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“Those writings which endeavor to apply to the social sciences the viewpoints of psychoanalysis inevitably offer the reader too little of both. Such writings are, therefore, but suggestions and proposals inviting consideration by the expert.” With this apology Freud begins one of the chapters of his “Totem and Taboo”.(1) How much more is this apology due from a writer who attempts to apply psycho-analysis to legal history without claiming expertness in either! To induce those better equipped to investigate a novel subject is the primary purpose of this paper.
Since Freud's “Totem and Taboo” there have been many attempts to apply to criminal law psychoanalytical findings as to the rationale or “irrationale” of societal and individual behavior.(2) We know now that neither deterrence nor reform, the alleged educational purposes of punishment, are effectively advanced by our present criminal law and its administration; and we have learned to apply this knowledge in our maturing relations to our children. But it will be a long time before society will forego the infantile satisfaction of inflicting retributive pain on “its”(3) criminals. The only area of criminal law in which society is beginning seriously to apply psychoanalytical understanding of anti-social