Patrick's Musings & Miscellany

Psychoanalysis & Law: “jurisprudence of the future,” or, “We’ve Only Just Begun” (with apologies to the Carpenters, and the songwriters, Paul Williams / Roger Nichols)

“At one time man believed that reason was at the center of his mind, sole mistress of his origin and mind. Building on vague dreams and doubts of the past [including several philosophers, such as Plato, Schopenhauer and Nietzsche] Freud disproved such belief as an illusion. He met a revulsion and resistance which, more than a half [now almost an entire] century later, is still strong enough to tempt teachers and scholars to reject the new knowledge as obscenity or at least to conceal it in soothing language. But most of us have come to live with the truth [and the everyday conversation that has incorporated some of its concepts and psychological maxims and, what is more, extended the premises, propositions, purposes and value(s) of ‘folk psychology’] and modern life-science [what I prefer to call ‘a human science of the person;’ Albert A. Ehrenzweig terms this ‘new science,’ ‘Psychosophy’] dates from its discovery. We lost an illusion and began to conquer our soul.

To apply the new truth to our understanding and the reform of legal rules, to our grasp of law and justice, will be the task of the jurisprudence of the future. [….] I remain convinced, and should in fairness confess to my conviction … that the findings of Freud and some of his disciples have opened the gate to a new jurisprudence.” — Albert A. Ehrenzweig, Psychoanalytic Jurisprudence (A.W. Sijthoff and Oceana Publications, 1971) This book is a bit hard to read and covers a wide range of subject matter, sometimes only cursorily, at least in the first part of the work. Still, there are some provocative ideas and proposals throughout that make it worthwhile. As Julius Stone points out in his Introduction, “There have, of course, been earlier efforts to apply Freudian [analytic] concepts to juristic problems, for instance by Thurman Arnold, Jerome Frank, and others,” and Ehrenzweig himself writes that “Frank was perhaps the first, if not the only, leading jurist who sought to give his legal message a psychoanalytic foundation.”

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The existing and possible relations between— and general relevance of—the subject of “psychoanalysis and law” has attracted comparatively little scholarly attention since the publication of Ehrenzweig’s book, whatever the popularity or lip service paid to the importance of “interdisciplinary” and “transdisciplinary” studies in the academic world. I won’t attempt a possible explanation as to why this is the case, my thoughts at this stage being intuitive, inchoate, and largely speculative. Nonetheless, seeking an explanation is important for any number of reasons, whether or not we are tempted to resort to some kind of psychoanalytically-reasoned cause for this state of affairs. Matters are a bit different when it comes to (academic or scientific) “psychology and law,” if only because the psychology here does not recognize let alone embrace the plausibility or relevance of psychoanalytic insights, its positivist scientific and behaviorist approaches claiming full title to the mantle of “scientific psychology” in the contemporary academic sense, having concluded long ago that psychoanalysis is not a “science” of any kind, those “kinds” thus ruling out the possibility that psychoanalysis is a novel human science of the person which relies on therapeutic modalities, freely drawing from the natural and social sciences as well as philosophy, its clinical methods and discoveries arising from dialogic conversations between the analyst and the analysand. Emblematic of dependence upon this scientific psychology is Andreas Kapardis’ Psychology and Law: A Critical Introduction (Cambridge University Press, 1997), which does not have a subject index entry on “psychoanalysis,” while Freud is mentioned but once, and then dismissively with regard to the “myth” of children being “prone to fantasize about sexual matters.” Only slightly better in this respect is the otherwise excellent volume edited by Susan A. Bandes, The Passions of Law (New York University Press, 1999), mainly because the philosopher John Deigh stands out by way of weaving a few Freudian ideas into his discussion. This volume enables us to see, however, that psychoanalysis might be well-placed to help us understand the parts played by a more or less circumscribed set of emotions that are prominent in the various parts of the law (criminal, tort, etc.): e.g., shame, disgust, vengeance or revenge, mercy, empathy, anger or rage, and so forth.

It is here where I exploit an opportunity to cite one of my favorite polymaths, Jon Elster, who, while tending to characterize the therapeutic power psychoanalysis in terms of the “placebo effect” (yet not entertaining an overarching account of psychoanalysis grounded in psychological and philosophical conceptions that do justice to a psychoanalytic theory of human nature, individuation, and philosophy of mind), has well understood the weaknesses of academic psychology when it comes to analyzing the emotions (their expressions and effects, their power in our everyday lives, and their complex entanglement in our attempts to be rational, reasonable and moral). The following snippet is from Jon Elster’s brilliant book, Alchemies of the Mind: Rationality and the Emotions (Cambridge University Press, 1999):

