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Etienne Balibar Univrsit 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 essayJenseits des Lustprinzipsin which he

introduces the concept of the deathdrives (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 theconcept 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, inTotem 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

amongst Freuds auditors and students.3 But the most interesting response came from a1 This essay is a part of a work in progress on the Freudian concept of the political. A more developedversion, equally provisory, appears in French, in 2007, in the reviewIncidence. I thank Gabrielle Schwabfor including in the volumeThe Cultural Unconscious, under her direction, an English adaptation of thesection that specifically addresses the invention of the Super-ego and its relation to the juridicalphilosophy of Hans Kelsen.2 Particularly the works by Gustave Le Bon,La psychologie des foules(1985, translated in German, in1911, 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 Freuds 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 fr 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 Theoriedes 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 socit ] 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 normconstituted by law andcoercion(Rechtsordnung ist

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

psychology during the tense period of the war, revolution, changes of regime, and the first confrontationsbetween socialist and communist mass movements on the one hand and with Fascist or proto-Fascistmovements 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: afatherless society), which appeared in 1919. Freuds essay,Massenpsychologie und Ich-Analyse,constitutes, in several respects, a rectification of Federns brochure.4 See Kelsens biography by Hans Mtall,Hans Kelsen, Leben und Werk , Vienna, 1969.5 Also translated in English in Vol. V, part I, January 1924, of theInternational Journal of Psychoanalysis,under the title, The conception of the State and Social Psychology, with Special Reference to FreudsGroup Theory.

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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 Freuds response to

Kelsens critique, which he had himself solicited, and the offer for mutual assistance thataccompanied 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 addressescertain

apparatuses of the state. Reversing Le Bons theory, he makes identification (personal,

ideological) not only the domain of the anarchicaldisorganizationof the masses, but

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

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

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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

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) isregression,

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

ambivalence with regard to anarche originating from the first generation (theUrvater der Urhorde: the originary Father of the Primitive Horde). However, this archaic model

that allows Freud inTotem and Tabooto 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 nodeliberate actionis possible, whether it be collective

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

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

Verbindungen, Verbnde), 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 foundationof the political and its repetition by Freud in the form of an anthropological myth, Giacomo Marramaoinsists that, for Freud, the two moments that correspond to a state of nature and to a civil state are notspaced apart from one another, but assembled in an dissociable manner (Dopo il Leviatano. Individuo ecommunita, Bollati Boringhieri, Torino 2000, p. 315 sq.)It is true that one may uphold the same argumentwith 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 RobertoEsposito,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

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 inMassenpsychologie und Ichanalyseand 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 paradoxicalidentification 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 pureobedience. Or then, he would have

to acknowledge that subjects of the political institution as suchare 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 thelapses or degenerationof a pure juridical order, when it came to

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

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

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

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

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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

for the irreducibility of the juridical order to agroup penomenonmass mechanism

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

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

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

this respect, he directly inherits Kants concept of the law, but he separates it from itsrelation to a transcendental morality.8 For Kelsen, positive law constitutes its own

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

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

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

still, what it means to obeycoercion, 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

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

7 In a note added in 1923, at the end of chapter III of Massenpsychologie, Freud defends himself against

Kelsens accusations, which claim that he has a tendency, in an organicist fashion, to hypostatize organizedmasses, by attributing to them the equivalent of a collective soul, while at the same time praisingKelsens work: I differ from what is in other respects an understanding and shrewd criticism by HansKelsen (einer sonst verstandnisvollen und scharfsinningen Kritik). S, Freud. Group Psychology and TheAnalysis of The Ego (1921), inThe Standard Edition of The Complete Works of Sigmund Freud , Vol.XVIII. Trans. James Strachey. London: Hogarth Press, 1955. p.878 In the introduction toDoctrine du droit (the first part of laMtaphysique des murs), the externalcoercioninherent to the law is defined as the obstacle to obstructions of freedom. It is presented as thecorrelative of the reciprocity of juridical obligations, by virtue of the principle of contradiction.(Emmanuel Kant,Oeuvres philosophiques, Bibliothque de la Pliade, 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 notlegitimizethe 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 (asmany 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 fundamentallyantinomical 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 contingent on the other. The terms, one will see, are the same:

law, authority, obedience, transgression, crime, punishment, guiltbut this series

bifurcates with the notion of coercion-compulsion (Zwang ). Consequently, if Freuds

9 A third possibility is irony or derision. Kafka explores this option contemporaneously inThe Trial (andin a separate narrative, published separately under the title, Before the Law). But this example suffices todemonstrate that anxiety nevertheless, does not disappear. Cf. the recent commentary by Michael Lowry:Franz Kafka, rveur insoumis, Stock 2004, which insists on the links between Kafka and the anarchistgroups 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. Deleuzes argument with regards toSacher Masoch follows in the same direction (which implies that Masoch is not a masochist in theFreudian 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 itsascendancy

(Bemchtigung ), 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 throughexcess 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 itsgeneral principle, implementing

terminologyas our guiding thread.

