Law and the Unconscious: A Psychoanalytic Perspective



By Anne C. Dailey, JD, former Erikson Scholar and current Evangeline Starr Professor of Law at the University of Connecticut School of Law

Anne C. Dailey, JD, reflects on her time at Riggs as an Erikson Scholar and the book she was working on at the time–Law and the Unconscious: A Psychoanalytic Perspective (Yale University Press, 2017).

Anne Dailey, J.D., Erikson ScholarWhen I arrived at Austen Riggs in the fall of 2012 for my semester as an Erikson Scholar, I expected that I would be separated off in my office, not having much contact with the day-to-day life of the institution. Instead, as other Erikson Scholars have experienced as well, I was thrown into this utterly amazing world I didn’t know existed–a psychiatric care facility that took seriously the life of the mind, and the deep complexity and richness, difficulties, and resilience of the human psyche. I was awed by the depth of the clinicians’ involvement with and caring for their patients.

I felt I had changed universes. The world at Riggs was unspeakably far from the view of the individual that informs and guides the law. I began my book because I had grown weary of trying to reconcile this legal fiction of the reasonable person or rational actor with what I knew about human experience and with my ideals of justice. Assuming that people are rational in all circumstances leads to unjust results in many cases–people who go to jail for deeds they did not commit, or did not intend to commit; people whose children are removed from them when in fact they are devoted parents; people who enter into contracts that are clearly unfair. The final straw for me came when I was teaching a class on domestic violence, and in particular teaching cases where abused women were being prosecuted for killing their abusers. The law asks: Did the defendant reasonably believe that her life was in danger at the moment she killed her abuser? The problem was, the men were often sleeping when they were killed. And so, legal decision makers would take the position that she obviously couldn’t have felt her life to be in danger when he was sleeping. She could have walked out the door instead. I turned to psychoanalysis in order to come up with a better account of why people behave the way they do.

And here are some of the “subversive” psychoanalytic ideas that I draw on in the book, ones entirely familiar to everyone connected to Riggs, but worth repeating here. I’ve tried in the book to be as understated and non-jargon-filled as I can about introducing these psychoanalytic ideas to a lay audience: (1) that there is an unconscious, and that much of what goes on in our unconscious minds is repressed, (2) that our early relationships determine much about who we are, (3) that people utilize particular defenses, such as denial and projection, (4) that we are conflicted beings who can be self-destructive, want things that hurt us, betray our own deeply held values, and (6) that transference colors most of our intense personal interactions and experiences. The book aims to correct for injustices in the system that arise from the denial of these core aspects of what it means to be a human being.

Yet it is precisely these ideas that lawyers and judges reject because they undermine the fundamental legal principles of free will and rationality. These are truths that the law, and the world more generally, are not eager to accept. To challenge the fundamental principles of rationality and free will necessarily opens the door to the radical, disruptive implications of psychoanalysis for the settled legal order. The question for law is how to recognize the role of the unconscious in our everyday lives while at the same time holding people responsible for their decisions and behaviors. Psychoanalysis may tell us that people often act from unconscious motivations, but the law still needs to judge, which means the legal system must impose some degree of personal accountability even where it is impossible to say that an individual was fully aware of what she did. 

In the book, I look specifically at how we might reform the law of confessions, prenuptial agreements, surrogacy contracts, sexual consent, violent threats, and children’s rights. Let me take an example. In the area of criminal law, we assume that a suspect’s confession is the strongest evidence of guilt. For why would a rational person confess to a crime that he did not commit? But we all know that individuals, out of unconscious guilt or other self-destructive forces, might indeed falsely confess to a crime. Drawing on psychoanalytic ideas about transference, guilt, and masochism, I advocate in the book for reforming the rules governing interrogation which allow the police to exploit a suspect’s need for approval and unconscious guilt in ways that override the suspect’s powers of rational decision making.

The book is my effort to show how it is possible to introduce psychoanalytic ideas into the law while holding onto the basic fundamentals of a legal system that values individual autonomy and personal responsibility. This effort has its parallel in psychoanalysis. This tension between the model of the rational actor and the psychoanalytic idea of the dynamic unconscious mirrors Freud’s own ambivalent stance between Enlightenment beliefs in rational thought and inquiry, and his uncovering of a Romantic unconscious realm beset by aggressive, irrational, and often self-destructive impulses and desires. To undergo psychoanalytic treatment is to embrace this ambivalence–to believe in the mind’s powers of reason while at the same time acknowledging the hold that unconscious desires and beliefs have on us. We necessarily behave “as if” we are rational, knowing, integrated selves despite knowing full well that much of what we do is beyond our conscious control. We give it names: intuition, gut instinct, déjà vu, the uncanny. We assume an “as if” stance because we need to operate in the world, to engage with others, to rise above brute instinctual forces. As Freud would say, civilization demands it.

And the law demands it, too. In the courtroom, we act “as if” the trial establishes some true historical reality at the same time that we know trials produce a legal narrative that may be only loosely related to historical truth. We act “as if” individual actors are rational when of course we know they’re not.

So my project is make this “as if” status of the law clear. What we see today is a legal regime that is “willfully blind” to the reality of the deeper, more transgressive forces in human nature. When we keep firmly in mind that the autonomous rational legal actor is a legal fiction, one that we embrace with ambivalence, then we find ourselves in a realm of what I call good-enough judging: a style more uncertain and skeptical, less harshly punitive, more open to understanding the people caught up in the legal system and what has brought them there.

Being an Erikson Scholar has been central to my identity as a scholar doing interdisciplinary work. I came to Riggs hoping that I could ground the psychoanalytic ideas that I was using in the clinical work being done here, and that is exactly what happened. More broadly, I was deeply inspired by watching the clinicians at Riggs making the effort to understand their patients in deep and holistic ways. My time at Riggs helped to fortify me in my effort to bring the law into line with the reality of human experience and subjectivity. Riggs really did give me the courage and companionship I needed to pursue my own work in a field unfriendly to psychoanalytic ideas. 

Anne C. Dailey’s book, Law and the Unconscious: A Psychoanalytic Perspective is published by Yale University Press. It received the American Psychoanalytic Association’s 2018 Courage to Dream Book Prize and the University of Connecticut’s 2018 Sharon Harris Book Award.


We are currently accepting applications until December 1, 2018 for the Fall 2019 Erikson Scholar slot.