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Benjamin N. Cardozo School of LawJacob Burns Institute for Advanced Legal Studies

2007Working Paper No. 200

Psychoanalysis as the Jurisprudenceof Freedom

Jeanne L. SchroederProfessor of Law

Benjamin N. Cardozo School of Law

55 Fifth Avenue

New York, NY 10003

United States(212) 790-0211 (Phone)

(212) 790-0205(Fax)schroedr@yu.edu

David Gray CarlsonProfessor of Law

Benjamin N. Cardozo School of Law

55 Fifth Avenue

New York, NY 10003

United States

(212) 790-0210 (Phone)(212) 790-0205(Fax)dcarlson@yu.edu

This paper can be downloaded free of charge from the Social Science Research Network at

http://ssrn.comb /abstract=1011175

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1By psychoanalysis, we refer not to clinical practice, but Lacanian theory as read by Slavojiek and the Slovenian school as following the Continental, speculative philosophical tradition.

Psychoanalysis as the Jurisprudence of Freedom

Jeanne L. Schroeder & David Gray Carlson

What is the future of legal philosophy? No doubt it has many. But we are betting that

jurisprudence will gravitate towardsfreedom. Freedom, the attribute of the human subject, haslargely been absent from legal philosophy. This is a lack that psychoanalytic jurisprudence aims tocorrect.

The Psychoanalytic Subject

All liberal theories start with some intuition of the free, autonomous individual. In contrast,psychoanalysis views the subjects definition as theproblem of philosophy.

For psychoanalysis, as reformulated by Jacques Lacan,1personality and freedom cannot existin any empirical or hypothetical state of nature because nature is unfree bound by iron-clad lawsof cause and effect. Personality and freedom are artificial creations hard-won achievements.Subjectivity the capacity to bear duties and rights is a stage in this struggle.

What then is the subject? As David Hume argued, the subject is not an affirmativesubstance, but a unity of the memory of perceptions. (Hume 1874: 252) As such it is not theperceptions but a negativity, the force holding them together. Negativity by its nature cannot beperceived directly, only inferred from what has vanished. Lacan expresses this through his symbol$: the barred or split subject. In Simon Critchleys formulation the subject is not anindividual, but a dividiual. (Critchley 2007: 11)

Dynamic Jurisprudence

Because of its negativity, subjectivity is the active principle the capacity for freedom asspontaneity. Freedom must, however, be given positive existence. This can only be done throughlaw. Subjectivity is a living breathing contradiction. Its introduction into jurisprudence makes thelatter dynamic. In comparison, competing jurisprudences are static in nature. For them, law is afinite, fixed set for which freedom is either the enemy or irrelevant.

For utilitarianism, freedom threatens the possibility of social policy. Policy requires thebehavior of those subjected to law to bepredictable manipulable through reward and punishment.Values become preferences; rationality, ends-means reasoning. Utilitarianism degrades the humansubject to animality. (Badiou 2002: 10-11) The individual is enslaved by inclination (pathology).To Richard Posner it is not a solecism to speak of a rational frog. (Posner 1992: 17) But freedom,to psychoanalysis, ispreciselythe uncaused. As Kant emphasized, freedom is the stumbling blockon which all empiricism, including utilitarianism, founders. (Kant 1900: 18)

Positivism is also a static jurisprudence. In positivism, the subjects condition improves,

rising to irrelevance. As positivisms project is description, the subject simply observes anddescribes. It adds nothing to the object it apperceives. Once law is described, positivism cant speakto laws normative worth because law and morality are conceived as separate.

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2Lacan does not adopt a simplistic distinction between gender (the social) and sex (thebiological), which naively assumes we can distinguish where biology gives out and the social starts.As conscious persons, we have no direct access to our biological reality but always interpret itthrough the symbolic (words) and the imaginary (imagery). Nevertheless, our understanding ofsexuality isfiguredby anatomy (hence his terminology).