The name given by Freud to the principle of obedience is super-ego,ber-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 Persnlichkeit 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

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

ourselvesits subjects in the characteristic form of adivision). The choice of theber-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 desirefor the authority of a leader (in German,Fhrer ). The German translation taken up by Freud alsoreinforces 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 Kelsons

insistence on the formation (Gebilde) of a ber-Individualitt and insistence on theber -

individuell and ber-persnalichcharacteristic 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. (bertragung, berdeterminierung, berschtzung,

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

preposition,ber , and the pronoun,Ich, simultaneously produces twoeffects of meaning

effets de sense : ber-Ich is that which maintains itself above theIch in a hierarchyof authority and is what Freud appears to privilege each time he associates the function of

the super-ego to the idea of anagencythat observes, supervises, and critiques, which

originates from the tradition of moral empiricism (Humes and Smithsimpartial

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 that11 Many critics for example Peter Gay, in his biographyFreud. A Life for our Timep.414 are surprisedthat the essay of 1923 is entitledDas Ich und Das Esand notDas Ich, das Es, und das ber-Ich, since thelatter 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 itundergoes, but remains silent on the origin of Das ber-Ich, as if this term naturally developed from thefunction attributed to it.12 The idea of an observing and critiquing function, therefore of a censuringagency, has been associatedby Freud to the conceptualization of the Ego ideal (Ichideal ) from its inception: cf.Zur Einfhrung desNarzissmus, p.63 sq. For this reason, it is important to highlight what, in the concept of the Super-ego, isnot 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 hisindiscriminant rapprochements of the superhuman figure inUrvateur der Urhordesuch as it projected inthe imaginary power of tribal leaders and leaders, to the Nietzchean superman (bermensch, whereber

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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 inDas Ich un das Es(Chap. 5), one finds the

redundant expression:das berstarke ber-Ich(the all powerful Super-ego).14

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

translated as coercion or compulsionand currently rendered by translators by the entire

series of Freudian concepts associated with it, fromZwangsneurose(obsessional

neurosis or coercion whose paradigm is the Rat Man), toWeiderholungszwang

(repetition compulsion) associated inBeyond the Pleasure Principlewith the continuedefficiency 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 iscoercion-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 anorder , precisely sets up the

equivalence between obligation andcoercion,or the perfect coextension of the two,with

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

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

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 thatcoercionallows us, as

one clearly sees inInhibition, Symptom, Anxietyand in,New Introductory Lecturesof

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,severityor harshness, the anticipation for punishment

and for an arbiter for faults that were never committed in reality [dans le rel ], 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 boththese threads, the thread of the over,ber , 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 laws

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

subjects unconscious by pairing the idea of law together with that of State coercion[ la

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

respect for norms engender excess guilt (Schuldgefl ) and the need for punishment

(Strafbedrfnis) that Freud describes as characteristic of the severity or even cruelty

15What renders a clarification of Freuds various positions on this point problematic, is also his hesitationwith regard to the usage of the termGewissen, translated in English as moral conscious [conscience

morale]. For once the lack of adequate French terms for the distinction between the two German termsBewusstseinand Gewissen, translated in French by the single term conscience, helps us to identify theproblem that the idea of aunbewusstes Gewissenraises, or of an unconscious morality discussed in thefirst chapter of The ego and the Id . It can only be a question of a hypermorality, a supermorality, or amorality beyond morality (bermoral is a term that appears already inTotem and Taboo)On thehistory of the intersections betweenGewissenand Bewusstsein(moral conscience and psychologicalconscience), see my article Conscience inVocabulaire Europen des Philosophies, under the directionof B. Cassin, Editions Seuil-Le Robert, 2004.

