53 Pages Posted: 13 Mar 2000
Date Written: March 2000
This paper applies Jacques Lacan's theory of retrospective cause to the jurisprudence of H.L.A. Hart and his followers. The thesis is that "effect" (judicial decision) precedes "cause" (law). The proper tense for legal discourse is, therefore, future anterior. The following points follow from this: (1) Positivism asserts that law is not necessarily connected to morality, but this is a priori wrong. Law wishes to be separate from morality, but it necessarily fails. (2) The theory vindicates Dworkin's notorious "right answers" theory, but makes the additional point that there is only one answer: you are guilty; you failed to conform to the law. In short, knowledge of the law is the very definition of the superego. (3) Positive law is the fantasy of the subject that cannot bear the prodigal weight of pure morality. The failure of this fantasy, however, is psychosis itself. (4) Conservative jurisprudence ("judges should follow and not make the law") is fundamentally necessary to any jurisprudence. Yet the "limit" of conservative jurisprudence (in calculus terms) is the Freudian superego. (5) Pragmatism is the vainglorious conceit of self-sovereignty, but it is logically an impossible position.
Suggested Citation: Suggested Citation
Carlson, David Gray, The Traumatic Dimension in Law (March 2000). Cardozo Public Law & Legal Theory Working Paper No. 003. Available at SSRN: https://ssrn.com/abstract=214830 or http://dx.doi.org/10.2139/ssrn.214830