The Traumatic Dimension in Law

Abstract

This paper applies Jacques Lacan's theory of retrospective 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.