of American legal history must âď¬tâ (Llewellyn 1934: 205 n.â—).
At issue for Llewellyn is the series of implicit philosophies â“ unconscious forms
of thought, âthose premises, albeit inarticulate and in fact unthought, which yet
make coherence out of a multiplicity single ways of doingâ â“ concretely embodied
in the history of American law as it has been practiced, âdone,â and âlived,â and
not as it has been written about or theorized by legal philosophers (who, with the
exception of some contemporaries, Llewellyn interprets as doing no more than
âgiving fortunate expressionâ to those âliving currentsâ of their time). Llewellynâ™s
demand is that we no longer settle for treating this series of philosophies-in-
action as an âinconsistent hodgepodgeâ but that we reduce it in thought to a
âsingle pictureâ capacious enough to comprehend the entire series as a meaningful
totality in which the motivating realities of the historical actors in each period are
given their due, but their own explanations of their motivations â“ whether natural
law, right reason, or a positive system of precedent â“ are dismissed as ideology.
(Llewellyn 1934: 206).
Anyone familiar with Hegelâ™s philosophy of history will recognize in the account
so far a rather precise description of its contours. For Hegel, history was a sequence
of embodied forms of consciousness captured in the habits and attitudes of the
community (which he called its Sittlichkeit, or âethical lifeâ). This sequence was no
inconsistent hodgepodge, moreover, but a uniď¬ed and meaningful totality â“ albeit
a temporally extended totality â“ understood as the concrete manifestation of what
Hegel called reason (or spirit, Geist) developing itself over time. Reason, for Hegel,
On Continental Philosophy in American Jurisprudence 133
was not (as it is for us late moderns) a characteristic of an individual mind. Rather,
it was a supraindividual principle that operated through but behind the backs of
(in a manner âinarticulate and in fact unthoughtâ), the passions, thoughts, and
feelings that motivated individual historical actorsâ™ conduct (Hegelâ™s [1980: 89]
expression for this was âthe cunning of Reasonâ). Of course Hegelâ™s ď¬eld was world
history and not American legal history. Nevertheless, the structural parallel with
Llewellynâ™s history of American law is striking â“ and let us not forget that for
Hegel the ď¬nal historical form assumed by reason was the state, its laws, and its
institutions. In short, for Hegel, reason provided the single picture that Llewellyn
was looking for, the one implicit philosophy that could âyet make a coherence out
of a multiplicity of single ways of doing.â
Llewellynâ™s essay is thus a quasi-Hegelian exercise in historical interpretation, in
which he reinterprets ď¬rst the natural law philosophy of the founders and then the
positivism of the Gilded Age as ideological products of the underlying social needs
of the moment. For Llewellyn, in other words, it is not Reason or Spirit but âsocial
needâ that constitutes the implicit philosophy that guides individuals on the stage
of legal history, regardless of their own citations to âRight Reasonâ or the formal
dictates of positive precedent as the explanation for their actions. This functional
understanding of law â“ the notion that it is best understood in terms of its role
in mediating and serving social needs â“ is so familiar today as to appear banal.
In that sense, Llewellynâ™s overarching âimplicit philosophyâ (Llewellyn 1934: 206)
has not only become dominant; it has become explicit. The predominance of social
need has risen to the level of active consciousness and has thus itself become, in
our enlightened modern age, the philosophy that is citable by individual historical
actors in legal opinions and arguments (and law review articles) as the basis for
Of course, we should not forget that the natural lawyers of the founding era
held similar beliefs about the overarching explanatory power of âRight Reason,â
as did the lawyers of the late nineteenth century about formalism and positive
precedent. And, we should note â“ perhaps with even more trepidation â“ that that
is also what Hegel believed about his own metaphysical philosophy of spirit. In
his view, the emergence of the modern legal state signaled the fact that Spirit had
manifested itself in its ď¬nal form, and thus, by necessary implication, that his own
philosophy of Spirit was the becoming-explicit of what had theretofore been only
an âimplicit philosophyâ (Llewellyn 1934: 206) of the social order. The sheer fact
of these historical precedents perhaps ought to cause us to wonder whether our
Realism (understood broadly to include the related schools mentioned earlier)
will, or should, suffer the same fate that has befallen the intellectual hubris of these
That said, there is one important respect in which Llewellynâ™s conception of phi-
losophy differs from Hegelâ™s, an even more important difference than his substitu-
tion of social need for Spirit. (Karl Marx, by way of example, similarly substituted a
certain concept of social need â“ class interest â“ for Spirit in the Hegelian philosophy
of history without fundamentally changing its structure.) Although he empha-
sized the implicit nature of most philosophy, Llewellyn (1934: 206) also insisted
on the possibility, however rare, of the conscious invention of new philosophies,
134 Adam Thurschwell
and â“ even more important for my purposes â“ that such new philosophies may
have important social and political consequences: âI shall urge that the inventor
of a new philosophy, or of a creative adaptation of some ancient one to current
needs, may with luck affect or deď¬‚ect the current of his times. There is a certain â“
or better, an uncertain â“ leeway within which the individual contributes to the
shaping of societyâ (Llewellyn 1934: 206).
