REPRESENTANCE IN CRISIS. How psychoanalysis can fertilize the Law.

Freud coined a definition of drive as “psychical representative“. Contri explained it as 'the law of motion towards satisfaction', opening the way to scientific research in the field of legal studies. It is possible to compare this concept with the legal concept of 'agency relationship'. In civil law, agency is the power that the interest holder (principal) confers to another (agent) in order to have its proper interest satisfied through the latter's juridical activity. Is it possible to consider the juridical relationship between principal and agent as “Subject-Other relationship“ described by psychoanalysis? Can the “agency partnership“ be described as a “Subject-Other pact or alliance“? We analyze the source of voluntary agency: the power of attorney, which – at least in civil law legal systems - is valid and effective even in the absence of an underlying contract of mandate. The concept of 'pact‘ or 'alliance' developed by psychoanalysis describes a partnership yet not a contract.

The paper presents the main characteristics of individual psychic life as a normative-thinking life. Starting from Freud, who called 'drive' the “psychical representative of an endosomatic continuously flowing source of stimulation“ , we will arrive at the definition of Giacomo Contri, who identifies it as a real “law of motion“ of the human body. It is the first constitutional occurrence, which ensures the representance of the somatic in the psychic at the beginning of life. The entry into psychopathology will be marked by a fall that throws the first representance into a crisis: repression (Verdrängung) occurs when the drive motion “hits“ (stößt) resistance - the subject gives up his entitlement so as to avoid displeasure, paying for the failure in terms of inhibition, symptoms and anguish. Repression is configured as an act comparable to an offense, in which another pathogen can be blamed as “accomplice“. The analytic treatment will aim the reconstitution of individual entitlement.

The concept of representation is meant to shape the will of a political body whose identity is constituted by the act of its representation. The birthplace of such a concept is the modern legal and political science where the idea of representation is elaborated in opposition to the previous idea, typical of feudal society, of the mere reflection of groups and particular interests. Nowadays, the new forms of social regulation already established in Europe, labelled through the ambiguous notion of governance, are an interesting observation point in order to grasp the radical crisis of the modern legal order of the discourse, based on the centrality of the State, on the dichotomy between private and public spheres, and so on, the representation of political unity.

Nowadays, the new forms of social regulation already established in Europe, labelled through the ambiguous notion of governance, are an interesting observation point in order to grasp the radical crisis of the modern legal order of the discourse, based on the centrality of the State, on the dichotomy between private and public spheres, and so on, the representation of political unity. To frame the meaning of such a crisis, it could be useful to analyse Jacques Lacan‘s topics of discourses. In particular, we believe that his thoughts about the capitalist discourse, conceived as a variant of the master discourse, could be very inspiring. Indeed, according to Lacan, while the father, if conceived as the guarantor of the alliance between law and desire, evaporates, the Master is still present. Not anymore as a subject but as an object: without mediation.

The crisis of various areas of civil society has influenced the “choice“ of jurisprudence which has allowed an expansion of the participation in the criminal trial of bodies with collective interests. We have come to give recognition, to these bodies, of the rights and faculties attributed to the person offended by the crime (Article 91 Criminal Code), of ad adjuvandum of the public prosecution, of the admissibility as a civil party in criminal trials. This is frequent in criminal trials regarding crimes of ill-treatment against family members, persecutory acts, sexual violence. From a living law perspective, according to the constitutional principle of fair trial the result appears harmonious: the good affronted by the criminal conduct has two entitlements and two compensatory dimensions, the individual and the collective ones. However, the support of collective bodies to defend the interests of the crime victim could involve the risk of a weakening of individual self-determination.