The hysterical attorney: The legal advocate within lacanian discourse theory

International Journal for the Semiotics of Law

Volumn 13, Issue 2, 2000, Pages 181-213

  Schroeder, Jeanne L ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 0008812719     PISSN: 09528059     EISSN: 15728722     Source Type: Journal    
DOI: 10.1023/A:1008936328366     Document Type: Review

References (194)

1. Schroeder, J.L., "The Four Discourses of Law: A Lacanian Analysis of Legal Practice and Scholarship", Tex L. Rev. (forthcoming 2000), 79
2. [hereinafter, Schroeder, "The Four Discourses"].
3. I explain my analysis of the relationship between Lacan and Hegel in Schroeder, J.L., The Vestal and the Fasces: Hegel, Lacan, Property and the Feminine (Berekely, California, University of California Press, 1998)
4. [hereinafter, Schroeder, The Vestal and the Fasces];
5. and Schroeder, J.L., The Triumph of Venus: The Erotics of the Market (unpublished manuscript 2000).
6. Hegel, G.W.F., Hegel's Phenomenology of Spirit trans. Miller, A.V. (Oxford; Oxford University Press, 1977) at & 167
7. [hereinafter, Hegel, The Phenomenology].
8. Hegel, G.W.F., Elements of the Philosophy of Right ed. Wood, A.W. ed. trans. Nisbet, H.B. (Cambridge, United Kingdom; Cambridge University Press, 1991)
9. [hereinafter, Hegel, The Philosophy of Right].
10. I explicate Hegel's dialectic of recognition in Schroeder, The Vestal and the Fasces, supra note 2, at 15-52;
11. Schroeder, J.L. "Pandora's Amphora: The Ambiguiity of Gift", UCLA L. Rev. 46 (1999), 815-904, at 860-884
12. [hereinafter, Schroeder, "Pandora's Amphora"]. Wilden makes a similar suggestion in his introduction to Lacan's theory of desire. He points out that "In 1946 Lacan paraphrased Hegel as follows: The very desire of man, [Hegel] tells us, is constituted under this sign of mediation; it is desire to make its desire recognized. It has for its object a desire, that of the other, in the sense that there is no object for man's desire which is constituted without some sort of mediation - which appears in his most primitive needs: for example, even his food has to be prepared - and which is found again throughout the development of satisfaction from the moment of the master-slave conflict throughout the dialectic of labor.
13. Wilden, A., "Translator's Notes", in Lacan, J., Speech and Language in Psychoanalysis trans. Wilden, A. (Baltimore; The Johns Hopkins University Press 1981), 91-156, at 114 n. 68.
14. Ellie Ragland, "The Discourse of the Master", in Lacan, Politics, Aesthetics eds. Apollon, W. & Feldstein, R. (Albany, New York; State University of New York Press 1996), 127-147 at 128.
15. Lacan left open the possibility that there could be other discourses, but he clearly thought that the four he identified had especial significance in modern society. See e.g. Fink, B., The Lacanian Subject: Between Language and Jouissance (Princeton, New Jersey; Princeton University Press 1995) 198 n. 5. As Fink notes, "One thing that is immediately striking is that, while Lacan forges a discourse of the hysteric there is no such discourse of the obsessive neurotic, phobic, pervert, or psychotic."
16. Fink, supra, at 130. Following Jamie Murray, I show, however, that the obsessive is at home in the discourse of the university. See infra text at notes 86-88.
17. For example, Renata Salecl analyzes law in terms of the master's discourse (Salecl, R. "Deference to the Great Other: The Discourse of Education", in eds. Bracher, M. et al. Lacanian Theory of Discourse: Subject, Structure and Society (New York City; New York University Press, 1994)
18. [hreeinafter, Lacanian Theory of Discourse], 163-165) and, in a recent dissertation, Jamie Murray analyzed the erotics of law within the two discourses of power.
19. Murray, J. "An Erotics of Law: Lacanian Psychoanalysis and Legal Theory" at 105 (1999) [Ph.D. thesis in possession of author]. (I served as the external examiner at Dr. Murray's defense of his dissertation.)
20. See infra text at notes 115-121.
21. As Žižek rhetorically asks "Does this not mean that subjectivity is in its most basic dimension, in an unheard-of-way feminine?'" Žižek, S. The Abyss of Freedom (Ann Arbor, Michigan; The University of Michigan Press 1997) at 8
22. [hereinafter, Žižek, Abyss of Freedom].
