1

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 essay Jenseits des Lustprinzips in which he
introduces the concept of the death drives (Todestrieb), and which is often considered
the basis for his second topography, Freud published an essay seemingly much more
specialized (falling within the province of applied Psychonalysis): Massenpsychologie
and Ich-Analyse. Nevertheless, it is in this text that Freud systematically develops the
concept of identification around the notion of the ego ideal (Ich ideal) that is
substituted, in organized crowds (such as the Army and the Church), by an exterior
love object common to different subjects (either a collective leader or a directing idea
fuhrende Ideeas is in the case of religious institutions), and whose effectiveness is
explained by the regression to the archaic image of the primitive fatherUrvater der
Urhordetransmitted from generation to generation, by the Oedipus Complex
(according to the theory proposed in 1912, in Totem and Taboo). The following year
(1922)2, this analysis, which was based on a critical reading of works on political
psychology by contemporary authors and problematized the distinction between
individual psychology and collective psychology, became the object of heated debate

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)

2
amongst Freuds auditors and students.3 But the most interesting response came from a
jurist, Hans Kelsenrecently 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 languagewho 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 Theorie des Masse.5 In
this remarkable study, Kelsen demonstrates the superiority of Freudian analysis in terms
of the repression of psychic conflicts and identification over the efforts made by social
psychology, which attempts to account for the effect of society [ effet de 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
norm constituted by law and coercion (Rechtsordnung ist Zwangsordnung: the juridical

Freud was not the first, in terms of psychoanalysis, to be interested in the question of political
psychology during the tense period of the war, revolution, changes of regime, and the first confrontations
between socialist and communist mass movements on the one hand and with Fascist or proto-Fascist
movements on the other. It is worth citing, in particular, the brochure of Paul Federn, a student of Freud:
Zur Psychologie der Revolution: Die Vaterlose Gesellschaft (On the Psychology of Revolution: a
fatherless society), which appeared in 1919. 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 the International Journal of Psychoanalysis,
under the title, The conception of the State and Social Psychology, with Special Reference to Freuds
Group Theory.

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order is an order of coercion), constitutive of the State. However, in conclusion, after
having once again referred to the Freudian unconscious in support of a refutation of
sociological conceptions of the norm that as for Durkheim, implicate a hypostasis or a
personification of society, and that in reality constitute repetitions of the archaic
phantasy of sovereignty, he suggests that psychoanalysis may fulfill a fundamental role as
a critique of subjective phantasies of omnipotence and of the transcendence of the State,
fueled in particular by individuals permanent fear of suffering injustice or a deprivation
of rights (Unrecht) against which they are impotent.
I would like, here, at my own risk and peril, all the while searching for evidence
within the texts, to attempt to reconstruct what must have been Freuds response to
Kelsens critique, which he had himself solicited, and the offer for mutual assistance that
accompanied it. I believe in facteven without going into particularsthat 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 institutionin particular in the imperial or post-imperial context. In
Massenpsychologie und Ich-Analyse, one could say that Freud only addresses certain
apparatuses of the state. Reversing Le Bons theory, he makes identification (personal,
ideological) not only the domain of the anarchical disorganization of the masses, but
especially that of their organization in communities or systems of belonging. He

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goes so far as to introduce the processes of identification in the topography of the psychic
personality, as the quasi-transcendental condition of individual self-recognition (the
ego) as well as that of the mutual recognition of subjectivities (what one may refer to as
us), to the benefit of the comparison between these processes and the state of being in
love and of hypnosis. However, he does not ask how such systems of identification
become compatible between themselves, nor correlatively, which new investments of
ideal objects, whether positive or negative, it is necessary to have recourse to in order to
unify them in a politics and an economy of the unconscious. What appears to substitute
this synthesis or this unity of assemblages (even conflictual or problematic) is regression,
in other words, the common root of all identifications and their characteristic
ambivalence with regard to an arche originating from the first generation (the Urvater
der Urhorde: the originary Father of the Primitive Horde). However, this archaic model
that allows Freud in Totem and Taboo to think the origin of social violence (Gewalt) and
that of the law (Gesetz), is in reality anti-political, because it both dissolves the specificity
of all institutions in a prehistory generative of humanity (prehistory without history,
which we relate to through the mode of repetition), and because it equateseven in the
form of a myth or a conjecturethe essence of authority with the persistence of an
immortal substance of tyranny, slavery, and vengeance, necessarily misrecognized as
such, and on which by definition no deliberate action is possible, whether it be collective
or individual.6 By accepting the Freudian theory of the affective constitution of social
6

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

5
relations and of feelings of belonging to collective institutions (Bnde, Bindungen,
Verbindungen, Verbnde), while at the same time arguing against him that political and
historical unities of the state type, founded on the normative restriction of the law and on
the monopoly of legitimate violence, are irreducible to such a libidinal economy and
even precede itwithout which it is impossible to prefer a political regime to another and
to make it the object of a constitutionKelsen, therefore, presented Freud with a
veritable challenge. The latter, could not ignore this without immediately abandoning the
areas that he had begun to explore in Massenpsychologie und Ichanalyse and the new
articulation of the unconscious and of culturein reality that of politicswhich was
formulated there.
In order to take up this challenge, he would have to account for a paradoxical
identification or a limit of identification, which is strictly speaking neither positive or
negative but rather empty, since it does not consist of an imaginary representation of
a love object or object of hate that individuals (their ego) may share in common
[mettre en commun], but only of the principle of pure obedience. Or then, he would have
to acknowledge that subjects of the political institution as such are not subjects in the
psychoanalytic sense, in other words individuals whose thoughts and behaviors depend
more or less decisively on unconscious psychic formations. One would have to choose
either the unconscious or the political. In a sense, this is what Kelsen hoped Freud would
admit to, but on the condition of also facilitating a return of the subject of the
unconscious in the lapses or degeneration of a pure juridical order, when it came to
understanding why the constitution of citizenship (membership to a politeia) requires a
mythical supplement that appears to originate from the most archaic constitutions of

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authority and on which pathological representations of sovereignty (including, it is
understood, the sovereignty of the people) depend. However, if it was certainly not
satisfying for Freud to have to consider the unconscious as the system of psychic or
cultural origins of behavior (and of individuality itself), whose influence stops at the
doors of the cit, it was hardly more satisfying to have to base this separation on the
dualism of the normal (the normative order) and the pathological or the abnormal,
which his entire critique of political psychology as well as the orientation of his clinic
rejects!

