Making Up the Judge's Mind – A Psychoanalytic Perspective on Legal Reasoning and the Role of the Judge

Abstract

An essay about legal reasoning and the judicial role from the perspective of psychoanalytic theory. Its thesis is that recourse to explanatory concepts outside of the discipline of the law – here, psychoanalytic theory – is necessary in order to understand how judges decide cases, and why we trust them. The argument has four parts. First, I suggest that legal training and practice requires the construction of a distinct psychical apparatus, with the ordinary, personal Über Ich/Ich, joined by a legal Über Ich/Ich. Then I look to the concept of phantasy to explain how, while remaining true to their oath to decide matters only according to the law, a judge’s personal experiences do influence their judgments. The third section describes the roles splitting and repression play in enabling a judge to do her job; that section ends with a note about the limits of the defences. The final substantive part rises above the world of the individual judge to consider the necessity, and implications of, part-object relating in the litigation process.

Keywords: Judges, judiciary, pyschoanalysis, Freud, Klein, splitting, repression, phantasy, democracy, rule of law