23. See also Schroeder, The Vestal and the Fasces, supra note 2, at 326-329.
24. Fink, supra note 6, at 131.
25. Id. at 130-131.
26. In the words of Mark Bracher: On the right, the side of the receiver, the top position as that of the other, which is occupied by the factor called into action by the dominant factor in the message. The activation of this factor is a prerequisite for receiving and understanding a given message or discourse. For example, if systematic knowledge is the dominant element of a discourse (occupying the top left position), receivers, in order really to receive (i.e., understand) this discourse, must (for a moment, at least) be receptive to a preconstituted knowledge, which means emptying themselves of any knowledge that might interfere with the knowledge in the discourse and becoming an amorphous, nonarticulated substance, a, to be articulated by the discourse. Bracher, M., "On the Psychological and Social Functions of Language: Lacan's Theory of the Four Discourses", in Lacanian Theory of Discourse, supra note 7, 107-128, at 109.
27. He states further "the right-hand positions are occupied by the factors that the subject receiving the message is summoned to assume." Bracher, M., "On the Lacanian Theory of Discourse, Id.
28. Note, that the top right-hand position is called the "other" spelled with a small "o" to distinguish the fact that this is a particular other person or institution rather than the "Other" (spelled with a big "O", which I will call the Big Other). I discuss this distinction infra text at notes 48-49, 71-80.
29. Fink, supra note 6, at 131.
30. The top position on each side represents the overt or manifest factor, the bottom position the covert, latent, implicit, or repressed factor - the factor that acts or occurs beneath the surface. More specifically, the top left position is the place of agency or dominance; it is occupied by the factor in a discourse that is most active and obvious, The bottom left position is the place of (hidden truth, the factor that underlies, supports, and gives rise to the dominant factor, or constitutes the condition of its possibility, but is repressed by it. Bracher, supra note 12, at 109.
31. "What is produced as a result of [those who are placed in the position of the other] allowing themselves to be thus interpellated by the dominant factor of a discourse is represented by the position of production, the bottom right." Bracher, supra note 12, at 109.
32. Fink, supra note 6, at 173.
33. "Whatever matheme Lacan places in one of these four positions, it takes on the role ascribed to that position." Id. at 131.
34. Id. at 131.
35. According to Fink, Lacan did this: both for historical reasons and because it embodies the alienating functioning of the signifier to which we are all subject. As such, it holds a privileged place in the four discourses; it constitutes a sort of primary discourse (both pyhlogenetically and ontogenetically). Id. at 130.
36. As I discuss below, Lacan privileged the discourse of the analyst which he considered the one truly radical or potentially world changing discourse. Consequently, he discussed the analyst's discourse last, even though it appears third in his schema. I disagree with this in the context of law and restore the discourses to their logical order ending with the hysteric's. See infra text at notes 58-63.
37. Slavoj Žižek is probably the foremost proponent of the retroactive reading of Hegel and Lacan. I discuss the retroactive method of speculative thought in Schroeder, The Vestal and the Fasces, supra note 2, at 13-14, 31-32, 52-54, 311-132.
38. See Rose, J. "Introduction II", in Lacan, J. and the école freudienne, eds. Mitchell, J. & Rose, J., trans. Rose, J., Feminine Sexuality (New York City; W.W. Norton & Company, 1985)
39. [hereinafter, Feminine Sexuality], 21-51, at 31;
40. Lacan, J., ed. Miller, J.-A., trans. Forrester, J., The Seminar of Jacques Lacan. Book I: Freud's Papers on Technique (New York City; W.W. Norton & Co. 1988) at 80;
41. See also Grosz, E., Jacques Lacan: A Feminist Introduction (Routledge; London, 1990) at 10. As is the case with virtually all of Lacan's concepts, not only are three orders extremely complex, Lacan's thinking about them developed over time. For example, in the early seminars of the 1950s, Lacan concentrated more on the contrast between the symbolic and the imaginary, whereas his later seminars put more emphasis on the real. Indeed, it seems that over time, Lacan shifted some of the functions he originally assigned to the imaginary over to the real.
42. Lacan, J., trans. Sheridan, A., Écrits: A Selection (New York City; W.W. Norton & Co., 1977)
43. [hereinafter, Lacan, Écrits] at 149.
44. For example, in an otherwise insightful book, Terence W. Deacon criticizes the linguistic theory of Ferdinand de Saussure (which forms the basis of Lacan's theory) as a simplistic mapping of signifier to signified. Deacon, T.W., The Symbolic Species: The Co-evolution of Language and the Brain (New York City; W.W. Norton & Co., 1997) at 69-70. Whether or not Deacon's characterization of Saussure's original thesis is accurate, it is completely wrong with respect to Lacan's.
