Jerome Frank and American psychoanalytic jurisprudence

International Journal of Law and Psychiatry, Vol. 2. pp. 29-54, 1979 0160.2527/79/010029-26$02.00/O

Printed an the U.S.A. All rights reserved. Copyright 0 1979 Pergamon Press Ltd

Jerome Frank and American

Psychoanalytic Jurisprudence

Anthony Chase*

They are not altogether unlike the movie director who, Stefansson tells us, insisted that his Eskimo actors, in Nanook of the North, must catch their fish by spearing them through the ice - a method unknown to those Eskimos, but correct in fiction and the movies.

- Jerome Frank

The discussion which follows constitutes an outline for research into the character of a problematic discipline: American psychoanalytic jurisprudence. That this jurisprudence remains problematic inevitably results from the inability of American legal scholarship to advance the discipline beyond the structure implicit in the initial deployment of its representative metaphor’ by Jerome Frank2 in 1930 in Law and the Modern Mind.3 The indeterminant status4 of psychoanalytic jurisprudence renders essential our retrieval of the critical perspective introduced by Jerome Frank into the discourse of American jurisprudence.5

That the following discussion achieves little beyond the quality of an outline is explained by the real difficulty of accomplishing an actual flash of recognition between the apparently opposite poles of psychic and social experience.6 This apparent opposition, the gulf separating divergent categories of perception, is maintained by the present structure of American academic discourse and reveals a partial image of the methodological closure which tends to char- acterize liberal thought.’ It is from within this intellectual situation that the

*B.A., Wisconsin; J. D., Wayne State; LL.M., Harvard.

‘See infru, notes 99-100 and accompanying text. Cf A. Wilden System and Structure: Essays in Com- munication and Exchange 304-305 (1972).

‘On Frank’s life and work, see W. Volkomer, The Passionate Liberal: The Political and Legal Ideas of

Jerome Frank (1970); J. Paul, The Legal Realism of Jerome N. Frank (1959); Glennon, Portrait of the Judge as an Activist: Jerome Frank and the Supreme Court, 61 Cornell L. Rev. 950 (1976); Ackerman, LL~W and the Modern Mind by Jerome Frank, 103 Daedalus 119 (1974).

‘J. Frank, Law and the Modern Mind (1930). ‘The only major work in the area of psychoanalytic jurisprudence since the publication of Frank’s

Law and the Modern Mind is Albert A. Ehrenzweig’s Psychoanalytic Jurisprudence (1971). I hope to deal with Ehrenzweig’s writing in detail in the future.

‘See infra, notes 90-166 and accompanying text.

6See, e.g., F. Jameson, Marxism and Form (1971); The Psychology of Society (R. Sennett, ed. 1977);

G. Bateson, Steps Toward an Ecology of Mind (1972); Breaking Out of the Double Bind, (Gregory

Bateson interviewed by Daniel Goleman) 12 Psychology Today 43-51 (No. 3, August, 1978).

‘See R. Unger, Knowledge and Politics (1975); A. Wilden, supra note 1; D. Howard and K. Klare, The Unknown Dimension (1972).

29

30 ANTHONY CHASE

present analysis seeks to secure at least a theoretical line for research.

Richard Danzig locates the underdevelopment

foothold as a coherent out-

of American legal theory within the anti-intellectual tradition of American case method pedagogy and concludes that the paucity of discursive (as opposed to case) books produced by American law school professors is symptomatic.’ American legal scholarship, in Danzig’s view, is characterized by a “shortage of intellectually ambi- tious work in the law; the scarcity of overviews, of imaginative writing, of speculation and creativity cleanly presented.“’

David Trubek and Marc Galanter perceive the same theoretical deficiency in American legal scholarship and consider it to some extent the product of legal professionalism: “These tendencies are reinforced by the practical orientation of the profession. As practical men we are in the ‘doing something about it’ business; the discovery of the gap between norm and practice is taken as a spur to action rather than a cause for reflection on the model.“10 Yet the anti-spec- ulative bias of American legal scholars represents more than a kind of shared professional tic. Indeed, critical reflection upon “the model” to which Trubek and Galanter refer (which they describe as “liberal legalism” or the “liberal legal paradigm ” i1 is suppressed within American legal thought with serious ) consequences for the intellectual horizon of an entire professional discourse. The critical potential of legal scholarship is inevitably diminished by maintenance of the invisibility of liberalism’s specificity as a form and way of organiz- ing human reality.

The point is argued elegantly and in great detail in two recent books by Roberto Mangabeira Unger: l2

‘Danzig, The Death of Contract and the Life of the Profession: Observations on the Intellectual State of LegalAcademia, 29 Stanford L.R. 1125, 1126-1127 (1977).

91d. at 1127. “Trubek and Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and

Development Studies in the United States, 1974 Wis. L.R. 1062, 1082.

“Zd. at 1071-72: “Stated in propositional form, the components of the paradigm include the following. First, society is made up of individuals, intermediate groups in which individuals voluntarily organize

themselves, and the state. The state is the primary locus of supra-individual control in society, and thus

state action involves coercion of individuals. But at the same time “the state” is seen as a process by

which individuals, principally through their membership in relatively permanent voluntary groups, formu-

late rules for for mutual self-governance. . Second, the state exercises its control over the individual through law ~ bodies of rules that are addressed universally to all individuals similarly situated. Third,

rules are consciously designed to achieve social purposes or effectuate basic social principles. These pur-

poses are those of the society as a whole, not of limited groups within it. Rules are made through a plural- istic process which enables all individuals to secure rules favorable to them, while at the same time insur- ing that rules respect the vital interests of all others. . . Fourth, when the rules made through this process

are applied, they are enforced equally for all citizens. Fifth, the legal order applies, interprets, and changes univeralistic rules. . Finally, the behavior of social actors tends to conform to the rules: offi-

cials are guided by the rules, not by personal, class, regional or other bases of decisionmaking; a large

number of the rules will be internalized by most of the population. .” (Emphasis added) See also Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development,

82 Yale L.J. l(1972); Galanter, The Future of Law and Social Science Research, 52 N.C.L Rev. 1061

(1974); Friedman, Legal Culture and Social Development, 4 Law & Soc’y Rev. 29 (1969); Friedman,

On Legal Development, 24 Rutgers L. Rev. 11 (1969); H. Kariel, The Decline of American Pluralism (1961); T. Lowi, The End of Liberalism 46-54, 281-291 (1969); C. B. MacPherson, Democratic Theory:

Essays in Retrieval (1973).

rZR. Unger, supra note 7, at 124.

JEROME FRANK AND AMERICAN PSYCHOANALYTIC JURISPRUDENCE 31

It is precisely when we break up the wholes of social life into in- finitesimal parts that we tend to lose sight of their historical character. For example, the market organization of economic life, at the level of social existence, may be correlated, at the level of reflection, with an acceptance of the individualist view of the relation of persons to groups. Because the economy is viewed as the product of countless separable though interdependent individual decisions, its laws appear necessary. They are not created by individuals; so they must not have been created at all. Similarly, when language is ana- lyzed into the innumerable speech acts that exemplify it, and its history is explained as the history of the reciprocal influence of these acts on one another, language takes on the appearance of something that was never made. . . . By disregarding the unity of social wholes and by forgetting that the main subjects of history are collective subjects, (these cases) present the given circumstances of social life as an inhuman necessity.

Therefore (utilizing Unger’ example): the market organization of economic life (at the level of social existence) cannot be correlated (at the level of reflection) with the acceptance of a spceific and contingent theory of value and dis- tribution (bourgeois individualism) if there is no level of critical reflection. It is precisely this level of critical reflection (i.e., autonomous intellectual discourse) which has been omitted from mainstream legal scholarship in the United States.13 Thus it is against this theoretical silence and in relation to the particular conceptual strategies by which it is perpetuated that we seek to revive Jerome Frank’s representative metaphor and offer an outline for research into an American psychoanalytic jurisprudence.

But what, exactly, do we mean by a psychoanalytic jurisprudence?

I. Psychoanalytic Jurisprudence

By “psychonanalysis” we mean the radical science of human psychic development founded (not without antecedents) l4 by the Viennese clinician, Sig- mund Freud, at the end of the nineteenth-century.15 “The specific achievement of Freud’s enlightenment, ” says Helmut Dahmer, “was to decipher widespread somatic illnesses without organic cause, which contemporary medicine consid-

“Cf: R. Unger, Law in Modern Society: Toward a Criticism of Social Theory (1976); MacPherson,

supru note 11 at 3-23, 39-76, 185-194; Kennedy, “Form and Substance in Private Law Adjudication”

89 Harvard L. R. 1685, 1762-1766 (1976); Baker, “The Ideology of the Economic Analysis of Law” 5 Phil. & Pub1 Aff. 3(1975); Heller, The Importance of Normative Decision-Making: The Limitations of Legal Economics as a Basis for a Liberal Jurisprudence - As Illustrated by the Regulation of Vacation Home Development, 1976, Wis. L.R. 385. Leff, Economic Analysis of Law: Some Realism About Nom- inalism, 60 Va. L.R. 451 (1974).

