Law and Psychoanalysis
LAW AND PSYCHOANALYSIS
While psychoanalysis focuses on the individual subject, law refers to the collection of guidelines for behavior directed at all members of society. There are challenges therefore in establishing a dialogue between two disciplines whose objectives and challenges are so far apart. Yet, the necessity of psychoanalysis engaging with the human leads to its involvement with the foundations of societal values. It cannot therefore avoid taking an interest in the law, which means it must ask the same questions differently. Moreover, the discovery of a Freud who expresses himself like a lawyer justifies a new interpretation of some of his writings.
Although Freud from time to time took an interest in aspects of the legal process (1906c, 1916d, 1931d), he never tried to explain the possible interactions between law and psychoanalysis. Nonetheless, the questions of guilt and crime—primarily through the oedipal murder of the father and incest—are presented in a way that is so fundamental to his work that the confrontation of the two disciplines becomes inevitable, crime—even though perpetrated by the unconscious—leading to trial.
It was when he abandoned a legal career to turn his attention to science that Freud, in a letter to his friend Emil Fluss on May 1, 1873 (1925d), used the word Prozess (trial) for the first time. Rather than getting involved in real trials [Prozesse ], he will study the "millennial cases of nature" so he can bear witness to its "eternal trials." The use of this legal term is not an isolated occurrence in the Freudian corpus. The frequency and occurrence of its use justify seeing it as a kind of fetish word, a wink at his youthful wish to become a lawyer. He went so far as to talk about a "psychic trial" (1905d). The focus, in the Freudian corpus, on the use of a specifically legal vocabulary (conflict [Konflikt ], defense [Abwehr ], conviction [Verurteilung or Urteilsverwerfung ], punishment [Stafbedürfnis ]) demonstrates that the intersection of the two disciplines was not accidental.
If the psychic apparatus needs to organize a system of defense and condemnation, it is because unconscious guilt engages the subject in a continuous trial. The operation of the psyche demonstrates concrete links with that of the legal process once the question of guilt is introduced. The appearance in Freud's work of references to a legal vocabulary, as well as to functions that are part of legal works, can be seen clearly from an examination of the multiple roles attributed by the founder of psychoanalysis to the "agency" of the superego. We find that the image he presents is that of a court that will entirely assume the burden of all legal responsibilities. The Freudian superego assumes the responsibility of legislator, judge, supreme court, attorney (for the id), public prosecutor, and even grief counselor. It also sometimes serves as a vigilante. Freud shows himself to be a skilled proceduralist by identifying the putative fatherhood referred to by lawyers (Pater incertus est . . .) and, when he points out the "progress of civilization" that characterizes the "transition from mother to father" (1909d, 1939a [1934-1938]), he borrows the specific vocabulary of the law of evidence. The legal context in his work is supported by the explicit reference to Aeschylus's Oresteia. It appears that the reference to legal institutions to understand and attempt to resolve interior conflict does not exhaust the vision of Freud as jurist shown by his work. But it is with reference to the murder of the father that the field of interaction between law and psychoanalysis is the most fecund.
Aside from the opportunities presented by the presence of a Freudian legal vocabulary, although frequently hidden by translations that systematically "delegalize" his language, the fact that the legal functions attributed by Freud to the mental apparatus are visibly inspired by those attributed to the participants in the Last Judgment enables us to hypothesize a possible scriptural origin to his legal conception of mental agencies—especially the superego—when he evokes the "judicial activity of the moral conscience" (1933a ). Another facet of Freud's work is revealed by his knowledge of Pauline thought and, more generally, of the Bible, the book in which Sigmund was taught to read by his father.
See also: Criminology and psychoanalysis.
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Mijolla-Mellor, Sophie de. (1993). Le "bon droit" du criminel. Topique, 52, 141-161.
Trapet, Marie Aleth. (1998). Les adages, souvenirs d'enfance du droit, esquisse d'une métapsychologie des adages. Dissertation, University of Paris-VII.
Trapet, Marie-Dominique. (1998). Le droit dans l'œuvre de Freud. Dissertation, University of Paris-VII.