45. Lacan, J., ed. Miller, J.-A., trans. Grigg, R., The Seminar of Jacques Lacan. Book III: The Psychoses 1955-1956 (New York City; W.W. Norton & Co., 1993) at 54.
46. Lacan compared this chain of signifiers as 'rings of a necklace that is a ring in another necklace made of rings'. Richardson, R.J., "Lacan and the Subject of Psychoanalysis", in eds. Smith, J. & Kerrigan, W., Interpreting Lacan, 6 Psychiatry and the Humanities (New Haven; Yale University Press, 1983), 51-74, at 54
47. (quoting Lacan, Écrits, supra note 23).
48. As Richardson explains. The meaning of this chain does not 'consist' in any one of these elements but rather 'insists' in the whole, where the 'whole' may be taken to be the entire interlude as described, whose meaning, or rather whose 'effect' of meaning, is discerned retroactively ... Id. at 55.
49. Saussure also meant for the bar to indicate the arbitrary nature of the relation between the [signifier and signified]. But Lacan stresses the importance of this 'bar,' conceiving it as indeed a 'barrier' to any one-to-one relationship between signifier and signified, insisting that any given signifier refers not to any corresponding signified but rather to another signifier ... Id. at 54.
50. Lacan, Écrits, supra note 23, at 154.
51. In Žižek's words, "The only possible way out of this impasse [that is, the dispersal of signification] is that we simply reverse the series of equivalences and ascribe to one signifier the function of representing the subject (the palace of inscription) for all of the others (which thereby become "all" - that is, are totalized): in this way, the proper Master-Signifier is produced." Žižek, S., For They Know Not What They Do: Enjoyment as a Political Factor 23 (London; Verso, 1991) at 23
52. [hereinafter, Žižek, For They Know Not What They Do] (emphasis in the original).
53. As explained by Žižek: Because of this inherent tension, every language contains a paradoxical element which, within its field, stands in for what eludes it - in lacunaes, in every set of signifiers, there is always "at least one" which functions as the signifier of the very lack of the signifier. This signifier is the Master Signifier: the "empty signifier" that totalizes ("quilts" - the dispersed field - in it, the infinite chain of causes ("knowledge") is interrupted with an abyssal, nonfounded, founding act of violence. Žižek, S., Enjoy Your Symptom!: Jacques Lacan in Hollywood and Out 102-103 (New York City; Routledge, 1992) at 102-103
54. [hereinafter, Žižek, Enjoy Your Symptom].
55. Fink, supra note 6, at 75.
56. 2) - that is, knowledge, belief, language - purchase on a subject... Bracher, supra note 12, at 111.
57. As Bracher says although knowledge has two aspects - that of the articulated systematic apparatus and that of the more intuitive savoir-faire ...- all knowledge is based on a signifying articulation, even if can at first be approached as savoir-faire ... in the first place, knowledge is necessary in establishing identify for the subject. When knowledge of any type articulates itself within a subject, the subject itself is caught up in the signifying apparatus in a position that is in certain ways unique, not common to all subjects.... these invisible links, that is, make up the network of the subject's pleasure and pain, likes and dislikes, allies and enemies, etc., and thus constitute the subject's sense of self. Knowledge thus also determines the nature of the enjoyment - jouissance - that the subject is able to obtain. Id. at 110.
58. Indeed, as Bracher notes, "the unconscious is nothing other than "knowledge that speaks all by itself ... independently of, and at times in conflict with, the ego" Id. at 110.
59. Id. at 111
60. (quoting Lacan, Seminar XVII).
61. Fink, supra note 6, at 22.
62. I explain this phenomena at length elsewhere (see e.g. Schroeder, J.L., "The Midas Touch: The Lethal Effect of Wealth Maximization", Wis. L. Rev. 1999 (1999), 687-784 at 1-35
63. [hereinafter, Schroeder, "The Midas Touch"];
64. Schroeder, J.L., "The End of the Market: A Psychoanalysis of Law and Economics", Harv. L. Rev. 122 (1998), 483-558 at 505-506
65. [hereinafter, Schroeder, "The End of the Market"];
66. and Schroeder, The Vestal and the Fasces, supra note 2, at 87-94.) The following is an abbreviated version of these more complete discussions.
67. Schroeder, The Vestal and the Fasces, supra note 2, at 52-54.
68. Fink's book is an excellent introduction to Lacan's concept of the subject. Fink, supra note 6.
69. I set out this analysis in full in Schroeder, "The Vestal and the Fasces", supra note 2, at 19-24, 27-34.
70. This self-evident proposition is associated in American jurisprudence with Hohfeld. See generally, Hohfeld, W.N., ed. Cook, W.W., Fundamental Legal Conceptions As Applied in Legal Reasoning and Other Legal Essays (New Haven, Connecticut; Yale University Press, 1919).
