit in Waldron's definition of property, or what Paul calls "the somewhat tedious, early portions of the book." Id . at 1640.

[12] Jeremy Waldron, The Right to Private Property (1988).

[13] I use the term "liberty" to refer to the negative freedoms—that is, freedom "from"—emphasized by classical liberal natural-rights theories. I use the term "freedom" to refer to concepts of affirmative freedoms—that is, freedom "to"—emphasized by Hegel, among others.

Of course, libertarianism also traces its origins to Locke. The differences between libertarian absolutism and other Lockean liberty theories of property spring primarily from the greater emphasis given by the latter to the so-called Lockean proviso: One is entitled to property with which one has intermixed one's labor so long as there is "enough, and as good left in common for others." John Locke, Two Treatises of Government bk. II 27, §27, 288 (Peter Laslett ed., 2d ed. 1967) (3d ed. 1698, corrected by Locke).

that the core concept of property is self-evident and not in need of explication.^[14] Rather, he takes seriously the literature questioning the coherence of the concept of property and acknowledges that he cannot purport to justify property without first defining it:

Many writers have argued that it is, in fact, impossible to define private property—that the concept itself defies definition. . . . If private property is indefinable, it cannot serve as a useful concept in political and economic thought: nor can it be a point of interesting debate in political philosophy. Instead of talking about property systems, we should focus perhaps on the detailed rights that particular people have to do certain things with certain objects, rights which vary considerably from case to case, from object to object, and from legal system to legal system.^[15]

On the other hand, Waldron does not fall into the error committed by many leftist critics who adopt the bundle-of-sticks imagery. As we shall see, these critics assume that if a simple, sharp-edged analytic definition of property is not possible, then no definition of property is possible. On this view property ceases to exist as a meaningful legal and economic institution.

A term which cannot be given a watertight definition in analytic jurisprudence may nevertheless be useful and important for social and political theory; we must not assume in advance that the imprecision or indeterminacy which frustrates the legal technician is fatal to the concept in every context in which it is deployed.^[16]

Waldron makes reference to modern and postmodern theories of fuzzy definitions:

[14] Richard Epstein, in contrast, acknowledges Thomas Grey's critique (which I shall discuss in detail in section III.A) but largely dismisses it: "The great vice in Grey's argument is that it fosters an unwarranted intellectual skepticism, if not despair. He rejects a term that has well-nigh universal usage in the English language because of some inevitable tensions in its meaning, but he suggests nothing of consequence to take its place." Richard Epstein, Takings: Private Property and the Power of Eminent Domain 21 (1985).

Epstein thinks that Grey confuses the problem of applying a concept in various complex contexts with the vagueness of the concept itself. I agree. I distinguish Waldron from Epstein, however, in that the former more directly recognizes his responsibility to grapple with and articulate the concept of property, whereas Epstein assumes that its meaning is uncontroversial. Specifically, he believes that Blackstone's definition is more than adequate for most purposes. Those issues that seem vague should be kept in the proper perspective as belonging at the margins of property issues. Id . at 22–23.

Epstein also thinks that political considerations drive Grey's critique more than real difficulties in definition. I believe that there is some truth to Epstein's complaint.

[15] Waldron, supra note 12, at 26.

[16] Id . at 31.

I want to consider whether any of the more interesting recent accounts of the nature and meaning of political concepts—such as Wittgenstein's idea of family resemblance, the idea of persuasive definition, the distinction between concept and conception, or the idea of "essential contestability"—casts any light on the question of the definition of private property.^[17]

Waldron argues that "private property is a concept of which many different conceptions are possible, and that in each society the detailed incidents of ownership amount to a particular concrete conception of this abstract concept."^[18] Waldron defines the "concept" of property as follows:

The concept of property is the concept of a system of rules governing access to and control of material resources . Something is to be regarded as a material resource if it is a material object capable of satisfying some human need or want. . . . Scarcity, as philosophers from Hume to Rawls have pointed out, is a presupposition of all sensible talk about property.^[19]

