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palgrave
macmillan
First published in Great Britain 1997 by
MACMILLAN PRESS LTD
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Companies and representatives throughout the world
A catalogue record for this book is available from the British Library.
ISBN 978-1-349-25976-2 ISBN 978-1-349-25974-8 (eBook)
DOI 10.1007/978-1-349-25974-8
Selected titles
Curtis C. Breight
SURVEILLANCE, MILITARISM AND DRAMA IN THE
ELIZABETHAN ERA
Peter Gidal
UNDERSTANDING BECKETT
A Study of Monologue and Gesture in the Works of Samuel Beckett
Alan Hunt
GOVERNANCE OF THE CONSUMING PASSIONS
A History of Sumptuary Law
Angela Moorjani
THE AESTHETICS OF LOSS AND LESSNESS
Arjuna Parakrama
DE-HEGEMONIZING LANGUAGE STANDARDS
Learning from (Post) Colonial Englishes about English
Raymond Tallis
NOT SAUSSURE
A Critique of Post-Saussurean Literary Theory
Geoffrey Ward
STATUTES OF LIBERTY
The New York School of Poets
Contents
List of Plates ix
Acknowledgements xi
Preface for English-speaking Readers Pierre Legendre xiii
Introduction: Psychoanalysis and Law Peter Goodrich 1
1 The Dance of Law 37
2 Parenthesis: The Text without Subject 67
3 Protocol of the Love Letter 72
4 Parenthesis: To Fascinate 95
5 The Masters of Law: A Study of the Dogmatic
Function 98
6 Parenthesis: In Praise of Calligraphy 134
7 Hermes and Institutional Structures: An Essay on
Dogmatic Communication 137
8 The Judge amongst the Interpreters: Psychoanalysis
and Legal Judgment 164
9 Introduction to the Theory of the Image: Narcissus
and the Other in the Mirror 211
Bibliography of Principal Works by Pierre Legendre 255
An Abbreviated Glossary Peter Goodrich 257
Index 263
vii
List of Plates
1. The Favourite Comic Dance, print from the library of the Paris
Opera, filed under the rubric 'Circus'.
2. Michel Denard in Giselle, performed at the Paris Opera, 1972.
3. Feminine divinity in the pose of a dance. Bronze statue from
Tibet, Guimet museum.
4. The Arms of Borromeo Arese, from V. Spreti, Encyclopedia Storico-
Nobiliare Italiana, II, 1929, Milan, p. 144.
S. Love Letters, Stanley Spencer, 1950.
6. Twelfth-century fragment from Placentinus, Summa institu-
tionum.
7. Miniature taken from a collection titled CIementines, with a
marginal commentary by Jean d' Andree, 1476, Venice, folio 1.
8. The King of Kings governs the King (Rex Regum Reges Regit),
emblem extracted from J. Bornitius, Emblematum Ethico-
Politicorum, 1664, Heidelberg, no. 13.
9. God works through words and signs (Verba et Signis Efficax Deux).
Emblem extracted from J. Bornitius, Emblematum Ethico-
Poiiticorum, 1664, Heidelberg, no. 1.
10. The Spyglass (La lunette d'approche) by Rene Magritte.
11. Zurburan, The Holy Face, 1658.
ix
Acknowledgements
The essays and extracts translated and published here are drawn
from the following sources:
Chapter 1 is extracted from La Passion d'elre un autre. Etude pour la
danse, 1978, Paris: Editions du Seuil. Chapter 3 is extracted from
Paroles poetiques echapees du lexte. Lefons sur la communication indus-
trielle, 1982, Paris: Editions du Seuil. Chapter 5 is a translation of an
article which first appeared in (1983) 38 Annales: Ecol1omies-Societis-
Civilisations 507. Chapters 2 and 4 are extracted from L'Empire de la
verite. Introduction aux espaces dogmatiques industriels, 1983, Paris:
Librairie Artheme Fayard. Chapters 6 and 8 are taken from Les
Enjants du texte. Etude sur la jonctiol1 parentale des Etats, 1992, Paris:
Librairie Artheme Fayard. Chapter 7 is a translation of an article
that originally appeared in Lucien Sfez (ed.), Dictionllaire critique de
la communicatioll, 1993, Paris: PUF. Chapter 9 is extracted from Dieu
au mirroir. Etude sur i'institution des images, 1994, Paris: Librairie
Artheme Fayard.
We would like to thank the publishers of those works for kindly grant-
ing permission to translate the extracts contained in this volume.
xi
Preface to English Readers
xiii
xiv Law and the Unconscious
PROLOGUE
1
2 Law and the Unconscious
the space and the images or faces of that power. Returning to the
case of Corporal Lortie and his psychotic endeavour to erase the
social fantasm of paternity, a government with the face of his
father, the legal categories that institute subjectivity, the function,
and here the failure, of law are peculiarly clear. Lortie's transgression
emerged initially out of a desire to destroy an evil father, the social
image or fantasm of paternity, the President of Quebec. This desire
was expressed initially in terms of a drive to prevent the destruc-
tion of the national language. While this allusion to language might
seem incidental, it can also be taken as the most fundamental of
references to structure and to law.
The third theme to be addressed relates to the particular form in
which the institution not only acts as if it were a subject but also
acts as if it had a body and so also, in Freudian terms, an uncon-
scious. Since Lacan, psychoanalysis has constantly emphasised the
importance of the fact that we are inhabitants of language. To the
observation that language is the inescapable symbolic structure into
which each subject is born, Legendre adds that in the West we are
the inhabitants of a very specific material form or body of language,
the text or written reason of law. The reference to language, and so
indirectly to texts and to their Western manifestation as written
law, thus refers us to the foundational structure, the symbolic form
and sCriptural identity of Western institutions. The question of law
is a question of structure and for Legendre this means that it is a
question of a Text, of a Book or books which set out the specific
social places of legitimate authOrity. It is the text that establishes
our social identity and institutional place, it is the text that provides
us with our jurisdiction or right of speech, it is the text in which we
are born and in which we die, or in classical legal terms, Rome - a
Text, a system of law - is our common homeland (Roma communis
Ilostra patria est).u
The structural Text, or, in one etymology, the terror and the ter-
ritory of the Western institution, has been that of Roman law and
specifically of the Corpus Iuris Civilis, which was received into the
Western tradition in the late twelfth century. It was through the
reception of this vast corpus of texts, according to Legendre and to
others, that the Western institution took on the historical and essen-
tially juristic form that we inherit to this day.14 The reception of
Roman law was a complicated inheritance from the two Romes,
that of the papacy and of canon law, and that of Justinian and the
transmission of a predominantly imperial law. 1s The systematisa-
tion of these two textual systems through the categories of classical
Rome legal science constituted what Legendre refers to as the
twelfth-century interpretative revolution. The reception of Roman
law provided a textual method of social organisation and of insti-
tutional action. It also set out the basic substantive categories of
social structure and of subjective life. Most notable amongst these
was the principle of authority that attaches to the power of the
father.
A fourth thematic homology between law and psychoanalysis
lies precisely in the complex notion of the 'paternity of law'. Cor-
poral Lortie's numerous references to father figures, who variously
command, refuse, absolve and haunt, invoke not only a modern
Freudian image of authority but also a classical legal reference.
Roman law had attributed an absolute power, a power over life and
death, to the head of the family, the paterfamilias. The private law
right of the father of the household mirrored the comparable public
law power of the emperor, the living voice of the law, whose very
whim was legislation and whose 'pleasure1l6 had the force of law.
The power of the emperor in its turn mirrored that of the divine
father, of whose will the sovereign was no more than the mouthpiece
In the case of Lortie, the image had a crucial role to play at the
level both of the social and of the individual. At the level of the
social it was precisely the image, or the social face of authority,
which Lortie attempted to erase from the text of the living. The
image or face of the father appears throughout Lortie's narrative
and its interpretations. More specifically, Lortie desired to take up
the place of the father but misrecognised that place as being that of
his own father rather than as the abstract instance of the principle
of authority. Lortie desired to take on the role of the father, but
feared becoming his own father. In short, he confused two distinct
places or functions of the image. In social terms the image repres-
ents or more technically figures the desirability of the textual order
and its hierarchy of authoritative places, its authors and authorities
(auctor et auctoritas). The image passes on the unsayable dimension
of that power, and as an image it can move between realms, as also
between public and private, institutionality and intimacy. It is thus
not altogether surprising that when Lortie viewed his own image,
his own representation and acts, on a video, he was able, at least to
some degree, to identify with himself and proclaim, 'I cannot say
that it is not me, it is me: His virtual presence in the images relayed
by the video was more real for him as a mechanism of identification
than the hyper-real experience of killing that he had just under-
gone. In more technical terms, Lortie could no longer deny or 'split
off from' the inner negativity that was for him represented by the
figure of the bad father whom he did not wish to become.
A fifth and final observation can again return us to the case of
Lortie and its peculiarly exemplary place in Legendre'S account of
the relationship of psychoanalysis to law. Whatever the structural
relation or homology between psychoanalysis and law, and what-
ever significance is to be given to what Legendre coins 'the insist-
ence of the law in the unconscious', the case of Lortie allows us to
advert to another point of confluence. Both psychoanalysis and law
address cases and so, in terms of method, both are forms of casu-
istry. In a sense, the most profound though not necessarily the most
acceptable connection between the two diSciplines is precisely the
most obvious, namely their common history of casuistry and their
analogous attempts to provide a normative resolution to individual
cases of conflict or dispute. The casuistic tradition, in other words,
dates back to the mediaeval reception of Roman and canon law and
it entailed the reception and elaboration of a complex apparatus of
questions of conscience or problems of ethics alongside the compar-
ably normative questions of law. What is significant is that these
12 Law and the Unconscious
The case of Lortie, the case of a son who desires to kill his father
and who acts out that desire by endeavouring to kill the social face
or effigy of his father, the government of Quebec, raises a peculiarly
Freudian problem for legal analysis. 19 In Freudian terms, the Oed-
ipal desire of the son to kill the father lies at the basis of all law, and
it is this unconscious principle of authority which is lengthily elab-
orated in Totem and Taboo. 20 Freud's myth of the law's origin takes
18. Thus David Caudill, 'Lacan and Law', 25: 'If this study is anything -
scholarly, scientific - at all, it is personal, implicatory. In trying to
maintain a cautious distance from a theory - Lacan's - postulating
that such distance is an illusion, one fears to be only striking a pose.'
See also Peter Gabel, 'The Phenomenology of Rights-Consciousness
and the Pact of the Withdrawn Selves' (1984) 62 Texas Law Review
1563.
19. For an analysis of another case in which a son kills his father ('It is
impossible to blow open the top of a man's head, says the judge in
Moloney, a case about a man who blows open the top of a man's head,
to unshell it, as it were, so as to examine his thinking like an oyster,
or a watch-spring, or a nun, see Yifat Hachamovitch, 'The Dummy.
An Essay on Malice Prepensed', in Peter Rush, Shaun McVeigh
and Alison Young (eds), Criminal Legal Doctrine, 1997, Aldershot:
Dartmouth, ch. 2. The case reference is to R v Moloney [1985) AC 905.
