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By psychoanalysis, we refer not to clinical practice, but Lacanian theory as read by Slavoj
iek and the Slovenian school as following the Continental, speculative philosophical tradition.
Lacan does not adopt a simplistic distinction between gender (the social) and sex (the
biological), 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 it
through the symbolic (words) and the imaginary (imagery). Nevertheless, our understanding of
sexuality is figured by anatomy (hence his terminology).
but the two like the sexes are not opposites and can never be separated. Each depends on the
other even as each is incompatible with the other.
Psychoanalysis offers a possibility of authentic feminist jurisprudence. Mainstream feminist
legal theory cant get beyond yin-yang essentialism, either extolling the stereotypical feminine
different 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 that
can never close.
Discourses
Psychoanalytic feminism depends upon, and therefore can not banish or subordinate, the
masculine to the feminine. The masculine fantasy of commensuration is the condition for the
possibility of meaning and communication. Accordingly, psychoanalysis sees at least four
discourses 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 is
obeyed 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 law
alone can enjoy sovereign sway and masterdom. Psychoanalysis agrees that positivism captures a
necessary, but insufficient, element of laws reality.
Lacan agrees that, in the masters positivistic discourse, law must be divorced from
morality, understood as the ought. The official applies the rule recognized as law regardless
of what it should be. Consequently, the master and law are idiotic. They do not deserve their
position because of wisdom, morality or any other reason. The master rules because the slave
recognizes his status. Similarly, the official obeys the law because she recognizes its status through
an appropriate rule. Of course, any empirical master might be wise, any positive law, just, but this
is 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 deserve its privileged position because of superior knowledge. Despite its
name, this discourse is not limited to universities (indeed, true science and learning require the
feminine 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 discourse
by 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, then
some other master yet to be. That is, experts apologize either for what positive law is or what it
should 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 cause
those subjected to law to act in a way calculated to achieve this goal. Law is no longer idiotic but
rationalized and justified. However, this is at the expense of the freedom of any specific subject
whose own desire is subordinated to the collectivity.
This being said, psychoanalysis is the critic, not the enemy, of the two masculine legal
discourses law. Harts concept of law as rules is a necessary moment in all legal regimes. One
cannot 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 into
being through symbolic relations. To be a part of society requires one to subordinates oneself to
objective interpretation. It acts as a constraint, but a post hoc one. It enables us to adopt or disavow
our past acts. Kant thought that an autonomous, noumenal moment of personality was hidden under
our pathological, empirical selves. To Lacan, this is the masculine fantasy. Yet although the
(masculine) autonomous position is imaginary, it is necessary. Subjectivity and law are revealed
to be in tension in the dynamics of interpretation.
Right
Psychoanalysis seeks an uneasy reconciliation a temporary truce, between law and
freedom. It shows how law and freedom, albeit contradictory, require each other. Psychoanalysis
does not presume to reinvent the wheel of philosophy. In this it follows the lead of German
idealism. It takes very seriously the metaphysical philosophy of Kant and Hegel, which
unfortunately creates a barrier to entry for those who wish to practice it.
The task of reconciliation begins with the destructive jurisprudence of duty. Kants freedom
is a negative freedom, in which all constraints are obliterated. Kantian freedom is spontaneity the
subjects capacity to act purely out of duty to a moral law she self-legislates. For the subject to do
so she must, therefore, erase all heteronomy become masculine. Heteronomy is everything other
than autonomy including the very things that utilitarianism and positivism exalt natural inclination
and positive law. Inclinations, emotions and compulsions from positive law are all pathological
content that must be eliminated in the name of freedom. Freedom requires each individual to be an
end in herself, and not the means to the ends of another. What is left standing is the free,
autonomous individual. And whatever this individual does is guaranteed to be universally valid for
all autonomous individuals.
Kants individual would be a pure noumenon, stripped of phenomena. Hegel and Lacan,
however, completely reject all notions of transcendence. There can be nothing that is not embodied,
no noumenon beyond phenomena. Nothing is potential unless it is actualized in the empirical world.
Action is the proof of being. The free Kantian (masculine) individual is, from Hegel's perspective
a mere potentiality, not an actuality. Freedom can be actualized not by eliminating heteronomy, but
by embracing it.
In Hegel's philosophy of right, the autonomous individual makes his freedom actual by
advancing to higher stages of personality by becoming feminine. The most primitive stage is what
Hegel calls abstract right. Logically, subjectivity turns out to be intersubjectivty. One becomes a
subject by being recognized as such by another subject. Hegel identifies the most primitive
intersubjectivity as property and contract. Thus, law is the medium by which freedom actualizes
itself through the creation of subjectivity.
Subjectivity can only be bestowed by another subjects recognition. However, there are no
subjects in the state of nature, only other abstract individuals. Consequently, to achieve subjectivity
each individual must first help his fellow individuals to achieve the status of subjectivity. He does
this by deciding to recognize other persons as subjects entitled to be recognized as having rights.
Consequently, Hegel reconciles liberalisms concern with rights and the Kantian concern with moral
duty. As in Kant, the individual can not actualize his freedom by claiming rights for himself, but
by recognizing his duty to the other. However, Hegel, anticipating Hohfelds legal correlatives
understands that a duty can only be understood in terms of rights owed to others. The alchemy of
the psychoanalytic approach to law is that abstract right both achieves the goals of making another
person into a subject and allowing the other subject to recognize (thereby creating) the first as a
subject.
To have intersubjective relations, one must first become recognizable to others and to
oneself. However, the Kantian individual, stripped of heteronomy, has no distinguishing
characteristics. The individual can differentiate herself through private property: the regime of
romanticism the idea that somehow there is a natural subject distorted by law. Romanticism
emphasizes the pain of desire. It supposes that this pain is caused; something is to blame for it. And
that something is, of course, law. Legal interpretation takes place in a field of pain and death, the
arch-romantic Robert Cover once wrote. (Cover 1986: 1601) Romanticism promises to get back in
touch with the authentic subject which does not feel the pain of desire. Psychoanalysis views this
as false autobiography.
The romantic dreams of authenticity he yearns to be masculine, an individual in the literal
meaning of the term of un-divided, integral and non-desiring. He wants to recover the phallus. But
the speculative position argues that the individual is only a potentiality that can have no empirical
existence. To exercise actual freedom, and to relate to others, is to become feminine, a dividual, a
barred 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 a
retroactively generated hypothesis a fantasy in the psychoanalytic sense. There never was a time
in which we were whole and complete (had the phallus). We do not desire because law has taken
something 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 negative
unity, 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 can
ever sate the unqeunchable desire that is subjectivitys essence. Consequently, Lacan argues that
the only ethic psychoanalysis can suggest is do not give way with respect to your desire. (Lacan
1986: 319) Of course, the empirical people who practice psychoanalytic jurisprudence have political
opinions, but they have given up the notion that philosophy can play any very useful role in the
micro-ethical issues with which politics concerns itself. Psychoanalysis leaves the task of
suggesting policy currently the bread and butter of the American academic scene to the experts
of the universitys discourse.
Hegel insisted that philosophy comes too late to give advice on concrete issues the owl
of Minerva begins its flight only with the onset of dusk. (Hegel, 2002: 23) Speculative
philosophys central presupposition is that the legal subject is the personification of freedom. The
two feminine discourses of the analyst and hysteric can only interpret and critique the law from the
perspective of the desire of the subject subjected to the law. Or more accurately, the subject is
nothing and, therefore, free. The consequence of this lesson is that philosophy cannot tell us what
we 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.
Hume, David. A Treatise of Human Nature. Eds. T.H. Green & T.H. Grose. London: Longmans,