Despite the caution of Llewellynâ™s formulation, the notion that philosophizing
could have any practical impact on its historical moment â“ as Marx put it, could
change the world as well as interpret it â“ is one that Hegel could never have
accepted. He explicitly rejected the idea that philosophy could give âinstruction as
to what the world ought to be,â because â[a]s the thought of the world, it appears
only when actuality is already there cut and dried after its process of formation has
been completedâ (Hegel 1952: 12â“13).
Llewellynâ™s cautious faith in the possibility that an individual thinker can affect
the course of history, despite the Hegelian nature of his conception of history and
philosophy, places him squarely in the camp of post-Hegelian thinkers who remain
respectful of the Hegelian legacy â“ that is, those thinkers who, taking Hegelâ™s cri-
tique of Kantâ™s dualisms with absolute seriousness, nevertheless reject his ultimate
reconciliation of those dualisms in the metaphysical teleology and determinism of
Absolute Spirit. That camp includes the traditions of contemporary Continental
philosophy, including those Continental philosophers who have written speciď¬-
cally on law and politics. But it also includes philosophical traditions that are much
closer to Llewellynâ™s (and our own) Realism. With regard to American pragmatism,
for example â“ one of the pillars of the realist movement, according to Llewellyn
(1934: 212) â“ Richard Rorty (1982: 16) has referred to âJohn Deweyâ™s â˜naturalizedâ™
version of Hegelian historicism,â a characterization that accurately captures both
pragmatismâ™s acceptance of Hegelâ™s historically situated conception of reason and
its rejection of his metaphysics. The jurisprudential problem shared by these post-
Hegelian Continental traditions and American pragmatism â“ a problem that is at
the same time political and ethical â“ is the problem of freedom: how to articulate
a notion of meaningful historical action that does not presuppose Kantâ™s dual-
ism of the free, noumenal subject and its heteronomous, phenomenal historical
Llewellyn insists that philosophical writers can be both free actors and embed-
ded in their history: that they can be âheralds of the futureâ even while remain-
ing âproducts of their times.â How can these two notions be reconciled? He
is very clear about the mechanism of this reconciliation, a mechanism that is
deeply Hegelian. It is by bringing to consciousness felt needs that were previously
present but unconscious that the âinventor of a new philosophy . . . may, with luck,
affect or deď¬‚ect the current of his times.â âA lone man, by his formulations, may
indeed make felt a need of which no one had been conscious beforeâ (Llewellyn
1934: 206). In this way â“ and again in good Hegelian fashion â“ even the inven-
torâ™s freedom is itself in a real sense not the writerâ™s own but a âproduct of its
The challenge left to us by Llewellynâ™s essay, it seems to me, is thus whether
our current legal philosophy-in-action and its dominant conscious articulations
On Continental Philosophy in American Jurisprudence 135
continue to respond to the âfelt needsâ of our time, or whether there are needs
that, although felt, can be articulated only in some other philosophical vocabulary.