20. Sigmund Freud, Totem and Taboo: Resemblances between the Psychic Life
of Savages and Neurotics, 1939, Harmondsworth: Penguin.
Introduction: Psychoanalysis and Law 13
as its starting point the murder of the primordial father, who has
monopolised the females of the tribe, by his sons. Overcome with
guilt and remorse the sons then legislate against murder and thus
inaugurate ethics and law. Both domains are governed by the
memory of the absent father, by an image or totem that represents
and reminds the sons of their parricidal past. Law, in the form of
a totemic figure, a sovereign or social image of power, takes the
place of the murdered mythical father and becomes the object of
social desire.
One way of interpreting Freud's mythical presentation of the
totemic character of law is simply to say that the authority of law
is inextricably bound to its mythical origins and to the symbolic
forms which represent that myth in the contemporary public sphere.
At the level of the social, law is necessarily predicated upon an
absent source of authority which, in its most direct form, is vari-
ously represented as God, nature, reason, sovereign or king. The
symbolic order, in other words, rests upon an unsayable or immut-
able yet invisible source of law, which can only be represented or
symbolised in the various figures of the power of law. 21 The sym-
bolism of law, in classical terms the social figure of a leader or
communal father, masks or screens a truth which cannot be directly
stated or shown: 'since an emperor cannot be present to all persons,
it is necessary to set up the statue of the Emperor in law courts,
marketplaces, public assemblies and theaters - in every place, in
fact, in which an official acts, the imperial effigy must be present,
so that the Emperor may thus confirm what takes place, for the
Emperor is only a human being and he cannot be everywhere.'22
The space of the social is marked in advance by law. The uncon-
scious of the institution here takes the form of a plastic and textual
imaginary, while the power of law becomes that of an endless array
of dignities, roles, and textual figures which bear the delegated
authority of an absent source. Curiously, institutional desire is
prompted by a lack, the legal subject is not and cannot be the one
who the dignity or role represents. The institution is only ever an
image of its absent reason or cause. Similarly, at the level of the
legal subject or individual, Freudian analysis, and, one might add,
21. Legendre, Desir politique, at 266, citing Justinian, Novels 98, 2, 2 (post
Dellm communis omnibus pater).
22. Kenneth Setton, Christian Attitudes towards the Emperor in the Fourth
Century, 1941, New York: Columbia Univesity Press, 196.
14 Law and the Unconscious
cover over the violence and the madness of power, its function is
to make believe that law is reason and to hide the fact that law is
also power, and in more technical terms, that the authorship of law
is cognate with its authority. In short, the classical 'theatre of Justice
and of Truth' (Theatrum veritatis et iustitiae)30 conceals another his-
tory, a latent history or positive unconscious of the legal tradition
which contains law's failures, its lapses, its shattered dreams, as
also it harbours its desires, its enjoyments, its reverie of a compre-
hensive system and perfect order of rational rule. In other words,
there is no single or merely internal history of law; there are rather
plural histories of various laws, of different jurisdictions and chang-
ing institutional forms. It is, therefore, the function of a psychoana-
lytic account of law to provide symptomatic readings of the history
of the legal institution and to attend to the desires that underpin
law, to listen to the narrative of the lawyer's love of power and to
the latent poetry of the legal text. Legendre's work starts out, in other
words, from the fact that the history of the Western legal tradition
is a history of dogmatic reason and of the institutional forms of life
which dogma inscribed as law. What is at issue in law's institution
of life is not only a question of legal logic, it is also a matter of faith,
of love, and of the poetry of the soul. In the latter, less rationalistic
terms, it is Legendre's argument that the legal institution deserves
to be taken seriously, to be interpreted in the same way as other
dreams; in short, it deserves what Freud termed a double reading,
one attentive to both its manifest and its latent meanings. 31
The other dimension of the Western legal tradition to which psy-
choanalysis directs our attention is that of what Legendre terms the
'non-legal scene of law'.32 It is the history of the symbolic materials
that were used to fabricate a discourse of life and of death, and to
institute an art of law which could address the subjective needs
and desires of the institutional subject. The specific problem to be
addressed initially is that of the way in which law creates not simply
33. Legendre, Les Enfants du texte. Etude sur la fonction parentale des Etats,
1992, Paris: Fayard, at 55. To teach respect for order and through that
respect, belief in and love for authority, was a very common glossatorial
theme.
18 Law and the Unconscious
38. Legendre, Desir politique de Dieu, at 225-6: 'Note that one of the cen-
tral constructions of civil law, that which, following Justinian's ter-
minology, we call the law of persons, literally derives from persona
- referring initially to an actor's mask - and allows me to translate the
formula de iure personarum by "of the law of masks". In all institu-
tional systems the political subject is reproduced through masks. This
translation also contributes to the rehabilitation of the problematic of
the image at the heart of the legal order.' For commentary on this
point, see Peter Goodrich, 'Law's Emotional Body: Image and Aes-
thetic in the Work of Pierre Legendre', in P. Goodrich, Languages of
Law: From Logics of Memory to Nomadic Masks, 1990, London: Weidenfeld
and Nicolson.
39. Legendre, L'Inestimable objet de la transmission. Etude sur Ie principe
genealogique en Occident, 1985, Paris: Fayard at 140.
40. Legendre, Paroles poetiques, at 212.
20 Law and the Unconscious
41. Digest 50. 17. 207 (Res judicata pro veritate accipitur).
42. Legendre, louir du pouvoir, at 62.
Introduction: Psychoanalysis and Law 21
43. Legendre, Jouir du pouvoir, at 59; and see further the discussion of the
same point in Legendre, Desir politique de Dieu, at 289-92.
44. Legendre, Desir politique de Dieu, at 297, citing Isidore.
22 Law and the Unconscious
46. On the faith which attaches to instruments (that is to say to texts), see
Legendre, Desir politique de Dieu, at 289-97; and also Legendre, 'Expert-
ise d'un texte', in La Pyschanalyse, est-elle une histoire juive?, 1981, Paris:
Seuil, at 93-113.
47. Digest 50.13.155. For discussion, see Legendre, L'Empire de la verite, at
51-5.
24 Law and the Unconscious
What was necessary to law was first a belief in the Text, a faith in
instruments, and not a mere understanding or secular use. The
textual system represented the signs or augurs of things divine, the
arcana iuris which addressed matters of life and death, and in con-
sequence was to be approached mystagogically, through signs,
through images and an emblematic speech. In its deepest sub-
strate, the Text was a figure of truth, it was an opaque sign, a dark
letter, an incomprehensible writing. Such a view of the textual
unconscious may seem bizarre, but it needs to be remembered that
such a notion of the symbolic power of law, as well as of its opacity
or indeterminacy, is not lacking modern representations. What
psychoanalysis suggests is that modern law needs to recollect the
incomprehensibility or irrationality of the Text and of the law: 'it is
impossible to approach Roman law without reinstating what I call
the rights of incomprehension and the sense of enigma' by means
of which it was transmitted. 48
The enigma or symbolic character of the Text relates to the
foundational quality of law as the means by which a culture insti-
tutes life. For law to take hold of the subject, for the subject to
become attached to law, it is necessary that the textual culture of
the institution be capable of becoming an object of fear and of love,
just as its Text would literally be guarded and venerated, both as
manuscript and as meaning, by the mystagogues of the legal tradi-
tion. 49 A system of law, in other words, is not simply a logic of rules
or empire of reason, it is also a figure of attachment, a fiction or
theatre of subjective meanings and affectivities. The desire of the
lawyer to order the texts of law more geometrico, or in the manner
of a geometry, already displays an aesthetic or artistic inclination.50
It takes only a small further step to understand that beneath that
mask of order or screen of precision lie many other dimensions of
attachment to Image, Text and Law. It is necessary to bind the
53. On the officium poetae, see also Placentinus, 'Sermo de legihus', the text
of which is reproduced in Herman Kantorowicz, 'The Poetical Ser-
mon of a Mediaeval Jurist. Placentinus and his "Sermo de Legihus'"
(1938) 2 Tournai of the Warburg and Courtauld Institute 22; and P.
Goodrich, 'Translating Legendre: The Poetical Sermon of a Contempor-
ary Jurist' (1995) 16 Cardozo Law Review 963. The reference to Barthes is
to A Lover's Discourse: Fragments, 1979, London: Jonathan Cape, at 158.
54. Legendre, Paroles poetiques, at 221.
55. Legendre, Desir politique de Dieu, at 295.
Introduction: Psychoanalysis and Law 27
56. Legendre, Desir politique de Dieu, at 316. With respect to the philolo-
gical views of Guillaume Bude, see De philologia, 1536, Paris: Vascosan,
at 47 and 143, discussing literarum studium and the spirit of Latinity.
57. This Pauline distinction can be found taken up in Francis Bacon, The
Elements of the Common Lawes of England (London: I. More, 1630) at A
2 a: 'for if it be true that silent leges inter anna, it is also as true, that
your majesty is in a double respect the life of our lawes: once, be-
cause without your authority they are but litera mortua, and againe,
because you are the life of our peace, without which lawes are put
to silence ... '
58. See particularly Sir John Davies, A Discourse of Law and Lawyers (1615)
in A.B. Grosart (ed.), Sir John Davies: Complete Works. Vol. II (London:
private circulation, 1876) at 275-7. In a different context, see John
Selden, The Duello or Single Combat: From Antiquitie derived into this
Kingdome of England (London: 1. Helme, 1610) at 21-2. For commen-
tary, see Donald Kelley, The Human Measure: Social Thought in the
Western Legal Tradition (Cambridge, Mass.: Harvard University Press,
1990) chapter 10.
59. Digest 1.3.17 (Celsus) Scire leges non hoc est verba earum tenere, sed
vim ac potestatem.
28 Law and the Unconscious
POSTFACE
between psyche and law. The two instances of the subject share the
fact and the sociality of language and gain their expression and their
representation through speech and through writing. The psychic
text and the legal text are comparable objects of interpretation and,
by virtue of the commonality of language, belong to the same insti-
tutional order of meaning. One could hazard that the law speaks as
if it were a subject, while the subject speaks as if it were a law. Lan-
guage, in other words, is irremediably social, a fact which necessarily
engages the psychoanalyst in the juristic enterprise of interpreta-
tion and more broadly in the tragedy of the dogmatic institution of
life: 'what does it mean to communicate? The reference to law sug-
gests a wide-ranging response: law communicates orders. And yet
normativity cannot be reduced to a mere play of appearances, it
mobilises a much more subtle set of human relations. Communicatio
is a substantive derived from communis. In other words, normative
communication implies making things common, making something
common which must not remain private.'82 Because the subject
speaks and because the subject's speech must be interpreted, lan-
guage implicates the psyche in the institutional order of reproduc-
tion, in the genealogical relay that is law for us.
The case of Lortie also allows the specification of a further site
of commonality between psychoanalysis and law. It is that of the
fantasm and of the image as the vehicles of subjective attachment.
