The purpose of this paper is to briefly analyze two levels of potential and actual interrelationship between psychoanalytic insights and legal working. The first is psychoanalysis as a total philosophy of man, descriptive of man and all his institutions including legal ones; the second is psychoanalysis as a tool for the law where legal institutions seek for value reasons to intervene in a particular situation where the psychology of an individual(s) is at issue. The latter use of psychological theorems and methods covers the legal spectrum from cases of "undue influence" in wills to questions of "mens rea" in criminal, intent in torts, reliability in evidence and "proper parent" in family law, to mention only a few situations. I intend to first indicate the obvious, i.e., that the law is primarily concerned with the weighing and balancing of values. To do this I will in very summary form explore some recent jurisprudential formulations that do or do not cover within their definition the total nature of man. This becomes pertinent in examining my first point—that psychoanalysis presents a total view of man which may prove after examination to be in conflict with the law's or a particular jurisprud's philosophical postulates. After this very brief and necessarily inconclusive jurisprudential exercise, I will attempt again summarily to indicate some extant psychological theories and how they respectively convey different pictures of man. I will finally focus upon psychoanalysis as a legal tool to help the law make more "valid" decisions. For this purpose I have selected the problem of intervention into the family unit as of particular pertinency to our whole range of societal values and where, if anywhere, psychoanalysis could prove a guiding resource. I have indicated my own value preferences, but the purpose of this article is to suggest these points: (1) that the lawyer must be aware of everything pertinent to human nature, and (2) that despite all his knowledge he still must make his own decisions. In light of present psychoanalytic learning I will maintain that the law should not seek out the individual case to intervene affirmatively in human relationships unless and until private persons begin adversary proceedings. Once the legal process has been invoked, the question of psychiatric intervention is more difficult and the outcome still speculative at best, as I will attempt to show.
Leonard V. Kaplan,
An Academic Lawyer Plays Armchair Analyst: Some Speculations on the Relevance of Psychoanalysis to the Law,
46 Neb. L. Rev. 759
Available at: http://digitalcommons.unl.edu/nlr/vol46/iss4/3