“… [W]ith respect to an important subset of the emotions we can learn more from moralists, novelists, and playwrights than from the cumulative findings of scientific psychology [by this Elster is referring to academic, experimental psychology which remains, stubbornly, neo-positivist and behaviorist, as well as radically reductionist and largely dismissive of psychoanalytic psychology].1 These emotions include regret, relief, hope, disappointment, shame, guilt, pridefulness,2 pride, hybris, envy, jealousy, malice, pity, indignation, wrath, hatred, contempt, joy, grief, and romantic love. By contrast, the scientific study of the emotions can teach us a great deal about anger, fear, disgust, parental love, and sexual desire (if we count the last two as emotions). [….] I believe … that prescientific insights into the emotions are not simply superseded by modern psychology in the way that natural philosophy has been superseded by physics [emphasis added]. Some men and women in the past have been superb students of human nature, with more wide-ranging personal experience, better powers of observation, and deeper intuitions than almost any psychologist I can think of. This is only what we should expect: There is no reason why one century out of twenty-five should have a privilege in wisdom and understanding. In the case of physics, this argument does not apply.”

However thin the historical thread of “psychoanalysis and law” from Jerome Frank to Ehrenzweig, it has become a bit thicker and stronger in our time, even if “we’ve only just begun” to create a distinguishable domain of research and inquiry replete with some of the intellectual features, creativity and virtues of interdisciplinarity at its best. Emerging from the works of David Wexler and Bruce Winnick, and with some family resemblance to psychoanalysis and law, “therapeutic jurisprudence” (TJ) (since the 1990s) has played a valuable role in our criminal justice system, although it is not, to date, noticeably psychoanalytic in either theory or practice as far as I’ve been able to ascertain, a fact which in no way detracts from its importance:

“Therapeutic jurisprudence is an interdisciplinary approach to legal scholarship with the goal of reforming the law so it has a positive impact on the well-being of defendants appearing in court. TJ researchers and practitioners typically make use of social science methods to explore ways in which negative consequences can be reduced, and therapeutic consequences enhanced, without breaching due process requirements. By taking a non-adversarial approach to the administration of justice, judges and lawyers work together to create strategies that help offenders make positive changes in their own lives. Therapeutic jurisprudence has been used successfully in mental health courts and other problem-solving courts, such as drug courts for defendants with addictions.”

I’ve assembled a brief list of books and a few articles that might persuade you that Ehrenzweig’s Psycosophy (or some close variant thereof) might yet prove to be an integral and profound part of a more humane and compassionate “jurisprudence of the future;” after all, it has come to fruition, even if “we’ve only just begun.”

Suggested Reading

  • Anderson, Kevin and Richard Quinney, eds. Erich Fromm and Critical Criminology: Beyond the Punitive Society, (University of Illinois Press, 2000).
  • Aristodemou, Maria. Law, Psychoanalysis, Society: Taking the Unconscious Seriously (Routledge, 2014).
  • Austad, Lene, ed. Nationalism and the Body Politic: Ethnocentrism and the Rise of Ethnocentrism and Xenophobia (Karnac Books, 2014).
  • Brunner, José. “Freud and the Rule of Law: From Totem and Taboo to psychoanalytic jurisprudence,” in Michael P. Levine, ed. The Analytic Freud: Philosophy and Psychoanalysis (Routledge, 2000): 277-293.
  • Caudill, David S. (1991) “Freud and Critical Legal Studies: Contours of a Radical Socio-Legal Psychoanalysis,” Indiana Law Journal: Vol. 66: 3 (1991), https://www.repository.law.indiana.edu/ilj/vol66/iss3/1.
  • Caudill, David S. Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory (Humanity Books, 2nd ed., 1997).
  • Dailey, Anne C. Law and the Unconscious: A Psychoanalytic Perspective (Yale University Press, 2017).
  • Deigh, John. Emotions, Values, and the Law (Oxford University Press, 2005).
  • Deigh, John. From Psychology to Morality: Essays in Ethical Naturalism (Oxford University Press, 2018).
  • Duncan, Martha Grace. Romantic Outlaws, Beloved Prisons: The Unconscious Meanings of Crime and Punishment (New York University Press, 1996).
  • Eagle, Morris N. “Psychoanalysis and the law,” International Journal of Law and Psychiatry, Vol. 48, September–October (2016): 57-61.
  • Ehrenzweig, Albert A. Psychoanalytic Jurisprudence (W. Sijthoff and Oceana Publications, 1971).
  • Felman, Shoshana and Dori Laub. Testimony: Crises of Witnessing in Literature, Psychoanalysis, and History (Routledge, 1992).
  • Glass, James M. Psychosis and Power: Threats to Democracy in the Self and the Group (Cornell University Press, 1995).
  • Goodrich, Peter. Oedipus Lex: Psychoanalysis, History, Law (University of California Press, 1995).
  • Goodrich, Peter and David Gray Carlson, eds. Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence (University of Michigan Press, 1988).
  • Hogan, Patrick Colm. On Interpretation: Meaning and Inference in Law, Psychoanalysis, and Literature (University of Georgia Press, 1996).
  • Katz, Jay, Joseph Goldstein and Alan M. Dershowitz. Psychoanalysis, Psychiatry, and Law (Free Press, 1967).
  • McNulty, Tracy. “Psychoanalysis and Law,” in The Oxford Handbook of Law and Humanities. Maksymilian Del Mar, Bernadette Meyler, and Simon Stern, eds. (Oxford University Press, 2019: 163-180.
  • Montagna, Plinio and Adrienne Harris, eds. Psychoanalysis, Law, and Society (Routledge, 2019).
  • Saks, Elyn R., with Stephen H. Behnke. Jekyll on Trial: Multiple Personality Disorder and Criminal Law (New York University Press, 1997).
  • Saks, Elyn R. Interpreting Interpretation: The Limits of Hermeneutic Psychoanalysis (Yale University Press, 1999). [This book, while not directly on topic, is written by someone well-placed and personally and professionally knowledgeable about the relations between psychology in general and psychoanalysis in particular and the law. Professor Saks is the “Orrin B. Evans Distinguished Professor of Law, Professor of Psychology, and Psychiatry and the Behavioral Sciences at the USC Gould School of Law; Director of the Saks Institute for Mental Health Law, Policy, and Ethics; Adjunct Professor of Psychiatry at the UC San Diego, School of Medicine; and Faculty at the New Center for Psychoanalysis. She served as USC Gould’s associate dean for research from 2005-2010 and also teaches at the Keck School of Medicine. Saks received her JD from Yale Law School, and a PhD in Psychoanalytic Science from the New Center for Psychoanalysis.”]
  • Saks, Elyn R. and Shahrokh Golshan. Informed Consent to Psychoanalysis: The Law, the Theory, and the Data (Fordham University Press, 2013).
  • Schroeder, Jeanne L. “The End of the Market: A Psychoanalysis of Law and Economics,” Harvard Law Review, Vol. 112, No. 2 (Dec., 1998): 483-558.
  • Schroeder, Jeanne Lorraine. The Triumph of Venus: The Erotics of the Market (University of California Press, 2004).

