Sergio Caruso (University of Florence) Odd Couple Law and Psychoanalysis (the Austrian beginnings of a continuing debate)
peer-reviewed copy, sent for publication on May 30 2011, to be published in «Context, Culture and the Law» special issue of
Psicologia culturale / Cultural Psychology
Vol. 1, No. 2 ed. by Jerome Bruner (NYU, School of Law), Andrea Smorti (University of Florence, School of Psychology), Flora Di Donato (University of Naples, University of Neuchâtel)
Roma –Milano – London – Madrid out-of-trade preprint made by the Author
Università degli Studî di Firenze June 2011
© all rights reserved Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 3
Psicologia Culturale/Journal of Cultural Psychology Vol. 1, No. 2, 2011, «Context, Culture and The Law», Special Issue ed. by J. Bruner, A. Smorti, F. Di Donato
Summary Introduction Andrea Smorti (University of Florence), [email protected]
What should psychology study, and why? Jerome S. Bruner (New York University), [email protected]
Odd Couple: Law and Psychoanalysis. The Austrian beginnings of a continuing debate Sergio Caruso (University of Florence), caruso@ unifi.it
Legal Stories as key-way to access “culture”. The case of V* Flora Di Donato (Open Univ. Pegaso), [email protected]
Detecting discursive manifestations of contradictions in the talk of trial judges: zones of proximal development in professional work Yrjö Engeström & Annalisa Sannino (University of Helsinki), [email protected]; [email protected]
Learning to make a case in law school: Categorizing events and actions in legal discourse Åsa Mäkitalo & Roger Säljö (University of Gothenburg) [email protected]; [email protected]
“What have I got?”. Communication with young offenders in juvenile justice Ulrike Schultz (FernUniversität in Hagen), [email protected]
A Modern Treat in the French Environment – Visual Pollution Anne Wagner (Université du Littoral Côte d’Opale, France - City University of Hong Kong), [email protected] Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 4
Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate)
Sergio Caruso (University of Florence)1
Abstract After sketching what a wide-range inquiry into the relation between psychoanalysis and law should be like, the author dwells upon the Austrian developments of this theme, beginning with Freud’s use of legal terms to describe the unconscious process as a kind of trial, Kelsen’s concern in psychoanalysis as a tool to rid jurisprudence of all metaphysics, and the Freud- Kelsen dialogue on the psychodynamics underlying any legal order. In connection with that, Kelsen’s «legal hypostases» are here re-interpreted as a sort of benign hallucinations allowing the society to hold together as a working group. The founding role of myths and taboos (not only incest, also cannibalism) as universal Urnormen, preceding the local Grundnormen postulated by Kelsen, is also explained. Then, two other scholars from Vienna, both close to Freud’s circle, are dealt with. First, Robert Wälders’s attempt at constructing a psychoanalytic sociology of law is confronted with more recent approaches meant to psychologically analyse both legal activities and legal actors. Secondly, Franz R. Bienenfeld’s attempt at constructing a psychoanalytic legal philosophy becomes the occasion to discuss what is really “natural” in Natural Law, the answer being that only some formal categories (like Bienenfeld’s four types of «relative obligations» whereby the whole law is shaped), not their content, appear to be natural (and in a way comparable to Fornari’s typology of «affective codes»). Finally, an Austrian jurisprudent of today is taken into account: Heinz Barta’s attempt at constructing a psycho-history of law, starting with the «repression» of Greek law in Western jurisprudence, and the subsequent «disavowal» of mortality implicit in the Romanist idea of «legal person», to end with unmasking the ideology underlying the «manifest content» of legal texts. A Kleinian re-evaluation of Barta’s theses concludes the article.
1 The author, full professor of “Philosophy of social sciences” at the University of Florence (Facoltà di Scienze Politiche “Cesare Alfieri”), is also on the board of OPIFER (Organizzazione di Psicoanalisti Italiani Federazione e Registro), scientific associate of AAPDP (American Academy of Psychoanalysis and Dynamic Psychiatry), and full member of IFPS (International Federation of Psychoanalytic Societies). Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 5
Law and psychoanalysis in practice.
Has psychoanalysis something to say about law and legal matters? To answer this question, I think it better to distinguish the cooperation between practices on the one hand from the dialogue between theories on the other. As to practices: anyone knows that psychoanalysis can be and has been used in criminology and forensic psychiatry to shed light on several issues, such as criminal drives and character, feigned illness vs. factitious disorder due to some hysterical state, capacity of discernment and liability, witness psychology, child mistreatment and abuse, judicial evaluation of the child’s needs in its parents’ divorce, and so on. The first psychoanalyst who de facto played a leading role within a criminal trial was probably Victor Tausk (who was a lawyer and a psychiatrist at the same time), when he found himself serving as military psychiatrist during WWI (hence his seminal work on the psychology of desertion: Tausk 1916). A few years later, the first psychoanalyst asked to write an expert opinion on a highly disputed trial was Freud himself: on the Halsmann case, well known as the Austrian equivalent of the affaire Dreyfus (Freud 1930, on which: Kijak 2011). Anna Freud also showed much interest in legal reports, as far as children in particular were concerned. The first treatise on such matters was written in German by Franz Alexander and Hugo Staub (1929), and thanks to Zilboorg’s translation into English (19311, 19562) was to become the most influential handbook of psychoanalytic criminology for years. So – needless to say – there have been, there are, and there will be, legal situations where the mental health or the simple reliability of single individuals is questioned, and many others where a psychologist (be she psychoanalytically oriented or not) may be resorted to as an expert to be officially heard, or legally asked to intervene. One could object there is nothing specific in the contribution psychoanalysis gives on those grounds, since it only intervenes as a component among others in the psychiatrists’, psychologists’, and social workers’ training. To which many authors reply that, far beyond the professionals’ sensitivity, Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 6
psychoanalysis contributes a peculiar set of analytic categories. On all that, we do have an enormous literature, and some synthetic views (e.g. Stone 1991).2 On the other hand, however significant the criminological and forensic applications of psychoanalysis may have been from the very beginning of this discipline, “applications” as such do not yet constitute a theoretical dialogue across the borders, nor see the psychoanalyst on an equal footing with the law. Restrained like they are within the limits of one single “case” (the same term for both, but psychoanalysis is here playing away from home), the two points of view rarely rise to the level of more general questions whereby they can interrogate each other; and if they happen to do, the dialogue must go on somewhere else (in another context where psychoanalysis be no more but a tool, and a genuine “fusion of horizons” can take place).
Law and psychoanalysis in theory.
So, de hoc satis: the cooperation between practices is not what I am going to deal with in the following pages. What I am interested to go deeper into is less explored: (1) the use of psychoanalysis and psychoanalytic psychology to shed light on law in general, regardless of any “case in point”, i.e. to shed light on law per se as social practice, as a sphere of human life, as a source of shared meanings; (2) the scientific and philosophical interlocution between psychoanalysis and law as human sciences also having normative implications, both interested in understanding what goes “right” and what goes “wrong” in human life and societies.
2 Along the second half of last century up to now, important thoughts on the forensic applications of psychoanalytic psychology can be found in such authors as: Bruce Arrigo, Anne C. Dailey, Alan Dershowitz, Joseph Goldstein, Leonard V. Kaplan, Al Katz, Jay Katz, Susan Schmeiser, and Alan A. Stone in the USA; Stephen J. Costello in the UK; Sophie de Mijolla-Mellor; Véronique Voruz in France; J. Willemsen & P. Verhaeghe in Belgium; Guglielmo Gullotta, and Giovanni Trombi in Italy, Renata Salecl in Slovenia, and many others. Moreover, a scientific journal entirely devoted to such applications (Psicoanalisi forense, ed. by Germano Bellussi) has been published in Pisa, Italy, 2000-07. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 7
On these grounds, the relation of law to psychoanalysis mirrors the relation of law to psychology in general, and is at the same time something very peculiar: a troubled love-affair, and a toilsome story. To my eyes, the relation lawyers entertain to psychology resembles that of economists: (almost) all take it for granted that the legal order, and the economy as well, are social enterprises involving human beings and their feelings; therefore, both the lawyers and the economists explicitly admit (or seldom deny) that their theories must rely on some psychology; and in fact both jurisprudential and economic theories do contain psychological assumptions, but those assumptions are too often implicit or «at least, they are not articulated very much and, when they exist, they are not developed» (Redmount 1959, p. 472). Even worse, they are often more to do with folk psychology rather than science. And only few people such as Robert S. Redmount – well trained in both discipline, which is of course pretty uncommon – have been able to use Freud and Piaget to proceed from the description of more or less law-abiding attitudes, depending on personality features and defence mechanisms, onto the binding quality of laws and procedures in themselves: their «bindingness» or «solidity», depending on the meaning they assume in the people’s life and the kind of emotional and/or cognitive experience they lead to (Redmount 1973). One has to wait for the Seventies to see «an explosive growth in psychological research on law (particularly the judicial process)»; yet a research which has had much less of a practical impact than one could hope (Loh 1981).