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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 individuals 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 resultin 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 theoriginal ideal

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

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

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

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 to16 In the essay On the Economic Problem of Masochism (Das konomische Problem des Masochismus,1924), written as a continuationof Das ich und das Es), in the context of his analysis of moralmasochism, Freud unequivocally gives the corresponding termsSchuldgefhl and Strafbedrfnisthe formof an equation (Studienausgabe, Bd. III, s; 350 sv.). See Suzanne Gearharts elucidating commentary onRacinian Tragedy (The interrupted Dialectic: Philosophy, Dialectic, and Their Tragic Other , The JohnHopkins University Press, 1992).

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authorities capable of relaying the paternal function of commandment and interdiction

(Geboteund 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

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

the egos 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 thedrives (Eros or the sex drive and thedeath drive which he does not himself callThanatos). He does this by hypothesizing a

disentanglement [ dsintrication ] 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 egos 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 interpretingKrankheitsbedrfnis

(the need for illnesstherefore,need of pain), which constitutes the manifest aspect of

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

17 In Freuds text, the allusions made to the phenomenons transferential dimension also suggest that onemust consider that for the patient, it not only concerns aneed for illness, but also of a desire to place thedoctor 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

into a displacement of a more fundamental need for punishment (Strafenbedrfnis)

(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 thecompulsion 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 asa mechanism). Rather, he proposes a model whose

meaning is much more than allegorical: that of apsychictribunal 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 egoideal and is the expression of a condemnation [Verurteilung ] of the ego by its critical agency [kritischeInstanz]. The feelings of inferiority so well known in neurotics are presumably not far removed from it. Intwo very familiar maladies the sense of guilt is over-strongly conscious [berstark bewusst ]; in them theego ideal displays particular severity[Strenge] and often rages [wtet ] against the ego in a cruel fashion() In certain forms of obsessional neurosis [Zwangneurose] the sense of guilt is over-noisy [berlaut ] butcannot justify itself [sich rechtfertigen] to the ego. Consequently the patients 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,

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

Ang st sattte). The interpretation of the super-egos constitution and functioning as a

paradoxical or excessivejudicial agencyaccording to which aspects of the arbitrary andof 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 Foucaults formulation19, the

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

political implications must also be outlined.

imputation of guilt [die Zumutung, schulding zu sein] () In melancholia the impression that the super-egohas obtained a hold on consciousness [Bewusstsein] is even stronger. But here the ego ventures noobjection; it admits its guilt and submits to the punishment [es bekennt sich schuldig und unterwirft sichden Strafen] () the object to which the super-egos wrath applies has been taken into the go throughidentification [der Zorn des Uber-Ichs] () One may go further and venture the hypothesis that a great partof 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 thefirst 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 textincludesa certainambiguity, a result of the fact that it appears to vacillate between an opposition of the normal and thepathological, and of the conscious and the unconscious. However, one can overlook this ambiguity byassuming that that which characterizes these maladies (obsessive-compulsive disorder, melancholia andin 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 volont de savoir Foucault himself challenges a certain legacy of Freud.

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The comparison made between consciousness and the tribunal or aninner

tribunal[ for intrieur ] 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 normativeas

pure compulsion(Zwang ) of the offence [la faute] and of punishmentas 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 inNew Introductory Lecturesof 1933, where the judicial action of theconscious,die richtliche Ttigkeit 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 (bermoral,

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,bel ), but

beyond the metaphysical distinction between autonomy and heteronomy and

consequently, at a point thatprecedes the distinction between law and morality.22 The20 This diffusion [of the two drives] would be the source of the general character of harshness and crueltyexhibited by the ideal its dictatorial Thou shalt (pp.54-55).21 Lecture 31, inStudien Ausgabe, Bd. I, p. 49922 In his later works (in particular,das Unbehagen in der Kultur ), Freud defines civilization or societyas the level of pre-moral and pre-juridical normativity governed by the super-egos development and by theextent of its domination, in accordance with a certain sociological and anthropological tradition. Thisconcerns another aspect of his research, which given the context of the present hypothetical reading, Iprefer not to address.

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tribunal it delineates is not so much analogous to real tribunals, whoseproceedings

functioningmay 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

universalauthorityof 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-egos 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 andthe 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 aVorbild and to equals

[semblables] or to brothers. They therefore, essentiallycollectivizeand 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 theinfluenceof nationalism and

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 afhrend Idee, an educating or directing idea appears to be

23 Once again, the comparison between Ferderns 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 interms of a participant democracy the fraternal figure belongs to the same schema as the paternal figureand 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 itsautonomisation. Nor does he believe in the juridical resolution of the familial complex, except, as wewill see, in the form of an antinomic reversal.

