Psychoanalytic Contributions to Humanizing the Law

Sigmund Freud is undoubtedly one of the most influential thinkers of the 20th century. Freudian psychology—based upon the concept of a dynamic unconscious—permeates the way modern society views the world. An area where Freudian psychology has made an especially interesting con-

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tribution to our lives is the law.

At first glance, the law might seem an unlikely place for Freud to be welcomed. Indeed, the law is firmly grounded in the concept of free will—people have a choice in how they behave. A correlate to choice is responsibility. Individuals should be held responsible for what they do. Freud’s great contribution—that forces outside our awareness affect how we think, feel, and behave—seems directly at odds with these fundamental tenets of law. How can Freudian psychology and legal reasoning be reconciled?

The short answer is that there are indeed basic tensions between these two theories of mind. The reality, however, is far more complex and subtle. To demonstrate the complexity of the relationship—and highlight the relevance of Freudian psychology to the law—one may examine three areas where psychoanalytic thinking has had a profound impact on our legal system. (For a more detailed account of these three contributions, see Elyn Saks, “Psychoanalysis: Past, Present, and Future Contributions to the Law,” in The Evolution of Mental Health Law, forthcoming in 2001.)

A quarter century ago, Joseph Goldstein, Anna Freud, and Albert Solnit embarked upon a project, the purpose of which was to show how psychoanalysis could contribute to legal decisions involving child custody. (Beyond the Best Interests of the Child, 1973; Before the Best Interests of the Child, 1975; and In the Best Interests of the Child, 1986) Goldstein, Freud, and Solnit encouraged the law to consider how a child would experience the legal proceedings, and used psychoanalytic ways of thinking to understand and describe the child’s experience. The three authors developed the concept of a psychological parent—the adult with whom the child has the strongest psychological tie—and explored and elaborated for legislatures and courts how children experience time in ways very different than do adults. They used thoroughly psychoanalytic perspectives to argue that keeping state intervention to a minimum in custody disputes would serve the child’s best interests.

Like Goldstein, Freud, and Solnit, Jay Katz is a psychoanalyst whose writings have had an important impact on the law. Katz has made contributions in many areas, primary among which has been the ethics of experimentation with human subjects. (See Human Experimentation, 1972.) In the clinical realm, Katz’s most notable work involves the relationship between informed consent and what transpires between doctors and patients. (See The Silent World of Doctor and Patient, 1984.) Katz demonstrated that transference-countertransference could be a powerful unconscious force in physicians maintaining a paternalistic posture toward their patients, at the expense of the patients’ autonomy. Katz argued forcefully on behalf of autonomy, and showed how the legal doctrine of informed consent, properly understood and applied, would afford autonomy its proper role in the physician-patient relationship.

Michael Moore, a philosopher and lawyer, has written on the unconscious and responsibility from a psychoanalytic perspective. (See Law and Psychiatry: Rethinking the Relationship, 1984.) Moore first asks whether a psychoanalytic understanding of the unconscious increases our sense of one’s responsibility, given that “accidents” are often events that result from unconscious motivations. Moore then turns the question on its head, to query whether the unconscious decreases our sense of an individual’s responsibility, since behavior is often the result of motivations outside awareness. Moore answers “No” to the first question, and adopts a version of “soft determinism” to answer the second: it is not acts that are caused, but rather only acts that are compelled or based on irrational reasons that are non-responsible. Moore posits soft determinism in an effort to ease the tension between psychoanalytic and legal views of responsibility.

Psychoanalysis is well set to make additional contributions to legal theory and practice. Its theory of the self may inform legal doctrine—for instance, should alter personalities in the case of multiple personality disorder be construed as multiple selves which are separate centers of responsibility? Psychoanalytic theories of unconscious motivation may speak further to the legal understandings of criminal responsibility. Affect theory—particularly the role of unconscious guilt—may be relevant to a variety of legal contexts.

The Law is ultimately concerned with human behavior—what motivates human behavior, what shapes human behavior, what explains human behavior. A theory of behavior must be grounded in a theory of mind—and psychoanalysis offers one of the most sophisticated theories of mind we have. It will be important to recognize the limitations of what psychoanalysis can offer the law. As examples, psychoanalysis cannot answer value questions, and the subtleties of psychoanalytic thinking will sometimes be a poor match for a legal

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system that, by definition, must generalize to an entire population. Nonetheless, psychoanalytic ways of thinking may offer the law contributions that are broad and profound, as the last quarter century has amply shown.

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