Feminine Law: Freud,Free Speech,and the Voice of Desire by Jill Gentile with Michael Macrone Law and The Unconscious: A Psychoanalytic Perspective by Anne C. Dailey Law,Psychoanalysis,Society: Taking the Unconscious Seriously by Maria Aristodemou

Jill Gentile’s Feminine Law: Freud, Free Speech, and the Voice of Desire is one of three books to have come out in recent years that yoke law and psychoanalysis to generate new understandings of the modern subject and the modern state. Beyond their shared methodological commitment to combining psychoanalytic and legal theory, these three books have a number of other other things in common—not least, a critical perspective on gender and a keen awareness of the masculine bias present in both psychoanalysis and law. The first of these books, Law, Psychoanalysis, Society: Taking the Unconscious Seriously (2014), was written by Maria Aristodemou, a professor at London’s Birkbeck School of Law. Aristodemou’s previous book, Law and Literature: Journeys from Her to Eternity (2000), argued that women’s reproductive and nurturing capacities pose a threat to masculinity, which is duplicated in the challenge posed by literature to law. Her latest book renounces her earlier aspiration to use literature (coded as emotional and female) to overcome the “long exclusion of the feminine” from the “empire” of law (coded as rational and male). Compared to its predecessor, it is less explicitly concerned with gender. But, like her earlier work, it relies on a Lacanian theoretical framework that is itself impregnated with ideas about gender, starting with Lacan’s notion that we are all “castrated” by language, and continuing through to his view that men and women are “castrated” or “split” by language in different ways and that sexual difference is not just real, but “the Real,” from which, he believes, we are cut off from the moment we acquire language.

Lacan’s ideas about gender and his relationship to feminism are complicated and controversial matters. Likewise, Aristodemou’s ideas about gender, grounded as they are in Lacan, are somewhat elusive. A more direct engagement with gender can be found in Anne Dailey’s book on law and psychoanalysis, which appeared under the title Law and the Unconscious: A Psychoanalytic Perspective (2017). Like Aristodemou, Dailey is a law professor; she teaches at the University of Connecticut. Again like Aristodemou, Dailey is concerned with the law’s frequent failures to come to terms with the operations of the unconscious in its subjects and with the operations of the unconscious of law itself. ¹ Both draw on psychoanalytic theory to develop a critical theory of law, and both take an expansive view of the purview of legal theory that reaches fundamental questions of political theory, challenging the division of the public realm of law and the state from the private realm of the individual, pondering the relationship of the law to freedom on the one hand and social order on the other, and nervously investigating the desire for democracy (or its lack).

The books differ, however, in their analytic framework, in their tone, and in their style, as well as in their treatment of gender. Whereas gender remains deeply embedded in the Lacanian theoretical apparatus that Aristodemou employs, it is very much in the foreground of Dailey’s work, which poses the question, What happens to our psychoanalytic understanding of law if we shift the focus away from the oedipal scene of the paternal prohibition, which was the focus of Freudian thought, to a theory that locates the origin of law in the preoedipal time of maternal caregiving? (Dailey in fact uses the gender-neutral term “parental caregiving” [p. 235], but the psychoanalytic theories of caregiving on which she relies speak specifically about the role of “the mother” [p. 184], in contradistinction to the traditional role of the father.) To pursue this question, Dailey relies on the British object relations tradition and on other Anglo-American post-Freudian theories that focus on infant development and mothering and thereby provide an alternative to paternal authority as the sole model for legal authority. Not Lacan, but Melanie Klein, Hans Loewald, and, above all, Donald Winnicott and his notion of the good enough mother supply the theoretical grounding for Dailey’s conception of law.

