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Law and the UnconsciousA Psychoanalytic Perspective$
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Anne C. Dailey

Print publication date: 2017

Print ISBN-13: 9780300188837

Published to Yale Scholarship Online: May 2018

DOI: 10.12987/yale/9780300188837.001.0001

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Why Psychoanalysis Matters to Law

Why Psychoanalysis Matters to Law

(p.17) One Why Psychoanalysis Matters to Law
Law and the Unconscious

Anne C. Dailey

Yale University Press

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

Keywords:   Psychoanalysis, Psychology, Unconscious, Law, Freud, Rationality, Legal theory, Adjudication, Domestic violence, Narrative

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