The order of law is a theatre of truth. The institution is built upon
fictions, represented through images, repeated through rituals and
elaborated through the simulated categories of a collective subject
or will. The age-old war of texts is complemented and at times
exceeded by the war of images. Law relies upon images because it
is through images that the legal subject is most directly affected by
law. The power and hence also the danger of the image was the
primary force that motivated the various movements of reform and
counter reform within ecclesiastical history. The image was polit-
ically effective but also potentially corrupting, too great a love of
images (Iatria) would distract the subject from the dictates of law,
while an absence of images would deprive the law of subjects. Thus
the concern of lawyers to govern images and to regulate the social
forms of representation, the theatre and the ritual of government
and of law. 83 The image is cognate with the imaginary and it is
through the image that law is most directly linked to the mechanisms
PRELUDE
37
38 Law and the Unconscious
3. These two authors lend a tone and measure to these changes, in so far
as their writings expose official beliefs on the arts. See H. Berlioz, Les
Grotesques de la musique, 1969, Paris: eRNS, p. 223 ('Music and dance').
S. Lifar, La Danse. La danse acadimique et rart choriographique, 1965, Paris:
Gonthier.
4. This analysis is frequently reproduced. See, for example, G. Vuillier, La
Danse, 1898, Paris.
Tlte Dance of Law 43
5. The Mirror of Gesture. Be;'lg the Abhillaya Darpalla of Nalldikes Varll, 1936,
New York.
6. The example of the amulet is significant, because it concerns the the
mystical cutting up of the body. In part Christianised, this practice
was repressed by the discourse of culture, only to reappear promin-
ently in theory, at the time of the Reformation. Consider the learned
study of J. Wolff, Curiosus Amuletorum Scrutator, 1692, Frankfurt.
44 Law and the Unconscious
However much we may try to mask or deny the fact, our organ-
isations are the bearers of the emblems of Christianity.
The organisational experts who peddle this ignorance of our his-
tory do not themselves have any difficulty in elaborating and dif-
fusing imagistic themes which help to sell the myth of a demystified
development of industry. In first place is the theme of the stereo-
typical, liberated and self-sufficient individual, the rational and
methodical mass consumer, who has no historical reason for being,
but simply inhabits the globe as a freak of nature. These allegor-
ical propositions directly touch upon the question of the promised
future of the liturgies and of dance in the modern organisation,
because the past of the imaginary is supposed to remain in limbo,
just as the structural work of signification is now abandoned. The
tradition, which is to say the repetition of a Text - that organisation
of meaning through which myth constantly regenerates itself -
has been erased from the map and censored by the new dogmatic
sciences, and so the signs at work in the body also have to be
expunged. Organisational politics thus has nothing to say of the
benefits to be reaped from the history of the body, and at the same
time it denies that it manipulates human beings in the same way as
the archaic practices of Law, that is to say, as corpses. In such cir-
cumstances, it is deemed best to locate the political status of the
body as something unknowable, simply uninteresting, or, more
strictly, that should be abandoned to the amusement and distrac-
tion of psychoanalysts who treat the laughable subject of the phal-
lus and who, when it comes to institutional questions, are as ignorant
as are managerial organisations. Our earlier universe may have
disappeared, and the gestures and dances which derive from them
may no longer make sense, according to modern dogmatics, unless
they are tied to the spurious humanisation of work and of product-
ivity or are subjected to the dictate of a cultural happiness created
through the sale of leisure. Even at work, according to one recent
bureaucratic advertisement, we are supposed 'to smile and relax'.
Contrary to these pronouncements and predictions, the govern-
ance of gestures has an essentially religious meaning. The success-
ive laicisations of this domain have been adjustments and reforms
occasioned by socialised economies. They have produced their own
glossatorial systems, their own commentaries and eventually new
versions of legitimate text. This constant revision of the legal regula-
tion of etiquette is inscribed in the grammar of symbols, and in the
recognised signs that pass between political subjects who know the
The Dance of Law 45
meaning of the pleasure of Law; in short, it has major consequences.
The issue is that of resurrecting a simple and singular fact: according
to the teachings of the scholastics, the Western model of the solemn
ised body was constructed in the same ideal space in which religion
was defined. The result is a normality that we inherit and cannot
disown.
Finally, the man to whom the organisation pretends to address
itself is a phantom, a fictional man who does not really exist and
who no one has ever seen or ever will see. We are dressed from
head to toe in the garb of this fictive man and according to the rules
of the Text. Each of us can say: 'that man is me', and dogmatic-
ally that is true. That is the meaning of the early and constantly
repeated institution, and of the savagely civilised subject: one must
show this functioning subject how the ideal man, the man in the grip
of the ideal, should march. Religious legislation, the womb of the
modern sciences and laws, constructed a series of model regulations,
which are often metaphorical in their enunciation of the legitimate
forms of communication with the heavens and the sacred space of
the political. Their representations constitute an extremely fertile
ground to which the modern industrial organisation is indebted for
its brands and marks which define and divide humanity just as
profoundly as do climatic and geological structures.
The problematic of dance thus depends upon a tradition, upon a
vast system of laws from which both religious and secular litur-
gies are derived. The corporeal manipulations in question are tied
together and disseminated, in a more or less acute form as the case
may be, through a science of elementary signs whose consequences
are inscribed in a textuality which is referable ultimately to the Law
- of the Church, of penitence, of love. Like all other procedures,
dance realises a covert deal or bargain between the body and the
Law, and in the circumstances a sort of summary is implied or
repeated; dance acts, in short, as a contraction of discourse. This is
why liturgical phenomena, which recognised this, open up a direct
access to the question of knowing how both the theory and the
practices of dance communicate with the ideals which govern the
functioning of the body. We here come face to face with certain of
the political implications of the diverse textual combinations of tra-
ditional precepts. The mass of legal texts both signal and underline
the following: the legal order fabricates the human body. In other words,
to feel the rapture of the ideal, to be in conformity with the truth,
the body must be fabricated a second time. Institutions deal with this
46 Law and the Unconscious
second body. In the West, dance was also regulated in this fashion
so that it could coincide with the generalising of authorised ideas
and the diffusion of the imperialistic techniques of Law so as to
make the political ideal of the other body universal.
This essential theme can be the basis for the development of a
number of doctrinal observations:
Thus the honesty of the dance was governed by rules whose func-
tion was similar to that of the doctrine of penitence. They should be
combined with the rules of etiquette which were used to classify
choreographic exercises as legal procedures of biological repro-
duction at the heart of social groups. The other body is at one and
the same time the policed body - in penitential terms, it dances
'honestly' - of all textual subjects and the body of an other desired
according to the rules of etiquette.
On the strength of the above observation one can again raise the
importance of dance as a legalised spectacle. The success of theatre
and the development of the theory of ballet both advance a tech-
nique of alienation, typical of an ideological structure which has
been peculiarly efficacious in the West and which consists of treat-
ing the human body as a spectator-body. This political enterprise of the
pure gaze demands explanation. To project the other body, and the
ideal which supports it, not onto the imaginary of the body that
actually dances, but effectively onto the body of another, this other
being a specialist dancer, say a professional of the ballet, is a most
disarming strategy for organising a ceremonial division of labour,
and it has quite striking consequences. This style of celebration and
recognition of the Law has been systematically privileged, encour-
aged and used by all state forms since the Renaissance. Nationalist
regimes, brought to perfection by the cultural politics of modem bur-
eaucracies, have found a genuinely formidable technique, that of the
seizure of the rhetoric of love. Singly or severally, carefully chosen and
trained, the professional dances take the place of all the others; they
are themselves all the others; they are the masters of the language.
The classical theoreticians already understood this matter. Con-
sider again the following lines from Arbeau:
PEOPLE IN TEARS
which emanated from the doctrine of tears. This doctrine and prac-
tice was in turn confusing and paradoxical, sublime and systematic-
ally repressive of this apparently naive or spontaneous mode of
expression. The codification of manners, and the regulation of the
sphincter in particular, underwent social and historical variations
in accordance with the general evolution of the political or religious
order. These subtle variations have rarely been studied and yet
they should be kept in mind in that we are still a long way from
being able to account for or properly understand the science of an
ideal which prescribed, for example, that one should weep mystically
and not with real tears. The West retained its tears; it knew how to
contain itself, it knew how and why to behave in such a way as to
achieve that end, and yet this means little unless we know what
this continence concealed.
Once again, it is to religion that we need to return, not as an
arbitrary and superfluous form of government, but as a matrix of
symbols within which the casuistry of meaning can be found stated.
The Text proclaims the manners of weeping. This has become Christian
manners to the extent that Christianity has been, for the White races,
the means and the mechanism of a reversal. This branch of human-
ity has not simply been turned upside-down by Aristotelianism,
which founded the mediaeval scholasticism which both supports
and justifies modern legal science; it entered into a cosmogony of
the body and the soul, into the legend of a universe of vanity - of
division and of tragedy - in which humans exist so as to suffer.
Religion tied the Text to its most ancient strata, and specifically to
a knowledge of the construction of the melancholic body. Everything
that Europe inherited of the antique mythologies came through the
continuous succession, the unbroken genealogy, of its laws. That this
mythology was violently Christianised by the learned doctors of
the Middle Ages should not distract from the importance of the role
that myth played in the demarcation of our laws and sciences; a
fact that can be appreciated best by referring to the classical exposi-
tions of Melancholia, a much repeated and highly convincing image. lO
One can measure the distance that separates the mediaeval and
modern law of penitence (that which dates from the introduction of
the private auricular confession of the thirteenth century) from such
terroristic rites, by reference to a brief anecdote. It can be found in
a little known passage from Saint Ambrose: 'I knew some penitents
who furrowed their cheeks with tears, who stretched themselves
out on the ground so as to be trampled on by passers-by, and
who seemed like walking corpses, because their faces had been
so ravaged by fasting.,n
The canonical regulation which finally triumphed in Europe was
tied to very different forms of submission; it organised a meth-
odical, constant and universal form of correction, and it instituted
the repetition of gestures in a word for word liturgy, ordered in
advance to be pronounced or accomplished over an innocent and
victimless sacrifice. Above all, it stipulated the restriction of tears.
Christianised humanity had swallowed its tears and transformed
them into penitential words or rhythmic invocations accompanying
sacred processions.
Yet how does the doctrine which treats of tears bring the tech-
niques of dance into play?
Our body is not ours. The Law states what it should do. Such is an
interesting point, by virtue of which one can appreciate the import-
ance of the Christian influence upon the system of European law
of which we are the traditional subjects. Consider the theory of
spirituality. If the destiny of the body is somewhere other than
terrestial space, namely a space where the I that I am cannot speak
because this I is not dead, and if the body waits to become Other, that
is to say to enter the heavens where it will realise its amorous
desire in another body, this life outside time, the only desirable life,
has to be merited, that is to say negotiated, because we have to
have something to exchange it for. If the body suffers by virtue of
not being where desire resides, the desire to exist in the absolute,
then life on earth is one of waiting and of suffering. Moral theology
defined this tortured waiting not as a passive indifference but as
the patient resistance to the wound of the here-below, where the
path of desire is closed because our condition is to live under a Law
which our bodies resonate. Penitence as a medicine of the soul, of
that part of the soul which signifies the desire for union with the
12. See de Martino, Morte e pianto rituale nel mondo antico. Dal iamento
pagano al pianto di Maria, 1958, Turin.