‘%ee H. Ellenberger, The Discovery of the Unconscious (1973); F. Alexander and S. Selesnick, The

History of Psychiatry (1966).

“See 0. Mannoni, Freud: The Theory of the Unconscious (1971); P. Roazen, Freud and His Followers

(1975).

32 ANTHONY CHASE

ered to be pretense or ‘imagination,’ i.e., neurotic disturbances of the hysterical type.“16

Freud and his most rigorous followers” proceeded to construct a dynamic theory of all mental life (especially including the language of the unconscious and the structure of infantile sexuality), developed dialectically in relation to the establishment of a therapeutic technique for treating nervous and mental disorders.18 As Louis Althusser observed in his well-known article on Jacques Lacan, Freudian psychoanalysis constituted a practice (the analytic cure), a technique (the method of the cure), which gave rise to a theory (with a new object: the unconscious). “This organic practical (1) technical (2) and theoretical (3) whole recalls the structure of every scientific discipline.“19

By “jurisprudence” we mean simply “ legal theory”, with law constituting the level of social existence (in Unger’s reference)20 and legal theory constituting the level of reflection. The notion of legal theory is not difficult at all: it is always located at a level once removed from its object (e.g., litigation, a statute, the practice of corporate law, a specific legal system, etc.), in short, thought thinking about itself. Albert Ehrenzweig suggests that “it matters little. . . whether we call such a study one of ‘legal philosophy’. . . or one of ‘jurisprudence’ because it examines what we know about law and justice; or one of ‘legal theory’ because it deals with legal aims and tools. In English-speaking countries, the term jurisprudence will perhaps most properly denote any thinking about ‘law’ that transcends ‘the law’ itself.“21 What is critical about the idea of legal theory is that it reflects upon the law from an autonomous and self-conscious position, that is, one of transcendence.

Legal theorists functioning within the liberal legal paradigm of American scholarship have difficulty recognizing the necessary dichotomy between law and legal theory. A careful textual analysis of the most important recent and synoptic writing on “psychoanalytic jurisprudence” (by Joseph Goldstein of Yale,22 Alan Stone of Harvard,23 and David Weisstub of York University24) reveals the extent to which the distinction between law and legal theory is pre- judiced by the subordination of critical thought to instrumental reasoning in current liberal scholarship. 2s The substitution of ideological for scientific

16Dahmer, Psychoanalysis as Social Theory 32 Telos 27 (1977). ‘%ee Roazen, supra note 15; R. Jacoby, Social Amnesia (1975); J. Lacan, The Language of the Self

(A. Wilden, trans. 1968); M. Mannoni, The Child, his “Illness,” and the Others (1970).

“See The Complete Psychological Works of Sigmund Freud (standard edition: J. Strachey, ed. and

trans. 1953-1966); E. Jones, The Life and Work of Sigmund Freud (1953-55); The Letters of Sigmund

Freud (E. Freud, ed., T. and J. Stern, trans. 1960). “Althusser, Freud and Lacan in L. Althusser, Lenin and Philosophy 189, 197 (197 1). Vupra notes 12-13 and accompanying text. ‘i Ehrenzweig, supra note 4, at 12.

“J. Goldstein, Psychoanalysis and Jurisprudence, 77 Yale L.J. 1053 (1968). ‘aA. Stone, Psychoanalysis and Jurisprudence: Revisited, 10 Amer. Crim. L.R. 357 (1972). 14D Weisstub The Theoretical Relationship between Law and Psychiatry, 1, Int’l J. of L. & Psych. 19

(1978): ’ %oldstein and Stone would probably locate themselves within what I have called “current liberal

scholarship.” Weisstub probably would not, and perhaps with good reason (see text accompanying notes

49-57). On the relationship between “critical thought” and “instrumental reasoning,” see M. Horkheimer, “Traditional and Critical Theory” Zeitschrift fiir Sozialforschung (Vol. 6, No. 2: 1937); M. Jay, The Dia- lectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1923-1950

(1973).


thought26 allows what might become psychoanalytic jurisprudence’s most interesting questions to go not only unanswered, but unasked.

In an article titled “Psychoanalysis and Jurisprudence”*’ Professor Goldstein opens his critique with a comparison of the purposes of psychoanalysis and law, not psychoanalysis and jurisprudence. 28 Indeed, it becomes readily apparent that what Goldstein is interested in is the possible “contribution psychoanalytic theory may make to law”29 and “the ways psychoanalysis may enrich the law, “30 instead of the relationship between psychoanalysis and the theory of law, with whatever implications for law and legal structures.

Revealingly, Goldstein pinpoints his conception of the relation between psychoanalysis and law: “Lawyers, for example, may ask of law in terms of its social control function what psychoanalysts might ask of man in terms of his adaptive capacities. . . .“31 Instrumentalism sufficiently dominates Goldstein’s relation to the object of his reflection (the “congruence”32 of psychoanalysis and jurisprudence) that he not only collapses legal theory into law (the lawyer’s question replaces that of the legal theorist and the purposes of the legal system replace those of critical reflection on law, i.e., jurisprudence), .but further, makes the purposes of psychoanalysis (which contains its own autonomous theory) homologous to those of the legal system as well. Law and psychoanal-

‘60n the relationship between “ideological” and “scientific” thought, see L. Althusser and E. Balibar,

Reading Capital (1970); L. Althusser, Politics and History: Montesquieu, Rousseau, Hegel, Marx (1972);

L. Althusser, For Marx (1969); G. Therborn, Science, Class, Society (1975). At the first remove, the

Frankfurt School and the structural Marxists (e.g., Althusser, Balibar, Poulantzas, Godelier, Therborn)

would seem to have little in common and the concept of “critical theory” is quite different from Althuss-

er’s notion of “scientific” thought. At another remove, however, there are some unexpected, limited but

interesting, parallels between the theoretical analysis advanced by each group, see Jay, The Concepr of Totality in LukacsandAdorno, 32 Telos 117, 130-131, 134-137 (1977). At a further remove, inevitably,

the genuinely critical theorist must abandon the Frankfurt School; see G. Therborn, The Frankfurt School in Western Marxism: A Critical Reader 83, 106 (1977): “This treatment of fascism reveals very

clearly the limits of historicism. An interpretation of fascism as the essence behind the phenomena, as the

‘truth of modern (capitalist) society, can never achieve the central aim of Marxist analysis, what Lenin

called the ‘concrete analysis of a concrete situation.’ However deep its roots lay in the structure of

monopoly capitalism, fascism was in fact a special type of monopoly capitalist State which arose in a spe-

cific historical conjuncture. In failing to recognize this, the Frankfurt School in effect took up the posi-

tions adopted by the Comintern in the so-called Third Period, after the Sixth Congress of 1928: fascism

was seen as an inevitable and culminating phase of capitalism. For all their virtuosity, the Frankfurt

School explanations of fascism were thus ultimately an example of theoretical impotence.”

Therborn’s unsympathetic distinction between capitalism in general and fascism in particular is precisely the kind of rigorously historical thought which animates Edward Palmer Thompson’s conclusion to

Whigs and Hunters: The Origin of the Black Act (197.5). Those who perceive Thompson’s analysis (aris-

ing from his not altogether irrelevant recollection of the last World War) as a form of liberal apologetics

(perceiving “Socialist politics merely as the extension, fulfillment and completion of the politics of Liber-

alism”) have obviously misread Thompson. Cf Balbus, On the Absense of Political Theory in Marx (pre-

sented at the 2nd National Conference on Critical Legal Studies, 1978) with Thompson, An Open Letter to Leszek Kolakowski 1973 Socialist Register l-100 (1974).

‘%pra note 22.

“Id. at 1053.

*91d. at 1055.

“Id. 3’Id. at 1054.

Td. at 1053.

34 ANTHONY CHASE

ysis come to share one function (social control, adaptation) within the authon- tative structure of liberal society.

“Liberal-bourgeois thought,” argues Mark Poster, “established the nature of man abstractly, by comprehending him outside and before society. . . .“33 In Poster’s view, liberal thought retards critical theory and guarantees the invisibility (historically and structurally) of liberal society. Goldstein states that lawX

If Goldstein thus establishes the nature of man abstractly by comprehending

is a part of man’s reality, a mechanism for molding and reinforcing controls over himself in relation to others, an instrument that assigns to man-made authority, the state, the power to decide why, under what circumstances, to what extent, and by what means man as a private person is to be restrained or encouraged in the making and im- plementing of his decisions as an individual.

him outside and before society (in Poster’s sense)35 and by forgetting that the main subjects of history are collective subjects (in Unger’s sense)36 makes an abstract ahistoricism the special feature of law, legal theorist Willard Hurst presents a somewhat different image:37

The presence of politically organized power is the special feature, with all the relations and practices that spring directly from its exercise. In order to see law in its relation to the society as a whole, one must appraise all formal and informal aspects of politically organized power ~ observe the functions of all legal agencies (legislative, executive, administrative, or judicial) and take account of the interplay of such agencies with voters and nonvoters, lobbyists and interest groups, politicians and political parties. This definition overruns traditional boundaries dividing study of law from study of political history, political science, and sociology.