In considering this question, we might take some guidance from Llewellyn (1934:
211â“12), who warned against a certain deafness to the marginalized and oppressed
as the âmost importantâ reason the legal-philosophy-in-action of his time had
âfallen hopelessly behind the times.â And, in considering the merits of such a
ânew philosophy,â we might also keep in mind just how âhopelessly unorthodoxâ
(Llewellyn 1934: 212) the views of Holmes, Pound, and Llewellyn himself appeared
in their own time.
I cannot, obviously, engage here in a systematic critique of the currently domi-
nant American jurisprudential schools from this perspective. Nevertheless, it seems
to me that in their various mixes of ahistoricism, incipient formalism (sometimes
mathematical formalism), and unthinking positivism (whether in the reliance on
unanalyzed notions of interest or fundamental value), the dominant schools of
American jurisprudence bear a family resemblance to the formalist, positivist, and
natural law philosophies that Llewellyn criticized seventy-ď¬ve years ago. Nor can
I defend in a systematic fashion the proposition that Continental modes of phi-
losophizing hold out some better hope for articulating the yet-unarticulated felt
needs of our philosophical moment (beyond the preceding attempt to suggest the
fruitfulness of a Hegelian reading of a founder of the Realist movement). By way
of concluding, I will instead offer a prolegomenon to such a systematic account
that begins with a concrete example of a current jurisprudential problem, one that
(it seems to me) suggests how Continental approaches might better serve the âfelt
needsâ of American jurisprudence.
That example is the problem of afď¬rmative action, which has proved difď¬-
cult to justify in traditionally liberal-philosophical terms. The problem has been
that deontological approaches to right inevitably seem to falter when it comes to
explaining why individuals with stronger merit-based claims to a particular beneď¬t
should be passed over in favor of others with less strong claims, particularly when
the criterion for favoritism is based on race or some other (typically invidious)
basis for discrimination (Sandel 1998: 135â“47). Even if one accepts the utilitarian
value of these programs, the apparent violation of individual claimantsâ™ formal
right to equal treatment under law â“ again, particularly when the criterion of
favoritism is as historically suspect as race â“ seems to run up against the liberal
principle that individual rights remain inviolate even in the face of arguments for
the greater good of the community. Thus, conservative opponents of afď¬rmative
action have been able to turn the liberal language of formal individual right against
the liberals who seek to remedy social ills.
In response, Michael Sandel (1998: 143) and others have argued that what is
needed is a different conception of the rights-bearing subject, one that views the
subject not as an atomic individual but a âparticipant in a common identityâ: âwe
may come to regard ourselves . . . less as individualized subjects with certain things
in common, and more as members of a wider (but still determinate) subjectivity,
less as â˜othersâ™ and more as participants in a common identity.â Understood in this
way, the failure to obtain a particular beneď¬t may come to be seen as a gain for the
individual claimant rather than a loss insofar as the larger community beneď¬ts,
136 Adam Thurschwell
not because of a utilitarian sacriď¬ce of the individual but because the individual is
inseparable from the community of which he or she is a part.
As Sandelâ™s argument suggests, afď¬rmative action constitutes one front in the
larger battle played out in the so-called liberalism-communitarianism debates of
the past twenty years. The revolving-door nature of these debates is, arguably,
a function of their essentially ahistorical character, because positions that begin
from incompatible views of the deontological constitution of the legal subject
(individual and autonomous, or socially constituted and decentered?) are doomed
to talk past one another. What if instead, however, the autonomous liberal-legal
subject of right was itself an historical achievement and not a metaphysical (or
postmetaphysical, for that matter) postulate of liberal philosophy? If it turned out
that the dominant normative role of the subjectâ™s autonomy and abstract right
in developed liberal legal systems was itself the end point of a social-historical
development, then a bridge conceivably could be built between the liberal and
communitarian positions in the debates. In the context of afď¬rmative action, it
would become plausible to argue that it is proper and legitimate to judge afď¬rmative
action remedies by substantive and historically grounded criteria rather than by
strictly formal conceptions of equality, because the notion of formal equality is itself
a substantive and historical âproduct of its times,â to use Llewellynâ™s expression.
Sandelâ™s account gets halfway there by emphasizing the communitarian nature
of the subject of right, but it was Hegel who ď¬rst offered a full-blown history
of the modern subject that based formal right on a concrete historical narrative.
