Abstract
In this paper, I elaborate a Derridean deconstruction of law through the lens of Lacanian psychoanalysis. Derrida only focuses on jurisprudential law enforcement in his famous ‘Force of Law’ lecture, leaving corporeal law enforcement untouched. In turn, I explore the irresolvable conceptual tensions within corporeal law enforcement from the standpoints of (a) individuals rationalizing their obedience to law enforcement and (b) the legal system rationalizing its circumscription of acceptable law enforcement. To support my analysis, I examine landmark court cases and their deleterious effects on accountability for law enforcers. In particular, I track the progression from the legal standard of ‘shock of conscience’ (i.e., established by Rochin v. California (1952)) to that of ‘objective reasonableness’ (i.e., established by Graham v. Connor (1989)), which reinforces the legal protections for and libidinal features of police brutality. In this sense, I seek to clarify the dimensions of the libidinal economy belonging to policy brutality, namely its components of sadism and superegoic enjoyment.
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Notes
To be clear, the something that always-already escapes conceptual gras** differs between Derridean deconstruction and Lacanian psychoanalysis. For the former, the ‘trace’ – the overflowing character of signification built into the semiotic structure of différance as simultaneously differing and deferring meaning – evades firm conceptual capture (Derrida 1982, p. 26). For the latter, the ‘Real’ – the psychic register that exceeds and fundamentally challenges efforts at symbolization – evades firm conceptual capture (Lacan 2006, p. 324). Such a similarity in acknowledging the insufficiency of any discrete, finite apparatus of language, most likely, emerges from a common commitment to Saussurean structural linguistics between Derrida and Lacan.
Some forms of natural law jurisprudence build upon this fundamental assumption, namely the law, as an intrinsically moral enterprise constituted by practical reason, should enable rational agents to procure the basic public goods of the social order: ‘It is … practical reasonableness itself … that directs us towards, and oversees, the pursuit of (and respect for) all the … basic human goods’ (Finnis 2017, p. 19). This assumption will be challenged.
Two potential misunderstandings should be addressed posthaste. First, I am not contending that the relevant rulings possess a metaphysical force beyond their interpretation in socio-historically mediated contexts. In other words, they do not carry effects beyond their interpretation in concrete, particular courts of law. Nevertheless, the transition in jurisprudential reasoning between these rulings reflects a shift in how law enforcers on-the-bench justify and legitimize the actions of those law enforcers in-the-streets (i.e., how they circumscribe the domain of state-sanctioned violence). I concern myself with this symbolic shift primarily. Second, however, I contend that there are material implications for this transition in jurisprudential reasoning. Corporeal law enforcers, more often than not, do not familiarize themselves with the historical trajectory of constitutional precedent on police brutality, but judicial law enforcers do. In the judicial enforcement of law with respect to the corporeal enforcement of law (i.e., juridical cases concerning police brutality), the underlying jurisprudential reasoning baked into the historical trajectory of constitutional precedent on police brutality achieves reality in the assessment of individual cases. Such a (dialectical) movement in jurisprudential reasoning, therefore, ought to be highlighted for its potential and actual impacts.
Rationality, here, signifies the sublation (i.e., assimilation and preservation) of the individual into the universal: ‘To begin with … Reason is aware of itself merely as an individual … [t]hen, however, its consciousness having raised itself into universality … becomes universal Reason’ (Hegel 1977, p. 211). The opposites, through dialectical mediation, become unified in a speculative action.
St. Thomas Aquinas, an oft-cited advocate and proponent of natural law, formulates his division between human (positive) law and natural law as follows: ‘I answer that, As Augustine says, that which is not just seems to be no law at all. Hence the force of law depends on the extent of justice’ (Aquinas 1948, p. 649). For Aquinas, without conforming to natural (i.e., divine/moral/virtuous) law, human law falls short of its mark and does not deserve the label of ‘law.’.
Niklas Luhmann, in A Sociological Theory of Law (1985), theorizes law as a third-party mechanism for reducing, limiting, and constraining the contingency and complexity of modern society (i.e., regulating and controlling possibility in any given interaction – to cognitively and normatively simplify intersubjective dynamics).
The conviction of Derek Chauvin on all three charges for the murder of George Floyd serves as an exception to the rule (Graham 2021). Notably, though, Chauvin’s defense team employed the rudimentary arguments in accordance with the ruling in Graham, they pursued a dual strategy for acquitting Chauvin: (1) indicate alternative factors that caused Floyd’s death and (2) demonstrate the necessity of Chauvin’s use of force due to Floyd’s resistance (ibid). The latter factor, albeit prima facie unpersuasive, still constituted an essential aspect of the defense’s strategy.