By perceiving man not as an abstract, trans-historical persona but rather a liv- ing agency within the concrete structure of an identifiable system of legal ar- rangements, Hurst returns men as collective subject to the temporal world and demonstrates the possibility of resurrecting critical legal theory.38

Like Joseph Goldstein, Alan Stone fails to engage in the critical project. In an article titled “Psychoanalysis and Jurisprudence: Revisited”39 (which is characterized as a response to Joseph Goldstein), 4o Professor Stone starts out on the right foot: he indicates that unlike Goldstein, he feels it is imperative to begin

33M. Poster, Existential Marxism in Postwar France: From Sartre to Althusser 10 (1975).

“‘Goldstein, supra note 22, at 1055.

3sSupra note 33 and accompanying text.

?hpra notes 12-13 and accompanying text.

37J. Hurst, Law and Social Order in the United States 25-26 (1977). ““C’ J. Hurst, The Growth of American Law: The Law Makers (1950); J. W. Hurst, Law and the Con-

ditions of Freedom in the Nineteenth-Century United States (1956); M. Horwitz, The Transformation of American Law 1780-1860 (1977); J. T. Noonan, Persons and Masks of the Law (1976).

39Stone, supra note 23.

“Id. at 357.


by confronting the “definitional complexities”41 within the concept of jurisprudence. Stone asserts that jurisprudence “commonly refers to the philosophy of law; rhetorically, it is equivalent to the Law with a capital L.“42 By this does Stone mean to describe a theoretical reflection which (in Ehrenzweig’s phrase) constitutes “thinking about ‘law’ that transcends ‘the law’ itself?” Is “Law with a capital L” equivalent to a transcendent critical theory of legal relations?

Stone briefly summarizes what he conceives to be the theoretical position of “the psychoanalytic school of jurisprudence.“43 He then suggests that “these varying points of view of ‘psychoanalytic jurisprudence’ have been extremely difficult for the law to assimilate.“44 Stone’s confusion is here rendered apparent as his argument begins to replicate Goldstein’s: if the object of Stone’s theoretical reflection is indeed what he says it is (“psychoanalysis and jurisprudence”)45 then he should be confronting not the law S relative capacity or inca- pacity to assimilate “psychoanalytic jurisprudence” but rather the ability of the discourse of jurisprudence itself to assimilate the theoretical contribution of psychoanalysis through the work of the “psychoanalytic school.” By collapsing legal theory (once again) into law, Stone (like Goldstein) prepares the way for making the purposes of psychoanalysis homologous to those of the legal system itself. Stone argues:46

Psychoanalysis can discern this irrationality of the law givers and perhaps even help unmask some of the inequities of law. Yet there is a significant cost to be paid for such insights, a cost minimized by Frank and Cardozo. The possibility of justice, as opposed to arbitrary law and order, rests on the possibility of rational authority. Ra-

tional authority in turn rests on the possibility of certainty and final- ity. If psychoanalytic insight introduces into the procedural system the likelihood of judicial irrationality in the ultimate act of decisionmaking, we confront the law as well as those who must obey it with a certain sense of doubt about its certainty, and thus we may vitiate the acceptance of ‘rational authority.’ We bring forward a kind of critical flaw in rational authority over which the law can have little control.

By Stone’s own account, the school of psychoanalytic jurisprudence had sought to utilize psychoanalysis to demonstrate the importance of unconscious factors in shaping the legal process. 47 That those factors were present was the inevitable result of the structure of human psychic existence (which psychoanalysis took as the object of its theoretical reflection). Psychoanalysis did not introduce irrationality into the legal process, it merely made possible the systematic analysis of the illusion of pure rationality. Rather than allow jurisprudence to perform the essential critical function of self-conscious reflection

“Id.

“Id. at 358.

Td. at 361.

“Vd. 451d. at 357-358.

461d. at 361-362 (emphasis added).

“Id. at 361.

36 ANTHONY CHASE

upon the law, Stone would apparently be willing to abandon autonomous legal theory and, in fact, attributes the cause of “critical flaws in rational authority” (i.e., the contradictions of liberalism) to critical thinking itself. This is equivalent to the ancient custom of executing the messenger who brought bad news.48

More critical than either Stone or Goldstein in his article titled “The Theo- retical Relationship Between Law and Psychiatry,“49 it nevertheless remains unclear to what extent Professor David Weisstub is interested in contributing to the development of a genuinely non-instrumental legal theory.‘O Weisstub tends to make the tension which characterizes his evaluation of psychoanalytic jurisprudence quite transparent.

On the one hand, he openly acknowledges the pressure which the legal system places upon psychoanalysis to perform merely “handmaiden” functions which do not threaten the presuppositions of law’s rationality.‘l Psychoanalysis is utilized only as “a clarifier of moral dilemmas, standards, and rules,“s2 in short, as an adjunct to authoritative legal doctrine, as a non-reflective legal theory.53 Weisstub further indicates that jurisprudence has traditionally stood in the shadow of “the law’s investment in appearing as an impersonal and logical system,“54 and if twentieth century American legal Realism utilized the social sciences (and particularly psychoanalysis) to question the abstract personality of the legal system, Weisstub observes that “[mlainstream legal theory has corrected this process in the case of psychoanalysis, and reverted to the presentation of models which take their place in history as official defenders of reason.“5s

On the other hand, what conclusion does Weisstub draw from his analysis of the way in which mainstream legal theory has suppressed the growth of self- conscious, critical legal thought reflecting the arbitrary and contingent as well as logical tendencies of legal systems? What does he mean to indicate when sug- gesting that the development of a non-instrumental psychoanalytic jurisprudence has been “corrected” by mainstream legal theory? “The law,” he arguess6

defines the boundary of civilized conduct and penalizes those who choose to disobey its edicts. It, more than any other institution, is removed from our votes or our friendship. The rule of law stands strangely beyond men. It is oracular and magical, and, as a complete body of precepts, is removed from the present. Any institution which has the quality of timelessness must have believers to sustain its efficacy. To be dominated so is not taken with ease by most men,

“See Unger, supi-a note 12, at 1-144.

491ieisstub, supra note 24.

“See supra notes 25-26.

‘IWeisstub, supra note 24, at 29.

“Id. at 29.

‘%ee supra note 13 and accompanying text. ?Veisstub, supra note 24, at 31,

-Id.

5bId. at 35.


but to be liberated from this phenomenon is to bespeak revolution or anarchy, and this most men choose only at very rare moments in history.

“Removed from our votes or our friendship,” Weisstub’s law would appear to become impersonal and timeless, seemingly comprehended (like Goldstein’s individual man) outside and before society, its complex development erased in behalf of the mythology of liberal society: a specific form and way of organiz- ing human reality yet whose juridical laws, like the laws of its market economy, having not been made by individuals must not have been made at all.

Perhaps Weisstub only wishes to suggest that the notion of an impersonal and oracular law, however illusory, sufficiently stabilizes society that most men choose to live with such purposeful self-deception. But who are these shadowy figures (Weisstub’s “most men”) recoiling from these words (“revolution”/ “anarchy”); what is the history of their social movements, their political choices? Which societies are stabilized by the rule of law and in behalf of what configuration of social interests? Indeed, modem liberalism and the notion of social order based upon the rule of law would itself never have existed were not some men willing to bespeak revolution at certain moments in their history, however rare. The point is that critical legal thought cannot content itself with any of the ideological choices made within the instrumental ambience of a legal process and must always pursue disillusionment, however highly a society may value its systems of illusion.57

II. Forgetting Freud

The collapsing of legal theory into law and the imperatives of the legal system’s authoritative legitimization precipitates the denial of a critical and non- instrumental theoretical reflection on the structure of law. Such an effacement of critical legal theory inevitably places sharp limitations not only upon the way in which psychoanalysis is utilized by the legal system but also, fun&men- tally, upon the very definition of psychoanalysis itself. Control is exercised not only over the way in which words are used but over the understood meaning of the words themselves. The suppression of critical theory requires a pre- determined and specifically ideological reading of Freud.”

Alan Stone, for example, suggests: 59

7 may well be questioning Professor Weisstub here only because he may have been no more success-

ful than I usually am in “carrying out a concrete analysis of a concrete situation;” cf: note 26. Within the

scope of modern critical theory, there are bound to be wide-ranging differences in regard to where one ul-

timately strikes the balance in any particular analysis between diachronic and synchronic emphases. In re-

lation to Weisstub’s hisotrical questions, I provide not so much answers as further questions, along the

lines posed by Klaus Eder in his review of Roberto Unger’s Law in Modern Society, which Eder sees as

“neither more nor less than a research program, probably a fruitful one, for the sociological study of law

on two levels: a synchronic structural description of forms of normative order and a diachronic social-

historical analysis of the factors that produce structural transformations of the law.” Eder, Rationalist and Normative Approaches to the Sociological Study of Law, 12 Law & Sot. Rev. 133, 143 (1977).

