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December 18 2003
A Brush with the Law: The Encounter between Hans Kelsen and Sigmund Freud Eran J, Rolnik
Much has been said about the intellectual ferment that characterized late 19 century and early 20 century Vienna. Of particular interest are the intersections between the various circles that operated in Vienna at that time. Having done some work on two of the most radical currents that operated in Vienna, namely the Zionists and the psychoanalysts, I became aware of yet another, equally radical, current that circled around the Psychological Wednesday Society. I am referring to the legal theorists (and more specifically the legal positivists) whose most distinguished representative is Hans Kelsen. ------------------
In December 1911 The Vienna Psychoanalytic Society added yet another lawyer to its ranks. In fact, that evening Freud and his students heard a paper titled “a feeling for nature” that another lawyer, Hans Sachs, was reading for them. Yet unlike most other lawyers whose interest in psychoanalysis marked their gradual shift of interest from the legal into the psychological Kelsen had no such intentions. On the contrary, having been appointed as a law professor in Vienna University that same year, Hans Kelsen was on his way towards becoming one of the most outstanding examples of secular Jewish lawyers who had a dramatic impact on all branches of law in whilhelmite and Weimar Germany.
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By the time Hans Kelsen joined Freud’s Wednesday meetings psychoanalysis was entering the second and most crucial formative phase in its development: turning from a late 19. Century local phenomenon into a scientific movement with branch societies in a growing number of countries. The expansion of the psychoanalytic movement occurred parallel to the expansion of Freud’s theoretical horizon and the Freudian paradigm was widening its scope in a pace that few of its adherents could forecast. This was the time when the author of the Interpretation of Dreams was at the pick of his creativity and was quite confident that whatever psychoanalytic investigation would have to say, be it in the fields of history, anthropology, literary criticism, and political theory - is worth listening to. Psychoanalysis has become a science of culture. By the time that the Great War broke out Freud have divested his theory from most of its reformative-utopian dimensions and he begun to adopt a more reflective, pessimistic, stance to humanity. This was evident in both his narrowing therapeutic aspirations and his disillusioned societal goals. His emphasis shifted from the developmental to the structural line of argumentation. Although Kelsen’s interest in psychoanalysis dated back to almost a decade earlier, he did not consider himself one of Freud’s disciples. He was rather critical towards the criteria by which Freud seemed to have picked his favorite student’s. According to Kelsen Freud had no real interest in free-thinking students and could tolerate only unconditional adherents. Shortly after the war Kelsen had an opportunity to meet Freud during one of his vacations and was invited to join him on some of his walks in the Tyrolean landscape. It was during one of these walks that his conversion to psychoanalysis took its most decisive turn.
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In an unpublished interview he gave in 1953 Kelsen recalled a dream specimen which he brought to Freud during one such walk. The dream was not one of his own, although he himself was very fond of dream theories, but was the dream of a friend. In it the dreamer receives the terrible news about the death of his children, who are being kept in an ice box, and yet he accepts it in the most indifferent manner. Freud did not hesitate for a moment. He told Kelsen that although no dream could be fully interpreted without the dreamers associations; this particular dream is of such a symbolic, strait forward type, that he could offer an immediate interpretation to the dreamer. This was a dream, Freud said, of someone who is desperate to divorce his wife but feels that his children are standing in his way. Kelsen was perplexed. He was convinced that this was the only possible interpretation to the dream since he himself knew of an extramarital affair that the dreamer was involved in - a fact that he choose not to include in his narration of his friend’s dream. “This was the first time that I really said to myself, there’s got to be something about this psychoanalysis.” He then went on and confessed to Freud his skepticism regarding the therapeutic efficacy of psychoanalysis. Freud’s answer was no less surprising then his dream interpretation. “You see, he said to Kelsen, the only way by which we can find out what is going on inside our patients is by approaching them as if we were doctors.” For Kelsen this was a final proof that the founder of psychoanalysis was first and foremost a scholar and an investigator and that for him medicine and therapy came in second.