Dailey’s book, which makes the case for a “good enough” law, came out three years after Aristodemou published her darker, Lacanian vision of law as a system of repression that “conceal[s] the fact that there is no such thing as the Sovereign Good, or betray[s] the fact that the Sovereign Good is what is forbidden, that is, the incestuous union with the mother” (Aristodemou 2014, p. 119). Fitting neatly between Aristodemou’s and Dailey’s books, both chronologically and conceptually, is Gentile’s Feminine Law: Freud, Free Speech, and the Voice of Desire (written with Michael Macrone). Like the other two books, it uses gender-inflected psychoanalytic theory to address fundamental questions about the nature of legal subjects and the possibilities for freedom in the modern democratic state. But whereas Aristodemou is a confirmed Lacanian, and Dailey relies on Winnicott and other theories of maternal attachment, Gentile’s theoretical framework lies, to borrow the title of another book published in the last decade, “between Winnicott and Lacan” (Kirshner 2011). As she states in her preface, her work “finds its home in some space among Freud and Jacques Lacan, D. W. Winnicott, Wilfred Bion, Julia Kristeva, Heinz Kohut, Thomas Ogden, and Jessica Benjamin, among many others” (p. xx). Rather than choose between the French tradition of Lacan and Kristeva and the British and American traditions of object relations theory and ego psychology, Gentile combines the two into a thought-provoking blend of ideas, which she uses to examine the preoccupation with speech that democracy and psychoanalysis share.

There is much to be said for this kind of eclecticism. The combination of Lacan with Winnicott is, potentially, a particularly inspired choice. As explored in the collection of essays referenced above, Between Winnicott and Lacan: A Clinical Engagement, edited by Lewis Kirshner (2011), there is fertile common ground between their bodies of work, notwithstanding the evident differences and points of disagreement between them. To begin with, Lacan and Winnicott both theorized the occurrence of a second birth during the earliest stages of psychic development—before the oedipal stage of conflict, but subsequent to physical birth: “the birth of the self” (Kirshner 2011, p. xiii) in Winnicott’s terminology; the birth of the “subject” in Lacan’s (Kirshner 2011, p. ix). Both regarded mirroring as essential to the process of psychic integration and consolidation of a sense of selfhood or subjecthood that constitutes this second birth. Further, both understood that process to involve an entry into the social world of cultural symbols and language and a simultaneous departure from an unmediated connection with “the Real” (Kirshner 2011, p. 12). We learn from Kirshner that Winnicott, in writing the seminal “Mirror-Role of Mother and Family in Child Development” (1971), took his cue from Lacan’s “first major paper on the Mirror Stage (1949), the basic elements of which were included in his presentation ‘Some Reflections on the Ego’ presented on May 2, 1951, in London at the British Psycho-Analytical Society” (Kirshner 2011, p. 83). Conversely, Lacan credited Winnicott and his conception of the transitional object as an important source of inspiration for his ideas (Bernstein 2011, p. 119; Kirshner 2011, p. xiii; Vanier 2011, p. 107).

To be sure, as Kirshner rightly emphasizes, “Winnicott and Lacan were moving in different directions” (2011, p. xiii). For Lacan, the mirror stage that inaugurates the process of becoming a subject takes place when an infant sees himself in an actual mirror, and it ushers in a permanent sense of loss—loss of the mother’s body that the infant has experienced as belonging to him (Bernstein 2011, p. 216), loss of the experience of fusion in which the infant’s desires are instantly satisfied by the mother, loss of direct contact with the mother, loss of direct contact with one’s own desires, loss of direct contact with the Real. The substitutes for such direct contact that are provided by language can never overcome this profound “lack” (Luepnitz 2011, p. 9), and recognizing that lack and the impossibility of its being filled provides the key to a Lacanian analysis.

For Winnicott, by contrast, the mirroring experience that leads the infant out of the stage of fusion with the mother and into the separation and integration of a self is a nurturing experience, inseparable from being mothered—at least when the mother is “good enough.” Lacan’s baby, looking at itself in the mirror, is profoundly alone. For Winnicott, famously, “there is no such thing as a baby”; “a baby alone doesn’t exist.” There is, rather, a “baby and someone,” namely, the mother (Winnicott 1960, 1964). Mirroring in Winnicott’s conception is, accordingly, provided not by a reflective object but by the loving gaze of the mother. The difference, as summarized by Deborah Anna Luepnitz in her contribution to the Kirshner volume, is that Winnicott’s mirror stage is “straightforward and full of promise. The True Self of every individual is called into being in the mirroring gaze of the good-enough mother. . . . Lacan’s mirror stage, in contrast, is the site of a necessary alienation” (2011, p. 5).

