balibar the invention of the superego

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Etienne Balibar Univérsité de Paris X Nanterre and The University of California, Irvine The Invention Of The Super-Ego FREUD AND KELSEN 1922 1 In 1921, a short time after the “speculative essay Jenseits des Lustprinzips in which he introduces the concept of the “death drives ” (Todestrieb), and which is often considered the basis for his “second topography”, Freud published an essay seemingly much more specialized (falling within the province of “applied Psychonalysis”): Massenpsychologie and Ich-Analyse. Nevertheless, it is in this text that Freud systematically develops the concept of “identification” around the notion of the “ego ideal” (Ich ideal) that is substituted, in “organized crowds” (such as the Army and the Church), by an “exterior love object” common to different subjects (either a collective leader or a directing idea—fuhrende Idee—as is in 1 This essay is a part of a work in progress on the Freudian concept of the political. A more developed version, equally provisory, appears in French, in 2007, in the review Incidence. I thank Gabrielle Schwab for including in the volume The Cultural Unconscious, under her direction, an English adaptation of the section that specifically addresses the invention of the “Super-ego” and its relation to the juridical philosophy of Hans Kelsen. 1 1

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Page 1: Balibar the Invention of the Superego

Etienne BalibarUnivérsité de Paris X Nanterre and The University of California, Irvine

The Invention Of The Super-Ego

FREUD AND KELSEN 19221

In 1921, a short time after the “speculative essay Jenseits des Lustprinzips in which he

introduces the concept of the “death drives” (Todestrieb), and which is often considered

the basis for his “second topography”, Freud published an essay seemingly much more

specialized (falling within the province of “applied Psychonalysis”): Massenpsychologie

and Ich-Analyse. Nevertheless, it is in this text that Freud systematically develops the

concept of “identification” around the notion of the “ego ideal” (Ich ideal) that is

substituted, in “organized crowds” (such as the Army and the Church), by an “exterior

love object” common to different subjects (either a collective leader or a directing idea—

fuhrende Idee—as is in the case of religious institutions), and whose effectiveness is

explained by the regression to the archaic image of the “primitive father”—Urvater der

Urhorde—transmitted from generation to generation, by the Oedipus Complex

(according to the theory proposed in 1912, in Totem and Taboo). The following year

(1922)2, this analysis, which was based on a critical reading of works on “political

psychology” by contemporary authors and problematized the distinction between

“individual psychology” and “collective psychology”, became the object of heated debate

1 This essay is a part of a work in progress on the Freudian concept of the political. A more developed version, equally provisory, appears in French, in 2007, in the review Incidence. I thank Gabrielle Schwab for including in the volume The Cultural Unconscious, under her direction, an English adaptation of the section that specifically addresses the invention of the “Super-ego” and its relation to the juridical philosophy of Hans Kelsen.2 Particularly the works by Gustave Le Bon, La psychologie des foules (1985, translated in German, in 1911, as Psychologie der Massen) and William McDougall, The Group Mind (1920)

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amongst Freud’s auditors and students.3 But the most interesting response came from a

jurist, Hans Kelsen—recently appointed a professor at the University of Vienna and one

of the principal editors of the new Constitution of the Austrian Republic, who was to

become, before and along with Carl Schmidt, the most well-known philosopher of the

German language—who during the war, had begun to follow Freud’s seminars, and

forged a friendship with him.4 After Freud had invited Kelsen to speak before the

Society of Psychoanalysis of Vienna, he published in 1922, in Vol.8, booklet. n.2 of his

review, IMAGO, Zeitschrift für Anwendung der Psycho-Analyse auf die

Geisteswissenschaften, a very long critical study by Kelsen entitled, Der Begriff des

Staates und die Sozialpsychologie. Mit besonderer Berucksichtigung von Freuds Theorie

des Masse.5 In this remarkable study, Kelsen demonstrates the superiority of Freudian

analysis in terms of the repression of psychic conflicts and identification over the efforts

made by “social psychology”, which attempts to account for the effect of society [« effet

de société »] by referring to individual interactions. He then denounces the insufficiency

of such a theory (like all psychologisms and sociologisms), attributing to Freud the

project of establishing according to these terms, a theory of the supra-individual and

political unity of the State, which subsumes all other communities in order to account for

the superior juridical norm constituted by law and coercion (Rechtsordnung ist

3 Freud was not the first, in terms of psychoanalysis, to be interested in the question of “political psychology” during the tense period of the war, revolution, changes of regime, and the first confrontations between socialist and communist mass movements on the one hand and with Fascist or proto-Fascist movements on the other. It is worth citing, in particular, the brochure of Paul Federn, a student of Freud: “Zur Psychologie der Revolution: Die Vaterlose Gesellschaft” (“On the Psychology of Revolution: a fatherless society”), which appeared in 1919. Freud’s essay, Massenpsychologie und Ich-Analyse, constitutes, in several respects, a “rectification” of Federn’s brochure.4 See Kelsen’s biography by Hans Métall, Hans Kelsen, Leben und Werk, Vienna, 1969.5 Also translated in English in Vol. V, part I, January 1924, of the International Journal of Psychoanalysis, under the title, “The conception of the State and Social Psychology, with Special Reference to Freud’s Group Theory”.

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Zwangsordnung: the juridical order is an order of coercion), constitutive of the State.

However, in conclusion, after having once again referred to the Freudian unconscious in

support of a refutation of sociological conceptions of the norm that as for Durkheim,

implicate a “hypostasis” or a “personification” of society, and that in reality constitute

repetitions of the archaic phantasy of sovereignty, he suggests that psychoanalysis may

fulfill a fundamental role as a critique of subjective phantasies of omnipotence and of the

transcendence of the State, fueled in particular by individuals’ permanent fear of

suffering injustice or a deprivation of rights (Unrecht) against which they are impotent.

I would like, here, at my own risk and peril, all the while searching for evidence

within the texts, to attempt to reconstruct what must have been Freud’s response to

Kelsen’s critique, which he had himself solicited, and the offer for mutual assistance that

accompanied it. I believe in fact—even without going into particulars—that he could

only but have taken it very seriously, even though it appeared to rest on a

misunderstanding but behind which was hidden a truth.

An alienating choice: the unconscious or the political?

It is certain that Freud had not intended to propose a theory of the state institution, even if

this idea haunts the association between the Church and Army, which lies at the heart of a

similar theory of the institution—in particular in the imperial or post-imperial context. In

Massenpsychologie und Ich-Analyse, one could say that Freud only addresses certain

“apparatuses” of the state. Reversing Le Bon’s theory, he makes identification (personal,

ideological) not only the domain of the anarchical disorganization of the masses, but

especially that of their organization in “communities” or “systems” of belonging. He

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goes so far as to introduce the processes of identification in the topography of the psychic

personality, as the quasi-transcendental condition of individual self-recognition (the

“ego”) as well as that of the mutual recognition of subjectivities (what one may refer to as

“us”), to the benefit of the comparison between these processes and the state of being in

love and of hypnosis. However, he does not ask how such systems of identification

become compatible between themselves, nor correlatively, which new investments of

ideal objects, whether positive or negative, it is necessary to have recourse to in order to

unify them in a politics and an economy of the unconscious. What appears to substitute

this synthesis or this unity of assemblages (even conflictual or problematic) is regression,

in other words, the common root of all identifications and their characteristic

ambivalence with regard to an arche originating from the first generation (the Urvater

der Urhorde: the originary Father of the Primitive Horde). However, this archaic model

that allows Freud in Totem and Taboo to think the origin of social violence (Gewalt) and

that of the law (Gesetz), is in reality anti-political, because it both dissolves the specificity

of all institutions in a “prehistory” generative of humanity (prehistory without history,

which we relate to through the mode of repetition), and because it equates—even in the

form of a myth or a conjecture—the essence of authority with the persistence of an

“immortal” substance of tyranny, slavery, and vengeance, necessarily misrecognized as

such, and on which by definition no deliberate action is possible, whether it be collective

or individual.6 By accepting the Freudian theory of the affective constitution of social

6 In an important commentary on the analogies and symmetries existing between the Hobbesian foundation of the political and its “repetition” by Freud in the form of an anthropological myth, Giacomo Marramao insists that, for Freud, the two moments that correspond to a “state of nature” and to a “civil state” are not spaced apart from one another, but assembled in an dissociable manner (Dopo il Leviatano. Individuo e communita, Bollati Boringhieri, Torino 2000, p. 315 sq.) It is true that one may uphold the same argument with regards to Hobbes himself, by rendering it the latent truth of his conception of the political order, which is founded on the omnipresence of fear. For a discussion on this subject see, cf. also Roberto Esposito, Communitas. Origine e destino della comunita, Einaudi, Torino, 1998, chapter 1 and appendix.

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relations and of feelings of belonging to collective institutions (Bände, Bindungen,

Verbindungen, Verbände), while at the same time arguing against him that political and

historical unities of the state type, founded on the normative restriction of the law and on

the “monopoly of legitimate violence”, are irreducible to such a libidinal economy and

even precede it—without which it is impossible to prefer a political regime to another and

to make it the object of a “constitution”—Kelsen, therefore, presented Freud with a

veritable challenge. The latter, could not ignore this without immediately abandoning the

areas that he had begun to explore in Massenpsychologie und Ichanalyse and the new

articulation of the unconscious and of “culture”—in reality that of politics—which was

formulated there.