“See supra note 19 and note 26.

‘?Stone, supra note 23, at 364-365.

38 ANTHONY CHASE

In a time of social change that borders on revolution, a discipline like psychoanalysis which exposes the arbitrary nature of law and order may well become an ideological weapon. If this is so, and Mar- cuse and Fanon give every indication that it is, psychoanalysis will have evolved from a healing method to an instrument in the “search for power over men” in a way that Freud could never have imagined.

Presumably, Professor Stone would be surprised by Freud’s observation that, “[ilt goes without saying that a civilization which leaves so large a number of its participants unsatisfied and drives them into revolt neither has nor deserves the prospect of a lasting existence.“60 But it is not, of course, a question of choosing the most appropriate quotation from Freud’s expansive work.‘j’ On the contrary, the issue is whether or not a careful and systematic reading of Freud substantiates Stone’s claim that Freud offered nothing more than a “healing method” in his historic elaboration of the radical science of psychoanalysis.

The best recent writing on the development of psychoanalysis contradicts Stone’s thesis.‘j* The Americans (Paul Roazen, Christopher Lasch, Russell Ja- coby, Martin Jay) assert that the shift in the international center of gravity of the psychoanalytic movement from Europe to England, and then to the United States, in the late 1920s and the 1930s signalled the “repression” of the critical theoretical element in psychoanalysis in behalf of concentration upon the therapeutic technique: an abandonment of psychoanalysis’ scientific conceptualization so severe as to actually constitute a “forgetting” of Freud himself.63 Their detailed research only validates, half a century later, what Freud recognized quite clearly: “I am by no means happy to see that analysis has become the handmaid of psychiatry in America and nothing else.“64 Freud, of course, realized that psychoanalysis constituted rather more than just a “healing method -:65

psychoanalysis began as a method of treatment; but I did not want to commend it to your interest as a method of treatment but on account of the truths it contains, on account of the information it gives us about what concerns human beings most of all ~ their own nature - and on account of the connections it discloses between the most different of their activities.

Stone appears uninterested in reconstructing those connections, the infinite- simal parts of the social wholes whose historical character Unger suggests66 we tend to lose sight of. Freud stood directly against the ahistorical tendency of liberal thought, having created what Donald Meyer in his discussion of Erik

“S. Freud, The Future of an Illusion 15-l 6 (1964). 6’C’ Botein, ProfessionalHistory Reconsidered, 21 Amer. J. L. Hist. 60, 63 (1977).

?Yee Roazen, supra note 15; C. Lasch, Introduction to Jacoby, supra note 17; Jay, supra note 25. ?See especially Jacoby, supra note 17, at 1-18; See also Roazen, supra note 15, at 388. 64Freud is quoted in Roazen, supra note 15, at 388. 6”Frcud is quoted in Roazen, supra note 15, at 110.

66Unger, supra notes 12-13 and accompanying text.


Erikson calls “the most radically historical psychology.“67 Supremely aware of the sexual and intellectual provincialism which characterized American life (sar- castically referring to America as “God’s own Country”), Freud always be- lieved that American analysts would eventually repudiate his work.68

Responding directly to Stone’s contention that Freud had formulated the role of therapy within psychoanalysis entirely differently than Marcuse later would, Russell Jacoby argues: 6g

Freud was very much alive to the dangers of theory being absorbed by therapy. His terms were different, but the formulation was the same as Marcuse’s critique of psychological revisionism; the im- mediacy of therapy or reforms rendered irrelevant a theory that pro- mised nothing for the here and now but truth. . . . For exactly this reason Freud opposed the monopolization of psychoanalysis by medical doctors as degrading psychoanalysis to therapy. Almost forgot- ten is the vigor with which Freud defended lay analysis. . . . Freud honed the revolutionary edge of psychoanalysis; he fought its pro- fessionalization and domestication _ _ . “I only want to feel assured the therapy will not destroy the science.”

Obviously, the hallmark of all non-instrumental critical theory (whether legal or psychoanalytic) is that it promises nothing for the here and now, save truth. The suppression of a critical relationship between psychoanalysis and jurisprudence requires the rewriting of Freud and exploits the historic abandonment within American practice of the scientific theory embedded in psychoanalysis.70 Having erased the scientific theory, any notion that Freud had more in mind than simply a “healing method” is made to appear incredible.71

Freud’s defense of lay analysis, pointed out by Roazen and Jacoby, also interests the British writer Juliet Mitchell72 and French psychiatrist Octave Mannoni.73 American members of the International Psychoanalytic Association were opponents of lay analysis and during the later 1920s there was a real possibility of the American analysts seceding from the Association if it continued to admit into membership nonmedically trained analysts. The Americans exercised considerable power within the Association (indeed, by 1952 they would constitute 64% of the membership)74 and ultimately, in 1929, a compromise was worked out.75

From that time on, no European member of the Association would accept for training anyone who had not received the approval of his or her home

67Meyer is quoted in Lasch, supra note 62, at 154-155 (n. 5).

@See Roazen, supra note 15, at 388.

69Jacoby, supra note 17, at 122-123.

“‘0. Mannoni, supra note 15, at 166-193.

“See Stone, supra note 23, at 364-365.

72J. Mitchell, Psychoanalysis and Feminism: Freud, Reich, Laing, and Women (1974).

‘%pra note 15.

?See Roazen, supra note 15, at 385.

‘Yd. at 388;see also Mannoni, supra note 15, at 169-170.

40 ANTHONY CHASE

psychoanalytic society. Thus psychoanalysis was brought within the ambit of the American medical profession. Clearly, this was a major defeat for Freud who, as late as 1938, still anticipated that the Americans would secede from the Association because of their hostility to him.76

Juliet Mitchell emphasizes the socio-professional origins of the initial split between American and European analysis: “[Iln America doctors had only re- cently won the right to debar charlatans and quacks from medical practice and were anxious to defend any future work from a similar invasion by non-ex- perts. . . . . This stipulated medical qualification may have assisted the anatomi- cal-biological bias so strong in Anglo-Saxon psychoanalysis and thus, I believe contributed to the reduction of its theory.“”

Recognizing the professional situation of American medicine, Octave Man- noni nevertheless emphasizes domestic-intellectual sources of the suppression of theory in American analysis: 78

The “modernist” illusion - namely that the changes occuring in the environment force a readaptation of the very principles of psychoanalysis as Freud posited them - iteslf obviously depends on preju- dices tied to the notion of adjustment. Freud never concerned himself with the adaptation of his patients to the society of his time. . . . If adjustment remains . . . the essential preoccupation that casts its shadow over the theoretical thought of American psychoananlysis, we believe we understand the direction that theory has taken . . . that as soon as Freudian analysis reached America, it was immedi- ately absorbed into a pseudo Darwinian ideology of social adjustment.

Thus Mannoni assimilates the conformist character of American psychiatry to the strong currents of “Social Darwinism” which substantially effected other aspects of American life.79

Christopher Lasch, on the other hand, poses a world-historical explanation of the dichotomy between American and Continental psychoanalytic traditions. So The near total failure of Western socialism after 19 14 to transform (in Lenin’s phrase) world war into revolutionary war compelled left-wing intel- lectuals to develope supra-political analyses of the collapse of the socialist movement (especially German Social Democracy) and later, the rise of fascism in Europe. Although the initiators of this reformulation of Marxian theory (e.g. George Lukacs and Karl Korsch)81 developed little interest in psychoanalysis itself, others (particularly Wilhelm Reich and the theorists of the Frankfurt School of Social Research)82 became so deeply involved with the work of Freud and his circle that they not only transformed Marxian theory but also

76Roazen, supru note 15, at 388. 77Mitchell, supra note 72, at 299.

‘*Mannoni,supra note 15, at 182-183, 186, 190-191. “%f: R. Hofstadter, Social Darwinism in American Thought: 1860-1915 (1944).

*OLasch, supru note 62, at xiii-xiv. “Jacoby, supru note 17, at 74-80.