For Hegel, the individualâ™s self-conscious understanding of him- or herself as
possessing an intrinsic dignity and freedom that stands apart from his or her social
role (e.g., as slave, peasant, aristocrat, landowner) cannot be understood apart from
the historical development of social and legal institutions that gave this new concept
of autonomy its meaning and effect. Without claiming that this historicized view
can by itself decide particular cases, I do suggest that it provides rich justiď¬cation for
supplementing (or superseding) arguments on afď¬rmative action based on formal
right with socially grounded and substantive arguments based on histories of racial
exclusion, and on the inconsistencies of those exclusionary histories with the larger
history of equality and freedom that underwrites the formal right position.
Such a historicized account of formal right is difď¬cult to square with those
currently dominant interpretations of our realism that explicitly or implicitly
posit the autonomy of the subject, like the Law and Economics and rational
choice schools, but it is fully compatible with at least one intellectual wellspring
of Realism, American pragmatism, which (as I observed earlier) begins with a
naturalized Hegelian view of philosophy and history. From the legal-philosophical
point of view, however, what remains problematic in pragmatism is precisely its
insistence on naturalized explanation, as to naturalize an explanations is to rob
it of its justiď¬catory power â“ it collapses the âoughtâ into the âis.â Pragmatism
rejects the metaphysical underpinning of Hegelâ™s philosophy of history, but for
Hegel it was only that metaphysical underpinning that guaranteed the normative
force of the really existing doctrines and institutions of the modern legal system.
Thus, having rejected both the metaphysical autonomy of the Kantian rational
subject and Hegelâ™s suprasubjective rational metaphysics, pragmatic philosophy is
On Continental Philosophy in American Jurisprudence 137
left with the continuing question of how to articulate a notion of rationality with
enough genuinely normative force that one can rationally justify or criticize our
existing legal system.
That question, it seems to me, is the one that deď¬nes the most pressing dilemma
currently facing legal philosophy, and the one that highlights the most fundamental
deď¬ciency in âour Realismâ of whatever stripe. It undergirds the crisis of legitimacy
that has left legal thinkers groping for values â“ wealth maximization, original intent,
or what have you â“ that can supply the authoritative ethical force that once inhered
the legal tradition itself. One solution to this crisis is to decide that no such post-
Hegelian rationality is available, and thus that, absent any governing rationality,
law is simply politics carried on by other means. That was the conclusion reached
by the irrationalist strand of the American critical legal studies movement, for
example (a conclusion that â“ at least to the extent that it relied on Continental
philosophical sources â“ was unwarranted [Thurschwell 2006]). Todayâ™s Realists
purport to reject that conclusion, arguing that some calculus of social interest,
individual preference, and/or wealth maximization can still issue in legitimate
normative evaluations of doctrine that can guide legal practice.
Nevertheless, it seems to me that the âimplicit philosophyâ of our current
Realism is one that precludes the possibility of philosophically justifying any fun-
damental change in our deeply ď¬‚awed political-legal status quo. At least that is
the case if one accepts Hegelâ™s and Llewellynâ™s insight that the individual subject
is not autonomous but rather a product of his or her times. Having substituted
social interest (or its social-choice correlates) for the emphatic principle of ratio-
nality that gave metaphysical philosophies of law their critical bite, Realists can
no longer see, as a philosophical matter, past the positivity of todayâ™s realities â“
embodied in the particular social interests and subjective preferences coughed up
by our present juridical-socio-economic arrangements â“ to potential tomorrows
in which these arrangements have themselves been fundamentally transformed.