The Symbolic and Sexuality

Psychoanalysis challenges the ontology of certitude of utilitarianism and positivism. Lacanlocates law in the social realm called the symbolic. The symbolic, like the subject, is in a constantstate of contradiction and, therefore, dynamic. This is a hard truth to bear. The two ways ofconfronting it are denial and acceptance. The former is the masculine and the latter, thefeminine

position.These Lacanian terms do not refer to anatomically male and female persons. Rather they

name two positions that one can take with respect to completeness and openness, commensurabiityand incommensurability, metaphor and metonymy. As an empirical matter, anatomical males mightbe more likely be drawn to the masculine position than females, and vice versa.2 It is, however,impossible for anyone to be purely man or woman each position requires the other.

In developing these terms, Lacan upends traditional stereotypes. The masculine is not thenorm, with the feminine as exception. Subjectivity is characteristically feminine; men are, ineffect, failed women. (Ragland-Sullivan 1989: 75; iek 1989:75) Moreover, the feminine isthe active principle, and the masculine the passive.

The masculine position is liberal individuality: Man imagines both he and law are, or couldform, correlative and complete wholes. This is masculine because the individual claims to havethe phallus. Here, phallus refers not to male anatomy, but is the signifier for subjectivity. Byclaiming to have subjectivity, man suppresses essential negativity and fantasizes he has anaffirmative, fixed self. Man is passive because like Harts officials he seeks to be completelyconstrained by law. But, subjectivity is not a fixed thing in Lacanian terms, it does not exist inthe rigorous way Hegel defines existence. If subjectivity could be so captured, it would not be free.

The feminine position of being the phallus is completely diverse from the masculine.Woman accepts that no one could havethe phallus because subjectivity is a process, a doing not abeing. In Lacanian terms, it is an insistence, as opposed to an existence. Woman embodies thephallus (subjectivity) by acting.

The feminine and masculine are not opposites, like yin and yang. If they were, they couldfit together harmoniously. Subjectivity and the symbolic would be closed and whole. This ismasculine fantasy.

Rather, the sexes are fundamentally inconsistent. There is no sexual rapport sexualityis an impasse. Lacan calls Woman not whole. (Lacan 1998: 72-74) Subjectivity can not bewholly circumscribed within law some aspect of personality escapes. This does not mean thatmasculinity is the legalistic aspect of personality, adopting an ethic of justice as opposed to afeminine one of care. This different voice theory adopts this masculine yin-yang fantasy ofsexuality. Although not wholly within the symbolic, Woman is notnot at all there. She is therein full. But there is something more. (Ibid: 74) She partially escapes law because law is notclosed. Law, like Woman, is not whole.

Moreover, the sexual impasse is not limited to the non-relation of masculine and femininepersons, but characterizes the entire symbolic order. Consequently, law is differentfrommorality,

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but the two like the sexes are not opposites and can never be separated. Each depends on theother even as each is incompatible with the other.

Psychoanalysis offers a possibility of authentic feminist jurisprudence. Mainstream feministlegal theory cant get beyond yin-yang essentialism, either extolling the stereotypical femininedifferent voice or exalting masculine power as a program for empirical women. In contrast,

psychoanalysis presents sexual difference as a tension within subjectivity and law, a becoming thatcan never close.

Discourses

Psychoanalytic feminism depends upon, and therefore can not banish or subordinate, themasculine to the feminine. The masculine fantasy of commensuration is the condition for thepossibility of meaning and communication. Accordingly, psychoanalysis sees at least fourdiscourses of the symbolic two masculine and two feminine.

The first masculine discourse is that of the master,which we identify with positivism.Lacans masters discourse is inspired by Hegels master-slave dialectic. In this discourse, law isobeyed not because it is just, but just because it is law. Law exists, H.L.A. Hart says, when officials

taking the internal position recognize laws as rules to be obeyed. The official, like Hegels slave,does not obey out of fear. Rather, the official decides to erase her personal discretion so that lawalone can enjoy sovereign sway and masterdom. Psychoanalysis agrees that positivism captures anecessary, but insufficient, element of laws reality.