What a wide-range inquiry into the theme ought to be (and what you can expect from this article).
As to psychoanalysis in particular, should we plan a wide-range inquiry into the whole matter of its relation to law, one ought to begin from Freud himself (wasn’t he intended to become a lawyer, according to his father’s will?), then look into the Freud-Kelsen dialogue as well as into the psychoanalytic sociology of law (R. Wälder) and the origins of Freudo-marxism in Russia (M.A. Rejsner); then proceed on to the various attempts to produce a Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 8
psychoanalytically oriented legal philosophy in America (in chronological order: J. Frank, L. Kaplan, J. Goldstein, A. Ehrenzweig, C.G. Schoenfeld, A.C. Dailey), as well as the inquiries on the same field by authors from Austria (F.R. Bienenfeld, H. Barta), from Germany (P. Haerlin), from France (P. Legendre, C. Castoriadis), from Italy (C. Gray, F. Cordero, B. Romano, P. Ventura, P. Barcellona), from Brasil (V.-P. Christopoulou), to end with the use of psychoanalysis in the so called CLS (Critical Legal Studies) by authors, prevailingly American, such as (alphabetical order) K. Anderson, D.S. Caudill, C. Douzinas, P. Gabel, P. Goodrich, D. Garland, S. Maruna, A. Matravers, R. Quinney, with some concluding remarks on other postmodern approaches (like Slavoj Žižek’s polemic philosophy of human rights). A section apart would be needed for other contributions inspired by Jung’s analytic psychology, but I am afraid I do not have enough space here to develop the subject as it certainly deserves.3 However, those contributions are only part of the story. Most authors cited above (save Wälder, Haerlin, Castoriadis, Christopoulou, and Žižek) are lawyers. But after the professionals of law, one has to look at the contributions coming from the professionals of psychoanalysis as well. There we find a double question: not only whether and how psychoanalysis can contribute to the comprehension of all that is jus (legal texts included: Caruso 1983), but also the other way round (in Lacan-inspired authors, such as G. Contri) whether and how jurisprudence can contribute to the comprehension of the psyche. This is an old question we can trace back to Plato’s philosophy paralleling the triple structure of the pólis and the triple structure of the psyche, whereby we are impelled to conceive of (1) the State as a kind of collective mind,
3 Since the Freud-inspired authors cited above (some of them at least) are better known and easier to find out, I think it useful to list some jurists variously inspired by Jungian concepts: Hans Fehr (1954-55), Erich Fechner (1956), Franz Wilhelm Jerusalem (1968), Maarten Bos (1976), Raymond B. Marcin (1992-93), Pnina Lahav (2003), James Howard (s.d.), Antonin I. Pribetic (2008), Oleg Merežko (2010). Interested readers will find their works among the References, at the end of this article. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 9
which may undergo pathological alterations, and (2) the psyche as a kind of inner State, liable to take different (bad or good) forms.4 The last question is of course whether and how law and psychoanalysis can conjointly operate in order to improve the quality of life in our society. Can the-law-as-such in some way “heal” the human relations it applies to, and the persons there involved? And conversely, can psychoanalysis contribute useful ideas to re-think and “cure” legal institutions, beginning from local courts to end with international law? Two other Italian analysts (C. Brutti and F. Fornari) suggest those hopes may have some grounding. However, one should note, letting in terms like “improvement” and “hopes” is not at all trivial. As anticipated above, such questions are to do with what is right and what is wrong in human life and society; by them, the dialogue between law and psychoanalysis is assigned a normative task. There we find psychoanalysis as a form of social criticism as well as a source of prescriptions: far beyond the neutrally explanatory role we ordinarily expect a psychoanalytic sociology of law to play. So, the final question seems to be: is that possible without falling back into old jusnaturalism or, worse, into some unconfessed naïve conception of natural law? Much more than behavioural psychology, psychoanalysis is somehow to do with “human nature” (at least in the sense of man’s being the subject of his behaviour, both normal and abnormal). If so, should we not make explicit and better explore the relation of the psychoanalytic concept of normalcy to the legal- philosophical concept of natural law? And since those norms, whatever they are, are by definition the same for all human beings as well as meant to discipline their coexistence, should we not do face the problem by taking into account the contributions from both individual psychoanalysis and the psychoanalytic study of groups?
4 To what extent is the psychoanalytic partition of the psyche into Id/Ego/Superego aware of Plato’s partition of the soul into Appetitive/Spirited/Rational? To deepen Freud’s relation to Plato’s philosophy, cf. Solinas (2008). Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 10
Such questions have in fact raised the attention of legal philosophers such as Franz Rudolf Bienenfeld, Albert A. Ehrenzweig and Pierfranco Ventura, as well as the attention of psychoanalysts such as Giacomo Contri, whose detailed analyses (inspired by Lacan, but largely original) help us distinguish between Nature Law, fatally ideological, and the Prime Law psychoanalysis is to restore. To him I would add some pages by Kleinian analysts such as Wilfred R. Bion (on the protomental feelings of “obligation” liable to emerge in the basic-assumption group depending on which assumption dominates at the moment, not to speak of Bion’s concept of “institutions” in large well-balanced groups) and, lastly, Franco Fornari (on the social rules sustained by the “good internal family”). It is only too obvious that such a wide-range inquiry exceeds by far the limits of an article. As the readers have already guessed, it is a theme on which I am still working myself, and all that I have written to this point is but a summary, so as to give just the smell of a work in progress. What I can do in the following pages, instead, is to cut out some issues from the general theme, and develop them only. To this aim I have chosen to concentrate on the contribution offered by the authors from Austria. The main reason for this choice is that it allows me to start from the very beginning: Freud himself and the Freud-Kelsen dialogue.
Freud, the jurist. The Unconscious as structured by an archaic Law.
While particularly interested in art, Freud seldom tried to “psychoanalyse” the law as such, or legal institutions qua legal. On the contrary, legal categories and a specifically legal vocabulary are often used in analysing the unconscious (as demonstrated by Giacomo Contri, Marie-Dominique Trapet and Marie Aleth Trapet). According to Contri (1989), Freud’s “principles” – i.e. the “laws” to which the psychic is supposed to “obey”, such as the Pleasure Principle or the Reality Principle – resemble the principles of a legal order much more than the physical laws of natural Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 11
sciences.5 In fact physical laws cannot be violated, while the Freudian principles of psychic life can (psychopathology being the consequence of such violations). So, quite the same as in legal order, violating the law is possible, but it entails a sanction. According to M.-D.Trapet (1998) and M.A. Trapet (1999), such a legal view of the psychic does not come by chance. Many pages in Freud’s work demonstrate a certain confidence with juridical culture. On the footsteps of Bachofen’s Mutterrecht, he evokes the transition from matriarchy to patriarchy and call it a «progress of civilisation» and a «a victory of spirit over the senses». But why so? Freud quotes the ancient maxim of Roman jurisprudence: mater semper certa est, pater numquam. Which on the child’s side means that maternity is directly experienced, and in a way felt together with motherhood, while paternity is a conjecture (eine Annahme), drawn out of a deduction and an assumption (auf einem Schluss und auf eine Voraussetzung aufgebaut): the same as it happens in the judge’s legal syllogism (Freud 1939, p. 221). That is why paternity is from the very beginning (for both the father and the child) something
5 That is the main reason why Contri, like most authors of Lacanian origin, maintains psychoanalysis to be another thing, quite apart from psychology and having nothing to do with it. It is a pathway along with I cannot follow him: not to the end, at least. Such a polar opposition between psychoanalysis (the only science of the subject as such) and psychology (assuming mind and/or behaviour as its object) looks to my eyes as a tired repetition of Dilthey’s one between Geisteswissenschaften, aimed at “comprehending” on the ground of motivations, and Naturwissenschaften, aimed at “explaining” on that of causes: a methodological opposition that contemporary epistemology tends to reformulate in much less radical ways. Contri and others are right in stressing that psychoanalytic interpretations are not explanations, and also right in emphasising that psychoanalysis cannot help presupposing some kind of free- willing subject (not the same as a perfectly autonomous Ego, by the way). But all that regards psychoanalysis as practice, not as theory. Indeed, psychoanalytic psychotherapies aimed at looking into «the other scene» (Eine andere Schauplatz, said Freud) do stay apart and do remain, in practice, pretty different from all kinds of non-interpretative psychological interventions; however, this does not relieve us as scientist from being able to psychologically explain why and how the interpretation works (when it does). If only to improve our ability to interpret, such explanations are needed; and they obviously require some kind of psychoanalytic psychology able to relate psychoanalytic theory and psychology tout court, in such a way that both can learn from each other. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 12