A headless State inside the brain/mind ?

Thus, I am convinced that in the course of several months, Freud sought a complete
response to Kelsens objection, which concealed a development and maybe even a
reorganization of his own theory of the transindividual bondrelation [lien]. This also
cautions us not to ignore the external or rather economic factors, namely, the singular
historical moment when both had the idea to meet and which they certainly discussed. I
pose, here, a question that requires additional research by way of their correspondence
and personal accounts. However, I view as plausible that the juridical ideal of the
formation of a State of the constitutional type, equidistantly situated between two
extremesthe authoritative State, which the pre-fascist movements of the 20s strive
to reinvent, and the proletariats State non-State dictatorship, in form of a council,
which psychoanalysts among the most closely associated with Freud had more or less
enthusiastically rallied aroundis a perspective shared by both Freud and Kelsen, and

7
the grounds for their complicity and perhaps already for Freud, for a more pronounced
pessimism.
However, the need to respond to Kelsen that I hypothesize here did not lead
Freud to return to the question of the articulation between Church and State, or of the two
underlying types of institution and communal membership as such.7 Rather, it led Freud
to pose his own question on juridical coercion (or in other terms, obedience to juridical
coercion) to Kelsen, and consequently to question his concept of the norm, the grounds
for the irreducibility of the juridical order to a group penomenonmass mechanism
[ mcanisme de masse ] or to psychological identification. Kelsen believes that the law is
an a priori synthesis of obligation and coercion, and that this synthesis supports itself,
even if it must defend itself from the resurgence of the archaic and of the theological. In
this respect, he directly inherits Kants concept of the law, but he separates it from its
relation to a transcendental morality.8 For Kelsen, positive law constitutes its own
Grundnorm, or establishes within itself the foundation that it requires, at least in the
mode of fiction. The question that is posed and that Freud poses to Kelsen aims at
collapsing this fictive self-sufficiency. It asks what it means to obey, and more precisely
still, what it means to obey coercion, to be interiorly deprived of the capacity to resist it,
to renounce to the capacity to revolt against itwith certain exceptions of courseand it

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 organized
masses, by attributing to them the equivalent of a collective soul, while at the same time praising
Kelsens 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 Mtaphysique des murs), 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, Bibliothque de la Pliade, Volume III, p.480 sq).

8
asks in which structure such a renunciation or privation is rooted, in such a way that it
is always already presupposed by the functioning of the social order.
However, we must be prudent and therefore as precise as possible. Freud does
not state that individuals subjected to the power of the State or to the positivity of the law
do not revolt but that such a revolt, which is radically illegitimate in the eyes of the State
that has claimed the monopoly of the codification of the law and its sanction, is only
possible, when it is not suppressed, in the form of anxiety, guilt, or a maniacal challenge
and megalomania, all of which postulate the inevitability of punishment and even seek it
out.9 In this sense, he does not place, as one might hastily conclude, an image of the
State in the mind, that is to say, in the individual unconscious called the Super-ego. He
does not legitimize the State or the law by means of the unconscious, nor does he project
the phantasmatic double of political authority within the structure of the unconscious (as
many of his readers, whether psychoanalysts or not, have believed to their satisfaction or
dismay). This would only displace the question, reduplicate a political utterance by
means of a psychological interpretation and an interminable regression. However, in a
much more troubling manner, he describes a fundamentally antinomical psychic process
that forms in the unconscious the counterpart to the monopoly of legitimate violence,
which the State demands. As if obedience to legal coercion was simultaneously produced
on two scenes (or on a public scene and on another psychic scene) according to
modalities, which are at the same time, indivisible and radically heterogeneous, the one
9

A third possibility is irony or derision. Kafka explores this option contemporaneously in The Trial (and in
a separate narrative, published separately under the title, Before the Law). But this example suffices to
demonstrate that anxiety nevertheless, does not disappear. Cf. the recent commentary by Michael Lowry:
Franz Kafka, rveur 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. Deleuzes argument with regards to
Sacher Masoch follows in the same direction (which implies that Masoch is not a masochist in the
Freudian sense).

