“No Truth Machine”: Law,Psychoanalysis,Uncertainty

Abstract

Both law and psychoanalysis make certain truth claims. This essay considers instances in which each has evaluated the truth claims of the other and found them wanting. The essay begins by looking at legal materials and commentaries surrounding repressed memories of childhood sexual abuse and the therapies in which such memories come to light. Many of these materials contrast psychoanalytic knowledge to legal knowledge, locating speculation and potentially dangerous uncertainty in the former. Yet courts and others employ notable analogies between legal and psychoanalytic processes while simultaneously insisting on their incommensurability. Following an analysis of this tension, particularly as it plays out in one recent case, the essay turns to Freud's 1906 lecture on the usefulness of psychoanalytic techniques to legal proceedings and their search for facts. Freud, too, makes his case through a tenuous analogy between law and psychoanalysis. While courts and others may see the two as antagonistic, Freud imagines his own field as indispensable to law in enabling it to exploit the unconscious in the service of fact. Thus each field lays claim to truths that appear to elude the other, simultaneously perceiving in the other field a precarious likeness of itself.