spiritual, rather than bodily: a legal decision on roles (or a symbolic function, as Lacan will call it), and the fundamental law of family as we know it. In other words: the family is (and is experienced as) a legal order, whose roles require what a jurist would call certitudo juris. Of course, this law too can fail or be violated. One can go on obsessively doubting there may have been an error, some “miscarriage of justice”, at the very origin of one’s own life; hence the unconscious fantasy well known as the neurotic’s «family romance» (Freud 1909). Or either one may unconsciously reject the Name-of-the-Father as such, whoever the father be (the price for that being psychosis). As all know, this peculiar type of “rejection” (Verwerfung in German) corresponds to the mechanism Lacan called “foreclosure” (forclusion, in French). However, few know or remember that all the three terms – Freud’s Verwerfung, Lacan’s forclusion, as well as “foreclosure” in English – have a specific legal connotation, that Lacan’s terminological choise appears aimed at emphasising: so to make us aware of the juridical organisation of Freud’s Unconscious.6 The child’s perception of family roles is not the only issue whereupon Freud’s analysis borrows terms from legal terminology. And such is the number that one asks oneself whether this happen by chance or by choice, and whether those terms be mere metaphors or real concepts hinting at something more: at the trial- like situation wherein the Ego feels to be charged with some
6 In the use of German-speaking lawyers, Verwerfung refers to the legal rejection of some demand, in particular by public authorities, entailing the repudiation of whatever obligation thereby claimed (like the refusal to acknowledge or pay a debt, or to honour a contract). In France, forclusion means the peremptory extinction (and the subjective loss) of a legal right that has not been claimed or exercised within the expiring terms. In English the meaning is even more specific, foreclosure being the «procedure by which the holder of a mortgage – an interest in land providing security for the performance of a duty or the payment of a debt – sells the property upon the failure of the debtor to pay the mortgage debt and, thereby, terminates his or her rights in the property» (West’s Encyclopedia of American Law, 20082). So, what is common to all the three is the idea of dislodging someone from the position one expected to be entitled to get or keep. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 13
crime. In connection with that, a good example is Freud’s analogy of certain dreams as a disguised «confession» and, therefore, his definition of such dreams as Beweismittel or «evidential» (Freud 1913a; cf. Christopoulou 2007, p. 95). As Marie-Dominique Trapet (1998, 2002) reminds us, we are said by Freud to act as though internally threatened of some terrible «penalty», or otherwise driven by a peculiar «need for penalty» (Strafbedürfnis). In Freud’s pages the «process» (Prozess in German) is generally meant to simply designate what is going on (like in the «primary process» of the unconscious), but sometimes the same term seems more specifically meant to assimilate certain unconscious processes to the procedures of criminal law; and he goes so far as to talk about a «psychic trial» taking place inside (Freud 1905) and even evokes the «judicial activity of the moral conscience» secretly inspired by the Superego (Freud/Einstein 1933). So Trapet may be right in stressing «his [Freud’s] legal conception of mental agencies»: there is a defendant (in the Id), a barrister (whose pleading may resort to Ego defence mechanisms such as rationalization (“I could not do otherwise”), and a judge (in the Superego). But she is also right in noticing that the Freudian Superego is not only a judge, it is also the detective, the public prosecutor and the supreme legislator: all at the same time. And equally right in noticing that such terms as guilt, judge, penalty, trial, come to Freud from two vocabularies: the legal one, and the religious as well. Trapet’s remarks give me the opportunity to notice that apparently the psychic apparatus is in fact juridically organised (as Pierre Legendre writes: the unconscious acts like a lawyer),7 but the peculiar law it obeys to is no modern law at all. Not only does the unconscious not yet know any separation of powers: in fact it looks structured by an archaic law even earlier than Roman jus, and it only knows the polar opposition between fas and nefas (this side of any subtler distinction between religious, moral, and legal).
7 I quote from Goodrich (1966, p. 195): «where Lacan referred to the unconscious as being structured like a language, Legendre adds that the unconscious acts like a lawyer». Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 14
The Freud-Kelsen dialogue.
Let us now come to the dialogue between the father of psychoanalysis and the greatest legal philosopher of the 20th century. Strangely enough, the Freud-Kelsen dialogue has long been relatively unexplored, if not by few German and Italian scholars you can count on the fingers of one hand: Giacomo Contri (1976, 1977), Mario G. Losano (1977), Ludwig Adamovich (1977), Claudio Tommasi (1985), Clemens Jabloner (1998).8 Thanks to them, we now know that speaking of a “dialogue” between the two is quite appropriate. Kelsen often took part in Freud’s “Wednesday Meetings”, and it even seems that he (though not at all an analyst himself) became a member of the Vienna Psychoanalytic Society on December 15th 1911. The relationship with Freud was probably mediated by a shared friend, Hanns Sachs (who was both a lawyer and a psychoanalyst), and even more by Kelsen’s intellectual curiosity for anything new might emerge in Geisteswissenschaften. Simple curiosity became real interest in 1921, when Freud published his Massenpsychologie und Ich-Analyse: a book on which Kelsen was invited by Freud to give his comment in a lecture at the Vienna Psychoanalytic Society on November 30th of the same year. The lecture was later published in Freud’s journal Imago (Kelsen 1922). Besides, Contri (1976) is probably right in identifying Kelsen as the «impartial interlocutor» (unparteiischer Partner) whom Freud (1926, 1927) addressed in his writings on the question of lay- analysis. And Métall (1969) may be right in identifying Kelsen as the «distinguished Viennese economist» [sic] with whom, according to Jones’s biography, Freud had long conversations during a vacation together in Seefeld, Tirol, 1921. Not to speak of other Viennese personalities operating in both circle, Kelsen’s and Freud’s, such as Robert Wälder: among the first to face the
8 In addition to the authors cited above, the French Centre de philosophie juridique et politique (Université de Cergy-Pontoise) has held a special Journée d’etudes (on June 5th 2008) upon Le droit, la psychanalyse, le politique : Freud et Kelsen (www.n.u-cergy.fr/spip.php?article11077). Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 15
question whether psychoanalysis be relevant to juridical sciences, and how (Wälder 1936). When asked by Freud to give his lecture at the Vienna Society, Kelsen was developing his own approach, the so called Reine Rechtslehre (Pure Theory of Law), and his main concern was to accurately distinguish between the State (a matter for historians and political scientists interested in the various forms of political power) and the Law properly conceived as a merely formal system of juridical norms, to be logically (not sociologically) studied by “pure” jurists. Like the methodological individualist he was, Kelsen asserted the State had no real existence, apart from being a (very) large group of individuals variously organized; therefore, it was to be thought of as a set of legal functions, not at all as a mystical “substance”. In other terms: it is not the State (a purely imaginary subject) that makes norms, rather it is the system of effective norms that gives the State its seeming reality; and the State itself (or, to say better, its concept) only arises as a «personification of the legal order». Therefore, he had found particularly relevant to his work Freud’s analysis meant to unmask the mythical origin of the clan (in Totem and Taboo, 1913b), and he found as relevant Freud’s rejection of Le Bon’s idea of a collective soul (l’âme collective des foules), and the alternative explanation he gave of mass cohesion in terms of libidinal bonds among individuals, and shared identification to the leader (Mass Psychology and the Analysis of the Ego, 1921). His only worry (and he honestly expressed it during the lecture) was that psychoanalysis itself might in the future indulge to some reification of political concepts, at least in analysing institutional groups such as the State and the Church: certainly much more durable than the crowd, and much more complex than the primal horde, or the clanic society, but still to be conceived of as mere aggregations of individuals. Any personification of the State – warned Kelsen– would be a «hypostasis» liable to falsely assume the divine substance of a God; while the great merit he acknowledged psychoanalysis was precisely that of unmasking, with no qualms whatseover, all false beliefs in which we find reassurance by analysing the individual-psychological elements Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 16
they consist in. And just for that he went so far as to greet in Freud a better sociologist than Durkheim.
Kelsen, the psychoanalyst. His analysis of Plato’s political dream. Freud as a tool for social science.
