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a necessary, but insuf¬cient, element of law™s reality.
Lacan agrees that, in the master™s positivistic discourse, law must be divorced
from morality, understood as “the ought.” The of¬cial 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 the master™s status.
Similarly, the of¬cial obeys the law because he or she recognizes its status through
an appropriate rule. Of course, any empirical master might be wise, and any positive
law just, but this is accidental. Any justi¬cation 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 university™s. 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 requires the feminine discourses). The university™s discourse refers
generally to the concept of expertise.
142 Jeanne L. Schroeder and David Gray Carlson

Experts seek to justify the law™s rule. They seek to ¬ll the gap left by the mas-
ter™s discourse by discovering law™s 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. Experts
apologize either for what positive law is or what it should be. Utilitarians suppos-
edly consult the preferences of society™s 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 justi¬ed. However, this is at the expense
of the freedom of any speci¬c subject whose own desire is subordinated to the
collectivity.
This being said, psychoanalysis is the critic, not the enemy, of the two masculine
discourses of law. Hart™s concept of law as rules is a necessary moment in all legal
regimes. One cannot have a functioning society if of¬cials can choose to disobey
laws with which they disagree. Nor does it oppose expertise or collectivity. The
subject is intersubjective “ only coming into being through symbolic relations. To
be a part of society requires one to subordinate oneself to society™s collective goals,
thereby compromising one™s radical freedom.
The complaint of the feminine position is not that the masculine exists, but
that it represses law™s feminine moment that is the very condition of its possibility.
Consequently, Lacan supplements the masculine discourses with the feminine
analyst™s and hysteric™s discourse. We are in the process of applying these to law,
identifying the former with counseling and interpretation and the latter with
representation and criticism. We leave these for another day.

MORALITY
Positivism preaches that law and morality (i.e., content) are not necessarily con-
nected. Psychoanalysis “ and utilitarianism “ insists the opposite is true. Rather,
they require each other. This re¬‚ects the sexual impasse.
What positive law reports as its ¬nding (law and morality are not necessarily
connected) is in fact its aspiration, its program “ its “ought,” as it were. Positive
law strives to banish morality. It aspires to replace it with legality. Radical freedom
(Kantian autonomy) is sublime and monstrous. Legality is a relief; it permits
pathological indulgence without moral qualm. But positive law can never succeed
in its program of banishing morality. Ultimately, empirical subjects must make
judgments about the law.
Law is revealed through Kant™s notion of autonomy “ the very heart of morality.
Judgment (interpretation generally) requires the judge to suppress his or her
heteronomy and assume the autonomous position so that whatever the judge
recognizes is indeed the law and not some subjective fantasy.
Interpretation requires a free and spontaneous act “ a feminine moment of
jouissance. It just occurs. The fact of reason is a crucial, and controversial, aspect
of Kant™s thought. To simplify, reason itself can not be identi¬ed by reason. Reason
turned on itself yields antinomy. Like facts, reason confronts us as being both
external and internal to our subjectivity.
Psychoanalysis as the Jurisprudence of Freedom 143