“See Jay, supra note 25.


had a permanent and critical impact on the growth of European psychiatry itself. Thus Lasch concludes: “Neither England nor the United States had an intellectual tradition comparable to the Hegelian-Marxian traditon, one capable of incorporating psychoanalysis in a way that would preserve its critical content.“s3

Although Russell Jacoby focuses upon the contribution to the repression of psychoanalytic theory made by Alfred Adler, the “neo-Freudians” (Erich Fromm, Karen Horney, Clara Thompson, Harry Stack Sullivan), and the “post- Freudians” (Abraham Maslow, Gordon Allport, Carl Rogers),84 no one more than Sullivan provides an accurate measure of the prescience with which Freud predicted the abandonment of his theory in America.85 Indeed, Leston Havens of the Harvard Medical School suggests that Sullivan “almost secretly” dominates American psychiatry.86

Having presented his first paper to a national psychiatric conference in 1924, Sullivan published widely in the 1920s and in 1926, became as associate editor of The American Journal of Psychiatry. In his recent sympathetic analysis of Sullivan’s work, A.H. Chapman indicates that although Sullivan “paid lip ser- vice” to Freudian theory during the 1920s it gradually became apparent to his contemporaries that he opposed virtually every major tenet of Freudian thought.87 Of singular importance in the context of American psychoanalytic development was Sullivan’s total rejection of the very concept of the unconscious.88 Thus fatally separating himself from the premier Freudian scientific discovery, Sullivan’s conversion symbolized the rights of passage of American psychiatry. “The neo-Freudian shift,” says Jacoby,89

from a psychology of the unconscious to one of the conscious, from id to ego, sexuality to morality, repression to personality development, and most generally from libido and depth psychology to sur- face and cultural psychology, accelerated with the post-Freudians. The neo-Freudians had done their work well; their successors no longer needed to respond to Freud.

In effect, Freud’s great contribution to human self-consciousness was for- gotten in America. A thoroughly instrumental ego psychology was installed in its place, one with which the law (and mainstream legal theory) could share the same bed.

III. The Basic Myth

Against the grain of contemporary American jursiprudence, Jerome Frank in 1930 published Law and the Modern Mind. Arguing with style and audacity,

*%asch, supru note 62, at xiii. 84Jacoby, supra note 17, at xx.

“Id. at 29. ssA. H. Chapman, Harry Stack Sullivan: The Man and His Work 12 (1976).

“Id. at 44-45.

“Id. at 98-99. “Jacoby, supra note 17, at 46.

42 ANTHONY CHASE

Frank proposed that the fundamental notion of American liberal legalism (that the law is generally certain, rational and impersonal)90 was a myth.91 Further, he asserted that the myth’s survival could be explained, in part, by utilizing the concepts of psychoanalytic theory. 92 Precisely because Frank’s jursiprudence in Law and the Modern Mind was authentically psychoanalytic (retaining the cutting edge of Freudian theory), his reflection on law was genuinely critical and non-instrumental. Thus it is hardly surprising that Frank’s analysis “fell like a bomb on the legal world.“93 More than any previous legal theorist, Frank had broken with the American tradition of instrumental jurisprudence.94

1. Frank contended that the law was not and could not be made certain nor wholly independent from the active intervention of human agency. “When human relationships are transforming daily,” he observed, “legal relationships cannot be expressed in enduring form.“95 The sources of shifting human relationships identified by Frank ranged from new instruments of production and concentrations of capital to new social customs as well as shared aims and ideals. The uncertainty of law was not only inevitable within the context of a dynamic society but it was in fact positively desirable since it provided the law with sufficient flexibility to adjust legal institutions to the needs and potentials of new social relations. Instead of recognizing and confronting the pliability of legal language, lawyers and judges presented briefs and wrote opinions which made it appear as if “correct decisions” were the result of a sophisticated process of logical deduction from a “precise and pre-existing body of legal rules.“96

2. This fact presented Frank with the central question which he sought to answer in Law and the Modern Mind: “Why these pretenses, why this professional hypocrisy? The answer is an arresting one: There is no hypocrisy. The lawyers’ pretenses are not consciously deceptive. The lawyers, themselves, like the laymen, fail to recognize fully the esentially plastic and mutable character of law.“97 In order to explain why conscious assumptions of lawyers and judges (as well as laymen in their perception of law) did not correspond to reality, Frank needed a theory of the unconscious and thus he turned to psychoanalysis. Relying (only in part, as we shall see)98 on the theoretical insight of Freud and the Swiss child psychologist Jean Piaget, 9g Frank initiated the representative metaphor of psychoanalytic jursiprudence: unrealistic dependence upon a faulty conception of the certainty of law in human adulthood was the consequence of transference onto law and legal institutions of early childhood dependence upon parents as omnipresent guarantors of certainty, stability, and authority. Elaborating the metaphor, Frank argued: loo

“See Frank,supra note 3, at 3-12, 100-117, 207-231.

9’Id. at 312-322.

“Id. at 13-21, 323-324.

Tlark, Jerome N. Frank, 66 Yale L.J. 817 (1957).

‘“Cc Frank, supra note 3, at 259.

951d. at 6. 96Id. at 8-9. 9’Id. at 9.

98See infra note 107 and accompanying text.

Tee Frank, supra note 3, at 326; cf. Verdun-Jones, The Jurisprudence of Jerome N. Frank: A Study in American Legal Realism, 7 Sydney L.R. 180, 192 (1974).

““Frank, supra note 3, at 18.


To the child the father is the Infallible Judge, the Maker of defin- ite rules of conduct. He knows precisely what is right and what is wrong and, as head of the family, sits in judgment and punishes misdeeds. The Law - a body of rules apparently devised for infallibly determining what is right and what is wrong and for deciding who should be punished for misdeeds - inevitably becomes a partial sub- stitue for the Father-as-Infallible-Judge. That is, the desire persists in grown men to recapture, through a rediscovery of a father, a childish, completely controllable universe, and that desire seeks satisfaction in a partial, unconscious, anthropomorphizing of Law, in ascribing to the Law some of the characteristics of the child’s Father-Judge. That childish longing is an important element in the explanation of the ab- surdly unrealistic notion that law is, or can be made, entirely certain and definitely predictable.

Erik Erikson identifies the importance of the notion of transference in the development of Freud’s entire conceptualization of human psychic structure. “In his transference to Fliess,” writes Erikson, “Freud recognized one of the most important transferences of all: the transfer of an early father-image on later individuals and events.“1o1

Otto Fenichel relates Freud’s theory of the superego and its retention of the character of the father to adult obedience to authority and the social orgaiza- tion of illusory participation in power. lo2 Sandor Ferenczi, close collaborator of Freud, described by Norman 0. Brown as “the enfant terrible of psychoanalysis (and therefore at times the most profound)“io3 indicates thatlW

[tlhe feeling of awe for the parents, and the tendency to obey them, normally disappear as the child grows up, but the need to be subject to someone remains; only the part of the father is transferred to teachers, superiors, impressive personalities; the submissive loyalty to rulers that is so wide-spread is also a transference of this sort . . . these striking cases, as well as all other observations brought forward above, confirm Freud’s view that the hypnotic credulity and pliancy take their root in the masochistic component of the sexual instinct. Masochism, however, is pleasurable obeying, and this one learns in childhood from one’s parents.

The correlation between Jerome Frank’s insight into the structure of human psychic experience and the conclusions of the most significant theorists of the

““E. E&son, Insight and Responsibility: Lectures on the Ethical Implications of Psychoanalytic In-

sight 37 (1964).

“‘See Fenichel, Trophy and Triumph, and Psychoanalytic Remarks on Fromm’s Book Escape from Freedom, in The Collected Papers of Otto Fenichel, 2nd series (1954).

lo3N. 0. Brown, Life Against Death: The Psychoanalytical Meaning of History 236 (1959). ‘O“Ferenczi, Introjection and Transference, in Sex in Psychoanalysis 35, 80 (1950); see also W. Reich,

The Authoritarian Ideology of the Family in the Mass Psychology of Fascism, in The Mass Psychology of Fascism 34-74 (1970); M. Horkheimer, Authority and the Family, in Critical Theory (M. O’Connell, tr. 1972); W. Reich, Sexpol: Essays 1929-1934 (L. Baxandall, ed. 1972); T. W. Adorno, E. Frenkel-Bruns-

wik, D. J. Levinson, and R. N. Sanford, The Authoritarian Personality (1950); Mitchell, supra note 72, at

61-69; S. Milgram, Obedience to Authority 135-136 (1969).

44 ANTHONY CHASE

international psychoanalytic movement can be multiplied indefinitely. Indeed, in 1913, Ferenczi anticipated several notions which Frank would later contri- bute to American psychoanalytic jursiprudence.105 The point is that it was the theory of the Freudians rather than the ego psychology of the therapists that mediated Frank’s development of critical and non-instrumental theory of American law. His retention of fundamental psychoanalytic concepts (the un- concious, sexuality, transference, repression) within the American context where those analytic propositions were being rapidly eroded seems almost inexplicable.

3. How then do we account for Jerome Frank’s retention of the critical cutting edge of psychoanalysis, its scientific theoretical reflection on the conscious and unconscious structure of psychic life? The answer is revealed by the very nonchalance Frank demonstrates in proposing the representative metaphor of childhood dependence upon certainty and safety as the basis of his jurisprudence, the optic through which he surveys legal relations.lo6

With only a nod to Freud and Piaget, lo7 Frank elaborates his representative metaphor while seeming to take literally for granted the correspondence between his theoretical paradigm and that established in depth by years of scientific research (indeed, to some extent, subsequent to Frank’s writing)lo8 within the international psychoanalytic movement. The clear suggestion is that Frank’s fidelity to critical psychoanalytic theory and particularly its basic category of focus - the importance of unconscious sources of human behavior - resulted from experience of psychoanalysis as a form of lived truth.