In order to take up this challenge, he would have to account for a paradoxical

identification or a limit of identification, which is strictly speaking neither “positive” or

“negative” but rather “empty”, since it does not consist of an imaginary representation of

a love object or object of hate that individuals (their “ego”) may “share in common”

[mettre en commun], but only of the principle of pure obedience. Or then, he would have

to acknowledge that “subjects” of the political institution as such are not subjects in the

psychoanalytic sense, in other words individuals whose thoughts and behaviors depend

more or less decisively on unconscious psychic formations. One would have to choose

either the unconscious or the political. In a sense, this is what Kelsen hoped Freud would

admit to, but on the condition of also facilitating a “return” of the subject of the

unconscious in the lapses or degeneration of a “pure” juridical order, when it came to

understanding why the constitution of citizenship (membership to a politeia) requires a

mythical supplement that appears to originate from the most archaic constitutions of

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authority and on which pathological representations of sovereignty (including, it is

understood, the sovereignty of the people) depend. However, if it was certainly not

satisfying for Freud to have to consider the unconscious as the system of “psychic” or

“cultural” origins of behavior (and of individuality itself), whose influence stops at the

doors of the “cité”, it was hardly more satisfying to have to base this separation on the

dualism of the “normal” (the normative order) and the “pathological” or the abnormal,

which his entire critique of political psychology as well as the orientation of his clinic

rejects!

“A headless State inside the brain/mind ” ?

Thus, I am convinced that in the course of several months, Freud sought a complete

response to Kelsen’s objection, which concealed a development and maybe even a

reorganization of his own theory of the transindividual “bondrelation” [lien]. This also

cautions us not to ignore the “external” or rather economic factors, namely, the singular

historical moment when both had the idea to meet and which they certainly discussed. I

pose, here, a question that requires additional research by way of their correspondence

and personal accounts. However, I view as plausible that the juridical ideal of the

formation of a State of the constitutional type, equidistantly situated between two

“extremes”—the “authoritative State”, which the pre-fascist movements of the 20s strive

to reinvent, and the proletariat’s “State non-State” dictatorship, in form of a “council”,

which psychoanalysts among the most closely associated with Freud had more or less

enthusiastically rallied around—is a perspective shared by both Freud and Kelsen, and

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the grounds for their complicity and perhaps already for Freud, for a more pronounced

pessimism.

However, the need to “respond to Kelsen” that I hypothesize here did not lead

Freud to return to the question of the articulation between Church and State, or of the two

underlying types of institution and communal membership as such.7 Rather, it led Freud

to pose his own question on juridical coercion (or in other terms, obedience to juridical

coercion) to Kelsen, and consequently to question his concept of the “norm”, the grounds

for the irreducibility of the juridical order to a group penomenonmass mechanism

[ mécanisme de masse ] or to psychological identification. Kelsen believes that the law is

an a priori synthesis of obligation and coercion, and that this synthesis supports itself,

even if it must defend itself from the resurgence of the archaic and of the theological. In

this respect, he directly inherits Kant’s concept of the law, but he separates it from its

relation to a transcendental morality.8 For Kelsen, positive law constitutes its own

Grundnorm, or establishes within itself the foundation that it requires, at least in the

mode of “fiction”. The question that is posed and that Freud poses to Kelsen aims at

collapsing this fictive self-sufficiency. It asks what it means to obey, and more precisely

still, what it means to obey coercion, to be interiorly deprived of the capacity to resist it,

to renounce to the capacity to revolt against it—with certain exceptions of course—and it

7 In a note added in 1923, at the end of chapter III of Massenpsychologie, Freud defends himself against Kelsen’s accusations, which claim that he has a tendency, in an organicist fashion, to hypostatize organized masses, by attributing to them the equivalent of a “collective soul”, while at the same time praising Kelsen’s work: “I differ from what is in other respects an understanding and shrewd criticism by Hans Kelsen” (einer sonst verstandnisvollen und scharfsinningen Kritik). S, Freud. “Group Psychology and The Analysis of The Ego (1921), in The Standard Edition of The Complete Works of Sigmund Freud, Vol. XVIII. Trans. James Strachey. London: Hogarth Press, 1955. p.878 In the introduction to Doctrine du droit (the first part of la Métaphysique des mœurs), the external coercion inherent to the law is defined as “the obstacle to obstructions of freedom”. It is presented as the correlative of the reciprocity of juridical obligations, by virtue of the principle of contradiction. (Emmanuel Kant, Oeuvres philosophiques, Bibliothèque de la Pléiade, Volume III, p.480 sq).

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asks in which “structure” such a renunciation or privation is rooted, in such a way that it

is always already presupposed by the functioning of the social order.

However, we must be prudent and therefore as precise as possible. Freud does

not state that individuals subjected to the power of the State or to the positivity of the law

do not revolt but that such a revolt, which is radically illegitimate in the eyes of the State

that has claimed the “monopoly” of the codification of the law and its sanction, is only

possible, when it is not suppressed, in the form of anxiety, guilt, or a maniacal challenge

and megalomania, all of which postulate the inevitability of punishment and even seek it

out.9 In this sense, he does not place, as one might hastily conclude, “an image of the

State in the mind”, that is to say, in the individual unconscious called the Super-ego. He

does not legitimize the State or the law by means of the unconscious, nor does he project

the phantasmatic double of political authority within the structure of the unconscious (as

many of his readers, whether psychoanalysts or not, have believed to their satisfaction or

dismay). This would only displace the question, reduplicate a political utterance by

means of a psychological interpretation and an interminable regression. However, in a

much more troubling manner, he describes a fundamentally antinomical psychic process

that forms in the unconscious the counterpart to the monopoly of legitimate violence,

which the State demands. As if obedience to legal coercion was simultaneously produced

on two scenes (or on a public scene and on “another” psychic “scene”) according to

modalities, which are at the same time, indivisible and radically heterogeneous, the one

9 A third possibility is irony or derision. Kafka explores this option contemporaneously in The Trial (and in a separate narrative, published separately under the title, “Before the Law”). But this example suffices to demonstrate that anxiety nevertheless, does not disappear. Cf. the recent commentary by Michael Lowry: Franz Kafka, rêveur insoumis, Stock 2004, which insists on the links between Kafka and the anarchist groups in Prague and reminds us of the significance of the theme of the “injustice of the State” (Staatsunrecht) in liberal European culture at the turn of the century. Deleuze’s argument with regards to Sacher Masoch follows in the same direction (which implies that Masoch is not a “masochist” in the Freudian sense).

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contingent on the other. The terms, one will see, are the same: law, authority, obedience,

transgression, crime, punishment, guilt…but this series bifurcates with the notion of

coercion-compulsion (Zwang). Consequently, if Freud’s theoretical invention confirms

the universality of the juridical order postulated by Kelsen, it also paradoxically places

the contradiction, which is at the heart of its ascendancy (Bemächtigung), on the

individuals’ psyche and in this sense, threatens its legitimacy with a radical incertitude.

We are thus made to reflect on the paradox of “voluntary servitude”, which one must

admit does not cease to circulate, seeking out its theoretical position as well as its name

among all the protagonists of this important debate begun by political psychology.10 But

this is accomplished through specific modalities that run counter to current acceptations,

which simultaneously demonstrate its ineluctable character and the impossibility of

rendering it an instrument of power at once through “excess” and by “default”. It is this

complex, which the “encounter” between the juridico-political question and existing

psychoanalytic theory crystallizes in Freud, that I would like to attempt to describe at

least in regards to its general principle, implementing terminology as our guiding thread.

The name given by Freud to the principle of obedience is “super-ego”, Über-Ich.

We “all possess a super-ego”, or better, we are super-egos, in so far as singular histories

of the psychic apparatus—what Freud increasingly refers to as “psychical personalities”

(psychische Persönlichkeit—a term which may be possibly included with “moral

personality ” and “juridical personality” and which also implies, as may be expected, an

element of fiction). Or better yet, we are “the super-ego”, of whom we are

10 In Psychologie des foules, Le Bon, following a long counter-revolutionary and anti-democratic tradition (that one can trace back to Plato), speaks of the crowds’ “thrist for obedience”, which results in the desire for the authority of a “leader” (in German, Führer). The German translation taken up by Freud also reinforces this idea by speaking of Durst nach Unterwerfung (the thirst for subjection, or even of abjection).

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unconsciously the representatives and the agents (which also signifies that we make

ourselves its subjects in the characteristic form of a division). The choice of the Über-Ich

is not a simple one.11 It stems undoubtedly, among other things, from the Kelson’s

insistence on the formation (Gebilde) of a Über-Individualität and insistence on the über-

individuell and über-persönalich characteristic of the juridico-state norm that demands

obedience to the universal, or if one prefers to the law. However, it also belongs, one

notices incidentally, to an extensive paradigm that Freud continuously exploits for even

the most idiomatic resources. (Übertragung, Überdeterminierung, Überschätzung,

Überarbeitung, …). Let us remember above all else that the combination of the

preposition, Über, and the pronoun, Ich, simultaneously produces two effects of meaning

« effets de sense »: über-Ich is that which maintains itself “above” the Ich in a hierarchy

of authority and is what Freud appears to privilege each time he associates the function of

the super-ego to the idea of an agency that observes, supervises, and critiques, which

originates from the tradition of moral empiricism (Hume’s and Smith’s impartial

spectator—both authors whom he had read in his youth).12 Yet, it is also, literally, a

“super-ego”, that is to say a superior ego, larger and stronger at least in the imagination

and phantasy, as one says “supermale” or “superman”: a meaning more directly related

to the entire thematic of the constitution of the super-ego beginning with the image of the

father or parents and their absolute power over the infant who experiences with anxiety

11 Many critics—for example Peter Gay, in his biography Freud. A Life for our Time p.414—are surprised that the essay of 1923 is entitled Das Ich und Das Es and not Das Ich, das Es, und das Über-Ich, since the latter is the object of study, and see this as a slip of the pen. The fact is that Freud is very forthcoming with regards to his “borrowing” of the term “Das Es” from Groddek and on the modifications of usage it undergoes, but remains silent on the origin of “Das Über-Ich”, as if this term naturally developed from the function attributed to it. 12 The idea of an observing and critiquing function, therefore of a “censuring” agency, has been associated by Freud to the conceptualization of the Ego ideal (Ichideal) from its inception: cf. Zur Einführung des Narzissmus, p.63 sq. For this reason, it is important to highlight what, in the concept of the Super-ego, is not reducible to it (or in excess of it).