After the act of interpretation, the actor retroactively tells a story to explain
the decision so that the act seems reasoned ex ante. Lacan says that truth has
the structure of ¬ction. This does not mean that there is no truth or that this
after-the-fact narration is necessarily untrue. Quite the contrary, psychoanalysis
suggests that rational acts are possible but the whole truth is unknowable. Acts are
overdetermined. There is no way to know whether rationality or irrationality “
autonomy or heteronomy “ really caused the act. Psychoanalysis calls this the
ethics of the real (Zupanˇ iˇ 2000: 143). Any attempt to recognize the truth, any
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interpretation, requires the subject™s active participation. To interpret is to tell a
story. That the story is true is within the realm of the possible.
The logic of interpretation is to be distinguished from deduction and induction.
C. S. Peirce, following Aristotle, called it abduction “ the proposing of informed
hypotheses. Although the subject has reason to believe that his or her abductions
are true, the fact that he or she abduces is no guarantor of its truth. Judging re¬‚ects
the parallax of the sexual impasse. Our feminine side reminds us of limitation,
that all interpretations are subjective and falsi¬able. Our masculine side reminds
us that time is running out. The judge does not have the leisure of the theory class.
The judge must eventually take the leap of faith, pretend to have the phallus, and
decide the case. The judge is both masculinely passive, obeying the law™s rules, and
femininely active in imposing “her” own judgment.
This view of interpretation suggests that there can be no rule of recognition, as
Hart asserts, only Dworkin™s shock of recognition. Legal reasoning is the retroac-
tive narrative designed to convince others (and one™s own self) that the act of
interpretation is a genuine and true 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 between law and freedom. Not wish-
ing to reinvent the wheel of philosophy, it relies on German idealist philosophy.
The task begins with Kant™s destructive jurisprudence of duty. Kant™s freedom is
a negative freedom, in which all constraints are obliterated. Kantian freedom is
spontaneity “ the subject™s capacity to act purely out of duty to a moral law he
or she self-legislates. In order to do so, the subject must, therefore, erase all het-
eronomy “ become masculine. Heteronomy is everything other than autonomy
including the very things that utilitarianism and positivism exalt “ natural incli-
nation 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 him- or herself, 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.
144 Jeanne L. Schroeder and David Gray Carlson

Kant™s 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 (masculine) 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 intersubjectivity. One becomes a subject by being
recognized as such by another subject. Hegel identi¬es the most primitive inter-
subjectivity as property and contract. Thus, law is the medium by which freedom
actualizes itself through the creation of subjectivity.
Subjectivity can be bestowed only by another subject™s recognition. However,
there are no subjects in the state of nature, only other abstract individuals. Conse-
quently, to achieve subjectivity each individual must ¬rst help other individuals to
achieve the status of subjectivity. The individual does this by deciding to recognize
other people as subjects entitled to be recognized “ as having rights. Consequently,
Hegel reconciles liberalism™s concern with rights and the Kantian concern with
moral duty. As in Kant, an individual cannot actualize freedom by claiming rights
for oneself but by recognizing one™s duty to the other. However, Hegel, anticipat-
ing Hohfeld™s 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 ¬rst as a
subject.
To have intersubjective relations, one must ¬rst 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 possession, enjoyment, and alienation of external
things.
Property standing alone, however, is a wrong, not a right. Property is aggressive.
Property claims are asserted against other people. Property only becomes a right
when consummated in contract. In contract, the ¬rst protosubject recognizes the
other as owning an object of property. The ¬rst person offers the other one object
(a thing, a promise, money, whatever) in exchange for another. In doing so, the
¬rst recognizes the other as a distinguishable subject who has the right to accept
or reject the offer. If the other subject accepts the offer, he or she simultaneously
also recognizes the ¬rst as a distinguishable subject having the ability to take free
action.
Kantian negative freedom was no freedom at all. Positive freedom is bestowed,
through contract, by the other. No one actualizes freedom alone. So, if Kant has
a philosophy of duty, Hegel has a philosophy of right. In this account, freedom
requires a moment of unfreedom. Although, Hegel™s (2002: 69) is famously a phi-
losophy of right, he insists that only the basest people claim rights for themselves.
Psychoanalysis as the Jurisprudence of Freedom 145

