Volume 8 Number 1June 2001

American Constitution, Bill of Rights, Declaration of Independence, human rights, legal system, Magna Carta, psychohistory, tyranny, United Nations, Universal Declaration of Human Rights

In this article, the author, the journal’s editor, introduces the Psychology and the Law special issue by setting out his concern about the growth of law in American life. He acknowledges the legal system as a protector of liberty, citing the Magna Carta, the U.S. Bill of Rights, and the Universal Declaration of Human Rights, and welcomes prosecutions for crimes against humanity in Rwanda and Bosnia. He nonetheless identifies with pessimists about the expansion of litigation. Using news items, personal experience, and historical cases, he contends that law has become a resource that individuals and groups draw on for their own purposes, and that politicians and the media have an interest in calls for new laws, with Megan’s Law as his example. He maintains that those with greater financial resources hold an advantage, and he questions whether displaying police association shields differs from bribery. He notes that litigiousness predates modern America, citing James Watt, Aleksander Herzen’s My Past and Thoughts, and Thomas Edison. He discusses lawyer jokes and recounts two encounters with lawyers that he found unprofessional. He proposes that psychology can illuminate the needs behind recourse to law, which may express self-assertion or anger, and suggests a psychological study of the Nuremberg Trials. He closes by summarizing the issue’s contributions and announcing a September issue on “Crime, Punishment, and Incarceration.”

dynamic unconscious, Freudian psychology, law, modern society, psychohistory, Sigmund Freud

In this article, the authors consider the relationship between Freudian psychoanalysis and law. They observe that law rests on free will and responsibility, while psychoanalysis holds that forces outside awareness shape thought, feeling, and behavior. They acknowledge basic tensions between the two theories of mind but describe the relationship as more complex than simple opposition, and they point to three areas of psychoanalytic influence on the legal system. The first is the work of Joseph Goldstein, Anna Freud, and Albert Solnit on child custody, which introduced the concept of the psychological parent, addressed how children experience legal proceedings and time, and favored minimal state intervention. The second is Jay Katz’s writing on human experimentation and on informed consent in The Silent World of Doctor and Patient, which attributes physicians’ paternalism partly to transference and countertransference and argues for patient autonomy. The third is Michael Moore’s treatment of the unconscious and responsibility, which adopts a version of soft determinism in which only compelled or irrational acts are non-responsible. The authors suggest further contributions on the self, unconscious motivation and criminal responsibility, and unconscious guilt. They maintain that psychoanalysis offers law a theory of mind, while noting that it cannot answer value questions and may fit poorly with a legal system that must generalize to a whole population.

behavior, compulsion, human responsibility, law, legal system, psychoanalysis, psychohistory

In this article, part of the Psychology and the Law special issue, the author argues that psychoanalysis has strengthened the legal system by offering a gateway to understanding unconscious compulsions and needs. The author maintains that law and psychoanalysis both recognize human responsibility for socially unacceptable behavior. The author contends that Freud’s greatest contribution, characteristically overlooked, was to identify neurosis as the central psychological problem, defined as a failure of free will or of normal volitional control. Hysterical blindness and paralysis, obsession, compulsion, and phobia are offered as instances of such failure. The author holds that scientific psychology denied the role of intention in human conduct, attributing this to the influence of mechanics in physics and natural selection in biology, and credits Freud with avoiding that error by locating the determinant in wish and desire, including unconscious desire such as the Oedipal wishes. The author proposes three points of convergence with law: a shared concern with socially unacceptable aggression and sex, with reference to Freud’s Civilization and Its Discontents, Moses and Monotheism, and Totem and Taboo and Marcuse’s Eros and Civilization; a shared recognition of normal responsibility, despite the popular misreading of Freud as an “excuse defense”; and psychoanalysis as a doorway to understanding failures of responsibility.

crimes against humanity, humanitarian law, international law, justice, psychohistory, Sigmund Freud, United Nations Security Council, war crimes, Yugoslavian conflict, World War II (WWII)