He continues:

The concept of property does not cover all rules governing the use of material resources, only those concerned with their allocation. Otherwise the concept would include almost all general rules of behaviour. . . . As Nozick puts it, the rules of property determine for each object at any time which individuals are entitled to realize which of the constrained set of options socially available with respect to that object at that time.^[20]

I concur with Waldron's conclusions as to both the need for and the possibility of defining property and distinguishing it from other legal relations. In particular, Waldron's approach toward definitions, his recognition that property is and will probably remain a flourishing legal and economic institution in spite of—or because of—its open-ended and fluid nature, and his realization that the institution of private property seems intuitively related to liberty and freedom considerations are much more successful than the analysis offered by critics such as Grey which I discuss

[17] Id .

[18] Id . Waldron also writes:

For one thing, private property is a concept of which there are many conceptions: legal systems recognize all sorts of constraints on the rights of owners, and the crucial question is not whether there should be constraints, but whether the particular constraints we need defeat the original aims of our right-based argument.

Id . at 5.

[19] Id . at 31 (emphasis added).

[20] Id . at 32.

in section III.A. Unfortunately, at the next stage Waldron's analysis devolves into precisely the unsophisticated thinking that Grey and Vandevelde associate with—and criticize as—the rigid, unworkable, traditional model of property. That is, Waldron adopts the paradigm of sensuous grasping as the norm or epitome of property against which all other forms of property must be analogized. Indeed, it is not even clear that he considers legal rights with respect to intangibles to be true property at all.

2—
The Physicality of Property

As we have seen, Waldron first defines property as the regime for the allocation of material resources. That is, he reduces property to the single masculine element of possession—the identification of an object to a subject—and represses the elements of enjoyment and alienation. In turn, he defines the term material resources as those things that are possible objects of human wants and needs. In the following passage, however, he limits material objects to physical things, which he contrasts with noncorporeal things:

I have defined property in terms of material resources, that is, resources like minerals, forests, water, land, as well as manufactured objects of all sorts. But sometimes we talk about objects of property which are not corporeal: intellectual property in ideas and inventions, reputations, stocks and shares, choses in action, even positions of employment. . . . This proliferation of different kinds of property object is one of the main reasons why jurists have despaired of giving a precise definition of ownership. I think there are good reasons for discussing property in material resources first before grappling with the complexities of incorporeal property.^[21]

Note that Waldron has already taken an unacknowledged step toward the identification of property with physicality that will color the rest of his argument. He defines human wants and needs, and therefore property, in terms of purely animal satisfaction of physical limitations. This is an odd choice from a philosopher like Waldron who wishes to explore justifications of property from a Lockean and a Hegelian perspective. Neither Locke nor Hegel justifies property in terms of the satisfaction of animalistic physical needs. Rather, both justify property by reference to the most sublime and abstract notions of what makes humans truly human—liberty and freedom, respectively.

Waldron locates property in the uninterpreted, preimaginary, prelinguistic realm of the real in which humans experience "need." But, as we

[21] Id . at 33.

have seen, property does not belong in the animalistic, physical realm we identify with the real, or the imagistic realm of the imaginary, in which Waldron immures it. Property is the object of human desire . Waldron, however, presumes that property relates to physical want—what Lacan calls "needs." He wants to find an object in the imaginary to take the place of the objet petit a that he can identify with some physical object to stand in for the symbolically prohibited real object of desire and function as the cause of desire. Consequently, Waldron wants to presume that property is originally a physical relationship.

This may explain why Waldron cannot—as he refreshingly admits^[22] —follow Hegel's argument as to the necessary role of property in the development of human personhood. Hegelian property has nothing to do with physical requirements.^[23] As I have discussed, property is the means by which the abstract person as self-consciousness attains subjectivity. This purely logical construct does not yet even have a body, let alone physical needs.

