Law, Psychoanalysis, Society

Taking the Unconscious Seriously

Maria Aristodemou

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781134640454
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

'I swear to tell the truth, the whole truth, and nothing but the truth' we say in a court of law. 'In a court of law, the truth is precisely what we will not say', says Lacan. 'If God is dead, everything is permitted', writes Dostoyevsky. 'If God is dead, everything is prohibited', responds Lacan. 'I think, therefore I am', reasons Descartes. 'I am where I do not think', concludes Lacan. What are we to make of Lacan's inversions of these mottos? And what are the implications for the legal system if we take them seriously? This book puts the legal subject on the couch and explores the incestuous relationship between law and desire, enjoyment and transgression, freedom and subjection, ethics and atheism. The process of analysis problematizes fundamental tenets of the legal system, leading the patient to rethink long-held beliefs: terms like 'guilt' and 'innocence', 'truth' and 'lies', 'reason' and 'reality', 'freedom' and 'responsibility', 'cause' and 'punishment', acquire new and surprising meanings. By the end of these sessions, the patient is left wondering, along with Freud her analyst, whether 'it is not psychology that deserves the mockery but the procedure of judicial enquiry'.

A unique study on the nexus of Law and Psychoanalysis, this book will interest students and scholars of both subjects, as well as general readers looking to explore this perverse and fascinating relationship.

Chapter 1

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The unconscious is out there

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In the spring of 2013 British society was rocked by allegations that one of the country’s foremost entertainers, children’s television presenter, and life-long charity campaigner, a figure who had been in the public eye for decades and had been honoured with a knighthood by the Queen, had been guilty of molesting hundreds of children in his care. Scotland Yard initiated a countrywide enquiry dubbed Operation Yewtree following complaints by over 400 victims and every day brought dozens of new allegations confirming the abuse.¹ Among the loud voices expressing shock and disbelief at the number of years the abuse had gone undetected, there was a strong but vocal minority: what was everyone surprised about, it asked – the guy obviously and clearly behaved like a paedophile, openly parading his attraction to underage girls on national television. What was supposedly hidden and unthought of had been on the surface for everyone to see for years.

This book is based on the same premise: the unconscious that is supposedly hidden and hard to excavate is nowhere but on the surface of our practices, if only we dared to look. As Peter Serafinowicz said of ‘Sir’ Jimmy Savile, ‘he was a child molester who hid behind the disguise of a child molester’.² Furthermore, the occurrence of regular abuse by a central figure hiding in plain sight, far from being an isolated bad apple at the heart of a functioning system, revealed the obscene underside of the supposedly healthy system itself. The system, indeed systems in this case, included the country’s public broadcasting corporation, several health care trusts, national charities, children’s homes and a mental hospital.

We can all recall instances of abuses at the heart of public and private institutions, from child abuse in the Catholic church, to the abuse of inmates in prison and patients in care homes, to politicians’ fiddling their expenses in the heart of Westminster.³ What is further disturbing about such stories, is not the abuse itself, which is disturbing enough, but our feigned surprise each time they are brought to our attention. In that vein, the recent ‘revelations’ brought to us by Wikileaks and Edward Snowden only ‘revealed’ what we all knew was happening all along: that soldiers were abusing prisoners and non-combatants at a time of war was not a surprise even before the images from Abu Ghraib became public; nor that our governments, in collusion with our phone and internet providers, had been eavesdropping on our private conversations and correspondence. Again what was supposedly hidden and unheard of had been an open secret save for us refusing to believe or discuss it: until the ‘revelations’ meant we could no longer pretend not to know what we suspected was happening all along.

These unacknowledged ‘secrets’ also lie, I will argue, at the heart of our laws and legal systems and it is in order to bring them to the surface that I turn to psychoanalysis. Psychoanalytic insights and terminology have entered every domain of contemporary culture, to the extent that there is an argument for calling the last century the ‘Freudian century’. The ubiquity of psychoanalytic vocabulary in our language, however, does not entail an acceptance or even an understanding of psychoanalytic discourse. Indeed psychoanalytic ideas may be acknowledged and circulated precisely to the extent that they are not fundamentally accepted; in that case the appeal to psychoanalysis is made at the same time as the implication of psychoanalytic insights is radically denied. The tendency, that is, is to feign familiarity and acceptance at the expense of responding to its challenging message. The paradoxical result of the ubiquity of references to psychoanalysis therefore is to domesticate rather than confront the challenge posed by the unconscious.