In this article, the author considers the concept of justice in international law through Freud’s writings on law, taking as occasion the 1993 establishment by the United Nations Security Council of the International Criminal Tribunal for the former Yugoslavia. The discussion draws on The Psychopathology of Everyday Life, Group Psychology, Civilization and Its Discontents, “Thoughts for the Times on War and Death,” and “Why War?”, and contrasts Freud with Kant’s distinction between the laws of the state and universal morality. The author argues that Freud treats law as affective rather than grounded in moral reason. On this reading, legal proceedings reveal the unconscious through slips and silences, and the legal principle of equality derives from fraternal envy transformed into identification. The author reports Freud’s view that international law must rest on regulated force and that belief in universal law expresses an infantile wish for a powerful father, a wish the Great War disillusioned. Drawing on Derrida, the author proposes that justice exceeds law and is a desire in the psychoanalytic sense, a relation to lack. The author concludes that the international community’s binding tie is a desire for justice, that this desire must found international law, and that psychoanalysis shows injustice haunting the fantasy of universal law.

aggression, American civil legal system, Francis Bacon, legal system, punitive damage awards, psychohistory, retribution, revenge, vengeance

In this article, the author examines the relationship between revenge and punitive damage awards in the American civil legal system. The article draws on legal scholarship, historical examples, and Nisbett and Cohen’s Culture of Honor: The Psychology of Violence in the South. It distinguishes vengeance, characterized as personal, potentially irrational, and prone to escalation, from retribution, characterized as limited, systematic, and aimed at deterrence. It reports that Americans have become less accepting of vengeance over roughly 150 years, associates this change with expanded law enforcement and falling rates of violent crime, and describes Nisbett and Cohen’s proposal that herding-economy origins account for regional differences in violent response to threat. It surveys the functions scholars assign to punitive damages (punishment, deterrence, education, law enforcement, and victim retribution) and the history of such awards, from the Code of Hammurabi, Hittite law, the Code of Manu, and Roman law through biblical texts, an eighteenth-century English ruling on exemplary damages, and early American cases. The author contends that early awards were vengeful, and that juries receive no guidance and may decide on personal feeling toward the defendant. The article concludes that punitive damages continue to function as a tool for revenge, because the wording of the law cannot overcome the historical, cultural, and theological roots of vengeance.

aggression, community law, cultural development, domestic violence, international law, justice systems, psychohistory, Sigmund Freud, subversion of law, violence

In this article in the Psychology and the Law special issue, the author contends that law is repeatedly subverted to serve vengeful ends because of a persistent pull toward archaic justice. The author proposes that early law arose from trade regulation and from taboos meant to propitiate deities, and attributes to the latter the Law of Retaliation, ritual scapegoating, and the persecution of Jews in Christian Europe. Modern aims of deterrence and rehabilitation, the author argues, have not been achieved, and the resulting dissatisfaction feeds a yearning for older practices. The principal example is Nazi Germany, where the author maintains that Hitler subordinated the courts to the welfare of the German folk, citing court-approved sterilization and killing programs presented as health measures, the transfer of Jewish property, and Franz Gürtner’s concept of material legality. The author links Hitler’s aims to beatings by his father in childhood and reports that many Germans shared experiences of child beating, postwar deprivation, and economic collapse. The thesis is that regressive justice appeals by offering a return to personal and national pasts, especially to people who feel victimized. A second example is the internment of 120,000 Japanese Americans under President Franklin Roosevelt, approved by the Supreme Court over Justice Frank Murphy’s initial dissent, followed by the Internal Security Act of 1954. The author concludes that tendencies toward subverting law are endemic to Western cultures and that yearnings for vengeful justice endure.

abusive parents, custody, dysfunctional, family dynamics, gender bias, legal systems, mother-child relationships, negligent foster care, psychohistory, statistics, U.S. family courts