In other words, Waldron makes precisely the phallic metaphoric conflation that Lacan locates as the identification of gender roles—or sexuated positions—with anatomy. Waldron conflates the Phallic with the phallic and desire with need in an imaginary attempt to collapse the symbolic and the real.

3—
Waldron's State of Nature

Waldron defends his emphasis on corporeal objects by an appeal to something like a state of nature. Waldron argues:

First, we should recall that the question of how material resources are to be controlled and their use allocated is one that arises in every society. . . . The question of rights in relation to in corporeal objects cannot be regarded

[22] Waldron writes: "There are fewer difficulties with the Hegelian approach, though it has to be said that the link between private property and the ethical development of the person is rather obscure and, in any case, never established as an absolutely necessary connection." Id . at 4. If, however, one concludes that human nature is driven by the desire to be desired by another subject, and that subjectivity is intersubjectivity mediated by the exchange of the object of desire—as do both Hegel and Lacan—and if property is the regime of the exchange of objects, then by definition property is necessary for the development of subjectivity.

[23] "The rational aspect of property is to be found not in the satisfaction of needs but in the superseding of mere subjectivity of personality." G.W.F. Hegel, Elements of The Philosophy of Right 74 (H.B. Nisbet trans. & Allen W. Wood ed., 1991) [hereinafter Hegel, The Philosophy of Right]; see also Merold Westphal, Hegel, Freedom, and Modernity 22 (1992).

as primal and universal in the same way. In some societies, we may speculate, the question does not arise at all either because incorporeals do not figure in their ontology or, if they do, because human relations with them are not conceived in terms of access and control. That is a point about incorporeals in general. Turning to the incorporeal objects we are interested in, it is clear that questions about patents, reputations, positions of employment, etc. are far from being universal questions that confront every society. On the contrary, one suspects that these questions arise for us only because other and more elementary questions (including questions about the allocation of material objects) have been settled in certain complex ways.^[24]

In other words, Waldron tries to defend his analysis by hypothesizing an anthropology of societies without incorporeals.

Of course, liberal philosophers, including Locke, have traditionally started their analysis from a hypothetical state of nature. At first blush, therefore, Waldron's approach might seem worthwhile for the consideration of a Lockean natural-rights justification of property. On further reflection, however, Waldron's approach is inappropriate to an analysis of liberal philosophy. The state of nature posited by liberals such as Locke presupposes pre-social individuals. Waldron starts with a hypothesized second stage of human development in which social individuals are already living in societies. An analysis of property as it might exist in even such a primitive society is irrelevant to the Lockean search for a pre-social natural right of property.

More important, despite Waldron's assertions to the contrary, I believe that it is not possible to hypothesize a society of entities identifiable as human beings in which incorporeal property—such as status, religious objects, artistic creations, crafts, objects of beautification, and other symbolic and imaginary objects—does not play a central role. Creatures living together solely within the realm of physical needs and wants are not human subjects but only animals living in packs. The human subject is the speaking subject of language in the symbolic order. I can, on the other hand, hypothesize societies of human beings where incorporeals are the primary source of property. For example, such a society might exist on a hypothesized tropical island with abundant fruit, vegetables, water, and space obviating scarcity for basic human needs and wants. That is to say, Waldron believes that tangible property is more fundamental to human personality than incorporeal property. I argue that the opposite is true.

[24] Waldron, supra note 12, at 34.

Waldron's approach poses even more difficulty when we move to the considerations of actual "primitive" or tribal societies. I am not an anthropologist, so I am wary of making empirical claims, but I nevertheless believe that no contemporary society exists solely in the world of physical needs without rich and complex symbolic objects of desire.^[25]

In the passage quoted above, Waldron tries to suggest that those primitive societies that do have symbolic objects—such as religious objects or status—do not allocate these objects through a recognizable property regime. This objection fails for at least two reasons.

