Choice, Compulsion, and the Legal System (article)

Psychoanalysis has strengthened the legal system by providing a gateway to understanding unconscious compulsions and needs. Law and psychoanalysis both recognize the importance of human responsibility in facing behavior unacceptable in society.

What is characteristically overlooked in the discussion of psychoanalysis is the fact that Freud’s greatest contribution was the identification of neurosis as the great psychological problem of human beings. What is neurosis? Neurosis is the failure of free will, failure in the functioning of normal volitional processes, failure in being able to do (or to not do) what one wants to do (or what one does not want to do).

Consider hysterias, obsessions, compulsions, and phobias. Hysterical blindness is the failure to see when one chooses to look. Hysterical paralysis is the failure of being able to move when one chooses to move. Obsession is the failure of normal control over one’s thought processes. Compulsion is the failure of normal control over one’s conduct. Phobia is a failure in the normal control over emotion.

Voluntary conduct normally results from an interaction between conscious reason and desire. This is a classical and commonplace understanding. For a variety of reasons peculiar to the history of science in the Western world, this foundational fact about the determination of human conduct has been systematically denied in the development of scientific psychology. It is to the credit of psychoanalysis that it restored it, making psychology, in my opinion, all the more scientific.

Among the reasons for this historical scientific failing is the ruling out of intention as causative. While intention may not be causative in many non-human phenomena, it certainly is in human phenomena. The combination of the great success of mechanics in physics and the widespread acceptance of the theory of natural selection in biology led to the rejection of intention as a scientific entity. That is simply an error.

Freud escaped falling into the error by, on the one hand, holding to a position he could call “deterministic,” at least for the failures in normal control, while, on the other hand, making the determinant to be the wish, as in dreams, and the desire, more generally, as in neuroses.

The central scientific observation made by Freud is that failures in voluntary conduct may be due not only to failures in conscious reason and desire but also to unconscious reason and especially unconscious desire. Among the latter, in particular, were unacceptable aggressive and sexual desires. For Freud, Oedipus was an attractive paradigm, the desires to kill the father and have sex with the mother, both unconscious.

The relationship of this to law needs to be considered from at least three points of view. First, the subject matter of psychoanalysis and law converge historically on the role of socially unaccept-

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able forms of conduct such as aggression and sex. We have to look with interest to Freud’s Civilization and Its Discontents, Moses and Monotheism, and Totem and Taboo, and to Marcuse’s Eros and Civilization. Second, psychoanalysis and law converge in the recognition of normal human responsibility. This is despite the popular misconception of Freud’s work as the “excuse defense.” Finally, psychoanalysis may be society’s most important doorway for coming to an understanding of the failures of normal human responsibility as society moves forward in history.

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