The law and the unconscious

Author:Mihai Giurgea
Position:Phd., Lawyer ? Cluj Bar, S.C.P.A. Giurgea, Ghidra & Asociatii
Pages:48-58
SUMMARY

We have tried in this article to identify the unconscious mechanisms behind the legal discourse, whether it is the decision-making process by the judge, the substantiation of a court decision or a doctrinal opinion in the legal sciences. We have also tried to identify the unconscious processes that trigger the criminogenic behaviour and those that condition the positioning of the individual in relation to the law. Moreover, we have tried to show that the legal text is no stranger to the unconscious mechanisms of the person who creates it, his / her own traumas, suppressed desires or drives. Thus, we can firmly sustain that a court ruling or a legal opinion can never be clearly separated from the very unconscious of the person who „sets the law”, and that the judge, who theoretically „sets the law”, becomes the one who „makes the law”.

 
CONTENT
48 MIHAI GIURGEA
LEGAL THEORY
THE LAW AND THE UNCONSCIOUS
Mihai GIURGEA, Phd.,
Lawyer – Cluj Bar, S.C.P.A. Giurgea, Ghidra & Asociatii
Abstract
We have tried in this article to identify the unconscious mechanisms behind the legal
discourse, whether it is the decision-making process by the judge, the substantiation of a
court decision or a doctrinal opinion in the legal sciences. We have also tried to identify the
unconscious processes that trigger the criminogenic behaviour and those that condition the
positioning of the individual in relation to the law. Moreover, we have tried to show that
the legal text is no stranger to the unconscious mechanisms of the person who creates it, his
/ her own traumas, suppressed desires or drives. Thus, we can firmly sustain that a court
ruling or a legal opinion can never be clearly separated from the very unconscious of the
person who „sets the law”, and that the judge, who theoretically „sets the law”, becomes the
one who „makes the law”.
Key words: court judgment, legal text, unconscious, legal psychoanalysis, law,
symptom
The late Freudian theory proposes three mental instances responsible for the
human personality, the id, the ego, and the super-ego. The id is the primary,
subjective element that existed prior to individual experiences. It is the home of
instinctual trends. The id is driven only by instinct, in the service of the principle of
pleasure, seeking satisfaction of desires and avoiding pain. The id is limited in its
goals by the ego, the mental state governed by the principle of reality. The ego is
the only psychic instance that confronts the reality of the outside world and which,
therefore, uses thought, problem solving, and creates the mediation between blind
psychic forces and reality. The super-ego is the home of moral judgments and
ideals – including traditional values and other social ideals internalised during
childhood – the severe instance commanding the suppression of urges and
punishment. The ego is the instance caught in the middle of the war between the id
Law Review vol. VII, issue 1, Januar
y
-June 2017, pp. 48-58
The law and the unconscious 49
seeking only the satisfaction of pleasure, the super-ego that requires the
suppression of the drives and the pursuit of the moral ideal, and the reality
imposing constraints.
The ego, faced with these three opposing forces, the id, the super-ego and the
reality, is left with the possibility either to seek realistic solutions or pathological
solutions of denial and distortion of reality for the satisfaction of the id and / or the
super-ego. Such pathological mechanisms of avoiding reality are refutation,
projection, sublimation, denial, fixation, phantasmality and regression. Refutation
is the psychic process that removes and conceals from the conscience a memory, an
idea, a perception, and hence creates a blindness to a certain realm of reality.
Projection is the psychic process through which moral anxieties, unresolved
conflicts, ideas, affections, desires are objectified and located in the outside world.
The psychic energy is projected on an external reality, the subject thus escaping,
symbolically, of individual responsibility and inner conflict. Sublimation is the
process by which the psychic conflict is resolved by the transfer of psychic energy
to socially valued realities, the drive moving from its own sexual object to a
non-sexual object. Denying means hiding and eliminating a drive by formulating
its opposite, therefore the extreme chastity is the denial of too strong sexual
desires. Denial is often the only way to express a repressed idea by presenting it in
a negative form. Fixation and regression are defence mechanisms that stop or
engage the normal process of psychological evolution to avoid psychic conflicts,
attaching the desire towards objects of pre-libidinal satisfaction of the libido.