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his inability to resist them and his own “smallness”.13 In this sense, the Super-ego is that

part within me that is more powerful than myself, or better it is an ego larger than myself

[ un moi plus grand que moi ], an ego which fictions itself as “bigger than itself”. At the

intersection of these two paradigms in Das Ich un das Es (Chap. 5), one finds the

“redundant” expression: das überstarke Über-Ich (the all powerful Super-ego).14

The second key term that provides us with a guiding thread is of course Zwang,

translated as coercion or compulsion and currently rendered by translators by the entire

series of Freudian concepts associated with it, from Zwangsneurose (“obsessional”

neurosis or “coercion” whose paradigm is the Rat Man), to Weiderholungszwang

(repetition compulsion) associated in Beyond the Pleasure Principle with the continued

efficiency of traumatic experiences and their infinite displacement, or to their conversion

into sources of paradoxical pleasure that together form the enigmatic unity of the so

called, “death drives” (Todestrieb). I am not far from concluding, and I do in fact

believe, that the question of Zwang (what is coercion-compulsion? how does it function?

how does it express itself? what purpose does it serve? why does it appear? but also why

does it form the irreducibly anxious modality of the relationship to authority?) is the very

point of intersection between the problematics that Kelsen and Freud encountered, and

the catalyst for theoretical invention at least for one of them. On one hand, there is the

Kelsian idea that the law in so far as it establishes an order, precisely sets up the

equivalence between obligation and coercion, or the perfect coextension of the two, with

the exception of lapses, or even sets up this equivalence by means of a constant

13 Regarding this point, Freud does not fear the slippage of verbal polysemy as is revealed by his indiscriminant rapprochements of the “superhuman” figure in Urvateur der Urhorde such as it projected in the imaginary power of tribal leaders and leaders, to the Nietzchean “superman” (Übermensch, where über signifies that which “surpasses” the human) cf. Massenpsychologie und Ichanalyse, chapter X (Studienausgabe, IX p.115).14 Das Ich und das Es, in Studien-Ausgabe, Bd. III, p.319.

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recuperation of its lapses. On the other hand, there is the Freudian elaboration of the

problematic of Zwang that progressively encompasses the entire phenomenology of the

manifestations of the unconscious in normal or pathological life (in other terms, that

defines normality as the little freedom or illusion of freedom that coercion allows us, as

one clearly sees in Inhibition, Symptom, Anxiety and in, New Introductory Lectures of

1932), and that in any case, forms the core of the manifestations of the super-ego, which

fluctuate between two extremes: surveillance, or critical observation, that is to say, self-

criticism, and literally speaking, severity or harshness, the anticipation for punishment

and for an arbiter for faults that were never committed “in reality” [dans le réel], as the

study of Zwangsneurosen, the veritable laboratory for the development of the super-ego

from the perspective of the clinic, precisely taught Freud. It is by keeping together both

these threads, the thread of the “over”, Über, and the thread of compulsion, Zwang,

which is one and the same with the question of rights and particularly the right to punish,

that one is able to understand how Freud proposed to Kelsen, not as is all too often

assumed, a radical reform of the Kantian concept of the “categorical imperative” as a

structure of the unconscious that reestablishes according to another modality, the law’s

dependence on morality, but rather an analysis of the ambivalent effects produced in the

subject’s unconscious by pairing the idea of law together with that of State coercion [« la

contrainte étatique »].15 Without such a pairing no social norm is effective, nor does the

15 What renders a clarification of Freud’s various positions on this point problematic, is also his hesitation with regard to the usage of the term Gewissen, translated in English as “moral conscious” [“conscience morale”]. For once the lack of adequate French terms for the distinction between the two German terms Bewusstsein and Gewissen, translated in French by the single term “conscience”, helps us to identify the problem that the idea of a unbewusstes Gewissen raises, or of an “unconscious morality” discussed in the first chapter of The ego and the Id. It can only be a question of a “hypermorality”, a “supermorality”, or a “morality beyond morality” (Übermoral is a term that appears already in Totem and Taboo)…On the history of the intersections between Gewissen and Bewusstsein (“moral conscience” and “psychological conscience”), see my article “Conscience” in Vocabulaire Européen des Philosophies, under the direction of B. Cassin, Editions Seuil-Le Robert, 2004.

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respect for norms engender “excess” guilt (Schuldgefül) and the “need for punishment”

(Strafbedürfnis) that Freud describes as characteristic of the “severity” or even “cruelty”

of the Super-ego (therefore, as typical of its “instinctual” nature, or of the repercussions

of “id” at the heart of the “ego” that it represents), and that end up establishing an absurd

equivalence between obedience to the law and its transgression.16

Let us now turn to the text of 1923, Ich und das Es (supplementing it on occasion

with some ulterior developments that are directly related to it), and let us attempt to

reconstruct the progression that leads to this fundamental antinomism.

The Psychic Tribunal of the Psyche and The Interpellation of Subjects as

Individuals.

In Das Ich und das Es (1923), the Ego Ideal/ Super-ego pair is first introduced in terms of

its “genesis”, starting with the sequential identifications in every individual’s history that

contribute thus to the formation of his personality (or to the different relational

characteristics of his “ego”): even if it results in order not to result in a pathological

multiplicity of identities, an organization or a synthesis is required, whose condition

Freud tells us, depends on the “primary” identification that originates with the resolution

or the decomposition of the Oedipus Complex. The Super-ego is thus the original ideal

[premier idéal ], even if the genetic anteriority of the model is already accompanied by a

series of paradoxical characteristics: above all the fact that the injunction in which it

[super-ego] is concentrated —both exhortation (Mahnung) and interdiction (Verbot)—

16 In the essay “On the Economic Problem of Masochism (Das ökonomische Problem des Masochismus, 1924), written as a continuation of Das ich und das Es), in the context of his analysis of “moral masochism”, Freud unequivocally gives the corresponding terms Schuldgefühl and Strafbedürfnis the form of an equation (Studienausgabe, Bd. III, s; 350 sv.). See Suzanne Gearhart’s elucidating commentary on Racinian Tragedy (The interrupted Dialectic: Philosophy, Dialectic, and Their Tragic Other, The John Hopkins University Press, 1992).

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implies a practical impossibility, or a least a double bind (“be like your father!”, “do not

do as your father does!”) (chapter III), a characteristic that is later extended to

“authorities” capable of relaying the paternal function of commandment and interdiction

(Gebote und Verbote), especially that of educators (Lehrer). How does the subject (the

unconscious ego) not feel guilt at his failure to reconcile both that which is demanded of

him and prohibited him? The idea of an inevitable and inextinguishable sense of guilt

(Schuldgefühl) is thus already present: it constitutes the unconscious affective modality of

the ego’s subjection to the super-ego, once these injunctions are interiorized, both

repressed and appropriated by the subject who identifies with the paternal model.

However, in the last chapter (V) Freud returns to the analysis of this complex after a long

detour through a discussion of the dualism of the drives (Eros or the sex drive and the

death drive which he does not himself call Thanatos). He does this by hypothesizing a

“disentanglement” [« désintrication »] of the instincts, which leads to the possibility of a

“desexualized” libido, and which may take the form of sublimation (moral, intellectual,

esthetic), but also the ego’s tendency for self-destruction, or what amounts to more or less

the same thing, the inhibition of its capacity to seek out or find pleasure, whether in

exterior objects or by taking itself as narcissistic object.

The return to the question of guilt occurs by means of a clinical observation: that

of “negative therapeutic reactions”, where the patient resists the interpretation that would

allow him to free himself of the symptoms from which he suffers, and above all else,

resists the cure itself, or “refuses” it.17 Freud begins by interpreting Krankheitsbedürfnis

(“the need for illness” therefore, need of pain), which constitutes the manifest aspect of

17 In Freud’s text, the allusions made to the phenomenon’s transferential dimension also suggest that one must consider that for the patient, it not only concerns a “need for illness”, but also of a desire to place the doctor in the position of tormentor rather than healer.

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this supplementary symptom, as an effect of a “moral factor”, the extreme consequence

of the feeling of guilt. Then, in a remarkable extrapolation (undoubtedly proposed by the

clinical material, but also certainly by the “paradoxical logic” of unconscious causality),

he transforms the feeling of guilt itself into a willful attachment to “pain as punishment”

(Strafe des Leidens), which the subject neither wants to or is able to renounce and turns it

into a displacement of a more fundamental “need for punishment” (Strafenbedürfnis)

(that is to say, always present in the unconscious even when it is relatively neutralized or

counteracted by Eros). Henceforth, “ordinary” logic (that of common sense, but also that

of socially observable behaviors) is reversed. It is not the fault or the crime that

engenders the feeling of guilt on one hand and the sanction or punishment on the other, in

a healthy division of roles between the accused and the judge. But it is, on the contrary,

the continual need to repeat or the compulsion for punishment that confounds these two

roles, or attributes them alternatively to the same person, which engenders guilt and

produces, as needed, criminal intentions (or that are experienced as criminal),

interdictions that are to be transgressed, and actions that “justify” and sustain the need for

punishment indefinitely.