Encapsulated in their views of the mirror stage are all of the essential differences—and similarities—between Lacan’s and Winnicott’s theories more generally. One is a bleak picture of human life, characterized by alienation, misrecognition, and repression, both on a personal level and at the level of society and politics. The other contains these negative features of human experience but subsumes them into a developmental process that also includes the positive experiences of forming bonds, being fed, and being held, and the concomitant feelings of being loved, secure, and at home in the world (Winnicott 1960). While they assign a different emotional value to the experience of leaving the preverbal stage in which infant and mother are fused and entering into the alienated world of language—and though they assign different roles to the mother and the father regarding the infant’s introduction into that world—they share a preoccupation with that stage of development. More important, they share the view that the perceptions we form as a result of passing through this critical stage of early development—our perceptions of the existence of others and objects outside of ourselves and our perceptions of ourselves—are essentially illusory, a philosophical position opposed to philosophical realism and tied instead to a semiotic or constructivist view of how human beings perceive and experience the world.

It is Lacan who is generally credited with training the focus of psychoanalysts on language, understood as a semiotic system that shapes and filters our perceptions of reality. But Winnicott, too, provided an account of separation from the mother that reflects the influence of semiotics and the rejection of philosophical realism (Stolzenberg 2007). Winnicott’s thought is more akin to the philosophy of the American pragmatist C. S. Peirce, while Lacan is a well-recognized descendant of Saussure. But Peirce and Saussure are two branches of the same semiotic tree, making the pairing of Winnicott and Lacan a particularly apt combination of perspectives to bring to bear on the place of speech in democracy and in psychoanalysis (Gentile, p. 4).

This is exactly what Gentile’s book proposes to do. Her project is to use the combined lenses of Lacanian and object relations theory to explore the connections between “free speech,” the quintessential practice and principle of democracy, and “free association,” the psychoanalytic practice of requiring the patient to verbalize whatever comes into her head (Gentile, p. xxiv). Her analysis begins with the observation of the intriguing similarities between free speech and free association. Not only are both linguistic practices—speech acts, acts performed through words. They also are both linguistic practices that are self-definitionally opposed to censorship. That is to say, they are not just practices; they are normative practices, practices that are guided by, and meant to fulfill, a principle. And at least at a certain level of generality, the principle that guides the psychoanalytic technique of free association and the one that guides free speech appear to be the same: to wit, freedom from censorship, freedom from repression, freedom from constraints. In one case (free speech), the constraints that are resisted are external to the person whose freedom is at stake; in the other (free association), the constraints on freedom of expression are internal. But in both cases, the practice is defined in terms of resisting constraints—and thereby achieving a kind of liberation.

From this jumping-off point Gentile constructs a series of analogies and parallelisms: as free speech is to democracy, free association is to psychoanalysis; as reason and opinions are to free speech, desire and sexuality are to free association; as the voice of desire is to the feminine, the rules that structure and limit the expression of desire are to the male. The question of the relationship of rules to freedom gives rise to the subtlest and most important analogies that Gentile draws. Both democracy and psychoanalysis, she understands, are beset by the same fundamental paradox, namely, that the enjoyment of freedom depends on the observance of rules. Respecting the right to freedom of speech is itself a rule. So, too, Freud (1916–1917) describes free association as “the fundamental rule” of psychoanalysis. To put it another way, freedom necessarily entails constraints. In recognition of this paradox, Gentile says her aim is to “cultivate a practice of freedom that bears responsibility to ethical and social constraints” (p. xxxvi). She wants to show “how psychoanalysis might ‘free’ free association beyond individual emancipatory goals towards shared and democratic ones” (p. 20). Yet she recognizes that free association is a practice of “surrendering” to the unconscious—letting go of control on the part of the ego and superego and submitting to “the voice of desire”—as much as it is a practice of freedom (p. xxiv). Such “choiceful surrender to what lies beyond [the analysand’s] choice” (p. 20) serves for Gentile as the model for a reformed practice of freedom of expression in a democracy. She views our current form of democracy as highly imperfect precisely because “the voice of desire” remains suppressed, notwithstanding some progress in dismantling the laws that have traditionally restrained people from freely expressing and acting on their desires. The implication is that in order for our government to become more truly democratic, the constraints that inhibit citizens from surrendering to their desires need to be lifted.

