Treating Life Literally I. By giving the name Oedipus Lex to his erudite 1995 psychoanalytical history of common law, Peter Goodrich put his finger on one of the conditions of possibility for the psychoanalytic turn in recent Anglo-American jurisprudence.1 This turn, which could just as well be described as a return, is predicated on the assumption that, as Goodrich notes in his chapter by the same name, “the law of the father equiparates with that of the sovereign.”2 Goodrich offers this observation as part of his broader argument that rhetoric is the premodern form of psychoanalysis: because rhetoric, since Aristotle, has placed the study of tropes alongside its inquiry into affect and moods, on the one hand, and into law, on the other, “psychoanalysis and jurisprudence can, therefore, draw on a common language and certain shared themes.”3 But the strength of Goodrich’s argument also begs the fundamental question it necessarily raises. While there is certainly truth to the claim that, as George Kennedy would put it, Aristotle’s Rhetoric is “the earliest systematic discussion of human psychology,”4 Freudian psychoanalysis claimed to have differentiated itself from prior psychologies through its achievement of the status of a science; and that claim, in turn, was grounded not in rhetoric, to which Freud no doubt did turn for logical models, but in classical tragedy, from which Freud would take both the symptomatology 1 See Costas Douzinas, “Psychoanalysis Becomes the Law: Notes on an Encounter Foretold,” Legal Studies Forum 20:3 (1996): 323-336 (describing psychoanalysis as “the last great frontier for jurisprudence”). 2 See Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California Press, 1995): 184. On the status of recent psychoanalytic jurisprudence as return to the work of Jerome Frank et al, see David Caudill, “In the Wake, or At the Wake, of Psychoanalytic Jurisprudence?” Legal Studies Forum 20:3 (1996): 189. 3 Goodrich, Oedipus Lex, 184. 4 Translator’s Note, in Aristotle, On Rhetoric, Trans. G. Kennedy (Oxford: Oxford U P, 1991): 122. But cf. Martin Heidegger, Being and Time, Trans. J. Macquarrie and Edward Robinson (New York: Harper & Row, 1962): 178. 1 and the problematic for his new science.5 The stubborn pliancy of Freud’s 1900 interpretation of Sophocles’ Oedipus Rex, which he formalized at the conclusion of his 1913 Totem and Taboo, would become clearer through that text’s elaboration by Jacques Lacan, who drew on the work of Claude Lévi-Strauss to re-assert psychoanalysis’s claim to have discovered in the law of the father the invariant law that defines initiation into human culture as such.6 Absent the account of castration it would eventually derive from Oedipus Rex, psychoanalysis has no claim on certainty and hence no claim to science. Goodrich’s argument about rhetoric thus takes on a paradoxical status. Though he turns to an Oedipal framework to suggest that lawyers’ concept of an orderly and reasonable law is reducible to a projective attempt to compensate for their own disaggregative legal training (and in this he renews Jerome Frank’s argument about law’s spurious stability), the discovery he claims as his own (“rhetoric is the premodern form of psychoanalysis”), which he then impressively applies to his study of common law, has the effect of withdrawing psychoanalysis from the epistemological ground of its claim to have discovered the laws of the unconscious.7 To be clear, Goodrich’s genealogical claim to 5 On tragedy and rhetoric in Freudian psychoanalysis, see Michel de Certeau, “The Freudian Novel: History and Literature,” in Heterologies: Discourse on the Other, Trans. B. Massumi (Minneapolis: U of Minnesota P, 1986): 21-23. For Freud’s differentiation of psychoanalysis and psychology, see “The Question of Lay Analysis,” The Standard Edition of the Complete Psychological Works of Sigmund Freud, Vol. 20, Trans. J. Strachey (London: Hogarth Press, 1959): 191-199 (hereafter Standard Edition). For Freud’s first published interpretation of Sophocles’ Oedipus Rex, see “The Interpretation of Dreams,” Standard Edition, Vol. 4: 261- 4. For the centrality to which Freud attached to the discovery of the Oedipal Complex in the history of psychoanalysis, see “An Outline of Psychoanalysis,” Standard Edition, Vol. 23: 192-3. For a cogent summary of Freud’s changing relation to Oedipus between 1900 and 1925, see Juliet Mitchell, “Introduction- I,” Feminine Sexuality: Jacques Lacan and the école freudienne, Ed. Juliett Mitchell and Jacqueline Rose, Trans. Jacqueline Rose (New York: Norton, 1985): 9-13. 