His Master's Voice: H.L.A. Hart and Lacanian Discourse Theory

Abstract

The jurisprudence of H.L.A. Hart might seem completely antithetical to the psychoanalytic theory of Jacques Lacan. Hart works within the analytic school that dominates Anglo-American philosophy departments. Lacan works within an alternate tradition variously called speculative philosophy or critical theory more likely in this country to be banished to comparative literature departments.

In this Article, Prof. Schroeder shows why this apparent conflict between Hart and Lacan is an over-simplification. Hart's account of positive law has surprising similarities to Lacan's account of law as the "discourse of the Master." Accordingly, anyone seeking to develop a psychoanalytically sophisticated critical theory of law should return to Hart. Moreover, legal positivists should not lightly dismiss psychoanalysis. From a speculative position, Hart's concept of law is too narrow. He describes only one aspect of legal experience: obedience to the law, and perhaps, only obedience by those "officials" who apply and enforce the law. He omits from the concept of law most of what legal actors actually do - the creation of law by legislators, the analysis of law by policy oriented scholars, and the critique of law by those subjected to its power. Perhaps, most importantly, Hart's concept of law does not include the practice of law by lawyers.

Lacan, in contrast, thought that law could not be reduced to the single master's discourse but includes at least three other "discourses" which I argue correspond to legislation, some aspects of judging, legal scholarship, legal counseling, and the representation of clients. Lacan's analysis, therefore, supplements and complements Hart's.

Keywords: Hart, psychoanalysis, jurisprudence