At this point there are a number of questions one might ask. How does the practice of “choiceful surrender” to desire relate to a “practice of freedom that bears responsibility to ethical and social constraints”? (p. xxxvi). Are these two things consistent? Is the “voice of desire” a form of free speech? Is the “speech” that is protected under the First Amendment as a political practice the same thing as the “language” that is subjected to a Lacanian analysis? What makes a law that liberates the expression of the voice of desire “feminine,” and, for that matter, what makes it law? What kind of feminism is this? And what kind of law?

The first question is an ancient one. Western political philosophy was born debating the relationship of freedom to constraint and, within this long tradition of thought, theories of politics have always been tied to a particular theory of human psychology. The place of desire in the practice of freedom has been a particularly long-standing concern. Long before Freud developed his tripartite theory of the psyche as composed of ego, superego, and id, philosophers divided the human psyche into three parts: a “base” or elemental one, the site of our “animal” appetites, desires, and drives; the “higher,” supposedly distinctively human faculty of reason; and a third element understood to be governed by habit, custom, or some other unthinking form of rule-following behavior. For millennia, the reigning view of a rightly ordered psyche was one in which reason reigned over animal desire and drives, on the one hand, and blind habit and other automatic forms of behavior, on the other. This traditional moral psychology, which holds that the enjoyment of freedom depends on the subordination of our “base” habits, desires, and appetites to the faculty of reason, was the common property of republicanism and monarchism, religious and secularist political theories, liberal and conservative political thought alike.

That liberalism has historically been committed to this traditional rationalist moral psychology bears emphasis. Conservative critics of liberalism have long attacked it on the grounds that it gives individuals license to behave without the restraints of reason and morality, thereby likening liberalism to libertinism—a tradition of philosophical thought (most notoriously associated with the eighteenth-century French philosopher the Marquis de Sade) that does reject the supremacy of reason and exalt the unrestrained indulgence of sexual and other libidinal desires. But liberalism’s proponents have long denied this charge, adamantly refusing the equation of liberalism with libertinism. “Liberty, not license,” the almost comically defensive mantra of liberalism’s earliest proponents, makes its historical dependency on traditional moral psychology plain (Stolzenberg 2005, 2009, 2010).

Liberalism’s relationship to traditional moral psychology might appear to have changed with the advent of romanticism and other intellectual movements—psychoanalysis among them—that share romanticism’s deep skepticism regarding reason. As the political philosopher Nancy Rosenblum has shown, although Enlightenment liberalism was the original target of the romanticist critique, liberalism responded to this challenge by shedding the hyper-rationalism of Enlightenment thought and absorbing into itself romanticist ideas, integrating them with liberal notions of freedom, thereby producing what Rosenblum calls “another liberalism” (1987, p. 3). This is a liberalism that recognizes the limits of reason and assigns a much more positive value to nonrational dimensions of human experience: to emotion, passion, and intimate relations. The process of transformation that liberalism underwent, as described by Rosenblum, entailed a revaluation of the respective positions of passion and reason in the human psyche and in the legal order. That process went hand in hand with the liberalization of social policies regarding sexual conduct and conformity to traditional gender roles. Over time, marriage came to be regarded as based more on love than on economic convenience, and more a matter of personal choice than a parental or political arrangement. More and more forms of sexual conduct that had traditionally been stigmatized (e.g., “fornication,” “sodomy,” and “adultery”) were decriminalized as society—and law—came to embrace the ideal of romantic and sexual freedom. Along with this ideal came a raft of other particular, and particularly disruptive, ideas: that people have a right to love whom they love regardless of gender or sexual orientation (or race, religion, or nationality); that they have the right to marry whomever they love, or to choose not to marry; to have babies without marriage or marriage without babies; to have sex without marriage or marriage without sex; to have sex without love and without making babies; or to willfully make a baby, with a partner of one’s choosing, or multiple partners, or no partner at all, perhaps with the assistance of reproductive technology. The claiming of all of these nontraditional paths as “rights” of individual “choice” reflects how the liberal idea of freedom was extended beyond the domain of rational thought, where it was originally developed and applied (giving birth to the principle of free speech) into the domain of feelings, family, love, sex, and other intimate relationships (where it expresses itself as a principle of sexual liberation or free love) (Stolzenberg 2005, 2009, 2010).