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privileged here, because it emphasizes themelancholicaspect of the ideal ego, which

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

berschtzt e) 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

SacredVictim [le Sacrifi], 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

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 thetransfer of identity, it remains destined for communitarian sharing. In this sense, for Freud, there isscarcely an individual Super-ego. Furthermore, the second topography is trans-subjective and trans-

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to it a parody and reversal of Althussers well-known formula is theinterpellation of

subjects into individualsand 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

constitutedat leastone of the conditions for the formation of asubject 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 relationbetween individuals: neither love, nor brotherhood, neither hate nor hostility, but rather the inhibition of mutual and destructive instincts or of

Bemchtigungstrieb, which in compensation, develops the interior destructivity and

aggressivity of the sentiment of guilt.25

It is possible to see here Freuds 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

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

generational. (Surmoi I: Le concept freudien et la regle fondamentale, Monographies de la RevueFranaise de Psychanalyse, PUF 1995, p.40) (Translation Lahela Minerbi). For this reason I do not insiston the fact that the super-ego is individual, but rather on the fact that it producesindividualitybyforcing the subject to feel guilt, while the ego-ideal studied inMassenpsychologie und Ich-Analyseis not

social in the sense of a preexisting organism, but rather, is shared [mis en commun] and produced bythe community. What is questioned each time is the orientation of a vector, a relation.25 The counter-identification, which the super-egoproducesstrives for , occupies in many respects the placethat Freud, in the final plan of Massenpsychologie(chap. XII PostscriptAprs-Coup), reserves for neurosis, in so far as an absence of erotic or hypnotic relations. Therefore,it also proves to correspond toa social formation, but operating in reverse.26Freud: la modernit entre Eros et Thanatos, is found on the following groups site: La philosophie ausens du large (expos du 12 octobre 2005) (Universit de Lille)(http://stl.recherche.univlille3.fr/seminaries/philosophie.macherey/macherey20052006/macherey12102005cadreprincipal.html).

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

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

masses (Massenbildung ) and the correspondingmodelof 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 itssanction, to come under its jurisdiction, and therefore, to have

been positioned therein a manner that does not allow the individual to escape or ignoreit, 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 thesanctionof the State, is that

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

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

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

law which becomes ismore or less felicitously translated asRechstaat 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 tribunals effectiveness is the criminals (or more generally, the

delinquents)desire for punishment : the context reveals that it is not a question of a

moral or psychological proposition, but rather a logical proposition sinceit intervenes inthe 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 asanctionthat 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

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

27

It is striking that in Hobbess construction, the hierarchy of judicialinstances agencieswithin the contextof sovereignty has as its unassimilated excess or residue, precisely, the asocial or anti-political masses,the ferments of the States disintegration that purport to do justice for and by themselves [de se fairejustice elle-mmes]. See:Leviathan, chap. 22, Of Systemes Subjects, Politicall, and private. I haveoffered a commentary on the above in my introductory essay to the French translation of Carl Schmidttsbook onLeviathan, Le Hobbes de Schmitt, le Schmitt de Hobbes (Ed. Du Seuil, 2002). Although situatedat the other extreme of the social order, this simultaneously residual and menacing figureparallelsthemanner in which Kelsen separates the fantastical hypostasis of State power from the rational functioning of the institutionso that he may suggest its treatment by psychoanalysis.28 Hegel,Principes de la philosophie du droit , trad. Fr. J.-F. Kervgan, PUF, Paris, 1998, 91.

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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 thecontradiction as appearancehas been becomean appearance of contradiction.

As theTheory 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, whosesanctionit 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 laws existence, confirms its validity (Geltung ), through the legal ordersreaction in the form of apunishmentsanction 30 But in reality and such is also the

significance of the equationRechtsordnung ist Zwangsordnung without crime,

punishments sanctionswouldnever occur remain groundlessand thecoercive 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 thejuridical order ,

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

perpetuated), as theeffect of subjectivityproper to thesanction.