In this article, the author, writing from long experience, is sharply critical of U.S. family courts and child protection agencies. The author contends that they act against children’s custody interests by removing children from nurturing homes and placing them with abusive parents or negligent foster care agencies. The author focuses on mothers, whom the author reports make up most caregiving parents who lose custody, and notes that caregiving fathers face a similar risk. The article describes three settings for custody disputes: divorcing parents, abuse allegations, and unmarried parents. The author says reliable statistics are unobtainable and relies on generalized scenarios. In these scenarios, mothers who report incest or domestic violence are treated as suspects, charged with lying or with failure to protect, and faced with a coordinated group of professionals and a judge the author regards as biased. The author reviews explanations for this alignment, including underpaid and overworked staff and fathers’ confident presentation. The author proposes that projective processes in adversarial proceedings let abusive parents shift blame onto mothers. One adolescent’s account of being made to live with an abusive parent illustrates the point. The author hopes public protest will lead the judiciary to accept civilian oversight, and advises prospective parents to consider the legal risks of having a child with a partner of untrustworthy character.

accountability, child welfare, judicial system, liability, New York City, private citizens, psychohistory

In this article, the author, a child welfare worker in New York City, writes from experience about the shift toward liability and accountability in child welfare after lawsuits brought by federal, state, and city governments and by private citizens. The author recounts the 1996 creation of the Administration for Children’s Services (ACS) under Mayor Rudolph Giuliani and Commissioner Nicholas Scoppetta, and is sharply critical of the accountability review process Scoppetta initiated, which the author says subjected workers to unnecessary interrogation. Drawing on time at ACS and at a contract agency, the author reports that caseworkers concentrate on self-protection and repetitive paperwork, which is said to limit direct service and encourage emotional detachment from clients. The author maintains that officials expected liability to motivate workers to serve clients better. The author cites Michael A. Diamond’s 1985 article “The Social Character of Bureaucracy: Anxiety and Ritualistic Defense,” in which Diamond associates ritual routines in organizations with defense against anxiety. The author concludes that the City’s efforts to protect itself from lawsuits inadvertently create barriers to serving children and families.

accountability, American legal system, authority, immunity, judges, justice, meritocracy, political appointment, psychohistory, scholarship

In this article, the author, writing from more than 25 years of experience as a medical-legal trial attorney in American courts, is sharply critical of the U.S. judicial system. He contends that judges are chosen by political election or appointment rather than on merit, and that immunity and broad discretion place them above accountability. He recounts a 1997 domestic relations case in which a judge facing re-election held a self-represented litigant in contempt over a request to reduce support payments, which he characterizes as a bid to improve the judge’s public image. He also mentions a West Virginia judge who struck an attorney and remained on the bench. He maintains that the Florida Supreme Court and U.S. Supreme Court rulings after the 2000 presidential election illustrate the influence of political considerations on judges who owe their positions to political appointment. Using Karen Horney’s term “idealized image,” he attributes public deference to judges to a childlike fantasy of the judge as an omniscient good parent. He compares courtroom ceremony to that of the British monarchy, including chambers, the bailiff’s announcement, rising, robes, the elevated bench, and honorific address, and asks why the American judiciary retained these forms. He proposes merit selection through boards approved by bar associations and community residents, narrower discretion and immunity, and abolition of robes, raised benches, and honorific address. He concludes that courtroom practice should better suit a democracy.

accountability, Bill of Rights, elitism, human nature, justice, legal reform, punitiveness, psychohistory, reformers, systemic perfection

In this article, the author, a trial lawyer with some 35 years of practice in state and federal courts, defends the American legal system, maintaining that it is systemically sound and that its imperfections stem from human nature and the economic system. The author compares legal and medical decision-making, contending that an adversarial process, in which plaintiff’s counsel, defense counsel, and the judge must all fail for a miscarriage of justice to occur, generally produces better results than a single physician deciding alone. Critics of the system are characterized as mostly social elitists, including supporters of an appointed judiciary and opponents of jury decision-making, and the author describes this position as anti-democratic. The author distinguishes lay critics, who rely on anecdotes from news coverage, from professional critics among insurers and corporate litigants. The author argues that the war on drugs and drunk driving prosecutions have eroded the Bill of Rights and lengthened prison sentences. The author acknowledges ethical objections to contingency fees but locates the main flaw of personal injury law in its reliance on fault. The author concludes that tort reform, victims’ rights measures, and changes to search and seizure law all shift power from the weaker to the stronger party in litigation, and reports that these critics are prevailing.

