Zizek and Law

Laurent de Sutter

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317624783
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

The very first book dedicated to Slavoj Zizek's theoretical treatment of law, this book gathers widely recognized Zizek scholars as well as legal theorists to offer a sustained analysis of the place of law in Zizek's work. Whether it is with reference to symbolic law, psychoanalytical law, religious law, positive law, human rights, to Lacan's, Hegel's, or Kant's philosophies of law, or even to Jewish or Buddhist law, Zizek returns again and again to law. And what his work offers, this volume demonstrates, is a radically new approach to law, and a rethinking of its role within the framework of radical politics. With the help of Zizek himself – who here, and for the first time, directly engages with the topic of law – this collection provides an authoritative account of 'Zizek and law'. It will be invaluable resource for researchers and students in the fields of law, legal theory, legal philosophy, political theory, psychoanalysis, theology, and cultural studies.

Part I

Law’s obscenity

Chapter 1

The pervert’s guide to the law

Clinical vignettes from Breaking Bad to breaking free

Maria Aristodemou

Session 1: transference

It is well known that any successful analysis (rare as those occasions are) culminates in a double murder: first the annihilation of the analysand and her re-birth as a new subject; second, and less interesting, the ritual discarding of the analyst. Once the analysand has become her own cause and author of her own desire, the analyst who occupied, temporarily, the place of the patient’s cause of desire can be tossed into the nearest bin. At that point, supposedly, the patient has crossed the threshold not only of the analyst’s home for the last time, but her own fundamental (and invariably embarrassing, not to mention shameful if not criminal) fantasies. In Lacanese this is called the “pass” and signals the patient’s accession to the status of an ethical subject and, should she wish, an analyst.

As a humble lawyer, and an academic lawyer at that, I harbor no such grand ambitions. The purpose of this chapter is much more modest; it aims to remind the legal subject, of some “events” that took place along the way, that is, instances where the patient’s relationship to the law was not only severely challenged but was shattered to pieces, requiring a new understanding with the law and its wily ways with her desire. These are events that had the legal subject shuffling awkwardly out of the analyst’s house, having barely been able to get to her feet, let alone gather her thoughts, the sessions having been cut unceremoniously short, the price having been deposited on the analyst’s desk, and the patient now being left to mull over why she exposed herself to the humiliating journey of encountering herself in the first place.

Slavoj Žižek is a heavy, not to mention loud and colorful weight to toss, but the deed must be done as is the cleaning up after a murder. To be clear, whether Žižek (or anyone else for that matter) positioned himself in the role of the analyst, let alone that of the master, is beside the point here; nor does it exonerate him of the fate of being ritually discarded and dethroned. As any analyst knows, a would-be master’s impotence, incompetence, or limitation of any sort never stopped hysterical subjects from transferring their wishful desire for answers, indeed for right answers, to him. The hysteric will transfer her desire for knowledge and ascribe the position of the master to whoever she assumes knows, only to decide shortly afterwards that the master was never that knowledgeable or that masterful in the first place. Along the way of dethroning the master from his position as the subject supposed to know, the analysand picks up a few lessons, not only for herself, but for the master whose position is constantly under challenge. This chapter will report some of these lessons for the patient subject of law as well as for the would-be legal master along the way.

Session 2: law

Like many analyses, this one also starts with a dream: in the dream the legal subject’s double is paying her a visit. The visitor relates to our patient that she has discovered a sweet little bookshop near the British Museum, where she picked up lots of great new books. The friend unpacks her backpack and displays her new treasures. The new books are all from a publisher called Chronos. One of the titles is by an author called Slavoj Žižek. The title is All you Need is Punishment.

Although Žižek writes faster than many people read, as far as we know he has not (yet) written a book with this title. Why the ascription of this volume to this author, then, by the legal subject’s unconscious? Since Freud’s “discovery” of the unconscious, it has been common to glamorize it as a seat of unruly instincts unsettling the subject’s equanimity and threatening the composure of the ego and its relations to the social order: “From the point of view of instinctual control, of morality” Freud suggested, “it may be said of the id that it is totally non-moral, of the ego that it strives to be moral, and of the super-ego that it can be super-moral.”¹ What is less often pointed out is Freud’s insistence that the unconscious is made up not only of unruly impulses but of contradictory ones, including the subject’s desire for and enjoyment of rules: “the normal man” as Freud put it, “is not only more violent than he believes, he is also more moral than he knows.”²