Apparently, it was not only to please Freud the friend, on the occasion of his last book. Kelsen was sincerely interested in using Freud’s theory to unmask the hypostatized idea called “State”. There is in fact another essay (Kelsen 19282) where he even seems to accept Freud’s explanations in terms of libido, provided that this concept shall not hint at, nor be misunderstood as any kind of mysterious fluid; rather as a passionate form of relating to whatever object, as it happens in all relations inspired by Eros (in the sense of Plato’s myth, to whom Freud himself explicitly referred). In connection with Plato, we also have another longer essay he wrote for Imago (Kelsen 1933a), wherein Plato’s political philosophy is analysed in detail, with special regard to the relation between political bonds within the State, and libidinal bonds among the citizens. Needless to say, Plato’s republic turned out to be an authoritarian kind of State (today we could even call it totalitarian) that Kelsen, a liberal and a democrat, could not have detested more. But what is interesting here is the reason why the Austrian jurist deems Plato’s Republic – which is also Plato’s personal dream – to be bound to degenerate into a horrible form of autocracy. The reason is in fact the homosexual quality of the libidinal bonds whereby the Republic is held together. Kelsen does not at all condemn the homosexual orientation of libido as such, on the moral ground; nay, once again following Freud, he remarks that homosexuality is a component of man’s original «bisexuality», liable to be either acted or sublimated at individual level. What he finds to be pathological and politically dangerous, in Plato’s dream, is the attempt at imposing a kind of collective sublimation: namely, a formalised style of life, compulsory for all citizens, within sort of brotherhoods where the bulk of genital libido (prevailingly heterosexual) cannot find any creative expression through legal Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 17
institutions. As emphasised by Claudio Tommasi (1985, pp. 32- 38), Kelsen’s essay is so Freudian as to seek in Plato’s life and personality for the roots of his political project. No less Freudian, however, are his essays on the nature of the State or, better said, the idea of State (Kelsen 1922, 1922-23, 1927). There he «made an extremely bold attempt», quite unusual for a legal philosopher of that time, «to apply Freud’s theory of totemism to legal theory» (Jabloner 1988, p. 383). Apparently, did Kelsen think that Freud’s thought could be an excellent tool in his own hands. Nay, more: he held himself as jurist, and Freud as a social psychologist, to be on the same side, both engaged in a common battle against metaphysics in social science. Why so? Kelsen’s methodology (like that of all neo-Kantian philosophers) consists in expelling from rational knowledge all concepts of “substance” (criticised as illusive “reifications”), and in replacing them by formal concepts, redifined in terms of “function”. So, in Freud’s interpretation of the totem and the totemic meal he saw a very good explanation of how it all began, the totem being the first «illustrative personification of the legal order» subsequently said State, while the totemic meal – staging the shared identification whereby all are tied to the dead Father – could be conceived of as the pre-historic beginning of the idea of substance. Which does not only regard the State: the like happened, to his eyes, with other concepts such as “force” in physics or “soul” in psychology. That is why he considered himself and Freud as part of the same anti- metaphysical movement; and that is why he considered both Totem und Taboo and Massenpsychologie und Ich-Analyse so methodologically important for social science in general, beyond law and psychoanalysis. It was still in the footsteps of Freud that Kelsen later on developed his own «highly ramified social-psychological work which culminated in the monograph Vergeltung und Kausalität» (Jabloner 1988, p. 383; cf. Kelsen 1939). And such was Kelsen’s interest in psychoanalysis that he even theorised a psycho-political Idealtypus, the so called «democratic personality» as opposed to the «non-democratic» one; and did it much earlier than Adorno’s study of authoritarian personality and Lewin’s study of democratic leadership. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 18
Democracy and autocracy – he says – are two polarly opposed forms of State. Not only, as obvious, on the ground of their legal constitution and political institutions: also on the ground of ideology and (since ideology resides in the brain and the heart of single individuals) also on the ground of psychology. Democracy and autocracy, to function as such, need to rely on a conspicuous number of respectively democratic and autocratic characters. How did Kelsen (19292, 1933b) see the democratic character? As a sympathising and peace-loving type of person, whose aggressive drives are more inward- than outward-oriented; therefore, a not exceedingly ego-centred type of person, capable of mature feelings like sense of guilt, responsibility and concern. Today, in Kleinian terms, we could say: a person who has attained the depressive position! Coming back on the same subject some years later, the great Austrian jurist made it even clearer, in a very Freudian way, that democratic personalities have a realistic self-image which helps them identify with any other citizen, whilst non-democratic ones (those required by dictatorships) have a disproportioned self-image which drives them to seek for a very special person to identify with: the dictator as Ego Ideal (Kelsen 1955). To conclude on Kelsen: his concern in psychoanalysis was undoubtedly real and deep, far beyond his personal friendship with Freud and, one should add, even beyond its academic meaning as a purely theoretical tool. As Clemens Jabloner recalls: «On a more personal note, Kelsen’s psychoanalytical insights were also important in his conflict with Fritz Sander. The latter, a once particularly devoted student of Kelsen, [had] turned away from the Pure Theory of Law and developed a theory of legal experience [Theorie der Rechtserfahrung]»; the master had proved so generous as to support his heterodox disciple in gaining a university chair nevertheless. Notwithstanding that, Sander went so far as to falsely accuse «Kelsen of academic plagiarism. [Hence] a disciplinary inquiry to investigate the substance of these accusations, which naturally led to Kelsen being completely exonerated». The Viennese master did not fail to notice the analogy between what was happing within his circle and what had happened within Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 19
Freud’s school, therefore – Jabloner reports – he «was able to see in Sander’s strange behaviour a “case of an unresolved Oedipus complex that could be explained by means of psychoanalysis” and to interpret the accusation of plagiarism as an attempt at patricide» (Jabloner 1988, p. 382-383; cf. also Métall 1969, p. 39, n. 1). «In this context, it is interesting to note that in the 1950s Kelsen volunteered his services to the psychoanalyst K.R. Eissler for an extended “psychoanalytic interview”. The resulting material, which would be of vital interest to the study of Kelsen’s life and thought is, unfortunately, not yet publicly available». So wrote Jabloner (1988, p. 383), and so will it still be for a few years to come.9
Some remarks on Kelsen’s use of psychoanalysis. Legal hypostases as benign hallucinations.
The crucial question legal theory inherits from the Freud- Kelsen dialogue is: how was the law (strictly meant as jus) born? Have there always been legal norms, specifically other than moral or religious ones? The answer, we know, is: no. But how was it that a peculiarly legal order came into existence? Within the 19th century German tradition of allgemeine Staatslehre, the law is but the State’s will. If not modern State, at least some kind of sovereign power is needed: no State, no law. According to Kelsen’s reine Rechtslehre, the opposite is true: political sovereignty is but a replica of God’s will and, the same as God, the State is just a hypostasis, i.e. the legal order’s anthropomorphic personification. So, who came first? To answer this question, we must better define the terms. What do we mean by Law and Sovereignty? And even more important: what does “first” mean? I begin with this last question, to observe that we had better take “first” in the strictly chronological (not ontological) sense. At least, if we want to stay on the empirical ground of social science. Indeed, if the Law has to be something more than a set of rules, the relation between Law and Sovereignty
9 Kurt Eissler’s interview is in fact kept, among the Sigmund Freud Papers (box 120), at the Manuscript Division of the Library of Congress (Washington D.C.). The document, dated 1953, «may not be photocopied until 2020». Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 20
shall be conceived of as the mutual implication of two concepts equally necessary to defining each other. But this is now. Asking which came first, i.e. earlier, is to do with the history of human cultures and the prehistory of our species, if not also with the natural history of primates. Did not Frans de Waal, professor of animal psychology at Emory University (Atlanta), write such a book as Chimpanzee Politics (19821)? On that ground, within the primates horde – and afterwards within the proto-human societies that Freud calls Primal Horde – you can easily think of some kind of political “sovereignty” (whereby I properly mean summa et plena majestas, whatever and however primitive its form) with no “law” (whereby I mean a formal system of both substantive and procedural norms, virtually capable to decide whatever situation). On the other hand, there can be no Law if not warranted by some kind of supreme authority capable of enforcing its rules. That said, a psychoanalytic answer to our question could sound as follows. Political sovereignty came first. Nevertheless Kelsen is right in defining the State «but a hypostasis». Only, he should have added: an effective hypostasis. To my eyes, the State is to society exactly the same as the Ego is to the body: in both cases we find what Lacan would call «primary hallucination», yet something without which individual subjects could neither exist (as Egos) nor coexist (under the State). Indeed, both are but hallucinations: there is no thing like an ‘I’ inside one’s body (if not the Ego’s apperception of being such), and there is no thing like the State above the crowd of organized individuals. In other terms: the State is not so much the end-object whereto the citizen’s projective identifications converge, rather the State is a strange object they create. Let me stress, however, the benign role those “hallucinations” play in making our life thoroughly human, and their effectiveness in keeping us far away from the primal horde (alas, not always). And let me also remind how the two, individual ‘I’ and collective authority, were born together: Freud (1921) describes it very well. Of course, this is not precisely what Kelsen says; but we must recognize that he strikes very near to it when he appeals to Vaihinger’s philosophy of als ob (as if). The State as well as the Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 21
People do not exist, but in order to think and organise our coexistence according to shared laws we, the individuals, cannot help acting as if they did.
From Grundnormen to Urnormen. The founding role of taboos.