In Llewellynâ™s expression (1934:211â“2), they no longer have âears for words that
betoken . . . change in an existing order.â Given the profound injustice of so much
of our existing order, that limitation of philosophical vision has itself become
Contemporary Continental philosophical approaches to law and politics
respond to this situation in a different way, one that avoids the incipient his-
torical positivism of our latter-day Realism. Beginning with the abstract fact of
our ď¬nitude and historical situatedness rather than the particular interests and
values of our present historical situation, they ď¬nd a source of ethical impetus for
change in the condition of historical ď¬nitude itself. It is impossible to generalize
about the conclusions reached by these thinkers, because they range from a reaf-
ď¬rmation of the value of legal tradition (Hans-Georg Gadamer), to neo-anarchist
rejections of law and the state form in toto (Giorgio Agamben), to an insistence
that traditions themselves, including the legal tradition, contain resources for their
own fundamental reform and radical transformation (Jacques Derrida). What all
of these thinkers share, however, is a simultaneous respect for the inevitably his-
torical character of thought and action and a recognition of the plight of historyâ™s
victims â“ they have âears for words that betoken . . . change in an existing order.â In
138 Adam Thurschwell
very different ways, they all elevate that ethical concern to philosophical status, and
thereby provide some hope that, in Llewellynâ™s (1934: 206) words, âthe inventor of
a new philosophy, or of a creative adaptation of some ancient one to current needs,
may with luck affect or deď¬‚ect the current of his times.â âHopelessly unorthodoxâ
(212) though they undoubtedly are, at least from the perspective of the American
legal academy, these approaches offer a compelling response to the âfelt needsâ
(206) of our jurisprudence that we ignore at our own expense.
Critchley, Simon. Continental Philosophy: A Very Short Introduction. New York: Oxford
Univ. Press, 2001.
Hegel, G. W. F. Lectures on the Philosophy of World History: Introduction. Cambridge: Cam-
bridge Univ. Press, 1980.
. The Philosophy of Right. Oxford: Oxford Univ. Press, 1952.
Llewellyn, K. N. âOn Philosophy in American Law.â U. Pa. L. Rev. 82.3 (1934): 205â“12.
Rorty, Richard. âWorld Well Lost.â In Consequences of Pragmatism (Essays: 1972â“1980)
Minneapolis: Univ. of Minnesota Press, 1982: 3â“18.
Sandel, Michael. Liberalism and the Limits of Justice, 2d ed. Cambridge: Cambridge Univ.
Thurschwell, Adam. âCritical Legal Studies.â In A Dictionary of Continental Philosophy.
Ed. John Protevi. New Haven, CT: Yale Univ. Press, 2006: 112â“4.
17 Psychoanalysis as the Jurisprudence
jeanne l. schroeder and david gray carlson
What is the future of legal philosophy? No doubt it has many. But we are betting
that jurisprudence will gravitate towards freedom. Freedom, the attribute of the
human subject, has largely been absent from legal philosophy. This is a lack that
psychoanalytic jurisprudence aims to correct.
THE PSYCHOANALYTIC SUBJECT
All liberal theories start with some intuition of the free, autonomous individual. In
contrast, psychoanalysis views the subjectâ™s deď¬nition as the problem of philosophy.
For psychoanalysis, as reformulated by Jacques Lacan, personality and freedom
cannot exist in any empirical or hypothetical state of nature because nature is
unfree â“ bound by ironclad laws of cause and effect. Personality and freedom are
artiď¬cial creations â“ hard-won achievements. Subjectivity â“ the capacity to bear
duties and rights â“ is a stage in this struggle.
What then is the subject? As David Hume argued, the subject is not an afď¬rmative
substance but a unity of the memory of perceptions. As such it is not the perceptions
but a negativity, the force holding them together. Negativity by its nature cannot
be perceived directly, only inferred from what has vanished. Lacan expresses this
through his symbol $: the barred or split subject. In Simon Critchleyâ™s (2007: 11)
formulation the subject is not an individual but a âdividual.â
Because of its negativity, subjectivity is the active principle â“ the capacity for
freedom as spontaneity. Freedom must, however, be given positive existence. This
can be done only through law. Subjectivity is a living, breathing contradiction.
Its introduction into jurisprudence makes the latter dynamic. In comparison,
competing jurisprudences are static in nature. For them, law is a ď¬nite, ď¬xed set
for which freedom is either the enemy or irrelevant.
