Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory

220 Pages·1997·5.751 MB·English

by  David S. Caudill

LACAN AND THE
SUBJECT OF LAW
Toward a Psychoanalytic
Critical Legal Theory
DAVID S. CAUDILL
r
Humanities Press
New Jersey
First published in 1997 by
Humanities Press International, Inc.,
165 First Avenue, Atlantic Highlands, New Jersey 07716.
© 1997 by David S. Caudill
Library of Congress Cataloging-in-Publication Data
Caudill, David Stanley.
Lacan and the subject of law : toward a psychoanalytic critical
legal theory / David S. Caudill,
p. cm.
Includes index.
ISBN 0-391-04009-X (cloth : alk. paper). —ISBN 0-391-04010-3
(paper : alk. paper)
1. Lacan, Jacques, 1901- . 2. Critical legal studies.
3. Sociological jurisprudence. 4. Law—Methodology.
5. Psychoanalytic interpretation. I. Title.
K230. L282C38 1997
340M—dc20 96-24792
CIP
All rights reserved. No part of this publication may be reproduced
or transmitted, in any form or by any means, without written permission.
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
To Chris

CONTENTS
Preface and Acknowledgments ix
Introduction xi
PART I: COMING TO TERMS WITH LACAN
1. Trafficking in Lacan: The Next Intervention
of Psychoanalysis in Law? 3
2. Networking with the Big 0[ther] 25
3. Legal Language: Meanings in the Gaps,
Gaps in the Meanings 42
4. Schlag's "Problem of the Subject": Law's Need
for an Analyst 66
PART II: LEGAL ANALYSIS IN LACANIAN TERMS
5. Social Hysteria, Social Psychoanalysis,
and Modem Witch-Hunts 85
6. "Name-of-the-Father," the Logic of Psychosis,
and Real Estate 101
7. Two Ideological Monsters: The Subject of the Bar
and the Object of Desire in Bleak House 116
8. Lacanian Ethics and the Debate over Religion
in Politics 129
9. Concluding Remarks 152
Notes 154
Index 205
vii