First, Waldron's own definition of property—a regime of access and control of scarce resources—would apply on its face equally to incorporeals and corporeals. Even if we are squeamish about speaking of religious objects and worship in terms of property, any society that recognizes a priesthood with special access and passage to the divine, that recognizes the efficacy of ritual or taboo, or that requires initiation into religious mysteries or status—such as manhood—subjects incorporeals to a regime of access and control of the objects of human wants. This is Waldron's definition of property. Indeed, in his seminal anthropological study of archaic property relations, Marcel Mauss emphasized that in so-called primitive or premarket societies property, law, family, and religion were inextricably interconnected.^[26]

In contradistinction, the two philosophies on which Waldron supposedly relies—Hegelianism and Lockean liberalism—do not flinch from

[25] The Tasadays are the only contemporary society I know of to approach this description. The Tasadays, a group of twenty-six people, caused a stir in 1971 when they were "discovered" in the Philippines as the only contemporary Stone Age tribe. See, e.g ., Further Studies on the Tasaday (D.E. Yen & John Nance eds., 1976); The Tasaday Controversy: Assessing the Evidence (Thomas N. Headland ed., 1972); Kenneth Macleish, The Tasadays: Stone Age Cavemen of the Mindinao , Nat'l Geographic, Aug. 1972, at 219. Arguably, the Tasadays suggest the possibility of Waldron's model of a people having little or no intangible goods. Unfortunately, since the late 1980s suspicion has spread widely in the scientific community that the Marcos regime invented the Tasadays as a crude hoax to gain control over tribal lands. Bruce Bower, 19-Year Debate over "Stone Age" Tasaday Thrives in Rain Forest , L.A. Times, Jan. 8, 1990, at B2. See also Shannon Brownlee, If Only Life Were So Simple , U.S. News & World Rep., Feb. 19, 1990, at 54.

[26] The things transferred were sometimes useful goods but often ritual or decorative items of spiritual significance. The purpose of the property relationship was not so much to allocate goods, as Waldron presupposes, but to establish status and relations of mutual obligation within and among families, clans, and tribes.

Moreover, what they exchange is not solely property and wealth, movable and immovable goods, and things economically useful. In particular, such exchanges are acts of politeness: banquets, rituals, military services, women, children, dances, festivals, and fairs,

Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies 5 (W.D. Halls trans., 1990).

identifying religion with property. Hegel expressly recognized that our beliefs, religious positions, and liturgical objects are every bit as much external symbolic objects of desire as food and clothing. Similarly, as I shall discuss later, the Framers of the U.S. Constitution, who were, of course, deeply influenced by Lockean liberalism, were not shy about analyzing religion in terms of property. They sought to justify constitutional freedoms of speech and religion precisely on the grounds that men have a natural property right in their opinions and beliefs.

Second, if Waldron wishes to assert that primitive regimes of access to religious or other symbolic objects significantly differ from the type of access and control that we associate with property, he has the burden of articulating that difference. Waldron recognizes that his stated project of justifying property requires that he be able to define property and distinguish it from other interests, and he starts from the proposition that a philosophic project requires careful definition. If he cannot identify the difference between the regime of access to religious and status objects and other regimes, his attempted definition of property fails on his own terms.

Most important, there is a practical problem with Waldron's specific choice of the limited concept of property that serves as the starting point for his analysis. When one chooses to argue from a simple hypothetical, the ultimate issue is not whether there is any empirical society that matches the hypothetical. Rather, the question is whether the hypothetical simplifies and epitomizes fundamental aspects of our society so as to serve as a useful analytical model. Indeed, Waldron is very sensitive to the idea that property exists not merely as an abstract philosophical concept but as a fundamental legal, economic, political, and social institution in our society. Unfortunately, I believe that Waldron's hypothetical is so alien as to be misleading.