One of Žižek’s first lessons to legal subjects, one that he has been stressing repeatedly for three decades now, is that the desire to obey is no less repressed and hidden from the subject than the desire to disobey and rebel. Indeed with modernity the unconscious desire to obey has grown: modern man’s so-called murder of God has not meant that the subject is blissfully and wildly free but the opposite: without God, far from everything being permitted, Lacan insisted, everything is prohibited.³ Why is that? On the one hand, if there is one meaning to God, as Lacan made clear, is that he is All-enjoying, that he is jouissance: Christianity, he says, “naturally ended inventing a God so that he is the one who gets off.”⁴ The problem with killing the All-enjoying being who obeys no one is that the subject is left with no axis around which she can measure her defiance or enjoy her transgression. As I have discussed before, the morning after the death of God is a nasty hangover without us having had the party the night before: our modernist parents had the party and we are left with cleaning up the mess of their enjoyment.

From God’s point of view, as Žižek has joked many times, he has become undead, like the cartoon character who continues running long after he has crossed the precipice: he is dead but doesn’t know that he has died. From the subject’s point of view, the so-called “naturalist liberation of desire,” as Lacan says, has also failed historically: “We do not find ourselves in the presence of a man less weighed down with laws and duties than before the great critical experience of so-called libertine thought.”⁵ What we do find is Michel Houllebecq’s desireless atoms who often crave prohibition to resuscitate their sleeping and crushing lack of desire. Their preferred mode of suffering, as one of his characters puts it, is modern society’s symptom par excellence, depression. “It’s not that I feel tremendously low,” he explains; “It’s just everyone around me appears high.”⁶

With Žižek’s work we begin to understand modern man’s (and to a lesser extent woman’s) paradoxical predicament in the absence of restrictions: when there is no agency issuing commands and prohibitions from above, the subject takes the task unto herself and enacts and enforces them with greater zeal than any outside authority. Since the discourse of modernity dwells on the subject’s freedom from constraints, what the subject ends up repressing is not her supposedly illicit desires for transgression but her desires for prohibition, for obedience and for punishment. As Žižek puts it, the more everything is permitted, the more our desire for prohibition is displaced onto our unconscious: “We should renounce the usual notion of the unconscious as a reservoir of wild, illicit drives: the unconscious is also (one is even tempted to say: above all) fragments of a traumatic, cruel, capricious, unintelligible and irrational law text.”⁷ Or, to put it another way, when everything is permitted, desire has no axis around which to circulate, so the only thing left to desire is prohibition.

In a permissive society, therefore, the subject comes to desire rules, prohibitions and punishment. The more the subject proclaims herself not to be bound by any laws, the more she loads prohibitions onto her unconscious. And the less external prohibitions there are, the more internal prohibitions press on her: as Žižek writes, “far from being a mere extension or internalization of the external law, the inner law (the law of conscience) emerges when the external law fails to appear.”⁸ The subject may no longer subscribe to a religion demanding strict fasting; instead she subscribes to the latest diet fad or health regime. Indeed in the absence of an external authority, the subject finds that she is called upon to wage battle with and is in vain combat with herself. As we will see later, many subjects choose the burden of prohibitions to the greater burden of self-legislation. Those who choose self-legislation (and Žižek readily admits they are more likely to be women) attain what Lacan calls the status of an ethical subject.

Session 3: unconscious

Having paid lip-service to the image of Freud in popular imagination by starting her analysis with a dream, the legal subject soon has to come to terms with the fact that the unconscious is not safely tagged away in nocturnal recesses that she may or may not choose to reveal but will sooner or later, and whether she likes or not, manifest itself in her speech. If for Freud the royal road to the unconscious was dreams, and for Lacan the royal road to the unconscious was speech, we can venture the suggestion that for Žižek the royal road to the unconscious is the products and practices of our culture.