Freud is not satisfied with merely providing this logic with a name (it is literally

the Super-ego, as a dynamics or as a mechanism). Rather, he proposes a model whose

meaning is much more than allegorical: that of a psychic tribunal of the psyche

[« tribunal psychic »] whose subject is split into distinct “agencies” [instances], each one

acting out against the other, and who simultaneously occupies all positions (accused and

accuser, judge and victim).18 A “Kafkaesque” tribunal before which it is all the more

18 I must cite here the crux of the argument: “An interpretation of the normal, conscious sense of guilt (conscience) [Gewissen] presents no difficulties; it is based on the tension between the ego and the ego ideal and is the expression of a condemnation [Verurteilung] of the ego by its critical agency [kritische

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difficult to defend oneself, since the origin of the committed offence is inaccessible or

always refers to the instinctual depths of the subject, and whose “cruel” punishments

never appear to extinguish the debt of the criminal. A tribunal whose domination or

mastery, which it exercises over the conscious and unconscious ego (or more precisely,

over every opportunity to “treat” [traiter] unconscious conflicts by way of

consciousness), has as its correlate a permanent susceptibility to anxiety to which the rest

of his work is devoted (“the ego is considered the very site of anxiety”, die eigentlich

Angstsatätte). The interpretation of the super-ego’s constitution and functioning as a

paradoxical or excessive judicial agency according to which aspects of the arbitrary and

of moral violence, which are more or less completely neutralized and prevented by the

functioning of “real” and “external” tribunals, are taken to their extreme, clearly

demonstrates the distance henceforth taken from models of idealization or of sublimation

previously analyzed in conjunction with a theory of the “ideal super-ego”. It signals the

appearance of what one may refer to as, following Foucault’s formulation19, “ the

Instanz]. The feelings of inferiority so well known in neurotics are presumably not far removed from it. In two very familiar maladies the sense of guilt is over-strongly conscious [überstark bewusst]; in them the ego ideal displays particular severity [Strenge] and often rages [wütet] against the ego in a cruel fashion (…) In certain forms of obsessional neurosis [Zwangneurose] the sense of guilt is over-noisy [überlaut] but cannot justify itself [sich rechtfertigen] to the ego. Consequently the patient’s ego rebels against the imputation of guilt [die Zumutung, schulding zu sein] (…) In melancholia the impression that the super-ego has obtained a hold on consciousness [Bewusstsein] is even stronger. But here the ego ventures no objection; it admits its guilt and submits to the punishment [es bekennt sich schuldig und unterwirft sich den Strafen] (…) the object to which the super-ego’s wrath applies has been taken into the go through identification [der Zorn des Uber-Ichs] (…) One may go further and venture the hypothesis that a great part of the sense of guilt must normally remain unconscious, because the origin of conscience [die Enstehung des Gewissens] is intimately connected with the Oedipus complex, which belongs to the unconscious. If anyone were inclined to put forward the paradoxical proposition that the normal ma is not only far more immoral than he believes but also far more moral than he knows, psycho-analysis, on whose findings the first half of the assertion rests, would have no object to raise against the second half”. The Ego and The Id and other works, in The Standard Edition of The Complete Psychological works of Sigmund Freud Vol. XIX. Trans. James Strachey. London: Hogarth Press, 1961. pp. 50-51. The text includes a certain ambiguity, a result of the fact that it appears to vacillate between an opposition of the normal and the pathological, and of the conscious and the unconscious. However, one can overlook this ambiguity by assuming that that which characterizes these “maladies” (obsessive-compulsive disorder, melancholia—and in other contexts he would include the perversions: masochism), is precisely the passage into the conscious, or into manifest behavior of what in itself characterizes the unconscious. 19 In La volonté de savoir Foucault himself challenges a certain legacy of Freud.

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repressive hypothesis”. It also produces a series of important consequences whose

“political” implications must also be outlined.

The comparison made between consciousness and the tribunal or an “inner

tribunal” [« for intérieur »] is of course, as old as classical (Stoic and later, Christian)

conceptions of morality. It remains central to Kant and it supports the model of self-

judgment. However, here Freud significantly reworks this idea, a reworking, which in its

own way, tends toward a “general theory” of norms, or to the idea of the normative as

pure compulsion (Zwang) of the “offence” [la faute] and of “punishment” as its or

“sanction”. If the text refers to “duty” or “thou shalt” (Sollen) it is not incidental.20 In

general, these developments (and similar ones, which one finds in subsequent lectures

particularly in New Introductory Lectures of 1933, where the judicial action of the

conscious, die richtliche Tätigkeit des Gewissens, is discussed)21 address above all else,

the moral conscience, which is interpreted as both a conscious and unconscious agency,

personal and impersonal (“internalized” and “exteriorized”, especially under the

influence of religious institutions), but which is consistently described as a passage to the

limit of the juridical process. It is characterized (and here we are already at the level of

antimony) by excess morality, which must reign in the unconscious (Übermoral,

hypermoralisch) in order that individuals may recognize the existence and the necessity

of norms. This “hyper-morality” is simultaneously located not only “beyond good and

evil” (in the sense that every good is also from another point of view, an evil, Übel), but

beyond the metaphysical distinction between autonomy and heteronomy and

20 “This diffusion [of the two drives] would be the source of the general character of harshness and cruelty exhibited by the ideal—its dictatorial ‘Thou shalt’” (pp.54-55).21 Lecture 31, in Studien Ausgabe, Bd. I, p. 499

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consequently, at a point that precedes the distinction between law and morality.22 The

“tribunal” it delineates is not so much analogous to real tribunals, whose proceedings

functioning may be pushed to the point of absurdity, but rather to the unavowable

archetype at the margin between the normal and the pathological, which accounts for the

universal authority of real tribunals.

It is, therefore, worthwhile to return to the models of identification that Freud

previously associates with the examples of the army and the church, and to inquire what

it is that the super-ego’s ultra-judicial authority introduces that is supplementary or

different. Evidently, it consists of a third institutional model of identification, also

closely associated to the question of the State (and to the relation between subjects and

the State), but which does not at all accentuate the same components of membership.

The models of the army and of the church, which are studied by Freud in

Massenpsychologie and Ich-Analyse, correspond to two modes—described as

supplementary—identification as a (double) relation to a Vorbild and to “equals”

[semblables] or to “brothers”. They therefore, essentially collectivize and produce an

“egalitarian similitude” (Gleichheit) between individuals belonging to the same group.23

Furthermore, this is why they cannot be completely excluded from the analysis of state

formation, especially when the latter is linked to the influence of nationalism and

22 In his later works (in particular, das Unbehagen in der Kultur), Freud defines “civilization” or “society” as the level of pre-moral and pre-juridical normativity governed by the super-ego’s development and by the extent of its domination, in accordance with a certain sociological and anthropological tradition. This concerns another aspect of his research, which given the context of the present hypothetical reading, I prefer not to address. 23 Once again, the comparison between Ferdern’s brochure and his psychoanalytic “deduction” of democracy is very insightful: For Freud—who in this sense is in no way liberal, nor a radical democrat in terms of a “participant” democracy—the fraternal figure belongs to the same schema as the paternal figure and is a component of it much in the same way that, in the myth of Totem and Taboo, the egalitarianism of the brothers is haunted by the guilt of the murder of the father. Freud does not believe in its autonomisation. Nor does he believe in the “juridical resolution” of the familial complex, except, as we will see, in the form of an antinomic reversal.

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patriotism, which in the modern period are generally contemporaneous with it. One of

these modalities—possibly ideological, since it does not link identification to a leader,

but to the power of a führend Idee, an educating or directing idea—appears to be

privileged here, because it emphasizes the melancholic aspect of the ideal ego, which

associates love to the feeling of an irremediable loss of a prefect object (“overestimated”:

überschätzte) that to a certain extent we are responsible for, and which ultimately

confounds the experience of reality and the repression of the instincts, thwarts desire, and

finds satisfaction in frustration. Here, we come closest to the characteristics that Freud

ascribes to “moral conscience” and its typical excesses, whose religious origins and at the

same time social function he willingly stresses, as does Nietzsche. What “we” must

internalize and in this sense unconsciously elaborate, beginning with our first social

relations (to the parents), is not commandment or the law of the living leader (of the sur-

vivor [“sur-vivant”], as Canetti would later write), but rather, the law of death or of the

Sacred Victim [“le Sacrifié”], as in the Church.