It appears that Law and the Modern Mind was written by Frank as a kind of mediation of his own self-consciousness, the premier achievement of his own period in analysis during the late 1920s. lo9 Herman Frank, Jerome’s father, was a successful attorney and an imposing figure.“’ Frank had not wished to attend law school and actually was interested in becoming a novelist. Never- theless, his father insisted and Jerome graduated from the University of Chi- cago Law School with the highest academic rating ever achieved at the school. “I didn’t want to practice law,” Frank later recalled, “but my father was a lawyer and held me to it, almost overpowered me.““’ In spite of his own success in practice. Jerome was not satisfied with his life. “I just found myself restless,” ne also recalled, “wanting to do everything except what I was doing. I got very tense. . . .“l12

‘oSFerenczi, A Lecture for Judges and Barristers, in Further Contributions to the Theory and Tech-

nique of Psycho-Analysis (J. Rickman, ed. 1952).

ro6C’ Verdun-Jones, supra note 99, at 185-189.

“‘See Frank, supra note 3, at 88, 117, 164, 201-202, 326, 335, 343.

“*See, e.g., Watson, Freud, Psychiatry and Science: Origins of a Medical Psychology and Concepts of Structure, Function and Development of the Personality, (with bibliography) in A. Watson, Psychiatry for

Lawyers (1968).

‘o9.See W. Volkomer, supra note 2, at 1-19; cf: remarks by Richard H. Rovere at the special memorial

meeting for Jerome Frank held on 23 May 1957 by the Association of the Bar of the City of New York,

reprinted in ABCNY, Jerome N. Frank 1889-1957 (n.d.).

“OVolkomer, supra note 2, at 1. “‘Columbia Oral History Project interview with Jerome Frank (recorded 11 April 1950), quoted in

Volkomer, supra note 2, at 2.

“*Id. at 6.


Frank had grown increasingly interested during the 1920s in the new discipline of psychology and in 1927, a New York analyst suggested that he under- go therapy. Having planned a business trip to the East Coast, Frank left Chi- cago and spent six months in analysis in New York, cutting in half the normal period required by having two sessions scheduled each day. Psychoanalysis, Frank observed, “did me a great deal of good. It put at my diposal a lot of energy I’d been wasting; so much energy was absorbed by frictions, like con- flict of one kind or another. . . . From that time on, those things stopped both- ering me. . . . I’d say it was a turning point in my life.“‘13

The newly available energy was shortly put to use in Frank’s assault upon the basic myth of American law and its jursisprudence. His experience in analysis provided Frank with the decisive clarity of vision and sense of confidence necessary to deveope in Law and the Modern Mind an authentically autonomous perspective from which to analyze the mythological character of legal relations. Indeed, the modern mind ‘14 of the completely self-possessed and mature judge or attorney was quite transparently the mind of the emergent psychoanalytic patient, charged with a hard-won sense of vocation and elan which had rather little to do with learning how to adjust oneself.‘15 The modern mind would require that the society itself become adjusted to the demands of human personality - and in the process, social myths would have to be exploded. The modern mind was that of Jerome Frank.“‘j

The derivation of his representative metaphor from the richness of lived experience made possible Frank’s transcendence of the conventional boundaries of liberal discourse as well as his cavalier treatment of all opposition and his reduction of most contemporary thinking about law to “Childish Thought-Ways”. ‘17 An observation by Anthony Wilden helps illustrate the point:‘18

Just as Kenneth Burke’s “representative anecdote” concerns a nexus of significations which are chosen for the establishment of a theory, the representative metaphor does not communicate to us only about the communication established in the “theory.” Such metaphors have a life which is all their own. Through their self-articulation in an implicit or invisible discourse, these metaphors may come to captivate the writer to the extent that everything he says may do no more than represent an essentially static ensemble of transformations of an original metaphoric set. The “labels” he has (unconsciously) chosen for his “universe of discourse” may in effect exert such fatal fascinations on the writer that, in the end, their self-articulation takes over from him. He no longer speaks his discourse; the discourse is speaking him.

“Vd. at 7. ‘14For Frank, the modern mind was equivalent to the mature mind (ie., the self-conscious thought

process).

“‘Frank, supra note 3, at 232-235. ‘I%” id. 253-260 and J. T. Noonan, supra note 38, at 65-110. ‘17Frank, supra note 3, at 69.

“Wilden, supra note 1, at 304-305.

46 ANTHONY CHASE

This is exactly what happened in terms of the genesis of Law and the Modern Mind. The initial “invisible discourse” of the book (Frank’s psychoanalysis) produces the “representative metaphor” (presented by Frank in the first two chapters) and whose elaboration (precisely, “an essentially static ensemble of transformations of an original metaphoric set”), exerts such a fatal fascination for Frank that (in the end) his metaphor takes over: his discourse is speaking him. The irony is that Frank’s fascination with his metaphor (which earned him, of course, abundent contumely from legal scholars and designation as the premier “outrider of the surrealist cult”‘rg) was fatal for his “Ziberulism” 12’ (or, more accurately, for the capacity’of contemporary liberal thought to effectivley absorb within its instrumental ambience Frank’s embarrassing and relentless critique, his psychoanalytic jurisprudence.)i2i

Thus rather than Frank carrying his analysis, the analysis which he initiates with a particular metaphor ultimately curries him all the way to the end: having started with parental mystification in the empire of childhood, Frank finishes with a demystification of law (that is, the rule of law which replaces the rule of the father) and behind it, the liberal state. This is not Frank’s purpose in Law and the Modern Mind, yet he blithely remains faithful to the inexorable un- folding of his metaphor’s “self-articulation.” What other conclusion can we draw? “A conscientious judge,” says Frank,122

is, of course, ‘bound by law’ in the sense that he does not act capri- ciously, but since, in the last analysis, his decision is his decision, we must face the fact that we are ruled by judges, not by abstract law. If that be tyranny or despotism, make the most of it.

The failure of most jurisprudential thought to concede the mythological character of any “government of laws rather than men”123 and the political util- ity presumed by legal theorists to be a consequence of widespread delusion of the public becomes the centerpiece of Frank’s discourse (that is, the discourse which is now speaking Frank) and occupies a greater portion of the advancing argument than the initial elaboration of the model of childhood psychic development and later transference.124

Frank locates contradictions as well as support for the basic myth first in the work of Dean Pound and then in the writing of the great German legal histor- ian, Rudolph von Jhering. i2’ In chapters titled “Deluding the Public” and “The Value of Lay Ignorance”, Frank interrogates Demogue and Wurzel, respectively. 126 He asserts that Pound’s conception of the value of legal certainty in relation to the calculability of economic relations becomes, in fact, a justification for

“9Kennedy, Realism: What Next? 7 Fordham L.R. 203 (1938). ‘*‘On Frank’s general political orientation, see Volkomer, supra note 2, at 96-206; J. Paul, supra note

2; J. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 176-188 (1976). “‘See infra note 130 and accompanying text. “‘Frank, supra note 3 at 136 (note).

‘*Yd. at 100-160; cf: F. Neumann, The Democratic and the Authoritarian State (1957). lz4Frank, supra note 3, at 100-239.

“‘Id. at 207-221.

1261d. at 222-231.


hiding from the public the true relation between law and power. Frank quotes Demogue: rz7

On the whole it is to be desired that this ideal respect for law, although it rests at bottom on a mistake which the shrewd do not make, belief in the omnipotence of law, be developed as far as possible; that it become a sort of religion beacause of the resulting tran- quility and economy of social forces, for then more profitable and more effective action will be possible in other directions.

What Frank’s discourse clearly suggests is that mainstream modern legal theory has parroted the myth of legal certainty consequent to its lack of confidence that “only at very rare moments in history” will most men, having seen through the illusions of their time, consider extreme alternatives.128 Modern jurisprudence reveals a fragile faith in the capacity of the liberal state to secure social stability without public deception. Frank rests his case by quoting an illustrative remark from Pascal: “We must make it (the law) regarded as authoritative, eternal, and conceal its origin, if we do not wish that it should soon come to an end.“lz9

Frank, of course, had an answer for those who would challenge his dual commitment to judicial discretion and the abolition of legal myths but it was, characteristically, couched in terms of the individual human life cycle. Dean Pound epitomized the criticism directed at Frank when he responded, albeit indirectly, to Law and the Modern Mind in 1938:r30

To assume that objectivity and impartiality in the judicial process cannot exist in the nature of things, to look on the judicial function as political in the same sense as the legislative and the executive pro- cesses, and invite a conscious exercise of the judicial process in the sole interest of a class growing in class conciousness and in political power, is to undo the whole achievement of the legal order since the seventeenth century.