In 1921 Freud published an essay which struck a nerve in Kelsens world view. The rather obscure text titled Massenpsychologie und Ich -Analyse (Which was mistranslated as Group Psychology and Ego analysis, thereby blurring the crucial distinction between a group and a crowd which stands at the heart of this treatise) was
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identified by Kelsen as a possible way out of men’s quest to personify the very institutions that should safeguard their freedom.
The circumstances informing the birth of this text are as obscure as the text itself. It was conceived in 1919 (while Freud was completing “beyond the Pleasure principle”) and immediately after completing the work on the “Uncanny”. But more important: it was openly acknowledged by Freud as his “simple- minded Einfall” to present a psychoanalytically founded Group Psychology. Ernst Jones, who was always very receptive to Freud’s creative process, interpreted the relative ease with which this text was written as a reaction to the difficulty Freud experienced while he wrote the “Jenseits”, as he called it. Jones interpretation certainly has its poetic charm, but one should suspect it reflected his own difficulty in accepting “Jenseits”, which he was still unhappily digesting. “What a library of books that little one will give rise to in time”, wrote Jones. And how right he was! The text was hardly discussed in the psychoanalytic literature of the day (although it had an almost immediate commercial success) but it was re-discovered in the aftermath of the Second World War. By then the distinction between a group and a crowd was a common knowledge, and Freud’s text was hailed as a prophetic treatise which foresaw the rise of the totalitarian European regimes. Let me recap briefly the main thread of argument in this lengthy essay: Freud considered Love to be the binding force, which promote the members of a group to submit to a common father figure. Thus at the heart of the individual’s readiness to renounce his natural animosity towards his fellowmen lies his need to be accepted by the leader. The mutual object of love is thus turning the mob into a crowd, which is then responding to the leader as if it had a single mind. The members
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of the group have given up all their individual Ego-Ideals and traded them for the Love of a common object. Having done that, they can identify with each other and suppress their envious feelings to each other. Envy, according to Freud, is the precursor of justice. Freud is somewhat ambiguous when he is describing the leader of such a crowd. On the one hand he is depicting the leader as a magnetic individual who can shape history according to his own will; on the other hand he claims that such great men derive their power from the emotional needs of their Volk rather then from their unique personality. Yet, as a contemporary commentator remarked recently, it seems that the Freudian leader bears some of the characteristics of a ‘godfather’. It may ‘love you or kill you’ should the need arise. In fact, the leader can only love himself. Freud is describing in some detail the narcissistic-psychopathic characteristics of the leader. This is one of those rare passages when we encounter the name of Nietzsche (who is perhaps the most prominent, albeit hidden, philosophical interlocutor of Frauds’) in his writings. Only that Freud is tracing the existence of the Herrnmensch not in the future but rather in humanity’s distant past. Freud’s pessimism exceeds that of his philosophical predecessors. He sets limits to the liberating effect that psychology can have on Men’s irrational need for submission to a ruthless leader. The pessimistic dimension in Freud’s deliberation on the human being as a social animal lies, however not so much on his analysis of the regressive behavior of the crowd but rather in his assertion that this age-old process has already structured the human mind. In other words: One need not be in a group or in a crowd in order to exhibit these submissive traits. Our individual psychology is molded after the primordial group experience of our predecessors. Each and every individual is therefore, by her very nature, a crowd.