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contingent on the other. The terms, one will see, are the same: law, authority, obedience,
transgression, crime, punishment, guiltbut this series bifurcates with the notion of
coercion-compulsion (Zwang). Consequently, if Freuds 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 (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 through excess and by default. It is this
complex, which the encounter between the juridico-political question and existing
psychoanalytic theory crystallizes in Freud, that I would like to attempt to describe at
least in regards to its general principle, implementing terminology as our guiding thread.
The name given by Freud to the principle of obedience is super-ego, ber-Ich.
We all possess a super-ego, or better, we are super-egos, in so far as singular histories
of the psychic apparatuswhat Freud increasingly refers to as psychical personalities
(psychische Persnlichkeita term which may be possibly included with moral
personality and juridical personality and which also implies, as may be expected, an
element of fiction). Or better yet, we are the super-ego, of whom we are
10

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

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unconsciously the representatives and the agents (which also signifies that we make
ourselves its subjects in the characteristic form of a division). The choice of the ber-Ich
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 the berindividuell and ber-persnalich characteristic of the juridico-state norm that demands
obedience to the universal, or if one prefers to the law. However, it also belongs, one
notices incidentally, to an extensive paradigm that Freud continuously exploits for even
the most idiomatic resources. (bertragung, berdeterminierung, berschtzung,
berarbeitung, ). Let us remember above all else that the combination of the
preposition, ber, and the pronoun, Ich, simultaneously produces two effects of meaning
effets de sense : ber-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 (Humes and Smiths impartial
spectatorboth authors whom he had read in his youth).12 Yet, it is also, literally, a
super-ego, that is to say a superior ego, larger and stronger at least in the imagination
and phantasy, as one says supermale or superman: a meaning more directly related
to the entire thematic of the constitution of the super-ego beginning with the image of the
father or parents and their absolute power over the infant who experiences with anxiety
11

Many criticsfor example Peter Gay, in his biography Freud. A Life for our Time p.414are surprised
that the essay of 1923 is entitled Das Ich und Das Es and not Das Ich, das Es, und das ber-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 ber-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 Einfhrung 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).

10

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his inability to resist them and his own smallness.13 In this sense, the Super-ego is that
part within me that is more powerful than myself, or better it is an ego larger than myself
[ un moi plus grand que moi ], an ego which fictions itself as bigger than itself. At the
intersection of these two paradigms in Das Ich un das Es (Chap. 5), one finds the
redundant expression: das berstarke ber-Ich (the all powerful Super-ego).14
The second key term that provides us with a guiding thread is of course Zwang,
translated as coercion or compulsion and currently rendered by translators by the entire
series of Freudian concepts associated with it, from Zwangsneurose (obsessional
neurosis or coercion whose paradigm is the Rat Man), to Weiderholungszwang
(repetition compulsion) associated in Beyond the Pleasure Principle with the continued
efficiency of traumatic experiences and their infinite displacement, or to their conversion
into sources of paradoxical pleasure that together form the enigmatic unity of the so
called, death drives (Todestrieb). I am not far from concluding, and I do in fact
believe, that the question of Zwang (what is coercion-compulsion? how does it function?
how does it express itself? what purpose does it serve? why does it appear? but also why
does it form the irreducibly anxious modality of the relationship to authority?) is the very
point of intersection between the problematics that Kelsen and Freud encountered, and
the catalyst for theoretical invention at least for one of them. On one hand, there is the
Kelsian idea that the law in so far as it establishes an order, precisely sets up the
equivalence between obligation and coercion, or the perfect coextension of the two, with
the exception of lapses, or even sets up this equivalence by means of a constant
13

Regarding this point, Freud does not fear the slippage of verbal polysemy as is revealed by his
indiscriminant rapprochements of the superhuman figure in Urvateur der Urhorde such as it projected in
the imaginary power of tribal leaders and leaders, to the Nietzchean superman (bermensch, where ber
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.

11

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recuperation of its lapses. On the other hand, there is the Freudian elaboration of the
problematic of Zwang that progressively encompasses the entire phenomenology of the
manifestations of the unconscious in normal or pathological life (in other terms, that
defines normality as the little freedom or illusion of freedom that coercion allows us, as
one clearly sees in Inhibition, Symptom, Anxiety and in, New Introductory Lectures of
1932), and that in any case, forms the core of the manifestations of the super-ego, which
fluctuate between two extremes: surveillance, or critical observation, that is to say, selfcriticism, and literally speaking, severity or 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 both
these 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
15

What renders a clarification of Freuds 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 (bermoral 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 Europen des Philosophies, under the direction
of B. Cassin, Editions Seuil-Le Robert, 2004.

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respect for norms engender excess guilt (Schuldgefl) and the need for punishment
(Strafbedrfnis) that Freud describes as characteristic of the severity or even cruelty
of the Super-ego (therefore, as typical of its instinctual nature, or of the repercussions
of id at the heart of the ego that it represents), and that end up establishing an absurd
equivalence between obedience to the law and its transgression.16
Let us now turn to the text of 1923, Ich und das Es (supplementing it on occasion
with some ulterior developments that are directly related to it), and let us attempt to
reconstruct the progression that leads to this fundamental antinomism.

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

Individuals.
In Das Ich und das Es (1923), the Ego Ideal/ Super-ego pair is first introduced in terms of
its genesis, starting with the sequential identifications in every 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 result in a pathological
multiplicity of identities, an organization or a synthesis is required, whose condition
Freud tells us, depends on the primary identification that originates with the resolution
or the decomposition of the Oedipus Complex. The Super-ego is thus the original ideal
[premier idal ], even if the genetic anteriority of the model is already accompanied by a
series of paradoxical characteristics: above all the fact that the injunction in which it
[super-ego] is concentrated both exhortation (Mahnung) and interdiction (Verbot)
16

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

13

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implies a practical impossibility, or a least a double bind (be like your father!, do not
do as your father does!) (chapter III), a characteristic that is later extended to
authorities capable of relaying the paternal function of commandment and interdiction
(Gebote und Verbote), especially that of educators (Lehrer). How does the subject (the
unconscious ego) not feel guilt at his failure to reconcile both that which is demanded of
him and prohibited him? The idea of an inevitable and inextinguishable sense of guilt
(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 the drives (Eros or the sex drive and the
death drive which he does not himself call Thanatos). He does this by hypothesizing a
disentanglement [ 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 interpreting Krankheitsbedrfnis
(the need for illness therefore, need of pain), which constitutes the manifest aspect of
17

