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The Triumph of Venus The Erotics of the Market
Philosophy Social Theory and the Rule of Law 1st Edition
Jeanne Lorraine Schroeder Digital Instant Download
Author(s): Jeanne Lorraine Schroeder
ISBN(s): 0520234316
Edition: 1
File Details: PDF, 3.76 MB
Year: 2004
Language: english
The Triumph of Venus
 PHILOSOPHY, SOCIA L THEORY, AND THE RULE OF L AW

General Editors
Andrew Arato, Seyla Benhabib, Ferenc Fehér, William Forbath, Agnes Heller,
Arthur Jacobson, and Michel Rosenfeld

1. William Rehg, Insight and Solidarity: A Study in the Discourse Ethics

of Jürgen Habermas
2. Alan Brudner, The Unity of the Common Law: Studies in
Hegelian Jurisprudence
3. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law
4. Michel Rosenfeld, Just Interpretations: Law between Ethics and Politics
5. Jeanne Lorraine Schroeder, The Vestal and the Fasces: Hegel, Lacan, Property,
and the Feminine
6. Michel Rosenfeld and Andrew Arato, editors, Habermas on Law and
Democracy: Critical Exchanges
7. Desmond Manderson, Songs without Music: Aesthetic Dimensions of
Law and Justice
8. Arthur J. Jacobson and Bernhard Schlink, editors, Weimar: A Jurisprudence
of Crisis
9. Rainer Forst, Contexts of Justice: Political Philosophy Beyond Liberalism and
Communitarianism. Translated by John M. M. Farrell.
10. Jeanne Lorraine Schroeder, The Triumph of Venus: The Erotics of the Market
The Triumph of Venus
The Erotics of the Market

Jeanne Lorraine Schroeder

UNIV ERSITY OF CA LIFORNIA PRESS

Berkeley Los Angeles London
University of California Press
Berkeley and Los Angeles, California
University of California Press, Ltd.
London, England
© 2004 by the Regents of the University of California
Library of Congress Cataloging-in-Publication Data

Schroeder, Jeanne Lorraine.

The triumph of Venus : the erotics of the market / Jeanne Lorraine
Schroeder.
p. cm.—(Philosophy, social theory, and the rule of law ; 10)
Includes bibliographical references and index.
isbn 0–520-23431–6 (cloth : alk. paper)
1. Law and economics—Psychological aspects—Philosophy. 2.
Sociological jusrisprudence. 3. Feminist jurisprudence. 4. Economic
man. 5. Utilitarianism. 6. Romanticism. 7. Erotica. 8. Venus
(Roman deity) I. Title. II. Series.
k487.e3 s38 2004
340’.115—dc21
2003012770

Manufactured in the United States of America

13 12 11 10 09 08 07 06 05 04
10 9 8 7 6 5 4 3 2 1
The paper used in this publication meets the minimum require-
ments of ANSI/NISO Z39.48–1992 (R 1997) (Permanence of Paper).
For my mother
 contents

Introduction: Juno Moneta / 1

1. Pandora’s Amphora: The Eroticism of Contract

and Gift / 7
Prologue: The Myth of Allgifts / 7
The Nature of Gift / 11
Gift as Potlatch / 26
The Eroticism of the Market / 42
Commodification and Relationship / 64
Epilogue: Pandora’s Gift / 81
2. Orpheus’s Desire: The End of the Market / 83
Prologue: Orpheus and Eurydice, Eros and Thanatos / 83
The Desire of Economics / 86
The Perfect Market / 107
Conclusion: The Ideal of the Market as the End of the Market / 138

3. Narcissus’s Death: The Calabresi-Melamed

Trichotomy / 149
Prologue: Narcissus and Echo / 149
Viewing the Cathedral; Seeing the Feminine / 152
Three’s a Crowd: The Trichotomy / 159
Six Hypotheticals / 169
Property / 179
Procedural and Substantive Critiques / 187
Conclusion: The Masculine Phallic Metaphor / 202
4. The Midas Touch: The Lethal Effect of Wealth
Maximization / 205
Prologue: The Golden Touch / 205
Defining Wealth / 208
viii contents

The Denial of Enjoyment / 229

Lacan avec Posner / 240
Epilogue: The Ass’s Ears / 272

5. The Eumenides’ Return: The Founding of Law Through

the Repression of the Feminine / 276
Prologue: The Deus ex Machina / 276
The Erinyes / 281
The Law’s Necessary Repression of the Feminine / 290
Epilogue: The Birth of Venus / 308

index / 313
 Introduction: Juno Moneta
The object of the law and the object of desire are one and the same, and remain
equally concealed.
gilles deleuze 1