Once again, psychoanalysis promises no permanent reconciliation. The inter-
subjectivity of psychoanalysis is not reciprocal in the sense of mirror image. To
claim a right from another is to treat the other as a means to one™s own ends and,
therefore, not free. One can grant rights and recognize duties to others only in the
hope that they might reciprocate. This is why private law is a primitive form of
love “ in love the lover sees in the beloved more than he or she is and thereby helps
the beloved become more than he or she once was. When reciprocated the beloved
changes places, becoming a lover who also raises the beloved up to a new capacity.
Similarly, in private law, the ¬rst individual turns the second into a subject by
granting him or her the rights of a subject. If the contract is accepted, the subject
returns the favor by bestowing on the ¬rst individual the rights of a subject. Each
momentarily recognizes the other as the means to the other™s own ends when they
come to an agreement on one speci¬c end (exchange).
Law is, therefore, revealed as the stuff subjectivity is made of “ and vice versa.
But, in this vision, law is not narrowly de¬ned as the command of the sovereign that
the of¬cial with the internal perspective recognizes. For this reason, psychoanalysis
relaxes the distinction between law and other normative systems “ they are all part
and parcel of the intersubjective realm of the symbolic. Indeed, psychoanalysis
identi¬es language itself as the ultimate normative system. In language the subject
positivizes him- or herself. Yet this most intimate part of the private subject is
highly public. That which is most ourselves “ our personality, our subjectivity “ is
dependent on that which is outside of ourselves: other persons and the law itself.
The subject is inherently split between private and public, between the feminine
and masculine. In Lacan™s neologism, subjectivity is not intimate but “extimate”
(Miller 1994: 74).
The subject is unable to do without law, but the law is equally unable to do
without the subject. Lacan says the subject is split, castrated, and barred. But
it follows from this that law is also the barred other because law has precisely
the same constitution as the subject. If the subject is castrated and incomplete,
so is law.
In fact, legal interpretation constitutes one subject observing and recognizing
another subject, each depending on the other for its completion. Psychoanalysis
takes seriously the notion of loving the law. The subject has, in Dworkin™s terms, a
duty to make the law the best it can be, and in this activity the subject will recognize
itself in the law.

POLICY
We conclude by addressing the all-important question, What is the cash value of
this line of inquiry? The answer is that psychoanalysis yields personal freedom, not
determinate answers. The return on investment can be appraised by considering
the psychoanalytic critique 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 ¬eld of pain and death,”
the arch-romantic Robert Cover (1986: 1601) once wrote. Romanticism promises
146 Jeanne L. Schroeder and David Gray Carlson

to get back in touch with the authentic subject that feels no pain. Psychoanalysis
views this as false autobiography.
The romantic dreams of authenticity “ yearns to be masculine, an individual,
undivided, integral, and undesiring. The romantic 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. Liberalism™s 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 antilaw, as
romanticism thoroughly is.
So, the end result of psychoanalysis is the acceptance of the fact that no law or
policy can ever sate unquenchable subjective desire. Consequently, Lacan (1986:
319) argues that the only ethic psychoanalysis can suggest is “do not give way with
respect to your desire.” 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 microethical issues with which
politics concerns itself. Psychoanalysis leaves the task of suggesting policy “ the
quotidian bread and butter of the American academic scene “ to the experts of the
university™s discourse.
Hegel (2002: 23) insisted that philosophy comes too late to give advice on
concrete issues “ “the owl of Minerva begins its ¬‚ight only with the onset of
dusk.” Speculative philosophy™s presupposition is that the legal subject is the
personi¬cation 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. In¬nitely Demanding: Ethics of Commitment, Politics of Resistance. London:
Verso, 2007.
Hegel, G. W. F. Elements of the Philosophy of Right. Ed. Allen W. Wood. Trans. H. B. Nisbet.
Cambridge: Cambridge Univ. Press, 2002.
Kant, Immanuel. The Critique of Practical Reason. Trans. T. K. Abbott. Amherst, MA:
Prometheus Books, 1996.
Lacan, Jacques. The Seminar of Jacques Lacan: Book VII: The Ethics of Psychoanalysis. Ed.
Jacques-Alain Miller. Trans. Dennis Porter. New York: W. W. Norton, 1986.
Psychoanalysis as the Jurisprudence of Freedom 147

. The Seminar of Jacques Lacan. Book XX: Encore, on Feminine Sexuality, the Lim-
its of Love and Knowledge. Ed. Jacques-Alain Miller. Trans. Bruce Fink. New York:
W. W. Norton, 1998.
Miller, Jacques-Alain. “Extimit´ .” Trans. Francoise Massardier-Kenney. In Lacanian Theory
e
of Discourse: Subject, Structure, and Society. Ed. Mark Bracher et al. New York: New York
Univ. Press, 1994.
Posner, Richard A. Economic Analysis of Law, 5th ed. New York: Aspen Press, 1992.
Zupanˇ iˇ , Alenka. Ethics of the Real. London: Verso, 2000.
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part four. philosophical examinations
of legal issues
18 Law as Premise
frank i. michelman