As we have seen, Waldron has reduced the concepts of material resources and human wants to what I have referred to as seemingly real needs. The problem with this should be obvious. By reducing these concepts in this fashion, he has excluded from his starting analysis of property all interests beyond those necessary for subsistence. As a result, all property interests in the symbolic economy—including incorporeals and

luxury goods defined broadly as anything above the satisfaction of animal need—have already been identified as problematic. It is possible to take the position that no institution of property can be philosophically justified beyond the subsistence level.^[27] By definition, that position would always lead to the conclusion that the property regime of a relatively wealthy, nonsubsistence economy, such as contemporary American society, could never be justified. Waldron's goal, however, is not to take the radical neo-Proudhonian or Marxian position that property is theft. He wishes to justify at least a limited property regime in a modern society. His choice as a starting point, though, seems antithetical to his purpose.

4—
Waldron's Denial of Incorporeality

a—
Need or Desire?

In his analysis of property, Waldron's rhetoric quickly falls into the Phallic -phallic confusion of the physicalist metaphor for property. Waldron states, for example, that "it is often illuminating to characterize the solutions [to questions concerning the allocation of incorporeals] in terms which bring out analogies with the way in which questions about property have been answered."^[28] Waldron continues:

For example, once it is clear that individuals have rights not to be defamed, it may be helpful to describe that situation by drawing a parallel between the idea of owning a material object and the idea of having exclusive rights in a thing called one's "reputation." Such talk may take on a life of its own so that it becomes difficult to discuss the law of defamation except by using this analogy with property.^[29]

Let us recapitulate Waldron's reasoning. First, he argues that property is a regime relating to the access and control of the objects of human wants and needs. Insofar as this definition refers to "wants," one does not necessarily have to limit property to the allocation of physical things. The colloquial term "want" could be read expansively to include the technical psychoanalytical concept of desire. This would make the theory con-

[27] The alternate interpretations of the so-called Lockean proviso are variations on this argument. The narrow libertarian reading justifies virtually all exclusive property rights this side of starvation of the poor. An expansive reading sharply limits property rights in favor of egalitarian and communitarian values. See John Stick, Turning Rawls into Nozick and Back Again , 81 Nw. U. L. Rev. 363 (1987).

[28] Waldron, supra note 12, at 34.

[29] Id .

sistent with the Hegelian-Lacanian concepts of objects of property as potentially being anything external to abstract personality and of property as the regime of intersubjective exchange of the object of desire.

Waldron rejects this interpretation in his second move. Although he purports merely to restate this definition, he in fact changes it by limiting the term "want" to the Lacanian concept of need for physical objects. That is, he tries to move property out of the symbolic regime of law, into the preconscious, prelinguistic realm of the real.

Waldron's third move is to argue that by analogy we can apply to incorporeal objects legal principles developed by considering corporeal objects. In his fourth and final move, Waldron comes full circle to Grey's denial of noncorporeal property. Only corporeal object relations are property relations. Waldron no longer purports to apply principles developed in connection with corporeal objects by analogy to develop the property law of noncorporeals. Rather, he purports to apply property law concepts—which by implicit definition relate only to corporeal objects—by analogy in order to develop a new law of noncorporeal object relations.

Waldron continues his argument by assertorially denying the noncorporeal nature of the objects of legal relations that are traditionally considered to epitomize property. It has often been noted that the most archetypical type of property—real property—is not a right to soil or other physical things but to estates in land. Real property is not real in the Lacanian sense.^[30]

Waldron attempts to counter this view:

We might accept the argument but insist that spatial regions can still be regarded as material resources. Although they differ ontologically from cars and rocks they also seem to be in quite a different category from the complexes of rights that constitute familiar incorporeals—patents, reputations, etc. It is philosophically naive to think that the fact that we have to regard regions as property objects adds anything to the case for regarding, say, choses in action in that way. The second response is more subtle. We may concede that land, as conceived in law, is too abstract to be described as a material resource. But we may still insist that the primary objects of real