There is nothing which so generally strikes the imagination, and engages the
affection of mankind, as the right of property. And yet there are very few, that
will give themselves the trouble to consider the origin and foundation of [prop-
erty]. Pleased as we are with the possession, we seem afraid to look back . . .
as if fearful . . .
william blackstone 2

William Blackstone insisted that property, and therefore market relations, are
driven by desire. This eroticism should not surprise us. Etymology tells us that
money is a woman. The word “money” derives from Juno Moneta. Juno,
queen of heaven, was the Roman goddess of womanhood, the personification
of the feminine. Her title, “Moneta,” means “she who reminds and warns.”
The word “money” reminds us that the feminine is a reminder—a warning.
Nevertheless, the erotic nature of law and markets is deeply repressed in
American culture. We turn away from the primal scene of the passionate ori-
gins of markets with the same embarrassment and shame we experience
when we contemplate our own origins in the parental bed. The ideal of the
perfect market, like the idea of our own conception, is “real” in the Lacan-
ian sense. To look back, to confront the real, is not merely frightening—it is
deadly. And yet there is nothing we desire more. To be a subject is to be
driven by desire. Subjectivity is the triumph of Venus.
In recent years, the study of markets in American jurisprudence has been
expropriated by the self-styled “law-and-economics” movement, the dominant
discourse of private law in America’s most elite law schools. One of its appeals
is that it gives an aura of scientific certainty and objectivity to legal analysis and
normative policymaking. Despite its claim to scientific status, however, this
scholarship is almost entirely devoid of methodological discussion and inter-

1. Gilles Deleuze, Coldness and Cruelty, Masochism 9, 85 ( Jean McNeil trans., 1971).
2. William Blackstone, Two Commentaries on the Laws of England 2 (A. W. Brian Simpson
intro., 1979).

1
2 introduction

nal criticism, as though these matters were uncontroversial. Moreover, the

practitioners of the “science” of law-and-economics rarely engage in empirical
research. Instead, law-and-economics consists of deductions from dogmatic
principles. Consequently, most law-and-economic proposals are classic cases of
GIGO (garbage in—garbage out): nonfalsified theories are applied to
untested assumptions in order to produce nonverifiable conclusions. Law-and-
economics has all of the characteristics of a cult. Nevertheless, although it is
frequently attacked in law reviews, particularly from scholars self-identified
with the critical left, law-and-economics has not only prevailed; it has thrived.
One reason for this is that much of this opposition to law-and-economics has
taken the equally unsatisfactory form of romanticism, a viewpoint that unwit-
tingly repeats the errors of utilitarianism. In this book, I argue that there are
powerful psychoanalytic reasons why law-and-economics, as well as the roman-
tic critique, continue to be so seductive despite their failures.
The legal economist sees market participants, and therefore the market, as
essentially rational. Market participants know their preferences and take appro-
priate action reasonably calculated to maximize their atomistic, individualistic
well-being conceived in terms of either “utility” or “wealth.” Markets are
deemed efficient insofar as they enable rational economic actors collectively to
achieve their goals. Although individual preferences may be irrational, in the
sense of pregiven and subjective, homo oeconomicus is rational, single-minded,
predictable, and objective in the pursuit of these irrational preferences.
The romantic sees the economic vision of human nature as fundamentally
flawed because it ignores, or de-emphasizes, “higher” aspects of human
nature, such as spirituality, empathy, altruism, and so on. Surprisingly, these
“New Age” neoromantics who emphasize the supposedly irrational aspect of
human nature tend to confirm the utilitarian analysis of the market as cold
and rational. Eroticism and other forms of “irrationality” are therefore seen
as essentially different from and usually superior to economic relations.
Their critique, however, remains impotent, precisely because it accepts a
fundamental tenet of the approach they claim to condemn.
Utilitarianism and romanticism are mirror images of each other. They val-
orize opposites but fundamentally agree. They draw diametrically opposed
conclusions from a shared erroneous assumption about law and market rela-
tions. They both assume that market relations are inherently cold, atomistic,
and “rational.” The utilitarian believes that “rationality” is the true essence
of human nature, and therefore analyzes all human relations by analogy with
the market. The romantic, in contrast, believes that human nature is essen-
tially “irrational” in one way or another. Therefore, the market is an aberra-
tion. At best, it is a necessary evil tolerated only insofar as it is limited in
scope, as a means to provide basic physical needs. At worst it is a perversion
that threatens to undermine all human relations and frustrate the achieve-
ment of personhood.
 introduction 3