If we consider, as David Caudill does, society as an individual subject of
psychoanalysis, then the singular individual, the normal person, represents for
society the superfluous drives that it needs to control. Just as the individual refutes
dangerous ideas, society represses the individual. Just as the individual tries to
control his / her strong instincts, Freud believes that the primary and dangerous
passions of the individual should be controlled by oppressive social structures1.
Caudill also shows that in the same way that society presents manifest contents
and structures that could be identified with the consciousness, it also presents
structures obscured, identifiable with the unconscious. And if the law is a
conscious instance of society, a set of manifest prohibitions, its grounds and
mechanisms ought to belong to an instance similar to the individual unconscious.
In the radical Freudian scheme, it is not about the conditioning or modelling by the
social interaction of an individual consciousness already established, but rather
that society has an unconscious and formative effect on the individual experience,
self-perception, and the perception of others2. Thus, without the objective of a
social unconscious, we must nevertheless take into account the effects of the social
1 Caudill, David S, „Freud and Critical Legal Studies: Contours of a Radical Socio-Legal Psychoanalysis
in Leonard, Jerry. Legal Studies as Cultural Studies: A Reader in Post(Modern) Critical Theory, SUNY
Press, 1995, p. 26.
2 Idem, p. 27.
50 MIHAI GIURGEA
structure, with its manifest but especially obscured parts, as playing an essential
role in structuring the individual subject.
In a first phase, Freud proposes an explanatory topic for understanding the
psychic life comprising the unconscious, the preconscious and the conscious. This
subtle human psyche lacks the represses instance that suppresses the urges from
within. That is why Freud proposes in 1930 a second topical that includes the id,
the ego and the super-ego. The super-ego is the psychic instance responsible for
law and taboo, the suppression of drives from within and the perpetuation of the
law of the Fater. When he wrote Totem and taboo, Freud did not have a term for the
psychic instance that allows the moral and legal principles to be internalised, as
well as their mental perpetuation after the disappearance of the primordial father.
Later on, he would use the term „super-ego”, opening a whole discursive field on
what he describes as the critical instance of the psyche which performs the
self-control and self-punishment functions, and at the same time creates ideals and
moral judgments3. The super-ego is the origin and the individual equivalent of the
Law. The super-ego is the one conferring power and effectiveness to the Law. The
super-ego is the creator and guarantor of the Symbolic Law that goes beyond,
supplements and gives substance to real law. The super-ego applies not only
consciously accepted legal and moral principles, but also additional, hidden,
obscured laws, the violation of which gives rise to feelings of guilt, nothingness
and depression4.
The super-ego is the instance that embodies the mental embodiment of the
Father. The physical absence of the Father is compensated by the creation of this
psychic instance that ensures the continuity of the paternal law, the order of the
world and the obedience of the son. The Father's role of being omnipotent and
omniscient is instantiated in the super-ego. The real father for the little child is the
guarantor of the world order and the need for order of the subject gives the psychic
connotation of this tyrannical pseudo-father that is the super-ego. At the onset of
Oedipus' complex, the son must accept the role of the father as the only possessor
of the mother and, at the same time, accept the prohibition of incestuous desire.
Henceforth, any desire that seems to undermine paternal authority and transgress
its prohibitions is rigorously suppressed by the super-ego, and any aggression
directed against the father is redirected to one's own person ... The Freudian
conception of the origin of the super-ego implies a second genealogy of the rule of
law in which the living, real father is transposed into a disordered psychic instance
that oversees the ego5.
Once the Oedipus complex is overcome, the child becomes subject, moral
subject, individual subject to the Law. The child overcoming the complex of
3 Brunner, Jose, „Freud and the rule of law: from Totem and Taboo to psychoanalytic jurisprudence”,
2000, p. 284.
4 Ibidem.
5 Ibidem.
The law and the unconscious 51
Oedipus is subject to the symbolic order. The oedipal phase does not mean
obedience to the rules imposed by the real father in the flesh and bones, but
obedience towards the Law. This Law prescribes the role and place of the child in
the social structure, and the place of the subject in symbolic order. At that time, the
child internalises the language and taboo of incest. The overall social forces
impregnated in the child through the acquisition of language constitutes the „Law”
or what Lacan designates as the „Father's Name”6.