Gentile’s project is very much in keeping with this liberal project of extending the domain of individual freedom and the right to freedom of choice into the realm of intimate relations. But insofar as that is the case, it is questionable how compatible it is with the Lacanian concepts that embellish her writing. While there is a surface similarity between the liberal idea that we should be free to express desires forbidden by traditional morality and the Lacanian idea that we are alienated from our desires by virtue of being socialized into a symbolic order—and that, as a result, we are subjected to spurious forms of authority that are nothing more than inadequate substitutes for our “lack”—it is not at all clear that the former is consistent with the latter, let alone implied by it.

It is difficult to say precisely what the political implications of Lacan’s theories are. And there are, no doubt, different views of the matter. But it seems to me that Aristodemou has it right when she says that, from a Lacanian point of view, all political projects, including projects of radical transformation and liberal reform, are doomed to replicate the same essential condition of alienation and repression. As she sees it, this is a condition that can never be overcome because it is rooted not in this or that political arrangement, but rather in the perceptual apparatus with which human beings are endowed. Otherwise put, our essential condition of alienation and repression is rooted in language. Instead of linking us to the Real, Lacanian theory says, language cuts us off from it and endows us with an everlasting “lack” that we are doomed to keep trying, and failing, to fill. God, religion, legal and political authority, democracy, and language itself are all viewed in this schema as so many false substitutes for what we inherently lack and can never have.

In contrast to this thoroughly disenchanted view of law and politics, Gentile says her goal is to “liberate” and “democratize desire.” This she sees as “psychoanalysis’s true calling” (p. xxxiv). The mission she sets for herself is to extend that calling beyond the analyst’s office and into the domain of democratic political life, thereby reversing the process whereby liberal thought extended the application of the principle of individual freedom beyond the public domain of political life into the private realm of intimate personal relations. “Desire” is a frequently used word in Gentile’s lexicon, and she clearly intends for it to carry the meaning it has in Lacanian thought. Yet it is questionable whether Lacanian desire is amenable to democratization. As Gentile clearly knows, Lacan posited that language “castrates” us by cutting us off from the Real, and that it puts in place of the Real “phallic” signifiers that attempt to fill the “lack” we experience as a result without ever being able to really fill it. Lacan further posited that the “castration” that language inflicts by alienating us from our desires, from the Real, is experienced by males and females alike, as is the “phallic” nature of our signifiers. This might seem a nonessentialist view of gender insofar as Lacan’s concept of the phallic applies to the way we all use language, not to males as opposed to females, let alone to any particular part of the male (or female) anatomy. But when Gentile talks about “desire,” which she often modifies as “female,” she seems to be referencing the enigmatic statements Lacan made toward the end of his life, where he expanded on his long-held view that the difference between the sexes is real, and postulated that while females and males both experience the “castrating” and “phallic” effects of language, females alone have the potential to escape those effects and reconnect with the Real—through their supposedly unique way of experiencing jouissance, his term for enjoyment of the Other (Lacan 1972–1973, p. 4). Lacan actually contrasted such “feminine jouissance” (p. 73) to “desire” (p. 4), which he saw as something that emerges in the absence of direct contact with, or enjoyment of, the Other and lies within the domain of the pleasure principle and the zone of prohibition, whereas feminine jouissance exists, for him, “beyond the pleasure principle” (pp. 4, 51–63). Nevertheless, Gentile’s conception of feminine desire seems to be connected to this Lacanian idea of a form of erotic connection that is distinctively female.