Lacan agrees that, in the masters positivistic discourse, law must be divorced frommorality, understood as the ought. The official applies the rule recognized as law regardlessof what it should be. Consequently, the master and law are idiotic. They do not deservetheirposition because of wisdom, morality or any other reason. The master rules because the slaverecognizes his status. Similarly, the official obeys the law because she recognizes its status throughan appropriate rule. Of course, any empirical master might be wise, any positive law, just, but thisis accidental. Any substantive justification for mastery makes it contingent, not absolute.

This leaves an absence a gap. Why should the master be master? Why should law be law?

Into this gap rushes the second masculine discourse the universitys. Unlike the master,the university claims to deserveits privileged position because of superior knowledge. Despite itsname, this discourse is not limited to universities (indeed, true science and learning require thefeminine discourses). The universitys discourse refers generally to the concept of expertise.

Experts seek to justify the laws rule. They seek to fill the gap left by the masters discourseby discovering laws purpose. Experts might sometimes criticize an existing legal regime,suggesting utilitarian reform. But nevertheless experts justify a rule if not the current master, thensome other master yet to be. That is, experts apologize either for what positive law is or what itshould be. Utilitarians supposedly consult the preferences of societys members to determine

collective goals such as maximized welfare or wealth. They then propose legal programs to causethose subjected to law to act in a way calculated to achieve this goal. Law is no longer idiotic butrationalized and justified. However, this is at the expense of the freedom of any specific subjectwhose own desire is subordinated to the collectivity.

This being said, psychoanalysis is the critic, not the enemy, of the two masculine legaldiscourses law. Harts concept of law as rules is a necessary moment in all legal regimes. Onecannot have a functioning society if officials can choose to disobey laws with which they disagree.Nor does it oppose expertise or collectivity. The subject is intersubjective she only comes intobeing through symbolic relations. To be a part of society requires one to subordinates oneself to

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societys collective goals society, compromising ones radical freedom.

The complaint of the feminine position is not that the masculine exists, but that it fails torecognize (it represses) the necessary feminine moment of law that is the very condition of itspossibility. Consequently, Lacan supplements the masculine discourses with two feminine ones:the analysts and hysterics. We are in the process of applying these to law identifying the former

with counseling and interpretation and the latter with representation and criticism. We leave thesefor another day.

Morality

Positivism preaches that law and morality (i.e. content) are not necessarily connected.Psychoanalysis and utilitarianism insists the opposite is true. They require each other eventhough they are in inconsistent. This reflects the sexual impasse.

What positive law reports as its finding (law and morality are not necessarily connected) isin fact its aspiration, its program its ought as it were. Positive law strives to banish morality.It aspiresto replace it with legality. Radical freedom (Kantian autonomy) is sublime and monstrous.Legality is a relief; it permits indulgence in pathology without moral qualm. But positive law can

never succeed in its program of banishing morality. Ultimately, empirical subjects must makejudgments about the law.

Law is revealed through Kants notion of autonomy the very heart of morality. Judgment(interpretation generally) requires the judge to suppress her heteronomy and assume the autonomousposition so that whatever the judge recognizes is indeed the law and not some subjective fantasy.

Interpretation requires a free and spontaneous act a feminine moment ofjouissance. It justoccurs. The fact of reason is a crucial, and controversial aspect of Kants thought. To simplify,reason itself can not be identified by reason. Reason turned on itself yields antinomy. Like facts,reason confronts us as being both external and internal to our subjectivity.

After the act of interpretation, the actor retroactively tells a story to explain the decision sothat the act seems reasoned ex ante. Lacan says that truth has the structure of fiction. This does notmean that there is no truth, that we have no access to truth, or that this after-the-fact narration isnecessarily untrue. Quite the contrary, psychoanalysis suggests that rational acts are possible, butthe whole truth is unknowable. Acts are over-determined. There is no way to know whetherrationality or irrationality autonomy or heteronomy really caused the act. Psychoanalysis callsthis the ethics of the real. (Zupani 2000: 143) Any attempt to recognize the truth, anyinterpretation, requires the subjects active participation. To interpret is to tell a story. That thestory is true is within the realm of the possible.

