Hearsay: A Note on a Lacanian Question

According to Federal Rule of Evidence 802, hearsay is not admissible as evidence in a court proceeding except as provided in the FRE (or other legislation). “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). The hearsay exceptions are legion (for instance, excited utterances, assertions made during the course of a present sense impression, various types of records, and so on are all admissible to prove the truth of the matter therein asserted – and these examples come from only one of many categories of such exceptions). A case often turns on whether or not some key piece of potential evidence can be admitted for its truth-value or probativeness with respect to the fact or set of facts to be proven in the claim. The court must decide whether to hear, to take into consideration in formulating its decision, the item in question; this requires an analysis of the merits of a hearsay objection (by opposing counsel) and, concomitantly, whether a hearsay exception applies (assuming we are dealing with an out-of-court statement offered against a party, etc.). That is to say, what is at issue is always whether or not the court will register the out-of-court utterance; we would not be remiss in suggesting that the court masquerades in the garb of the Other in a hearsay question, par excellence. The supplicative desire (an impoverished desire) of the party offering the evidence is, in a Lacanian reading, a demand (demande, appeal, request) addressed to the Other from which the party-Subject can expect a symbolic response, a coded articulation. This particular reintroduction to the juridico-Symbolic realm raises a question about the reproduction of the imaginary order of things, namely, when or in what circumstances will the discursive structure admit a foreign element? A second question, though of decisively greater importance, quickly follows the first: If we can assume (as I think we can) that the structure grants admittance only to those elements capable of re-encoding, capable of being neutralized, is it ever possible to subvert this reproductive process, to elude the symbols of (imaginary, “consistent” in Badiou’s terminology) justice?

I would like to follow this thread for a bit, using the hearsay rules as a launching pad only (they are quite elastic, after all).

According to Lacan, Freud (in Totem and Taboo)

“link[s] the appearance of the signifier of the Father, as author of Law, with death, even to the murder of the Father – thus showing that if this murder is the fruitful moment of debt through which the subject binds himself for life to the Law, the symbolic Father is, in so far as he signifies this Law, the dead Father.”

“On a Question Preliminary to Any Possible Treatment of Psychosis,” Écrits: A Selection, 199.

The monopoly over sexual gratification held by the primal Father, in Freud’s myth, is an originary social formation in itself. The violent overthrow of that regime – the parricide executed by the band of brothers – is the dialectical response produced by that originary formation; that is, the father’s “monarchy” created the conditions for its own dissolution precisely insofar as it operated smoothly, though in truth the tonality of this dissolution was predetermined in that it comes to pass through a process of negation. (One sees, therefore, an important precedent to Walter Benjamin’s “Critique of Violence” in Freud.) This new regime, prospectively one of liberation and freedom, turns out to be quite different than expected (though not, of course, from a dialectician’s point of view): it is the founding site for the event of repression (we might thus say, “Repression”). The guilt that emerges in the killing – more accurately, in the aftermath of the killing – is the kernel of the Other abstracted from its “property” and internalized, such that, henceforth, we can say that the Other resides in each subject (though not, of course, completely – whatever that might mean). This “fruitful moment of debt” is the true (Lacanian) constitution of the subject, properly its subjection. The Law, the Name-of-the-Father, operates as the ultimate anchorage point for the entirety of social / symbolic life, which is to say, as the superegoic thrust in ideal form.

Law & Psychoanalysis takes this extremely panoramic view of law – law as culture, law as society – as its point of departure. Moreover, Law & Psychoanalysis is not exactly a marginal-marginalized approach any longer – it has developed into a rather sophisticated mode of legal critique, with adherents from all intrajuridical disciplines or practice backgrounds and from all styles of legal academy. I would like to discuss the psychoanalytical approach to law and, in relatively short order, raise some fundamental questions.

For Lacan, according to noted Lacanian legal theorist David Caudill,

“no one is ever outside the Law – people stand in relationships of vassalage and crime, honor and dishonor, with the Law. Already, of course, ‘the Law’ is the symbolic order consisting of ‘chains’ that bind and orient and transform without regard to consciousness. We enter the symbolic order with language, in place, and it assigns us our places.”

Caudill, Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory, 63.