Putting aside the problematic gender essentialism inherent in this view, the question here is how desire, so conceived, could be “democratized.” Is Lacanian desire (or, more precisely, the freeing of desire) compatible with democracy? On Aristodemou’s reading of Lacan, the answer seems to be no. As she lays it out, Lacan’s political vision is not remotely a liberal one. Indeed, insofar as it has political implications, those implications seem to be, precisely, antiliberal, which Aristodemou has the courage to spell out: “for Lacan what takes precedence is desire: an ethical subject, in short, is one who has acted in conformity with her desire” (2014, p. 119). “If psychoanalysis ushers in a new version of the Good, the Good of desire, it forces us to rethink the distinction between ‘morality’ and ‘ethics’: for psychoanalysis, morality, far from being ethical, is our compensation for giving up on our desire. Morality, that is, dupes the subject into giving up on her capacity for freedom” (p. 119). Instead of seeking to establish a more perfect form of government in order to regain our capacity for freedom, “we must learn to live with the emptiness” (p. 107), “we must accept and live with our nothingness” (p. 108), “we need to acknowledge that the object is always already lost and learn to live with that loss” (p. 108). Democracy, in this vision, far from being a solution for our situation, only exacerbates the problem: “not only is our civilization flawed, in its insistence on representation at the expense of the Real, representational democracy is an extreme version of this malady. . . . representational democracy . . . is the apotheosis of our culture’s fetishism, where our voices are taken over by others so only the fact of enunciation but not the substance of the enunciated remains to be heard” (p. 111). Rather than reform or improve or further democratize democracy, she suggests, Lacanian analysis counsels us to consider (and presumably accept) the possibility that “it would be better to, well, shut up” and practice “silence at the ballot boxes” (p. 111).

This may well be a vision that is dedicated to developing our capacity for freedom. But if it is, it is hardly a democratic one. Insofar as it is a political vision, it is precisely an antipolitical vision, one that opposes all forms of government as so many different forms of repression. More specifically, it is an antiliberal vision insofar as it regards the idea of individual freedom and, indeed, the very idea of a self as illusions we need to give up (Luepnitz 2011).

This is a far cry from the political vision in Anne Dailey’s book on law and the unconscious, which is an unabashedly liberal one. On Dailey’s view, the “normative framework” of psychoanalysis “is perfectly suited to a liberal legal system fundamentally committed to the ideals of individual liberty” (p. 10). Proving this counterintuitive thesis is the overarching project of her book. She rests her case on the continuities between psychoanalytic theories and Enlightenment ideas. According to Dailey, “While Freud drew our attention to the realm of the irrational, his psychoanalytic psychology embodied a fundamentally secular Enlightenment project aimed at bringing reason to bear on the operation of unconscious superstitions, fantasies, and desires” (p. 10). She sees this liberal political project as having persisted through the various iterations of post-Freudian psychoanalysis on which she relies. Precisely because of their commitment to the Enlightenment liberal project, she sees the schools of psychoanalysis that she favors as offering something to the theory and practice of law and of democracy that no other psychological theories can, namely, “insight into what it means to be an agent with the capacity to choose freely” (p. 10). The capacity to be a freely choosing agent—to reason, to think reflectively, in other words, to be a liberal subject—is, in Dailey’s view, the common concern of psychoanalysis and law.

Dailey, of course, is laying claim to a particular version of psychoanalysis. When she claims that “no other school within psychology attempts to provide meaningful insight into what it means to be an agent with the capacity to choose” (p. 10), she is expressly contrasting psychoanalytic theories to nonpsychoanalytic psychologies, cognitive psychology in particular. But Lacanian thought—a school that Dailey leaves aside—might fall on the same side of this contrast as nonpsychoanalytic theories. Lacanianism, as shown in Aristodemou’s book, is at least as indifferent to the project of developing insight into what it means to be an agent with the capacity to choose as is cognitive psychology—and perhaps more so.

Dailey also is laying claim to a particular version of liberalism. Hers is not the unreconstructed version of Enlightenment liberalism that exalts reason and fails to recognize the role and the value of the nonrational elements of our psyche. Rather, Dailey’s is the “other liberalism” that Rosenblum describes, the liberalism of the romantic pragmatists: thinkers like Peirce and Oliver Wendell Holmes, the romantic utilitarian John Stuart Mill, and object relations theorists like Winnicott—all thinkers who blended romanticist with rationalist ideals. Merging liberal ideals of reason and personal freedom with romantic ideals of self-expression and living in accord with passions that are “beyond reason,” theirs is a liberalism that gives desire much wider berth than does traditional conservative morality. But it does not abandon reason. Nor does it abandon the belief that expressions of desire, and the freedom to act on our desires, must be subject to reasonable limits.