Earlier, I cited Justice Hugo Black’s concurring opinion in Rochin v. California (1952). To maintain the general meaning of law enforcement as inclusive of jurisprudential and corporeal dimensions, I would like to mention Justice Black’s membership in the Ku Klux Klan, from which he resigned in 1925.
Aside from the libidinal or psychoanalytic comparison, a comparison in self-defense laws between Florida and Georgia sheds light on (a) the increased likelihood of conflict escalation between law enforcer and suspect while also clarifying (b) the rationalization of the law enforcer’s actions. Both states enacted ‘stand your ground’ laws in the 2000s, allowing those who perceive a threat to respond with lethal force even when the possibility of retreat exists (Sproul 2013).
References
Abrams, Rachel. 2020. Police Clear Seattle’s Protest ‘Autonomous Zone’. 1 July New York Times. https://www.nytimes.com/2020/07/01/us/seattle-protest-zone-CHOP-CHAZ-unrest.html. Accessed 24 July 2020.
Aquinas, Thomas. 1948. Introduction to St. Thomas Aquinas. Edited by Anton C. Pegis. New York City, NY: Random House, Inc.
Balibar, Étienne. 1996. Violence and Civility: On Limits of Political Philosophy. Translated by G.M. Goshgarian. New York City, NY: Columbia University Press.
Bentham, Jeremy. 2011. The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) [1843]. Online Library of Liberty.
Bouie, Jamelle. 2017. The Cloak of ‘Fear’. 23 June Slate. https://slate.com/news-and-politics/2017/06/why-fear-was-a-viable-defense-for-killing-philando-castile.html. Accessed 20 July 2020.
Burke, Minyvonne. 2020. White man accused of killing Ahmaud Arbery allegedly used racial slur after shooting, investigator says. 4 June NBC News. https://www.nbcnews.com/news/us-news/white-man-accused-killing-ahmaud-arbery-allegedly-used-racial-slur-n1224696. Accessed 16 July 2020.
Davis, Elizabeth, Anthony Whyde, and Lynn Langton. 2018. Contacts Between Police and the Public, 2015. October Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/cpp15.pdf. Accessed 20 July 2020.
de Sade, Marquis. 2019. Justine or the Misfortunes of Virtue. New York: Global Grey eBooks Publishing.
Derrida, Jacques. 1982. Margins of Philosophy. Translated by Alan Bass. Chicago, IL: University of Chicago Press.
Derrida, Jacques. 1995. The Gift of Death. Translated by David Willis. Chicago, IL: University of Chicago Press.
Derrida, Jacques. 2002. Acts of Religion. Edited by Gil Anidjar. New York City, NY: Routledge.
Finnis, John. 2017. Aquinas and Natural Law Jurisprudence. In: The Cambridge Companion to Natural Law Jurisprudence. Edited by George Duke and Robert P. George. New York City, NY: Cambridge University Press, pp. 17–56.
Ga. Code Ann. §17-4-60. 2010. https://law.justia.com/codes/georgia/2010/title-17/chapter-4/article-4/17-4-60/. Accessed 20 July 2020.
Gardner, John. 2019. Torts and Other Wrongs. Oxford, UK: Oxford University Press.
Graham v. Connor. 1989. 490 U.S. 386. https://supreme.justia.com/cases/federal/us/490/386/. Accessed 18 July 2020.
Graham, David A. 2021. Chauvin’s Conviction Is the Exception That Proves the Rule. 20 April The Atlantic. https://www.theatlantic.com/ideas/archive/2021/04/chauvin-verdict-george-floyd/618651/. Accessed 16 July 2021.
Hegel, Georg Wilhelm Friedrich. 1977. Phenomenology of Spirit. Translated by A.V. Miller. New York City, NY: Oxford University Press.
Hobbes, Thomas. 2010. Leviathan. Edited by Richard Tuck. Cambridge, UK: Cambridge University Press.
Hurst, Andrea. 2008. Derrida Vis- à-vis Lacan: Interweaving Deconstruction and Psychoanalysis (Perspectives in Continental Philosophy). New York City, NY: Fordham University Press.
Jameson, Frederic. 2016. An American Utopia: Dual Power and the Universal Army. Edited by Slavoj Žižek. New York City, NY: Verso.
