Professional Documents
Culture Documents
Etienne Balibar
Univérsité de Paris X Nanterre and The University of California, Irvine
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
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—
explained by the regression to the archaic image of the “primitive father”—Urvater der
(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
“individual psychology” and “collective psychology”, became the object of heated debate
amongst Freud’s auditors and students.3 But the most interesting response came from a
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)
3
Freud was not the first, in terms of psychoanalysis, to be interested in the question of “political
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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
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
of such a theory (like all psychologisms and sociologisms), attributing to Freud the
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
However, in conclusion, after having once again referred to the Freudian unconscious in
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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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
only but have taken it very seriously, even though it appeared to rest on a
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
Massenpsychologie und Ich-Analyse, one could say that Freud only addresses certain
ideological) not only the domain of the anarchical disorganization of the masses, but
goes so far as to introduce the processes of identification in the topography of the psychic
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“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
unify them in a politics and an economy of the unconscious. What appears to substitute
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
which we relate to through the mode of repetition), and because it equates—even in the
Verbindungen, Verbände), while at the same time arguing against him that political and
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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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
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
formulated there.
“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
mythical supplement that appears to originate from the most archaic constitutions of
understood, the sovereignty of the people) depend. However, if it was certainly not
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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!
Thus, I am convinced that in the course of several months, Freud sought a complete
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
“extremes”—the “authoritative State”, which the pre-fascist movements of the 20s strive
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
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
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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
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,
asks in which “structure” such a renunciation or privation is rooted, in such a way that 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.87
8
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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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
that forms in the unconscious the counterpart to the monopoly of legitimate violence,
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 contingent on the other. The terms, one will see, are the same:
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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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
“excess” and by “default”. It is this complex, which the “encounter” between the
would like to attempt to describe at least in regards to its general principle, implementing
personality ” and “juridical personality” and which also implies, as may be expected, an
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
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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is not a simple one.11 It stems undoubtedly, among other things, from the Kelson’s
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
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
his inability to resist them and his own “smallness”.13 In this sense, the Super-ego is that
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).
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
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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
The second key term that provides us with a guiding thread is of course Zwang,
(repetition compulsion) associated in Beyond the Pleasure Principle with the continued
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
recuperation of its lapses. On the other hand, there is the Freudian elaboration of the
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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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
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
respect for norms engender “excess” guilt (Schuldgefül) and the “need for punishment”
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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of “id” at the heart of the “ego” that it represents), and that end up establishing an absurd
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
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
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
implies a practical impossibility, or a least a double bind (“be like your father!”, “do not
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(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
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
“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
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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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
(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
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
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
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
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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,
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
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
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
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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,
limit of the juridical process. It is characterized (and here we are already at the level of
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
consequently, at a point that precedes the distinction between law and morality.22 The
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
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.
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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
previously associates with the examples of the army and the church, and to inquire what
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
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
patriotism, which in the modern period are generally contemporaneous with it. One of
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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19
privileged here, because it emphasizes the melancholic aspect of the ideal ego, which
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
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
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
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-
19
20
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
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
It is possible to see here Freud’s return, in his own languageaccording to his own
combines the individuals’ attraction and repulsion, association and disassociation in the
Civilization and Its Discontents and its critical relation to the ideals of modernity.26
20
21
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
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
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
“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
21
22
previously promulgated: nulla poena sine lege, an where the expression of the “rule of
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
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
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
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
the rational process through which the law imposes itself, asserts itself (the manner in
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.
22
23
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
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
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
I would like to propose that Freud, in his own theorization of the “judicial moment”
23
24
melancholic delirium, and “moral masochism” only ever provide him with an
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
organizes it in Das Ich und Das Es, in terms of the super-ego’s “genesis” and the state of
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
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
effects we experience and express after the fact. The super-ego thus appears as the final
31
Cf. for example, Das Unbehagen in der Kultur, chap. VIII (Studienausgabe, IX, p.264).
24
25
“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
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
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
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
25
26
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
advantage of “civilization”, and employing against these drives, their own instinctual
energy (literarily, guilt). This anteriority explains why the relationship between parent
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).
26
27
and child (and more specifically between father and son) constitutes the “primary”
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?”,
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
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
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,
exercised [exercée] and endured [subie], particularly in The New Introductory Lectures
27
28
transmitted, precisely in the form of guilt, which functions, henceforth, as an agent for the
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
Freud to the model of the Oedipal incorporation of the “castrating” father: Lagache and
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
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
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.
28
29
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
“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
institutional coercion, which it charges with instinctual energy, but the logic of the
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
38
The developments in Civilization and Its Discontents clearly reveal this overdetermination: “Thus we
29
30
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
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
further still and propose, for my part, that the super-ego is the agency of contradiction,
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
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).
30
31
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,
love and hate, admiration and fear created by the Oedipal situation, to a second level,
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
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
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,
institutional, blurring so to speak the “private” and “public” figures of power), which has
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?).
31
32
the unconscious itself whose constitution, Freud tell us, “ignores the contradiction” just
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
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
(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
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
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.).
32
33
of the person who had unconsciously desired it, in order to introduce a supplementary
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
“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
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
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.
33
34
mistaken? If it was to change its mind and in fact discover “us” to be criminals by
delegation…).
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
elaboration a significance and practical consequences perhaps very far removed from
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
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
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.
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”.
34
35
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
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
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.
“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.
46
Here, I summarize the developments of Pure Theory of Law (chap. III, pp. 57-68 of the French
translation).
35
36
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
Kant in order to think the unity of mathematical form (“conceptual”) and experimental
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
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
definition (by a “penal code”) of a type of behaviour that is the object of a prohibition
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,
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.
36
37
The structure of the law therefore, includes, at its core, a moment of a negation.
contradiction may exist between propositions describing facts that are not produced
“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
and of judicial sanction from which contradiction is excluded, but whose effectiveness
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
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
impossible to evade or to legitimately resist it. I believe, more precisely, that according
to Kelsen, it forms an absolute fiction of absolutism in the mode of an “as if”, because it
whose very nature is juridical, obligatory, and compulsory, and on the “fundamental
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it. It is at this very point that the Freudian reversal is potentially introduced, whose
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
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,
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
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
perpetuated, and along with it the paradoxical equivalence between intentions and acts,
The emphasis placed on the relation between the idea of a juridical order and its
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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
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
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
equation such as Rechtsordnung ist Zwangordnung, so long as one arrives to all its
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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