Suppose we are passing legal judgment on the conduct of another. We want,
therefore, to know what the law requires and permits of actors in the other™s
position in the case at hand. We don™t know yet, so we shall have to conduct some
sort of inquiry to ¬nd out. It happens that we are already dead certain about what
morality permits and requires of the other in this case (setting aside whatever
general moral obligation or pressure there may be to conform to the law as the
law). What part, if any, does our prelegal moral knowledge (so to call it) play in
our inquiry into the regulative content of the situationally applicable law?
A possible answer, in some ways quite appealing, is “none at all.” Legal content,
we might then say, is whatever authorized lawmakers decide to make it. Authorized
lawmakers may or may not have conformed the applicable law for this case to the
applicable moral permissions and requirements. If they did not, the product of
their law-making activity is no less the law than if they had. If we wish to follow the
law, our task is to ¬nd out what they did; never mind what morality would have
had them do. Law is one thing, morality is another.
Contentious as this strict separationist view may be in some quarters, it nev-
ertheless in¬ltrates almost everyone™s thought about what it means to ¬nd and
follow the law. But making the law is something else entirely. Among those who
hold that it lies within the capacity of lawmakers to disregard morality in making
law, only all-out skeptics or nihilists about morality will deny that it equally lies
within their capacity to take morality into account. Suppose we set aside all-out
moral skepticism or nihilism. Questions then remain about possible inferential
¬‚ows from the lawmaker™s beliefs about the applicable moral considerations to
the lawmaker™s conclusions regarding what the law is to be, or conversely (the
point I am driving toward), from beliefs about the existing state of legal affairs to
conclusions regarding morally required or permitted courses of action, given the
legal facts. Retaining the view that law is one thing and morality another, we can
still believe that a known truth about the one can have a bearing on what we ought
to decide or conclude about the other.
At least that is so when the one is morality and the other is law. Pondering
inferential ¬‚ows between morality and law, we tend to make morality the polestar,
the unguided guide. Morality is what it is, requires what it requires, and the
question is whether law and legal practice will shape up accordingly. No doubt that
| 151 |
152 Frank I. Michelman

question “ of shaping law to ¬t morality “ can be quite controversial, depending on
how it is framed. Only total skeptics about morality could deny that legal of¬cials
ought to act in their of¬cial capacities as morality would have them do. But even
the stoutest moral true believer may deny that morality requires or even permits
judicial of¬cials to strive to make the law be moral (as opposed to taking the law as
they ¬nd it), and indeed can even join those who say similarly for other branches of
government “ that their job is to further the national interest, or perhaps that they
will best serve the public if they simply follow the dictates of personal self-interest
(keeping within the lawful ambits of their of¬ces). But still that usually is the
general form of the question “ whether and how law might follow from morality,
not how morality might follow from law.
Are the positions ever reversed? Do moral conclusions ever ¬‚ow from legal
givens, so that law comes ¬rst and morality follows? Do states of law ever ¬gure
as contingencies on which moral conclusions turn, so that you don™t know what
morality requires until you know the state of legal affairs? That is my question.
Of course the answer is bound to be yes in any society in which law is capable of
serving as a guide to social coordination for mutual gain. In such a society, law™s
arbitrary choice for driving on the left will be a decisive datum for the driver™s moral
code. But that is a trivial point. Here we consider a more intriguing way in which
moral conclusions might turn on legal contingencies. Prior legal-institutional facts
might serve as a sustaining cause for belief in a certain non“self-evident moral
conclusion, which conclusion is directed to the moral criticism of law itself (to
distinguish these cases from the trivial, side-of-the-road sort of case).
Consider the case of rights, and particularly socioeconomic rights. Both in
morals and in law, rights are warrants for demands. To attribute to someone a
right to X “ where X is an act or state of affairs falling under a certain description “
is to imbue that person with a warrant of some kind, moral or legal, for demanding
X. Thus, the expression “socioeconomic rights” apparently envisions demands for
a certain class of social outcomes pertaining to the right holders “ as a ¬rst
approximation, that the holders should at no time lack access to levels deemed
adequate of subsistence, housing, health and health care, education, and safety, or
to the means of providing the same (e.g., through available, remunerated work)
for themselves and their dependents. These are demands, then, that some agent or
agents shall so exert themselves that the targets are as likely as possible to be hit.
Never mind how many questions I have just begged. With one important excep-
tion “ that being the question of which agents bear what duties correlative to
socioeconomic rights “ they are all collateral to the claim I now advance, to wit:
the least controversial, most widely appealing case in morality for giving legal
force to socioeconomic rights “ say, by including socioeconomic guarantees in a
constitutional bill of rights “ is one that abstains from claims about moral rights
and obligations as they might arise in conditions of no law or in a state of nature.
In this respect, socioeconomic rights appear to differ from legal rights protect-
ing against assault, theft, and the like. Debates over the morally proper scope of
such garden-variety legal rights typically reach back to prelegal, moral rights and
obligations as the source of a demand upon lawmakers to do the correspondingly
right thing. The least controversial moral case for installing socioeconomic rights
Law as Premise 153