This super-ego, the projection of which in the real world is the law, gives the
transcendent, immutable, necessary, and absolutely sure nature of the law. This
instance of the psyche is unavoidable, severe, tyrannical, absolutely certain, clear
and immutable in its judgments. Law having super-ego as a role model must
possess the same qualities, especially certainty. Jerome Frank, analysing this
psychoanalytic law-making mechanism, tries to deconstruct it to create the
premises of rationalising the real uncertainty of the law. Here we need to
distinguish between the symbolic Law, which is indeed certain, immutable,
referring to the transcendental area, and the real law, the collection of texts that
consciously regulates social life. The symbolic Law represents the symbolic register
of the judicial and, therefore, it regulates any real legal relationship, is the inner
unwritten law, a law that does not depend and does not need to be imposed by an
outside force.
The law has always been, is and will continue to be largely vague and variable7
... Much of the uncertainty of the law is not an unfortunate accident: it has
tremendous social value8. There is necessarily a plastic and unstable feature of the
law. The desire for an absolutely stable and comprehensive law is a myth to be
deconstructed. Frank begins in deconstructing this myth by showing that it
originates in childhood. Initially, the child has the illusion of absolute control over
the surrounding world in that his / her desires seem to be fulfilled by itself. The
subsequent awareness of the lack of stability and controllability of the world is
accompanied by the transfer of omnipotence over the parents. It is at this point,
Frank says, that the origin of the myth of absolute certainty of the law must be
sought. The child embodies the idea of an omnipotent and omniscient instance for
which there is no form of uncertainty or instability. For the child, there is an
irresistible necessity for an omniscient and omnipotent father who lies between
him / her and the uncertainties of life9. But the illusion of this omnipotent and
omniscient father, imaginary as would Lacan say, breaks down at the end of the
6 Ashe, Marie, „Mind's Opportunity: Birthing a Poststructurali st Feminist Jurisprudence” in Leonard,
Jerry, Legal Studies as Cultural Studies: A Reader in Post(Modern) Critical Theory, SUNY Press, 1995,
p. 112.
7 See also Lazr, Ioan Dreptul Uniunii Europene în domeniul concurenei, Universul Juridic
Publishing, Bucharest, 2016, passim.
8 Frank, Jerome, Law and the modern mind, Transaction Publishers, 2009, p. 6-7.
9 Idem, p. 17.
52 MIHAI GIURGEA
phallic stage at about 6-7 years old. The child realises that certain things are
unknown to the father, and certain things are beyond his power. The desire for
stability and predictability leads him / her to design the all-knowledge and
all-power on other people, socially constituted as centres of power. The apparent
instability of the world must be subject to regularisation by a person – a person the
child can influence as he / she does with his / her father. Many are the persons
who become substitutes for the dispossessed father: the priest or the pastor, the
leaders of the group. They, in turn, will end up in disappointing10. The child
realizes that a real person cannot transcend and absolutely regulate the world's
uncertainties. But the desire for an absolute instance intensifies with these
disillusionments, and although conscious, this need is less and less verbalised, it
becomes increasingly strong unconsciously. The instance that needs to hold the
control becomes less and less personal, but the need to reinstate the pattern of the
child-omnipotent father primordial relationship into the real world intensifies. The
need for such an instance regulates social relations either in a sacred form, the
omnipotent God-father, or in a profane form of law, an impersonal instance that
must resemble an omnipotent Father who can adjust ante hoc any uncertainty of
life. The fact that religion shows the effects of the infantile desire to establish a
father-controlled world has often been noticed. But the effect on the law of this
infantile desire has gone unnoticed. ... This infantile desire is an important element
in explaining the absurdly unrealistic view that the law is or can become totally
certain and absolutely predictable11.