This book on utilitarianism and romanticism is an encounter with

Hegelian philosophy and Lacanian psychoanalysis, and an exploration of the
erotics of law and the market using metaphors drawn from classical mythol-
ogy. I argue that the utilitarian-romantic analysis of the law and the market
is incorrect for two interrelated reasons. First, Hegelian philosophy shows us
that, far from being anti-erotic, market relations are the most basic and prim-
itive from of eroticism. Meanwhile, Lacanian theory reveals that the femi-
nine is the primal commodity; money is Juno Moneta. Consequently, the util-
itarian is correct in seeing a fundamental similarity between erotic and
economic behavior, but wrong in thinking that the former can be reduced
to the latter. Rather, it is the latter that can be explained in terms of the for-
mer. Venus triumphs over the market. To put this another way, both the util-
itarian and the romantic see desire as external to law. In contradistinction,
the Hegelian and Lacanian, following a Western philosophic tradition reach-
ing back to Aristotelian virtue ethics, posit that law operates at the level of
desire.
Second, the rational-irrational dichotomy adopted equally by utilitarians
and romantics is incompetent. Dialectical reasoning reveals that reason and
passion are not inalterably opposed, but rather two aspects of the same con-
cept. It is true that human beings are rational, as argued by utilitarians. But
rationality represents only the potential of human nature. This potential must
be actualized through desire. Consequently, desire drives human behavior,
as romantics intuit. Through reason, the abstract person comes to understand
that she can only actualize herself through recognition by other subjects—
through love. Therefore, she rationally desires others: logic tells her to give
way to passion. This does not imply, however, that the romantic is correct in
assuming that passion is superior to logic. Rather, even at the ecstatic moment
of jouissance, the subject must preserve a moment of the rationality that makes
desire possible, or submerge her personhood in the abyss.
My goal in this book is to reveal the internal, but repressed, logic of certain
legal and economic concepts. I believe that the law-and-economics paradigm3
drawn from classical price theory is decadent; in the terminology of Imre
Lakatos, it is a degenerating research program.4 I show that several attempts

3. Thomas S. Kuhn, The Structure of Scientific Revolutions (2d. ed. 1970).

4. Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in Criticism
and the Growth of Knowledge 91, 118 (Imre Lakatos & Alan Musgrave eds., 1970). Build-
ing on Karl Popper’s theory of sophisticated falsification, Lakatos argues that scientists do not
reject a scientific theory merely because of the empirical observation of inconsistent data.
Rather they modify the theory by adopting a “protective belt” of auxiliary hypotheses designed
to explain away the apparent anomaly. Eventually, the paradigm (research program) degener-
ates as the protective belt becomes thicker and thicker, and the core paradigm begins to shrink
until it actually starts explaining less. Jeanne L. Schroeder, Abduction From the Seraglio: Feminist
Methodologies and the Logic of Imagination, 70 Tex. L. Rev. 109, 168–71 (1991).
4 introduction

to replace the economic paradigm are mere romanticism—utilitarianism’s

polarized twin. Romanticism in fact adopts utilitarianism’s paradigmatic
assumptions and merely rejects the utilitarian conclusions drawn from them.
I attempt not only to identify the flaws of the research program that are the
source of its degeneration, but also to explain why so many legal academics
nevertheless continue to cling to the research program despite its flaws.
This book has two different aspects, designed for two different audiences.
Part of each chapter explores a concept of legal or economic theory on its
own terms in the language of lawyers and economists. The purpose of this is
to reveal the internal logic and implicit paradoxes of these concepts, so that
lawyers can better understand and use them. I then suggest that an under-
standing of these concepts can be further enriched by adding an external cri-
tique drawn from Lacanian-Hegelian analysis. I argue that Lacanian psy-
choanalysis can help explain why the current paradigm is so alluring despite
its degeneracy.
The former discussion should be of immediate interest to legal scholars
working within a traditional framework. I hope that the latter introduction
to speculative theory may convince at least some readers that such theory is
not merely interesting in and of itself, but potentially useful for legal and eco-
nomic analysis. Indeed, I have found it invaluable as an analytic tool, not
merely in my teaching and doctrinal scholarship, but in the practice of
finance law. In contrast, my discussion of the relationship between Lacan
and Hegel is likely initially to interest feminists and others engaged in criti-
cal theory. I hope that my discussion of law and economics may convince at
least some of these readers that these disciplines are not merely useful tools
of analysis, but are themselves worthy subjects for serious philosophical and
psychological examination.
The one thing this book does not do is make specific policy recommen-
dations for interpreting or changing the law. This book is a sustained critique
of the consequentialist, policy-oriented turn in American legal scholarship.
As a practicing lawyer and a legal scholar, I obviously do not oppose prag-
matic advice or policy making in principle. Indeed, I on occasion engage in
doctrinal scholarship on commercial law, and I discussed certain legal doc-
trines in my earlier book, The Vestal and the Fasces: Hegel, Lacan, Property and
the Fasces.5 One of the primary points I wish to make here, however, is that
legal economists on the one hand and romantic legal scholars on the other
purport to derive policy advice from theories that are analytically insup-
portable. If one wants to use theory to give advice, as these scholars do, one
should first be sure of the validity and internal coherence of one’s theory.
Moreover, following Hegel, I believe that theory can explain the under-
lying logic of social systems only at a very high level of abstraction. Specific