71. I discuss the Big Other in more detail infra in the text at notes 48-49, 71-80.
72. Schroeder, "The End of the Market", supra note 37, at 501-502 n. 58.
73. See also Fink, supra note 6, at 45.
74. See e.g. This "nothing," of course is the subject itself, the subject qua $ (the Lacanian matheme, designating the subject with all content removed), the empty set, the void that emerges as the result of the contraction in the form of expansion: when a contract myself outside myself, I deprive myself of my substantial content. Žižek, The Abyss of Freedom, supra note 9, at 39.
75. Schroeder, "The End of the Market", supra note 37, at 501-506;
76. Schroeder, The Vestal and the Fasces, supra note 2, at 87-94.
77. In Žižek's words "what, precisely, is symbolic castration? It is ... the sense of the precise loss of something which the subject never possessed in the first place." Žižek, S., The Plague of Fantasies (London; Verso, 1997) at 15
78. [hereinafter, Žižek, Plague of Fantasies].
79. One way the masculine subject tries to deny castration is to try to redefine it in terms of exchange. That is, he tries to tell himself that the reason why he does not have the phallus (the technical term for that which is lost in castration) is not because the Big Other took it away, but because the subject gave it to the Big Other in exchange for something else. Schroeder, The Vestal and the Fasces, supra note 2, at 85. But, as Žižek explains, this strategy is always necessarily a failure. That is to say, insofar as "castration" is defined as an act of exchange, one would expect the subject to obtain something in exchange for the renunciation (cultural progress, symbolic recognition, material goods, or the like); yet all that the second part of this strange act of exchange brings about is an additional loss - in thanks for handing over "everything," for sacrificing the very kernel of his being, the objet of himself, i.e., that in which is "in himself more than himself," the subject himself is made into an object, becomes an object of exchange.
80. Žižek, Enjoy Your Symptom, supra note 30, at 170. As I explain elsewhere "The son exchanges something he does not have (access to the Phallic Mother, identity with the Feminine) for something that does not exist (the Phallus, access to the Feminine) in order to achieve something with no content (subjectivity)."
81. Schroeder, The Vestal and the Fasces, at 85.
82. See also Žižek, For They Know Not What They Do, supra note 29, at 230-231.
83. Schroeder, "The Midas Touch", supra note 37, at 733;
84. Schroeder, The Vestal and the Fasces, supra note 2, at 4, 233-234.
85. Fink, supra note 6, at 83.
86. With object a, Lacan felt he had made his most significant contribution to psychoanalysis. Few concepts in Lacanian opus are elaborated so extensively, revised so significantly ..., [and] worked over from so many different perspectives ..." Id. at 83 (citations omitted).
87. As Fink says, the objet petit a warrants a "book-length study". Id. at 83.
88. Lacan insisted on the "universality of the process of castration as the unique path of access to desire and sexual normativisation...." The école freudienne, "The Phallic Phase and the Subjective Import of the Castration Complex", in Feminine Sexuality, supra note 22, 99-122, at 118.
89. I have called castration the "universal initiation rite of subjectivity." Schroeder, The Vestal and the Fasces, supra note 2, at 80.
90. Hegel, The Phenomenology, supra note 3, at ¶ 167.
91. In the words of Žižek: How are we to understand this strange reversal? In principle, things are clear enough: by way of positing itself as its own cause, the subject fully assumes the fact that the object-cause of its desire is not a cause that precedes its effects but is retroactively posited by the network of its effects: an event is never simply in itself traumatic, it only becomes a trauma retroactively, by being 'secreted' from the subject's symbolic space as its inassimilable point of reference. In this precise sense, the subject "causes itself" by way of retroactively positing that a which acts as the object-cause of its desire. This loop is constitutive of the subject: that is, an entity that does not 'cause itself is precisely not a subject but an object. Žižek, Abyss of Freedom, supra note 9, at 79.
92. Schroeder, The Vestal and the Fasces, supra note 2, at 8.
93. As explained by Žižek: In this precise sense, a is the object-cause of desire: it does not effectively pre-exist desire as that which arouse it, it merely gives body to its inherent deadlock, to the fact that desire is never satisfied by any positive object; that is to say, apropos of every positive object, the subject's experience will always be a 'this is not that'. Žižek, S., The Indivisible Remainder: An Essay on Schelling and Related Matters 144 (London; Verso, 1996) at 144
94. [hereinafter, Žižek, Indivisible Remainder].
