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BOOK REVIEW

David S. Caudill (1997). Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory (New Jersey: Humanities Press), pp. 206.

Legal theory is an extremely rigorous and demanding area of expertise in American law schools.

It engages with a number of sources like critical theory, literature, psychology, psychoanalysis, sociology, and philosophy, but is not limited to or reducible to any of these.

That is why it is important to take the subtitle of this book as seriously as the title. The term ‘psychoanalytic’ is used as an adjective to qualify what is really at stake in deploying the work of Jacques Lacan in the context of critical legal theory.

There is also another tradition of critical theory in law schools that is preoccupied with the work of Jacques Derrida rather than that of Jacques Lacan. This approach is known as the ‘deconstruction of law’ or legal doctrine.

Most of these approaches are identified with elite law schools on the eastern seaboard like Harvard and Yale.

Jacques Derrida made greater inroads into the law school establishment than any other French thinker including Michel Foucault (despite the fact that the latter focused on areas like discipline, punishment, and penal systems in France).

There is a good reason for this. Foucault’s work was absorbed into areas like criminology and penal reform.

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Derrida’s work however went into legal theory and the deconstruction of legal doctrine as such rather than a specific area like criminology.

When law reviews and journals in the United States brought out full issues on the different aspects of deconstruction and the law, Derrida and deconstruction had arrived in American law schools.

There was another important development that we should keep in mind before reviewing David Caudill’s book - that is the synergies between literary theory, critical theory, and legal theory.

We mustn’t overlook the fact that a number of faculty who moved into legal theory started off in literary theory; they include Jonathan Culler, Peter Brooks, and Stanley Fish.

Or, they were legal theorists who took literary theory seriously like Peter Goodrich and Pierre Legendre.

There was a lot of give-and-take between these areas then in the U.S. academy. David Caudill came of age in such a world as a student of philosophy before training in the law.

A number of leading legal theorists in American law schools were themselves initially working on different aspects of the theories listed above before applying these theories to the law school curriculum.

That is probably why this book was published by a humanities press rather than a law school press (as is usually the case when law school professors in the United States put together their essays from the law review journals in which they were first published).

An important problem in legal theory is the relationship between the agent and the subject. This is a traditional analytic distinction in legal theory. It is an attempt to go beyond the individual as a basic unit of analysis in the common law.

What books like this really do is to ask what these analytic distinctions amount to when applying French theories like deconstruction and psychoanalysis in the context of the common law and American legal theory.

The significance of this question relates to the following fact: Anglo-American common law is decided on a ‘case-by-case’ basis albeit in the context of precedents in every area of the law.

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The theories that legal theorists are applying to the law in the U.S. legal academy however were formulated for use in France. In other words, these theories have a closer relationship with the French legal system.

The main difference between Anglo-American law and French jurisprudence is this.

The former is ‘empirical’ in its approach to the resolution of cases. The latter is ‘rational’ in its approach and works with a legal code that tries to sort out conflicts endemic to the common law by working mainly with statutory codes.

So, for instance, for any piece of litigation in Anglo-American common law, there will be precedents available both for and against the plaintiff and the defendant. So it is not correct to say that precedents are binding in a simplistic way.

If that is all there is to litigation in the common law, then, anybody can become a lawyer without years of study. Trying to figure when and if precedents apply itself is an important area of legal scholarship in American law schools.

It is precisely because precedents are available without being binding in an absolute sense that every case has to be fought out on a case-by-case basis. That is why the judiciary in the Anglo-American world has to listen to both sides of the argument.

It is judges who decide whether a precedent is relevant; and, if so, whether it is binding in a given case.

And, again, though I use the term ‘Anglo-American’ in the context of the common law; there are differences between English law and American law in terms of how precedents are invoked.

So, for instance, English law recognizes the differences between the legal contexts in which precedents can be invoked by the parties to a suit.

What precedents mean in the common law is not what it means in equity; precedents are more likely to be binding in the former than the latter.

In English law, judicial officers are not applying a formal code but searching for the law that is relevant to any case. Those who study law in the common law tradition will be acquainted with the need to ‘find’ the law.

What does it mean to find the law?

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Why should litigants have to search and then find the law relevant in their case?

They have to do so because it is not clear in the first instance which of the given cases would serve the function of precedent in any specific instance of litigation.

The burden of finding the appropriate precedents rests with the litigants and not with the judiciary when a case is being argued.

This is true for both trials and appeals in both civil and criminal law within the common law tradition.

The judiciary decides cases usually on the basis of the evidence and case law materials submitted by the parties to a dispute.

This is different from the French system which is not adversarial by design.

In French law, the designated official who resolves an instance of litigation can serve the function of both the prosecution and the judiciary.

Problem resolution in French jurisprudence is not about searching or finding the law. It is actually about locating and applying the law within a legal code such as the Code Napoleon.

So the basic anxiety in French law is to ensure that there are no conflicts endemic to the code.