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

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

identifications onto the unconscious scene (whose pathological obsessional neuroses,29 Das Unrecht is ein solcher Schein, und durch das Verschwinden desselben erhlt das Recht dieBestimmung eines Festen und Gelden (Philosophie des Rechts, 82, Zusatz). Let us not forget thedemocratic consideration of this argument: it is not possible to legitimately judge an individual for hisoffences or crimes except in the name of a law that he, in so far as a citizen, has himself helped toformulate, before a tribunal where in principle he himself could sit.30 Hans Kelsen,Thorie pure du droit , trad. Fr. 1953, p.76

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melancholic delirium, and moral masochism only ever providehim 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 transgressionand for this reason,it is possibleto belong to thisimpersonal 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 membershipto the social order

(which is also a mechanism of unconsciousbelonging membershipto this order) as Freud

organizes it inDas Ich und Das Es, in terms of the super-egos genesis and the state of

dependence that it imposes on the ego.

The Genealogy of Authority and Transgression

Undoubtedly, the geneticscenario modelfocused on the resolution of the Oedipus

complex and therepression of the repressing agencythat 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 externalcoercion

restrictioninto 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

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

effects we experience and expressafter 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).

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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 thelinearity of this scenario which is also corrected by the

recognition (practically partiallyconstitutive of psychoanalysis) that a standard

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

variants,or if one prefers, only the subjects 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 Freuds texts

by the changes and shifts in focus made in the course of writing, either within the contextof a single work, or in the series of developments thatthe 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 fromconstraintand in turn engenders a constraint. This is

not in order to invalidate themodelof 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 inThe 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

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

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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 (Autoritten) 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 specificcontribution, proper

to the super-egosmasteryor its fortification, are linked to the fact that they successivelyoccupy 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 andconstraint, 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 expressionElterninstanzor parental authority (Studienausgabe,Bd. I, s. 501).33 In his commentary (Problmatiques (I): langoisse, PUF 1980, p.355sq.,) Laplanche stresses inparticular, the manner in which the alternative between the father vs. the parents was influenced byMelanie Kleins intervention, whose observations, concerning the severity of the super-ego, Freud musthave 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 theseverityor the aggressivity that the parents (namely, the

father) reveal in the education of the childs instincts. However, Melanie Klein demonstrates that theviolence of the relationship of the ego to the super-ego has nothing to do with an empirical history, butconstitutes an effect independent of real behaviors. Independently of her ownexplication (whichemphasizes 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 pointof view, which makes the super-ego the heir of the Oedipus complex and even of previous objectrelations, and the structural point of view, which makes violence and its reversal into guilt an effect of the infantile egos dependence with regard to the omnipotent authority figures to whom he is bound bylove and by fear.34 Das konomsiche Problem des Masochismus, cit., s. 351 (it is the most complete list).

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

identification to which are attached unconscious representations of authority andwhich

crystallizes the affects of these unconscious representations. The reversibility of

interpretationis 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 inWarum Krieg (Why War?,

written in 1932, in response to Einsteins 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 andchildren, 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 Freuds texts concerning the super-ego as the model for an authority that is, both,

exercised [exerce] and endured [subie], particularly inThe New Introductory Lectures

on Psychoanalysisof 1933. This model is never direct. It must be inherited and35 This is an idea that is not so much Marxist as it is Rousseauian, as in theDiscours sur lorigine et les

fondements de linegalite(Studienausgabe, Bd. IX, 277). The fact that these particularly clear formulationsappear in one of Freuds texts on war inaugurated by the essay of 1915,Zeitgemsses ber 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 (Enttuschung, Zerstrung einer Illusion) that the war of 1914-1918 brought with regard to the value of progress and decline of violence in civilization, and whichleads to the original and therefore, impassable hypothesis of the death drive. See P. Macherey: Freud:La modernit entre Eros et Thanatos , cit.; Sam Weber War Time, inViolence, Identity, and Self-Determination, edited by Hent de Vries and Samuel Weber, Stanford University Press 1997; Ren Ka:Travail de la mort et thorisation, in Guillaumin et al.,Linvention de la pulsion de mort , Dunod, Paris2000, pp. 89-111.