family crisis, graduate student, industrial psychology, lawyer, lucrative, mother-daughter relationships, organizational psychology, psychobiography, psychohistory, psychology, research

In this article, the author, who became a lawyer in 1974, recounts her decision twenty-five years later to leave legal practice for full-time graduate study in industrial/organizational psychology. She identifies a family health crisis in the summer of 1998 as the trigger, reporting that it reordered her priorities and made her more aware of the part chance plays in life. She is critical of her former work, characterizing real estate, contract, and merger practice as paperwork and money, and litigation as a game of advantage rather than of right and wrong. She reports that her own sense of right and wrong felt compromised, and she describes a dream in which she felt tainted by her identity as a lawyer. She recalls a long-standing interest in psychology, her reluctance to pursue clinical training, and the workplace behavior she observed among employees and managers, which led her to study how people function in organizations. She describes the loss of income, staff, and status, and the difficulty of being an older student among younger peers. She concludes that the decision was right and that school is a bridge to a new place.

criminal defense, intellectual enrichment, psychoanalysis, psychohistory, psychotherapy, surrogate parent, U.K. law, Xhosa culture

In this article, the author, a former criminal defense lawyer in the United Kingdom who became a social psychologist and psychotherapist influenced by psychoanalysis, reflects on the conflict of loyalty between client and society, which he says most psychotherapists take care to deny. Writing from his own experience, he recounts how, beginning in 1992 in South Africa, three Xhosa youths, aged roughly 12 to 17, came to live with him and became in effect his sons. He describes an early confrontation with a neighbor, a child welfare consultant, police, and social workers who sought to commit the boys to a state facility, and which the household contested successfully. He contrasts the legal system’s treatment of clients as bundles of rights and duties with the psychotherapist’s attention to emotional needs. Drawing on Bettelheim, Aichhorn, Anna Freud, and Klein, he discusses trust, adult guilt and punitiveness toward troubled children, and his support for the youths’ nonconformity in a society he characterizes as racist and over-conforming. He recounts preparing a legal defense for one of them in a criminal matter while declining to condone conduct dangerous to the youth. He concludes that psychotherapists should revive the insights of Reich, Fenichel, and Aichhorn, argues that psychoanalysis should address both individual anxieties and pathogenic external circumstances, and states his commitment to problems of individual development in rapidly changing societies.

academic research, clinical training, psychoanalysis, psychohistory, research training, Samuel Eisenstein, Sigmund Gabe, Southern California Psychoanalytic Institute (SCPI), university teachers, visionary leadership

In this article, the author recounts from personal involvement how the Southern California Psychoanalytic Institute (SCPI) developed an academic research training program in the 1960s and 1970s and how California came to legalize research psychoanalysis. He describes the threat of prosecution for unlicensed practice facing academic trainees, his own Marriage and Family Therapist license, and the founding of the Universal Life Church of Psychodynamics as a temporary legal cover, which he characterizes as a transgression in Freud’s sense. He reports the legislative campaign: sponsorship by Assembly Majority Leader Howard Berman, support from the University of California Student Lobby, opposition from the psychology lobby, and Governor Jerry Brown’s signature on September 30, 1977. The resulting law named four California institutes of the American Psychoanalytic Association. He maintains that academic psychoanalysts translate psychoanalytic understanding into the idioms of other disciplines, and he describes the University of California Interdisciplinary Psychoanalytic Consortium (founded 1991) and the Stoller Foundation. He identifies limits in the SCPI program, chiefly the rejection of partial training and the doctorate requirement, and proposes training talented graduate students. He discusses obstacles of status, financing, and the view of clinical training as trade-school activity. He contends that psychoanalytic thinking in the university should be embedded in research and teaching rather than applied as clinical models, illustrating this with his course on nineteenth-century European history, and concludes that academic psychoanalysts are positioned to interpret psychoanalysis to a culture that has disavowed it.

