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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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Psychoanalysis and Free Will

Psychoanalysis and Free Will

(p.74) Three Psychoanalysis and Free Will
Law and the Unconscious

Anne C. Dailey

Yale University Press

This chapter addresses the widespread misconception that psychoanalytic ideas about the unconscious are incompatible with the law’s presumption of free will. Free will is a foundational concept in the law. We take it as a necessary postulate of our legal system that most individuals make conscious decisions about how to behave and, consequently, can and should be held accountable for their actions. Yet psychoanalytic ideas about the influence of the unconscious on waking life would seem to render successful collaboration between law and psychoanalysis impossible, for how can a person exercise free will while subject to the unavoidable and unrelenting control of the unconscious? But as this chapter shows, this conclusion is simply wrong. Using a case involving a woman prosecuted for drug trafficking despite having been ignorant of the drugs in her car, this chapter explains why the conflict thesis does not accurately reflect psychoanalytic ideas about the unconscious. The thesis rests upon three misguided assumptions: that the psychoanalytic unconscious is deterministic, irrational, and opaque to understanding. Properly understood, a psychoanalytic perspective on the unconscious leads us toward a more realistic, less harshly punitive, and more just criminal jurisprudence.

Keywords:   Psychoanalysis, Psychology, Unconscious, Law, Freud, Free will, Determinism, Irrationality, Agency, Legal theory

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