All this is vintage Lacan, so the potential holdup is not with Caudill per se. The stumbling block is that the law, as evidenced in the quotation from Lacan’s discussion of Schreber posted above, the object of study or at least the means of ingress into larger social theory problems, is in such an approach the symbolic order as such (the Name-of-the-Father as pure “grounding” signifier, ultimate point of reference), while legal theory, at least in the Liberal tradition (in which American jurisprudence is anchored), wants to focus on questions of judicial decisionmaking, doctrinal analysis, and so forth, and this holds even for radical legal theorists in this tradition (I am thinking of the “radical realists” of the 1930s and 40s in particular, but also the more recent CLS movement, a revival and even an excrescence of that earlier mode of attack known as realism). It seems a Lacanian approach might broaden the field a bit too much, bite off a bit more than an American scholarly audience (which is not to suggest the opposite for, e.g., a European scholarly audience, a Canadian scholarly audience, etc.) cares to chew through. These are concerns near to the hearts of critical theorists in general, of course, because they want/need an audience that is greater in number than they themselves (otherwise they are writing to themselves alone) yet, and perhaps this is despite protestations, there is a certain “critical pride” in minority, a certain seduction in moving against the mainstream, and in assaulting said mainstream with allegations such as that these strands of work “naturalize the status quo” (this is Peller), “contribute to the reproduction of hierarchy” (this is Kennedy), and so on. I point this out not because I want to neutralize these claims (indeed, I wholeheartedly endorse the Peller and Kennedy critiques of mainstream sociolegal thinking), but because I wish to highlight the “critical anxiety” or ambivalence in a reflexive manner, as a way to engage it productively.

Is this stumbling block fatal to such an approach? Hardly! But it is real, and must be grappled with (like any real). The minority of an approach is sometimes its strength, as we know. Delivered unto us thereby is often a new set of percepts, a new structure of affect, a whole new potentiality or singularity awaiting actualization. These percepts and affects appear, from the molar standpoint, as, e.g., trivialities, non-sensical, or bits of paradox. The real, as Lacan claims, is essentially misrecognized. Yet the redistributions and condensations they bring in being carried out lead us to look back on them as events, defining, earth-shattering (some will say: “volcanic”) events.

What is really at stake here is the content of the set of potentials available for actualization in a Lacanian critical jurisprudence. The courts and the legal institution in sum play a distinctive part in the perpetuation of a particular symbolic order or regime of signs. Given this, we are required to follow up: Is there a potential for liberation in the virtual sphere of a Lacanian approach? Psychoanalysis may run up against its limit here, or, for more sympathetic folks, may force the realization upon us that there is no such thing as liberation. Schopenhauerian as it sounds, we may be condemned to the particular brands of oppression brought out by our representational-democratic (i.e., pseudo-democratic) regime of signs. All we can hope for is to “traverse the fantasy,” to become docile with respect to the order of things through acceptance. But if this is the case, why did we bother with a psychoanalytical critique of law in the first place? (Zizek has some interesting things to say on this question, but I can’t discuss them now – certainly, I will return to Zizek’s role in developing a psychoanalytic critique of law, revisiting this question with a new immediacy; Zizek is able to discern in the law, in an institutional as well as cultural sense, a sort of de-limitation, a restriction that nevertheless enables, and so the possibility of a truly constructive psychoanalysis of law becomes real.) For my part, here is where I think the possibility of a Deleuzian, not to say “schizoanalytical,” approach to law becomes necessary. I’ll merely light the path here but will return in a series of future posts to begin actually following it, as I work out some details.

A central theme of the Anti-Oedipus is that social formations generate their own lines of escape, that laissez-faire capitalism, for instance, breeds marginal subjects that sense the means of egress, the “leaky spots,” made available by the functioning of the system itself. And this is its “proper” functioning: Deleuze & Guattari continually note, in that text, that capitalism “works,” there is no reason for it not to work; in “working,” however, variegated flows of labor (minor sciences, war machines of various types, and so on) come into being as a sort of remainder, in the form of a hold-over – and then it becomes a matter of seizing this liberatory potential in some constructive way, or, as Deleuze will say, “to be carried off elsewhere, the beyond, on a crazy vector, a tangent of deterritorialization” (“Two Regimes of Madness” in Two Regimes of Madness, 15). Does it become possible to follow such a tangent in a Deleuzian mode?