5. University of California Press (1998).

 introduction 5

policy recommendations require practical reasoning.6 Consequently, prag-

matism is the necessary corollary to Hegelian idealism. Although it has
become fashionable for both legal economists and romantics to character-
ize themselves as pragmatists, in fact they rarely engage in the type of
detailed empirical research that would be necessary in order to support
their recommendations. Rather, they base their recommendations on
unsupported assumptions. Consequently, insofar as I have a policy recom-
mendation, it is that legal scholars should be more modest in making policy
recommendations.
Finally, and most importantly, my approach towards critical scholarship
springs from discourse theory.7 In Lacanian terminology, policy-oriented
scholarship, including law-and-economics, speaks within the “university’s dis-
course.”8 In this discourse, the speaker claims the position of the expert with
superior knowledge and addresses the goals and desires of the law. Accord-
ing to Lacan, however, the purpose of this type of scholarship is not a sincere
search for truth. Rather, the hidden truth of the university’s discourse is that
it is a veiled attempt to justify the status quo and exercise power over others.
That is, policy scholarship views law from the position of the governor. The
product of the university’s discourse is the subjects who are subjected to and
manipulated by the law in order to serve the expert’s purposes.
In contrast, the critical scholar, like the practicing lawyer, speaks within
the “hysteric’s discourse”—the “other side” or reverse of the university’s dis-

6. See G. W. F. Hegel, Elements of the Philosophy of Right 21, 81 (Allen W. Wood ed.
& H. B. Nisbet trans., 1991). As such, Hegelianism, properly understood, sails a middle ground
between the pro- and anti-theory movements of contemporary legal academia.
7. For an extended application of Lacanian discourse theory to law, see Jeanne L. Schroeder,
The Four Discourses of Law: A Lacanian Analysis of Legal Practice and Scholarship, 79 Tex. L. Rev. 15
(2000).
In his seventeenth seminar, entitled The Other Side of Psychoanalysis, Lacan proposes that
there are at least four discourses, which may be graphically represented as:
agent → other
truth product / loss
Bruce Fink, The Lacanian Subject: Between Language and Jouissance 131 (1995). The
upper left corner represents the agent who speaks in the discourse. The upper right corner is
the other, that which is addressed or interrogated in the discourse. The arrow between them
indicates the relationship between the two. Beneath and barred from the agent is his hidden
truth. Beneath the other is that which is intentionally or unintentionally produced in the dis-
course. Four terms rotate through these four positions, represented by the mathemes S1 (the
master signifier), S2 (knowledge, or the signifying chain), a (the objet petit a, or object cause of
desire), and /S (split subject). Id. at 123. The meaning of these terms should become apparent
in the following discussions.
8. The university’s discourse is graphically represented as:
S2 → a
 
S1 /S
6 introduction

course.9 The speaker does not position herself as an expert, but rather iden-
tifies with the alienated, split subject produced by the university’s discourse.
The speaker views law from the position of the governed, not the governor.
The hidden truth of this position is not power, as in the university’s dis-
course, but the subjective desires and pain of the speaker herself and of those
with whom the speaker identifies. The hysteric’s discourse is addressed not
to the law’s goals, but to its power—the hidden truth of the university’s dis-
course. If successful, the result of a hysteric’s discourse is knowledge. This is
not, however, the knowledge claimed by the expert who wishes to tell other
people what to do in order to achieve society’s “objective” purposes. Rather,
it is an internal self-knowledge of the speaking subject concerning her rela-
tionship to the law and how to use or change the law for her own subjective
purposes.