Frank confidently defended “judicial legislation”131 and the conscious exercise of the judicial process but in the sole interest of a human community growing in self-consciousness (i.e., psychological maturity).13* Frank had no illusions about the likelihood of the myth of legal certainty’s being rapidly dismantled. He was prepared to “rationally acquiesce “133 in the fact that the bulk of his contemporaries would not yet be psychologically prepared to embrace the notion that law was neither certain and predictable nor needed to be.‘34

Yet Frank was convinced that a gradual process of psychological growth

“‘Id. at 227-228.

“‘See supra note 56 and accompanying text.

“‘Frank, supra note 3 at 228.

‘3Tound Fifty Years of Jurisprudence: “‘Frank,‘supra note 3, at 118-147. IVRealist Schools, 51 Harvard L.R. 1, 185 (1938).

‘311d. at 232-235, 243-252. ‘Td. at 234. ls41d. at 232-235.

48 ANTHONY CHASE

would eventually secure the liberation of law from the myth of certainty, without in the process undoing “the whole achievement of the legal order since the seventeenth century.“r3’ He suggested that: 136

True growth involves healthy encouragement of the inherent spon- taneity of the child, an encouragement of wakeful vitality and the discouragement of the half-blind adherence to, or half-blind breaking away from, the traditional. And so in law. If the search for the father -judge is ended, if the authority-ridden mode of regarding law is elim- inated, if men see law as a human adjustment and not as a gift or mandate from some external source, no violent transformation need or will occur. The relief from fear of chance need not result in the adoption of a policy of incessant, hectic change, but should lead to a policy of healthy and vital growth.

In a telling footnote to this analysis, Frank added “[ilf the child indeed becomes father of the man, i.e., each individual becomes his own father and thus eliminates the need for fatherly authority. r’137 “The essence of the Oedipal complex,” asserts Norman 0. Brown, “is the project of becoming God - in Spinoza’s formula, causu sui. . . . “13’ Thus Frank’s answer to Pound: each individual becomes father of himself and mankind realizes its historic cau~a sui project,‘3g indeed is able to resurrect itself, fearlessly, as God. The historic era of authoritarianism and human subjugation is ended, personal and mass de- struction through transference dependency brought to a close as, phoenix like, the modern mind rises from the psychoanalyst’s couch.

But why should Frank’s new man, this paragon of self-confidence and self- control, be willing to accept the structure of power and wealth, the domination of some men by others, the hierarchy of social status, the brutality and indif- ference, which have always characterized those modern societies for which liberalism provides the unifying political ideology?140 We may forgive Pound for his anxiety regarding the “whole achievement” of the liberal legal order.

Thus the representative metaphor which animated Frank’s jurisprudence, the self-articulating metaphor of human psychic growth versus dependence, made possible the critical cutting edge of Frank’s legal theory and made (at the same time) inevitable the limitations upon that theory’s capacity to adequately account for the intransigence with which it was confronted by mainstream theory. The discourse which in the end spoke Frank allowed him to see through the myths of the liberal legal order but could not provide him with an explanation of why he, alone, would travel along the route charted by his metaphor’s transformations. By demystifying the basic myth of liberal legalism, Frank isolated himself within the context of liberal theory. “There shall be one

"'See supra note 130 and accompanying text.

‘36Frank, supra note 3, at 250.

137d. at 250 (note).

‘3sBrown, supi- note 103, at 118.

ls9Ct E. Becker, The Denial of Death 93-124 (1973).

~‘See R. Tressell, The Ragged Trousered Philanthropists (1955).


man at least who surrendered the prejudice,” he wrote, “and who does not hide that fact.“i41

“Because nations and persons are entirely different systems,” Erik Erikson observes, “every infantile or pre-rational item thus recognized and named must be studied in its double nature of being a property of each individual life cycle, and of being a property of a communality, and for this reason subject to the fate of institutions.“142 Frank’s originality resides in his successful recognition of the relationship between the myth of legal certainty and the individual life cycle, the psychic transference which secures the myth’s effectiveness. The limitations built into his analysis result in his failure to perceive the inordinate use- fulness of the myths of the liberal order to the historic project through which the hierarchical structure of liberal society is reproduced. He was unable to fully appreciate the double nature of his representative metaphor, unprepared to confront the institutional dependence of liberal society upon the survival of childhood fears and the reality of adult transference. Frank’s residual liberal optimism drew the line on the critical quality of his thought.143

This “blind spot” built into the self-articulation of Frank’s representative metaphor, his failure to always remember that (as Erickson indicates) every pre-rational item remains subject to the fate of institutions in spite of its simul- taneous existence as property of the individual life cycle, can be briefly illustrated. In spite of Frank’s ability to eventually reach the frontier of a whole critique of how the “autonomy” and “impersonality” of law becomes an ideological device for disguising the deeply partial and personally implicated process of adjudication, he frequently seems to slip into an exclusively “life cycle” explanation of the survival of the basic myth and thus omits the institutional benefits which acrue to the legal system.

On the one hand, Frank emphasizes the ideological function of the survival of the myth of certainty, quoting James C. Gray’s observation that the denial of the existence of judicial legislation is “a form of words to hide the truth.” I44 And it is most significantly the public from whom the truth is being hidden since the myth survives “less in the mind of the lawyer than in that of the lay- man who tries to think about the nature and function of law.“145

Yet at the same time, Frank is able to assert that “(w)hen judges and lawyers announce that judges can never validly make law, they are not engaged in fool- ing the public; they have successfully fooled themselves.“146 The contradiction in Frank’s explanation remains unexplained and reveals his failure to subject his own critical reflection to analysis within a larger theoretical frame. It is not that Frank is wrong to suggest that those who promote the myth of legal certainty may themselves, at times, succumb to the illusion. The problem is that Frank’s reliance upon a static transformation of his original metaphor precludes

14’Frank, supra note 3, at 234.

‘42Erikson, supra note 101 at 207. ‘43Frank, supra note 3, at 234-235; cf: remarks by William 0. Douglas at the special memorial meet-

ing of the ABCNY, supra note 109.

‘44J. Frank, Law and the Modern Mind 41 (1970 Peter Smith ed., reprint of the 1963 Anchor Books ed.)

‘%I. at 90 (n. 2). ‘%I. at 4 1.

50 ANTHONY CHASE

his development of a metacommunication regarding its representational character.

Thus he is unable to theoretically delineate the contours of its quality of re- presentation, fails to secure an explanation of the relation, in a specific social context, between self-deception and purposive public manipulation, that is, between the categories of autonomy and relative autonomy. In his attempt to relate neurosis and money, Norman 0. Brown suggests that the major stumb- ling block “can be expressed simply, but abstractly, as the absence of a middle term.“147 For Frank, the attempt to relate his representative metaphor to stub- born survival of the myth of legal certainty, to relate self-deception to the culti- vation of lay ignorance, also stumbles over the absent middle term. He therefore appears inconsistent in his emphasis and develops no theory of the dialecti- cal relation between public and professional submission to the myth of legal autonomy and certainty.

Frank’s optimism regarding the ability of men to discard myths which they have seen through does not take into consideration that beneficial value which the maintenance of certain ideologies has for those whose position in society is ultimately secured by the survival of a mythological interpretation of social dif- ferentiation. Having demystified legal certainty, Frank seems confused by the retention by some men of the myth which he explodes: “Such men, it would seem, fail to speak out unequivocally because they, themselves, are still in some small part enthralled by the myths they have learned to see through.“148 But why should some men remain wedded to childish thought-ways once they have seen through them as Frank has himself? The answer requires the middle term of analysis pursued by Norman 0. Brown, or, following Erikson, the conscious explication of the interpenetration of individual life cycle with the historical evolution of institutional structures.

IV. Forgetting Frank

In 1957, shortly after Frank’s death, the Yale Law Journal published a vol- ume of essays dedicated to him and to his work. In an article titled “The Great Tradition,” Yale law professor Walton Hale Hamilton wrote:149

How and when and where I first met Jerome Frank I cannot now recall. The place was New Haven or New York or Washington; the time, the beginning of the thirties; the occasion, gone beyond my recollection. . . . He had written a book called Law and the Modern Mind and The New Republic had asked me to review it. For me the drive of the book was more significant than its detail. . . . His argument I cannot now recite; nor do I remember the content of my review.

So spectacular a case of forgetfulness seems inexplicable in an article evaluat- ing the contribution made by Frank, as theorist and judge, to American law.

14’Brown, supra note 103, at 239. 14’Frank, supra note 144, at 251. ‘4966 Yale L.J. 821, 821 (1957).


Yet in regard to the theoretical reflection on law advanced by Frank in Law and the Modern Mind, Hamilton’s forgetfulness was shared by other mainstream legal scholars: a kind of professional amnesia.