In reality, however, Freud, in his description of the formation of the super-ego,

also refers to the effects of an authority that is brutally physical, or better: corporal (of the

parents, notably the father), even if he does not describe familial discipline as a discipline

of the “military” type. The combination of a feeling of guilt and the need for punishment

produced by the repression of fear, which is inspired by an authority of the “judicial” type

(that would judge us for our acts, even virtual, that is to say, for our desires), reverses the

relation between the subject and the group, or of the “self” to a “we”. It produces not so

much an effect of identification, but rather, an effect of dis-identification and of dis-

assimilation, or of individualization, by rendering each subject “responsible” for an

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offence that is his own. The super-ego is by no means less of a trans-individual structure

than the ego-ideal of which it constitutes a new elaboration.24 However, what is specific

to it—a parody and reversal of Althusser’s well-known formula—is the interpellation of

subjects into individuals and thus, the production of their isolation, their solitude (the

anxiety of solitude) at the heart of the group. It is easy to see that in this way is

constituted at least one of the conditions for the formation of a subject of the law [le sujet

de droit] whose obedience to the law, even if it corresponds to a general rule, is judged or

threatened by punishment. This judgment or punishment concerns him exclusively, since

it brings him to question himself, or as one says, to face his responsibility from which he

“cannot escape” whatever he may attempt. One might add that the super-ego establishes

a negative relation between individuals: neither love, nor brotherhood, neither hate nor

hostility, but rather the inhibition of mutual and destructive instincts or of

Bemächtigungstrieb, which in compensation, develops the interior “destructivity” and

“aggressivity” of the sentiment of guilt.25

It is possible to see here Freud’s return, in his own languageaccording to his own

criteria, to the Kantian problematic of “unsociable sociability”, which paradoxically

combines the individuals’ attraction and repulsion, association and disassociation in the

same “unit”, as does, in particular, Pierre Macherey in his remarkable commentary on

24 Jean-Luc Donnet, in his lecture, insists on this point: “the Super-ego clearly appears as a space for the transfer of identity, it remains “destined” for communitarian sharing. In this sense, for Freud, there is scarcely an “individual” Super-ego. Furthermore, the second topography is trans-subjective and trans-generational”. (Surmoi I: Le concept freudien et la regle fondamentale, Monographies de la Revue Française de Psychanalyse, PUF 1995, p.40) (Translation Lahela Minerbi). For this reason I do not insist on the fact that the super-ego is “individual”, but rather on the fact that it produces individuality by “forcing” the subject to feel guilt, while the ego-ideal studied in Massenpsychologie und Ich-Analyse is not “social” in the sense of a preexisting organism, but rather, is “shared” [“mis en commun”] and produced by the community. What is questioned each time is the orientation of a vector, a relation. 25 The counter-identification, which the super-ego producesstrives for, occupies in many respects the place that Freud, in the final plan of Massenpsychologie (chap. XII “PostscriptAprès-Coup”), reserves for neurosis, in so far as an “absence” of erotic or hypnotic relations. Therefore, it also proves to correspond to a social formation, but operating in reverse.

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Civilization and Its Discontents and its critical relation to the ideals of modernity.26

However, it is important to note that the question of membership is at the same time

posed with acuity and in contradictory terms. The analyses of “the formation of the

masses” (Massenbildung) and the corresponding model of identification appear to have

provided the question of membership with a homogenous and definitive answer, precisely

that which permitted Kelsen to note its inadequacy to the functioning of the juridical

order. What does it mean to belong to a “tribunal” or to a State that defines itself

principally as a tribunal incarnating and monopolizing the judicial functions? Apparently

it is to fall within its sanction, to come under its “jurisdiction”, and therefore, to have

been positioned there in a manner that does not allow the individual to escape or ignore

it, to challenge it. This question has relentlessly preoccupied the philosophy of law, in

every instance influencing its political choices as is the case with Hobbes, Hegel, and

Kelsen himself.

For Hobbes, as one knows, the fundamental question posed by social relations at

the heart of every organization (“system”) or association is the following: quis judicabit?

From which judge or tribunal do the litigations that arise within it and the crimes there

committed originate? Ultimately, the judge of all judges (the “Supreme Court”) is the

sovereign, who is himself judged by no one and to whom all proceedings are directed.

This is why the condition of possibility of the subjects’ submission to the law, which

dissolves all personal allegiances or subordinates them to the sanction of the State, is that

every individual, in his conscience [in foro interiore], will have relinquished his capacity

26“Freud: la modernité entre Eros et Thanatos”, is found on the following group’s site: “La philosophie au sens du large” (exposé du 12 octobre 2005) (Université de Lille) (http://stl.recherche.univlille3.fr/seminaries/philosophie.macherey/macherey20052006/macherey12102005cadreprincipal.html).

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to defend himself to the sovereign authority, in other words to the “fictive” or

“impersonal” person of the State, and will have recognized its absolute right to judge

every infraction of the law (under the strict condition, however, that the latter be

previously promulgated: nulla poena sine lege, an where the expression of the “rule of

law” which becomes is more or less felicitously translated as Rechstaat or Etat de

droit“State of law”). It is not difficult to see this as an example of what Kelsen describes

as the institutional hierarchy of norms within the juridical order and their ultimate

dependence on a “fundamental norm” (Grundnorm) that legitimates all others.27

For Hegel, in one of the principle passages of The Philosophy of Right,28 the

condition for the tribunal’s effectiveness is the criminal’s (or more generally, the

“delinquent’s”) desire for punishment: the context reveals that it is not a question of a

moral or psychological proposition, but rather a logical proposition since it intervenes in

the instant of “abstract law”, when the juridical form is exposed independently of the

“person” of the subjects who are its bearers. To assume that he who commits an

infraction or an injustice (Unrecht) awaits a sanction that reestablishes order, is at the

same time to make the delinquent the instrument of the execution of the law and to

integrate him, by the acquittal of his “social debt”, into a community from which he has

excluded himself by infringement of the law (which also signifies, with all the

ambivalence that accompanies such an idea, that no one is ever “outside the law). There

27 It is striking that in Hobbes’s construction, the hierarchy of judicial instances agencies within the context of sovereignty has as its unassimilated “excess” or “residue”, precisely, the asocial or anti-political masses, the ferments of the State’s disintegration that purport “to do justice for and by themselves” [«de se faire justice elle-mêmes»]. See: Leviathan, chap. 22, “Of Systemes Subjects, Politicall, and private”. I have offered a commentary on the above in my introductory essay to the French translation of Carl Schmidtt’s book on Leviathan, “Le Hobbes de Schmitt, le Schmitt de Hobbes” (Ed. Du Seuil, 2002). Although situated at the other extreme of the social order, this simultaneously residual and menacing figure parallels the manner in which Kelsen separates the fantastical hypostasis of State power from the rational functioning of the institution so that he may suggest its treatment by psychoanalysis.28 Hegel, Principes de la philosophie du droit, trad. Fr. J.-F. Kervégan, PUF, Paris, 1998, §91.

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is no transgression, or if one prefers, transgression is the appearance, in the individual, of

the rational process through which the law imposes itself, asserts itself (the manner in

which it appears to the “finite” individual).29 Despite the differences that distance Kelsen

from the Hegelian dialectic, one finds in the former this same idea, with the exception

that the contradiction as appearance has been become an appearance of contradiction.

As the Theory of Pure Right explains, which on this issue is opposed to the tradition of

“natural law”, the “illicit fact” or injustice (Unrecht) is not a “negation of law”. It is an

action that the law prohibits and consequently, whose sanction it anticipates. As a result,

he who commits the delict is unable to “get beyond the law”, an expression devoid of

meaning (one could say that he does not possess the “power” or the “right”), but that

allows for the law’s existence, confirms its validity (Geltung), “through the legal order’s

reaction in the form of a punishmentsanction” 30 But in reality—and such is also the

significance of the equation Rechtsordnung ist Zwangsordnung— without crime,

punishments sanctions would never occur remain groundless and the coercive restrictive

character of law would remain a fiction. One can therefore, conceive that crime, which

does not contradict but rather affirms law as obligatory norm, is practically necessary to

its existence. One can also consider the individuals’ “membership” to the juridical order,

always already given and constantly verified by it (at least as long as this order is

perpetuated), as the effect of subjectivity proper to the sanction.

I would like to propose that Freud, in his own theorization of the “judicial moment”

of subjection (that is to say, of the super-ego as a structure, a system of individualizing

29 “Das Unrecht is ein solcher Schein, und durch das Verschwinden desselben erhält das Recht die Bestimmung eines Festen und Gelden” (Philosophie des Rechts, § 82, Zusatz). Let us not forget the “democratic” consideration of this argument: it is not possible to legitimately judge an individual for his offences or crimes except in the name of a law that he, in so far as a citizen, has himself helped to formulate, before a tribunal where in principle he himself could sit.30 Hans Kelsen, Théorie pure du droit, trad. Fr. 1953, p.76

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social relations mediated by guilt), by shifting the entire “logic” of negative

identifications onto the unconscious scene (whose pathological obsessional neuroses,

melancholic delirium, and “moral masochism” only ever provide him with an

aggrandized and unilaterally accentuated representation of what normally is at work in

the conflictual constitution of the personality)31, reached an inverse conclusion: there is

only transgression and for this reason, it is possible to belong to this “impersonal” order--

that is the juridical order. However, in order to outline this last point we must readdress,

even if broadly, the unconscious mechanism of belonging membership to the social order

(which is also a mechanism of unconscious belonging membership to this order) as Freud

organizes it in Das Ich und Das Es, in terms of the super-ego’s “genesis” and the state of

“dependence” that it imposes on the ego.

The Genealogy of Authority and Transgression

Undoubtedly, the genetic scenario model focused on the “resolution of the Oedipus

complex” and the repression of the repressing agency that it implies, orders the entire

presentation of the super-ego in which the “second topography” is systemized. In other

words, what orders this presentation is the transformation of an “external” coercion

restriction into an “internal” one in order that the conflicts produced by the familial

situation, described by Freud as a triangle of libidinal desires, are resolved for the “little

child” who is simultaneously the subject and object of desire. Consequently, the new

notion is associated with the theory of sexual development, with the clinic of individual

neurosis and interpretation of “subconscious formations”, and with the idea that thoughts

and affects, which return to consciousness or manifest themselves as symptomatic

31 Cf. for example, Das Unbehagen in der Kultur, chap. VIII (Studienausgabe, IX, p.264).

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behavior, are constituted by the intolerable or unacceptable experiences of desire whose

effects we experience and express after the fact. The super-ego thus appears as the final

“stage” in the development of personality, whose modality is responsible for the

“character” of each individual, and which imposes the law of repetition on our lives.