What else about law? Once individual subjects and collective authority come into existence, legal norms become necessary as an intermediate, to organize their relations. Yet, something more is needed: Kelsen would say any legal order requires a fundamental norm (Grundnorm); cultural anthropology would say it requires a founding myth. In our case, the legal order following the primal horde (entrusted to the father’s simple will) appears entrusted to a couple of taboos: the prohibition of incest and that of cannibalism, respectively summarized in the myth of Oedipus and the myth of the Minotaur. We often tend to overshadow the latter, yet the two prohibitions and the two myths are equally important and strictly tied – says Pigazzini (2010) – since they respectively correspond to the two faces of any (supposed) sovereignty: psycho-moral in individuals, and political in the State. As though we were said: “never shall any individual defy the social order to the point of making it regress to a lawless horde”, but also “never shall the political order treat individuals so poorly as to consider them just edible meat”. I would not say these are Grundnormen, in the sense of Kelsen. I would rather say they are Urnormen: the formal preconditions for legal norms to be conceivable in terms other than someone’s naughty will. Precategorical imperatives, as it were. As Freud (1913b) suggested, categorical imperatives are but hypothetical imperatives whose protasis has been repressed. In our case (the prohibition of incest and that of cannibalism), Oedipus and the Minotaurus offer a kind of de-repression: both myths tell us what would happen if the norm violated the meta-norm, what are the dangers we run into. Namely: if you emphasise the sovereignty of the individual (Oedipus), the punishment will be staying alone, Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 22
self-exiled from the group; if you emphasise the sovereignty of the whole, the danger will be the group devouring its members.10 Since we consider the State as if it were a person, if only you go so far as to say the State itself must respect the same taboos as all human subjects, there you find the border between normalcy and perversion in the legal as well as political field. Take the war of conquest. Is it not a form of cannibalism whereby a (political) subject devours another subject of the same species? Not anthropophagy, maybe; but poleophagy, certainly! Or even: take totalitarianism. Is it not another form of political cannibalism whereby the State swallows its own civil society? Like Behemoth, the biblical monster who drinks dry the river whose waters he lives in...
Robert Wälder: a Freudian pupil of Kelsen’s, or a Kelsenian pupil of Freud’s?
Needless to remember, the evocation of Behemoth as a symbolic figure of totalitarianism is not mine, but Neumann’s (1944). Franz Leopold Neumann was a labour lawyer close to the SPD and the workers’ unions, who had got acquainted with psychoanalysis at the Frankfurt School. His book on «the structure and practice of National Socialism» was published in the USA, where he finally decided to stay after fleeing from Germany in 1933. Austria, instead, was to remain a free country five more years; and its scholars were free to think and publish until the Anschluss to Germany. Among them Wälder and Bienenfeld. In the Thirties, among Viennese psychoanalysts, Robert Wälder was the one most interested in the application of psychoanalysis to social phenomena, showing a mastery of the social sciences much wider than one could expect from the psychiatrist he was (a quality
10 I am clearly referring to the Kleinian theory of early anxieties: respectively, that of being abandoned by the maternal breast and that of being devoured by it. As explained by Bion (19612), both are re-activated in the social situation, and typically projected onto the group (no less necessary to man’s survival than the breast to the infant’s). Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 23
which earned him the appointment as editor-in-chief of Imago after Kris, in 1934). We owe him articles on international affairs, war and peace, the sociology of law (1936), and later on in the Sixties – after moving himself to the USA – on progress and revolution (to know more see Guttman 1986). According to Wälder, a follower of Freud’s also close to the Kelsen circle, the contribution psychoanalysis can bring to juridical sciences is to be sharply distinguished from that it can bring to social sciences. Being an empirical science interested in facts (Tatsachenwissenschaft), psychoanalysis has nothing to add to jurisprudence in the Kelsenian sense of pure theory of normative systems: never will it be able to say which norm the case under discussion is to be traced back to and framed into, nor if a norm be valid. Yet, psychoanalysis can contribute «sociology of law» the psychological analysis of normative activities (such as legislation) and legal actors, with special regards to the trial procedures (Wälder 1936, p. 94). Moreover, he adds, a very special contribution can be expected from it to criminal law or, to say better, to the theory of penalty. Though psychoanalysis as science has nothing to say about the aims and ends of legislation, it can actually offer a useful knowledge as to the means, once the ends are established. In fact, if the Legislator wants the penalty function to be crime prevention rather than culprits’ affliction (as demanded within the positivistic school of criminal law by Enrico Ferri and others), one should know that neither imposing severe penalties, nor making them as effective as can be, necessarily succeeds in preventing crime. It would, if criminal activities only depended on a wholly conscious and rationally calculating Ego, but – since any Ego is under the constant pressure of non-rational drives from the Id, and non- rational injunctions from the Superego – the Ego’s final decision may unconsciously deny the possibility of being punished, or may even turn out to be paradoxically aimed at achieving some punishment (rather than at avoiding it). So, the question of how the Legislator is to design criminal norms should be better studied. Even before Wälder (1936), something alike had already been stated by Géza Duke (1921) and Theodor Reik (1925); then, even more explicitly, by Alexander and Staub (1929), whose seminal Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 24
work on The Criminal, the Judge, and the Public, far from being a simple handbook of psychoanalytic criminology, appealed in its conclusion to «the social psychology of punishment». And I like to add that today studies – be they clinically oriented in the sense of psychoanalytic criminology (such as Costello 2002) or either empirical research in political psychology (clearly conceived within a different framework) – undoubtedly demonstrates that, in asking to go deeper into the psychology of penalty, they all were quite right.
Just metaphors? What is left of Wälder’s approach today: towards a psychoanalytic sociology of law.
Wälder’s suggestion to psychologically analyse normative activities and legal actors survives nowadays in various authors (even though the use of psychoanalytic categories in their writings is sometimes more metaphoric than real).11 Let us begin with activities. On the footsteps of Freud’s «psychopathology of daily life», Luciano Vandelli (2006) has written a psychopathology of legislative function in the government’s and the parliament’s daily life (with special regard, one must say, to reforms being discussed in Italy). Therein a typology of pathological reforming is both seriously and facetiously proposed. Namely: stop-and-go «cyclothymic» reforms; «obsessive» reforms, continuously spoken of and always procrastinated; thirdly, «autistic» ones, actualised in perfect isolation by a restricted group of politicians locked in their own space and thoroughly deaf to the demands of civil society. Just a few examples (anyone can amuse oneself in finding others fitter to one’s own country): public administration and taxes are the field of
11 I am not speaking of any explicitly acknowledged influence on those writings: most of them do not even cite Wälder, and I suspect his name is hardly known to their authors. What survives is Walder’s (and Kelsen’s) idea that psychoanalytic psychology can be very useful on the ground of law, but not to analyse the law in itself or the way it applies, rather to sociologically understand what is upstream and downstream of it, or aside it: causes, effects, individual decisions and collective behaviours. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 25
«cyclotymic» reforms, the idea of reforming the justice appears to be «obsessive», while university reforms are – alas – «autistic». Vandelli is a great expert of administrative law: in his book dynamic psychiatry, rather than a scientific source of working tools, appears to me only a literary source wherefrom effective images can be drawn (which is of course perfectly legitimate). I would not say the same of Paolo Landri (2000), an Italian sociologist also dealing with administrative matters. Some years ago he resorted to the Freudian concept of «resistances» to describe how processes subconsciously aimed at sabotaging the implementation of some reform may take place within public administration: not only because of all systems’ tendency toward homeostasis; also because any implementation needs a «translation» of abstracts norms into practice (which may be difficult to do, if no common code is available). As a result, normative contents not finding a correct translation may be either ignored (or if you like better repressed), or displaced onto situations other than those the law was originally aimed at reforming. The whole process of repressing-and-displacing here described appears to me pretty similar to some kind of collective “transference” at institutional level. Moreover, while the juridical point of view shall only deal with pure law (i.e. the internal logics of the legal system only formally considered, as recommended by Kelsen), the law- sociological point of view cannot help taking into account also the (political) rhetoric that unavoidably accompanies laws and reform bills; therefore, other resistances to implementation may arise, regardless of the law’s formal content, as a consequence of some «discursive» incompatibility between institutions (e.g. the Executive and the Judiciary, or the government and the school system). One could object those are mere analogies between subconscious processes taking place in individual minds and the collective “mind” of institutions (an analogy Kelsen would certainly not like). However, there seems to be something here which is not just metaphors. I would also add that I am speaking of “subconscious” rather than “unconscious” processes, because the question of legal contents not finding a correct «translation» into administrative Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 26
practice closely resembles the «failure to translate» in the child’s mind, to which Laplanche (2004) imputes the formation of what he calls «subconscious» (originating from «interclusion», not from «repression» in the Freudian sense). Can there be an «intercluded Unconscious» in the group mind? The question is open. Let us now come to the psychology of legal actors. There we have a rich forensic psychology of standing (in the sense of being mentally able to stand in court as pars in causa), but also a social psychology of standing still to be fully developed. An experimental study by van Proijen, van den Bos & Wilke (2004), after distinguishing between standing-as-status and standing-as-inclusion, demonstrates that in both cases fairness in procedures is enhanced by recognition, in that legal actors feel impelled to act more properly (and conversely impelled to evaluate the whole procedure as “fair”) when they sense that the opinion the court seems to make of them matches the image they already have of themselves (no matter whether they are tall poppies or everymen). Van Proijen’s study follows a social-cognitive approach, but we could easily translate it into psychoanalytic terms by saying that narcissistic personalities having an unrealistic self- image are more likely to find “unfair” the procedure they are implied in, and conversely more impelled to act unfairly within it (which is no surprise at all, and reminds us of Kelsen’s analysis of «non-democratic character»). Shorter considerations on the symbols and imagery of standing, and how they change in history, can be found also in Joseph Vining (1978). According to him, the history of procedural law makes clear the transformation of legal identity from the idea of being someone into that of having some rights, which certainly mirrors and accompanies the transition from the older static conception of subject as persona (with a definite set of wants) to the newer dynamic one of subject as “personality” (searching for self- actualisation with a mobile set of preferences).12 If this is true, a
