Law and social inquiry: commentary on a psychoanalytic semiotics of law

International Journal for the Semiotics of Law

Volumn 13, Issue 2, 2000, Pages 127-132

  Arrigo, Bruce A ^a  

^a CSPP Fresno   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0008814304     PISSN: 09528059     EISSN: 15728722     Source Type: Journal    
DOI: 10.1023/A:1008979810620     Document Type: Review

References (41)

1. We note an important division between the deterministic and mechanistic Freudian and neo-Freudian (i.e., revisionist) or modernist era, and those whose work falls more concretely within the indeterminacy and undecidability of the Lacanian-inspired or post-modern epoch. The former can, perhaps, be traced to the work of Jerome Frank, culminating with the treatise by Schonfeld. The latter, seemingly interlaced with the critical legal studies movement, continues to evolve and remains, mostly, an unfinished product. Both orientations represent the contemporary landscape regarding law and psychoanalysis. For an accessible overview of these movements see, D. Caudill, "In the Wake or At the Wake of Psychoanalytic Jurisprudence," Legal Studies Forum 20/3 (1996), at 188-191.
2. For more on "modernist" approaches to law and psychoanalysis see, Jerome Frank, Law and the Modern Mind (New York: Doubleday, 1963);
3. C.G. Schoenfeld, Psychoanalysis and the Law (New York: Charles C. Thomas, 1973).
4. For representative examples of "postmodernist" approaches to law and psychoanalysis see, e.g., Dragan Milovanovic, Postmodern Law and (Dis)Order: Psychoanalytic Semiotics, Chaos, and Juridic Exegeses (Liverpool, UK: Deborah Charles, 1992);
5. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California Press, 1995);
6. Bruce A. Arrigo, The Contours of Psychiatric Justice: A Postmodern Critique of Mental Illness, Criminal Insanity; and the Law (New York/London: Garland, 1996);
7. David Caudill, Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory (Atlantic Highlands, NJ: Humanities Press, 1997);
8. and Jeanne Schröder, The Vestal and the Fasces: Hegel, Lacan, Property, and the Feminine (Berkeley: University of California Press, 1998).
9. Goodrich (1996) observes that Legendre's approach to psychoanalytic jurisprudence is to understand how the law operates as a divided subject; that is, constituted as an unconscious. Indeed, as Goodrich (1996) explains: Where Lacan referred to the unconscious as being structured like a language, Legendre adds that the unconscious acts like a lawyer (p. 195). In this regard, then, the voice of law functions to "capture" and interpret other subjects (e.g., criminal defendants, jurists, eyewitnesses, jurors). P. Goodrich, "The Unconscious is a Jurist: Psychoanalysis and the Law in the Work of Pierre Legendre," Legal Studies Forum 20/3 (1996), 195-228.
10. Our metaphor of "territoriality" is akin to Deleuze and Guattari's call for a micro-politics of desire, rhizomatics and nomadic thought, and the transformative schizo-subject. Psychoanalysis has firmly positioned itself within the "emotional soul and body" of the law (Goodrich, 1990: 268), exposing its heretofore repressed desire. See Gilles Deleuze and Felix Guattari, A Thousand Plateaus (Minneapolis: University of Minnesota Press, 1987);
11. Peter Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990).
12. Perhaps the most visible exponent of this approach to psychoanalysis is the periodical, Journal for the Psychoanalysis of Culture and Society. Articles regularly appearing in this semi-annual consider matters related to law. See, e.g., S. Žižek, "Re-visioning 'Lacanian' Social Criticism: The Law and Its Obscene Double," Journal for the Psychoanalysis of Culture and Society 1/1 (1996), 15-25;
13. J. Lacan, "A Theoretical Introduction to the Functions of Psychoanalysis in Criminology," Journal for the Psychoanalysis of Culture and Society 1/1 (1996), 13-26.
14. See, Peter Goodrich, Law and the Unconscious: A Legendre Reader (London: Macmillan, 1997).
15. My position on law and psychoanalysis is consistent with a constitutive approach to legal semiotics. In brief, language speaks the law (as a subject) and the social and organizational forces to which it is linked. Thus, neither (i.e., the law as an unconscious nor its structural dynamics) is entirely independent of or reliant upon the other for its articulated meaning. For more on a constitutive law see, Alan Hunt, A Constitutive Theory of Law (London: Routledge, 1993).
16. For an assessment of psychoanalytic semiotics and constitutive law see, Dragan Milovanovic, A Primer in the Sociology of Law 2nd (Albany, NY: Harrow and Heston, 1994), at 172-184.
17. For some application studies of the latter see, e.g., D. Milovanovic, "Borromean Knots and the Constitution of Sense in Juridico-Discursive Production," Legal Studies Forum 17/2 (1993), 171-192;
18. B. Arrigo, "Convict Criminology and the Mentally Ill Offender: Prisoners of Confinement," in J.I. Ross and S. Richards (eds.), Convict Criminology (Belmont, CA: Wadsworth, 2001), forthcoming.
19. For some recent full-length, articles adopting this approach in diverse sociolegal contexts see, e.g., H. Stacey, "Lacan's Split Subjects: Raced and Gendered Transformations," Legal Studies Forum 20/3 (1996), 277-293;