This is however not possible in the common law of England, Wales, and the United States; which, by definition, is and will always be adversarial and ridden with conflict.

It is only within the appeals court jurisdiction that these conflicts are resolved in the common law and not at the lower levels.

That is why Anglo-American audiences like watching movies and TV serials about the law. The law is dramatic through and through.

Drama, needless to say, is the literary genre that is most preoccupied with staging conflict and the resolution of conflicts.

So the basic challenge for David Caudill is to apply French theory to the common law and what is known as legal or critical legal theory in the United States.

This is however easier said than done.

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That is why Caudill keeps saying that what he is trying to do is not easy to do.

As a law professor who has been reading psychoanalysis all his life, he knows that law school audiences have to juggle not only the complexity inherent to common law jurisprudence, but now they have to teach themselves psychoanalysis as well.

Not only does it take a lot of effort to learn psychoanalysis, it is even more difficult to learn the analytic doctrine of Jacques Lacan.

That then is what is really at stake in a book like this.

It is not possible for David Caudill to both teach psychoanalysis and then apply psychoanalysis all within the space of this book.

So what should he do?

David Caudill decides to identify the most important topics in psychoanalysis from the legal point of view.

The first part of the book is an attempt to delineate these topics. The second part is a collection of his attempts to apply psychoanalysis to the law.

Caudill’s approach is representative; it is not meant to be exhaustive.

He is not saying that this is all there is to it. Likewise, he is not implying that there is no other way of applying psychoanalysis to the law.

What Caudill is doing amounts to saying that he did what he could - given the fact that this is a new area of expertise; now it is for those who he has managed to interest in these areas to take up the baton.

This review is an attempt on my part to say that it is worth taking up the baton because what legal theorists like David Caudill have to teach us is worthy of dissemination to as wide an audience of scholars as possible.

There are two parts to this book.

The first part is on theory; the second part is on practice. There are four essays in the first part and five essays in the second part.

The last essay in the second part is designed as ‘concluding remarks’ on the potential of this area for those who will want to read further or actually get involved as teachers and researchers in psychoanalytic jurisprudence.

What are the topics covered in Part I?

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The main concerns expressed in this part focus on areas like the scope, methodology, concepts, ideas, schemas, theories, and techniques of analysis.

This is then followed by a survey of the existing literature on the legal subject.

This essay is a response to the work of Pierre Schlag who did pioneering work on the problem of subjectivity in the law

What are the topics covered in Part II?

The main applications of analysis to legal theory in this book include making sense of phenomena like social hysteria, witch-hunts, the paternal metaphor, the legal process, the legal system, ethics, religion, and politics.

David Caudill also engages with aspects of legal scholarship like law and literature. This is not the same as law and psychoanalysis but it has important intersections.

So, for instance, Caudill is quite interested in representations of the law in the literary texts of Charles Dickens in Victorian England.

While literary critics are already aware of these themes, Caudill wants to de-familiarize our traditional responses by subjecting these legal themes to an analytic interpretation.

Dickens is of interest to literary critics not only because of his preoccupation with different aspects of the law that differentiate it from justice in novels like Bleak House, but also because of his obsession with the English version of the bildungsroman.

Most of the Dickensian characters that we know best like David Copperfield, Oliver Twist, and Nicholas Nickleby are always thinking through the problems of childhood, adolescence, and young manhood.

They are characters trying to find their way in the world; they realize that knowledge of human nature and the legal system is necessary to make it.

These are the themes of individual development that psychoanalysis has made its own. Legal scholarship in areas like law and literature attempts to understand how the problem of textual construction is handled in these areas.

Likewise, the psychoanalysis of law tries to fill out the gaps in literary narratives and legal narratives by invoking what it knows about the construction of the agent, the subject, and the individual.

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Since this is an introductory book to psychoanalysis and the law, David Caudill’s approach is to ensure that he weaves in the existing scholarship in these areas within his essays so that readers who want to take up the baton and do similar readings like this can do so.

And, finally, it is important to remember that the work of Jacques Lacan is not reducible to a thematic approach. The themes and topics that Caudill invokes are related to the need to be economic in his approach in an introductory book.

So, what is stake for David Caudill is not any particular topic or theme in the history of psychoanalysis, but rather a ‘method of inquiry’ that is associated with psychoanalysis.

It is this method that makes it possible to ask what the significance is of a gap that emerges within the case law of any given area though Caudill’s focus has been on the theory of contracts.

It is again this method that makes it possible to delineate the symptomatic resonance of this gap – where the unconscious emerges – within the tradition of legal scholarship in the common law.

In other words, it is possible to analyse topics and themes of consequence in psychoanalysis without paying heed to the method. That, in Caudill’s understanding, is the wrong way to apply psychoanalysis to literary and legal texts.

In this, David Caudill’s approach is in consonance with those who appreciate the differences between the constative and performative dimensions of legal theory and psychoanalysis.

SHIVA KUMAR SRINIVASAN