95. "It is Lacan who - in a Hegelian way - enables us to resolve the "fallout," of the very process of symbolization.... What is stolen, betrayed ... is always objet petit a, the little piece of the Real." Žižek, Abyss of Freedom, supra note 9, at 27.
96. As Žižek notes: For Lacan, human desire (in contrast to animal instinct) is always, constitutively, mediated by reference to Nothingness: the true object-cause of desire (as opposed to the objects that satisfy our needs) is, by definition, a 'metonymy of lack', a stand-in for Nothingness. Which is why, for Lacan, objet petit a as the object-cause of desire is the originally lost object: it not only that we desire it in so far as it is lost - this object is nothing but a loss positivized. Žižek, S., The Ticklish Subject: The Absent Centre of Political Ontology 107 (London; Verso, 1999) at 107
97. [hereinafter, Žižek, Ticklish Subject].
98. Žižek, Plague of Fantasies, supra note 44, at 81.
99. 2 articulation. As such, the object a holds the key to understanding both the nature of jouissance and what the incidence of the signifier in the destiny of the speaking subject is all about ... The a thus figures the lack of being that cause all desire, and it underlies affect at well. Bracher, supra note 12, at 114.
100. Fink, supra note 6, at 136-137.
101. Id. at 129.
102. Id. at 129.
103. Id. at 129.
104. Id. at 129.
105. Schroeder, "The Four Discourses", supra note 1.
106. In Bracher's words: In his schemata of the four discourses, Lacan demonstrates how differently structured discourses mobilize, order, repress, and produce four key psychological factors - knowledge/belief, values/ideals, self-division/alienation, and jouissance/enjoyment - in ways that produce the four fundamental social effects of educating/indoctrinating, governing/brain-washing, desiring/protesting, and analyzing/revolutionizing. Bracher, supra note 12, at 109.
107. Žižek, J., "Four Discourses, Four Subjects", in ed. Žižek, Sic 2: Cogito and the Unconscious (Durham, North Carolina; Duke University Press, 1998) 74-113 at 81
108. [hereinafter, Žižek, Four Discourses].
109. The word derives from the Greek hyster (womb) because medieval doctors speculated that hysteria was caused by a malfunctioning uterus (which had a nasty habit of becoming literally unmoored and wondering throughout the woman's body to ill effect). See Schroeder, J.L., "Feminism Historicized: Medieval Misogynist Stereotypes in Contemporary Feminist Jurisprudence", Iowa L. Rev. 75 (1990), 1135-1217, 1185 n. 182.
110. See infra discussion at notes 83-103.
111. Žižek, Indivisible Remainder, supra note 53, at 167.
112. Id. at 164.
113. To put it in a nutshell, nowhere does it appear more clearly that man's desire finds its meaning in the desire of the other, not so much because the other holds the key to the object desired, as because the first object of desire is to be recognized by the other. Wilden, supra note 4, at 91.
114. As Žižek explains: In other words, when Lacan claims that there is no desire without an object-cause, this does not amount to the banality according to which every desire is attached to its objective correlative: the 'lost object' which sets the subject's desire in motion is ultimately the subject herself, and the lack in question concerns uncertainty as to her status for the Other's desire. In this precise sense, desire is always the desire of the Other: the subject's desire is the desire to ascertain her status as object of the other's desire. Žižek, Indivisible Remainder, supra note 53, at 164.
115. I present this argument in full in Schroeder, The Vestal and the Fasces, supra note 2, at 1-106.
116. Schroeder, The Vestal and the Fasces, supra note 2, at 33-34;
117. Schroeder, "Pandora's Amphora," supra note 4, at 874-882.
118. Hegel, The Philosophy of Right, supra note 4, at 67-132;
119. Schroeder, "Pandora's Amphora", supra note 4, at 860-864.
120. Quoted in Žižek, For They Know Not What They Do, supra note 29, at 107.
121. Schroeder, "The End of the Market", supra note 37, at 492-493;
122. Schroeder, "Pandora's Amphora", supra note 4, at 823-824, 827-828, 864-865.
123. See supra text at note 41.
124. Miller, J.-A., "Extimité", ed. Doisneau, D., trans. Massardier-Kenney, F. in Lacanian Theory of Discourse, supra note 7, 74-87, at 81.
125. This prefigured his even more infamous pronouncement that Woman does not exist. Lacan, J., ed. Miller, J.-A., trans. Fink, B., The Seminar of Jacques Lacan - Book XX: Encore, On Feminine Sexuality, The Limits of Love and Knowledge 72-74 (New York City; W.W. Norton & Co., 1998) at 72-74
126. [hereinafter Lacan, Seminar XX].