PREFACE AND
ACKNOWLEDGMENTS
When I was an undergraduate philosophy major in the early 1970s,
Jacques Lacan (1901-1981) was already a major figure in French philo­
sophical and psychoanalytic circles. When I was a graduate student
in philosophy in the late 197%, Lacan's work began to appear in English
translations. When I graduated from law school in the early 1980s,
Lacanian theory was familiar to many American scholars in literary
theory, film theory, comparative literature, and psychoanalysis, and
his influence was growing steadily. Nevertheless, 1 do not recall hearing
of Lacan's life and work until the late 1980s, when I had completed a
doctoral dissertation on critical legal philosophy and I was asked to
deliver a paper (at a political science conference) on the influence
(mostly indirect) of Freud within the American Critical Legal Studies
movement. I was familiar at the time with the interest in psycho­
analysis on the part of neo-Marxian Critical Theorists (e.g., Horldieimer,
Adorno, Fromm, Marcuse, and the early Habermas), whose work was
foundational to contemporary critical legal theorists, but I was not a
student of French critical theory (which also informed and inspired
many in the Critical Legal Studies movement). In my survey of the
appropriations of psychoanalytic theory by radical social theorists
generally, the influence of Jacques Lacan was readily apparent; the
more I read about him the more interested I became in the relevance
of his work for critical legal theory. Though I concluded that the
Lacanian perspective was not, in contrast to the work of Foucault
and Derrida, particularly influential in American Critical Legal Studies,
I was convinced it should be.
For the last six years I have delivered papers and published essays
on the significance of Lacan for critics of legal processes and institu­
tions. The materials in chapters 2-8 of this book are substantial revi­
sions of eight such essays, and I appreciate the permission of the editors
of Legality and Illegality (New York: Peter Lang, 1995) to reprint (in
modified form) the materials in chapter 7, and the permission of the
ix
X PREFACE AND ACKNOWLEDGMENTS
following journals to reprint (in modified form) the materials com*
prising most of the remaining chapters of this book: Studies in Psycho­
analytic Theory (chapter 2), Law and Critique (chapters 3 and 5), Cardozo
Law Review (chapter 4 and portions of chapter 8), Legal Studies Forum
(chapter 6), and The Psychoanalytic Review (portions of chapter 8).
I would also like to thank Nancy Stutesman and Sheri Kubasek for
invaluable editorial assistance, and the following colleagues and friends
for their moral support and critical comments with respect to this
project: Peter Goodrich, Peter Rush, Costas Douzinas, Richard Delgado,
David Gray-Carlson, Ellie Ragland, Richard Weisberg, Shaun McVeigh,
Steven Friedlander, L. H. "Lash" LaRue, David Millon, Dragan
Milovanovic, James Skillen, Denis Brion, Joan Shaughnessy, Louise
Halper, Tyler Lorig, Mark Bracher, Hugh Crawford, Kareen Malone,
Sanford Levinson, Pierre Schlag, and Jack Balkin. I am grateful as
well to the Frances Lewis Law Center at Washington and Lee Uni­
versity for a series of summer research grants in support of this project.
Finally, I want to thank Keith Ashfield, president of Humanities Press,
for making things happen.
In the end, it was Penny Pether who taught me that the last mile
can be the first.
INTRODUCTION
While many legal scholars—and I include in this category not only
law school professors but also philosophers of law, sociologists of
law, criminologists, law and literature theorists, and other inter­
disciplinarians concerned with the theory and practice of law—are
familiar, in varying degrees, with Jacques Lacan's psychoanalytic theory,
and even as the relevance of Lacanian categories for social theory
and cultural studies is becoming obvious, Lacan is not yet a fixture
in the theory and criticism of legal processes and institutions. My
primary intention in this book is to explore the promise of Lacanian
theory as a critical supplement to the discipline of law. In recognition
of the fact that some readers interested in Lacan and law have not
studied his own and his followers' work, I have divided this book
into two parts. Part 1 is intended as an introduction to several Lacanian
conceptions that are particularly significant for any attempt to em­
ploy Lacan's methodology in the service of contemporary legal theory.
(Part 2, an exercise in applied psychoanalysis, builds upon the con­
ceptions introduced in part 1 by reference to several current legal
controversies.) Given, however, that the term "introduction" is am­
biguous with respect to an author's assumption of the understanding
of his or her readers, a few qualifications are in order.
First, while I do not in part 1 assume any familiarity with Lacan's
analytical framework, and while I introduce Lacan's notions of the
"Other," the symbolic order of language, and the decentered subject
in what I believe to be their ascending order of complexity and unfa­
miliarity for critics of law (from any disciplinary perspective), I do
assume some familiarity with (1) the ongoing debates over postmodern
approaches, (2) the so-called hermeneutic or interpretive "turn," and
(3) the challenge to human agency known as the problem of the sub­
ject or "self" (i.e., its supposed disappearance), each of which has
affected and/or divided almost every discipline of contemporary
academia. Examples include the debates in literary theory over whether
the meaning of a text is determinable by reference to the author's
intention, the text itself, or the reader; the debates in historiography
XI
xii INTRODUCTION
over whether an historical account always involves fictional "emplot-
ment"; the debates in the natural sciences over the sodality or narrativity
of sdence; the debates in philosophy over the rationality of human
knowledge; and the debates in law concerning the indeterminacy of
legal doctrine. The extreme positions in these debates—like the belief
in objectivity or the belief that all knowledge is illusory—are less than
helpful, as are the exaggerated caricatures of traditional thinkers as
ideologues or postmodern thinkers as nihilists. One of the primary
aims of this book, alongside my identification of some implications
of Lacan for legal theory, is to demonstrate that the most helpful cul­
tural criticism takes place between the extremes in contemporary de­
bates over postmodernism—that theme predominates in the first and
last chapters of this book, with the remaining chapters focused on
Lacanian theory as an example of avoiding the extremes. Neverthe­
less, Lacan is a radical thinker and is critical, for example, of Enlight­
enment ideals of rationality and freedom, of most post-Freudian
psychoanalytic theory, and of scientism. To the extent that we may
speak, perhaps more heuristically than descriptively, of an ongoing
struggle between traditional (or mainstream) thinkers and postmodern
(or critical) scholars in law schools as in English or Comparative Litera­
ture or History Departments, my own (and most existing) discourse
concerning Lacan will be most accessible to nontraditional scholars
and their sympathetic critics.
Second, while I explore several elements of Lacanian theory by ref­
erence to contemporary legal theory and practice, my examples in
part 1 (regarding legal education and contract law) are quite simple
and are included primarily to explain Lacanian theory to readers in­
terested in law. I reserve for part 2 my more developed applications
of Lacan's work to concrete legal problems, thus the examples in part
1 are merely suggestive. Readers familiar with Lacanian theory may
therefore choose to skip or perhaps skim part 1, though the basic
legal applications in the early chapters may be of interest to students
of Lacan who are less familiar with the critique of legal institutions
and processes.
Third, while Lacan's training and approach is decidedly psycho­
analytic, I do not attempt in this study to place Lacan in the history
of—French or otherwise—psychoanalysis, nor do I attempt to com­
pare and contrast Lacanian theory with existing "schools" of psycho­
analysis, such as American ego psychology, self psychology, object
relations theory, and so forth. (The implications of each such school
for legal theory is likewise not a subject of this book.) Readers familiar
with various psychoanalytic theories will make their own compari-