Seen in this light, it makes sense that, save for a brief reference to Aristodemou and other scholars who analyze law through a Lacanian lens (Dailey, p. 13), Dailey’s book doesn’t mention Lacan. Not only does Lacanian psychoanalytic theory not support that liberal project; it is actively hostile to it. The capacity to be an autonomous agent, which Dailey rightly sees as the common concern of (Freudian) psychoanalysis and (liberal) law is, from a Lacanian point of view, an illusion. And not just yet another illusion, but the fundamental illusion exposed by a semiotic understanding of language. By the same token, it makes sense that Aristodemou ignores the schools of analytic thought on which Dailey relies. (To be exact, she mentions an object relations theorist—Melanie Klein—precisely once (Aristodemou 2014, p. 64), mirroring Dailey’s single reference to Lacan.) The choices made by these two authors reflect the profound difference between the French school of psychoanalysis, influenced by Lacan, and the Anglo-American school associated with Winnicott, Klein, and others—a difference of views not just about human psychology, but also about politics.

Gentile’s book asks us to consider the possibility that we don’t have to choose between them. And there may well be some issues with respect to which we can combine these perspectives in fruitful ways. But if the question is whether to adopt a form of law that liberates “the voice of desire,” there is a stark choice that can’t be evaded. Were that question merely a matter of whether to eliminate traditional (and newfound) restrictions on sexuality and gender roles and other expressions of nonconforming desire, it would be perfectly consistent with liberal and democratic practices and ideals. But there is a world of difference between asking where to draw the line between permissible and impermissible expressions of desire and whether to have a line demarcating a zone of impermissible behavior at all. Liberalism says we should draw the line to allow more behavior to fall on the permissible side of the line—but it preserves the line. Libertinism, by contrast, says no behavior expressive of desire should be prohibited. As we see in Aristodemou’s work, Lacanianism is an offshoot of this libertine view of law. From this point of view, freedom lies not in speech, nor in political participation, or legal protections, but rather in “coming to know one’s ignorance” and “coming face to face with one’s raw being” (Aristodemou 2014, p. 110). To many, this will seem a deeply pessimistic, even nihilistic conclusion to draw regarding law and politics. But to a committed Lacanian like Aristodemou, “far from pessimistic, God’s message that he”—and every form of human authority—“is lacking” (more familiarly known as the message that “God is dead”) “frees the human subject and enables her to engage in the activity of revolution” (p. 109).

If this is political optimism, it is a very different kind of optimism, about a very different kind of freedom, than that exhibited by Dailey. Dailey’s book is a fundamentally hopeful one, optimistic about the possibility of reconciling psychoanalysis and law and reconciling both with the liberal political project. Set side by side, Aristodemou’s and Dailey’s books offer starkly different political visions, expressed in starkly different tones: one “straightforward” and “full of promise” (as Luepnitz says of Winnicott and might well say of Anglo-American thought more generally); the other, recondite and darker in tone, as is typical of the style of Continental philosophy.

So where does Gentile land? In the world of liberal hope that sees in a certain strain of psychoanalysis the tools for developing enough capacity for self-reflection and reason to be able to ascribe agency to individuals, without denying their emotional and sexual needs and the limits of their capacity for reason? Or in the fundamentally illiberal world of Lacan, where “optimism” is based on “coming to know” that no form of law or politics can make us free, because to be a speaking being entails being subjected to authority? Gentile does not describe her project as a liberal one. But it seems to me that, at bottom, it is. Like Dailey, she seeks to improve democracy, not to reject it, as Aristodemou does. As she says on the very first page of her book, her “grand ambition” is to demonstrate that “psychoanalysis has much to contribute to a theory of democracy” (p. xix). And she pursues this goal by drawing on the most canonical of liberal principles—free speech—to develop her idea of what a democracy that “makes room” for desire—more specifically, female desire—might look like.

In light of this, it seems to me that there is a fundamental mismatch between Gentile’s Lacanian vocabulary and her political conclusions and aspirations for the betterment of society, which are, in the final analysis, liberal in character. That does not mean there is nothing to be gained by juxtaposing the object relations school to Lacanian thought. For one thing, it might help us clarify the gendered nature of legal and political authority. The idea that the law in an improved form democracy would be, in some sense, female or feminine is an intriguing one. But what exactly does it mean for law to be “feminine”? For Gentile, it means drawing on Lacan’s account of sexual differences. In his account, the figure who ushers the infant into the semiotic world is the father, who is, as he was for Freud, the layer-down of prohibitions. Thus, the nom du père, Lacan’s term for the seminal event that ruptures the preverbal state of merger with the mother (and stands as an emblem for all naming and signifying), is also the non de pere, the negative injunction, the law of the forbidding father (Lacan 1959–1960, p. 65). In this conception, language and law are essentially penal—and male—in nature, as well as being intertwined. What is distinctively female, in this account, is associated with “the Real” (Luepnitz 2011, p. 12) and with the female way of experiencing desire, which supposedly is more connected to the Real than is male desire.

