Law and the Unconscious by Anne C. Dailey

Author:Anne C. Dailey
Language: eng
Format: epub
ISBN: 9780300188837
Publisher: Yale University Press

SIX

Violent Threats

The law generally takes people at their word. For the most part, legal decision-makers presume that people mean what they say. Contracts are construed based on the objective meaning of the written words rather than by reference to the parties’ subjective intent. Perhaps a party was ambivalent about the contract, perhaps she intended something else, perhaps she was operating on mistaken assumptions, but once she signs on the dotted line, the text itself controls the legal outcome regardless of any underlying doubt or dissonance. Similarly, statutes are interpreted according to their “plain meaning,” whatever the legislators’ actual purpose. The law of hearsay, likewise, treats words as transparent even when their context would suggest the opposite; words spoken in contemplation of imminent death, for example, are deemed especially reliable, even if the deathbed declaration expresses a final unshakable denial of the truth. As we saw in chapter 4, criminal confessions are taken at face value regardless of the psychological circumstances producing them. And because legal adjudication involves reconstructing historical events in hindsight, the finder of fact will readily assume that a defendant’s earlier state of intention (“I am going to kill him”) made what happened later a foreseeable certainty. For purposes of this chapter, we can refer to law’s literal-mindedness as the “presumption of transparency.”1

The law’s presumption of transparency is a paradigmatic instance of the head-on conflict between law and psychoanalysis. Psychoanalysis rarely trades in literalisms. To the contrary, psychoanalysis examines words for their hidden associations, connotations, implications, and ambiguities. We might even venture to say that psychoanalysis operates using a presumption at the opposite extreme from law’s presumption of transparency. All words and behavior have hidden, latent significance, if one just knows where to look. Law’s literalist approach, by contrast, erases fantasy, along with metaphor, irony, and humor. This fundamental difference between law and psychoanalysis appears to expose an unbridgeable chasm separating the two disciplines.

Of course irony is not so easily banished from law’s domain. It was, after all, one of the law’s great proponents of objectivism—Oliver Wendell Holmes Jr.—who in 1918 gave us a psychoanalytically resonant view of how language works: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”2 Indeed, it was likely because Holmes so acutely appreciated the deeper meaning of words and behavior that he turned to objective standards in law: he well understood the difficulty of knowing and proving what lies beneath the surface.3 Following Holmes, it seems fair to say that the law relies on a presumption of transparency precisely because ascertaining what an individual really intends to communicate is beyond the reach of law’s evidentiary grasp and adjudicatory powers.4 Perhaps the evident divide between law and psychoanalysis—their conflicting presumptions of transparency and opacity—merely exposes a difference in the practical arts: psychoanalytic treatment allows for deep excavation, while courtroom adjudication clearly does not.

This chapter aims

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