Schoenfeld12 on the other hand, criticizes Jerome Frank's position, pointing out
that if judges only assume the position of law interpreters thematically, they have
the consciousness of their power and even over-emphasize it. Staging the law in
fact only creates a pedestal for judges. The analysis of the enforcements made by
the judiciary will be relevant to deconstructing the opposite myth, that of judges as
masters of the law. The judges, in a psychoanalytic reading, imagine that they are
really usurping the place of the father giving the law. On the imaginary context,
they have already assumed the role of the father. But also in the imaginary context
they are just loyal interpreters, in other words, obedient sons. As a result, the
position of the judge is ambivalent, as is the law. Schoenfeld asserts that the
projection of a certain degree of omnipotence over judges, a projection allowed by
an analysis like Frank's, is in fact just as infantile and can bring consequences as
bad as the idea of transcendence of the law. Schoenfeld accuses Frank of not
submitting to the alternative psychoanalytic investigation suggested, leading to the
idea that the transcendence of the law can be reasonably analysed and eradicated
10 Ibidem.
11 Idem, p. 19.
12 Schoenfeld, C.G. Omnipotence and the law: a psychoanalytically oriented analysis, in Journal of
Psychiatry and Law, 1988, 16: 421-58.
The law and the unconscious 53
without leaving any traces in the unconscious. For Frank, the illusion of the rule of
law is one that can be diagnosed and eliminated without loss13.
The judge has, as we have seen, an ambivalent position in relation to the law.
He / she changes the law, believing he / she keeps it unchanged. This is because,
on the one hand, the symbolic, immutable Law, which regulates the legal field, that
which was unconsciously established by the killing of the original patriarch,
cannot be uttered. This law is the legal super-ego. On the other hand, the law
formulated, the real text of the law is an eternal shortcoming. It exists and works
only to the extent it is interpreted, staged in real processes. This staging is achieved
by individual, judges, jurors, witnesses etc., whose individual unconscious
operates in the process by influencing, says Jerome Frank, the establishment of the
facts. Starting from classical Freudian theory and assuming factual scepticism,
Jerome Frank brings a critique of the legal system from the point of view of the
actual fact-finding process. According to Frank, the word „Law” should be
understood as the sum of 1) the specific decisions delivered, 2) which are otherwise
less predictable and uneven, and 3) the processes in which these decisions are
delivered by focusing on 4) the possibilities of improve them. Speaking about the
law, Frank is concerned not with what the immutable law would be, but rather
with all the decisions delivered in the past as well as the expectations regarding the
future decisions that will be delivered.
Analysis of decision-making in the case of a trial should focus primarily on the
importance of often unconscious and therefore psychoanalytically prejudices of the
judges and witnesses in their capacity as fallible humans with personal histories
and idiosyncrasies, endowed with an unconscious manifested in testimonies and
pronouncements. What predominates in making decisions in fact are
preconceptions about witnesses and testimonies made, as well as preconceptions
that interfere with witness testimonies. A lawsuit is usually based on oral and not
often conflicting testimonies. Making a decision involves (re)establishing the truth
from a series of disparate and inconsistent points of view. In the first instance,
these testimonies are a personal filtering of the facts observed affected by oblivion,
biased reconstitution, personal prejudices. Moreover, these views are supported
before the judge by certain witnesses and the (re)creation of the truth will be based
on an assessment of the credibility of the witnesses. Thus, the depositions of some
people will have a greater weight in making the decision. This assignment /
distribution of credibility towards the witnesses cannot be formalised, depending
on the personal history of the judge and jurors, their preconceptions and cultural
preconceptions. Thus, there are biased reports against women, unmarried
women, people of different nationality or race, the tone of the voice or of
unconscious tics. The major obstacle in prophesying court decisions is therefore
13 Brunner, Jose, Freud and the rule of law: from Totem and Taboo to psychoanalytic j urisprudence,
p.h.q., p. 287.
54 MIHAI GIURGEA
the inability due to these insubstantial factors to predict what a judge or a jury
will consider as the facts14.
