Legal Philosophy and Personality

Several pleadings I filed in the D.C. Court of Appeals in Freedman v. D.C. Department of Human Rights in the mid-1990s argued that the function of an administrative agency action is more important than the label given to the action.  In both a Supplemental Memorandum filed with the Court on November 7, 1994 and in a Petition for Rehearing filed with the Court on January 24, 1995 I argued that a no probable cause determination issued by the D.C. Department of Human Rights (1993) in my unlawful job termination complaint functioned de facto as a mental status determination nothwithstanding its legal status as a no probable case finding.  I argued that the agency, in making a de facto mental status determination, exceeded its statutory authority (and arguably violated my due process rights by adjudicating my mental comepetence absent an evidentiary hearing).

It's interesting that an autobiographical psychoanalytical study I wrote in October 1988, The Caliban Complex, argued that psychological roles in my family were defined by function rather than by biological relation or legal status.  Perhaps, my legal viewpoints in Freedman were conditioned by my early developmental experiences in my family.

The notion that the function of an object is more important than its manifest label is prominent in my thinking on a range of issues.  For example, consistent with the thinking of creative personalities, I tend to regard authority as arbitrary, contingent on continued and demonstrable superiority. When evaluating communications, I separate source from content, judge and reach conclusions based on the information itself, rather than whether the information source carries the label "authority" or "expert."

In footnote 3 of The Calban Complex I wrote:

"3. The dislocation of family roles in the present case, a situation wherein family roles are defined by function rather than biological relation or legal status, finds a parallel in Joseph Conrad’s novel, The Secret Agent. Concerning the distortion of family roles in the novel one commentator writes: “The family [portrayed by Conrad] is a compelling one, because in every respect except one it is no family at all. Roles are defined by dislocation. Although [the protagonist] Verloc is Stevie’s brother-in-law, he is considered by Winnie and her mother as a father, or at least a stepfather. While Winnie is Stevie’s sister, she really takes over as mother, and the real mother, seemingly too old to be that, appears more like a grandmother. Winnie has married Verloc for security, but since he is much older, he is more father than lover. . . . Stevie must in a sense please Verloc, so that he serves more as son than brother-in-law, and Winnie’s terms for the devotion to marriage are not connected to Verloc but to her brother. Winnie becomes the safeguard to the family that Verloc is nominally head of. The marriage is childless, although ‘children’s roles’ fill all scenes of married life [as they did for the subject’s childless aunt]: Stevie as child of Winnie, Winnie as child of Verloc, Winnie and Stevie as children of their mother before her removal to a charity home. What appear as vertical relationships are really lateral, so that the marriage itself hardly seems between equals.” Conrad, J. (1906) The Secret Agent (Introduction by Karl, F.R., at 11) (Signet Classic: 1983).

(Note that the deaths of both parents before he was twelve was an overwhelming trauma for the young Conrad, leaving him subject to intense survivor guilt for the remainder of his life. The loss or inaccessibility of the nurturing object in preadolescence, either through death or through an abrupt, defensive, and premature decathexis (cf. footnote 14), may impair the child’s ability to negotiate the central issues of adolescence--such as the reworking of the Oedipal struggle (cf. footnotes 6 and 7) and the establishment of an identity matrix (cf. footnotes 9 and 11). Cf. Wolfenstein, M. (1966) “How is mourning Possible?” The Psychoanalytic Study of the Child 21:93-123, cited in Hamilton, J.W. “Joseph Conrad: His Development as an Artist, 1889-1910” The Psychoanalytic Study of Society 8:277-329, at 278-279 (Yale University Press: 1979). Hamilton observes that for the young Conrad the inaccessibility of the nurturing object--through the illness and death of his mother--"awakened in him profound feelings of helplessness, rage, and guilt. These would have been intensified by the very real oral deprivations (cf. footnote 1) of” exile of the family from Poland to northern Russia and the harsh climatic conditions of such an existence. Hamilton does not explore how the themes in The Secret Agent represent Conrad’s struggle over issues of survivor guilt and oral deprivation. The theme of personal identity, central to the novel, and expressed in the characters’ ambiguous family relations, may reflect Conrad’s effort to come to terms with a developmental problem incident to the premature loss of his mother, namely, a malformed identity matrix)."