[30] This disturbing nontangibility of realty is reflected in the common law. Like us, our legal ancestors had difficulty imagining the transfer of property otherwise than as the physical delivery of tangible things. Consequently, they did not recognize a conveyance by deed alone but required that it be structured as closely as possible to the physical delivery of chattel. This led to the ritual known as "delivery of seisin"—an attempt to identify a real manifestation of the symbolic relationship of property. A.W.B. Simpson, A History of the Land Law (2d ed. 1986).

property are the actual material resources like arable soil and solid surfaces which are located in the regions in question. Until recently, these resources have been effectively immovable and so there has been no reason to distinguish "land as material" from "land as site." But developments like modern earth-moving and high-rise building necessitate a more complex and sophisticated packaging of rights over these resources. Thus the concept of land as site has now had to be detached from its association with immovable resources and employed on its own as an abstract idea for characterizing these more complicated packages of rights. Still, in the last analysis, the system of property in land is a set of rules about material resources and nothing more.^[31]

These arguments evidence Waldron's deep ambivalence concerning corporeality and property. He provides these arguments to support his assertion that, first, we should start by analyzing corporeal objects because they are more basic and, second, that real property interests are corporeal. The statement just quoted, however, seems to be an unacknowledged shift in position. After saying that he will start with the property of material objects because they are most basic, he makes an implicit admission that even though the most basic property rights concern realty, and realty is not a physical object, he finds it useful to analogize land to physical objects. Because it is convenient to think of realty interests as physical objects, we will say that realty interests are physical objects without considering whether or not this is actually the case. In other words, Waldron all but admits that he starts with material objects not because they are the most basic objects of property but because they seem simpler to think about.

b—
Waldron's Empirical Arguments for the Phallic Metaphor

Waldron wants to suggest that only modern technology has made the identification of realty interests with the underlying land problematic. I question both the historical and empirical accuracy of his statement.

As any first-year law student knows, the concept of realty as a specific plot of land occupied and exploited by a single owner is a relatively modern development in Anglo-American culture. Historically, real property consisted of the system of estates.^[32] Estates did not consist merely in the

[31] Waldron, supra note 12, at 36–37 (footnote omitted).

[32] Indeed, to be precise, when the word "property" started to come into legal parlance in the seventeenth century, it may have more accurately referred only to personal property rights of private citizens in personalty. This is because the word "property" was defined as the "highest right that a man hath or can have to any thing." G.E. Aylmer, The Meaningand Definition of "Property" in Seventeenth Century England , Past & Present, Feb. 1980, at 87, 89–94. In seventeenth-century England—and technically in the contemporary United States—only the sovereign can have property in land in the sense of the highest allodial right. Consequently, legal discussion concerning the interests in land of ordinary citizens involved not property in land but only estates. In contradistinction, anyone can have a full property in personalty. Despite this, according to Aylmer, some seventeenth-century lawyers tended to refer sloppily to property in estates owned by citizens. Id .

right to occupy, farm, mine, or otherwise physically exploit specific pieces of realty; they included a complex network of rights, responsibilities, and status. The estates granted to nobility, for example, were often tied to a title and were conditioned on the obligation to provide their liege with the military service (or its financial equivalent) of a specified number of men for a specified number of days. Numerous persons held different property rights with respect to a given piece of realty. Although some of these were merely temporal divisions of the right to occupy the land—such as life estates, reversions, and so on—many others were not. Not only social status but also what we would call governmental and ecclesiastical positions and functions were tied to estates. Other real property interests included, among others, banalities —which included the right to operate certain "utilities" in a village such as a mill, oil press, or bake oven located in a village—and advowsons —the right to name clerics to a specific church and income.^[33] Indeed, the traditional dichotomy between real and personal property may originally have been in large part jurisdictional rather than substantive. Real property rights referred not to property interests relating to land per se but to those causes of action for specific relief that could be brought in the king's court.^[34]

Although many of these medieval estates exist only as vestigial organs in late-twentieth-century America, other partial estates have taken their place. Let us look at a very simple example of residential real estate in New York City—my apartment. A corporation named Hudson Mews Apart-

[33] See C.B. MacPherson, Property: Mainstream and Critical Positions 7 (1978).

