"Having recognized religious doctrines as illusions, we are at once faced by a further question: may not other cultural assets of which we hold a high opinion and by which we let our lives be ruled be of a similar nature? Must not the assumptions that determine our political regulations be called illusions as well? and is it not the case that in our civilization the relations between the sexes are disturbed by an erotic illusion or a number of such illusions. ... [T]he author does not dispose of the means for undertaking so comprehensive a task..."
Sigmund Freud, The Future of an Illusion, 1927.
It was enough, perhaps, for Sigmund Freud to disturb the sleep of Europe and North America with his observations about the role of the unconscious in our lives. Toward the end of his life, he took a penetrating look at our religious ideas and beliefs. The claims we make for the afterlife, for example, are compelling, but irrational. Experience teaches that we do not return from the dead or live beyond our last breath. But we cannot help but hope for immortality surrounded as we are round and about by not just intimations, but hard evidence, or mortality. The seedling of eternity is planted deep with us all. That so many of us water this inchoate and almost irrepressible desire until it becomes filled with saints, angels, gods, demons and the doctrines about the life to come, is understandable. Illusion is after all necessary. We all live and plan and hope as if each day were something other than a promise that might not be redeemed.
But what of the state, or, in more prosaic form, the United States? Are these but illusions as well? Is justice? Our legal doctrines about reasonable men and women? The broad place keeping terms we use to decide issues without realizing that resort to ideas such as "society," subjective standards and objective standards and the like, are but wind passing our lips?
I've litigated hundreds of cases on behalf of clients who sat across from me in my office. Each wondered what it was the government or the state could do to them. Some wondered why the state was pursuing them with such ferocity. I've seen some of these people cry in fear. A few have taken their lives.
In no case have I ever been able to sit and reason with my adversary. Oh, sure, I can pick up the phone and call a prosecutor any day. Most will return my calls. But when two lawyers meet to discuss a case, they represent their clients. All lawyers agree that only a fool represents himself. Thus, when I look at a prosecutor and ask to speak to his client I am almost always met with the vacant stare of an ox on the threshold of an abattoir. The simple truth is that in criminal defense, the prosecutor is a fool: He has no client. There is no entity with flesh and blood to whom he can turn and ask how to proceed. We make fools of prosecutors by requiring them to serve as both advocate and client. This slight trick transorms the criminal courts too often into dark comedic caves.
What I am saying may sound playful, but I mean it in dead earnest. If you doubt it, stand in the well of a court sometime and ask to call the United States Government as a witness. Ask for your client to meet the State of Connecticut. After you have asked your client consider the state's offer, go back to the prosecutor and ask him to consult his client. You will be regarded as though you have lost your mind. But yet the prosecution is free to call all manner of witnesses to relay what your client has said about one thing or another. Statements against penal interest, or the admission of a party opponent, are almost always admissible evidence. Where do defendants go to garner the admissions of the state? The state is a necessary fiction we take all too seriously.
I am sometimes accused of hating the Government or the state. Nothing could be further from the truth. I am as indifferent to these entities as I am to the claims of Santa's wife. Were I to live for eternity, I will never meet either party. I cannot hate what I cannot see. I cannot hate a fiction any more than I can forward my mail to Hell, where, if the illusions some faiths teach are in fact true, is my next stop after passing though this vale of tears.
That the state is an illusion does not detract from its necessary role in our lives. So near as I can tell, the presence of the state in one form or another is a constant in our civilization and the civilization of others. I suspect the state is a function of a group's size. My hunch is that a small group can do without the intellectual gymnastics necessary to invest some people with the authority to harm others by depriving them of life, liberty and property. I've conveived an informal Rule of Ten: Any group larger than ten persons loses the capacity to manage its affairs by resort to fictions. Thus, in a school or even online, as a community grows, so do informal pressures to conform to standards that are soon invest with a reality and meaning that stand apart and over the relationship of one person to another. Once a group moves beyond the level of intimacy, roles replace relationships. In a large enough group, an apparatus arises to force others to adopt certain roles. This apparatus is, writ large, the state.
What I do struggle with is what becomes of the men and women who are assigned, or, more nearly, seek to become the guardians of role compliance. Who becomes a prosecutor other than a person who wishes to tell another how to live? And what becomes of a prosecutor who year by year so identifies his or her discretion with the state that they begin to think of themselves as the sovereign? The state is a poison many drink to their sorrow, I say.
Freud's pioneering work on the role of the unconscious and on the illusory character of religious doctrines is but an invitation to try to understand how these subterranean pressures express themselves in our public lives in the form of public authority. My hunch is that the rituals and forms of behaviour presented daily in the courts, especially the criminal courts, say much about how we seek to harness the terror with us all. Call me an anacharist if you like, but I say the state is a fiction more to be feared than the beast within when we take those playing at being the state too seriously. I wonder, really, whether the men and women who wear judicial robes have any idea that they are playing with fire. Perhaps so many of them are humorless because they've been consumed by the roles we've begged them to play.