Winnicott offers us a very different account of the division of responsibility between mother and father at the critical stage when the infant is at the threshold of separating from the mother. For him, it is not the father (with his nom and his non), but rather the mother who bears the chief responsibility for what Winnicott calls “illusionment,” that is, the process by which the mind of the baby comes to be populated with perceptions and beliefs. The process starts, for Winnicott, with the mother performing the basic functions of maternal caregiving (feeding, holding, attunement, etc.). When the mother is “good enough” at performing these tasks, she succeeds in instilling in the baby the belief that she will return and that it will survive her temporary absence. Out of this initial awareness of the separateness of the mother and the existence of a separate self there develop further perceptions of both the inner and the outer world. Winnicott is as insistent as Lacan on the illusory nature of all these perceptions. But Winnicott does not view those illusions as the products of paternal authority, which is prohibitive and punishing in nature; instead, he understands them as products of a distinctively maternal form of authority, which is constitutive and soothing, even as it is also regulative and restrictive. (It is, after all, a form of authority.)

Modeling legal authority on Winnicott’s conception of the maternal function, as Dailey’s book does, and as I have done elsewhere (Stolzenberg 2007), provides an account of “feminine law” very different from one based on Lacan’s conception of sexual differences and female desire. Rather than equate law with prohibition, traditionally coded as male, a Winnicottian model of law brings into view the emotional functions that the legal authority serves—such as providing a sense of security—as well as the important cognitive function it performs as it shapes our perceptions by “constructing” facts. Telling us what the facts are is as much a function of law as telling us how we ought (or ought not) to behave. But the former function is neglected by both Lacanian and classical Freudian psychoanalytic theories of law, which focus exclusively on the traditional role of the father. Only a theory that focuses on the caregiving functions traditionally assigned to mothers, which include the mother’s role in creating perceptions of reality, can give us insight into how those functions are performed by legal institutions on a larger scale.

Whether this model of feminine law would serve Gentile’s aims any better than a Lacanian model does is an open question. I have already suggested why I think Lacan’s idea of female desire cannot deliver what Gentile seeks—namely, a model of law that “democratizes desire.” But it is not clear that a model of law modeled on Winnicott’s good enough mother can, either. Certainly Winnicott offers a more promising basis for a psychoanalytic theory of politics aimed at “democratizing desire” than one that, like Lacan’s, despairs of democracy. But if Lacan offers little help with the “democratizing” piece of this aspiration, Winnicott has precious little to say about “desire.”

Perhaps what is needed is a model of law that goes even further in blending their insights. Winnicott and Lacan shared an interest in language and perception that sets them apart from many other psychoanalytic theorists. Both shared a belief in the constructed nature of beliefs. Both saw the earliest phases of infant development and the role that mothers and fathers play in introducing babies into the world of language as critical to an understanding of how we see, and construct, the world. And both recognized that in performing these roles, mothers and fathers exercise authority, in different ways, while themselves being subject to the authority of the structures of power and symbolism into which their own parents inducted them. What kind of freedom can exist under such structures—and how freedom relates to speech on the one hand, and desire, on the other—are important questions to ponder.

Gentile is to be commended for bringing psychoanalytic theory to bear on these questions. Even more is she to be commended for urging psychoanalysts to address these questions, and for doing so herself. Other contributions to the growing literature on law and psychoanalysis have mostly been written by law professors. Gentile is the relatively rare psychoanalyst to venture into the precincts of law. That includes taking on the technicalities of First Amendment doctrine, no mean feat. Her book raises important questions whose urgency has only increased since its publication. As the specter of illiberal democracy returns to Europe and America, so, too, psychoanalysis is returning to help us diagnose our political maladies and, perhaps, to offer a cure. What that cure might be should continue to be debated.