Hard as it is to find an example that Žižek has not already addressed, the following story may serve as an illustration: “I am in love with two women, a not terribly uncommon problem.” Woody Allen writes in a short story he penned in 1980. “That they happen to be mother and child? All the more challenging!” he continues. His girlfriend’s daughter reciprocates his attraction, as of course does her mother. When he marries the mother, at the wedding party the daughter finds a quiet place where she tries to seduce him: “‘It’s a whole new ball game,’” she tells him, “pressing close to me. ‘Marrying Mom has made you my father.’ She kissed me again and before returning to the festivities said, ‘Don’t worry, Dad, there’ll be plenty of opportunities.’”⁹

What can this short story tell us that all the legal, media, and social circus surrounding the recent furore about Woody Allen’s alleged sexual crimes and misdemeanours neglected? News and social networking sites were abrim with analyses and opinions, debates and reflections on the participants’ credibility, motives, likelihood to commit crimes or, respectively, to lie about uncommitted crimes. From a psychoanalytic perspective, however, what is most interesting about the case is observers’ feigned shock and surprise at the revelations. For psychoanalysis, truth, that is, the truth of the subject’s desire, is already out there and it will come as no surprise that for Lacan the place we should be searching is not far from the place where the subject’s enjoyment resides: truth, he says, is “the sister of that forbidden jouissance.”¹⁰ It is not, as Edgar Allen Poe put it, at the bottom of a well, nor hidden and supposedly hard to excavate, but on the surface of our words and practices.¹¹ If only we dared to read and look; a big “if” of course.

The subject herself already knows that truth, even if she doesn’t know that she knows it: we can be sure, however, that she will do everything possible to prevent us, and herself, from finding it. What is the royal road to this place then? For psychoanalysis the royal road to this place is speech: truth appears not in facts, or thoughts, or feelings, but in words. Signifiers, we can say, have all the luck. As Lacan insisted, “It is because that which is known can only be known in words that that which is unknown offers itself as having a linguistic structure.”¹² As Kafka illustrates with his grim tale In The Penal Colony, the unconscious is above all a form of writing, exteriorizing the subject’s hidden desire and inscribing it, indeed branding it on the subject’s body with its wounds. The chief concern of psychoanalysis therefore is not that of judging but of reading: the unconscious leaves traces in the subject’s speech just as it leaves wounds on the convict’s body, making itself into a text, out there, for us to read.

How does fiction, including Woody Allen’s fiction, enable us to get to the truth? Far from lying being the opposite of truth, analysts and poets have always appreciated that lies can lead us to the truth. For psychoanalysis the castration wrought by language is so central that our ability to lie is what constitutes us as subjects. Indeed for Lacan the human being becomes a subject not when she starts to speak but when she starts to lie. Beginning to lie means the subject has recognized the arbitrariness of the signifier, in other words, has worked out how to manipulate language. The subject’s statement may be false, it may be a lie, but the act of enunciation can reveal the truth of the subject’s desire, behind and despite the lie; as Shakespeare knew, truth, sooner or later, will hitch a ride with the lies.¹³

As Peter Serafinowicz quipped about another celebrity accused of child molesting, “Jimmy Savile was a child molester who hid behind the disguise of a child molester.” The more it was advertised in fiction, the more its basis in reality could be protested and protected. Woody Allen did indeed advertise his attraction to underage girls in his films, in interviews, and, as the extract from his short story above shows, in his fiction. Of course the fact that Woody Allen may have dreamt or written or fantasized about sex with his partner’s daughter does not mean that he “did it,” nor that, from a legal point of view, he was guilty. What it does mean is that the legal question doesn’t exhaust, let alone determine, the ambit of guilt and punishment in psychoanalysis. For psychoanalysis guilt is another matter altogether, leaving legal notions of guilt trailing miserably and pathetically behind.

As far as criminal law was concerned, evidence relating to Mr Allen’s alleged crime was inconclusive. Although an arrest warrant had been issued, it was never enforced, and the civil judgment on custody addressed but of course could not determine the alleged criminal offence:

Mr Allen’s relationship with Dylan remains unresolved. The evidence suggests that it is unlikely he could be successfully prosecuted for sexual abuse. I am less certain, however, than is the Yale–New Haven team that evidence proves conclusively that there was no sexual abuse…. I agree that we will probably never know what happened on 4 August 1992. Credible evidence does suggest, however, that Mr Allen’s behavior toward Dylan was grossly inappropriate and that measures must be taken to protect her.¹⁴ If for the legal system the inconclusiveness of evidence is a defense, however, for psychoanalysis matters are not that simple.

The theme of guilt has been at the heart of psychoanalysis from its inception and, as we can already guess, psychoanalysis is much less forgiving than law. As Freud discusses in Dostoevsky and Parr...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Contributors
• Introduction
• PART I Law’s obscenity
• PART II Hegel and consequences
• Index