Notes  

1. In addition to the French moralists, novelists and playwrights, I would add psychoanalysts to this group, more than a few of whom, like the psychoanalyst Adam Phillips, and in the tradition of Freud himself, are adept at learning from or drawing upon particular arts, such as literature and poetry, as well as drama. And of course those in the humanities (including philosophy) have cultivated an abiding and deep interest in psychoanalysis, in large measure owing to its ability to carefully examine our emotional lives with a degree of realism that continues to elude academic psychology. See, for example, this handful of representative samples: Elizabeth Abel’s Virginia Woolf and the Fictions of Psychoanalysis (University of Chicago Press, 1989); the volume edited by Vera J. Camden, The Cambridge Companion to Literature and Psychoanalysis (Cambridge University Press, 2022); and from philosophers: Ilham Dilman’s Raskolnikov’s Rebirth: Psychology and the Understanding of Good and Evil (Open Court, 2000), Gemma Corradi Fiumara, The Mind’s Affective Life: A Psychoanalytic Philosophical Inquiry (Brunner-Routledge, 2001), and John Deigh’s From Psychology to Morality: Essays in Ethical Naturalism (Oxford University Press, 2018). As for the more general methodological and theoretical (involving normative values and principles) differences between “academic” or experimental psychology and psychoanalytic psychology I’ll mention but two titles: Kurt Jacobsen’s Freud’s Foes: Psychoanalysis, Science, and Resistance (Rowman & Littlefield, 2009), and Ilham Dilman’s Freud: Insight and Change (Basil Blackwell, 1988). Another contrast we should note is that between psychoanalytic psychology and contemporary psychiatry. Psychoanalysis rests, in several fundamental respects, on metaphysical (or ontological), epistemic, and philosophy of mind presuppositions and assumptions that are in striking contrast to the predominant model of contemporary psychiatry, one that unabashedly adheres to a (scientistic?) “‘medical model’ which advocates ‘the consistent application, in psychiatry, of modern [bio-]medical thinking and methods’ because psychopathology ‘represents the manifestations of disturbed function within a part of the body,’ to wit, the brain” (from the introduction to the Stanford Encyclopedia of Philosophy (SEP) entry on the “philosophy of psychiatry:” https://plato.stanford.edu/entries/psychiatry/). Biology (with genetics and neurology) is fundamentally constitutive of psychology on this account and the functions of “mind” are largely determined by or even reducible to the neuro-physiological processes in the brain. Much more could be said by way of illuminating these differences, which are often (intentionally or not) ignored or insufficiently appreciated. 

2. Elster defines “pride” as an emotion triggered by a belief about one’s own action and “pridefulness” as triggered by a belief about another’s character.

Relevant Bibliographies and Related Writings (the latter, identified with an asterisk, are fairly short pieces, save for one, ‘The Case for Psychoanalytic Social Psychology and Marxism’)

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Patrick S. O’Donnell

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