9. The hysteric’s discourse is graphically represented as:

/S → S1
 
a S2
Note that the hysteric’s discourse is produced by rotating the university’s discourse 180 degrees
clockwise. I present this analysis in detail in Jeanne L. Schroeder; The Stumbling Block, Freedom,
Rationality and Legal Scholarship, 44 Wm. & Mary Law Review 263 (2002).
 Chapter 1

Pandora’s Amphora
The Eroticism of Contract and Gift 1

PROLOGUE: THE MYTH OF A LLGIFTS

Almost three thousand years ago, Hesiod warned against gifts.2
In ancient times, the titan Forethought (Prometheus) taught mankind
how to cheat the gods out of the profits of sacrifice.3 Later, when Zeus pun-
ished man by taking away fire,4 Forethought once again cheated the gods, by
restoring fire to man. Zeus, seeking a more effective punishment, decided
to give men a gift “in which they will all delight as they embrace their own
misfortune.”5
Zeus ordered Hephaestus, the divine smith, to forge the first woman. The
goddesses bestowed her with their finest attributes—skill in crafts and weav-

1. An earlier version of this chapter was published as Jeanne L. Schroeder, Pandora’s

Amphora: The Ambiguity of Gift, 46 UCLA L. Rev. 815 (1999).
2. My account is based primarily on Hesiod’s. See Hesiod, Theogony and Works and Days
ll. 47–105, at 38–40, ll. 570–600, at 20–21 (M. L. West trans., Oxford Univ. Press 1988).
3. At the first sacrifice, Forethought divided the carcass of the sacrificial animal into two
parts. Zeus agreed that his choice would be the gods’ portion for all time. Forethought cleverly
placed all of the meat and edible organs in one pile and covered it with the unappealing skin
and stomach. The other pile consisted of the bones, lungs, and other worthless bits, covered with
glistening fat. Although Hesiod incongruously insists that Zeus saw through the ruse, the story
clearly indicates the opposite: Zeus chose the inedible pile. From that day on, the sacrifice was
a ritual feast in which the worshippers ate mankind’s portion. Bound by Zeus’s foolish bargain,
the gods had to be satisfied with the scent of burning fat.
4. Zeus was so furious that he deprived mankind of fire so that we could not cook our por-
tion of the sacrificial victim and thereby benefit from Forethought’s deceit.
5. Id. ll. 58–59, at 38. Forethought was punished by being chained to a mountain, where an
eagle plucked out his liver. Being immortal, Forethought grew a new liver each day. He was
eventually freed by Heracles.

7
8 pandora’s amphora

ing, charm, grace, beauty, fragrance, as well as clothes and jewelry. But there
also were other, less welcome gifts. Aphrodite’s gift of charm came laden
with “painful yearning and consuming obsession.”6 Hermes gave her the
mind and knavish nature of a dog7 and “fashioned lies and wily pretenses”8
in her breast.
The gods named the woman Allgifts (Pandora) because she was the gift of
all the gods, “a calamity for men,”9 a “precipitous, unmanageable trap.”10 They
offered her to Forethought as a wife. Understanding the danger of gifts, Fore-
thought refused her and warned his brother, Afterthought (Epimetheus),
“never to accept a gift from Olympian Zeus but to send it back lest some afflic-
tion befall mortals.”11 Afterthought paid no heed to this advice and accepted
Allgifts. From this union “descended the female sex, a great affliction to mor-
tals as they dwell with their husbands—no fit partners for accursed Poverty, but
only for Plenty.”12
Additional divine gifts compounded these woes. Allgifts was given an
amphora, or storage jar, as her trousseau.13 When Allgifts opened the
amphora, out flew “grievous sicknesses that are deadly to men,” “grim cares,”
and “countless troubles.”14
Hesiod ostensibly presents the gift of Pandora and her amphora as an
unmitigated calamity. A careful reading, however, reveals that the nature of
the gift is ambiguous. First, although this tragic sequence of events was exac-
erbated by Prometheus’s gift of fire, fire itself has been a great boon to man-
kind. Second, although Pandora is described as lying and knavish, she was
not merely charming, graceful, and beautiful, but also highly skilled. Indeed,
the gods themselves “were seized with wonder” when they saw her.15