However, one knows that the linearity of this scenario—which is also corrected by the

recognition (practically partially constitutive of psychoanalysis) that a standard

development, uniformly reproduced by everyone, does not exist, but only singular

variants, or if one prefers, only the subject’s “interpretations” of the constraints of his

personal history— constitutes from the very beginning, the problem on which theoretical

differences and revisions focused. Many of these difficulties are revealed in Freud’s texts

by the changes and shifts in focus made in the course of writing, either within the context

of a single work, or in the series of developments that the latter produced. Among these

shifts, I would like to address two that appear to directly affect the manner in which we

understand the idea of a correlation between the “feeling of guilt” and “the need for

punishment”, which originates from constraint and in turn engenders a constraint. This is

not in order to invalidate the model of “the after the fact”, which makes the individual the

subject of the unconscious or de- synchronizes him from his own history, but rather, to

demonstrate that is always already constituted by relational and institutional dimensions

whose conflictual status overdetermines, at once, the divisions constitutive of personality

and provides them with the efficacy of a structure.

The first shift I have in mind is one that leads Freud in The Ego and the Id, and

even more clearly in subsequent works (Civilization and its Discontents, and New

Introductory Lectures on Psychoanalysis), to substitute the reference to the “father”, in

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the Oedipus Complex, whose “threat of castration” the child fears in view of the sexual

desire he experiences for the mother, and with whom he will attempt to identify in order

to displace the conflict, with a collective reference to “relatives” [« parents »].32 The

implications of this shift are, obviously, complex, since the second formulation includes

the mother along side the father, or places her in competition with him, and implies an

authoritarian familial structure that has its own social history.33 However, it is striking

that at the same time, Freud insistently includes “the parents” in a larger category that he

calls “the authorities” (Autoritäten) and which also includes “educators” (Erzieher),

“leaders” (Lehrer), “models” (Vorbilder), and heros (Helden).34 At times (from the

genetic perspective), the power of these authorities and their specific contribution, proper

to the super-ego’s mastery or its fortification, are linked to the fact that they successively

occupy a “position” initially produced by the resolution of the Oedipus complex, or that

they fulfill the “paternal function”. At times (from the institutional perspective), it is,

inversely, the father and more generally, parental authority that presents itself as the first

bearer of the social function of authority and constraint, suppressing the drives at the

32 In The New Introductory Lectures on Psychoanalysis, Freud uses the expression Elterninstanz or “parental authority” (Studienausgabe, Bd. I, s. 501).33 In his commentary (Problématiques (I): l’angoisse, PUF 1980, p.355sq.,) Laplanche stresses in particular, the manner in which the alternative between “the father” vs. “the parents” was influenced by Melanie Klein’s intervention, whose observations, concerning the “severity” of the super-ego, Freud must have taken into consideration—not without a certain reluctance. Initially, Freud sustained that this severity, for each individual (and consequently, in the end, his choice of either this or that neurotic, melancholic, or perverse “position” etc.) directly depends on the severity or the aggressivity that the parents (namely, the father) reveal in the “education” of the child’s instincts. However, Melanie Klein demonstrates that the violence of the relationship of the ego to the super-ego has nothing to do with an empirical history, but constitutes an effect independent of real behaviors. Independently of her own explication (which emphasizes the projection of a destructivity originating from the child itself, before the Oedipus complex, onto the Mother), one notices that this corrective culminates in the reversibility between the “genetic” point of view, which makes the super-ego the “heir of the Oedipus complex” and even of previous object relations, and the “structural” point of view, which makes violence and its reversal into guilt an effect of the infantile ego’s dependence with regard to the “omnipotent” authority figures to whom he is bound by love and by fear.34 Das ökonomsiche Problem des Masochismus, cit., s. 351 (it is the most complete list).

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advantage of “civilization”, and employing against these drives, their own instinctual

energy (literarily, guilt). This anteriority explains why the relationship between parent

and child (and more specifically between father and son) constitutes the “primary”

identification to which are attached unconscious representations of authority and which

crystallizes the affects of these unconscious representations. The reversibility of

interpretation is also highlighted in the politico-cultural essays in which Freud closely

links his reflection on the dualism of the life and death drives to the analysis of the

function of the law and institutions, as for example in Warum Krieg (“Why War?”,

written in 1932, in response to Einstein’s interpellation). The parent-child relation is thus,

explicitly inscribed in an ensemble of relations of domination that the law, whose

function it is do so, perpetuates under the guise of equality: men and women, parents and

children, conquerors and conquered, masters and slaves….35. In summary, the paternal

function is conceived according to a twofold register, or is twice inscribed: in a personal

history with a genealogical structure, and in a system of social relations, which are

simultaneously, relations of power. Must not one assume that the “compulsion to repeat”

that Freud attributes to traumatic violence and that the super-ego exercises, is precisely a

result of the addition, or the mutual reinforcement of two forms of dependence?

An additional lesson, it appears to me, may be drawn from this other shift found

in Freud’s texts concerning the super-ego as the “model” for an authority that is, both,

35 This is an idea that is not so much Marxist as it is Rousseauian, as in the Discours sur l’origine et les fondements de l’inegalite (Studienausgabe, Bd. IX, 277). The fact that these particularly clear formulations appear in one of Freud’s texts on war inaugurated by the essay of 1915, Zeitgemässes über krieg und Tod (Studienausgabe, Bd. IX, s. 33 sq.), is not incidental. They are completely inscribed in the context of “disillusion” or “the destruction of illusions” (Enttäuschung, Zerstörung einer Illusion) that the war of 1914-1918 brought with regard to the value of progress and decline of violence in civilization, and which leads to the original and therefore, impassable hypothesis of the “death drive”. See P. Macherey: « Freud: La modernité entre Eros et Thanatos », cit.; Sam Weber “War Time”, in Violence, Identity, and Self-Determination, edited by Hent de Vries and Samuel Weber, Stanford University Press 1997; René Kaë: “Travail de la mort et théorisation”, in Guillaumin et al., L’invention de la pulsion de mort, Dunod, Paris 2000, pp. 89-111.

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exercised [exercée] and endured [subie], particularly in The New Introductory Lectures

on Psychoanalysis of 1933. This model is never direct. It must be inherited and

transmitted, precisely in the form of guilt, which functions, henceforth, as an agent for the

permanent “reproduction” of the repressive or punitive structure. From the need to be

punished, one passes to the need to punish and so forth, indefinitely. It is the idea

according to which, “As a rule parents and authorities analogous to them follow the

precepts of their own super-egos in educating children (…) Thus a child’s super-ego is in

fact constructed on the model (Vorbild) not of its parents but of its parent’s super-ego;

(…) and it becomes the vehicle of tradition and of all the time-resisting judgements of

value (Wertungen) which have propagated themselves in this manner form generation to

generation”.36 Several critics underscore the significance of this correction, applied by

Freud to the model of the Oedipal incorporation of the “castrating” father: Lagache and

later, Lacan; Laplanche, and Pontalis in the article “superego” in Vocabulaire de

psychanalyse; Jean-Luc Donnet…37 The significance of this correction appears all the

more clearly, it seems to me, when one conceives of it as a doubling of the genealogical

model: the “father of the father” is superposed onto the “father”, as the carrier of the

injunction and as the model of authority after which each “generation” decides in what

manner it will educate the next, and as the ideal judge before which one must account for

the successes and perhaps, above all, the failures of education. At first glance, this

correction reverses the preceding one. Whether one interprets this genealogical doubling

in the literal sense, according to a strict paternal lineage, or in a larger sense, according to

36 “New Introductory Lectures on Psychoanalysis” XXXI, in New Introductory Lectures on Psycho-analysis,Vol. XXII, Trans. James Strachey. London: Hogarth Press, 1964 p.67.37 D. Lagache, « Rapport », in La psychanalyse, Volume 6, PUF 1961, « Perspectives Structurales », p.39 ; Vocabulaire de psychanalyse de Laplanche et Pontalis (PUF, Paris, 1967), p. 473 ; J.L. Donnet, Surmoi I, cit.. p.36 sq.

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the succession of generations, it signifies that the super-ego is the guilt that is passed or

“transferred” from those who have been subjected to authority to those that exercise it

and, therefore, that it is what subjects, whether they are aware of it or not (but

fundamentally they are not), “turn” against their sons (or their children), having inherited

this guilt from their fathers (or parents). Consequently, it is clear that this transmission is

burdened with anxiety and is susceptible to excesses of self-criticism, because not only is

it the sign, for each subject, of a civilizing duty he will never fulfil, but also because it

confronts him with the possibility of evil (and destruction) that he himself is capable of

producing—or the tyrant that he harbours within—while rendering himself the instrument

for good.