Johnson v. Glick. 1973. 481 F.2d 1028. 2d Cir. https://casetext.com/case/johnson-v-glick. Accessed 14 July 2020.
Oppel Jr., Richard A. and Lazaro Gamio. 2020. Minneapolis Police Use Force Against Black People at 7 Times the Rate of Whites. 3 June New York Times. https://www.nytimes.com/interactive/2020/06/03/us/minneapolis-police-use-of-force.html. Accessed 6 July 2020.
Kant, Immanuel. 2002. Critique of Practical Reason. Translated by Werner S. Pluhar. Indianapolis, IN: Hackett Publishing Company, Inc.
Keck, Thomas M. 2014. Judicial Politics in Polarized Times. Chicago, IL: University of Chicago Press.
Lacan, Jacques. 1989. Kant with Sade. Translated by James B. Swenson, Jr. October 51: 55–75.
Lacan, Jacques. 2006. Écrits. Translated by Bruce Fink. New York City, NY: W.W. Norton & Company, Inc.
Levine, Sam and Oliver Laughland. 2020. Exclusive: Police tried to tase Ahmaud Arbery in 2017 incident, video shows. 18 May The Guardian. https://www.theguardian.com/us-news/2020/may/18/ahmaud-arbery-police-taser-2017-georgia. Accessed 14 July 2020.
LoBianco, Tom. 2016. Report: Aide says Nixon’s war on drugs targeted blacks, hippies. 24 March CNN. https://www.cnn.com/2016/03/23/politics/john-ehrlichman-richard-nixon-drug-war-blacks-hippie/index.html. Accessed 20 June 2020.
Luhmann, Niklas. 1985. A Sociological Theory of Law. Translated by Elizabeth King and Martin Albrow. London, UK: Routledge & Kegan Paul.
MacCannell, Juliet Flower. 2000. The Hysteric’s Guide to the Future Female Subject. Minneapolis, MN: University of Minnesota Press.
McGee, Kyle. 2012. The Fragile Force of Law: Mediation, Stratification, and Law’s Material Life. Law, Culture and the Humanities 11 (3): 467–490.
Pries, Allison. 2020. These are all the cities where protests and riots have erupted over George Floyd’s death. 30 May NJ Advance Media. https://www.nj.com/news/2020/05/these-are-all-the-cities-where-protests-and-riots-have-erupted-over-george-floyds-death.html. Accessed 19 July 2020.
Rochin v. California. 1952. 342 U.S. 165. https://www.oyez.org/cases/1940-1955/342us165. Accessed 30 June 2020.
Sproul, Kevin. 2013. Kevin Sproul: Georgia’s ‘stand your ground’ law explained. 5 August Albany Herald. https://www.albanyherald.com/features/kevin-sproul-georgia-s-stand-your-ground-law-explained/article_e1e55570-9e33-5ed0-97c7-e2b2a8cd00b2.html. Accessed 24 July 2020.
Tienabeso, Seni, Matt Gutman, and Beth Loyd. 2013. George Zimmerman Jury Hears Key 911 Tapes in Start of Trial. 23 June ABC News. https://abcnews.go.com/US/george-zimmerman-jury-hears-key-911-tapes-start/story?id=19470272. Accessed 21 July 2020.
Williams, Timothy and Mitch Smith. 2015. Cleveland Officer Will Not Face Charges in Tamir Rice Shooting Death. 28 December New York Times. https://www.nytimes.com/2015/12/29/us/tamir-rice-police-shootiing-cleveland.html. Accessed 19 July 2020.
Žižek, Slavoj. 2005. The Metastases of Enjoyment: On Women and Causality. New York City, NY: Verso.
Žižek, Slavoj. 2012. Less than Nothing: Hegel and the Shadow of Dialectical Materialism. New York City, NY: Verso.
Acknowledgements
I would like to thank a few professors who actively cultivated my understanding and deployment of Derridean deconstruction and Lacanian psychoanalysis, namely Dr. Steven Crowell, Dr. Iain Thomson, and Dr. Adrian Johnston. Additionally, I would like to thank two anonymous reviewers for their clarifying commentaries on the direction and scope of this paper.
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Barton, J. A Deconstructive and Psychoanalytic Investigation of (Corporeal) Law Enforcement. Law Critique 34, 21–39 (2023). https://doi.org/10.1007/s10978-021-09312-z
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DOI: https://doi.org/10.1007/s10978-021-09312-z