[34] As an empirical matter, however, such real causes of action may have related primarily, though not exclusively, to claims concerning rights in land.

The name "real property" itself is taken from the procedures, the real actions, through which landowners' rights were specifically enforced. The dominant status of real property law, early established, long persisted, and in Blackstone's time that body of law, viewed as the mechanism either for the resolution of land disputes, or, as it was used by the expert conveyancers, for the cooperative, consensual organization of land ownership, remained the most important and intellectually developed branch of the common law.

A.W.B. Simpson, Introduction to 2 William Blackstone, Commentaries on the Laws of England, at v (A.W. Brian Simpson ed., 1979) [hereinafter Blackstone's Commentaries]. That is, real-property actions concerned the enforcement of manorial rights, not all of which would be considered tied to land by modern standards.

Duncan Kennedy criticizes Blackstone's categorization of certain rights as real property. See Duncan Kennedy, The Structure of Blackstone's Commentaries , 28 Buff. L. Rev. 205, 344–46 (1979). Simpson's point is that Blackstone's characterization was not an idiosyncratic choice but a reflection of the legal practice of his time.

It is tempting to suspect that the terminology "real property" comes from its original enforcement in the royal courts. Indeed, the word "realty" can also mean "royal" and "realm." Unfortunately, these two meanings of "realty" seem to derive from entirely different roots. The former, referring to property, originates from the Latin res , which means "thing" or "matter." The latter refers back to rex or "king," which in turn relates to a root meaning "to straighten or put in line." That is, it means "ruler" in both senses of the term. 13 The Oxford English Dictionary 272, 279 (2d ed. 1989); see also Eric Partridge, Origins: A Short Etymological Dictionary of Modern English 553, 561 (1966). Perhaps the development of such similar English words for these different concepts originating in different roots is a folk etymology.

ment Corporation owns the equity in the building and land where I live. A bank holds a mortgage on the building granted by the corporation. Various parties including Time-Warner Cable Television, Atlantic Bell, ConEdison, and the U.S. Postal Service have easements to enter and keep objects—such as coaxial cables and telephone and power lines—on the premises. The corporation owns rights of access to hook up to the water mains and pipelines that run under the street in front of the building. The use of the land and building is subject to extensive regulation by the City and State of New York. As the building is located in an unusual (for Manhattan) location behind a private courtyard, the corporation also owns a right-of-way across a narrow strip of land—owned in fee by someone else—which separates our garden from the street. I, as tenant in the entirety with my husband, own the equity in 625 common shares of the corporation, and we are lessees of a proprietary lease granted by the corporation for the apartment in which I live. A savings and loan association owns an Article 9 security interest in the shares and the lease. Although the terms of my lease are coterminous with my ownership of the shares, both my occupancy of the lease and my ownership of the shares are subject to my performance of certain obligations under the bylaws of the corporation—including paying an amount equivalent to my pro rata share of the corporation's mortgage debt and operating expenses—and under the terms of the agreement with my S and L. The corporation also has a security interest in my rights to secure my obligations and an intercreditor agreement with my S and L governing its respective property rights as a secured creditor. My right to alienate my shares and my lease is restricted by the terms of the bylaws of the cor-

poration and my security agreement with the S and L. Although shareholders occupy most of the other apartments in my building—sometimes individually and sometimes through various forms of joint tenancy—some shareholders sublet their apartments to unrelated tenants. The corporation has granted the shareholders and lessees limited rights to use the common areas of the building and the garden, as well as the right-of-way. Each tenant has the exclusive privilege to use a portion of the basement for storage. The corporation leases the basement apartment to our superintendent, whose lease is coterminous with his employment, and so on.