The problem is not the lack of codification of the rules, of the „true rules” that
would exist and would be applied by the higher courts in the case of appeals, but
the real problem is a factual problem, namely, what will be considered as a fact
within the court. The unpredictability of the cases does not lie in the uncertainty of
laws and rules, although this is the universal prevalence, but in the uncertainty of
establishing, accepting and defining facts. The question to be asked before any trial
is not how the judge will judge what has happened but what will be established
during the trial that it has happened. The facts do not exist before they are settled
in court. This set of facts is related to some hermeneutics of personal memory
about events as well as a psychoanalysis of what is accepted as a fact. The facts
considered in the process are born within the process through unconscious choices
of what is accepted and what must be overlooked, repressed or forgotten. The
uncertainty about the facts under consideration does not end with the delivery of
the sentence and possibly the justification of that sentence because while we may
know the facts after the trial, we cannot know how these facts have actually been
established, what are the mechanisms through which the corroboration of
divergent opinions establishes a unique factual truth. The superior court that
analyses the transcript of oral depositions can only consider the facts established in
the trial as being given the historical truth. But these „facts” are based on personal
preferential choices of the judge. Establishing the facts cannot be but a sum of such
preferential choices because it takes place on the basis of inference processes based
on the interpretation of some depositions. These depositions are themselves the
fruit of personal interpretations as events have been recorded through personal
idiosyncrasies. Once the facts are established, any well-informed magistrate or
lawyer can fairly predict what will be the decision that will be taken by the inferior
or superior court. The true uncertainty of the judiciary system lies in the factual
uncertainty, in knowing what will be the facts that had taken place. The
enforcement of law and jurisprudence cannot be foreseen before the actual process,
not because the law, precedents and rules are uncertain, but because these laws,
precedents and rules are not enforceable. The object of the law, the facts, is
„created” during the hearing and interpretation of witness testimonies. And no
rule of law that takes into account the interpretation and enforcement of the law
will make the judicial process more predictable as long as no one can know in
advance which testimonies are accepted, albeit false or imprecise, and which are
rejected, though true but not persuasive. The judge may be more attentive to
certain witnesses than to others, he /she may show sympathy for some and
antipathy for others. And these affective intentionalities are the foundation on
which the facts are built and stabilised. „The facts”, we should never
14 Frank, Jerome. 2009 [1930]. Law and the modern mind, Transaction Publishers. p. xxv.
The law and the unconscious 55
underestimate this, are not objective. They are what the judge thinks they are. And
what he/she thinks they are is based on what he / she hears and sees while
witnesses testify – which can be, as it is, different from what another judge hears
and sees15.
Consequences of Freudian analysis
The myth of the primitive horde and the analysis of the establishment of law
and society analogous to the emergence of individuality as a result of the
overcoming of the Oedipus myth phase destabilises the long tradition that
founded the law on rational and conscious decisions. This Copernican overthrow
is prefaced only by the Nietzsche theory of resentment. In his Genealogy of morality
in 1887, Nietzsche shows that the rule of law, equality before the law, social order
and morals stem from the resentment of the weak. They are constituted in
egalitarian communities in response to the excesses of the strong. Nietzsche thus
originates the law in a negative passion, hostile to life and its excess. Like
Nietzsche, Freud denies the rational origin of the law to reveal the role of
unconscious passions and urges. The law is the effect of mourning, of regret. The
law is a jointly imposed self-punishment for excess or urges. The Freudian
genealogy of the rule of law ... is dialectical and critical at the same time,
establishing the law on desire and guilt and integrating it into the logic of excess. ...
His purpose is to show that neither the constitutive origins nor the current
practices and effects of the law can be subsumed to the stated purpose. He states
that the original conflicts and the forces involved in them can never be completely
cancelled16. This means that studying the origin of the law is of equal importance
as the psychoanalysis of the chain of draftings and historical movements that have
taken place in the legal system and which have, besides a manifest and conscious
form, an unconscious, repulsive, drive side. All of these have effects at present,
unobservable effects because unconscious bans work and do not allow their
rational analysis. As long as the law is considered to be an autonomous and
rational system, it will only reproduce its own obsessions that it rationalises and
raises to the status of objective principles. Jose Brunner argues that lawyers could
benefit from considering apsychoanalytic reporting to law as long as such
reporting shows the social and cultural barriers of the law. The Freudian analysis
makes us aware of the role the law plays in the cultural system, a role that is not
limited to the declared aims of the law.