Even among the Realists,iso Frank had been isolated. Karl Llewellyn had sought to disassociate himself from the psychoanalytic component of Frank’s jurisprudence as early as the publication of Law and the Modern Mind. lsl And not surprisingly, since it was its psychoanalytic base which secured for Frank’s legal theory its critical quality. Llewellyn had published The Bramble Bush the same year that Law and the Modern Mind had appeared and Frank gingerly made transparent his disagreement with Llewellyn in a review of The Bramble Bush. “We do know something,” argues Frank,ls2

about the evil consequences of the conventional theory. According to the theory, all decisions are born of the wedlock of logic and stable precedents, and any decisions born out of that wedlock are assumed to be illegitimate. That belief frequently thwarts and dis- torts clear legal thinking and interferes with the well working of court justice, for it compels lawyers and judges to suppress both the expression and the frank recognition of many important factors that affect and produce decisions and to devote countless precious hours to the articulation of distorted and inaccurate “reasons” for decisions in terms of artifical so-called legal “rules.” Of all this Llewellyn writes at length and most effectively. It is, then, with a shock that one comes upon his statement that the old theory promotes the common weal. _ . . There are times when “both-and” will not serve. There are antitheses, there are choices between alternatives. There is such a thing as a middle of the road position, and it is often sound. But there is no such thing as following at once two roads at the cross-roads, riding on two trains going in opposite directions.

This lengthy statement of Frank’s position could not illustrate more perfect- ly the distance between himself and even the Realist wing of liberal legal theory. For Frank, there simply was no question when the problem posed concerned a fundamental or “cross-roads” issue like the systematic deception per- petrated by apologists for the myth of legal certainty. Either you admitted that the law was neither autonomous nor predictable or you didn’t. Either you par- ticipated in the ideological manipulation or you didn’t. You could not ride on two trains going in opposite directions. You could not salvage some beneficial interest of society (“the common weal”) in the perpetration of a hoax.

In the late 1930s Walter Kennedy of Fordham perceived the dissention among the Realists and sought to label Frank and Thurman Arnold as legal Realism’s extreme left-wing. ls3 By 1957, however, Frank’s closest theoretical

IsoOn legal Realism, see W. Twining, Karl Llewllyn and the Realist Movement (1973); Rumble,

American Realism (1968); Bunn, Following the Rivulets Downhill: The Unmet Challenge of the Legal Realists to the American Law School, (m.s., 1977).

“‘See Llewellyn, Law And The Modern Mind in Essays on Jurisprudence from the Columbia Law Review 354-362 (1963).

15*Frank, Book Review, 40 Yale L.J. 1120, 1124 (1931).

“‘See Kennedy, sup-a note 119; Kennedy, Psychologism in the Law, 29 Georgetown L.J. 139 (1940).

52 ANTHONY CHASE

ally, was prepared to forget the critical and autonomous character of Law and the Modern Mind and attempt to collapse Frank’s jurisprudence into the retro- grade instrumentalism which was everywhere else in a position of intellectual hegemony. 154

Arnold’s central tactic was to assimilate Frank to the New Deal struggle against a conservative Supreme Court and the “substantive due process” values which the Court, up to 1937, sought to read into the Constitution.r5’ By emphasizing that “legal rules are not commands from Mount Olympus which are eternal and unchangeable,“156 Frank (according to Arnold) had paved the way for “the change in attitude toward the legal relations of the citizen and his government (which) was essential to accommodate our legal philosophy to the industrial revolution of the 20th century. “i5’ “That (Frank’s) vision was right,” asserted Arnold, was demonstrated by the fact that “the Court has left economic matters largely to the wisdom of Congress and the state legislatures. The Supreme Court has not held an important act of Congress unconstitutional in fifteen years.“is8 Astonishingly, Arnold had equated the essence of Frank’s jurisprudence (and the impact of Law and the Modern Mind) with the attack on the judicial legislation of the Supreme Court during Roosevelt’s first Presi- dential term. Frank had exploded the myth of legal certainty (“by emphasizing that ‘legal rules are not commands from Mount Olympus”‘) not in order to stop courts from legislating but, on the contrary, to stop them from pretending that they did not.

The former could be readily assimilated to New Deal liberalism and the Real- ist version of legal theory but the latter obviously presents a critique of law which outruns both.

When courts overrule legislative enactments, they make law and thus, in a sense govern.159 But when they defer to one or another branch of government or jurisdictional claim, they govern no less since law, as Frank argued through- out Law and the Modern Mind, is never impersonal or disinterested. In one case it is law made by however many members there are on a particular court; in another it is law made by however many persons (or how few) critically impact on a legislative or administrative decision. In no case (save the utopian notion of direct democracy) is law made constantly by the polity itself. The conventional pluralist assumption that a legislative decision is more “democratic” than a judicial one, absolutely requires for its proof a concrete and rigorous demonstration of which decision most assuredly comports with the actual

‘54Arnold, Judge Jerome Frank, 24 U. Chicago L.R. 633 (1957). ‘55After 1937, the Court read different values into the Constitution, see L. Tribe, American Constitu-

tional Law 450-455 (1978). Only a Byzantine form of purely textual exegesis could arrive at any other conclusion, see Chase, American Constitutional Scholarship as a Form of Literary Criticism, (ms. 1979) but see contra, G. Gunther, Cases and Materials on Constitutional Law (9th ed. 1975); R. Berger, Gov-

ernment by Judiciary (1977).

rs6Arnold, supra note 154, at 638.

“‘Id. at 638-639. ‘=‘Id. at 637.

‘?See Berger, supra note 155.


democratic interest of the polity and not simply the show of hands in the smoke-filled legislative halls.i60

That courts need not be more suspect than legislatures was reiterated by Frank in an article published seventeen years after Law and the Modern Mind. “Although ‘we must not take lightly the objection to indiscriminate and ill- defined delegation,’ ” asserted Frank,r6i

- an objection which “expresses a fundamental democractic con- cern” - we should not “insist that ‘lawmaking’ is the exclusive pro- vince of the legislature.” We should, according to Jaffe, demand no more than that in the total process we achieve government by consent. But that consent can scarcely be said to have been given voluntarily if the consenters do not know that they have given it. Where- fore the courts should not conceal from the public their delegated power of sub-legislation, but should make every effort to inform the citizenry of how that power is exercised.

Frank’s admonition is not that courts defer to the more democratically in- clined legislative apparatus but that, on the contrary, they defer to the citizenry itself And the first step toward securing legitimate consent to court action is to make certain that the law is not wrapped in the aura of autonomy: the myth of legal certainty must be revealed for what it is.

Thus in presenting Jerome Frank as an advocate of judicial restraint, Thur- man Arnold obviously missed entirely the purpose of Law and the Modern Mind. Indeed, a more obviously bogus reading of Law and the Modern Mind could not possibly be advanced. After quoting sympathetically from “thaL bril- lian psychiatrist”‘62 Harry Stack Sullivan (pioneer in the forgetting of Freud) 163 Arnold accomplishes a total amnesis regarding Frank’s theory: “Jer- ome Frank was trying to free the law from its frustrating obsessions. His jurisprudence was the jurisprudence of therapy.“164 Jerome Frank’s psychoanalytic jurisprudence was the jurisprudence of critical theory, not reformist therapy. It remains entirely unassimilated within the discourse of liberal legalism precisely

Y%e Unger, supra note 13; Neumann, supra note 123; R. Milliband, Marxism and Politics (1977); N.

Poulantzas, Political Power and Social Classes (1973); G. Therborn, What does the Ruling Class do When

it Rules? (1977); see also A. Cox, The Role of the Supreme Court in American Government 116 (1976):

“I should be no less irked than Judge Hand if the Supreme Court were to void an ordinance adopted in

the open Town Meeting in the New England town in which I live ~ a meeting in which all citizens can par-

ticipate - but I should have little such feeling about a statute enacted by the Massachusetts legislature in the normal political pattern, and none about a law made in that normal pattern by the Congress of the

United States. Perhaps my sense of the matter is distorted by years of advocacy in constitutional cases, but it appears to me that modern government is simply too remote, and too few issues are fought out in

elections, for a citizen to feel much more sense of participation in the legislative process than the judicial.

Nor does the Supreme Court’s intervention lessen my sense that we are all engaged in a common adven- ture.”

16’Frank Words and Music: Some Remarks on Statutory Interpretation, 47 Columbia L.R. 1260,

1270-1271 ;1974).

‘62Arnold, supra note 154, at 634.

‘Yi’ee supra note 86 and accompanying text.

‘64Arnold, supra note 154, at 635.

54 ANTHONY CHASE

because there is nothing “therapeutic” about it, except perhaps in one special sense observed in 1940 by Edgar Bodenheimer: “Judicial ‘experimentation’ and a personal administration of justice may be a cure for the ills of the present legal order. But it is a cure which will remove the disease by killing the patient, namely the law.“165

Arnold constantly stresses that Law and the Modern Mind must be read in context, by which he is in effect arguing that today, it should not be read at a11.166 But we can and should read this book which constitutes the first trans- gression of liberal legalism’s intellectual seal, the authentic epistemological break in the discourse of our jurisprudence.

lb5E. Bodenheimer, Jurisprudence 315 (1940).

‘66Arnold, supru note 154, at 638.

Documents

Jerome Frank and American psychoanalytic jurisprudence