Events

30 June 2010

Right does not exist

Lecture

Centre for Lacanian Analysis seminar by Jeanne Schroder, Professor of Law, Benjamin N. Cardozo School of Law, New York.

Jurists disagree on the nature of law, no doubt because of its different and seemingly contradictory aspects. Jacques Lacan’s theory of discourse, however, provides a means to explain the interrelations between these different dimensions. My project is different from Lacan’s. I am a lawyer trying to develop a feminist jurisprudence. To state the obvious, Lacan was a clinical psychoanalyst, not a jurist. Although he occasionally refers to law in the abstract, he evinces no particular knowledge of legal systems or jurisprudence. However, following Slavoj Žižek and others, I believe there is implicit political, ethical, and I would add, legal content in his work.

Lacan famously presented an ethics of psychoanalysis in his Seventh Seminar of the same name. While I am highly influenced by that work, an ethics of psychoanalysis cannot be an ethics of law which, in my formulation, must be an ethics of hysteria. Moreover, I am equally influenced by other theorists in the speculative tradition, particularly Immanuel Kant and G.W. F. Hegel. Accordingly, my work is an application of certain aspects of Lacanian theory in ways that Lacan would not have anticipated. However, if Lacanian theory purports to explain the relationship between the subject and the symbolic order of intersubjective relationships, then, by its own terms, it should be extendible to the relationship of the legal subject and law. Lacan’s discourse theory appears first in his Seventeenth Seminar, L’envers de la psychanalyse delivered in the 1969-70 academic year (it was, incidentally, delivered in a law school.) Russell Griggs translates l’envers, as 'other side.' It has, however, the additional connotations of reverse, inverse, or lining or facing (of a jacket). Perhaps the English title should be 'Psychoanalysis Inside-Out.' It has been suggested that, from a Lacanian perspective, law is located within the two masculine discourses of power - the discourses of the master and the university. I disagree. Law cannot be so limited. Being part of the symbolic order it contains all four discourses. And reflects the feminine as well as the masculine, position.
Consequently, jurists and lawyers engage in all four discourses.

In this paper I concentrate, on the hysteric’s discourse - the only discourse in which the barred subject subjected to the law speaks in her own voice. As such, it is the discourse that the attorney should adopt as an ethical matter when representing - giving voice to - a client. Lacan calls Hegel the 'most sublime hysteric.' And so I also consider Hegel’s conception of ‘right’ and ask one of the fundamental questions of jurisprudence: what is right and how does it relate to positive law? I argue that right, like Woman for Lacan and God for Hegel, does not exist. It is not a being, but a becoming. Right cannot be captured in description but only appears in the righting of wrong. It can never be established as a matter of positive law, but only through its challenge.

Professor Schroeder is a Professor of Law at Benjamin N. Cardozo School of Law, where she has been teaching since 1989. Prior to moving into teaching, she practiced law in corporate finance for 12 years as an associate at Cravath, Swaine & Moore and then as a partner at Milgrim Thomajan & Lee. Her scholarly interests range from commercial law doctrine to feminist jurisprudential theory. Her current work is on recent amendments to Article 8 of the Uniform Commercial Code and in developing a feminist theory of law and economics incorporating the political philosophy of G.W. F. Hegel and the psychoanalytic theories of Jacques Lacan. Her book on this subject, The Vestal and the Fasces: Hegel, Lacan, Property, and the Feminine was published in 1998, and her second, The Triumph of Venus: The Erotics of the Market, was published in 2004.

Law