6. Id. ll. 65–66, at 39.

7. See id. ll. 66–69, at 39. This strange detail reflects the fact that Hermes’ sobriquet was
“Killer of Dogs.” This odd title is explained by the fact that Hermes was not only the messenger
of the gods but also the god of thieves. As both divine thief and mailman, he was the bane of
watchdogs. Presumably, Hermes used the soul of one of his canine victims to animate Allgifts.
8. Id. ll. 77–78, at 39.
9. Id. ll. 81–83, at 39.
10. Id. ll. 84–85, at 39.
11. Id. ll. 89–91, at 39.
12. Id. ll. 591–93, at 20.
13. We can thank Erasmus for the familiar mistranslation “Pandora’s box.” See M. L. West,
Introduction to Theogony and Works and Days, supra note 2, at vii, xiv.
14. Hesiod, supra note 2, ll. 92–94, at 39–40. Although Pandora was the mother of all man-
kind and brought mortality to the world, one should not Christianize this myth by making Pan-
dora into a form of Eve. Eve was forbidden to eat of the Tree of the Knowledge of Good and Evil
and was driven out of the Garden for her sins of disobedience and pride. Pandora was never for-
bidden from opening the amphora. Rather, the jar was given as a wedding gift with the expec-
tation that it would be opened.
15. Id. l. 589, at 20.
 pandora’s amphora 9

Third, while Hesiod describes women as afflictions,16 he reluctantly

admits that “a good wife who is sound and sensible” will save a man from the
misery of a lonely old age and assure that upon his death his wealth will
descend to his children, and that his distant relatives will not be laughing
heirs.17 Moreover, Hesiod’s inference that Pandora was an unproductive
burden contradicts his earlier statement that she had been instructed in
crafts and weaving by Athena.
Fourth, by making Pandora literally a bitch, Hesiod intentionally invoked
the cunning and voracious nature of dogs. But he also unwittingly implied
that woman is the most loving and faithful of all creatures—man’s best
friend.
Finally and most importantly, although Hesiod blames Pandora for releas-
ing all of mankind’s ills, she must be thanked for preserving our greatest
treasure. “Hope remained there inside in her secure dwelling, under the lip
of the jar, and did not fly out, because the woman put the lid back in time.”18
In order for mankind to obtain the inestimable gift of hope, it was necessary
for us first to experience the pain that makes hope necessary. The feminine
is both the cause of desire and its object.
The lesson of this myth is that gifts are ambiguous. The gifts of the gods
were given neither out of altruism nor out of affection. They were an aggres-
sive, punitive attempt to reestablish godly superiority over mankind. Never-
theless, despite divine malice, the gifts brought great joy in addition to great
suffering. In any event, the relationship established by such divine gifts can
only be that of hierarchy. Men can curse or bless the Greek gods, submit to
them or rebel, but not love them as equals or aspire to become like them.
In this chapter, I explore the nature of gift. The scope of this chapter is
very specific. Much scholarship on gift promiscuously lumps together a vari-
ety of gratuitous transfers—including personal gifts, testamentary bequests,
and public charity—along with a variety of altruistic behavior, such as “dona-
tions” of blood, organs, and time. This approach assumes, but does not
demonstrate, a shared essence among these different practices, customs, and
institutions. This can lead to flawed conclusions.
I believe, in contradistinction, that each of these different forms of
human relations must be analyzed on its own terms. Only then can we

16. He compares women to drones idly consuming the fruits of productive bee-men’s
labors. See id. ll. 593–610, at 20–21. Science, of course, reverses Hesiod’s sexual stereotype.
Worker bees are all female; the drones are the only males in the hive.
17. See id. ll. 611–16, at 21.
18. Id. ll. 96–98, at 39–40. Hesiod tries to rob Pandora of her well-deserved credit by stating
that she closed the jar “by the providence of Zeus.” Id. ll. 96–99, at 39–40. But by this standard,
she should also be acquitted of responsibility for releasing the ills when she innocently opened
the wedding gift given to her by the deceitful gods.
10 pandora’s amphora