aggression, cannibalism, Cannibalism: Human Aggression and Cultural Form, Citizens and Cannibals, At the Dawn of Tyranny: The Origins of Individualism, Political Oppression, and the State, democracy, Eli Sagan, French Revolution, Freud, Women, and Morality: The Psychology of Good and Evil, The Honey and The Hemlock: Democracy and Paranoia in Ancient Athens and Modern America, individualism, The Lust to Annihilate: A Psychoanalytic Study of Violence in Ancient Greek Society, political oppression, psychohistory, Reign of Terror, scholarship, sociology, violence

In this interview, conducted at Ramapo College on December 6, 2000, Paul H. Elovitz speaks with Eli Sagan, who left a business career in 1974 to write on aggression without advanced degrees. The conversation covers Sagan’s upbringing in Summit, New Jersey, his Harvard education, twenty-two years of psychoanalysis, his left-wing politics, his teaching, and his books, including Cannibalism, At the Dawn of Tyranny, and the forthcoming Citizens and Cannibals on the Reign of Terror. Sagan describes his work as a psychoanalytic sociology. He maintains that aggression underlies social psychopathology, that understanding it requires acknowledging one’s own aggression, and that the psychoanalytic establishment avoids the subject. On this ground he faults Erik Erikson and Nancy Chodorow and is admiring of Dorothy Dinnerstein. He proposes that ritual is a compromise formation around ambivalence and defines psychohistory as the study of where psyche and society meet. Drawing on evolutionary stages of society, he attributes the Terror to France’s failure to consolidate a stable modern, bourgeois, democratic society, while expressing admiration for Robespierre’s moral vision. He characterizes modernity as both anxiety-producing and liberating, and fundamentalism as a defense against it. He calls for a society beyond modernity, marked by nurturing, greater equality, and more democratic childrearing, and criticizes psychohistory for lacking sociological theory. He names Freud, Weber, Parsons, Fromm, Lloyd deMause, and Alan Dundes among his influences. He concludes that psychohistory must study societies’ fantasies of omnipotence, not only individual leaders’ psyches.

biography, book review, bourgeoisie, David Felix, economics, historical figure, John Maynard Keynes, Keynes: A Critical Life, psychobiography, psychohistory, world impact

This book review assesses David Felix’s biography of the economist John Maynard Keynes (1883–1946). The reviewer reports that Felix explains Keynes’s rise through both inheritance and upbringing: a secure Cambridge home, schooling at Eton and King’s College, Cambridge, and a move from mathematics to economics under Alfred Marshall. The book follows Keynes through the India Office, his first book Indian Currency and Finance (1913), his editorship of the Economic Journal, his wartime Treasury posts, and Economic Consequences of the Peace (1919). It covers his homosexual relationships, his place in the Bloomsbury group, and his 1925 marriage to the dancer Lydia Lopokova. Felix attributes Keynes’s turn toward women largely to his friendship with Vanessa Bell and characterizes him as compulsive in both work and leisure. According to the reviewer, Felix rejects the theory of The General Theory of Employment, Interest and Money (1936) as wrong while crediting it with supplying a foundation for government’s economic responsibility. The reviewer judges the biography distinctive among studies of Keynes for its command of primary sources, its prose, and its fair-minded treatment of his contradictions, and concludes that Felix presents a Keynes both fully human and historically great. The reviewer believes, however, that the causes of Keynes’s shifting sexuality run deeper than Felix’s analysis allows, while declining to fault the author. The review closes by predicting that biographers will soon give Milton Friedman comparable scrutiny.

abusive parenting, addiction, book review, depression, dramatist, Eugene O’Neill, family dynamics, Maria T. Miliora, Narcissism, the Family, and Madness: A Self-Psychological Study of Eugene O’Neill and His Plays, Oedipus Complex, psychoclass, psychohistory, relational truths, self-psychology, sexuality, Sigmund Freud