The Freudian analysis is not only used in a critical way, deconstructing the
weaknesses and unveiling the obscured elements of the law. In a constructive
15 Idem, p. xxx.
16 Idem, p. 289-290.
56 MIHAI GIURGEA
manner, Robin West17 uses the Freudian analysis of the origin of the law to
substantiate the liberal doctrine18 of the principle of equality before the law. She
argues that the Freudian analysis offers more plausible arguments for equality
before the law than the legal theorists of American liberalism. West criticises the
arguments of liberal lawyers on the ground that they are based on non-contentious
moral truths obtained through rational intuitions. For West, this can only provide
the arguments a void universality. West sees in the Freudian analysis a naturalist
way of substantiating the principle of equality before the law. Freud bases his
argument on the existence of the rule of law on universal mechanisms of
functioning of the human psyche and on historical considerations.
Equality before the law and egalitarianism are unnatural, opposed to
individual drives. „The cultural element is given by the first attempt to regulate
these social relations. If such a test had been missing, these relationships would
have been at the whim of the individual, that is, the one who is the most physically
strong would have decided in the sense of his driving interests and movements.
Nothing would have changed if this strong person had met yet another stronger
individual”19. Freud shows that individual driving energies are aggressive and
antisocial and cannot be neutralised by selfless instincts or erotic drives. Erotic
drives cannot be used to substantiate social cohesion. The erotic instinct is not
directed at large social groups. Within the psychic life, the erotic drive requires the
choice of the object and a temporary couple relationship. As a result, instincts,
individual drives cannot ensure social cohesion and the establishment of law,
much less equality among peers. Such a social order must be grounded elsewhere,
in the establishment of the symbolic order. The rule of law was the answer of
history to the problem of the excesses of individualistic, selfish-erotic drives, which
were directed only towards their own satisfaction, in opposition to any form of
community cohesion. But once the tyrant and the almighty father of the tribe is
killed, the sons feel the guilt and regret. Affective dependence on the father is
overestimated once the hatred drives against him have been violently satisfied. As
a result, a collective obedience to the tyrannical rules once imposed by the whims
of the killed father will be created. Love for the father and respect for his laws are
projected onto the totem animal. The rule of law originates, therefore, according to
West, in the relative and artificial state of equality established between the sons by
the slaughter taboo. The superiority of Freudian substantiation of the principle of
equality before the law is that it does not presuppose the existence of a moral
subject endowed with reason which would deduce and rely on this deduction the
17 West, Robin, Law, rights and other totemic illusions: legal lib eralism and Freud’s theory of the rule of
law, University of Pennsylvania Law Review, 1986, 134: 817–82.
18 For a study on liberal doctrine in the context of public law see Lazar, Ioan, Public Finance Law,
ed. 2, Universul Juridic Publishing, Bucharest, 2016, pp. 31-33.
19 Freud, Sigmund, The Uneasiness in Culture, in Freud, Sigmund. Works 4. Society and Religion.
Trei Publishing, 2000, pp. 170.
The law and the unconscious 57
principle of equality before the law. For Freud, it is sufficient for the process of
psychological development to evolve relatively normally, that is to say, the
symbolic order is internalised for the rule of law to function.
Instead, the desire to break the law in a psychoanalytic key, the desire to
destroy authority, is the central subject of Peter Goodrich's famous legal study of
psychoanalysis „The Unconscious is a Jurist”20 that actually resumes the study of
his predecessor, Pierre Legendre21. Both studies start from the same political event,
namely the attempt of corporal Lortie to kill the Prime Minister of Quebec. Lortie,
corporal in the Canadian army until the date of the attack, a seemingly psychically
normal individual, with vague skews considered within the limits of lax normality,
without a legal or clinical history, begins abruptly in an episode of decompensation
through a violent and seemingly inexplicable venting. Upon the medical history,
those who investigated the attack find out that the venting reaction started from a
leave requested by the corporal and refused by the superior. Apparently weird,
Lortie says the sergeant who refused to grant him the leave had the face of his
father. The violent venting in fact concerns the Prime Minister as an image of
authority and implicitly the image of the father.