identify essential similarities and differences, and make appropriate moral,

ethical, political, and legal judgments. Hegel argues that the particular
altruism that characterizes family relationships must be distinguished from
the universal altruism that characterizes the relationship of citizens in the
modern constitutional state.19 Moreover, the judgment that particular and
universal altruism are appropriately allocated to the family and the state,
respectively, in no way suggests that the particular egoism of the state of
nature or the universal egoism of the market (i.e., civil society) should be dis-
paraged, so long as they are relegated to appropriate spheres of society.
Rather, egoism complements altruism as an equally true and necessary
moment of human nature.
Consequently, I limit the scope of this chapter in two ways. First, I only
analyze one category of gratuitous transfers: “gift,” as understood in the
everyday, literal sense of one identified individual personally giving an
object of desire directly to another identified individual. I do not use the
term expansively or metaphorically to include all forms of altruism, such as
the care given by the nurse to the afflicted or the sacrifice made by the sol-
dier for his country. Nor do I refer to anonymous or public charity. Indeed,
I challenge the unexamined assumptions that gifts are always, or even usu-
ally, altruistic in nature.
Second, I only analyze the nature of gift and do not set forth an exegesis,
analysis, or critique of the existing substantive law of gift or a comprehensive
survey of the considerable literature on the subject.20 I only mention in pass-
ing one of the most important substantive legal issues governing gifts that is
discussed in the literature—namely, the different treatment of completed
gifts (donative transfers) and executory gifts (gratuitous promises). Although
I offer a principled argument concerning another closely related and fre-
quently debated issue (whether there is a meaningful distinction between
contractual and gratuitous promises), I suggest neither a simple test for char-
acterizing specific promises as an empirical matter nor any other specific leg-
islative proposal.
As a Hegelian, I do not believe that philosophy alone can legitimately be
used to justify positive legislation. Positive law is the bailiwick of practical, not
logical, reasoning.21 This is necessitated by the Hegelian doctrine that the

19. See Shlomo Avineri, Hegel’s Theory of the Modern State 134 (1972).
20. For a useful survey of the copious literature on the law of gift, see Melvin Aron Eisenberg,
The World of Contract and the World of Gift, 85 Cal. L. Rev. 821 (1997).
21. See G. W. F. Hegel, Elements of the Philosophy of Right 41, 81 (Allen W. Wood ed.
& H. B. Nisbet trans., Cambridge Univ. Press 1991)[hereinafter, Hegel, The Philosophy of
Right]. A good example of confusing the logical process of jurisprudential analysis with the
pragmatic problem of rule making can be seen in Jane Baron’s analysis of gifts. In her comment
on Carol M. Rose’s paper, Giving, Trading, Thieving, and Trusting: How and Why Gifts Become
Exchanges, and (More Importantly) Vice Versa, 44 Fla. L. Rev. 295 (1992), Baron concludes from
 pandora’s amphora 11

essence of human nature is radical freedom. If determinative logic dictated

all aspects of human behavior, then we would be bound, not free.22 The orga-
nization of human relations must therefore always reflect a fundamental
moment of subjectivity—i.e., judgment. This means that idealism always
requires pragmatism as its corollary.
Philosophy, however, is by no means irrelevant to law. Indeed, it serves a
crucial function. Philosophy is a means of identifying and analyzing those
abstract moral and ethical ideals—such as the nature of human personhood,
freedom, and relationship—that the lawyer, legislator, and judge need to
consider in making pragmatic decisions as to the concrete legal rules that
are needed to produce a just society.
Consequently, my goal is to set forth a coherent account of the roles
played by gift and contract in the creation of legal and psychoanalytic sub-
jectivity and the creation of the regime of abstract right (i.e., private law, the
market). I argue that subjectivity, contract, and law are mutually constitut-
ing. Gift is a failed attempt at the creation of legal subjectivity. Gift is there-
fore of questionable legal status in the private-law regime of abstract right,
although it might have other, nonlegal justifications in the regimes of moral-
ity and ethics and the institutions of the family and the state. This analysis
reveals that there is, therefore, some implicit philosophic logic underlying
American law’s traditional solicitude towards contract and suspicion of gift.

THE NATURE OF GIFT

The average person probably thinks of gifts as untrammeled good. Many
legal theorists adopt this prejudice and assume that gift relationships are

the observation that empirical relations often cannot be neatly fit into the two categories of gift
and contracts, but fall somewhere in between, that the categories themselves are incoherent.
Jane B. Baron, Do We Believe in Generosity?: Reflections on the Relationship Between Gifts and
Exchanges, 44 U. Fla. L. Rev. 355, 357 (1992) [hereinafter, Baron, Generosity]. The implication
she seems to draw from this is that gratuitous promises should be enforced like contract. See
generally Jane Baron, Gifts, Bargains, and Form, 64 Ind. L. J. 155 (1988–1989) [hereinafter,
Baron, Gifts].
To be more accurate, Baron does not clearly state her conclusions. I infer that Baron believes
that gratuitous promises should be enforceable based on her argument that gift and contract
share the same essential aspect of exchange, her assertion that attempts to justify law’s differ-
ential treatment of contract and gift are unsuccessful, and her conclusion that for society not
to enforce gratuitous promises would be a denigration of generosity.
Baron incorrectly suggests that the fact that the distinction between gift and contract is quan-
titative as an empirical matter (i.e., concrete real-life events fall over a continuum between
abstract legal categories) means that the two categories are not qualitatively different as a logi-
cal matter. Lawyers and judges often deal with the practical problems of line drawing and the
legal characterization of the messy facts of life.
22. See Richard Hyland, Hegel: A User’s Manual, 10 Cardozo L. Rev. 1735, 1741 (1989).
Exploring the Variety of Random
Documents with Different Content
 Education - Student Handbook
First 2025 - Division

