Why would a law professor seek psychoanalytic training? Not, I assure you, for a deep understanding of lawyer jokes, which generally require very little in the way of interpretation. Although it may sound counterintuitive, and despite some obvious differences, lawyers and psychoanalysts are very similar.
In many regards, their training is strikingly alike. Both the lawyer and the psychoanalyst are committed to listening. Certainly they listen in different ways, but each listens. Likewise, each is mindful that communications cannot always be taken at face value, and each explores the latent meanings of a communication to help the client understand what he really wants. Both, within broad limits, support a client's goals, and both sometimes find themselves dispelling, or tempering, unrealistic goals a client has set. Both the lawyer and the psychoanalyst see people at times of deep distress.
On the more theoretical level, the realm in which I work, both the law and psychoanalysis search for a theory of person. The law does so because it must provide the mechanisms by which society functions. Criminal law, for example, is designed to maintain a minimum level of safety and order; it does so by deterring individuals from certain actions, by sanctioning individuals who violate accepted norms of behavior, and by keeping individuals who threaten society away from law-abiding citizens. Civil law allows for commerce by making provisions for individuals to enter into contracts with one another and by providing redress when one person feels aggrieved. Because the law — both civil and criminal — is deeply concerned with human motivation, with how human relations go well and how they go badly, and with what keeps humans from achieving their manifest goals, the law needs a theory of the person. Psychoanalysis, to my mind, offers the richest and most profound theory we have.
Psychoanalysis has made at least three important contributions to the law, all of which involve a theory of person and of personal motivation. First is Freud's central contribution that people think, feel, say, and do things for reasons that they are not entirely — or not at all — aware of. The concept of the unconscious and of unconscious motivation has had a profound effect upon the law. Consider that people can feel guilty for a crime without actually committing a criminal act; thus, flight from a crime does not necessarily imply that one has committed the crime. As banal as this idea may seem to those with psychoanalytic training, it was not at all clear at the turn of the century when Freud's ideas were not widely known. Consider as well that certain defenses in criminal law are based upon the concept of a compromised criminal intent. Freud's notion that mind consists of complex and dynamic forces added richness and texture to the law's view of responsibility.
A second central contribution psychoanalysis has made to the law is found in the work of Jay Katz. Katz has shown the powerful role that transference plays in doctor-patient relationships. By applying that understanding to the legal doctrine of informed consent, Katz has emphasized the value of patient autonomy and demonstrated how the law can enhance the exercise of autonomy when the mind is understood as more than the sum of purely conscious choices.
A third contribution of psychoanalysis to the law comes from Joseph Goldstein, Anna Freud, Albert Solnit, and Sonja Goldstein. This quartet brought to the law the concept of the child's relationship with a primary caregiver. Recognizing the importance of this relationship, especially of how the relationship is experienced by the child, profoundly affected the law's view of custody arrangements.
People have an unconscious. People form transferences to their caregivers. People have a developmental need to form a primary relationship with a stable caregiver. These insights changed the law's fundamental assumptions about human nature.
In retrospect, psychoanalytic training seems a natural place for my interest in legal theory to have brought me. The path was not always so clear. As an undergraduate at Vanderbilt, and a graduate student at Oxford, I studied philosophy of mind, a subject for which I felt a deep passion. Over time, however, I found philosophy too abstract and arid for my tastes, and decided to explore other academic pursuits. I looked to the law as an area where I might bring my training in philosophy to bear on more pressing questions of the day. I decided to leave Oxford and return to the States. I had learned that Yale was particularly accommodating to students with interdisciplinary interests, and I began my studies in New Haven in the early 1980s.
At law school I had the privilege to study with a number of people whose work combined psychoanalysis and law — Joseph Goldstein, Jay Katz, Albert Solnit. During my second year, I was able to arrange a semester at the Yale Child Study Center in order to study with Donald Cohen and Melvin Lewis. During the summers, I spent many hours representing psychiatric patients and children through the law school's legal clinic, which worked closely with the department of psychiatry and the Child Study Center. In my third year of law school, I took George Mahl's year-long Freud seminar.
When I finished my studies, it was clear that I wanted to teach about law and psychoanalysis. I have been enormously fortunate to have spent the last ten years doing just that on the law faculty at the University of Southern California. At USC, I have taught mostly mental health law, although occasionally my responsibilities include a more “bread and butter” course such as criminal law.
Tenure afforded me more time to follow my academic and scholarly interests. The next step seemed obvious: psychoanalytic training. I applied to the Los Angeles Psychoanalytic Society and Institute and began my studies in the fall of 1995. The coursework, supervision, and collegial atmosphere have been extremely enriching, and the spirit of inquiry has been invaluable in contributing to my scholarly research.
Elyn R. Saks, M. Litt, J.D., is Orrin B. Evans Professor of Law, Psychiatry, and the Behavioral Sciences at the University of Southern California Law School. She is also a fourth-year research clinical associate at the Los Angeles Psychoanalytic Society and Institute.
Time outside teaching and analytic training has been spent pursuing several writing projects. In Jekyll on Trial: Multiple Personality Disorder and Criminal Law, I explore the relationship between multiple personality disorder and criminal responsibility. Jekyll examines the role of vertical splitting in assessing whether the criminal law should hold an individual accountable for his crimes, and in future works I intend to ask what light psychoanalytic theory can shed on our understanding of notions of the self and by extension alter personalities.
While Jekyll addressed competence to commit a crime, competence to stand trial, and competence to be sentenced or even executed, a project I am just now embarking upon with Gerald Aronson and others asks how we determine when a person is competent to consent to treatment or research. The project will begin with a psychoanalytic understanding of how irrationality pervades our psyche, and it will go on to ask how much irrationality is too much. Thus far, we have received support for our research from the American Psychoanalytic Association, the International Psychoanalytical Association, and the Robert J. Stoller Foundation.
I have written one book and am at work on a second for Yale University Press. The first book, Interpreting Interpretation: The Limits of Hermeneutic Psychoanalysis, argues that there are not one but five different versions of hermeneutic psychoanalysis and questions the ethics of giving interpretations that cannot possibly be true (“placebo interpretations”). The second book examines how law, psychoanalysis, and ethics come together in the treatment of seriously disturbed psychiatric patients. A central aspect of this book will be a psychoanalytic exploration of the meanings behind our conflicting commitments to autonomy and paternalism in such areas as civil commitment and forced medication.
Other projects tie more directly into my clinical training. I am interested, for example, in the ethical dimensions of the analyst-analysand relationship. Can a patient truly consent to the regression induced in the analytic situation? While my clinical work will no doubt provide much grist for the writing mill, the experience of working with my patients and supervisors has proved enormously rewarding, and I plan to treat patients pro bono, as a way of returning in some portion all that psychoanalysis has given me.
I recently had the honor and privilege of being named a chaired professor of law. In my acceptance speech, I wondered whether perhaps a couch, rather than a chair, would be most fitting for the occasion. On a more serious note I commented,
A couch is the symbol of psychoanalysis. Psychoanalysis and law are connected in many and deep ways. Both need a theory of person in all the richness and complexity that a person is. Both are interested in the past and in the future. The law is interested in the past in its heeding of customs, rules, findings, and norms — a heeding premised on respect for the rule of law. The law is also interested in making us a better future. Psychoanalysis is interested in the past because it takes to heart the idea that the child is the parent of the woman or man. Who we are is the result of who we have been. Psychoanalysis is interested in the future because its purpose is to help people live better through understanding the past: Knowing oneself will set that self free.
The law and psychoanalysis share much. I hope and expect that my psychoanalytic training will help me build a better bridge between my two chosen disciplines.