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Freud has thus paved the ground for a reversal in psychoanalytic epistemology. Now it was the individual whose psychic constitution represented her past interaction with the group and not vice versa. But equally important was Freud willingness to break with all political theorists who preceded him and to divest his political theory of any rational dimension. Whereas in Totem and Taboo he depicted the contract that the members of the primal tribe reached in order to unite and rid themselves of the prohibitions set to them by the primal father, in Group Psychology he is giving up on any rational explanation for the social cohesiveness which humanity may strive for. --------The desire for purity with its roots in German idealism is one of the major features of legal positivism. It is based on the idea that since the scholarly study of law is distinct from its object, law is ought to be limited to description and not participate in production. It thus ought to refrain from prescription and from the formulation of value-judgment. In his theory of justice Kelsen tried to undo the age-old dichotomy between natural and normative laws. His so called Grundnormen (Basic Norms) were designed to occupy the position of a transcendental precondition and to allow for an exact and objective normative science of law. The implication of Kelsen’s theory of international law was that legal order was consistently located at a hypothetical point beyond any concrete community, whether national or international. His theory excluded any concept of law based upon a dynamic of relations among peoples. Kelsen’s pure theory of law could be described as an escape from the masspsychological elements of the Volk. Kelsen rejected the notion that the Volk, the people, is a real psychological fact. For him it represented only mass suggestion. Hence, no quasi-common societal goals should be allowed to participate in a
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definition of law. Clearly it was the problem of the unity of the multi- ethnic Hapsburg monarchy that informed Kelsen’s search for a solution to the unity of the state in normative and formal terms. From an epistemological point of view Kelsen’s Basic Norms could, with some reservations, be called neo-Kantian. Although he rejected Kant’s concept of natural justice Kelsen considered his theory of pure law as the answer to Kant’s question: How can we formulate an objective law of nature free of any metaphysics without supporting ourselves on some transcendental figure. The Basic Norms were therefore designed to “by pass” the need for a metaphysical authority such as god or nature. In contrast to Freud, who felt quite comfortable in late 19 century elitist-authoritarian type of rule, Kelsen repeatedly seek to neutralize the state and turn it into an instrument in the service of democracy. But perhaps we should shift our juxtaposition of Freud and Kelsen a bit backwards and ask ourselves what made the legal theorist chose Freud as his source of anthropological wisdom? Kelsen seems to favor Totem and Taboo precisely because it invokes the theory of statehood of primitive men but at the same time demonstrates the parallels between the idea of the state and the idea of god. Whereas theology (not only Christian theology) have seek to settle the parallel between god and nature by mystical and grandiose ways, namely by assuming a god- like human being, the theory of law must seek the solution without resorting to metaphysical personification either of the state or its laws. In the 2 essays he wrote after reading Freud’s Group Psychology he welcomed Freud’s basic idea of libidinizing the relations between human beings and understanding them on the basis of psychological mechanism. He is tracing in Freud’s psychology an ‘escape route’ out of the metaphysics of natural laws. Yet he draws a distinction between the symbolic fatherly figure of the leader and that of the state.
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Kelsen would not allow the concept of the state to fall prey to any Freudian category of a psychological group. On the contrary, it is the concept of the state that should safeguard those psychological dynamics that the nature of the group tends to unleash. Clearly, it would be utterly wrong to contrast Freud and Kelsen and posit them as if they were representatives of 2 opposing political theories. There was only one political theorist in this conversation and that is Kelsen, who is much more attuned to the ideal of “equality with other human beings” then Freud. Freud did not share any of Kelsen’s democratic visions and his opinion of humanity was so “Hobbsbian”, at that particular phase in his life that I doubt if he could be persuaded in the possibility of human beings forming social bonds in which the need for submission to authority isn’t somehow fulfilled. Kelsen’s “view of man” did however bear some of the characteristics of the late Freud. It was a human being whose basic experience is expressed by the Sanscrit proverb “tat wam asi ” – the human being who, when facing another, hears a voice saying: That is you. This type of person, so Kelsen, has a relatively diminished ego, he is sympathizing, peace- loving and tends to direct his aggressive impulse inwards rather then outwards. He is inclined to self-criticism and has an increased sense of guilt and responsibility. Democracy, therefore, is not a fertile ground for the authoritarian principle. It is basically a “Fatherless Society”. ------------I would like to end this brief juxtaposition of Freud and Kelsen with a recent visual image which could hardly be described as democracy’s finest hour: The image of a triumphant doctor publicly inspecting the oral cavity of a defeated tyrant. I am not sure what wish was enacted in this particular televised ritual to which we were all subjected recently. Could this be a perverted and fetishized version of the lines which
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Freud confided to Kelsen 70 years ago when he said: “The only way by which we could find out what goes on in people’s mind is by approaching them as if we were doctors”? Was this an attempt to reinstate the rule of justice by tracing back the causes of evildoing to its oral origins? Be that as it may, a dialogue between psychoanalysis and international law seems as urgent as it was 80 years ago when it was carried out diligently by Freud and Kelsen. Thank you.