127. The concept of "forced choice" in Hegelian and Lacanian theory is an important focus of Žižek's writings. See e.g. Žižek, The Ticklish Subject, supra note 55, at 18-19, 90-98, 298-299;
128. Žižek, For They Know Not What They Do, supra note 29, at 146-149.
129. As Bracher says: [T]he hysterical structure of discourse also characterizes other instances of resistance, protest, and complaint.... The hysterical structure is in force whenever a discourse is dominated by the speaker's symptom - that is, his or her unique mode of experiencing jouissance, a uniqueness that is manifested ... as a failure of the subject, $, to coincide with or be satisfied by the master signifiers offered by society and embraced as the subject's ideals. Bracher, supra note 12, at 122.
130. As Žižek says, "psychosis [is] the maintenance of an external distance from the symbolic order". Žižek, For They Know Not What They Do, supra note 29, at 101. Elsewhere he says "this level of 'forced choice' [i.e. the submission to the symbolic order] is precisely what the psychotic position lacks the psychotic subject acts as if he has a truly free choice 'all the way along'." Žižek, The Ticklish Subject, supra note 55, at 19. See also, Žižek, S., Looking Awry: An Introduction to Jacques Lacan Through Popular Culture (Cambridge, Massachusetts; The MIT Press, 1998) at 20;
131. Schroeder, The Vestal and the Fasces, supra note 2, at 88-89.
132. "Despite its expression of alienation and division, then, the discourse of the Hysteric remains in thrall to master signifiers ... and a system of knowledge/belief ... that it has not itself embodied and produced." Bracher, supra note 12, at 123.
133. Id. at 123.
134. See supra text at notes 44-46.
135. Schroeder, "The End of the Market", supra note 37, at 507;
136. Schroeder, J.L., "The Eumenides: The Creation of Law in the Repression of the Feminine" (unpublished manuscript 2000)
137. [hereinafter, Schroeder, "The Eumenides"].
138. Schroeder, "The End of the Market", supra note 37, at 507-509;
139. Schroeder, "The Eumenides", supra note 84.
140. 2 as the chain of signifiers) is complete and not in a constant state of slippage. Murray, supra note 7, at 144-146. Of course, this is not accurate. When the obsessive masculine subject confronts holes and slippages in the symbolic, he does not adopt the feminine response of recognizing what he sees. Rather he obsessively tries to cover over the holes and explain away the slippages.
141. Id. at 122.
142. In Murray's words The feverish activity [of the legal obsessive] is that of the identification of legitimate sources, the remembering, the endlessly detailed interpretations, the particularities of grammar and syntax, citation upon citation. The task is to ensure that there are no gaps in the law, that there is always already an answer, and that the word will always name the thing in accordance with practice and lay it to rest. Id. at 144-145. The obsessive develops increasingly more elaborate theoretical systems and explanations to explain away "apparent" anomalies.
143. Lacan expresses this idea of that the symbolic order is necessarily incomplete and lacking by the matheme "A" (for Autre, the Big Other), which is pronounced "the barred A." Fink defines the barred A matheme as "The Other a slacking, as structurally incomplete, or as experienced as incomplete by the subject who comes to be in that lack." Fink, supra note 6, at 173.
144. The tendency of the feminine position towards depression is the subject of Žižek's essay, "David Lynch, or, the Feminine Depression", in Žižek, S., The Metastasis of Enjoyment: Six Essays on Woman and Casuality (London; Verso, 1994) at 113-136.
145. Satterfield, J.M., Monahan, J., & Seligman, M.E.P., "Law School Performance Predicted by Explanatory Style", Behavioral Sciences and the Law 15 (1997), 1-11.
146. Schroeder, "The Eumenides", supra note 84.
147. X which is translated for the set of X, all X are submitted to the function φ (i.e. the phallic function, the symbolic order). Lacan, Seminar XX, supra note 77, at 78-81.
148. See supra text at notes 86-88.
149. Fink, supra note 6, at 116.
150. X. "For the class of X, not all X's are submitted to the phallic function." Lacan, Seminar XX, supra note 77, at 78-81.
151. Previous translations have rendered Lacan's definition of woman as pas-tout as "not-all." See, e.g. the translation of portions of Lacan's Seminar XX in Feminine Sexuality, supra note 22, at 144-145.
152. More recently, Bruce Fink has translated this as "not whole." This better reflects the idea that the feminine is the possibility of escape from the symbolic order. [W]hen I write [the matheme of the feminine], a never-before-seen function in which the negation is placed on the quantifier, which should be read "not whole," it means that when any speaking being whatsoever situates itself under the banner "women," it is on the basis of the following - that is grounds itself as being not-whole in situating itself in the phallic function. Lacan, Seminar XX, supra note 77, at 72.