In law too, despite increasing references to psychoanalytic concepts, the implications of a psychoanalytic consciousness – which, as Freud supposedly put it, ‘is bringing us the plague’ – have yet to be assimilated by legal theory. This book will address the consequences for legal theory of a psychoanalytic approach that is faithful to the work of Sigmund Freud and Jacques Lacan. Its argument is that the reality of the unconscious poses extensive challenges to legal theory and practice, challenges that we can only start addressing, not by domesticating, but by taking the unconscious seriously. As we will see in the course of this book, terms that the legal system has long relied on and made central to its discourse, such as ‘truth’ and ‘lies’, ‘guilt’ and ‘innocence’, ‘reason’ and reality’, ‘freedom’ and ‘responsibility’, ‘cause’ and ‘evidence’, ‘ethics’ and ‘morality’, ‘justice’ and ‘punishment’, ‘human rights’ and ‘the neighbour’, acquire new and surprising meanings. When we look at those concepts ‘awryly’, through the refracted lens of psychoanalysis, we start to wonder with Freud, whether ‘it is not psychology that deserves the mockery but the procedure of judicial enquiry’.⁴

Psychoanalysis interrogates not only a host of distinctions legal discourse religiously relies on, but problematizes law’s primary presupposition, that is, the distinction between public and private. Psychoanalysis is not the first discourse to challenge the distinction between the public and private spheres bequeathed to us by modern liberal theory, or to critique its limitations and convenient ability to ignore injustices that are perpetrated in the off-limit realm of the ‘home’. Psychoanalysis goes further, however, in pointing out that the two realms are not only linked but continuous and, like the famous Moebius strip, indistinguishable. It points out, in particular, that the distinction between public and private is problematic because what is supposedly most intimate and hidden by and from the subject is taken from outside, from the symbolic order of language and culture.

Freud, as ever, had already started exploring this with characteristic and disarming simplicity: ‘In the individual’s mental life,’ he writes, ‘someone else is invariably involved, as a model, as an object, as a helper, as an opponent; and so from the very first individual psychology … is at the same time social psychology as well.’⁵ For psychoanalysis it is axiomatic that the distinction between inside and outside is not clear-cut since what is supposedly private and inside is derived from outside: from our parents, teachers, public figures and from the realm of culture and the symbolic order in general. Rather than turning legal discourse upside down then, psychoanalysis turns it inside out: that is, it reveals not the opposite or antithesis of legal discourse, nor what is outside or even excluded by it, but its other side, that is, the ideologies, fantasies and unconscious desires that support legal discourse from underneath. And unfortunately, as the Jimmy Savile example shows, the underside is not always healthy or clean but obscene and dirty. No wonder then that every subject and every system prefer to keep it out of view.

Psychoanalysis throws into doubt the assumption of a division between the public realm of law and state on the one hand and the private realm of the individual on the other because for psychoanalysis, it is the distinction between self and other, subject and neighbour, inside and outside, that is precisely blurred: the most intimate part of ourselves is actually taken from the outside, from the other. Indeed, to pursue Freud’s own description of the uncanny as the horror of the all-too-familiar, we could say there is nothing more uncanny than the experience of analysis itself. In analysis, what is most intimate to oneself appears as if for the first time to an unwilling and hostile audience: the subject herself encounters the self she didn’t know she harboured. No wonder psychoanalysis is the ultimate horror story, confronting the subject with her own limits, in effect, with her own relation to death. As we will see in pages to come, Lacan coined a beautiful neologism for this intimate yet disavowed place, denoting the fact that it is excluded in the interior; it is a term that I will be returning to time and again, the ‘extimate’.

For psychoanalysis, attempts to understand and legislate for the individual cannot take place without understanding how the individual and the social interrelate: unless we understand the nature of the individual and her relationship to the social, our ability to reform the social, including the legal, realm, will be sadly limited. It is in the human psyche and its relationship to the Big Other, that we must look for the potential for change if meaningful and lasting social and legal reforms are to be achieved.

Conversely, our difficulty, or inability to affect social structures even when we appear to try to, is due to the fact that those structures are entrenched not only in the symbolic realm but in our own unconscious. Politicians know this only too well and are quick to stoke and incite our fantasies, some more successfully than others. Whether the fantasy is of a nation, a religion, a common friend or a common enemy, nothing will command more lasting support than the ability to reach the parts laws and policies on their own cannot reach: our unconscious.⁶ As we will see in the course of this book, there is nothing harder or more painful than letting go of our fantasies, the stories we weave and come to believe about ourselves and others. It is our fantasies, after all, that constitute us as subjects so if any meaningful change is to take place it requires the shattering dissolution not only of our laws and policies but of the unconscious beliefs and fantasies that support them.

How do we access those beliefs and fantasies? How do we put law on the couch, listen to its monotonous ramblings and excavate its unconscious desires? To attempt to examine law and legal discourse through the psychoanalytic lens is, of course, no easy task. How can one uncover the unconscious workings of the rules and principles that make up the symbolic order in general and of the legal system in particular? As we know, it can take years of painstaking and expensive analysis before an individual, kicking and screaming no doubt, can be said to come face to face with their idiosyncratic and invariably embarrassing and shameful desires. How do we get Law to lie on the couch, start talking to the analyst (and who, if anyone, could Law develop a transference with), and then gradually move from empty to full speech, let alone pay the debt for its analysis?