Taken together, the corrections inscribed in Freud’s text, therefore, already sketch

a “relational” configuration more complex than the simple interiorization of the paternal

authority, as unyielding judge to whom the ego is, unconsciously, accountable for all his

actions. The psychic tribunal reveals itself to be constituted by, both, a personal agency

inscribed in a genealogical succession, and an impersonal authority constituted of a

network of institutions or apparatuses of domination and of coercion (the “family” being,

“par excellence”, the point of intersection between the two, where they exchange places

and injunctions, to the extent that one is tempted to say: the super-ego is the family!, but

also: the family, is the super-ego!). The fact that Freud continues to designate the guilt-

complex and the punishment complex, thus formed, as the locus of excess cruelty (or of

“severity”), may also suggest that one should consider that this disproportionate violence

is fuelled precisely by overdetermination: genealogical coercion is in excess of

institutional coercion, which it charges with instinctual energy, but the logic of the

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apparatuses of power is also that which renders the father or the “parent” a sovereign

despot, or the absolute master in the home.38 From this perspective, the theory of the

archaic origin, which derives from Urvater der Urhorde, also works allegorically to fuse

the two models of authority, or two relations of power, that Freud combines in his

descriptions of the super-ego and that allow him to make it, both, the pivotal point in the

history of individual personality, and the unifying theme for the interpretation of the

ambivalence of the phenomena of civilization, or for the element of archaic violence in

the movement toward “progress”.39

From this point of view, the feature Laplanche places as the center of his analysis

of Freud’s texts on the genesis of the superego and its topographical inscription, reveals

its full significance: the superego is a “contradictory” agency.40 I will venture a little

38 The developments in Civilization and Its Discontents clearly reveal this overdetermination: “Thus we know of two origins of the sense of guilt: one arising form fear of an authority, and the other, later on, arising from fear of the super-ego”. The Standard Edition of The Complete Works of Sigmund Freud, Vol. XXI, Trans. James Strachey. London: Hogarth, 1961, pp.88-89.39 Cf. George Canguilhem’s classic article « La décadence de l’idée du progrès », Revue de Métaphysique et de Morale, n.4 1987.40 Once again, I must cite at length as each word is valuable: We have there what could, in fact, correspond to the double aspect of the ideal agency (…) without specifically defining one of theses facets as ideal and the other as super-ego. However, despite everything, this duplicity is very different from the distinctions suggested by Lagache, and probably more sensitive to a certain contradiction that exists in reality (…) In Freud we don’t have a complementary system (on the one hand, the imperative, and on the other, the ideal, which must be realized in order that it conform to the imperative) but two disjointed series and both equally imperative: “you must be like your father”—and the series of interdictions, “you must not be like your father”. Obviously, this series of injunctions is more similar to idealization, since it offers a model, while the negative series is more similar to the super-ego. Not only is there no complementarity between the two (…), but there is also contradiction since the two imperatives, positive and negative, concern the same proposition: “be like the father”. Indeed, one can pretend to resolve this contradiction, one can take it apart in an effort to conform to logic (…). In fact, I propose that the resolution of the contradiction is only an illusion, since, most of the time, and not only in clinically proven neurosis, the two series overlap, disjunctions become conjunctions, resulting in these impossible imperatives that correctly characterize unconscious morality, the morality of the super-ego (…). This contradiction (…) clearly reveals that the super-ego is not a coherent system, well ordered. It is an ordering principle of the inner world only in exceptional and ideal cases. The law it mediates is a contradictory law, where the most contradictory propositions are juxtaposed. At times, it is a pitiless, merciless law. We saw this with obsessional neurosis where guilt is present on both sides, in order and in counter-order: “you must return this money” and “you must not return it” are characterized by the same anxiety and guilt; and in melancholia we have also confronted this sort of absolute guilt that cannot be resolved by a simple demarcation between interdiction or the allowable. This leads to us to conceive of the super-ego as an agency that in the most extreme cases appears to place legalism and even the laws that it

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further still and propose, for my part, that the super-ego is the agency of contradiction,

both in terms of ambivalence and of antinomism. Laplanche, who from start to finish,

relies on the logical figure (or rather “paralogical” figure) of the double and contradictory

injunction, deciphers in Freud’s work, the transition from a first level of complexity,

which corresponds to the simultaneous presence or activation of the ambivalent affects of

love and hate, admiration and fear created by the Oedipal situation, to a second level,

which corresponds to the law’s simultaneous prescription of obedience and transgression,

and, consequently, paradoxically engenders the production of guilt that it punishes. This

union of contraries is literally what one may refer to as “antinomism”, in the very sense

that this notion has assumed particularly in the theological tradition, in relation to the

question of the origin of the law and of sin that places the subject “under the law”, and

where it forms a thematic corresponding to the one of “theodicy” to which Kelsen

refers.41 Antinomism may be understood as the radicalisation of the idea that subjection

occurs through an error implicated in the very enunciation of the law, or the law as

prohibition—in such a way that it no longer concerns a contingency, but a necessity. It

can also be understood, in the terms of the law itself, as the expression of the fact that the

law’s sole raison d’être is the “production” or “imputation” of evil (violence, injustice,

transgression), which it prohibits or sanctions. The idea of a psychic tribunal (or of an

declares, the semblance of reason, reasoning reason, in the service of the primary process. In any case, you are guilty, the super-ego” seemingly says. (J. Laplanche, cit. pp.352-353). (Translation by Lahela Minerbi).41 Here again, the comparison is made to Nietzsche in The Genealogy of Morals, but especially to its theological source: Saint Paul’s proposition in Epistle to the Romans (7.7), which renders the revelation of the law (nomos) the condition for the recognition of sin (hamartia) in so far as it is opposed to desire (epithumia). However, Saint Paul refutes the “impossible” identification of law to sin (ho nomos hamartia; mè genoito). Whereas, this subversive limit-point has been completely assumed by the mystical tradition of the Kabbala (of which Freud, at least, had an indirect knowledge), which led the “false messiah”, Sabbataï Zevi, in the 17th century, to proclaim his transgression of the law and right to blasphemy as proof of a redemptive mission (cf. Gershom Scholem, Sabbataï Tsevi, le messie mystique, 1973, tr. fr. Verdier 1990) (there must be an English translation, or even the original is in English?).

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ultra-judicial psychic apparatus whose model would be both genealogical and

institutional, blurring so to speak the “private” and “public” figures of power), which has

antinomism as its rule of operation, is, as a consequence, indistinguishable from that of

the unconscious itself whose constitution, Freud tell us, “ignores the contradiction” just

as it governs the perception of reality.42 This results, in particular, in the superego’s

equally “severe” treatment of criminal intentions and actions, its “punishment” of, both,

obedience to the law or the respect of prohibition and its transgression, which from the

super-ego’s point of view “amounts to the same”. Consequently, the super-ego

simultaneously proclaims prohibition as an injunction, an “open invitation to crime”.

In his essay, “Dostoevsky and Parricide”, published in 1928, as a preface to a

collection of drafts and correspondences, which formed the last volume of Dostoevsky’s

Complete Works in German, Freud offers the clearest expression of the idea of a

correspondence between the super-ego and the antinomism of the unconscious. In fact,

this essay combines the interpretation of Dostoevsky’s “neurotic” symptoms with those

of the “criminological” fictions of his novels, in particular, The Brothers Karamazov

(which Freud placed in the same category as Sophocles’s Oedipus Rex and Shakespeare’s

Hamlet in so far as literary elaborations of the Oedipus Complex). The latter would have

allowed the writer to express his feelings of guilt, inferred by the murderous jealousy he

experienced toward his father, and to displace his need for punishment, reproducing by

other means the paradoxical effect of a sense of relief or of therapy, which the agony of

deportation, inflicted by the tribunals of the Tsar (a figure of an idealized paternal

42 See in particular, the essay of 1915, “Das Unbewusste“, § 5 (Studienausgabe, Bd. III, s. 145 sv. ); and New Lectures on Psychoanalysis, XXXI (Studienausgabe, Bd. I, s. 511). Freud explicitly refers to the identification of opposites in the unconscious in his analysis of the case of “obsessional neurosis” (Zwangneurose), The Rat Man (Studienausgabe, Bd. VII. s. 95 sv.).

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authority), had already produced on him. However, Freud uses the plot of The Brother’s

Karamazov, where another person (a half-brother) ultimately murders the father instead

of the person who had unconsciously desired it, in order to introduce a supplementary

dimension of antinomism: “It is a matter of indifference who actually committed the

crime; psychology is only concerned to know who desired it emotionally and who

welcomed it when it was done. And for that reason all of the brothers, except the

contrasted figure of Alyosha, are equally guilty (…) Dostoevsky’s sympathy for the

criminal is, in fact, boundless (…) and reminds us of the ‘holy awe’ with which epileptics

and lunatics were regarded in the past. A criminal is to him almost a Redeemer, who has

taken on to himself the guilt which must else have been borne by others. There is no

longer any need for one to murder, since he has already murdered; and one must be

grateful to him, for, except for him, one would have been obliged oneself to murder”.43 A

supplementary element of identification is here incorporated into the theory of the super-

ego, in the sense of Gleiiechheit (egalitarian similarities, or mimetic equality). One may

develop this point by suggesting–from the point of view of the psychic tribunal—that the

crime or the delict (real or virtual) not only incorporates its authors to the juridical order,

but also that the crimes of a few incorporate every one of us to the juridical order. Given

these conditions, it is not surprising that we greatly depend on the existence of

“criminals” and “delinquents” to whom we vow a combination of hate and pity, or that

the State and its representatives greatly depend on them for our sake. But also: by taking

the responsibility to identify them and punish them, the State short-circuits the role of the

“personal” super-ego for each individual, or provides us with various ways we can evade

43 “Dostoevsky and Parricide”, in The Standard Edition of The Complete Works of Sigmund Freud. Vol. XXI. Trans. James Strachey. London: Hogarth Press, 1961. pp.189-190.

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the super-ego’s severity that we constitute for ourselves, reason for which we all are

grateful to it, even if this gratitude is accompanied by anxiety (and if the State was

mistaken? If it was to change its mind and in fact discover “us” to be criminals by

delegation…).

