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LEGAL THEORY
Peter Goodrich (1997). ‘Maladies of the Legal Soul: Psychoanalysis and
Interpretation in Law,’ Washington and Lee Review, Vol. 54, No. 3, pp. 1035-1074.
Peter Goodrich is a law professor at Cardozo Law School at Yeshiva University in
New York. This paper was first presented in a symposium on ‘Law and
Psychoanalysis’ at Washington and Lee School of Law on March 28, 1997 when Peter
Goodrich was affiliated to Birbeck College in the University of London.
It was subsequently published as a special issue of the Washington and Lee Law
Review with a focus on ‘Lacan and the Subject of Law.’
This symposium was organized to commemorate the publication of a book by David
S. Caudill titled Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal
Theory (Humanities Press, NJ: 1997). I have already published a review of David
Caudill’s book in LinkedIn for readers who might be interested in the
psychoanalysis of law.
This essay will attempt to highlight the main points raised by Peter Goodrich in this
symposium along with a few remarks of mine on what is at stake in the
psychoanalysis of law.
The other contributors to this symposium included Jeanne Lorraine Schroeder,
David S. Caudill, Ellie Ragland, and Richard E. Redding. All these legal scholars
have done pioneering work in psychoanalytic jurisprudence.
I use the term ‘psychoanalytic jurisprudence’ in this essay to encompass both works
done in the psychoanalysis of law and in the attempts made in mainline
psychoanalysis to think through the symbolic concept of the Law.
It is important to remember that both Sigmund Freud and Jacques Lacan were
interested in law and the applications of psychoanalysis to the law. Peter Goodrich

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points out at the beginning of this essay that Sigmund Freud even contemplated a
career in the law before he trained in medicine.
Both Freud and Lacan were interested in the concept of law as that which is related
to the ‘Name-of-the-Father’ as the source of symbolic authority within the space of
the Oedipus complex.
So, for instance, in his work on Totem and Taboo, Freud traced the origins of the
hereditary forms of guilt to the murder of the primeval father by his sons and to the
fact that they subsequently instituted taboos to alleviate themselves of this guilt. This
study in psychoanalytic anthropology straddles the concerns of both philosophical
anthropology and the psychoanalysis of law in Freudian theory.
Likewise, we find that Jacques Lacan is also preoccupied with the symbolic notion of
the father as the structural source of the law in the symbolic order. Lacan’s
equivalent of philosophical anthropology was the invocation of the structural
anthropology of Claude Lévi-Strauss and the importance of the ‘incest taboo’ in
regulating the structure of the family.
Lacan was also preoccupied with how the subject relates to the Symbolic Other in
the locus of the law. We find that the question which Lacan was keen to answer
relates mainly to the paternal function. The Lacanian question is not ‘Who is the
father?’ The Lacanian question, simply put, is this: ‘What is a father?’
That is because what is at stake in psychoanalysis is the paternal function and the
failures of the paternal function when the patient complains of a neurosis to his
analyst.
All forms of psychopathology in the psychoanalytic approaches of Sigmund Freud
and Jacques Lacan relate to how the subject responds, or fails to respond, to the Law
and the ‘Name-of-the-Father’ in the locus of the Symbolic Other. That is the case for
both the neuroses and the psychoses.
That is why, as Peter Goodrich points out, any attempt to apply psychoanalysis to
the law must begin by understanding the subject’s encounter with the ’Law-of-the
Father’ in constituting the structure of the Oedipus complex.
The subject’s entire attitude to the Law then is determined by whether he was able to
successfully ‘resolve’ the Oedipus complex and move on to assume the role of an
adult; and later, as a parent. Or, whether he is still looking back at his childhood and
finding fault with what is missing in his paternal identification.
Failures in paternal identification could lead to adolescent rebellion; juvenile
delinquencies; and sometimes even an inability to start a family; or assume a

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paternal position later on in life. The point here is not that everybody will get a
father who will fulfil their expectations. It is more a case of understanding and being
sympathetic to the gap between the ‘real’ father and the ‘symbolic’ father.
In situations where the subject has not been adequately ‘interpellated’ in the oedipal
matrix, this difference is conflated in the subject’s psyche making it difficult for the
subject to assume the locus of the father in his turn. This difficulty will also make it
difficult to relate to the Law as such. That then is the first point of entry into the
psychoanalysis of law.
The subject’s attitude to the law – the whole question of whether the subject is law-
abiding by temperament (irrespective of whether or not he liked his real father) puts
the onus of the symbolic mandate on the symbolic father. So the point is not that
those who dislike their real father will not shape up into fine young men.
The whole point about being mature is to come to terms with the ‘lack’ in the
paternal Other and learn to invoke the symbolic father in lieu of the real father. What the
oedipal matrix really represents then is an opportunity for the subject to work-
through the gap between the real father and the symbolic father.
It also represents the conflict between ‘Desire and the Law.’ In this conflict the
mother is usually in the locus of Desire and the father in the locus of the Law.
Assuming a paternal identification in the symbolic then is about understanding that
the incest taboo is applicable to all subjects without exception. The neurotic subject
however emerges out of the Oedipus complex without properly resolving how he
relates to Desire and the Law; he is haunted by any number of fantasies about being
the exception.
But, as Peter Goodrich puts it, ‘only through knowing his place – his destiny – can
the subject avoid the destiny of Oedipus.’ What Goodrich means by ‘place’ is place
in the oedipal matrix that is mediated by the symbolic identification with the father.
The main question then for Goodrich is this. This question will serve as the second
point of entry into the psychoanalysis of law since it is not possible to study the law
or pursue a career in the law without having textual symptoms.
How is paternal authority displaced onto the structure of the law, the legal text, and the
legal system?
Any serious attempt to answer this question will clarify the forms of ‘resistance’ that
still exist to the psychoanalysis of law. The main source of resistance is the false
assumption that psychoanalysis relates only to the inner-most recesses of the human
mind while the law relates to a form of social ordering that is completely outside.