Prepared by: Dr. Williams

Date: August 12, 2025

Introduction 1: Best practices and recommendations

Learning Objective 1: Case studies and real-world applications
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 1: Diagram/Chart/Graph]
Learning Objective 2: Experimental procedures and results
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Learning Objective 3: Current trends and future directions
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Learning Objective 4: Research findings and conclusions
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Learning Objective 5: Fundamental concepts and principles
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Important: Assessment criteria and rubrics
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
[Figure 6: Diagram/Chart/Graph]
Example 6: Experimental procedures and results
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Ethical considerations and implications
• Key terms and definitions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 8: Diagram/Chart/Graph]
Remember: Interdisciplinary approaches
• Key terms and definitions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Important: Key terms and definitions
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Conclusion 2: Learning outcomes and objectives
Note: Interdisciplinary approaches
• Statistical analysis and interpretation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 11: Diagram/Chart/Graph]
Note: Theoretical framework and methodology
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Key Concept: Statistical analysis and interpretation
• Theoretical framework and methodology
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 13: Diagram/Chart/Graph]
Example 13: Case studies and real-world applications
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Example 14: Literature review and discussion
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Case studies and real-world applications
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Assessment criteria and rubrics
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Important: Problem-solving strategies and techniques
• Statistical analysis and interpretation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Critical analysis and evaluation
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Research findings and conclusions
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Summary 3: Statistical analysis and interpretation
Practice Problem 20: Statistical analysis and interpretation
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Practical applications and examples
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 22: Theoretical framework and methodology
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Practice Problem 23: Critical analysis and evaluation
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Definition: Practical applications and examples
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Remember: Research findings and conclusions
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Important: Practical applications and examples
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Important: Historical development and evolution
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 28: Diagram/Chart/Graph]
Example 28: Best practices and recommendations
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Theoretical framework and methodology
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Results 4: Problem-solving strategies and techniques
Note: Experimental procedures and results
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Definition: Literature review and discussion
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 32: Diagram/Chart/Graph]
Practice Problem 32: Literature review and discussion
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Important: Problem-solving strategies and techniques
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Statistical analysis and interpretation
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Statistical analysis and interpretation
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 36: Diagram/Chart/Graph]
Practice Problem 36: Case studies and real-world applications
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 37: Fundamental concepts and principles
• Comparative analysis and synthesis
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Assessment criteria and rubrics
• Statistical analysis and interpretation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Note: Case studies and real-world applications
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Module 5: Theoretical framework and methodology
Remember: Case studies and real-world applications
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Key Concept: Literature review and discussion
• Theoretical framework and methodology
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Practical applications and examples
• Comparative analysis and synthesis
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Remember: Practical applications and examples
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 44: Diagram/Chart/Graph]
Key Concept: Literature review and discussion
• Study tips and learning strategies
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
[Figure 45: Diagram/Chart/Graph]
Example 45: Case studies and real-world applications
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 46: Ethical considerations and implications
• Study tips and learning strategies
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 47: Diagram/Chart/Graph]
Remember: Literature review and discussion
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Comparative analysis and synthesis
• Assessment criteria and rubrics
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Definition: Assessment criteria and rubrics
• Comparative analysis and synthesis
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Review 6: Best practices and recommendations
Example 50: Ethical considerations and implications
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Problem-solving strategies and techniques
• Theoretical framework and methodology
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 52: Diagram/Chart/Graph]
Example 52: Theoretical framework and methodology
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Definition: Best practices and recommendations
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 54: Diagram/Chart/Graph]
Key Concept: Key terms and definitions
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Definition: Ethical considerations and implications
• Comparative analysis and synthesis
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Practice Problem 56: Interdisciplinary approaches
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
[Figure 57: Diagram/Chart/Graph]
Remember: Assessment criteria and rubrics
• Fundamental concepts and principles
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Remember: Case studies and real-world applications
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Key Concept: Current trends and future directions
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Chapter 7: Study tips and learning strategies
Key Concept: Current trends and future directions
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Example 61: Critical analysis and evaluation
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 62: Diagram/Chart/Graph]
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