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

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this supplementary symptom, as an effect of a moral factor, the extreme consequence
of the feeling of guilt. Then, in a remarkable extrapolation (undoubtedly proposed by the
clinical material, but also certainly by the paradoxical logic of unconscious causality),
he transforms the feeling of guilt itself into a willful attachment to pain as punishment
(Strafe des Leidens), which the subject neither wants to or is able to renounce and turns it
into a displacement of a more fundamental need for punishment (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 the compulsion for punishment that confounds these two
roles, or attributes them alternatively to the same person, which engenders guilt and
produces, as needed, criminal intentions (or that are experienced as criminal),
interdictions that are to be transgressed, and actions that justify and sustain the need for
punishment indefinitely.
Freud is not satisfied with merely providing this logic with a name (it is literally
the Super-ego, as a dynamics or as a mechanism). Rather, he proposes a model whose
meaning is much more than allegorical: that of a psychic tribunal of the psyche
[ tribunal psychic ] whose subject is split into distinct agencies [instances], each one
acting out against the other, and who simultaneously occupies all positions (accused and
accuser, judge and victim).18 A Kafkaesque tribunal before which it is all the more
18

I must cite here the crux of the argument: An interpretation of the normal, conscious sense of guilt
(conscience) [Gewissen] presents no difficulties; it is based on the tension between the ego and the ego
ideal and is the expression of a condemnation [Verurteilung] of the ego by its critical agency [kritische
Instanz]. The feelings of inferiority so well known in neurotics are presumably not far removed from it. In

15

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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
Angstsattte). The interpretation of the super-egos constitution and functioning as a
paradoxical or excessive judicial agency according to which aspects of the arbitrary and
of moral violence, which are more or less completely neutralized and prevented by the
functioning of real and external tribunals, are taken to their extreme, clearly
demonstrates the distance henceforth taken from models of idealization or of sublimation
previously analyzed in conjunction with a theory of the ideal super-ego. It signals the
appearance of what one may refer to as, following Foucaults formulation19, the
two very familiar maladies the sense of guilt is over-strongly conscious [berstark bewusst]; in them the
ego 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] but
cannot justify itself [sich rechtfertigen] to the ego. Consequently the patients ego rebels against the
imputation of guilt [die Zumutung, schulding zu sein] () In melancholia the impression that the super-ego
has obtained a hold on consciousness [Bewusstsein] is even stronger. But here the ego ventures no
objection; it admits its guilt and submits to the punishment [es bekennt sich schuldig und unterwirft sich
den Strafen] () the object to which the super-egos wrath applies has been taken into the go through
identification [der Zorn des Uber-Ichs] () One may go further and venture the hypothesis that a great part
of the sense of guilt must normally remain unconscious, because the origin of conscience [die Enstehung
des Gewissens] is intimately connected with the Oedipus complex, which belongs to the unconscious. If
anyone were inclined to put forward the paradoxical proposition that the normal ma is not only far more
immoral than he believes but also far more moral than he knows, psycho-analysis, on whose findings the
first half of the assertion rests, would have no object to raise against the second half. The Ego and The Id
and other works, in The Standard Edition of The Complete Psychological works of Sigmund Freud Vol.
XIX. Trans. James Strachey. London: Hogarth Press, 1961. pp. 50-51. The text includes a certain
ambiguity, a result of the fact that it appears to vacillate between an opposition of the normal and the
pathological, and of the conscious and the unconscious. However, one can overlook this ambiguity by
assuming that that which characterizes these maladies (obsessive-compulsive disorder, melancholiaand
in other contexts he would include the perversions: masochism), is precisely the passage into the conscious,
or into manifest behavior of what in itself characterizes the unconscious.
19
In La volont de savoir Foucault himself challenges a certain legacy of Freud.

16

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repressive hypothesis. It also produces a series of important consequences whose
political implications must also be outlined.
The comparison made between consciousness and the tribunal or an inner
tribunal [ for 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 selfjudgment. 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 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

20

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

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consequently, at a point that precedes the distinction between law and morality.22 The
tribunal it delineates is not so much analogous to real tribunals, whose proceedings
functioning may be pushed to the point of absurdity, but rather to the unavowable
archetype at the margin between the normal and the pathological, which accounts for the
universal authority of real tribunals.
It is, therefore, worthwhile to return to the models of identification that Freud
previously associates with the examples of the army and the church, and to inquire what
it is that the super-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 and
the State), but which does not at all accentuate the same components of membership. The
models of the army and of the church, which are studied by Freud in Massenpsychologie
and Ich-Analyse, correspond to two modesdescribed as supplementaryidentification
as a (double) relation to a Vorbild and to equals [semblables] or to brothers. They
therefore, essentially collectivize and produce an egalitarian similitude (Gleichheit)
between individuals belonging to the same group.23 Furthermore, this is why they cannot
be completely excluded from the analysis of state formation, especially when the latter is
linked to the influence of nationalism and patriotism, which in the modern period are
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-egos development and by the
extent of its domination, in accordance with a certain sociological and anthropological tradition. This
concerns another aspect of his research, which given the context of the present hypothetical reading, I
prefer not to address.
23
Once again, the comparison between Ferderns brochure and his psychoanalytic deduction of
democracy is very insightful: For Freudwho in this sense is in no way liberal, nor a radical democrat in
terms of a participant democracythe 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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generally contemporaneous with it. One of these modalitiespossibly ideological, since
it does not link identification to a leader, but to the power of a fhrend Idee, an educating
or directing ideaappears to be privileged here, because it emphasizes the melancholic
aspect of the ideal ego, which associates love to the feeling of an irremediable loss of a
prefect object (overestimated: berschtzte) that to a certain extent we are responsible
for, and which ultimately confounds the experience of reality and the repression of the
instincts, thwarts desire, and finds satisfaction in frustration. Here, we come closest to
the characteristics that Freud ascribes to moral conscience and its typical excesses,
whose religious origins and at the same time social function he willingly stresses, as does
Nietzsche. What we must internalize and in this sense unconsciously elaborate,
beginning with our first social relations (to the parents), is not commandment or the law
of the living leader (of the sur-vivor [sur-vivant], as Canetti would later write), but
rather, the law of death or of the Sacred Victim [le 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 disassimilation, 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