For utilitarianism, freedom threatens the possibility of social policy. Policy
requires the behavior of those subjected to law to be predictable â“ manipulable
through reward and punishment. Values become preferences; rationality, ends-
means reasoning. Utilitarianism degrades the human subject to animality (Badiou
| 139 |
140 Jeanne L. Schroeder and David Gray Carlson
2002: 10â“11). The individual is enslaved by inclination (pathology). To Richard
Posner (1992: 17) it is no solecism to speak of a rational frog. But freedom, to
psychoanalysis, is precisely the uncaused. As Kant (1900: 18) emphasized, free-
dom is the stumbling block on which all empiricism, including utilitarianism,
Positivism is also a static jurisprudence. In positivism, the subjectâ™s condition
improves, rising to irrelevance. Positivismâ™s project is description. The observing
subject adds nothing to the object it apperceives. Once law is described, positivism
canâ™t speak to lawâ™s normative worth because law and morality are conceived as
THE SYMBOLIC AND SEXUALITY
Psychoanalysis challenges the ontology of certitude of utilitarianism and posi-
tivism. Lacan locates law in the social realm called the symbolic. The symbolic, like
the subject, is in a constant state of contradiction and, therefore, dynamic. This is
a hard truth to bear. The two ways of confronting it are denial and acceptance. The
former is the masculine; the latter, the feminine position.
These Lacanian terms do not refer to anatomically male and female people.
Rather, they name two positions that one can take with respect to completeness and
openness, commensurability and incommensurability, metaphor and metonymy.
Empirically, anatomical males might be more likely to be drawn to the masculine
position than females, and vice versa. It is, however, impossible for anyone to be
purely man or woman â“ each position requires the other.
In developing these terms, Lacan upends traditional stereotypes. The masculine
is not the norm, with the feminine as exception. Subjectivity is characteristically
feminine; men are, in effect, failed women. Moreover, the feminine is the active
principle. The masculine is passive.
The masculine position is liberal individuality: man imagines both he and law
are, or could form, correlative and complete wholes. This is masculine because
the individual claims to âhave the phallus.â Here, phallus does not refer to male
anatomy but is the signiď¬er for subjectivity. By claiming to have subjectivity, man
suppresses negativity and fantasizes he has an afď¬rmative, ď¬xed self. Man is passive
because â“ like H. L. A. Hartâ™s ofď¬cials â“ he seeks to be completely constrained by
law. But, subjectivity is not a ď¬xed thing â“ in Lacanian terms, it does not exist in
the rigorous way that Hegel deď¬nes existence. If subjectivity could be so captured,
it would not be free.
The feminine position of being the phallus is completely diverse from the mas-
culine. Woman accepts that no one could have the phallus because subjectivity is
a process, a doing not a being. In Lacanian terms, it is an insistence as opposed to
an existence. Woman embodies the phallus (subjectivity) by acting.
The feminine and masculine are not opposites, like yin and yang. If they were,
they could ď¬t together harmoniously. Subjectivity and the symbolic would be
closed and whole. This is masculine fantasy. Rather, the sexes are fundamentally
inconsistent. There is no sexual rapport â“ sexuality is an impasse. Woman is not
whole. Subjectivity can not be wholly circumscribed within law â“ some aspect of
Psychoanalysis as the Jurisprudence of Freedom 141
personality escapes. This does not mean that masculinity is the legalistic aspect
of personality, adopting an ethic of justice as opposed to a feminine one of care.
This different voice theory adopts this masculine yin-yang fantasy. Although not
wholly within the symbolic, woman âis not not at all there. She is there in full. But
there is something moreâ (Lacan 1998: 74). She partially escapes law because law
is not closed. Law, like woman, is not whole.
The sexual impasse is not limited to the nonrelation of masculine and feminine
people but characterizes the entire symbolic order. Consequently, law is different
from morality, but the two â“ like the sexes â“ 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. Main-
stream feminist legal theory canâ™t 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.
Psychoanalytic feminism depends upon, and therefore can not abolish, the mas-
culine 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 â“ two masculine and two feminine.
The ď¬rst masculine discourse is that of the master, which we identify with
positivism. Lacanâ™s masterâ™s discourse is inspired by Hegelâ™s 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 ofď¬cials taking the internal position recognize laws
as rules to be obeyed. The ofď¬cial, like Hegelâ™s slave, does not obey out of fear.
Rather, the ofď¬cial takes on the masculine position and tries to erase âhisâ personal
discretion so that law alone can enjoy sole sovereign sway and masterdom. This is