13. Decretals, rubric of canon 26, cause 13, question 2.
The Dance of Law 53
ALIGNMENTS
of 'open theatre' than they are to give up their passion for leaders,
academic dogma, feudal attachment to firm or union, or the sublima-
tions of bureaucracy. Even without God, Churches of whatever sort
will always be Churches; they remain an indispensable reference
point for the dogmatic order of institutions. The French model
of the centralised State, despite the fact that it has been decentred
by international capital markets and displaced from its traditional
functions, retains its fetishistic allure.
The question of dance necessarily concerns the State because the
modern State (the apparatus of administrative pontiffs) is just as
interested in dance as the Church of former times. This offers yet
another clue to the nature of the relationship between dance and
politics.
Prom this perspective, there is a striking symmetry between, on
the one hand, those doctrines which establish the approach taken
by the state to dance and, on the other, canonical theories of penit-
ence or Lutheran ideas of government and salvation. Dance has
always been of particular interest to those who control the norms
which regulate the body because dance has to do with the basic
order of things, that is, with the division of society or the order of
enjoyment. Dance plays a vital role on the political stage. This point
can be developed in a number of ways.
14. Here the modern State is again linked to earlier textual forms of admin-
istration, a fact which can he addressed by reference to early legal
writings. See in particular the synthetic work of one of the earliest
centralists, Delamare, Trait! de la Police, 1705-10, Paris, vol. 1 espe-
cially, where the laicised control of the classical moral condemnation
of dance (as threatening debauchery), of dancers and other spectacles
is analysed. See book 2 (I, 2) and 3 (III, 1, 2, 3).
15. See S. Therault, LA Commedia dell' Arte vue atravers Ie Zibaldone de Perouse.
Etude suivie d'un choix de scenari de Placido Adriani, 1965, Paris: CNRS,
pp.16-17.
The Dance of Law 57
Thus, through the medium of dance, one can identify beliefs. Dance,
as categorised in the regulated categories of composition, serves to
memorise the ideal, to rehearse a particular version of the Law, and
to proclaim submission to an instance within the order of discourse.
It is a means of communicating with the ideal.
A discussion of bourgeois classicism, therefore, can serve as no
more than an illustration of much broader themes. So long as the
values of the Law, or belief in the divinity of power or the sacred
and omnipotent science of leaders are left untouched, culture
remains intact, because culture is nothing if not our stylised bond
to an absolute Other, it is the discursive idol to which any work of
signification refers. We would do well not to forget that the State
has a quality of immortality. The theory and practice of dance test-
ify to this super-endurance of the Text. Theatrical impotence points
to the same impasse as the reform of the State. It is not that ima-
gination is lacking; rather, the hypertrophy of mythological belief
paralyses all attempts at disengagement. Within the discourse of
the ideal, whose reproduction shapes us, everyone is engaged in a
work of imitation. Which is only natural. Leaders imitate greater
leaders, and inferiors imitate lesser leaders. The art of dance, an
essentially political art, in theory consists entirely of imitation. 16
Such is the classical dogma from which modern dance seeks to dis-
tance itself. No one would seriously dispute the point that decen-
tralisation is nowadays the rallying cry of centralised power. Just as
those professions whose business is authority now earnestly advoc-
ate a politics of participation, and just as the notoriously feudal
and self-censoring University preaches absolute and omnipotent
science, so the (supposed) questioning of beliefs within centralised
institutional organisation passes through the very symbolic locus in
which ideals are venerated. Indeed, within such a unitary system
it is sufficient simply to believe in the omnipotence of authorised
speech for the change to appear to work instantaneously. The future
of dance is linked to this political misunderstanding.
We might return, this time, to the eighteenth century and to the
defence of ballet proffered by Noverre, a theoretician who was
widely known in the Europe of the Enlightenment, but who dis-
appeared from view, and was then rediscovered and admired by
Cocteau and has become famous again today. His theories remain
16. Thus the express title of Noverre, Lettres sur fa danse et fes arts imitateurs,
1952, Paris: Lieutier.
60 Law and the Unconscious
(iii) Is dance a military act? This question points to another topic for
analysis, one which is perfectly expressed in contemporary revolu-
tionary discourses, either as a vehicle for anti-capitalist propaganda
or as a way of evaluating the possibilities offered by the auto-erotic
and dramatic expression of American inventions in dance, includ-
ing the notion of air dancing. Here, I propose only to address this
question with regard to the European tradition.
If dance is seen as part of the gestural system which is character-
istic of the religious and political disciplining of Westerners, and if
procedures for stereotyping human bodies are related to institu-
tions of government, it would seem appropriate to develop my refer-
ence to techniques of alignment by considering military discipline.
This linkage of dance and military organisations is hardly novel,
but so far it has been developed from a rather limited perspective,
dealing only with the theatrical or musical aspects of military cere-
mony. We also know, from ethnographic descriptions, that sacred
dances had a role in the staging not only of martial events as such,
but also in the enactment of ritual sacrifices or practices of posses-
sion. I am concerned to extract rather more from the question.
While the huge organisational systems which command us,
and in particular nation-states, wrap their subjects in a flux of lan-
guages relaying normative prescriptions, more traditional procedures
for communicating with Law might seem not only naive, but also
entirely incompatible with the participatory ideology of modern
industrialised society. The reality, however, is that there is no qualit-
ative difference between the manipulative techniques of advertising,
or the conditioning processes which sustain the liturgically organ-
ised mastery of appearances within contemporary organisations,
and the traditional ceremonial practices upon which modern organ-
isational structures are dependent. In each case, orders are given
and executed with the necessary rigour, and omniscient formulae
are heard for what they are by those who understand the game of
allusion. Most importantly, leaders receive their due. Bodies are
moulded to their function, they arrange and deploy themselves in
strict order, each finding its proper place.
Prescriptions relating to deportment, to the carriage of the head,
to the repetition and symmetry of bodily movement, to the struc-
ture of a gesture of touch, or to the techniques by which one sustains
The Dance of Law 63
The Church, which takes the side of the living God, marches with
pomp in orderly procession, not only so as to ornament and beau-
tify the cult of the divine, and for the edification of spectators, but
also so as to strike terror into the camp of the demons. The public
prayers and processions which it commands are like so many
battles waged against this enemy, in which she brings it home to
him that she is as terrible and as formidable as an army in battle
array. At the head of this holy Army there appears the standard
of the Cross, the sign of the Christian militia.... In the middle is
the body of the army, namely the clergy who fight by means of
their prayers, their songs and their modesty; the rearguard is
made up of the faithful of both sexes, who move the heavens,
attracting its assistance by their display of faith, fervour and
devotion.
20. Most notably in the important thesis of M. Sahlin, Etude sur la carole
medievale. L'origine du mot et ses rapports avec I'Eglise, 1940, Uppsala.
However indisputable this relation may be, its origins still remain
enigmatic, on which see the very erudite article of J. Chailley, 'La
danse religieuse au Moyen Age', in Arts liberaux et Philosophie au Moyen
Age, 1967, Montreal-Paris, Vrin, pp. 357-80.
21. He was the author of RntiOlmle divinorum offitiorum, 1572, Venice, whose
doctrine of processions forms the basis of a very interesting inquiry
by E. Wainwright, Studien zum deutschell Prozessionsspiel. Die Tradi-
tion der Fro,tieichllamsspiele in Kunzelsau und Freiburg und ihre textliche
Entwicklung, 1974, Munich: Arbeo Gesellschaft, pp. 21 et seq.
22. Rituel du diocese de Perigueux, 1763, Paris, pp. 207-8. 'Instructions on
processions' .
66 Law and the Unconscious
67
68 Law and the Unconscious
72
Protocol of the Love Letter 73
Why have the modern media abolished the conditions under which
the erudite transmission of messages was made possible through
a discourse which was not separate from its literal support? The
examples cited can help us answer this question by referring to the
play of the enigma and of the incomprehensible, and so focusing
attention upon the point of censure, the smoke screen of utility which
has served the managerial promotion of modern information-based
bureaucracies. Clouded by rationality and abusively transferred
into the theory of social communication, the technicist conception
of telecommunications systematically misunderstands the essential
elements of the message. I shall reiterate them briefly: (1) the theat-
rical staging of everything that serves to carry messages; (2) the
erotics of the message which underpins all social communication; (3)
the question of the protocol, in the diplomatic and notarial sense of
the term, which is intrinsic to the circulation of messages.
Scientism has methodically misunderstood the love of the mes-
sage as such. It is against this that I have taken on the role of evok-
ing a much more elementary question: What is a love letter? I shall
attempt to push this very simple inquiry to its limit, to the point
at which love of the message shatters into slaughter, to the point
where love of the letter becomes a form of madness.
3. M. Bejart, L'Autre chant de la danse. 'Ce qui la nuit me dit', 1974, Paris:
Flammarion, p. 181.
Protocol of the Love Letter 75
range of this process. On the bottom rung, the ready to wear: even
someone illiterate, through the intervention of another person, can
write love letters; in the European tradition, as elsewhere, there are
collections of standard forms which are periodically updated, simple
miscellanea of public writings. On the highest rung, there is lyrical
literature. Here you find the letters exchanged by Abelard and
HelOIse. As their recent editor, E. Konsgen has shown, these letters
are brilliant, but they are also embellished with eruditely bor-
rowed references. s All love letters say the same thing. They state
the truth of the messenger-text, the authentic truth, that which in
the nonsensical argot of legalism is recognisable as unique, incom-
parable, absolutely founded, which is to say founded upon the fiction
of the absolute Guarantor, put forward as such by a politically
imbricated discourse (as, for example, the sacred name of the French
Republic). Surprisingly the State's addiction to law can illuminate
the issue.
The Other is a flawless truth, it is an inescapable feature of lan-
guage that psychoanalysis refers to as the place of the fantastic, or
according to Lacan, that of the big Other. The truth of love has been
taken for granted, yet it comes from our own fictional construc-
tions, from our knowledge as captives or unconscious prisoners of
the fantasm. The beloved other, since we are talking of him, neces-
sarily makes his entrance into this secret theatre, while the love
letter is addressed, I would like to say written, to this 'inspired'
Other, by the captive, by one possessed by the fantasm. The monu-
mental Other, the Other of a flawless truth, unerringly presides
over this repertory as the fabulous space of the poetic dictamen. The
love letter is more than anything else a celebration, it addresses
itself there, to that space over there, or, in a baroque formula, it
works within a burning heart.
There are a number of problems raised by the relation of the
subject to letters. The lover writes like someone distraught, he says
too much. The unconscious manifests itself in fragments, repeti-
tions, debris. So too poetry is excessive in its constant return to and
play upon the same object, and above all else upon an extension or
prolongation of the same. The letter exposes the lover, the writer
lost in a labyrinth, and often functions, in various guises, in the
manner of a text which has gone astray and whose long hidden
addressee - the absolute Other - has to be rediscovered. A model
of the genre can be taken from Abelard: after his tragic separation
from Heloise, he composed, out of desire for her, a Book of Hymns
(Liber Hymnorum) addressed to a convent of the Order of the Holy
Ghost, a classic lyrical text interspersed with rondeaux. With that
example of genre in mind, there would undoubtedly be much more
to say of the literature concerned with courts of love, and not only
that relating to the mediaeval period but also the more or less cor-
rupt evidence of more modern authors such as Martial d' Auvergne
(fifteenth century) and Franc;ois Callieres (seventeenth century): the
question of the Other is posed there in the most brutal of terms, and
argued in very precise and precociously legalistic forms.