19

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than the ego-ideal of which it constitutes a new elaboration.24 However, what is specific
to ita parody and reversal of Althussers well-known formulais the interpellation of
subjects into individuals and thus, the production of their isolation, their solitude (the
anxiety of solitude) at the heart of the group. It is easy to see that in this way is
constituted at least one of the conditions for the formation of a subject of the law [le sujet
de droit] whose obedience to the law, even if it corresponds to a general rule, is judged or
threatened by punishment. This judgment or punishment concerns him exclusively, since
it brings him to question himself, or as one says, to face his responsibility from which he
cannot escape whatever he may attempt. One might add that the super-ego establishes
a negative relation between individuals: neither love, nor brotherhood, neither hate nor
hostility, but rather the inhibition of mutual and destructive instincts or of
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

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 transgenerational. (Surmoi I: Le concept freudien et la regle fondamentale, Monographies de la Revue
Franaise de Psychanalyse, PUF 1995, p.40) (Translation Lahela Minerbi). For this reason I do not insist
on the fact that the super-ego is individual, but rather on the fact that it produces individuality by
forcing the subject to feel guilt, while the ego-ideal studied in Massenpsychologie und Ich-Analyse is not
social in the sense of a preexisting organism, but rather, is shared [mis en commun] and produced by
the community. What is questioned each time is the orientation of a vector, a relation.
25
The counter-identification, which the super-ego producesstrives for, occupies in many respects the place
that Freud, in the final plan of Massenpsychologie (chap. XII PostscriptAprs-Coup), reserves for
neurosis, in so far as an absence of erotic or hypnotic relations. Therefore, it also proves to correspond to
a social formation, but operating in reverse.

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Civilization and Its Discontents and its critical relation to the ideals of modernity.26
However, it is important to note that the question of membership is at the same time
posed with acuity and in contradictory terms. The analyses of the formation of the
masses (Massenbildung) and the corresponding model of identification appear to have
provided the question of membership with a homogenous and definitive answer, precisely
that which permitted Kelsen to note its inadequacy to the functioning of the juridical
order. What does it mean to belong to a tribunal or to a State that defines itself
principally as a tribunal incarnating and monopolizing the judicial functions? Apparently
it is to fall within its sanction, to come under its jurisdiction, and therefore, to have
been positioned there in a manner that does not allow the individual to escape or ignore
it, to challenge it. This question has relentlessly preoccupied the philosophy of law, in
every instance influencing its political choices as is the case with Hobbes, Hegel, and
Kelsen himself.
For Hobbes, as one knows, the fundamental question posed by social relations at
the heart of every organization (system) or association is the following: quis judicabit?
From which judge or tribunal do the litigations that arise within it and the crimes there
committed originate? Ultimately, the judge of all judges (the Supreme Court) is the
sovereign, who is himself judged by no one and to whom all proceedings are directed.
This is why the condition of possibility of the subjects submission to the law, which
dissolves all personal allegiances or subordinates them to the sanction of the State, is that
every individual, in his conscience [in foro interiore], will have relinquished his capacity
to defend himself to the sovereign authority, in other words to the fictive or
26

Freud: la modernit entre Eros et Thanatos, is found on the following groups site: La philosophie au
sens du large (expos du 12 octobre 2005) (Universit de Lille)
(http://stl.recherche.univlille3.fr/seminaries/philosophie.macherey/macherey20052006/macherey12102005
cadreprincipal.html).

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impersonal person of the State, and will have recognized its absolute right to judge
every infraction of the law (under the strict condition, however, that the latter be
previously promulgated: nulla poena sine lege, an where the expression of the rule of
law which becomes is more or less felicitously translated as Rechstaat or Etat de
droitState 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 since it intervenes in
the instant of abstract law, when the juridical form is exposed independently of the
person of the subjects who are its bearers. To assume that he who commits an
infraction or an injustice (Unrecht) awaits a sanction that reestablishes order, is at the
same time to make the delinquent the instrument of the execution of the law and to
integrate him, by the acquittal of his social debt, into a community from which he has
excluded himself by infringement of the law (which also signifies, with all the
ambivalence that accompanies such an idea, that no one is ever outside the law). There
is no transgression, or if one prefers, transgression is the appearance, in the individual, of
27

It is striking that in Hobbess 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 States disintegration that purport to do justice for and by themselves [de se faire
justice elle-mmes]. 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 Schmidtts
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. Kervgan, PUF, Paris, 1998, 91.

