Anti-Anxiety Law: Winnicott and the Legal Fiction of Paternity

Winnicott's good-enough mother does not, on the face of it, seem to have anything to do with the process of fact-finding in law. Yet there is an uncanny similarity between Winnicott's theory of the good-enough mother and the legal understanding of factual knowledge, both of which are premised on the unattainability of perfection and the need to construct simulacra of truth on the basis of merely probabalistic evidence. In Winnicott, this theory of knowledge is presented in terms of the process whereby the (good-enough) mother enables the infant to acquire the illusion of contact with a reality outside of himself on the basis of a repeated convergence of subjective need (i.e., hunger) and objective provision (i.e., milk provided at the right moment). In law, a surprisingly similar theory of knowledge as illusion/construction is presented in terms of standards of proof that fall substantially short of certainty and in the concept of the legal fiction. The way that legal fictions work to construct beliefs in reality and to shape reality itself is explored through the example of the fiction of legitimacy, according to which the husband is the father of a child born to a married woman, as a matter of law, regardless of biological facts to the contrary. A close analysis of the legal fiction of paternity reveals the unexpected similarities between Winnicott's theory of the good-enough mother and the legal theory of adequate, albeit less than perfect, factual knowledge. The analysis shows that one of the key functions of legal fictions is the suppression of the anxiety that attends uncertainty. In this respect, law serves as a matrix of belief in much the same way as Winnicott's good-enough mother does.