We can endeavour to take these remarks further by learning from
the Occidental tradition of the literate lover, the lover entwined in
her letter. If one wished to research fully the guiding thread that
binds together so many apparently disparate texts, one would per-
ceive that the question of destination marks the most delicate and the
most living aspect of the discourse of the lover, of all lovers. The
question: to whom are they addressed? in fact concerns a vast vari-
ety of texts, from the letter properly speaking, to the erotic songs
transmitted by the German Minnesang, to liturgical poems. By the
same token, the lover's letter presents itself as a peculiarly obscure
feature of a much broader literary genre. At the same time, the ele-
ment of the divine becomes much more apparent. Does it not amount
to the same thing, literally to the same thing, whether desire is
addressed to 'the Divine Maiden' (Puella Divina) or to the 'Celestial
Mother' (Mater Coelestis) or to the specific desired lover named in
a letter? Thus the love letter can also be inscribed within the genre
of the devotional poem addressed to the deified lover.
The letter, as a message addressed to an adored other, can easily
find its place within the lengthy lineage of the religious lyric, that
is to say, amongst all those texts which in some manner or another
address themselves to God. The famous biblical text, The Song of
Songs, is in many respects the fundamental articulation of the
poetics of Christian love from the time of the diffusion of the great
commentaries of Origen in the East and Ambrose in the West. It
clearly evidences the common feature of all these species of literat-
ure: it is that of ambiguity. The sole point of differentiation is that
of the play of the name within the address. What in the end is the
difference between the ascetic anthologies of the high Benedictine
Protocol of the Love Letter 79
Consider the picture titled Love Letters, reproduced from the work
of the English painter Stanley Spencer (1950), a very violent and
enigmatic piece of work (Plate 5). An ecstatic lover is kissing the
pages of a letter, while in his right hand he is holding, and caress-
ing himself with, an envelope. It is not clear whether the hand-
written sheets of the letter are those of his own letter or of a letter
which he has received, while the woman in the picture, guardian of
precious messages, is wholly preoccupied with the rites of trans-
mission. It is impossible to tell whether she is delivering or collect-
ing these sealed envelopes.
The picture is an extraordinary exemplification of a general prin-
ciple of human communication. The principle is a perfect exposi-
tion of the enigma and should therefore be addressed by way of
analytic theory and certain considerations which I have frequently
remarked upon in terms of unforeseen consequences. Contempor-
ary theories of the psychology of communication have difficulty in
representing this confusion, or better collusion, of the message with
the body of the messenger, when in addition - a supplementary
difficulty - there is nothing to prevent the extreme possibility of the
sender making herself the proprietor of the message and suffering
the consequences. What really confuses the frenetic schemata of
psychologism and forces their pseudo-theories of dialogue into error
is the fact that, via the intermediary of an other, the adored body
with which the subject has fallen in love, the sender and the adressee
of the letter, are one and the same. Such a finding should also direct
us towards certain relatively new reflections upon the social and
political domains within which legalism and the protocols of writ-
ing hold sway, namely that, short of liquidating humanity, power
will remain an enterprise based upon seduction.
There is a final and fundamental consideration to be addressed:
the lover, in writing, plays his part in enjoyment, and so too acts
out the drama of life to its end, to death. If the letter can be under-
stood as the message of the Other, that signifies that it is something
which belongs to the body of the lover. It is a matter of enjoyment,
although the question of pleasure, so often hardly raised at all, is
not the only issue. It is also a question of death or of an impossible
love contained in the mad desire to be one with the beloved. Classic
poetry pointed to this in all the formulae that derived from the
slogan: Domus una sepulchri, oh to be one with you in the grave.
Everything that writes, is written. What role is played by that union,
from the perspective of the final stake? In terms of psychoanalytic
theory, it is a question of castration, but also of the drives. Yet this
84 Law and the Unconscious
to. Origen has his place, albeit a bizarre place, in the historicist discus-
sions of the genesis of heresies. See, for example, H. Crouzel, 'Origene
est-ilia source du catharisme?' (1979) 80 Bulletin de litternture eccles i-
astique 3-28.
86 Law and the Unconscious
a text, in the way that one would hear news from someone. On the
contrary, he wants something very different. Because he knows that
the written text contains everything, he wants to know the whole
truth. The distance which defines and separates the subject and
inquiry is suddenly abolished; it is no longer a matter of the same
question. The scholar is involved with a text which knows and
which at the same time puts itself forward as a guarantee of truth.
This guarantee is given (given in the sense of a gift, and so in the
sense of play) in the letter as such, in the letter as graphic inscrip-
tion spreading itself as an order of meaning. What is written is
written. This observation can take us a long way. In scholarship,
literality is an element which genuinely constitutes the relation
between a subject and what is written, for the simple reason that it
is the unique object of knowledge, and knowledge (even in the
making of forgeries)13 authenticates itself. In other words, the guar-
antee of truth is included in literality as such. This is the nature of
a sacred text: it is the ineluctable seat of the truth, of a truth which
is always genuine, founded as it is in the Great Other, the absolute
Other, the imaginary guarantee.
In the context of scholarship, the amorous relation of a subject
to his text necessarily represents itself in a theatrical form: the sub-
ject is confronted by a conflation of the object-messenger with the
Big Other. It is thus a radical game that the text plays. One cannot
be a scholar unless one is in love, gripped by passion, by an all-
consuming passion. The subject is captured in a very radical way
by- the message of the Other. Put otherwise the scholar is fated to
discourse and to its endless extension: writing gets under the skin,
the space of law and of the entire institutional order, its indefinite
articulation of the truth, of any truth, establishes the guarantee of
Truth. According to historically specific yet very varied modula-
tions, systems of organisation take their place within the spectrum
of truth for the simple reason that the administration or manage-
ment of human governance, everything that unifies managerial prac-
tices and provides them with a foundation or legitimacy, requires
the mobilisation of desire. The political order has to function as a
form of seduction, or in other words it functions mythologically.
Such a proposition is even today held to be aberrant, paticularly
in France, a country still caught up in the Christian discourse on the
divine core of knowledge, and consequently heavily dependent upon
a very particular form of academia, one which is fated to preserve
the precious ideas of a Power which both loves us and saves us.
More than anywhere else in the industrialised world, it is necessary
to watch and put aside those subversive studies which, in demon-
strating the religious (and in specific cases Christian) character of
the legal constructions of State and society, would sow doubts in
the minds of good citizens, the faithful who believe but who at the
same time claim to be heretics, even anarchists, wholly disengaged
from the pernicious love of authority. If this apparently innocent lie
was observed dispassionately, what would become of our grandi-
loquent pretensions to rationality or our claims to a benevolent
simplicity in new methods of organisation; what would become of
the objective knowledge of the social and historical sciences, which
labour, so they claim, to soften the harshness of political relations
by opposing the high conscience of contemporary universities to
the barbarity and the fanaticism of outmoded religions? It is symp-
tomatic that in the domains of established legal historiography, my
writings are deemed to be unacceptable.
However, it remains my belief that it is precisely through the
study of legalism, in the historical zone where industry first de-
veloped, that it is possible to represent the phenomenon of repetition
which founds the process of political administration. Repetition,
that is, in its mythological sense, for the reason that human com-
munication has a largely unconscious status. Any problem which
relates to the social function of the message makes obligatory refer-
ence to such a status and ensures not least that humanity will never
be short of poetic reformulations of its founding narratives. Where
did the founding mythology of the message first take root, and where
90 Law and the Unconscious
is it located today? Legal history (in the very broad sense of legality
which I have propounded) is the sole means of elucidating this
occidental lineage; the sole means because the issues in question
are those of the production and reproduction of institutions. The
Romano-Christian identity of the legal apparatus is the mythological
guiding thread. It must, of course, be understood that a purely his-
toricising study of such an identity would prove nothing of itself.
It is simply a form of reference point for formulations of series, for-
mulations that could equally well be arrived at by other means, that
is to say on the strength of other examples of the evolution of dis-
course in other historical domains, as for instance in the Soviet
empire (which in reality is a close cousin of our lineage by virtue of
a common base: the theocratic Roman law codified by Justinian) and
in China. The fundamental point is this: How does one fall in love with
the political message? The history of the Romano-Christian Occident
is in these terms very rich, and its reproduction by a perfectly iden-
tifiable legalism, is of direct concern.
To be in love, and to be in love with the political message, are
one and the same movement: it is a question of that submission
which Rousseau talked of in terms of adoring the letter, of loving
the letter as if it were the actual body of the Other. The violence
of the great systems and on a smaller scale of institutional spaces
lies in an absolute subjugation, one which is capable of fabricating
such a mechanism of amorous fascination. I shall briefly note the
following:
95
96 Law and the Unconscious
98
The Masters of Law 99
see the very informative work of A.D. Chandler, The Visible Hand. The
Managerial Revolution in American Business, 1977, Cambridge, Mass.:
Harvard University Press.
3. It is significant that for legal historians themselves, so little use is made
of the work of Gaines Post, and in particular of his article 'Status, id est
Magistratus: L'Etat, C'est Moi', in Studies in Medieval Legal Thought,
Public Law and the State, 1100-1322, 1964, Princeton: Princeton Univer-
sity Press, 1964, pp. 333-67.
4. The canonical definition of culture is to be found in Decretal C. 26 q. c. 9.
5. An idea that can be traced easily by reference to current publications
such as the Intemational Management Review.
6. For an analysis of the disturbing fanaticism of some French psychoana-
lytic schools, see my remarks in 'Administrer la psychoanalyse', Pouvoirs.
Revue frmu;aise d'Etudes constitutionelles et politiques, 1981, pp. 201-18.
100 Law and the Unconscious
their logic. We are in the thrall of ideas that relate to the computer-
isation of norms, or to a submission to a dialogue of management
of the sort which speaks of 'Circles of Quality', to a confusion of
private and public speech. In terms of legal history, it should be
acknowledged that despite a number of valuable works, among
lawyers history has become something of a fiasco. In the current
climate of corporatism, it is difficult to locate accurately the reasons
for this. The history of law misunderstands itself by virtue of its
need to render the phenomenon of law palatable, despite the
implacable and violent rigour of the phenomenon itself. There has
arisen a well-behaved model of sociology which, strengthened by
the hostility of French thought towards any serious study of schol-
asticism, has opened the way to a historiography without hypo-
theses, which is as careful to conform to propaganda as it is fertile
in megalomaniacal programmes. Despite this disastrous context,
the history of law remains the only possible approach towards a
study of the dogmatic function in the West. It alone can address the
enormous questions which it raises and which directly concern the
spread of the industrial system.
The importance of the history of law can be identified only by
retracing the guiding principle of Western legalism which, as a his-
torical process of reproduction, is threaded through a lineage of
texts. The texts in question restate a science of law. Before unfold-
ing this proposition, it is important to clarify some questions of
vocabulary.