6 For Freud’s reduction of totemism, religion, society, and art to the Oedipal Complex, see “Totem and Taboo,” Standard Edition, Vol. 13: 132, 155-6. On the debate between cultural anthropology and psychoanalysis over the universality of the Oedipal Complex, see Gilles Deleuze and Félix Guattari, Anti- Oedipus: Capitalism and Schizophrenia, Trans. R. Hurley, M. Seem, and H. R. Lane (Minneapolis: U of Minnesota P, 1983): 171 & ff. 7 See Goodrich, Oedipus Lex, 7-8. Cf. Jerome Frank, “Preface to the Sixth Printing,” Law and the Modern Mind (Gloucester, Mass.: Anchor Books, 1970): xxiv. 2 have found in rhetoric psychoanalysis avant la lettre does not necessarily oppose or depart from Freud’s claim to have learned of Oedipal laws through his own self-analysis. But Goodrich’s circumvention of psychoanalysis’s own institutionalized origin story opens up the potential to undercut the epistemological grounds even of his own claim that legal study can be explained by the laws of the Oedipal complex. The implicit thrust of Oedipus Lex is that Oedipus Rex, and hence psychoanalysis, is both necessary and unnecessary to gain an understanding of legal studies’ melancholic loss of object. This same ambivalence is apparent in the Witz of Goodrich’s title. Its substitution of Lex for Rex announces the desire manifest in Goodrich’s text: not only to render law intelligible within the Oedipal framework upon which psychoanalysis is based, but also to institute psychoanalysis as a privileged domain for legal study.8 But, as a Witz in the best sense of the word, the equiparation of Lex and Rex also expresses an unconscious wish, which, in this case is disciplinary in character. Ernst Kantorowicz has shown how the method of “equiparation,” which he defines as “the action of placing on equal terms two or more subjects which at first appeared to have nothing to do with each other,” was employed by jurists at a moment when the art of jurisprudence was being formalized into a science.9 From Kantorowicz’s account, it would indeed appear, though for different reasons than Goodrich suggests, that there is a long genealogy behind psychoanalysis’s ability to equiparate Lex and Rex. Kantorowicz’s research suggests that the substitution 8 This last project became clearer in 1998, when Goodrich and David Gray Carlson argued that the psychoanalytic study of the law is “the most fundamental or structural of interdisciplinary encounters” to have taken place in recent legal studies; so much so, he suggested, that psychoanalysis is “the antithesis of modern jurisprudence” and “might be taken to represent law’s unconscious” such that “it constitutes an exorbitant threat to the order and reason of the legal system.” See “Introduction,” Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence, Ed. P. Goodrich and D. G. Carlson (Ann Arbor: U of Michigan P, 1998): 3. 9 See Ernst Kantorowicz, “The Sovereignty of the Artist: A Note on Legal Maxims and Renaissance Theories of Art,” Selected Studies (New York: J. J. Augustin Pub., 1965): 362, cf. “Kingship Under the Impact of Scientific Jurisprudence,” 152-5. 3 of the former for the latter was the paradigmatic concern of the modern iteration of the method of equiparation, and that the transfer of powers from king to law was, in turn, the basic problem around which scientific jurisprudence originally formed.10 But if this is true, then the psychoanalytic study of law within the framework of Oedipus Rex—particularly insofar as it is predicated on the productively errant exchange of Lex for Rex—would be less the antithesis of modern jurisprudence than a repetition of the questions that generated the discipline of modern jurisprudence in the first place. Conversely, since Freud would recognize the very method of equiparation as a mechanism for the production of the compromise formations he called “symptoms,” this repetition would, in purely psychoanalytic terms, point very clearly to its corollary. Before coming into its own as a self-conscious approach to the study of law, the psychoanalytic study of law would need to work through—which is to say, to remember—the conditions of possibility of not only its own profound purchase on problems in legal theory, but also, and more fundamentally, the conspicuous ease with which its ostensible challenges to or attempted disruptions of traditional jurisprudence ultimately dovetail with the latter’s longstanding institutional concerns. Far from explaining the law, in other words, psychoanalysis’s application to the law obliges us to attempt an explanation of psychoanalysis itself. Institutionalizing as jurisprudence a narrative which depends for its coherence on the contingency that the king who is the source of all law and command (Oedipus Rex) is also a son who usurps the place of his father would seem to foreclose on the possibility of analyzing legal problems in which no relation at all exists between sovereignty and patriarchy. 10 See Kantorowicz, “Kingship Under the Impact of Jurisprudence,” Selected Studies, 161. See also Ernst Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton U P, 1957): 126. 4 Strangely, precisely this non-relation seems to pertain in the Roman Law in which especially Pierre Legendre grounds his psychoanalytic jurisprudence.