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47 Nw. U. L. Rev. 855 (1952-1953)
Psychoanalysis of Negligence

handle is hein.journals/illlr47 and id is 877 raw text is: A Psychoanalysis of Negligence Albert A. Ehrenzweig* CCFJHOSE writings which endeavor to apply to the social sciences '-the viewpoints of psychoanalysis inevitably offer the reader too little of both. Such writings are, therefore, but suggestions and proposals inviting consideration by the expert. With this apology Freud begins one of the chapters of his Totem and Taboo.' How much more is this apology due from a writer who attempts to apply psychoanalysis to legal history without claiming expert- ness in either! To induce those better equipped to investigate a novel subject is then the primary purpose of this paper. The Fault Rule: Why It Does Not Work Since Freud's Totem and Taboo there have been many attempts to apply to criminal law psychoanalytical findings as to the rationale or irrationale of societal and individual behavior.2 Although we know now that neither deterrence nor reform, the alleged educa- tional purposes of punishment, are effectively advanced by our present criminal law and its administration, and although we have learned to apply this knowledge in our maturing relations to our children, it will be a long time before society will forego the infan- tile satisfaction of inflicting retributive pain on its'3 criminals. The only area of criminal law in which society is beginning seri- ously to apply psychoanalytical understanding of anti-social con- duct and of its own reactions to such conduct is that area in which a similar impact of affection and superiority most closely dupli- * Professor of Law, University of California, School of Law, Berkeley. 1. FREUD, TOTEM UND TABU 100 (1920) (my translation). 2. See particularly REIWALD, SocIErY AND ITS CRIMINALS (1950) and the bibliog- raphy at 38 et seq.; also Fromm, Zur Psychologie des Verbrechers und der Strafenden Gesellschaft, 17 IMAGO 226, 244 (1931) ; Staub, Psychologie uond Straf- recht, id. at 194; WIrrELs, FREUD AND His TIME 359 (1931); WEST, CONSCIENCE AND SOCIETY: A STUDY OF THE PSYCHOLOGICAL PREREQUISITES OF LAW AND ORDER (1945); A Psychological Theory of Law, in INTERPRETATIONS OF MODERN LEGAL PHILOSOPHIES 767 (Pound ed. 1947); FLUGEL, MAN, MORALS AND SOCIETY (1947); de Grazia, Crime without Punishment: A Psychiatric Conundrum, 52 COL. L. REv. 746 (1952) ; GUITMACHER AND WEIHOFEN, PSYCHIATRY AND THE LAW 453 et seq. (1952) ; and this writer's Psychoanalyse im Recht, 74 JURISTISCHE BLAETTER 262 (1952). In other fields of law psychoanalytical writings have been few, and the few have met with emotional opposition. See, e.g., Mechem, The Jurisprudence of Despair, 21 IOWA L. Rrv. 669 (1936), discussing and misinterpreting Robinson's pioneering LAW AND THE LAWYERS (1935). For judge Frank's work see the Preface to the Sixth Printing of his LAW AND THE MODERN MIND (1948). Bienenfeld's courageous REDISCOVERY OF JUSTICE (1949) has found little attention in this country. Cf. this writer's book review, 64 HAv. L. REv. 355, 358 (1950). 3. This reflexive is used in the title of Reiwald's book (op. cit. supra note 2), apparently with the happy purpose to stress society's affective relation to crime and criminals. See also REIK, GESTANDNISZVANG UND STRAFBDfRFNIS (1925); de Grazia, supra note 2.

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