153. The fact remains that if she is excluded by the nature of things, it is precisely in the following respect: being not-whole, she has a supplementary jouissance compared to what the phallic function designates by way of jouissance. Id. at 73.
154. Schroeder, The Eumenides, supra note 84.
155. This is one of the meanings of Lacan's frequently misintrepeted statement that a woman is the symptom of man. Lacan, J., "Seminar of 21 January 1975" in Feminine Sexuality, supra note 22, 162-171, at 168.
156. In Žižek's words: "Woman is a symptom of man" means that Man Himself exists only through woman qua his symptom: all his ontological consistency hangs on, is suspended from, is "externalized" in his symptom. Žižek, S., Tarrying With the Negative: Kant, Hegel, and the Critique of Ideology (Durham, North Carolina; Duke University Press, 1994) at 188.
157. As I have said elsewhere In other words, the sexes are mutually constituted. The masculine is created by feminine freedom, and the feminine by masculine abjection, Only the feminine can give birth to the masculine, but the feminine can not function without the masculine generative act. In the depressing Lacanian formulation, however, even though the two sexes require each other, they can never fit together. The masculine is passive and impotent. He can neither procreate nor satisfy the feminine just because he is castrated. The feminine is active and fertile. But she only brings forth because she has been violated and can never forgive the masculine. Schroeder, "The Eumenides", supra note 84.
158. Hysteria means failed interpellation, it means that the subject in the name of that which is "in him more than himself" - the object in himself - refuses the mandate which is conferred on him in the symbolic universe; as such, it falls conditional with the dominant form of symbolic identification. Žižek, For They Now Not What They Do, supra note 29, at 101.
159. Žižek, "Four Discourses", supra note 65, at 79.
160. See supra text at notes 54-57.
161. "[I]nsofar as the subject exists only as an answer to the enigma of the Other's desire, the hysterical subject is the subject par excellence." Žižek, "Four Discourses", supra note 65, at 81.
162. Ragland-Sullivan, E., "The Sexual Masquerade: A Lacanian Theory of Sexual Difference", in eds. Ragland-Sullivan, E. and Bracher, M., Lacan and the Subject of Language (New York City; Routledge, 1991), 49-80, at 62.
163. Žižek, S., The Sublime Object of Ideology (London; Verso, 1989) at 75.
164. See supra text at note 9.
165. Žižek, Abyss of Freedom, supra note 9, at 79.
166. Lacan posited that the subject addresses the Big Other with the question "Che voui?" as least as early as his 1960 paper "Subversion of the Subject and the Dialectic of Desire in the Freudian Unconscious". Lacan, Écrits, supra note 23, at 312.
167. [D]esire addresses itself to the symbolic big Other, it seeks active recognition from it ..." Id. at 81.
168. Fink, supra note 6, at 133.
169. "In the hysterical link, the S over a stands for the subject who is divided, traumatized, by what an object she is for the Other, what role she plays in the Other's desire." Žižek, "Four Discourses", supra note 65, at 79.
170. In Bracher's formulation: It is this quest to which the receiver of the hysterical subject's message is summoned to respond by providing a master signifier, S1, in the form of a secure meaning that will overcome anxiety, meaningless, and shame and give a sense of stable, meaningful, respectable identity.... Bracher, supra note 12, at 123.
171. Schroeder, "Pandora's Amphora", supra note 4, at 824, 827-828, 863-867, 870-873.
172. As I have explained elsewhere, not only is the failed master-slave dialectic of recognition presented in the Phenomonology resolved in the dialectic of abstract right presented in the Philosophy of Right, the master-slave dialectic reappears in the Philosophy of Right in the failed dialectic of gift. Gift, like mastery, is a failed attempt at recognition because it is unilateral. By giving a gift, the donor implicitly (and frequently) demands that the donee recognize the donor in the act of gratitude. Consequently, the donee often feels the necessity of returning an appropriate gift in order to obtain mutual recognition. As I explain, "primitive" (i.e. pre-market) societies tend to be characterized by complex gift economies which are perceived as aggressive (if not expressly warlike as in the case of potlatch) attempts to establish unequal relations of status similar to master-slave economies. Needless to say, however, the recognition in contract, although more complete than that of gift, is also necessarily a partial failure. To completely satisfy the subject's desire would, of course, destroy the subject. Schroeder, "Pandora's Amphora", supra note 4, at 856-859, 874-882.