12 Along with the transition from medieval societies (where social identity and legal identity coincide in one’s rank, and are given together with it once and forever) to modern societies (where legal identity depends from time to time on a variety of social roles the law may acknowledge or not acknowledge), another Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 27
general question arises as to psychoanalytic history in general. Are the categories of psychoanalytic psychology tailored and customized for modern personalities only, or can we use them to interpret subjective states of centuries ago? And if we cannot, can those categories undergo some sort of historical specification to regain their power?13 Still in connection with the social psychology of standing in court, a big difference – I think – should be made between Anglo- American countries and Mediterranean nations such as Italy. In English, saying that anyone can “have his day in court” sounds good. In Italy we do not say so, and if we did it would sound horrible (even though limited to claiming one’s right in a civil trial, or to simple witnessing in someone else’s trial). So, why is standing in front of the State’s Law so differently experienced in different countries, as either something to long for or something to stay far from? I would not say it only depends on the slowness and malfunctionings of Italian justice; I’d rather say it depends on something deeper and more “psychoanalytic”, i.e. which «affective transition takes place in the very idea of standing: from standing on (one’s property, locus standi par excellence) to standing for (one’s right, claiming to be recognized). Cf. Vining 1978, pp. 57-64, 81, 155. 13 My answer is: yes. We could think of self-awareness and moral decision as arising from an internal Ego-Alter dialogue, where Alter is a variable liable to assume different values depending on historical conditions. In the case of moral decisions regarding values the internal dialogue, partly conscious partly unconscious, is between Ego and an idealized form of Alter, or Super-alter. We are used to think of the “internal other” as an Alter Ego, and find that quite obvious; but this kind of sensitivity is not at all natural, rather historical and typically modern. In fact, there are good reasons to think that the Ego-centred structure of modern times is already being superseded, in postmodern psyche, by a Self- centred one; and other structures can be traced back in the past. Within this model, the Freudian Super-ego can be conceived of as a particular form of the moral instance: namely, the way Super-alter is shaped in modern times (of course, the only one Freud could observe in his clinical practice). Referring to other ages, however, we had better speak of Super-vos (in Homeric Greece), Super-nos (in the classic world), Super-tu (in the middle age), Super-ille (in proto-modern times), and Super-se (in postmodern ones). I called this scheme the «historic- pronominal theory of the psyche» (Caruso 2002, 2006). Needless to say, it is supposed to serve any application of psychoanalysis to history (not only the history of law). Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 28
code» prevailingly shapes intra-psychic communication in different cultures. I am using this concept in the framework of Franco Fornari’s theory of the four natural codes of affective communication: maternal, paternal, filial, brotherly (on which theory see: Bonacchi s.d., Maggiolini 1988). So, my point is: standing in front of the State’s Law is commonly experienced as being “in front of the Father”; the unconscious meaning of this experience however, besides personal variables depends on the culture. In cultures where the paternal code has hegemony, the Father’s Law is felt as strict and stern, but also protective and reliable; on the contrary, in cultures where the maternal code prevails, the Father’s Law is felt as a dangerous interference one has to seek protection from, and complicity against (like the childish entreaty: “don’t tell father”, as it were). Still in connection with legal actors (and how depth psychology can help predict their behaviour), interesting contributions concerning lawyers came from Raymond B. Marcin of Columbus School of Law (Catholic University of America, Washington DC) and James Howard (Missouri Bar). As I said from the beginning, I cannot consider the authors inspired by Jung’s analytical psychology within the limits of this study. Yet, an exception shall be made for those two, whose articles have raised a certain attention among all dealing with the psycho-sociology as well as the educational psychology of legal professions, whatever their scientific orientation. As remembered by Raymond B. Marcin, the first attempts at a questionnaire meant to assess law students’ learning styles utilised the well-known MBTI (Myers-Briggs Type Indicator), developed on the basis of Jung’s theory of psychological types and able to distinguish 16 different types. Then a debate took place whether the test was really predictive of the student performance (Miller 1966, 1967); whether being administered the test, and getting familiar with its rationale, could help professionals understand better the way they behave, and better accomplish very delicate tasks such as legal interviewing, negotiation and conciliation (Peters & Peters 1990, Peters 1993). Marcin’s article tells us that indeed such instruments can be useful. Half a century after the Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 29
creation of the MBTI, he wrote, «college pre-law advisors have taken to using psychological typing indicators as aids in career counseling. In other contexts, family law practitioners, following the lead of many marriage counselors, now use psychological typing indicators as conciliation tools, and law firms, following the lead of corporate management in general, are beginning to use them in personnel development programs» (Marcin 1992-93). Compared to highly formalised assessing tools like MBTI and others, James Howard’s typology is much less analytical. Founding upon Jung’s theory of archetypes (rather than his theory of psychological functions), Howard (s.d.) identifies four types of lawyers respectively corresponding to «The Sovereign (King or Queen)», «The Warrior or Amazon», «The Magician or Hetaira», and «The Lover or Medial». Too few, I am afraid, to give us an exhaustive psychology of legal acting (why shouldn’t other Jungian archetypes be there involved?); yet useful, maybe, on a narrative ground to describe the unconscious fantasies and expectations of legal characters acting on the legal scene: the professionals’ transference onto their profession, the clients’ transference onto the lawyer, the citizens’ transference onto the judge. «The other scene», once again!
From psychoanalytic legal sociology to psychoanalytic legal philosophy: Franz Rudolf Bienenfeld.
Let us now set apart modern developments, and go back to the Austrian beginnings of our story: to such illustrious jurisprudents as Bienenfeld and Ehrenzweig. Here we find an attempt at using Freudian psychoanalysis on a different ground: legal philosophy, rather than legal sociology. Born a Viennese, Franz Rudolf Bienenfeld (1886-1961) had been an admirer of Freud’s since a boy, even before undertaking the study of law. Nothing at that time could have been more meaningful to him than imagining that in few years he would gain Freud’s friendship and even admiration. «His prudence and wit enchanted father, and he was much liked as a card player»: he who Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 30
writes so is Martin Freud (q. in Adunka 2000), who also studied law, and had been a colleague of his at the same University. Bienenfeld made his début in legal scholarship with a book on guiltless liability (Haftungen ohne Schulden, 1930). After the Anschluss, he was deprived of his Austrian citizenship, which meant his property confiscated and he himself exiled. So, the most of his career as a lawyer took place in London (where also Freud had moved to in the meanwhile). There he became head of the legal department of the World Jewish Congress, and there he could write and publish the rest of his books (in English) After the war he collaborated with the International Military Tribunal at Nuremberg, became the WJC’s spokesman in the UNESCO, and had some part in the early drafting of the Universal Declaration of Human Rights. Such being his personal experience, no surprise that he had a strong interest in all that regards justice (and a special curiosity towards psychoanalysis). Hence his book on the Rediscovery of Justice (1947), written to expose his own «theory of the relativity of Natural Law», where the old idea of Natural Law is kept, nay «rediscovered», but also «relativised» in that culture – we could even say: social psychology – takes the place of metaphysics as source of values. In other terms: Bienenfeld – like Erich Fromm (1964) will do – admits there be a natural desire in the heart of man for justice and peace, and, the same as Fromm, interprets Isaiah’s Messianic vision as a universally human dream, which mirrors this desire. Man’s desire for justice and peace, however, does not yet provide Natural Law with firmly established contents. What is “natural” to human beings is only the desire for Eros to prevail on Thanatos: how to walk this way may and does change in history, depending on changing sensitivities. What really counts is the direction: forward, not backward, so to say. That the principles of justice have to be “self-evident” remains true; but this requirement can only be said natural in that justice appeals to the basic needs of human nature, whereas it becomes historic as to means whereby those needs can be satisfied. According to Bienenfeld (1947), «any legal system which infringes principles of Natural Law as Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 31
recognised and considered self-evident in a particular period of evolution produces no Law at all». In other terms: Natural Law cannot precisely tell Positive Law what norms ought to be prescribed, but it can pretty well tell us what norms ought not to. I would call it a kind of negative jusnaturalism. The book was immediately and favourably reviewed by Heinz Hartmann (1948) on the Psychoanalytic Quarterly, which helped the author enter the psychoanalytic debate as a well-respected voice. An article of his on Justice, Aggression and Eros could so be published on the International Journal of Psycho Analysis. There he went on, applying «Freud’s discoveries to the problems of justice and law in order to demonstrate that psychological trends which can be observed in infancy form the whole framework of every legal system. They do so by repeating in the relations between citizens in society the attitude of brothers and sisters to each other, and in the relations of subject to ruler the attitude of every child towards his parents» (Bienenfeld 1957). That may sound rather obvious, and not particularly interesting; but to really understand what the author meant we have to look into his posthumous work. When he died, Bienenfeld was in fact writing a new book on justice, Prolegomena to a Psychoanalysis of Law and Justice. The manuscript was published posthumously in two instalments on the California Law Review (Bienenfeld 1965), under the auspices of his friend, Albert A. Ehrenzweig, who must in a way be considered his moral heir as far as the attempt at constructing a psychoanalytic philosophy of justice is concerned. At the core of this attempt we find what Jon Gotschall (1978) has called Bienenfeld’s «psychodynamic model» of legal philosophy, i.e. his analysis of «relative obligations». They are the mutual expectations by which family members (better: family roles) are tied to one other. There he finds the natural beginning of all types of law, respectively corresponding to different aspects of justice. In fact: social obligations and social rights appear to him rooted in the mother- child relation, while criminal law, constitutional law and contract are respectively traced back to the relations between father and child, between husband and wife, between siblings. So, «all Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 32
elements of law are in nuce present in this early situation» ((Bienenfeld 1965, p. 967).14 One last question concerns certain similarities between Bienenfeld’s and Fromm’s idea of justice. I do not know how much Franz Rudolf Bienenfeld and Erich Fromm knew each other, but they certainly had a common friend, Frederick Ungar (he too exiled from Vienna, then publisher in New York City), whose papers include letters from/to both. Besides, Fromm is explicitly quoted in Bienenfeld’s posthumous book. Finally, an outstanding author of the CLS (Critical Legal Studies) such as David Caudill is clearly influenced by them both.
