Odd Couple Law and Psychoanalysis (The Austrian Beginnings of a Continuing Debate)

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.

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