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the rational process through which the law imposes itself, asserts itself (the manner in
which it appears to the finite individual).29 Despite the differences that distance Kelsen
from the Hegelian dialectic, one finds in the former this same idea, with the exception
that the contradiction as appearance has been become an appearance of contradiction.
As the Theory of Pure Right explains, which on this issue is opposed to the tradition of
natural law, the illicit fact or injustice (Unrecht) is not a negation of law. It is an
action that the law prohibits and consequently, whose sanction it anticipates. As a result,
he who commits the delict is unable to get beyond the law, an expression devoid of
meaning (one could say that he does not possess the power or the right), but that
allows for the laws existence, confirms its validity (Geltung), through the legal orders
reaction in the form of a punishmentsanction 30 But in realityand such is also the
significance of the equation Rechtsordnung ist Zwangsordnung without crime,
punishments sanctions would never occur remain groundless and the coercive restrictive
character of law would remain a fiction. One can therefore, conceive that crime, which
does not contradict but rather affirms law as obligatory norm, is practically necessary to
its existence. One can also consider the individuals membership to the juridical order,
always already given and constantly verified by it (at least as long as this order is
perpetuated), as the effect of subjectivity proper to the sanction.
I would like to propose that Freud, in his own theorization of the judicial moment
of subjection (that is to say, of the super-ego as a structure, a system of individualizing
social relations mediated by guilt), by shifting the entire logic of negative
29

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

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identifications onto the unconscious scene (whose pathological obsessional neuroses,
melancholic delirium, and moral masochism only ever provide him with an
aggrandized and unilaterally accentuated representation of what normally is at work in
the conflictual constitution of the personality)31, reached an inverse conclusion: there is
only transgression and for this reason, it is possible to belong to this impersonal order-that is the juridical order. However, in order to outline this last point we must readdress,
even if broadly, the unconscious mechanism of belonging membership to the social order
(which is also a mechanism of unconscious belonging membership to this order) as Freud
organizes it in Das Ich und Das Es, in terms of the super-egos genesis and the state of
dependence that it imposes on the ego.

The Genealogy of Authority and Transgression

Undoubtedly, the genetic scenario model focused on the resolution of the Oedipus
complex and the repression of the repressing agency that it implies, orders the entire
presentation of the super-ego in which the second topography is systemized. In other
words, what orders this presentation is the transformation of an external coercion
restriction into an internal one in order that the conflicts produced by the familial
situation, described by Freud as a triangle of libidinal desires, are resolved for the little
child who is simultaneously the subject and object of desire. Consequently, the new
notion is associated with the theory of sexual development, with the clinic of individual
neurosis and interpretation of subconscious formations, and with the idea that thoughts
and affects, which return to consciousness or manifest themselves as symptomatic
behavior, are constituted by the intolerable or unacceptable experiences of desire whose
31

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

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effects we experience and express after the fact. The super-ego thus appears as the final
stage in the development of personality, whose modality is responsible for the
character of each individual, and which imposes the law of repetition on our lives.
However, one knows that the linearity of this scenariowhich is also corrected by the
recognition (practically partially constitutive of psychoanalysis) that a standard
development, uniformly reproduced by everyone, does not exist, but only singular
variants, or if one prefers, only the 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 context
of a single work, or in the series of developments that the latter produced. Among these
shifts, I would like to address two that appear to directly affect the manner in which we
understand the idea of a correlation between the feeling of guilt and the need for
punishment, which originates from constraint and in turn engenders a constraint. This is
not in order to invalidate the model of the after the fact, which makes the individual the
subject of the unconscious or de- synchronizes him from his own history, but rather, to
demonstrate that is always already constituted by relational and institutional dimensions
whose conflictual status overdetermines, at once, the divisions constitutive of personality
and provides them with the efficacy of a structure.
The first shift I have in mind is one that leads Freud in The Ego and the Id, and
even more clearly in subsequent works (Civilization and its Discontents, and New
Introductory Lectures on Psychoanalysis), to substitute the reference to the father, in
the Oedipus Complex, whose threat of castration the child fears in view of the sexual

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desire he experiences for the mother, and with whom he will attempt to identify in order
to displace the conflict, with a collective reference to relatives [ parents ].32 The
implications of this shift are, obviously, complex, since the second formulation includes
the mother along side the father, or places her in competition with him, and implies an
authoritarian familial structure that has its own social history.33 However, it is striking
that at the same time, Freud insistently includes the parents in a larger category that he
calls the authorities (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 specific contribution, proper
to the super-egos 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 (Problmatiques (I): langoisse, PUF 1980, p.355sq.,) Laplanche stresses in
particular, the manner in which the alternative between the father vs. the parents was influenced by
Melanie Kleins intervention, whose observations, concerning the severity of the super-ego, Freud must
have taken into considerationnot 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 childs 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 egos dependence with regard to the omnipotent authority figures to whom he is bound by love
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 and which
crystallizes the affects of these unconscious representations. The reversibility of
interpretation is also highlighted in the politico-cultural essays in which Freud closely
links his reflection on the dualism of the life and death drives to the analysis of the
function of the law and institutions, as for example in Warum Krieg (Why War?,
written in 1932, in response to 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 and
children, conquerors and conquered, masters and slaves.35. In summary, the paternal
function is conceived according to a twofold register, or is twice inscribed: in a personal
history with a genealogical structure, and in a system of social relations, which are
simultaneously, relations of power. Must not one assume that the compulsion to repeat
that Freud attributes to traumatic violence and that the super-ego exercises, is precisely a
result of the addition, or the mutual reinforcement of two forms of dependence?
An additional lesson, it appears to me, may be drawn from this other shift found
in Freuds texts concerning the super-ego as the model for an authority that is, both,
exercised [exerce] and endured [subie], particularly in The New Introductory Lectures
on Psychoanalysis of 1933. This model is never direct. It must be inherited and
35

This is an idea that is not so much Marxist as it is Rousseauian, as in the Discours sur lorigine et les
fondements de linegalite (Studienausgabe, Bd. IX, 277). The fact that these particularly clear formulations
appear 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 which
leads 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, in Violence, Identity, and SelfDetermination, 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, Paris
2000, 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 by
Freud to the model of the Oedipal incorporation of the castrating father: Lagache and
later, Lacan; Laplanche, and Pontalis in the article superego in Vocabulaire de
psychanalyse; Jean-Luc 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 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 Psychoanalysis,Vol. XXII, Trans. James Strachey. London: Hogarth Press, 1964 p.67.
37
D. Lagache, Rapport , in La psychanalyse, Volume 6, PUF 1961, Perspectives Structurales , p.39 ;
Vocabulaire de psychanalyse de Laplanche et Pontalis (PUF, Paris, 1967), p. 473 ; J.L. Donnet, Surmoi I,
cit.. p.36 sq.

