Justice, Freud, and International Law (article)

In 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia to “bring to justice” those responsible for serious violations of international humanitarian law in the course of the Yugoslavian conflict. This establishment of the first international legal body to prosecute criminal breaches of international law since the war crimes trials of World War II has raised, like the war crimes trials 45 years before, a renewed questioning of the nature of justice. Confronted by crimes against humanity that challenge the liberal humanist foundations of law itself, how can the law begin to realize “justice”?

In his analysis of “justice,” Kant distinguishes between laws of state and the law of universal morality. Freud makes a similar distinction between the laws of power and the ideals of justice. Unlike Kant, Freud’s distinction between juridical laws and ethical law does not lie in the categorical imperatives of moral reason. Freud does not counterpose the law of ethical reason to the irrationality of state violence and power. By contrast, the law is affective in Freudian psychoanalysis. Psychoanalysis claims that unconscious drives found the law. What then are the implications of this psychoanalytic claim for the concept of “justice”?

In early works such as The Psychopathology of Everyday Life, Freud argues that the judicial process is also an affective process. (Angela Richards, ed., 1975, p. 316) Legal proceedings are not exempt from the psychopathology of everyday life; they also reveal those linguistic and perceptual errors that betray the workings of the unconscious. The jurist should not ignore the psychopathology of everyday law, from remembering to forgetting, from the slips of speech to its silence. The law claims to operate in the register of consciousness, from the testimony of its witnesses to its judgment of the criminal act. All is seen, everything is known. However, Freud insists that the unconscious cannot be excluded from the court of law. The repressed continually returns to haunt the mise-en-scène of justice.

Nearly 20 years later, following the Great War [World War I], his personal bereavements, and the rise of fascism, Freud returned to the question of the law. In later works such as Group Psychology and Civilization and its Discontents, Freud argues that affect forms the law. (Albert Dickson, ed., Civilization, Society and Religion, 1985) For Freud, the foundational legal notion of equality derives from the sibling affect of fraternal envy. In the demand for equality can be seen “a reversal of what was a hostile feeling into a positively-toned tie in the nature of an identification” with others. (Civilization, p. 153) In this sense, the demand for justice is a demand for fraternal equality before the law of the father.

Freud sees this shift from individual to group psychology as reflecting the “replacement of the power of the individual by the power of a community.” It is “the decisive step of civilization” which allows the regulation of social relations by the law. (Civilization, p. 284) The law reflects a shift from the violence of the individual to the legal violence of the community of interests. The law expresses the will of the community. That community is held together by “the compelling force of violence and the emotional ties between its members.” (Civilization, p. 354) For this reason, Freud does not counterpose the laws of hostility against the law of reason. The law expresses the regulated violence and binding emotional ties that form a

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community.

In his essay of 1915, “Thoughts for the Times on War and Death,” Freud suggests that the Great War revealed a fundamental failure of the regulatory and binding function of the law. The war disregards all restrictions known as International Law, which in peace-time the states had bound themselves to observe; it ignores the prerogatives of the wounded and the medical service, the distinction between civil and military sections of the population. (Civilization, p. 65)

In his later essay of 1932, “Why War?”, Freud argues that only international law enforced by the League of Nations can ensure peace. However, the ideals of the League of Nations are not sufficient to prevent war, since those ideals are not sufficiently binding emotional ties between the international communities. Instead, international law rightly enacts regulated violence to prevent war because the attempt to replace actual force by the force of ideas seems at present to be doomed to failure. We shall be making a false calculation if we disregard the fact that law was originally brute violence and that even today it cannot do without the support of violence. (Civilization, p. 355)

This false calculation is an illusion—the illusion of Universal law in which all are equal before the law and all are equally subjected to it. Freud claims that this essentially religious notion of Universal justice derives from the infantile psychic wish for a powerful Father who establishes “a moral world-order [that] ensures the fulfillment of the demands of justice, which have so often remained unfulfilled in human civilization.” (Civilization, p. 212) This notion of justice is a wish-fulfillment, embodying a fantasized actualization of the wish for equality before the paternal law. For Freud, the Great War brought with it disillusionment with the reality of Universal law.

Without illusion, what might justice be? A love for the law can grant equality before it, but only in the terms by which the law defines equality. A love for the law can provide a remedy, but only as set out by the law itself. Justice is that which exceeds the law. Justice is not reducible to law, it is “outside or beyond it.” (Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority’,” Deconstruction and the Possibility of Justice, eds. Drucilla Cornell et al, 1992, p. 12) It is not an imaginary love satisfied by a fantasy of law. Rather, it is a desire in the psychoanalytic sense of a relationship to lack, a desire for what is not. Justice is an ethical future claim that must be enacted in the juridical present.

In contemporary international law, where the United Nations has replaced the League of Nations, a new demand for justice has emerged. That demand has been acknowledged in the establishment of the ad hoc criminal tribunals for the former Yugoslavia and Rwanda and in the call for the establishment of an international criminal court. Freud suggests that if the law is first established as an expression of communal violence and bonds, it then reforms not as communal law but as universal law. Freud describes universal law as “a rule of law to which all … have contributed by the sacrifice of their instincts, and which leaves no one … at the mercy of brute force.” (Civilization, p. 284) This contemporary demand for justice is a call for an international law in which justice forms the “ethical relations between the collective individuals of mankind—the peoples and the states.” (Civilization, p. 65) This call reflects not love for law, but desire for justice. That desire constitutes the emotional ties of the international community, a community beyond national identification. The binding tie of the international community becomes “international justice.” International law becomes a universal law of justice, which leaves no one “at the mercy of brute force.”

That universal law of justice is the founding principle of the International Criminal Tribunal for the former Yugoslavia. Psychoanalysis reveals how the specter of injustice haunts this fantasy of law. If the binding tie of justice founds this universal law, then to be binding, law must be that which remedies injustice. It is that desire for justice that ultimately must be the foundation of the law.

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