The logic of interpretation is to be distinguished from deduction and induction. C.S. Peirce,following Aristotle, called it abduction the proposing of informed hypotheses. Although thesubject has reason to believe that her abductions are true, the fact that she abduces it is not itself a

guarantor of its truth. Judging reflects the parallex of the sexual impasse. Our feminine sidereminds us of limitation, that all interpretations are subjective and subject to falsification.Nevertheless, our masculine side reminds us time is running out. The judge does not have the luxuryof the post-modern academic to engage in deconstruction. He must eventually, take the leap of faith,pretend to have the phallus and know the law and decide the case. The judge is both masculinelypassive, obeying the laws rules, and femininely active in imposing her own judgment.

This view of interpretation suggests that there can be no ruleof recognition, as Hart asserts,only the shock of recognition, as Dworkin claims. Legal reasoning is the retroactive narrativedesigned to convince others (and ones own self) that the act of interpretation is a genuine and true

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possession, enjoyment and alienation of external things.

Property standing alone, however, is a wrong, not a right. Property is aggressive. Propertyclaims are asserted againstother persons. Property only becomes a right when consummated incontract. In contract, the first proto-subject recognizes the other as owning an object of property.She then offers that person one object (a thing, a promise, money, whatever) in exchange for

another. In doing so, the first recognizes the other as a distinguishable subject who has the right toaccept or reject the offer. If the other subject accepts the offer, she simultaneously also recognizesthe first as a distinguishable subject having the ability to take free action.

Kantian negative freedom was no freedom at all. Positive freedom is bestowed, throughcontract, by the other. No one actualizes freedom alone. So, if Kant has a philosophy of duty, Hegelhas aphilosophy of right. In this account, freedom requires a moment of unfreedom. Although,Hegels is famously a Philosophy of Right,he insists that only the most base persons claim rightsfor themselves. (Hegel 2002: 69)

Once again, psychoanalysis promises no permanent reconciliation. The intersubjectivity ofpsychoanalysis is not reciprocal in the sense of mirror image. To claim a right from another is totreat the other as a means to ones own ends and, therefore, not free. One can only grant rights and

recognize duties to others, in the hope that they might reciprocate. This is why private law is aprimitive form of love in love the lover sees in his beloved more than she is and thereby helps herbecome more than she once was. When reciprocated the beloved changes places, becoming a loverwho also raises her beloved up to a new capacity. Similarly, in private law, the first individual turnsthe second into a subject by granting her the rights of a subject. If the contract is accepted, thesubject returns the favor by bestowing on the first individual the rights of a subject. Eachmomentarily recognizes the other as the means to his or her own ends when they come to anagreement on one specific end (exchange).

Law is, therefore, revealed as the stuff subjectivity is made of and vice versa. But, in thisvision, law is not narrowly defined as the command of the sovereign that the official with theinternal perspective recognizes. For this reason, psychoanalysis relaxes the distinction between lawand other normative systems they are all part and parcel of the intersubjective realm of thesymbolic. Indeed psychoanalysis identifies language itself as the ultimate normative system. Inlanguage the subject positivizes herself. Yet this most intimate part of the private subject is highlypublic. That which is most ourselves our personality, our subjectivity is dependent on that whichis outside of ourselves other persons and the law itself. The subject is inherently split betweenprivate and public, between the feminine and masculine. In Lacans neologism, subjectivity is notintimate, but extimate. (Miller 1994: 74)

The subject is unable to do without law, but the law is equally unable to do without thesubject. Lacan says the subject is split, castrated and barred. But, it follows from this that law isalso the barred other because law has precisely the same constitution as the subject. If the subjectis castrated and incomplete, so is law.

In fact, legal interpretation constitutes one subject observing and recognizing another subject,each depending on the other for its completion. Psychoanalysis takes seriously the notion of lovingthe law. The subject has, in Dworkins terms, a duty to make the law the best it can be, and in thisactivity the subject will recognize itself in the law.