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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
producingor the tyrant that he harbours withinwhile rendering himself the instrument
for good.
Taken together, the corrections inscribed in Freuds text, therefore, already sketch
a relational configuration more complex than the simple interiorization of the paternal
authority, as unyielding judge to whom the ego is, unconsciously, accountable for all his
actions. The psychic tribunal reveals itself to be constituted by, both, a personal agency
inscribed in a genealogical succession, and an impersonal authority constituted of a
network of institutions or apparatuses of domination and of coercion (the family being,
par excellence, the point of intersection between the two, where they exchange places
and injunctions, to the extent that one is tempted to say: the super-ego is the family!, but
also: the family, is the super-ego!). The fact that Freud continues to designate the guiltcomplex and the punishment complex, thus formed, as the locus of excess cruelty (or of
severity), may also suggest that one should consider that this disproportionate violence
is fuelled precisely by overdetermination: genealogical coercion is in excess of
institutional coercion, which it charges with instinctual energy, but the logic of the
apparatuses of power is also that which renders the father or the parent a sovereign

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despot, or the absolute master in the home.38 From this perspective, the theory of the
archaic origin, which derives from Urvater der Urhorde, also works allegorically to fuse
the two models of authority, or two relations of power, that Freud combines in his
descriptions of the super-ego and that allow him to make it, both, the pivotal point in the
history of individual personality, and the unifying theme for the interpretation of the
ambivalence of the phenomena of civilization, or for the element of archaic violence in
the movement toward progress.39
From this point of view, the feature Laplanche places as the center of his analysis
of 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 little
38

The developments in Civilization and Its Discontents clearly reveal this overdetermination: Thus we
know of two origins of the sense of guilt: one arising form fear of an authority, and the other, later on,
arising from fear of the super-ego. The Standard Edition of The Complete Works of Sigmund Freud, Vol.
XXI, Trans. James Strachey. London: Hogarth, 1961, pp.88-89.
39
Cf. George Canguilhems classic article La dcadence de lide du progrs , Revue de Mtaphysique
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 dont 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 fatherand 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).

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further still and propose, for my part, that the super-ego is the agency of contradiction,
both in terms of ambivalence and of antinomism. Laplanche, who from start to finish,
relies on the logical figure (or rather paralogical figure) of the double and contradictory
injunction, deciphers in 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 the
question of the origin of the law and of sin that places the subject under the law, and
where it forms a thematic corresponding to the one of theodicy to which Kelsen
refers.41 Antinomism may be understood as the radicalisation of the idea that subjection
occurs through an error implicated in the very enunciation of the law, or the law as
prohibitionin 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 sole raison 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

41

Here again, the comparison is made to Nietzsche in The Genealogy of Morals, but especially to its
theological source: Saint Pauls 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;
m 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, Sabbata
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, 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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institutional, blurring so to speak the private and public figures of power), which has
antinomism as its rule of operation, is, as a consequence, indistinguishable from that of
the unconscious itself whose constitution, Freud tell us, ignores the contradiction just
as it governs the perception of reality.42 This results, in particular, in the 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 Dostoevskys
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 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 Sophocless Oedipus Rex and 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. ); and
New Lectures on Psychoanalysis, XXXI (Studienausgabe, Bd. I, s. 511). Freud explicitly refers to the
identification of opposites in the unconscious in his analysis of the case of obsessional neurosis
(Zwangneurose), The Rat Man (Studienausgabe, Bd. VII. s. 95 sv.).

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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, 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 superego, in the sense of Gleiiechheit (egalitarian similarities, or mimetic equality). One may
develop this point by suggestingfrom the point of view of the psychic tribunalthat the
crime or the delict (real or virtual) not only incorporates its authors to the juridical order,
but also that the crimes of a few incorporate every one of us to the juridical order. Given
these conditions, it is not surprising that we greatly depend on the existence of
criminals and delinquents to whom we vow a combination of hate and pity, or that
the State and its representatives greatly depend on them for our sake. But also: by taking
the responsibility to identify them and punish them, the State short-circuits the role of the
personal super-ego for each individual, or provides us with various ways we can evade
the super-egos 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.

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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 from
what he may have consciously thought or proposed as psychoanalysis role in the political
domain. In this respect, the situation does not appear to me fundamentally different from
the one that already characterizes all the social effects of psychoanalysis, especially in the
field of mental health governed yesterday as today by the belief in a natural difference,
objectively locatable, between states or behaviour described as normal and those
described as pathological.44 It appears to me that everything depends on the subversive
effect of subversion [effet de subversion] produced by the comparison of the Kelsenian
equation--- Rechtsordnung ist Zwangordnung (the order of the law is identical to the
order of restriction)to the Freudian one: 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 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.

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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 actUnrecht) that
drives the subject to obedience, as a strict juridical positivism would require, according to
which the law is only a technique, a system of means at the service of any social order.
In many cases, fear of punishment or the execution of a sentence (Furcht vor der Stafe
oder Exekution) is not sufficient, and completely different motives (ganz andere
Motive) must come into play: religious, moral, social, and more generally, ideological
ones that combine the representation of dreadful evil with that of the good, with a
desirable social state. At the same time, it seems that the juridical order appears
complete, containing the conditions of its proper effectiveness (Wirksamkeit), only
when it includes the definition of certain values. Now, it is precisely this reference to
substantial values that a pure theory of the law, simultaneously independent of political
ideologies and of religious or metaphysical beliefs (from which the doctrine of natural
law is derived), must critique in order to arrive to a positive definition of the juridical
norm.
It is by perfecting his theory of the articulation between a primary norm and a
secondary norm that Kelsen thought he was able to arrive to the 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 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).