Lortie's obsessive invocation of the image of his father who orders, refuses, or
hurts does not evoke only a Freudian interpretation of authority, but is also a legal
reference. The Roman law has given absolute power, power over life and death, to
the father of family, pater familias. The father's rights to rule, the almost
discretionary right from the private law, finds its pair in the discretionary right of
the Imperator in the public law22. Therefore, the Freudian comparison or
approximation in interpreting the history of corporal Lortie is not forced, and finds
even a historical justification; while in the public law institutions, the Lèse-majesté
is the murder of the Emperor, in private law the equivalence is the killing of the
father. Once again, in a psychoanalytic interpretation, the suppressed desire to
destroy authority is hidden and unleashes, as the hidden repressed desires emerge
in the killing of the pater famiIias as an embodiment of the Authority. Legendre
interprets Lortie's attempt to kill the Prime Minister as being in fact the attempt to
kill the Authority, just as Oedipus, killing his father actually killed the authority
that prevented him from fully accomplish his desire. The Authority refuses to the
subject the plenary access to enjoyment. The Lacanian term of enjoyment is more
appropriate, having a more intimate connection with the forbidden desire,
although Legendre and Goodrich are Freud's disciplined followers. The confluence
of the two stories lies at the level of patricide as a denial of authority or the forcing
of its limits.
20 Goodrich, Peter, The Unconscious Is a Jurist: Psychoanalysis and Law in the Work of Pierre Legendre,
in Legal Studies Forum 20/3, 1996, pp. 195-228.
21 Legendre, Pierre, Le crime du caporal Lortie: Traite sur le pere, Fayard, 1989.
22 For a broader study on dichotomy of public law - private law see also Lazar, Public Finance
Law, Universul Juridic Publishing, Bucharest, 2016, pp. 81-83.
58 MIHAI GIURGEA
On the same line of thought, however, Legendre makes an extra step: the
relationship between the subject and power, or the relationship between the
subject and authority is not exclusively conflictual, but biunivocal, which does not
deny erotic interpretation; in other words, Legendre elaborates a theory of the
erotic attachment of the subject to power, consecutive to subservience, obedience.
Obedience to the subject towards authority generates, as a secondary effect, a
vassal attachment to the Law. Thus, the matters of Law involve subjective
attachment issues derived from the fascination of power, the original fascination
towards the father. In this respect, Goodrich points out that, even more
paradoxically it is that the subject has to grow to wish to be subjected to power, to
love the signs of power, the emblems of authority23.
Although „paradoxical”, the affective ambivalence is not an unusual concept
for Freud. Indeed, the term introduced by Bleuer was picked up by Freud who
considered the affective ambivalence a normal feature of the psychic apparatus in
which love and hatred coexist towards the same object. The explanation is not
complicated: love involves hatred, due to the homeostasis of the ego, its
characteristic of maintaining its inner balance which is disrupted by the very
„object” of the affective attachment. Thus, as long as the object which the subject in
love with disturbs the balance of the ego, the defensive mechanism of the latter
perceives this disturbance and therefore, the sense of hatred towards the object
appears correlated and necessary.
The implication is that what the hero of Legendre and Goodrich is trying to
destroy in the madness episode is the paternity fantasy that ordains and
establishes social places and roles. In this context, madness is the failure of the
subject to observe and abide by the social place, the failure of the subject to
symbolise, as he remains fascinated by the image. Lortie thinks that killing the
Prime Minister, the personification of power and law, the image, the consequence,
and the representation of a symbolic principle, will succeed in overturning the
prohibition principle, the Law and the Authority as such. The law does not oppose
only desire, normalising and regulating it, but also psychosis. Institutional or
individual, madness is particularly manifest in the failure to recognise where,
when and to whom a subject has a right to address. In this context, the law is
simply the manifestation of power as a structure, and madness is the failure to
abide by the spaces, images or figures of this structure24. Lortie's madness, and the
madness in general for Lacan, is an amalgamation of Symbolism, Imaginary, and
Real, a short circuit in the level of mutual regulation and relative independence of
the three fields.
23 Goodrich, Peter, The Unconscious Is a Jurist: Psychoanalysis and Law in the Work of Pierre Legendre,
in Legal Studies Forum 20/3, 1996, p. 210.
24 Goodrich, Peter, The Unconscious Is a Jurist: Psychoanalysis and Law in the Work of Pierre Legendre,
in Legal Studies Forum 20/3, 1996, p. 201.