in a country™s laws “ what I shall later call the “political” case “ does not proceed
in that way. It rather starts from the historical contingency that law exists in the
country. It makes that fact a premise in the argument, thus bypassing speculation
about moral duties to aid under prelegal conditions. One might think here of
Ronald Dworkin™s (1977: 93) well-known model of “background” (moral) rights
as a motivating source for “institutional” (legal) rights. Some such background
rights, I mean to point out, may be found to depend for their existence on a prior
institutional fact, a fact of legal ordering in that country, and so would not arise at
all in prelegal nature.
Suppose it is somewhere (as in sec. 26[1] of the Constitution of South Africa)
declared that “everyone has the right to have access to adequate housing.” Those
are vague terms, but assume that defensible answers to questionable cases can
be extracted from them, so that the declaration speci¬es completely the scope of
the right whose existence it posits. The declaration might posit the existence of
either a moral right or a legal right. If it posits a legal right, then it most probably
(for reasons we shall glimpse) intends a constitutional-legal right, an imposition
by constitutional lawmakers on a country™s ordinary lawmakers of a continuing
legal obligation to see to the actual, effective implementation of the right. We
easily understand the distinction between moral and legal rights. Moral rights
refer to demands that hold regardless of what any law may have to say. Legal rights
refer to demands warranted by positive law “ demands whose nonful¬llment will
thus presumably attract at least the condemnatory judgments of legal of¬cials and
also, in what we may regard as the normal case, will beget some sort of remedial
intervention by a court of law. On this view, there can perfectly possibly be a moral
right to housing but no legal right to it “ in which case the law may seem to be
at least prima facie morally de¬cient. Conversely, there can be a legal right, even
a constitutional-legal right, to housing but no moral right to it (aside from any
general moral duty there may be to comply with the law) “ in which case the
law establishing the legal right is either morally optional or, as some libertarians
would have it, morally faulty. At any rate, either sort of right, moral or legal, can be
found to exist or not without any ¬nding or implication that the other sort exists
or not.
That is all at the analytical level of probing for the right™s existence, in morals
or in law. On a prescriptive level, the separation seems not to be so clean and the
two sorts of rights propositions seem no longer to stand on an equal footing. The
existence or nonexistence of a legal right to housing is commonly thought to tell us
nothing “ certainly nothing conclusive “ about whether a moral right to housing
lies in the background. (The law, we commonly think, can be morally off base.)
But the converse does not hold, for it seems that to posit a moral right to housing
is tantamount to declaring that there ought to be a legal right to housing, at least

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