Commenting on modern-day estates in land, Waldron ends his argument with the following non sequitur:

Thus, the concept of land as site has now had to be detached from its association with immovable resources and employed on its own as an abstract idea for characterizing these more complicated packages of rights. Still, in the last analysis, the system of property in land is a set of rules about material resources and nothing more.^[35]

Thus, Waldron would conclude that ultimately all the interests concerning my apartment building are concerned with "material resources" in his definition of physical things. He might try to argue that my ownership interest primarily concerns my sensuous exploitation of physical walls, floors, ceilings, fixtures, and so on. But the interests of the financial institutions, the telephone company, the cable TV company, the electric company, the postal service, the laundry company, and Sal the Super are not primarily related to the physical location. Rather, they are rights to receive income and are not, as Waldron suggests, substantially different from the rights to income from the exploitation of any other form of noncorporeal property. Moreover, even my apartment's value to me is not primarily based on my physical needs. The value consists of a combination of its objective exchange value—the market price—and its subjective use value to me. The use value relates to a variety of symbolic and imaginary concerns, as well as my real needs. Examples include the apartment's physical attractiveness, its relative quietness, its proximity to both my office and a wide variety of restaurants and entertainment, the artsy population of the neighborhood, and so on. Indeed, when one compares the cramped quarters in which we New Yorkers tend to live with the housing occupied by people of comparable economic resources in other parts of the

[35] Waldron, supra note 12, at 36–37.

country, it is obvious that we value our property despite its failure to meet our real physical wants.

Waldron admits that if ownership is defined in terms of wealth, then

we will certainly have to conjure up incorporeal things to correspond to the complex legal relations that in fact define their economic position. But if we say instead that property is a matter of rules about access to and control of material resources, but not necessarily about private ownership, then we may still say that a man's wealth is constituted for the most part by his property relations. He may not be the owner of very many resources; but the shares he holds, the funds he has claims on, and the options and goodwill he has acquired, together define his position so far as access and control of material resources is concerned.^[36]

Once again, Waldron distinguishes between relations concerning noncorporeals and "property"—that is, access to material (i.e., physical) resources. The only true property is what he sees and holds. His argument seems to be based on the agrarian myth that all wealth ultimately comes down to physical things—the land, gold, and so on. Everything else is merely an indirect interest in the physical. To Waldron, all our creations—art, music, medicine, technology, knowledge—ultimately relate to satisfaction of our physical, animal needs and wants. Like the infant, we remain preconscious in the domain of the real.

But even if one accepts Waldron's assertions as to the source of wealth, it does not follow from this that property relations are primarily or even archetypically relations affecting the access to and control of physical things. His very discussion indicates that access to and control of wealth—even if defined narrowly as physical things—are legal, symbolic relations, not the mere immediate sensuous contact with, and physical exploitation of, tangible things. Property, as a legal relation, is the way we as human beings move away from mere sensuous experience of the outside world to symbolic and social relations among human beings with respect to the outside world.

Indeed, as human beings, even our needs are not purely animalistic or natural. In the words of Renata Salecl:

For Lacan the concept of need is linked to the natural or biological requirements of human beings (food, for example). But for human beings it is essential that these needs are never manifest as purely natural needs. Needs are always defined by a symbolic context: if we are hungry, for ex-

[36] Id . at 37.

ample, we do not simply grab the first available food, but rather we think about what we shall eat and then prepare food in a special way.

When put into words, a need becomes articulated in the symbolic order. . . . Desire arises as the excess of demand over need, as something in every demand that cannot be reduced to a need.^[37]

When I eat food, my property in the food is not the animal act of consumption and digestion but the legal recognition of my right to possess and use or alienate the food. In our society, property rights are these indirect, mediated relations among people through our relationship with the external world. It is meaningless to speak of property without speaking of our relation to these noncorporeal things, even if they ultimately indirectly lead to the access to and control of corporeal things. And yet, it is impossible to do so through the positive masculine phallic metaphor that Waldron unwittingly adopts.