20. B.A. Arrigo, "Insanity Defense Reform and the Sign of Abolition: Re-Visiting Montana's Experience," International Journal for the Semiotics of Law X/29 (1997), 191-211;
21. B. A. Arrigo. "Reason and Desire in Legal Education: A Psychoanalytic-Semiotic Critique," International Journal for the Semiotics of Law XI/31 (1998), 2-24;
22. Christopher R. Williams, "The Abrogation of Subjectivity in the Psychiatric Courtroom: Toward a Psychoanalytic Semiotics of Law," International Journal for the Semiotics of Law 11/32 (1998), 181-192.
23. For some provisional comments, exploring how Peirce, Greimas, and Lacan would uniquely, though relatedly, interpret sociolegal problems see Arrigo, "Insanity Defense Reform," supra note 7, at 195-210.
24. The work of Freire (1972, 1985), examining the pedagogy of the oppressed, is particularly insightful. His position is that the disenfranchised are in search of speaking "true words" about themselves and their place in the social order (Freire, 1972: 57-67). Through a process of conscientization people "exercise [their] right to participate consciously in the socio-historical transformation of their society" (Freire, 1985: 50). This right assumes the form of reflection and action, in which key signifiers inscribing the sanitizing and normalizing identity of the oppressed are decodified and transformed in ways more consonant with their felt reality. Paulo Freire, Pedagogy of the Oppressed (New York: Herder and Her, 1972);
25. Paulo Freire, The Politics of Education (South Hadley, MA: Bergin and Garvey, 1985).
26. For some additional and more recent lines of analysis consistent with Freire's general thesis see, H. Giroux, Border Crossings (New York: Routledge, 1992).
27. See, "Law and the Post-Modern Mind," Cardozo Law Review 16 (1995), passim;
28. D. Caudill (ed.), Symposium: The Wake of Psychoanalytic Jurisprudence 20/3 (1996), passim.
29. The Conference held at the Benjamin Cardozo School of Law included several luminaries. For example, Derrida commented on Lacan's overall work. See, Jacques Derrida, "For the Love of Lacan," Cardozo Law Review 16/3-4 (1996), 699-728;
30. Salecl addressed the notion of rights from a psychoanalytic feminist vantage point. See, Renata Salecl, "Rights in Psychoanalytic and Feminist Perspective," Cardozo Law Review 16/3-4 (1995), 1121-1138;
31. Cornell enumerated the ethical/legal place beyond Lacan's Real Order. See, Drucilla Cornell, Rethinking the Beyond of the Real, Cardozo Law Review 16/3-4 (1995), 729-793.
32. The Symposium, Guest Edited by Caudill, included a number of more fundamental law-society matters (e.g., the criminal legal doctrine, rebellious lawyering). For a review of the Symposium see, B.A. Arrigo, A Review Essay: The Wake of Psychoanalytic Jurisprudence. Journal for the Psychoanalysis of Culture and Society 3/2 (1998), at 183-186.
33. As the author notes, translating Miller (1997), the connection between criminology and psychoanalysis is of considerable import, "in so far as it poses the problem of knowing whether mental illnesses should lead to the suspension of the subject of law" (pp. 17-19). See J.-A. Miller, "Sante mentale et ordre public," Mental: Revue Internationale de Santé Mentale et Psychoanalyse Appliquée 3 (1997), 15-26.
34. E. Roudinesco, Jacques Lacan et al.: A History of Psychoanalysis in France 1925-1985 (Chicago: University of Chicago Press, 1990), at 127.
35. Lacan developed his schematizations on the four discourses in his 1969-1970 seminar. See Jacques Lacan, L'Envers de la Psychoanalyse (Paris, France: Editions du Seuil, 1991).
36. The four discourses are relatively stable, intersubjective structuring devices that allow one to explain how discursive practices unfold. See, M. Bracher, "Lacan's Theory in the Four Discourses," Prose Studies 11 (1988), 32-49.
37. The operation of the four discourses appears somewhat formalistic and deterministic; however, they possess considerable conceptual vitality and, accordingly, can be applied to the study of (socio-legal) phenomena in a descriptive fashion. See e.g., D. Milovanovic, "Lacan, Chaos, and Practical Discourse in Law," in R. Kevelson (ed.) Flux, Complexity, and Illusion in Law (New York: P. Lang, 1993), 311-327;
38. D. Milovanovic, "Lacan's Four Discourses and Cultural Criticism in Law", Studies in Psychoanalytic Theory 2/1 (1993), 3-23.
39. As the authors describe, the philosophy of the gift has a long and distinguished intellectual history. In brief, the position is that the bestowal of a gift (e.g., mental health representation) functions as a reward, stemming from the giver and assigned to receiver. It is this gratuity that is semiotically investigated.
40. Indeed, Lacan's insights are rather unique. Although his topological schematizations, including, among others, the borromean knot, the Klein bottle, and the Möbius band suggest a sort of mathematical knowledge, his concern for a more intuitive grasping of meaning, not enslaved to scientific, objectivistic precision confirm his abiding commitment to a mythic knowledge (i.e, a not-all or pas tout), defying rigid, formalistic conceptualization in the Symbolic Order. See, e.g., Jacques Lacan, Feminine Sexuality (New York: W.W. Norton and Pantheon Books, 1985), at 143-147;
41. J.S. Lee, Jacques Lacan (Amherst: University of Massachusetts Press, 1990), at 191-195.