This book review assesses Maria T. Miliora’s Narcissism, the Family, and Madness, a psychobiographical study of the dramatist Eugene O’Neill and his plays that applies Heinz Kohut’s self psychology. The reviewer contends that O’Neill dramatized the Oedipus complex from his own experience of family enmeshment and rivalry, from Recklessness (1913) to Long Day’s Journey Into Night, and notes his analytic treatments with Smith Ely Jelliffe and Gilbert V. Hamilton. Placing the book beside Stephen Black’s Beyond Mourning and Tragedy, which uses a loss-repair theory, the reviewer reports that Miliora’s findings reinforce Black’s but that she states her theoretical basis more formally. The reviewer judges her discussion of addiction in the plays, of O’Neill’s search for a secure home, and of intergenerational transmission of pathology to be strong, and finds that her account of the mother-son relationship goes no further than Black’s. The reviewer maintains that Kohut’s broad account suits O’Neill, and that attachment-theory analysis is impracticable for historical subjects. The book is characterized as a clinical, primer-like work, less biographically fluent than Black’s and with a risk of terminological overload. The reviewer concludes that Kohut’s contributions will be absorbed into the critical possibilities the book opens.

biographical information, book review, classification, Fred I. Greenstein, The Hidden-Hand Presidency: Eisenhower as Leader, historical context, leadership, Leadership in the Modern Presidency, political psychology, The Presidential Difference: Leadership Style from FDR to Clinton, psychohistory, The Reagan Presidency: An Early Appraisal, sociability, U.S. presidents

This review of Fred I. Greenstein’s The Presidential Difference, a study of the eleven U.S. presidents preceding George W. Bush, describes the book as brief biographical chapters on each president from Franklin D. Roosevelt through Bill Clinton. Each chapter gives background and then evaluates performance on six attributes: public communication, organizational capacity, political skill, vision, cognitive style, and emotional intelligence. It also reports presidential job-approval polling. An opening chapter recounts the author’s contacts with Presidents Ford, Carter, and Clinton, and a closing chapter compares the presidents across the attributes. The reviewer, who notes that Greenstein is a political scientist rather than a psychohistorian, groups the first three attributes as measures of social interaction and the last three as measures of leadership. He proposes that a president’s personality development shapes his social interactions and, through them, his responses to group fantasy. He asks whether policy is shaped more by presidential leadership or by group fantasy, and he defends opinion polls as a mechanism of group governance. He judges the biographies well selected for the six attributes and finds the book current and its appendix, source notes, and book comments useful.

Abram de Swaan, Amsterdam School for Social Science Research, In Care of the State: Health Care, Education, and Welfare in Europe and the USA in the Modern Era, education, global language system, health care, interview, The Management of Normality: Critical Essays in Health and Welfare, psychoanalysis, psychohistory, social policy, sociology, transnational society, welfare, Words of the World: The Global Language System

This interview, conducted by Vivian M. Rosenberg in Amsterdam in September 2000 and May 2001, features Abram de Swaan, sociologist at the University of Amsterdam and chair of the Amsterdam School for Social Science Research. He recounts his childhood as a hidden child in wartime Holland, his student activism in Amsterdam and Berkeley, and his Harkness Fellowship at Yale and Berkeley, where he says Charles Lindblom’s incrementalism made him more skeptical of rational choice theory. He describes moving from mathematical political science to psychoanalytic training at the Netherlands Institute for Psychoanalysis and to practice as a psychotherapist from 1973 to 1984. He reports that this training made him more accepting of emotion and informed his observation of a cancer ward, which he likens to the phenomenological suspension of judgment. He calls himself a sociologist rather than a psychohistorian, maintains that emotional experience is shaped by historical and cultural context, and names Norbert Elias, Nico Frijda, and Peter Stearns among his influences. He lists transference, countertransference, identification, projection, and fantasy as useful research concepts, and faults psychoanalysts as often ahistorical and asociological. He also discusses the decline of traditional analysis in the Netherlands, his books In Care of the State, The Management of Normality, and Words of the World, and his plan to return to identification and the civilizing process. He disputes Elias’s treatment of the Holocaust and proposes dyscivilized for Nazi Germany and the Soviet Union. He concludes that understanding individuals and societies requires sociology, psychoanalysis, and history together.