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Published online by Cambridge University Press: 09 June 2015
In the past half century most legal philosophy has been limited to a fairly narrow range of traditional topics such as adjudication, legal reasoning, interpretation, legal persons, obligation and authority, the possibility of legal knowledge, the relationship of law to power, morality, economics and class struggle, and positivism vs. natural law. For those of us comfortable in the tradition, the range of questions appeared to outline an intellectually and politically adequate domain. The basic problems fell neatly into the major philosophical departments of epistemology, logic, value theory and, in some cases, metaphysics, and allowed participation by everyone along the political spectrum from the radical Marxist left through the liberal center to the fascist right.
* Smith, J.C. The Neurotic Foundations of Social Order: Psychoanalytic Roots of Patriarchy (New York: New York University Press, 1990).ISBN: 0-8147-7903-4, $40 US. (Referred to in this notice as "NFSO".)Google Scholar
1. See, for example, Clark, Lorenne M.G. “Consequences of Seizing the Reins in the Household: A Marxist-Feminist Critique of Marx and Engels” in Stiehm, Judith Hicks ed., Women’s Views of the Political World of Men (Dobbs Ferry, N.Y.: Transnational Publishers, 1984) at 179–204.Google Scholar
2. See MacKinnon, Catharine A. Toward a Feminist Theory of the State(Cambridge: Harvard University Press, 1989).Google Scholar
3. Chodorow, Nancy The Reproduction of Mothering (Berkeley: University of California Press, 1978).Google Scholar
4. See, for example, Legal Obligation (Toronto: University ofToronto Press, 1976) or (with S. C. Coval) Law and Its Presuppositions (London: Routledge and Kegan Paul, 1986).
5. Nozick, Robert Philosophical Explanations (Cambridge: Harvard University Press, 1981) at 5.Google Scholar
6. NFSO, 50–54.; Ryle, Gilbert The Concept of Mind (New York: Barnes and Noble, 1949) at 16.Google Scholar
7. NFSO at 60–61.
8. NFSO at 110.
9. NFSO at 110.
10. NFSO at 175.
11. According to the Freudian analysis, for a male child the Oedipal passage involves identifying with his father, where he previously identified with his mother, and treating his mother as the primary object of his love. Coming to realize that his father is a rival for his mother's love, and fearing castration if he seeks to replace his father, he internalizes the authority of the father in the form of the super-ego, giving up any libidinal attachment to his mother. The female child, on the other hand, maintains her identification with her mother, taking her father as a love object. Whereas the male was propelled through the Oedipal passage by fear of castration, the female has no comparable fear since, to the Freudian/Aristotlean mind, she is already castrated. She suffers from penis envy, expressed by the desire to receive a child from her father (a child being a penis substitute). Lacking the fear of castration, the girl never fully internalizes the authority of the father, and so suffers from an imperfect sense of justice. The female child never neatly resolves the Oedipal conflict.
12. NFSO, ch. 5 “The Course of Individuation” and ch. 6 “The Structure of the Psyche”.
13. In the Freudian universe women imperfectly or incompletely follow this path, and so less fully realize the characteristics of ‘civilized man’.
14. NFSO at 116–21. As Smith points out, Freud worked with the notion of an “ego ideal” but ultimately collapsed it into the super-ego. Freud thus left the authority of the father unanalyzable in his theory.
15. For the best explanation of the two functions, see NFSO at 254.
16. A girl maintains her identification with her mother but takes her father as a love object.
17. NFSO at 95.
18. NFSO at 123.
19. Kant, Immanuel Critique of Pure Reason, “Transcendental Aesthetic” (First Part of the Transcendental Doctrine of Elements).Google Scholar
20. For example, NFSO at 65.
21. NFSO, Chapter 4. See especially at 70.
22. Arguably, if the morally relevant errors could be eliminated, the archetypes would be transformed either to serve the needs of both women and men, or to serve the needs of men but not at the expense of women. Even then, of course, the archetypes would embody illusion, but they would no longer produce injustice.
23. NFSO at 13.
24. I am assuming here that there is some sense of ‘masculine’ which, contrary to contemporary views, does not involve domination of women.
25. NFSO at 179–80.
26. “Desire and Power,” chapter 3 in MacKinnon, Catharine A. Feminism Unmodified (Cambridge: Harvard University Press, 1987).Google Scholar
27. A realistic appraisal of the actual physical, social and emotional work performed by women in most societies tends to support this assumption.
28. NFSO at 181, 192.
29. NFSO at 184. Smith actually uses the conjunctive phrase “destroy and exclude”. It is clear from his discussion, however, that he intends the disjunctive “destroy or exclude”. The basic point is that one way of defending against dependency is to remove the object of the dependence from our presence. For this, destruction is sufficient but not necessary.
30. NFSO at 186–89.
31. Curiously, Smith uses the word “quadrant” to describe the matrix rather than a cell of the matrix.
32. NFSO at 191, 194.
33. For the sake of brevity, several of Smith’s matrices have been combined. They include: defence mechanisms against dependency (NFSO at 184), defence mechanisms against death (NFSO at 189, reproduced here in parentheses), the male complexes (NFSO at 194, reproduced here in bold), and the archetypal objects of the ego ideal (NFSO at 191, reproduced here in bold italics). At 194 Smith shows these relationships with two matrices.
34. Smith says, “[t]he female role in reproduction links them to life, and their animality crisis is much more benign.” NFSO at 213.
35. In identifying with their mothers, women must come to terms with dependence, while men are free to construct defense mechanisms denying its reality.
36. Once the archetypes are established they will influence the psychological development of women as well as men. Smith describes female complexes which parallel those of the male, but notes that they are defined by male needs, not female. For example, the male Apollonian complex that is characterized by tendencies toward asceticism, scholasticism, and the like is providedwith a female expression in the Athene complex. Since the female parallel embodies or expresses the same archetypal object of the ego ideal, the collective (social) construction of the female archetype is driven by male, not female, needs. Similarly, the archetype of the father produces the Persean complex in men (dominating women through “traditional family values”, church, law, and so on) and the Eve complex in women (playing the submissive role of sacrificing wife, mother and helpmate), but in all cases the defining needs are those of the male.
37. NFSO at 73.
38. NFSO at 248–51.
39. NFSO at 251.
40. NFSO at 252.
41. Smith, J.C. & Weisstub, David N. The Western Idea of Law (London: Butterworths, 1983).Google Scholar
42. See supra, note 41.
43. NFSO, ch. 18 “The End of History”
44. NFSO at 359.
45. NFSO at 387.
46. NFSO at 355.
47. After posing a series of questions about gender, politics and law generated by radical feminism and psychoanalytic social theory, he says, “The answer to questions such as these must, in the final analysis, remain with women. They must have voice and power.” NFSO at 359.