My wager is that these questions are not only rhetorical but also metaphorical. As I have started describing, those beliefs are already ‘out there’, in our practices and products of our culture: like the activities of Jimmy Savile or the NSA, they are open for us to see, if only we dared to. In the same way that the abuses by public figures like Jimmy Savile had been an open secret at an organization like the BBC, we do not need ‘Law’ to lie on the couch because the unconscious laws that influence and determine our behaviour do not reside in some unexplored recesses of the mind but are displayed in all their (dirty) glory in the practices and products of our culture. Cultural, no less than legal, texts proclaim knowingly and unknowingly, consciously and unconsciously, the ineluctable rules and mores that make up the social order, whether we are aware of them or not, like them or not, suffer them, tolerate them, or enjoy them. In the same way our myths and cultural texts, to follow my own Law & Literature thesis from over a decade ago, are just as influential and norm-making, if not more so, than so-called ‘real’ laws.⁷

Rather than hidden away beyond our reach, the unconscious rules and principles that order our individual and collective lives, are established and displayed by our cultural practices under the full lights of our social order. Most of the time, of course, as in the Jimmy Savile example above, we prefer to stay blissfully unaware of them; they are the ‘known unknowns’, to use Slavoj Žižek’s poignant corrective to Donald Rumsfeld’s epistemological categories, that is, things our unconscious knows, but our conscious selves prefer to ignore. They are the disavowed practices and beliefs that co-exist and underline the official practices while remaining firmly swept under the carpet.⁸ Needless to say, Donald Rumsfeld is not the only person suffering from a blindspot in their field of vision, and not only when it comes to illegal wars; the ‘known unknowns’ are a blindspot for us all, hence the need for what Hölderlin called a ‘third eye’ to remind us of what we know but daren’t openly acknowledge let alone pay the price for.⁹ This ‘third eye’ can be provided not only by the occasional Julian Assange or Edward Snowden, not even only by an analyst, but as we will see, by our cultural products and practices.

The focus of the book will be the unconscious law inscribed in cultural no less than in legal texts and manifested in our society’s cultural products and practices, in our aesthetic as well as political choices and preferences. Poets, as both Freud and Lacan acknowledged, understood societal norms and the unconscious processes supporting them long before psychoanalysts and have always been adept at taking seemingly marginal phenomena to epitomize what is central and inherent to society. Whether we are referring to well-known and best-selling cultural texts or less celebrated products, it is through the interstices of culture, through its loud as well as its less noisy manifestations, that the core of the unconscious can be gauged: in the same way that, as Freud insisted, it is in our mistakes, our jokes, our slips of the tongue or of the pen, that the truth of our desire may be gauged.

The assumptions underlying our legal discourse are no exception; they also derive powerful support from the ideas and ideals pronounced in our cultural texts and practices. Indeed without support from cultural products, the legal order would not be able to constitute itself let alone survive. The aim of a psychoanalytic approach is to bring these assumptions to the surface and display them in all their glorious fictitiousness. By the end of the analysis, hopefully, the patient will start seeing herself otherwise, leading her to start questioning her own long-held beliefs and precious identifications. For it seems to be the case, more than a century later, that we still need to be reminded of Freud’s warning: ‘It is essential to abandon the overvaluation of being conscious’. The unconscious is not only ‘the true psychical reality’, it is also ‘indestructible’.¹⁰ The question therefore is not whether we should take it seriously, but whether we can ever take it seriously enough.

The products of a society’s culture are some of the best indices of the unconscious laws governing that society because culture, as Freud started exploring, arises to heal and thereby also hide the faults, gaps, dysfunctions and contradictions of the social order. In other words, culture functions to present society as a cohesive ‘whole’, obfuscating the abiding problem that society as a ‘whole’, does not exist. Since society, like individual identity, is never whole, never unified or ‘one’, culture generally, and popular culture in particular, serve to cover society’s gaps and contradictions. As Žižek puts it, culture creates a public space around society’s emptiness and enables us to think that there is such a thing as a ‘shared symbolic order’. In short, successful cultural products perform the function of ideological fantasies, concealing the fact that ‘society does not exist’.¹¹

How does a cultural product serve the central ideology? In Jacques Lacan’s famous aphorism, the unconscious is not only a law but is also a law that is ‘out there’, manifested in our society’s cultural products, our aesthetic choices and preferences. The fact that our cultural products are gently and invisibly inscribed on our subjectivities, makes culture, as Slavoj Žižek has been arguing for over two decades, the central ideological battlefield today. Culture, as he insists, and as we can agree, is not opposed to, but intertwined with the economy: indeed ‘culture war is a class war in displaced mode’.¹² Moreover, it is pointless to say, to use one common example, ‘yes, Hollywood does always and forever celebrate the heterosexual couple, it does promote liberal democracy as the one and only political system we can possibly choose, it does pretend that the American dream is free and open to all, and it does congratulate, in each and every instance, possessive individualism or, when it’s being generous, the ‘family’. Yes it does regularly do that, but you know, that’s just Hollywood’. The ...