Austria in America: Albert A. Ehrenzweig
The reader please forgive me for not dealing here with Albert Armin Ehrenzweig (1906-1974), the Austrian-American lawyer cited above. Not so much because his Psychoanalytic Jurisprudence (1971) is maybe the best-known of all books on this subject, nor so much because there we find more of a mine of quotations than a genuinely original thesis; rather because the author, his books, his fortune, are now considered more American than Austrian, and exceed as such the limits of this article.
Law and psychoanalysis in Austria today: Heinz Barta, towards a psycho- history of law.
Heinz Barta is a civil lawyer, also sensitive to the history and philosophy of law, teaching at the University of Innbruck. His long article on juridical thought and psychoanalysis (Barta 2004) is among the richest and most specific things one can find on this subject; that is why I am going to discuss it with some lenght, developing my way some of the ideas there expressed.
14 Let me stress this surprising resemblance between Bienenfeld’s psychoanalytic theory of the four types of obligations emerging in the field of law, and Fornari’s theory of the four natural codes of affective communication (operating in all fields of social life). Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 33
Like many others, the author begins stressing the relevance of psychoanalysis to law studies as far as interpretation is concerned.15 Not only has juristische Hermeneutik much to learn from the psychoanalytic method: even more profitable will this method be for those interested in developing a critical analysis of the social ideology concealed in law texts (inter lineas, as it were). A young Marx wrote: juristisch, also falsch (juridical, therefore false), and so did he mean legal argumentation to be always ideology, or «false consciousness». Barta does not go so far. He thinks however that beneath the «manifest content» of legal norms there may be a «latent» one, sometimes implying some twist of the truth. Such lies may regard either social relations (like ascribing to property per se a kind of “life”, independent from the living subjects owning it) or, even worse, they may regard the human condition (wherever the law drives us to ignore or deny some evils such as mortality, or guilt, or risk, so winking at our megalomania). Both the former and the latter type of lies are made easier by what Barta denounces as the total removal of the Greek heritage: «repressed» and even «disavowed» (verdrängt und verleugnet) in Western jurisprudence, wholly inspired by Roman civil law. Greek law, he writes, never arrived at considering corporate “bodies” like human bodies, and never were associations considered like artificial “subjects” able to have and manage a “patrimony” of their own. Neither was the pólis itself conceivable as a sovereign entity other than the polítai and commanding over them, like in our concept of State. Romanist jurisprudence, on the contrary, has introduced the concept of legal persons into both civil law (omne
15 Among the jurisprudents open to some light use of interpretive tools taken from psychoanalysis I would also mention Pietro Costa. His book on the images of the State coming out of Italian juridical doctrine at the turn of the century (19th to 29th) resorts to the Freudian concept of «overdetermination» (Überdeterminierung). In fact, he writes, all juridical discourses on the State show a peculiar structure determined by the juridical tradition each author refers to, and overdetermined by his political ideology. Costa does not consider this kind of overdetermination to be necessarily unconscious (it may be simply unconfessed); however, the interpretive method he uses to unveil it (i.e. looking into metaphores and semantic isotopies) is not so different from the psychoanalytic one. Cf. Costa (1986), p. 99. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 34
collegium quod personae vice fungitur) and public law (communitas vel persona publica).16 Along with the repression of Greek law and the triumph of Romanist categories, another repression (still in the strictly Freudian sense of Verdrängung) takes place in Western juridical mind: that of death and mortality. Let us begin with death. It is not that the law ignore or deny death, how could it? On the contrary, we find a growing number of laws concerning the status of dead. Their latent meaning, however, seems to be that of negating death as something definitive and, say, the eventual event par excellence in one’s life. Inheritance laws tell us how the dead’s will (defuncti voluntas) is to be respected; criminal law grants a special protection to the dead’s reputation (defuncti fama bona); copyright laws ensure the right to be cited beyond one’s death; and in some cases civil law makes it possibile to make legal acts in a way similar to contracting with dead. Barta calls it all Das Verdrängen des Todes im privaten Totenrecht, but he also hints at another defence mechanism operating there, along with repression, i.e. undoing (ungeschehenmachen). Let us now come to the repression of mortality, i.e. the idea of one’s own death. Which is partly entrusted to the same institutes of private law cited above, partly entrusted to the Romanist idea of artificial or legal person. Legal persons enjoy more or less the same legal ability as humans do but, otherly than we do, they never die
16 Heinz Barta is quite right in stressing how different Greek law was (and therefore how influent its exclusion in the shaping of Western law). According to Giuseppe Chiàntera (2006), we are used to conceive of law in general in the terms of Hans Kelsen’s reine Rechtslehre (i.e. as one formal system, out of which there cannot be other legal norms), while Greek law would be much better understood by Santi Romano’s pluralistic theory of legal orders, each corresponding to some «institution». In fact, rather than one system having its own logics, Greek law appears a non-hierarchic stratification of independent regulations regarding different spheres of life (such as the sacred, or the family): kind of legal orders complete in themselves, prior to the pólis, and not liable to be modified by political decisions. On the role still played by Roman law in continental jurisprudence, one should also see the article by Neil Duxbury (1989), also written in psychoanalytic perspective. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 35
(or at least they are not fatally bound to). So, by founding or entering a company, one’s projects and riches gain a sort of immortality, i.e. a potentially endless future. And not just that: the emotional identification with such artificial subjects as joint-stock companies or limited-liability companies may give human subjects an exciting sense of omnipotence. Which has some real basis, not only because corporations are obviously more powerful than the single human beings taking part in them (even psychologically, since they cannot suffer from the same fragility, inconstancy, lack of will); also because corporations often ensure their members a limited civil accountability, and at the same time, as legal persons, they are totally exempt from any criminal liability. So, thanks to this fictio juris, a new subject is put into existence, which dramatically matches the universally human dream of being a pure, powerful Ego no more encumbered with endless conflicts between Id and Superego, and totally free from any sense of guilt. Let me stress this: Barta’s description of legal persons’ functioning very much resembles the selfish rationality of homo oeconomicus. As though he told us: human subjects can never be such; however, thanks to the Romanist concept of persona (which implies being equipped with legal capacity, and variable degrees of legal ability and competence) and thanks to the extension of such juridical abstractions from the mortal flesh of single persons onto the unlimited abilities of corporate bodies, the dream comes true. And indeed does something very much like homo oeconomicus finally take shape and social existence. Which would be wonderful, if catastrophic events in many a sphere (such as environment and, I add, finance) did not recently demonstrate the strengthened selfishness and the supposed rationality of such “subjects” to be terribly dangerous to social life. Another target of Barta’s criticism is juridical positivism, with special regard to Kelsen’s pure theory of law. By considering norms per se, and the logical relations among them, as the only “facts” worthy being studied by jurists (while displacing all the rest into the realms of sociology, or ethics), formalistic approaches – he writes – have prompted Austrian and German jurists towards a collective «disavowal of reality» (Realitätsverleugnung im Sinne eines Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 36
kollektiven Abwehrmechanismus). Hence a jurisprudence compared to which the Prussian codification of private law, and even the Prussian philosophers of natural law, appear much more realistic, and closer to social life. Hence – he adds – an attitude which paved the way to Nazism, since formalism made it easier for jurists and politicians in the early Thirties to shut their eyes in front of so many facts taking place within the legal system (if only amenable each of them to some norm, and liable to be juridically rationalised), except for feeling obliged – at the end of the process – to recognize, in the whole sequence of small facts, the biggest and less rational of all facts, i.e. the political decision of a new constituent power founding a new legal order (with the Führerswille as its Grundnorm). We can take this example as the clearest and most illuminating one, in order to understand the concept of «juridical lies» as a form of self-deceiving, coinciding with the collective adoption of various defence mechanisms by jurists, courts, political institutions. Hitler’s Machtergreifung was in fact juridically «rationalised» step by step, and at the same time denied and «disavowed» in its whole, until too late.
