Property was dead: to begin with. There is no doubt whatever about that. The register of its burial was signed by the clergyman, the clerk, the undertaker, and the chief mourner. Hohfeld signed it: and Hohfeld's name was good ... for anything he chose to put his hand to. Old Property was as dead as a door-nail.
Mind! I don't mean to say that I know, of my own knowledge, what there is particularly dead about a door-nail. I might have been inclined, myself, to regard a coffin-nail as the deadest piece of iron-mongery in the trade. But the wisdom of our ancestors is in the simile; and my unhallowed hands shall not disturb it, or the Country's done for. You will therefore permit me to repeat, emphatically, that Property was as dead as a door-nail.
The mention of Property's funeral brings me back to the point I started from. There is no doubt that Property was dead. This must be distinctly understood, or nothing wonderful can come of the story I am going to relate. If we were not perfectly convinced that Hamlet's Father died before the play began, there would be nothing more remarkable in his taking a stroll at night, in an easterly wind, upon his own ramparts, than there would be in any other middle-aged gentleman rashly turning out after dark in a breezy spot -- say Saint Paul's Churchyard for instance -- literally to astonish his son's weak mind.(1)
Introduction: The Death of Property
Property was dead, to begin with. The coroner, Wesley Newcomb Hohfeld, revealed that the unity, tangibility, and objectivity of property perceived by our ancestors was a phantom. Property is, in fact, merely a "bundle of sticks."(2) When conceptualized as a colllection of rights, property loses its distinctive qualities and its essence. It therefore does not, or at least should not, exist.(3) Without unity and physicality, property loses its objectivity and can only be a myth.(4) The rabble might still believe in the old gods of property, but the educated "specialists" now know that this was vulgar superstition. Once the populace is reeducated, property will cease to be worshiped.(5)
But if mythic unitary property of our ancestors is dead, it continues to haunt us with ghostly persistence. As Sir John 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) And so, certain theorists have recently insisted that property exists after all -- but only a version of property that emphasizes tangibility and immediate relations with physical, real objects.
In this article I argue that property is alive and well. But property is also in the grip, so to speak, of a specific metaphor -- an image of property as the sensuous grasping of a tangible thing.
While most contemporary legal commentators dutifully intone the insight -- typically attributed to Hohfeld(7) -- 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.(8) I argue that property as both thing and right is described, not in terms of just any physicalist imagery, but in terms of phallic imagery. That is, property is metaphorically identified with seeing, holding, and wielding the male organ or controlling, protecting, and entering the female body. Our very terminology for nonphysical things -- intangible or noncorporeal property -- presumes that tangibility and corporeality are the norm. I further argue that this physicalist concept of property --what I call the phallic metaphor -- is related to a more general psychoanalytic tendency of humans to conflate legal-linguistic concepts with the physical world.(9)
My analysis presents the physicalist paradigm in property theory in two versions: the affirmative and the negative. Representing the affirmative physical property theory is Jeremy Waldron. Waldron agrees that contemporary neo-Hohfeldian analysis makes the task of defining property difficult, but he argues that it can be done by applying a Wittgensteinian family-resemblance analysis starting with the archetype of ownership of physical objects.(10) Waldron represents the revival of property theory against the twenty-year assault that property has undergone from both the critical legal studies and law and economics movements.
The alternate variation of the physicalist conception of property is its negation -- denial. This version reduces property to a bundle of sticks. I argue that this attempt to disaggregate the unity of property places primacy on the sensuous grasp of tangible objects. Thomas Grey is probably the most prominent among those who argue that property cannot be conceived as a unitary right with respect to tangible things and therefore must lose its meaning as a legal category. Because property cannot have this meaning, it does not exist.(11) But this thesis depends on the proposition that property only has meaning if conceptualized as the sensuous grasp of physical things by a single human being.
These denials of the phallic physicalist concept of property covertly reinstate it, as reflected in the very imagery of the "bundle of sticks" -- a metaphor of the sensuous, possessory, and tangible. Sticks and bundles are physical things that one can, and stereotypically does, see and sensuously grasp in one's hand. Moreover, the "bundle of sticks" analysis does not solve the metaphysical problems these scholars purport to identify in the unitary, possessory, tangible concept of property. It merely postpones, and thereby replicates, the unitary theory and its problems. This bundle consists of separate little phallic sticks, each a separate little unity with its own metaphysical problems. Of course, these scholars address such problems 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) That is, although its proponents usually present the "bundle of sticks" metaphor as an alternative to the "property as thing" metaphor,(13) the former is in fact merely a variation of the latter.
The "bundle of sticks" marks a key psychoanalytic 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.(14) But, like Osiris's, property's disaggregation not only did not prevent its resurrection but enabled the resurrected god to fill the entire universe.(15) Thanks to "bundle of sticks" imagery, property threatens to permeate all legal relations, making all government actions into takings.(16)
As this article maintains that phallic metaphor in physicalist theories of property has a psychoanalytic basis, I begin with a brief outline of Hegel's theory of property and Lacan's closely related theory of sexuality. A grounding in these ideas will help illustrate why the metaphor of the grasped object so dominates property theory today.
That Obscure Object of Desire
Why do phallic metaphors haunt property discourse? These metaphors are an abduction(17) that comes so easily to us as to seem natural.(18) Both property, according to Hegelian philosophy, and the Phallus, according to Lacanian psychoanalysis, serve as the defining objects of desire that enable us to create ourselves as acting subjects through the creation of law. The parallel roles reserved for property and for the Phallus in the political and psychoanalytic philosophies of Hegel and Lacan are the reason these metaphors so frequently recur in discourse about property law. A brief exegesis of these complex and frequently obscure theories of subjectivity follows.(19)
Hegelian Philosophic Theory
In his Philosophy of Right,(20) Hegel traces the dialectic of human freedom from a starting point of the most abstract concept of personality through the creation of the individual as citizen of a highly developed state. Property plays an early and crucial role in this dia-lectic. (21) The Hegelian concept of the object does not refer to physical things but includes everything other than the most primitive and abstract concept of personality, that is, self-consciousness.(22) Hegelian abstract personality as self-consciousness can only be defined in terms of what it is not and, therefore, is pure negativity. Consequently, the Hegelian concept of object includes not merely conventional tangibles and intangibles, such as so-called intellectual property, but also all individuating characteristics that a person can acquire, such as personality traits, talents, beliefs, and our own bodies.(23) In order to obtain the subjectivity that will eventually enable the person to develop into an individual and actualize his freedom, the abstract person needs to objectify himself.
According to Hegelian philosophy, subjectivity is intersubjectivity mediated through objectivity: one can achieve subjectivity if and only if one is recognized as a subject by another person whom one recognizes as a subject. Human beings are driven by an erotic desire for mutual recognition.(24) "Property is ... a moment in man's struggle for recognition."(25) The abstract personality has no positive individuating characteristics and, therefore, cannot be recognized by others in this state. Only through the possession and enjoyment of objects does the abstract person become individualized and thereby recognizable as a subject. Through the exchange of objects with another person -- that is, through contract -- one person can recognize another person as an acting subject deserving rights. And through recognition by that other person, the first person can recognize herself as a subject capable of bearing rights.
This legal regime with respect to the possession, enjoyment, and exchange of the object of...