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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 established a priori. This constitutes a
sort of practical equivalent or transposition of the transcendental schematism used by
Kant in order to think the unity of mathematical form (conceptual) and experimental
content (phenomenal) in the constitution of natural phenomena. In this way, the
formula that The Critique of Pure Reason implements in order to demonstrate the
necessity of two components and their synthesisnorms, which are not obligations
inscribed in a constitutional order (dependent on a fundamental norm), are blind,
arbitrary, or illegitimate, however, those not accompanied with coercion or imperatively
put into effect are empty, or lack effectiveness from the juridical point of viewmay
be applied to the law. Neither of the two terms can be analytically deduced from the
other. The operation that brings them together (Kelsen speaks of identity, exactly as he
does about the relation between the juridical order and the order of coercion, or the
law and the State of which we have another formulation here) has a synthetic
quality. However, contrarily to what one might think, the norm that Kelsen calls
primary is not obligation. It is precisely coercion, particularly in the form of the
definition (by a penal code) of a type of behaviour that is the object of a prohibition
and results in a specific sanction against or punishment for its actor (Strafe, Bestrafung).47

47

Basiccially, Kelsens presentation concerns the behaviors that obstruct the freedom of others: here, one
recognizes 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 to them.

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Obligation appears as its corollary: it is the second norm that prescribes behaviour,
thereby enabling the evasion of punishment.
The structure of the law therefore, includes, at its core, a moment of a negation.
However, Kelsen is eager to specify that it does not concern a contradiction: a
contradiction may exist between propositions describing facts that are not produced
simultaneously, or possibly, between norms with different logics. However, a
contradiction between facts and norms, which originates from two heterogenous
universes is impossible, not even in the case of an illegitimate act or delictas was
demonstrated above in the discussion on crimes adherence to the juridical order as a
negation of law (Unrecht). The latter, therefore, appears as a synthesis of codification
and of judicial sanction from which contradiction is excluded, but whose effectiveness
permanently depends on negation. However, this is possible on one condition, which
may be rightly called political: the constitutional norm or Grundnorm is accompanied by
the States monopoly of the power (or violence: Gewalt) to coerce. In such conditions,
right becomes State and State becomes right: there is no individual liberty that is not
the inverse of a prohibition. Therefore, there is no conduct that is non-juridical.
However, all violence or coercion that does not correspond to the States protection of a
norm of law is illegitimate, and must itself fall under coercion. It is, surprisingly, the
political unity of the State that preserves the logical contradiction.
An order defined in such a manner possesses an absolute nature, since it is
impossible to evade or to legitimately resist it. I believe, more precisely, that according
to Kelsen, it forms an absolute fiction of absolutism in the mode of an as if, because it
depends entirely on an institutional supposition (for example, constitutional) that the

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whose very nature is juridical, obligatory, and compulsory, and on the fundamental
norm on which it is grounded is itself juridical, obligatory, and compulsorythat founds it.
It is at this very point that the Freudian reversal is potentially introduced, whose
potentially subversive nature I have described. According to Freud, the analytical
experience reveals that the relation between a subject or an unconscious ego and a
universe of coercion and of obligation, without exterior or escape, is not only a world of
negation and prohibitions, but a web of insoluble contradictions. It is as if, on the
psychic stage (the other scene of the unconscious), the two Kelsenian norms collapsed
upon one another thereby linking the threat of punishment and permission or obligation
and engendering the contradiction that the dualism of facts and of norms was able to
ignore. In order that the juridical order may be deployed and respected, it is therefore
unnecessary that the unconscious possess within its interior a psychological response to
the juridical order, a State in the mind that permanently intensifies the prescriptions of
the law and the orders of State belonging to an additional moral force (or rather,
hypermoral), thus producing a phenomenon of voluntary servitude. Rather more
significantly, it is necessary (if the actions regulated by the law are necessarily human
actions) that the other scene opposite of disorder or anarchy, which constitutes it [the
juridical order], either be repressed and therefore preserved, or redirected to other
symptoms and other individual behaviours (at the risk, in pathological cases, of losing
the ability to act). It is necessary that the radical sentiment of guilt be repressed and
perpetuated, and along with it the paradoxical equivalence between intentions and acts,
obedient behaviour, and acts of transgression.

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The emphasis placed on the relation between the idea of a juridical order and its
unconscious opposite, which rather resembles an instinctual disorder, organized around
the representation of coercions absolute legitimacy (which Kelsen had sensed when
attributing to individuals the obsessive fear of the sovereigns 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-egohowever, not any more, we must note, than orthopedic and
normalizing programs). Rather, I think what this signifies is that the juridical order
conceived from the psychoanalytical perspective is strictly speaking groundless, and
that one can no longer really pretend as if there was one, unless one believes in fiction,
unless one realizes this fiction, which is in reality a form of myth or of illusion. If the
juridical order is founded on something, it is rather on the continuous possibility of its
decomposition and therefore, on the very conflict that is sustained by its own repression.
It is possible to read this not as a Freudian political thesis, which is opposed to Kelsens
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
logical conclusions, in reality, leaves no other possibility.

48

The usage of this term differs from Roberto Espositos (cf. Catgories de limpolitique, trad. Fr. Editions
du Seuil, Paris 2006), but is not, it seems to me, incompatible with it.

39