Policy

We conclude by addressing the all-important question, what is the cash value of this line ofinquiry? The short answer is that psychoanalysis yields personal freedom, not determinate answers.The return on investment can be appraised by considering the psychoanalytic critique of

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romanticism the idea that somehow there is a natural subject distorted by law. Romanticismemphasizes the pain of desire. It supposes that this pain is caused; something is to blame for it. Andthat something is, of course, law. Legal interpretation takes place in a field of pain and death, thearch-romantic Robert Cover once wrote. (Cover 1986: 1601) Romanticism promises to get back intouch with the authentic subject which does not feel the pain of desire. Psychoanalysis views thisas false autobiography.

The romantic dreams of authenticity he yearns to be masculine, an individual in the literalmeaning of the term of un-divided, integral and non-desiring. He wants to recover the phallus. Butthe speculative position argues that the individual is only a potentiality that can have no empiricalexistence. To exercise actual freedom, and to relate to others, is to become feminine, a dividual, abarred subject, split between her own idiosyncratic desires, and the demands of others.

There is no subject preceding law. Liberalisms masculine individual is revealed to be aretroactively generated hypothesis a fantasy in the psychoanalytic sense. There never was a timein which we were whole and complete (had the phallus). We do not desire because law has takensomething away from us. Desire is our very constitution. The subject is the very product of law.Yet the subject is not-wholly in the law. Beneath the law is nothing but an absence the negativeunity, that holds the positive law together. For this reason, psychoanalysis is not anti-law, as

romanticism thoroughly is.

So the end result of psychoanalysis is the acceptance of the fact that no law or policy canever sate the unqeunchable desire that is subjectivitys essence. Consequently, Lacan argues thatthe only ethic psychoanalysis can suggest is do not give way with respect to your desire. (Lacan1986: 319) Of course, the empirical people who practice psychoanalytic jurisprudence have politicalopinions, but they have given up the notion that philosophy can play any very useful role in themicro-ethical issues with which politics concerns itself. Psychoanalysis leaves the task ofsuggesting policy currently the bread and butter of the American academic scene to the expertsof the universitys discourse.

Hegel insisted that philosophy comes too late to give advice on concrete issues the owlof Minerva begins its flight only with the onset of dusk. (Hegel, 2002: 23) Speculativephilosophys central presupposition is that the legal subject is the personification of freedom. Thetwo feminine discourses of the analyst and hysteric can only interpret and critique the law from theperspective of the desire of the subject subjected to the law. Or more accurately, the subject isnothing and, therefore, free. The consequence of this lesson is that philosophy cannot tell us whatwe must do. We are doomed to make up our own minds.

Works Cited

Badiou, Alain.An Essay on the Understanding of Evil. Trans. Peter Hallward. New York: Verso,2002.

Cover, Robert M. Violence and the Word. Yale L.J. 95.1 (1986): 1601-30.

Critchley, Simon.Infinitely Demanding: Ethics of Commitment, Politics of Resistence. London:Verso, 2007.

Hegel, G.W.F.Elements of the Philosophy of Right. Ed. Allen W. Wood. Trans. H.B. Nisbet.Cambridge: Cambridge U. Press, 2002.

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Kant, Immanuel. The Critique of Practical Reason. Trans. T.K. Abbott. Amherst: PrometheusBooks, 1996.

Lacan, Jacques. The Seminar of Jacques Lacan: Book VII: The Ethics of Psychoanalysis. Ed.

Jacques-Alain Miller. Trans. Dennis Porter. New York: W.W. Norton & Co., 1986.Lacan, Jacques.The Seminar of Jacques Lacan Book XX: Encore, On Feminine Sexuality, the Limits

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Miller, Jacques-Alain. Exstimit. Trans. Francoise Massardier-Kenney. InLacanian Theory ofDiscourse: Subject, Structure, and Society. Ed. Mark Bracher et al. New York: New YorkU. Press, 1994.

Posner, Richard A.Economic Analysis of Law. New York: Aspen Press, 5thed. 1992.

Ragland-Sullivan, Ellie. The Sexual Masquerade: A Lacanian Theory of Sexual Difference. In

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iek, Slavoj. The Sublime Object of Ideology.London: Verso, 1989.

Zupani, Alenka.Ethics of the Real. London: Verso, 2000.