The idea of a science of Law should be understood here not in the
modern sense of the label 'science', which merely refers to a know-
ledge founded on the observation of measurable facts and governed
by a set of technical rules of application, as exemplified by beha-
viourist experiments which apply techniques learned in the labor-
atory to social life. The science which I have in mind is one which
deals with the most equivocal and enigmatic of knowledges, the
knowledge of a supposedly absolute power which is blessed with
a superhuman capacity for telling the truth unendingly. Other for-
mulae have been used to designate this science of Law. I will refer
to two examples here. One is taken from a twelfth-century source,
Quaestiones de iuris subtilitatibus: Templum Iustitiae 10 and the other
to. For discussion of this formula and its basis in the Corpus, see H.
Kantorowicz and W. Buckland, Studies ill the Glossators of Romall Law,
1969, 2nd edn, Aalen: Scientia, p. 185.
The Masters of Law 103
from Kafka, Before the Law.)] In other words, this science locates the
logical basis of a particular discourse, one which contains an oracle
of power. One text, originally from the Theodosian Code, but which
was taken up in Justinian's compilation and glossed at length by
the Renaissance scholars of twelfth-century Bologna, uses a not-
able expression to designate this very special discourse: digna vox
maiestate, or, to translate literally, a voice worthy of majestyP
We can set to one side for the moment the poetic aspect of this
formula and its metaphor of a supposedly absolute knowledge which
should be understood as the place which knows. This poetic quality
is common in classical presentations of the Western principle of
legality, and suggests a supreme justification, which we understand
completely because we too are savages, butchers of the imaginary
body of an imaginary Other, in which the power of truth is located,
and to which the iconography of legal transmission bears witness.
These poetic allusions isolate a mythical space which plays the role
of a logic, and to which other knowledges (those legal know ledges
which make societies work) refer in the context of a more general
Law. Poetry has this role because, for Westerners as much as for
other cultures, there is an absolute knowledge which, although it is
unsayable, must none the less be said. In other words, this poetry
has influenced the historical development of the rhetorical founda-
tions of Western legal thought. It signals a vital point, namely the
mythological assignation without which there would be no social
communication.
What would social communication be without speech, and what
would human speech be if it were not recognised or, more pre-
cisely, instituted? There is an essential truth in issue here. A legal
system is first and foremost a social technique of communication; it
is the only technique which can assure the entry of human subjects
into the order of Law.
At this point it is possible to begin to define the dogmatic function
more clearly. That which - following the history of doctrine which
the German school of legal thought has developed with particular
11. See the very poetic parable in Kafka, The Trial, 1976 edn, Harmonds-
worth: Penguin Books.
12. The text is found in Justinian's Code, C 1.114.4: 'Digna vox est maiestate
regnantis, legibus alligatum se principem profiteri, adeo de auctoritate iuris
l10stra pendet auctoritas'. On the mediaeval commentaries on this frag-
ment, see E. Cortese, La nonna giuridica. Spunti teorici nel diritto comune
classico, 1962, Milan: Guiffre, especially at pp. 146, 150 and 151.
104 Law and the Unconscious
13. Despite the extraordinary importance of his work, Savigny (who taught
Marx, influenced Bismarck and corresponded with Laboulaye> remains
persona non grata amongst French intellectuals. It is true that Savigny
was a descendant of Huguenot refugees in Germany, and was a reac-
tionary critic of the Revolution and of its legal intrigues, and dis-
pleased many. See, however, the erudite work of a young author: O.
Motte, 'Savigny. Un retour aux sources', in, 1980,9 Quaderni [iorentini
per In Storin del Pensiero guiridico modemo 555-74.
14. This extremely important author (1584-1659) was both a doctor and
a lawyer. His name is inseparable from the jurisprudences developed
by the school of Saint-Siege. He was also personal physician to Inno-
cent X and to Alexander III.
The Masters of Law 105
that industrialised society has supposedly left behind it, here face
their limits. Technology may be developing in a quite novel way,
but the same is not true of institutions, which will never be scient-
ific, at least not in any behaviourist sense of the term. Mass society
exists imaginarily or as a real violence: but this reference to the
mass, which is linked uncritically to the Freudian notion of group
psychology (Massenpsychologie) does not say everything; in particu-
lar, it facilitates avoidance of the difficult question of the new sym-
bolic universe of industrial society, in which legalism must inevitably
reappear, albeit in an indirect or masked form. The discourse of
Law cannot be abolished because it is the very condition of human
sexual reproduction. It is towards these and similarly powerful
issues that the history of law directs us:
(a) The dogmatic function in its relation to the history of the sciences.
Unless One reduces the dogmatic function to a caricature of the
perverse forms which it has taken throughout political history, it is
essential to note the influence of the law's development. The rela-
tionship between law and medicine is inscribed in the heart of the
ancient theory of science and sheds new light not only (as we shall
see) upon the idea of normativity, but also on the relationship
between modern sciences and the concepts of knowledge and truth
which one finds in legal circles. In this area, the work of Herberger
fills a significant gap. In some respects it supports remarks which
are occasionally made, especially by Michel Foucault, about politics
and knowledge in the sphere of medicine. Nevertheless, the place
of Roman law in the development of scientific discourse has yet
to be given close attention. Justinian's compilation, by means of
the ius commune encompassed by the Romano-canonical system of
glosses, provided institutions of knowledge with foundations for a
universal discourse of truth. This discourse was particularly remark-
able because, as the precocity of the twelfth-century Italian treatises
upon procedure suggest,lS it preceded the judicial abolition of trial
by ordeal. One might say that the significance of trial by ordeal was
that in any trial truth was a matter of an unmediated relationship
to God (or, in more psychoanalytical terms, it was a matter of an
imaginary and murderous relationship to the great Other), such that
the accused or the intervening party places his own body in the
scales. God will speak the truth through the hostage-body of the
15. For a very detailed example, see S. Kuttner and E. Rathbone, 'Anglo-
Norman Canonists of the Twelfth Century' (1951) 7 Traditio pp. 279-
358.
106 Law and the Unconscious
16. See Kantorowicz's conclusion to his article 'Pro Patria Mori in Medi-
eval Political Thought', reprinted in Selected Studies, 1965, New York:
Augustin, pp. 308-24.
The Masters of Law 107
20. On the principle of fictio figura veritatis, see the texts assembled and
interpreted by E. Kantorowicz, The King's Two Bodies, 1957, Princeton:
Princeton University Press at pp. 291-313.
21. This forumla crystallises a mystical doctrine of knowledge, and is
well situated within the scholastic economy by F. Gillmann, 'Roman us
Pontifex iura omnia in scrinio pectoris sui censetur habere', 1912,92 Arc1liv
f. katholisches Kirchellrecht, pp. 3-17, 106, 1926, 156-74.
110 Law and the Unconscious
terms, of the relationship between the human subject and the logical
place of the Other. The symbolic detour of bodily inscription, I
would suggest, is paralleled in the Latin legal tradition by a single
body which is used to found interpretation, the body in which the
knowledge of an absolute Other who guarantees all knowledge is
incarnated in the form of a sacrifice required of all interpreters. The
mediaeval theory of 'the power to create laws and to interpret
them' (ius condendi leges et interpretandi), was especially valuable to
administrative states in managing pontifical affairs, and reveals the
ease with which Roman law could be used for the banalisation of
writing or the de-multiplication of instances of absolute power by
the generalisation of social relations managed by inscription in the
name of an incarnate writing. 23 Seemingly, the Western mythological
ordering of culture defuses the violence contained in the binding
of human beings to writing and to texts, but it does so at the cost
of overvaluing the phenomenon of 'the literary' and of the artistic
more generally. This effects an important displacement, it sup-
posedly provides an objective safeguard for subjectivity in the form
of the timeless and purely informational relation between the human
subject and the message conceived in its Romano-canonical form.
The mystical alienation of the sovereign-mediator signifies that, in
the imaginary relation to the place that knows, one person alone is
supposed to act on behalf of all the others. More than that, and for
the same reason, if texts change their nature, then, in social terms,
they cease to be sacred. This delegation of interpretative power to
the sovereign produces huge effects: it gives the political the value
of the symbolic bond and opens the way to all kinds of institu-
tional arrangements. Most notably, it institutes an allegiance to an
absolute power and, in a precocious manner, makes thinkable the
sovereignty of what Marsilus of Padua called 'the perfect civil com-
munity', or, put differently, the advent of lay societies. 24
The managerial idea of a text-document, therefore, is no less
founded upon myth than those notions of textuality to which it is
23. The question of the legal State is thus posed by the pontifical sys-
tem itself. On the collection of texts which proposed the theory of
illS condendi et interpretandi, reference can be made to my thesis: La
penetration du droit romain dans Ie droit canonique ciassique, 1957, Paris:
Imprimerie Jouve, p. 50ff.
24. On this much misunderstood notion, see the classical study of G. de
Lagarde, La Naissance de ['esprit larque au deciin du Moyen Age, III, Le
Defensor Pacis, 1970, Louvain: Nauwelaerts, p. 326.
112 Law and the Unconscious
(c) The strategic capacity of Roman law. It is time that the concept of
Roman law - which is inextricably linked to industrial dogma - be
revived, not only so as to facilitate research into the reproduction
of industrially motivated organisations, but also to render such
research propitious in terms of the social effects of interpretation. I
do not attach much importance to contemporary observations on
the crisis of Western society, which do no more than rework a recur-
rent theme, and which assuage the socially prevalent fantasms of
guilt. Such observations shed no light on matters, if only because
clarification is the result not of the ready-made criticisms of special-
ist observers of this crisis, but of a more modest and classical line of
inquiry, characterised by patient and methodical erudition, into the
component elements of a specific mode of enjoyment, or, in other
words, into the savage specificity of what shapes the Law. Histor-
ians have a special duty in relation to this peculiarly difficult subject.
The fact that studies dealing with legalism - or, more especially,
Roman law - are dismissed by legal historians themselves, indic-
ates clearly where the problem lies. In my view, this dismissal is
a productive impasse. Censorship serves an essential function in
any society; it designates the anguished space of truth. Far better,
then, to give in to forgetfulness and to cultivate ingenious beha-
viourist doctrines which strive to reduce social problems to prob-
lems relating to the satisfaction of needs. Here, at this very point,
the discomfort is manifest. Behaviourism, which has all but colon-
ised management, does not want to know that humanity is subject
to a law of desire, and that the satisfaction of needs necessarily
proceeds by way of a space of fictions. Nevertheless, the fiasco
of predictions about the death of religion, or about the unification
of the world through trade, and so on, cannot serve as a lesson
because the will not to know our own anthropological status is
The Masters of Law 113
25. See his introduction to Handbuch der Quellen und Literatur der neuren
europaischell Privatrechtsgeschichte, I (Mittelalter 1100-1500. Die gelehrten
Rechte und die Gesetzgebullg), 1973, Munich: Beck, pp. 3-35.
114 Law and the Unconscious
26. See Das Mutterrecht, 1948 edn, Basle: Henno Schwabe, II, p. 63, III,
pp.981-2.