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That is why lawyers are taught not to feel their emotions or express their affects. If
they learn to do so, it will not be possible for them to argue both sides of the case in
the ‘value neutral way’ that is prized in law schools.
The main wager, for instance, in the Lacanian invocation of the Law-of-the-Father;
forms of paternal identification; the resolution of the Oedipus complex; the symbolic
interpretation of Oedipus in the context of structural (rather than comparative)
anthropology; and the analytic differentiation between the real and symbolic father
is to deconstruct precisely this opposition between ‘what is inside’ and ‘what is
outside.’
That is why Jacques Lacan and Jacques-Alain Miller invoke models from topology to
demonstrate that what is inside and what is outside should not be conceived of as a
binary opposition, but as a continuous unfolding in the psyche. The term that they
invoke for this model of the unconscious is extimité.
Furthermore, in order to overcome this resistance, psychoanalytic jurisprudence
must demonstrate – as Peter Goodrich’s texts do – that scholars in this area must
relate both to the symbolic notion of the Law and to particular instances of
adjudication as represented through analytically-informed interpretations of cases in
the common law.
They should be able to point to actual instances – as Peter Goodrich is able to - where
the gaps in the law become problematic from a psychoanalytic point of view. Only then will
psychoanalytic jurisprudence go from merely invoking the Law of the Symbolic to
identifying the gaps that are endemic in the common law or in a legal system.
What makes Peter Goodrich’s forays in the psychoanalysis of the law interesting is
that he was amongst the first to realize the need to apply or invoke psychoanalytic
theory in the context of the common law and determine the form of rhetorical tropes that
correspond to these gaps. Goodrich has even gone to the extent of celebrating the
rhetorical analysis of law as a precursor to the psychoanalysis of law.
Goodrich’s preoccupation with the gaps in the common law and the function of the
‘law’s unconscious’ differentiates his work from those who only invoke the Law as a

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problem in structural or philosophical anthropology. In other words, what Goodrich
has in mind is law as lawyers understand the law; not just law as anthropologists and
philosophers understand the law. That then is the third point of entry into
psychoanalytic jurisprudence.
In order to do this kind of analysis, Goodrich focuses on the function of affects, the
image, the phantasm, and the ‘Eros within’ as the objects that mediate our
relationship to the law in any given context. Goodrich’s main point is that traditional
analysis of common law cases in a law school do not find it necessary to recognize
either the rhetorical construction of these cases or come to terms with their analytic
implications.
Goodrich is mainly influenced in his approach to the psychoanalysis of law by the
work of the French lawyer-turned-psychoanalyst Pierre Legendre and Jacques
Lacan. While there is no lack of articles on what the ‘Law’ means in Lacanian
psychoanalysis, there have been only a few attempts to apply Lacanian insights in
the common law. That is why anybody who is serious about psychoanalytic
jurisprudence should read Peter Goodrich.
The importance of this observation relates to the fact that the French legal system is
not related to the common law at all. The French legal system is basically embodied
in statutes like the Code Napoleon. French law does not even recognize the existence
of precedents in the strong sense of the term.
So what is really interesting in Peter Goodrich’s work then is the attempt to apply a
model of the legal subject that he gets out of Lacan and Legendre in the context of
the ‘English unconscious.’ This essay for instance involves an analysis of a few cases
from the English common law where Goodrich does precisely this.
It is therefore worth asking why Goodrich prefers to use French psychoanalysis in
interpreting the gaps in the common law tradition of England rather than invoke the
work of English psychoanalysts. The answer might well be that English analysts

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make too strong a distinction between ‘what is inside’ and ‘what is outside’ in their
models of the subject.
Those who find Peter Goodrich’s interpretations of the psychoanalysis of the
common law interesting should then read his book, Oedipus Lex: Psychoanalysis,
History, and Law (Berkeley and Los Angeles: 1995) if they want to engage more fully
with the psychoanalysis of law and relate it to the history of law.
SHIVA KUMAR SRINIVASAN