The eternal fight between Eros and Thanatos. The role of law.
Another concept Barta borrows from Freud (but there may also be some influence from Bienenfeld) is the eternal fight between Eros and Thanatos, taking place inside individual psyche as well as in social life. Not only culture and the peace among nations, also nature and the whole planet are threatened today by Freud’s Todestrieb, i.e. the drive towards death and self-destruction. Which is the role of law in such processes? Barta seems to believe that modern law has long offered his services to conceal them, and has even allowed itself to make new instruments available to the Death Drive. Now it is time for the law to choose: whether to stand with Thanatos or, aside psychoanalysis, with Eros. His omen is obviously that law and psychoanalysis may find a working alliance to protect nature and culture against human hýbris and all forces of destruction. But I would not say he really tells us what such an Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 37
alliance should be like, except some remarks on the desirable integration of law studies with psychoanalytic notions (and maybe experiences). To his eyes, this integration should be no less practical than theoretical, because all professionals in the legal field – be they judges, attorneys, registrars, barristers, solicitors, lawyers, notaries, officers engaged in law enforcement or even law professors – being exposed to some emotional transference, cannot help developing a counter-transference on their own, liable to interfere more or less heavily with their function. Otherly than Jerome Frank (1930), Heinz Barta (2004) does not go so far as to explicitly ask that all legal professionals be psychoanalysed (which would in fact be very difficult to achieve, and certainly not achievable in the form of legal coercion); nevertheless (the same as Howard, s.d., and many others), he holds it firm that providing legal professionals with some psychoanalytic concepts and tools would meaningfully improve their education and training.
Concluding remarks about Barta’s Freudian theses on psychoanalysis and law: a Kleinian re-evaluation.
I am not so sure that Barta’s examples of «repression», «undoing» (and so on) in the field of law really correspond to the unconscious Ego defence mechanisms so named by Sigmund and Anna Freud. Certainly, they remind us of what the German jurist Rudolf Wietholter (1968) describes as the «magical» efficacy of legal spells and procedures in making real what is uttered. And certainly one should add that modern law is not alone in this attempt to expel death and mortality from the horizon of Western societies. Several authors such as Philippe Ariès, Jean Baudrillard, Werner Fuchs have demonstrated that other important sectors of our culture (like economy, medicine, or even city-planning) are equally engaged in making death invisible; so, there is a kind of collusion among them all, whereof law is just one participant. However, I would not go so far as to say that this is only ideology or «false consciousness». Needless to say, in any text, be it the patient’s talk or a bill of law, the manifest content is neither less real nor less true than the latent one we can infer from it. Besides, Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 38
resorting to defence mechanisms does not always mean pathology. Therefore: I think Barta (2004) is right in most of his analyses, but I also think that, in the end, his Freudian analysis of law drives us to the same conclusions as reached by two Kleinian analysts, Jacques and Menzies Lith, both much experienced in the application of psychoanalysis to social work and institutional- group dynamics. Elliot Jacques never dealt with legal systems as such, nor was he as expert as Barta in the field of law. Nevertheless, his work in the field of labour, enterprise managing, bureaucracy, has proved important in theory, and effective in practice. His main working hypothesis is the following: «the primary cohesive elements binding individuals into institutionalised human association is that of defence against psychotic anxiety» (Jacques 1955, pp. 478-479). On the shoulders of Jacques (1955) and Bion (19612), Isabel Menzies Lith (1988) confirms: social systems, the way they are organized, the norms they give themselves, function as defence against anxiety. Inspired as they are by Klein and Bion, Jacques and Menzies Lith stress the ubiquitous presence of “psychotic” anxieties (which simply means “persecutory” and “depressive” anxieties all of us experience sometimes), peculiarly stimulated by group situations. Now, death and mortality are obvious sources of both persecutory anxieties (the unconscious fantasies of the dead coming back) and depressive anxieties (why am I bound to lose my dear ones and, sooner or later, my own life?). So, it is no surprise, and there is nothing bad in it, that we set up socially institutionalised defences against those feelings. The question then becomes: are those defences effective? I mean: do they work in diminishing our discontent, or do they bring about more problems and more suffering? Pathological is not that we may to some extent experience psychotic anxieties; rather that we set up psychotic defences against them! So, coming back to Barta: what about the role of law? Some of the legal principles, norms and institutions he analyses rely on, say, normal-neurotic defences whereby the law accomplishes its social function to provide safety. Others instead appear on the service of Thanatos, i.e. the legal translation of psychotic defences. Among Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 39
the latter, I would put two in particular. First, the jurists’ collective «disavowal of reality» as to the legal order’s internal transformations (which does not regard any longer nowadays the coming of age of frankly fascist régimes, rather the coming of “post- democracy”). Second, the idea of artificial bodies as legal personae. Which, pretty obviously, is not wrong in itself, but becomes very dangerous if legal persons are designed so as to escape the limitations of mortal persons. In fact, the conceptual transfer of this idea of persona implies an emotional transference as well. And the collective conferring of more than human abilities to legal persons goes along with a massive use of projective identification. Just think of the emotional identification of top managers with legal persons (their companies) legally designed so as to imitate the inflated, megalomaniac Ego of narcissistic personalities, denying all kind of limits and all kind of moral responsibilities. Hence a vicious circle, enhanced by finance deregulation (since the Eighties up to financial crisis beginning in 2007-08). As to the remedies Barta proposes, the idea of integrating some psychoanalysis in the legal professionals’ training (in the hope of putting the law in the service of Eros rather than Thanatos) may be interesting, but I am afraid it is unachievable on the one hand, and too little on the other. Upstream of legal professionals, there are the law makers. Shall we oblige all MPs (and not only them) to undergo a personal analysis before they become such? Not to speak of the nonsensical perspective of any compulsory analysis! To my eyes (and I like to think that Barta would agree), the help we may expect from psychoanalysis as far as institutions are concerned simply consists in the ideas it contributes as a part of general culture. There is no “psychoanalytic solution” of the problems mankind is to face. Psychoanalysis has taught us to mistrust all promises of universal liberation: including – I want to stress it (Caruso 1981) – the promises coming from psychoanalysis itself. Sergio Caruso, Odd Couple: Law and Psychoanalysis (the Austrian beginnings of a continuing debate) 40
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Summary
1.Law and psychoanalysis in practice. 2.Law and psychoanalysis in theory. 3.What a wide-range inquiry into the theme ought to be (and what you can expect from this article). 4.Freud, the jurist. The Unconscious as structured by an archaic Law. 5.The Freud-Kelsen dialogue. 6.Kelsen, the psychoanalyst. His analysis of Plato’s political dream. Freud as a tool for social science. 7.Some remarks on Kelsen’s use of psychoanalysis. Legal hypostases as benign hallucinations. 8.From Grundnormen to Urnormen. The founding role of taboos. 9.Robert Wälder: a Freudian pupil of Kelsen’s, or a Kelsenian pupil of Freud’s? 10.Just metaphors? What is left of Wälder’s approach today: towards a psychoanalytic sociology of law. 11.From psychoanalytic legal sociology to psychoanalytic legal philosophy: Franz Rudolf Bienenfeld. 12.Austria in America: Albert A. Ehrenzweig 13.Law and psychoanalysis in Austria today: Heinz Barta, towards a psycho-history of law. 14.The eternal fight between Eros and Thanatos. The role of law. 15.Concluding remarks about Barta’s Freudian theses on psychoanalysis and law: a Kleinian re-evaluation. 16.References