116 Law and the Unconscious
(2) Roman law offers not only a legal technology but also a principle
of universal legislation. This non-negotiable principle has served
historically not only to justify the rise of what we today call interna-
tional law, but also to justify the use of the equivocal phrase the
history of Roman law in the general theory of institutions, the phrase
being understood not only as a legal concept but also as something
of the order of what can be depicted as theogony. In other words,
Roman law is written into anthropology dogmatically, in the tradi-
tional sense of a science of God and the Universe, including and
instituting man as a microcosm. The tributaries of natural law and
the basic legal categories have served as the fulcrum of purely
logical justifications of the legitimacy of the system. It is interest-
ing to note in this regard that, because Western legalism lacks the
tools which would enable it to grasp the coherence of systems
which work with a different family structure, it considers these soci-
eties to be logically devoid of Law, as though incest was for them
referable to a non-legal system such as that which might be applied
to animals. In its conquest of the planet, industry has made use
The Masters of Law 117
29. The basic text of Pope Gelase, is contained in a decretal, Dis. 96, c. 10;
Gratian summarises it as follows: 'Auctoritas sacra pontificum et regalis
potestas huius mundi gubernacula regit.'
30. 'Bologne, monarchie medievale des droits savants', in Memorie per la
Storia dell'Universittl di Bologna, 1956, pp. 1-18.
31. Digest 50.1.33. (Modestinus), 'Roma communis nostra patria est'.
The Masters of Law 123
32. The rescript (rescriptum or rewriting) was the official answer of the
Pope to any legal question.
124 Law and the Unconscious
35. See 'The Sovereignty of the Artist. A Note on Legal Maxims and
Renaissance Theories of Art', in Selected Studies, pp. 352-65.
126 Law and the Unconscious
It is undoubtedly difficult, but it is not impossible, to examine
this elimination of initiations, the vestiges of which, such as the
Masons, have become virtually inaccessible, smothered as they are by
a literature of ridicule. The one exception to this is the specialist
historiography of Enlightenment Europe and beyond, which distin-
guishes traditionalist (essentially that of Britain) and rationalist (pre-
dominantly that of Latin Europe) branches of esoteric knowledges.
38. See the celebrated canon 21, called the canon Utriusque sexus, which
became law in the Decretals of Gregory IX, X. 5.38.12.
39. This doctrine was expounded by one of the first decretalists, Rufin, in
his Summa, ad. Dis. 40 c. 5: the text of which is reprinted in S. Kuttner,
Kanonistiche Schuldlehre von Gratian his auf die Dekretalen Gregors IX,
1935, Vatican City, p. 23.
40. See particularly Gratian, Distinctio 6, where a doctrine of dreams is
elaborated. On the details of the discourse elaborating the canonical
notion of culpability, see the work of Kuttner cited above.
The Masters of Law 129
absurd or arbitrary about what they were doing; they were simply
putting forward a dogmatic proposition which was designed to
relieve anxieties about the founding interdiction. It is only at the
level at which law deals with marriage as a question of chastity that
it is possible to appreciate the complexity of a question such as that
of incest, which depends not only on systems of kinship which give
representational content to interdiction or taboo, but also upon a
sort of policing of eroticism which serves to give effect to the uncon-
scious fantasms that are inevitably at play in all social interaction.
The history of legal regulation of eroticism in the West is of con-
siderable importance in undoing the claims of scientism, not least
because it helps to clarify confusions about the current develop-
ment of private law, which has become so changeable as to be
almost psychotic. I have already referred to the promotion of the
surgical free market in sex changes. It brings about a conflation of
the two separate registers of the unconscious economy, those of the
real and the symbolic, and poses a key question for industrial cul-
ture: does industry have the power to reform the unconscious? Seen
from the perspective of the legal regulation of fantasmatic enjoy-
ment, the various propagandistic efforts to suggest a legislation
adequate to reform the unconscious are a guarantee of only one
thing, namely a resurgence of psychotic forms of social discourse
and, beyond this discourse, a return to related psychotic forms of
murder. The textually based history of the related statuses of guilt
and of eroticism in the economy of law can still teach us something
essential about sociality.
CONCLUSION
Freudian narrative of the family. Let us touch upon one of the best-
known examples of this species of bureaucratic theology, the ancien
regime and its representation in terms of public law or 'policing' in
the works, for example, of Domat and Delamare, at the dawn of the
administrative state during the reign of Louis XIV. The centralism
of this state instituted the concept of an ideal governance with-
out frontiers, the logical governance of humanity at large. In this
regard, it must be understood from the perspective of a geographical
theology, one which conformed strictly with the hypothesis of a
providential government put forward by the mediaeval scholastics
in the form of the concept of imperium mundi or imperial world.
This concept prepared the way for the secular idea a general geo-
graphy (geografia generalis) whose history has been well elaborated
in the work of M. Buttner. 41 This history directly concerns that of
legalism, in the precise sense that it was the Roman and canon law-
yers who provided the Holy See with the idea of centralism in its
purest expression: Ecclesia non habet territorium [the Church does
not have a territory], an idea which in turn conforms closely to the
notion of territory defined in the Digest. 42 The significance of this
formula for an understanding of the French state is considerable.
Behind the admistration lies a belief in the omnipresence of the
State and the hope that it will guarantee everything, including
the sovereign who holds the place of the absolute signifier. The
relevant doctrine, that which celebrates and marks an omniscient
power, was well expressed in the principal theatrical formulation
for representing the Name of the Law as it lived in the administra-
tion: where the body is absent, authority is present (absens corpore,
praesens auctoritate}.43 There, in the immobile time of the structure,
41. See the remarks collected in his article 'Die Emanzipation der Geo-
graphie zu Beginn des 17. Jahrhunderts. Ein Beitrag zur Geschichte
der Naturwissenschaft in ihren Beziehungen zur Theologie', 1975,59
Sudhoffs Archiv. Zeitschrift f. Wissenschaftgeschichte pp. 148-63.
42. In canon law doctrine, the concept of iurisdictio served to define at one
and the same time the universal empire of the Church and particu-
lar ecclesiastical competences intra fines. The maxim thus elaborated
helps us complete the apparently paradoxical reference in a fragment
reported in the Digest which gives the following legal definition of
territory: a limited spatial competency to exercise the ius terrendi; from
which we derive the etymology of territorium from the verb terreo [to
terrify].
43. The formula is that of the twelfth-century decretist Huguccio in his
Summa, ad Dis. 94, c 1 (Bibliotheque Nationale, ms. lat. 15396, f. 94 v,)
The Masters of Law 133
134
Parenthesis: In Praise of Calligraphy 135
Later, as is well known, the printing press did no more than mod-
ernise and mechanise the manuscript tradition, that of the text written
by hand.
To evoke the manuscript as a work of art is to engage in a reflec-
tion upon calligraphy, or, literally, the art of writing beauty. A great
deal has been written, in predominantly technical terms, on the aes-
thetics of this art. 1 Obviously one hesitates, used as we are to treat-
ing the text as a document containing information, before talking
of the hand which draws. We forget the intermediary, the human
instrument or living tool.
I shall call upon my memories of my own palaeographic training.
The deciphering of abbreviations and letter-by-Ietter transcriptions,
the rediscovery of deleted, cut or separated words, all taught me to
forget the meaning, to take my place in the mediaeval scriptorium,
to recognise myself, minimally trained, amongst the copyists. Assidu-
ously attending to the shapes or forms, I found myself oblivious
to what I was writing. Similarly, in making copies of collections of
distinctions intended for twelfth-century students, I discovered a
musicality from which I was later able to deduce the form of inton-
ing or psalmody. The form bears witness to the religious character
of early legal scholasticism, and of its inability to understand the
texts, or the Significance, of that which was to be taught. 2 Somewhat
later, and by virtue of other avenues of experience, I was struck by
the love of the forms of the written. Because writing calls upon the
tradition of the artisan, of the artifex, it represents for the subject the
commitment of entry into the great affair of symbolic differentia-
tion, entry into the ties and alterities of images. Borrowing again
from the Hegelian description of the work of art, I shall say, in
relation to calligraphy, that it is a species of reproduction of oneself,
something that belongs to the sublime order of subjectivity. This is
what lends the great cultures of the letter and of the love of the
letter - from the teaching of the Torah to Japanese calligraphy -
their dimension of humanity and equally allows them to resist the
scientistic outbursts of our times.
1. See, for example, the collective work: Mise en page et mise elt texte du
livre malluscrit, Paris, Cercle de Librarie - Promidis; see particularly,
C. Sirat, 'Le plus beau manuscrit hebreu ecrit en France', at pp. 101-4.
2. An incomprehension which is thoroughly understandable given the
fact that the Corpus [uris, which then circulated in the West, described
institutions that had long vanished from feudal Europe. It was a ques-
tion of teaching a system of irreal rules.
136 Law and the Unconscious
8. The King of Kings governs the 9. God works through words and
King (Rex Regum Reges signs (Verba et Signis Efficax
Regit), emblem extracted from Deus). Emblem extracted
J. Bornitius, Emblematum from J. Bornitius,
Ethico-Politicorum, 1664, Emblematum Ethico-
Heidelberg, no 13. Politico rum, 1664. Heidelberg,
no 1.
10. The Spyglass (La Lunette d'approche) by Rene Magritte.
11. Zurburan, The Holy Face, 1658.
7
Hermes and Institutional
Structures: An Essay on
Dogmatic Communication
(1) REMARKS ON VOCABULARY: DOGMATICS,
COMMUNICATION AND THE MODERN HERMES
137
138 Law and the Unconscious
(A) The dogmatic component of man. The structural need for each
subject to develop a bond with the taboo
take a distinctive path in their entry into life. For human beings, as
members of the speaking species, this entry involves a second birth,
out of which a subject of speech emerges, and duly takes up its
genealogically constituted position in an order of kinship. This sec-
ond birth is a birth into an institution of speech, and it founds the
regulation of life in all societies. From this perspective, what is in
issue is the problem faced by each and every subject in elaborating
a relationship with the founding Interdiction.
Each human being has to live through a process of differentiation
and to take on human form in accordance with the law of the spe-
cies. This requires a principle which, to adopt a psychoanalytical
insight, might be conceived of as a law of division. There are three
essential points here:
(a) Division implies that each subject should pass through the experi-
ence of a symbolic void; or, in other words, that he should enter
into the dialectic of presence and absence - or the Freudian schema
of the fortlda - on the assumption that the object's disappearance
implies neither the ultimate disappearance nor the mortal mutila-
tion of the subject. The experience undergone by the infans is pri-
mordial in two senses: first, by breaking the fusional bond between
mother and child it founds a problematic of incest which is quin-
tessentially human, and which is therefore lived by all subjects;
secondly, it founds the entire symbolic structure of the subject by
replacing the physical presence of things with presence through
representation. In other words, the law of division, which imposes
- and dialecticises - a polarity of presence and absence, divides the
subject itself. The essential point is that the subject's relation to
Interdiction involves a play of representation.
(c) Finally, division implies that the subject should recognise itself
as the addressee of discourses, whether it addresses itself or is
addressed by others. If the differentiation of the speaking subject is
effected in relation to speech, it seems that the question of addressees
is a fundamental one for any investigation into the economy of
dogma because it problematises speech as the representation of an
other. The question who's who? which is implicit in any message, is
a testing of identities, and the stumbling block is the relation of the
subject to Interdiction.