The political and the unpolitical

Having thus analysed the main arguments of our hypothesis, (which I believe I have been

able to group together under the Foucauldian expression, “the repressive hypothesis”, in a

somewhat modified sense), we must come to terms with conclusions that are not

obviousself-explanatory, since they presumedly attribute to Freud’s meta-psychological

elaboration a significance and practical consequences perhaps very far removed from

what he may have consciously thought or proposed as psychoanalysis’ role in the

political domain. In this respect, the situation does not appear to me fundamentally

different from the one that already characterizes all the social effects of psychoanalysis,

especially in the field of mental health governed yesterday as today by the belief in a

natural difference, “objectively” locatable, between states or behaviour described as

“normal” and those described as “pathological”.44 It appears to me that everything

depends on the subversive effect of subversion [effet de subversion] produced by the

comparison of the Kelsenian equation--- Rechtsordnung ist Zwangordnung (the order of

the law is identical to the order of restriction)—to the Freudian one: Schuldegfühl ist

Strafbedurfnis (the sentiment of guilt is identical to the need for punishment and,

therefore, to a call for punishment). In order to explain its significance, I will take liberty

44 It is not easy, despite his frequent clarifications, to attribute to Freud a simple position with regard to “normal” or “pathological” differentiation. Undoubtedly, the same goes, mutatis mutandis, for the relation between juridico-political “order” and psychic “disorder”.

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and borrow the approach that Kelsen himself uses to develop its consequences, and to

compare the latter, a last time, to what I term the antinomism of the Freudian super-ego.

In La reine Rechtslehre, published in 1934, Kelsen devotes a paragraph to the

question of knowing which motives drive individuals to juridical obedience (in particular,

obedience to the law) (Motive des Rechtsgehorsam).45 He must admit that it is difficult to

prove that it is really, according to the facts, the threat of punishment (the representation

of an act of coercion -Zwangsakt— a consequence of an illegitimate act—Unrecht) that

drives the subject to obedience, as a strict juridical positivism would require, according to

which the law is only a “technique”, a system of means at the service of any social order.

In many cases, fear of punishment or the execution of a sentence (Furcht vor der Stafe

oder Exekution) is not sufficient, and “completely different motives” (ganz andere

Motive) must come into play: religious, moral, social, and more generally, “ideological”

ones that combine the representation of dreadful “evil” with that of the “good”, with a

desirable social state. At the same time, it seems that the juridical order appears

“complete”, containing the conditions of its proper effectiveness (Wirksamkeit), only

when it includes the definition of certain values. Now, it is precisely this reference to

substantial values that a “pure” theory of the law, simultaneously independent of political

ideologies and of religious or metaphysical beliefs (from which the doctrine of “natural

law” is derived), must “critique” in order to arrive to a positive definition of the juridical

norm.

It is by perfecting his theory of the articulation between a “primary norm” and a

“secondary norm” that Kelsen thought he was able to arrive to the law’s autonomous

45 H. Kelsen, Reine rechtslehre, 1934, cit., p.31sq. The passage is greatly modified in the French translation, the version that I refer to here.

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consistency.46 In order to be able to speak of an effective norm, fulfilling its function or

organizing individual behaviour while establishing personal responsibility, a unity of

form, namely, the logical coherence of a system of juridical obligations, and of content or

of a material restriction that requires respect for these juridical obligations, are required.

This unity cannot take place after the fact. It must already be contained within the

concept of the law itself. In other terms, it must be established a priori. This constitutes a

sort of practical equivalent or transposition of the “transcendental schematism” used by

Kant in order to think the unity of mathematical form (“conceptual”) and experimental

content (“phenomenal”) in the constitution of natural phenomena. In this way, the

formula that The Critique of Pure Reason implements in order to demonstrate the

necessity of two components and their synthesis—norms, which are not obligations

inscribed in a constitutional order (dependent on a “fundamental norm”), are “blind”,

arbitrary, or illegitimate, however, those not accompanied with coercion or imperatively

put into effect are “empty”, or lack effectiveness from the juridical point of view—may

be applied to the law. Neither of the two terms can be analytically “deduced” from the

other. The operation that brings them together (Kelsen speaks of identity, exactly as he

does about the relation between the “juridical order” and the “order of coercion”, or the

“law” and the “State” of which we have another formulation here) has a “synthetic”

quality. However, contrarily to what one might think, the norm that Kelsen calls

“primary” is not obligation. It is precisely coercion, particularly in the form of the

definition (by a “penal code”) of a type of behaviour that is the object of a prohibition

46 Here, I summarize the developments of Pure Theory of Law (chap. III, pp. 57-68 of the French translation).

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and results in a specific sanction against or punishment for its actor (Strafe, Bestrafung).47

Obligation appears as its corollary: it is the “second norm” that prescribes behaviour,

thereby enabling the evasion of punishment.

The structure of the law therefore, includes, at its core, a moment of a negation.

However, Kelsen is eager to specify that it does not concern a contradiction: a

contradiction may exist between propositions describing facts that are not produced

simultaneously, or possibly, between norms with different logics. However, a

“contradiction” between facts and norms, which originates from two heterogenous

universes is impossible, not even in the case of an “illegitimate act” or delict—as was

demonstrated above in the discussion on crime’s adherence to the juridical order as a

“negation of law” (Unrecht). The latter, therefore, appears as a synthesis of codification

and of judicial sanction from which contradiction is excluded, but whose effectiveness

permanently depends on negation. However, this is possible on one condition, which

may be rightly called political: the constitutional norm or Grundnorm is accompanied by

the State’s “monopoly of the power (or violence: Gewalt)” to coerce. In such conditions,

right becomes State and State becomes right: there is no individual “liberty” that is not

the inverse of a prohibition. Therefore, there is no conduct that is non-juridical.

However, all violence or coercion that does not correspond to the State’s protection of a

norm of law is illegitimate, and must itself fall under coercion. It is, surprisingly, the

political unity of the State that preserves the logical contradiction.

An order defined in such a manner possesses an absolute nature, since it is

impossible to evade or to legitimately resist it. I believe, more precisely, that according

47 Basiccially, Kelsen’s presentation concerns the behaviors that obstruct the freedom of others: here, one recognizes Kant’s definition of freedom. Therefore, all behavior falls under a prohibition, either directly or indirectly, in so far as it represents a violation of the other’s right to do what is not prohibited to them.

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to Kelsen, it forms an absolute fiction of absolutism in the mode of an “as if”, because it

depends entirely on an institutional supposition (for example, constitutional) that the

whose very nature is juridical, obligatory, and compulsory, and on the “fundamental

norm” on which it is grounded is itself juridical, obligatory, and compulsorythat founds

it. It is at this very point that the Freudian reversal is potentially introduced, whose

potentially subversive nature I have described. According to Freud, the analytical

experience reveals that the relation between a subject or an unconscious “ego” and a

universe of coercion and of obligation, without exterior or escape, is not only a world of

negation and prohibitions, but a web of insoluble contradictions. It is as if, on the

psychic stage (“the other scene” of the unconscious), the two Kelsenian norms collapsed

upon one another thereby linking the threat of punishment and permission or obligation

and engendering the contradiction that the dualism of “facts” and of “norms” was able to

ignore. In order that the juridical order may be deployed and respected, it is therefore

unnecessary that the unconscious possess within its interior a “psychological” response to

the juridical order, a “State in the mind” that permanently intensifies the prescriptions of

the law and the orders of State belonging to an additional moral force (or rather,

“hypermoral”), thus producing a phenomenon of “voluntary servitude”. Rather more

significantly, it is necessary (if the actions regulated by the law are necessarily “human”

actions) that the other scene opposite of disorder or anarchy, which constitutes it [the

juridical order], either be repressed and therefore preserved, or redirected to other

symptoms and other individual behaviours (at the risk, in “pathological” cases, of losing

the ability to act). It is necessary that the radical “sentiment of guilt” be repressed and

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perpetuated, and along with it the paradoxical equivalence between intentions and acts,

obedient behaviour, and acts of transgression.

The emphasis placed on the relation between the idea of a juridical order and its

unconscious opposite, which rather resembles an instinctual disorder, organized around

the representation of coercion’s absolute legitimacy (which Kelsen had sensed when

attributing to individuals the obsessive fear of the sovereign’s injustice), certainly does

not signify that there is no juridical order. It also must not lead us to attribute anarchist

convictions to Freud (even if many anarchist claims have been fuelled by the Freudian

doctrine of the super-ego—however, not any more, we must note, than “orthopedic” and

“normalizing” programs). Rather, I think what this signifies is that the juridical order

conceived from the psychoanalytical perspective is strictly speaking “groundless”, and

that one can no longer really pretend “as if” there was one, unless one believes in fiction,

unless one “realizes” this fiction, which is in reality a form of myth or of illusion. If the

juridical order is “founded” on something, it is rather on the continuous possibility of its

decomposition and therefore, on the very conflict that is sustained by its own repression.

It is possible to read this not as a Freudian political thesis, which is opposed to Kelsen’s

given the manner in he challenges other theoreticians of the law and the State, but rather

as an unpolitical thesis, which shatters the fictive autonomy and self-sufficiency of the

political.48 Unless, the only “concepts of the political” deserving of such a name are

precisely those that in one way or another, reveal their dialectical relation to “another

scene” that is contradictory and that exceeds or delimits them. To tell the truth, an

48 The usage of this term differs from Roberto Esposito’s (cf. Catégories de l’impolitique, trad. Fr. Editions du Seuil, Paris 2006), but is not, it seems to me, incompatible with it.

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equation such as Rechtsordnung ist Zwangordnung, so long as one arrives to all its

logical conclusions, in reality, leaves no other possibility.

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