173. Schroeder, "Pandora's Amphora", supra note 4, at 876-882.
174. See supra note 111.
175. Schroeder, "The Four Discourses", supra note 1.
176. Hart's two most influential works are Hart, H.L.A., The Concept of Law (Oxford; Clarendon Press, 1961)
177. [hereinafter, Hart, Concept of Law]
178. and his earlier, Hart, H.L.A., "Positivism and the Separation of Law and Morals", Harv. L. Rev. 71 (1958), 593-629
179. [hereinafter, Hart, Law and Morals].
180. Hart is careful to distinguish his theory of primary laws as obligation from a command theory of law which holds that the power of law comes from coercion. Hart, Concept of Law, supra note 115, at 79-80.
181. His criticism of the command theory of law comprises much of the second and third chapters of "The Concept of Law". See also Hart, "Law and Morals", supra note 115, at 601-606.
182. To Hart, the obligation of law is deeper than mere coercion, and flows from the nature of law itself. As he eloquently states The fundamental objection [to the command theory of law] is that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason for justification for such reaction and for applying the sanctions.... There is, however, a second, simpler, objection to the predictive interpretation of obligation. If it were true that the statement that a person had an obligation meant that he was likely to suffer in the event of disobedience, it would be a contradiction to say that he had an obligation. Hart, Concept of Law, supra note 115, at 84. That is, one does not obey law because to disobey it would result in sanction. One obeys law because it is law.
183. Salecl, supra note 7, at 163.
184. The only difference which the acceptance of this view of the nature of moral judgments would make would be that the moral iniquity of such laws would be something that could be demonstrated; it would surely follow merely from a statement of what the rule required to be done that the rule was morally wrong and so ought not to be law or conversely that it was morally desirable and ought to be law. But the demonstration of this would not show the rule not to be (or to be) law. Hart, "Law and Morals", supra note 115, at 626.
185. This is known as the separability thesis which claims "that there was no necessary relationship between substantively evil regimes and the presence or absence of the rule of law." Sebok, A.J., "Finding Wittgenstein at the Core of the Rule of Recognition", SMU Law Review 52 (1999), 75-110, 82.
186. That is, a law might be substantively bad because "they violated substantive moral principles (Id. at 84) yet it might still be law.
187. Hart states: If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed. This is a moral condemnation which everyone can understand and it makes an immediate and obvious claim to moral attention. If, on the other hand, we formulate our objection as an assertion that these evil things are not law, here is an assertion which many people do not believe, and if they are disposed to consider it at all, it would seem to raise a whole host of philosophical issues before it can be accepted. Hart, "Law and Morals", supra note 115, at 620.
188. Elsewhere, I have defended Hart's separation of law and morality from the position of Kantian moral theory. According to Kant, the identification of the universal moral law with any specific regime of positive law is radically evil, in either the form of impurity (overly technical legalism) or wickedness (prosecutorial fanaticism). Schroeder, J.L. and Carlson, D.G., "Kenneth Starr: Diabolically Evil?", Cal. L. Rev. 86 (2000), 653-683.
189. Hart saw the law as a union of primary and secondary rules. The secondary rules are those that establish the primary rules as law. Hart called these secondary because they are in a sense parasitic upon ... [primary rules] for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations.... [Secondary rules] confer powers, public or private.... [and] provide for operations which lead not merely to physical movement or change, but to the creation or variation of duties. Hart, Concept of Law, supra note 115, at 81.
190. The first type of Haitian secondary rule is rules of recognition. These "specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts." Id. at 94.
191. In addition to rules of recognition, Hart identified two other types of secondary rules: rules that determine how primary rules can be changed (Id. at 95-96),
192. and rules of adjudicating applications of primary rules (Id. at 96-97).
193. Note that the secondary rules of change merely determine the formal process through which a primary rule is changed so that we can now whether or not a new rule is in effect. For example, a rule is changed if the properly elected legislature meets and votes following to an appropriate procedure. Rules of change do not, however, relate to the substantive content of when rules should or should not be changed. That is, they do not and cannot give guidance as to what criteria the legislature should use in deciding whether or not to adopt or change a rule. The substantive content of rules can only come from morality or justice or other considerations that have already been expelled from the law.
194. Although not as immediately obvious, the hysteric's discourse also characterizes legal defense. Having been sued by the plaintiff, the defendant and her attorney also find themselves in the position of the split subject. The defendant feels wronged by what she believes are the false claims of the plaintiff. Vis a vis the defendant, it is the plaintiff (or prosecutor) who is placed in the role of the Big Other insofar as she claims that the law is on her side. It is the inequitable action of the plaintiff (or prosecutor) who explains this harm. The defendant throws back the hysterical accusation at the plaintiff.