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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 childs super-ego is in

fact constructed on the model (Vorbild) not of its parents but of its parents 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 byFreud to themodelof the Oedipal incorporation of the castrating father: Lagache and

later, Lacan; Laplanche, and Pontalis in the article superego inVocabulaire de

psychanalyse; Jean-Luc Donnet37 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 willeducatethe 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, inNew Introductory Lectures on Psycho-analysis,Vol. XXII, Trans. James Strachey. London: Hogarth Press, 1964 p.67.37 D. Lagache, Rapport , inLa 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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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 Freuds text, therefore, already sketcha 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: genealogicalcoercionis in excess of

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 inCivilization and Its Discontentsclearly reveal this overdetermination: Thus we

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archaic origin, which derives fromUrvater 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 Freuds 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 littlefurther still and propose, for my part, thatthe 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 Canguilhems classic article La dcadence de lide du progrs , Revue de Mtaphysiqueet 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 () withoutspecifically 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 acertain contradiction that exists in reality () In Freud we dont have a complementary system (on the onehand, the imperative, and on the other, the ideal, which must be realized in order that it conform to theimperative) but two disjointed series and both equally imperative: you must be like your father and theseries of interdictions, you must not be like your father. Obviously, this series of injunctions is moresimilar to idealization, since it offers a model, while the negative series is more similar to the super-ego.Not only is there nocomplementarity between the two(), butthere is also contradictionsince the twoimperatives, positive and negative, concern the same proposition: be like the father. Indeed, one canpretend to resolve this contradiction, one can take it apart in an effort to conform to logic (). In fact, Ipropose that the resolution of the contradiction is only an illusion, since, most of the time, and not only inclinically proven neurosis, the two series overlap, disjunctions become conjunctions, resulting in theseimpossible 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 acontradictory 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 incounter-order: you must return this money and you must not return it are characterized by the sameanxiety and guilt; and in melancholia we have also confronted this sort of absolute guilt that cannot beresolved by a simpledemarcationbetween interdiction or the allowable. This leads to us to conceive of thesuper-ego as an agency that in the most extreme cases appears to place legalism and even the laws that itdeclares, the semblance of reason, reasoning reason, in the service of the primary process.In any case, youare guilty, the super-ego seemingly says. (J. Laplanche, cit. pp.352-353). (Translation by LahelaMinerbi).

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both in terms of ambivalenceand 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 Freuds 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 laws 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 thequestion of the origin of the law and of sin that places the subject under the law, and

where it forms a thematiccorresponding tothe 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

laws soleraison dtre is the production or imputation of evil (violence, injustice,

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

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

41 Here again, the comparison is made to Nietzsche inThe Genealogy of Morals, but especially to itstheological source: Saint Pauls proposition inEpistle 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 impossibleidentificationof law to sin (ho nomos hamartia;m genoito). Whereas, this subversivelimit-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, Sabbata Zevi, in the 17th century, to proclaim his transgression of the law and right to blasphemy as proof of aredemptive mission (cf. Gershom Scholem,Sabbata 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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antinomism as its rule of operation, is, as a consequence, indistinguishable from that of

the unconsciousitself whose constitution, Freud tell us, ignores the contradiction just

as it governs the perception of reality.42 This results, in particular, in the superegos

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-egos 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 DostoevskysComplete Worksin 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 Dostoevskys neurotic symptoms with those

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

(which Freud placed in the same category as SophoclessOedipus Rexand Shakespeares

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

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

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. ); andNew Lectures on Psychoanalysis, XXXI (Studienausgabe, Bd. I, s. 511). Freud explicitly refers to theidentification 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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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 () Dostoevskys 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, sincehe has already murdered; and one must begrateful 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 Gl eiiechheit (egalitarian similarities, or mimetic equality). One may

develop this point by suggestingfrom 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 afew 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 themfor 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-egosseveritythat 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, inThe 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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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 Freuds meta-psychological

elaboration a significance and practical consequences perhaps very far removed fromwhat 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 thesubversiveeffect 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:Schuldegfhl 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 theapproach 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 tonormal or pathological differentiation. Undoubtedly, the same goes,mutatis mutandis, for the relationbetween juridico-political order and psychic disorder.

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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 andereMotive) 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 laws autonomous

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

45 H. Kelsen,Reine rechtslehre, 1934, cit., p.31sq. The passage is greatly modified in the Frenchtranslation, 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 Frenchtranslation).

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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 establisheda 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 thatThe Critique of Pure Reasonimplements in order to demonstrate thenecessity 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 withcoercionor 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 notobligation. It is preciselycoercion, particularly in the form of the

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

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

Obligationappears as its corollary: it is the second norm that prescribes behaviour,

47 Basiccially, Kelsens presentation concerns the behaviors that obstruct the freedom of others: here, onerecognizes Kants definition of freedom. Therefore, all behavior falls under a prohibition, either directly or indirectly, in so far as it represents a violation of the others right to do what is not prohibited

balibar_the_invention_of_the_superego

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