(B) The secondary logical space which the West calls law
constructed in the same way and which wager their own stakes on
a comparable identity. Without such constructions, society would
be a fluctuating and, from the perspective of the individual subject,
unthinkable set of techniques of government and of kinship. This
entails a logical necessity: the linguistic Third must take the form of
a fictional subject identifiable with what I have called the Text. This
is the case whatever the mythological character of the given culture
or the form of its representation of the symbolic void.
Whatever might be suggested by the propaganda of a new era of
communication or worldwide management as supposedly ahistor-
ical phenomena, the industrial order of discourse cannot derogate
from the logic of symbolic transmission. That is to say, in effect,
that it cannot escape the logic of a Text which, sometimes enriched,
sometimes shattered, and sometimes transformed, transmits itself
as a history in which the biography of a trans-historical Subject is
played out. I shall not deal here with the theory or the history of the
fictional subject in the West, a history whose technical elements, at
least in the present millenium, must be sought in a general history
of dogmatism since the twelfth-century interpretative revolution,
that highly political and highly disruptive moment in the structural
evolution of the West. On the basis of a distinction between theo-
logy and law, or of a reworking of the political theory of images,
and a legal positioning of the distinction between words and things,
and so of the status of proofs of truth (all of which took shape when
Europe was converted to Roman law), the State emerged as a con-
cept which carried all the virtual elements, both theocratic and
laicised, of the modern organisation of Reference. I shall confine
myself to a few observations on this point.
First, we should note the following: a particular logical relation,
one which was produced by the representational repetitions pecu-
liar to the West, welds the industrial legal mechanism to the history
of Roman law as a history of institutional Reason. This relation cannot
be ignored because the ultra-modern industrial system cannot but
repeat it, that is to say transmit this particular form of legal consti-
tution as the principle of Reason. This constitution forms part of the
process of symbolic reproduction, or of the work of representation
in which, through genealogy, the West recognises itself. Taking note
of this, it is possible to extract and reflect upon certain aspects of
this history in order to understand how the complexity of commun-
icational phenomena surpasses the understanding offered by con-
temporary social and managerial sciences, which pay little attention
154 Law and the Unconscious
(a) The 'logos' which founds the community is first of all the dis-
course by virtue of which society, and first of all the human subject,
differentiates the world from words and, in doing this, institutes
the relationship between words and things while manoeuvring the
representation which binds them together. The representation which
creates the bond between word and thing - here, once again, we
encounter the Third of language - can only be understood by ref-
erence to the mediaeval system of dogmatics. To interrogate the
notion of founding 'logos' requires that we address the legal dis-
course of the papacy and specifically a text of Pope Gregory IX
which offered a normative definition of the distinction between
speech (sermo) and thing res. 9 To understand the representation which
establishes the bond between word and thing, requires that attention
9. The basic text comes from the official compilation of Gregory IX (1234);
and it remains the philosophical definition of language upon which the
Western legal tradition is based.
Hermes and Institutional Structures 159
(b) Recognition of the power of speech and its corollary, the con-
struction of the image of the absolute Other is the second implica-
tion of the maxim. It is necessary to appreciate that the fictive Author
of the Text is the institutional translation of the social principle of
alterity. The importance of the dogmatic elaborations which allow
a society to represent itself, by means of adequate images, as a
subject who speaks, stem from that fiction. By virtue of the relative
simplicity of the normative discourse of the Middle Ages, the work
of the scholastics, which is reasonably well known by virtue of
technical legal terms such as jurisdiction, empire, direct and indirect
powers, can teach us a geat deal about the ultimate meaning of the
structure of Names by virtue of which social power constituted
itself in the form of a fictional subject. Iurisdictio, Imperium, Potestas,
and so on are the elements of the construction of social identity as
the Subject of the Text, in the same way as the pope, the emperor,
the monarch, or the other bodies abstracted in the form of a fictive
person - persona ficta - present themselves as the representatives
of the absolute Other in a highly nuanced discursive construction
whereby, as representatives of this abstract Other, they are the
bearers of symbolic value. If one examines closely the scholastic
manipulation of these politico-legal notions, borrowed wholesale
from Roman law, the overall problem can be defined as follows: the
question of the symbolic staging of the fictive Author (most notably
in its legal form as Author of the body of the law) necessarily implies
160 Law and the Unconscious
(C) From the Author to the Father: the genealogical essence of the
institutional principle
10. This theme was developed by the mediaevals in terms of the sover-
eign being the Fatller of tile laws.
Hermes and Institutional Structures 161
a gift from a cleric kneeling before the throne. The gift is the book
of the law, which the cleric presents to the living emblem of Refer-
ence, in Roman law the Author. The picture shows the dogmatic
circuit in its entirety. Yet this miniature also symbolises a crucial
point which we moderns tend to misrecognise, namely the loneli-
ness of systems of representation.
The final point of this study is to insist on the impasse of human
communication. At the basis of this impasse is the question of the
image. In the same way that no human being can change their found-
ing fantasm with that of someone else, so societies are incapable of
decreeing a change in their foundational representation. In other
words, communication as a relation between humans and between
cultures is built upon compromise, upon assumed exchanges and
upon negotiated incomprehension, or upon conquest and annihila-
tion. The final reckoning of the reproduction of images is either
bloody confrontation or, according to the new warlike mode of man-
agerial societies, a massive desubjectification. This law of speech and
of disourse signifies, today as yesterday, that dogmatic procedures
of communication remain an essential feature of social life.
8
The Judge amongst
the Interpreters:
Psychoanalysis and
Legal Judgment
The machinery of Interdiction requires certain casuistical applica-
tions. This study has shown that at the very least it necessitates
the differentiation of the levels of interpretation. That is to say, it
requires respect for the forms which preside over the order of
places of discourse and their inscription in the theatre of the found-
ing Reference, or, put differently, that of the social Third. It is in this
sense that rituals can be understood as being an essential dimen-
sion of the judicial function. Before proceeding further, it seems to
me to be necessary to situate this function in the context of contem-
porary culture and to elaborate upon it in terms of a brief reflection
on the institution of forms.
The problem of forms can be understood in a number of ways.
One aspect of the Western theory of the State was that of the intro-
duction of the notion of art as a means of understanding it in the
context of works of art. What was at issue in that notion, as Gaines
Post has shown, was the recognition of the various non-technical
foundations of the State.! It is necessary to take very precise account
of this first version of power as art. I have remarked elsewhere
upon the importance of the emblems of Reference across the whole
range of a societies' aesthetic productions and I will here limit
my comments to certain other developments and specifically to the
effect of certain choices relating to urban planning and architecture
by means of which the game of equality before the social principle
of Reference is played out and whole populations are transplanted.
1. On the state as a work of art, and on the scholastic foundations of this
connection, see Gaines Post, Studies in Medieval Legal Thought: Public
Law and the State, 1100-1322 (Princeton: Princeton University Press,
1964).
164
The Judge amongst Interpreters 165
iurisdictio (literally the act of stating the law). It was tied to two further
technical concepts of fundamental significance for the development
of the state, imperium (sovereignty) and lex (law), and was funda-
mental to the diverse institutional domains of political action: juris-
diction was legislative power, jurisdiction was the power of the judge,
and jurisdiction was the power of the (Father-)confessor.2 Leaving
aside the political idea of legislation as it has been transposed onto
the idea of a sovereign judge invested with the law of the last word;
we shall take up instead the notions of judge and (Father-)confessor,
in relation to which the scholastic jurists developed a theory which
has been largely ignored by cultural historians, despite its consider-
able significance.
Jurisdiction is a concept which is split in two: one jurisdiction
is exercised by what is called the external tribunal (for externe),
and the other by an internal tribunal (for interne). The interpreter of
the external tribunal is the judge, that of the interior tribunal the
(Father-)confessor. What were the essential features of this now
somewhat opaque division which became one of the political and
religious battlefields of the occident up to and including the rise of
Protestantism? To what representation of the power of judging
did this schema respond in its normative mode of regulation of the
relation between the social categories of judgment and the institution of
the subject?
We shall not here set up an opposition between the two jurisdic-
tions on the false basis of the distinction between Law (which con-
cerned the external tribunal) and Theology (which concerned the
internal tribunal). Classical confession, defined by the Fourth Lateran
Council (1215) and confirmed by the Council of Trent (in the six-
teenth century), was not a simple prolongation of the doctrine of the
pardon of sins, but had the status of a jurisdiction. Such is to say
that the (Father-)confessor is also a judge and that, in consequence,
the function of judging is exercised in two dimensions, according
2. The canon law distinction between diverse jurisdictions raises some
complex historical questions, notably with regard to the interior court
of conscience, namely, the organisation of power over the subject. For
example: was a penitence of the heart, without oral confession, suffi-
cient? What value was attached to public confession? To whom could
the Pope, as the pinnacle of jurisdiction, make his confession? and so
on. For the basic doctrinal arguments on which the juridical organ-
isation of Penitence was grounded (and against which the Reformers
protested), the best introduction remains the Deeretals of Gratian (De
poellitelltia = C. 33, q. 3).
The Judge amongst Interpreters 171
r
the founding Reference
the private I
confession, auricular the (Father-)confessor
and secret I
the penitent
relate? How does one distinguish this position from the other ever-
encroaching figure upon the horizon of the social scene, the position
of the expert?
I shall restrict myself to recollecting that, within the Western rep-
resentation of structure, the judge occupies a pivotal space, that of
the articulation between the discourse of Reference, or the social
discourse of destiny (the social Fata), and the discourse appropriate
to the subject (the subject of the trial). Taking account of this point
of articulation presupposes recognition of the following: not all social
discourses occupy the same place. The principle of the limit governs
the organisation of Interdiction itself and, in more precise terms, it
demonstrates the practical consequences of such limitation by putting
the differentiation of the places of discourse into play. The social con-
stitution of speech is unthinkable outside this organisational struc-
ture. What is in consequence implied is a very precise regulation of
the order of places, such that the place functionally assigned to
signify the bond of Reference and to rejoin it to the discourse of
casuistry, is given the status of legitimacy and assigned the role of
signalling the function of the foundational 'in the Name of', the
token of office. It follows from this that all positions of expertise,
understood in terms of their goal of restoring subjective truth to the
subject - as is the case, for example, with the psychological discip-
lines - find themselves displaced in relation to the position of the
judge. No psychological practitioner, and I include in this category
the specialists in the social sciences, has the right, that is to say the
structural authority or dogmatic competence, to exercise the insti-
tutional power of the judge.
Psychoanalysis overturned the certainties transmitted by the cat-
egories established in Roman and canon law, and in moral theology.
It thus exposed the symbolic role of the conceptual constructions
which had their application in the two jurisdictions and in the
medicine of the soul. This does not mean, however, that the logic
of places should be taken apart or that the historical foundations of
this logic should today be abolished. Even the venerable Freud fell
into the trap of a psychoanalysis which emanated from the legit-
imacy of his place, as can be seen in the lecture to future examining
magistrates (1906): briefly, Freud showed how, by use of the method
of free association, the charge can manipulate a suspect into confess-
ing their crime? In our day, the capture of dogmatic power by the
forged. These two spheres are fluid, the sources of exchange and
also of illusory effects, and are subject in the last instance to the
specific corpus of legally expressed rules. In spite of the mediatic
doctrines which proclaim the advent of a unitary standard discourse,
the structure of the public and the private is still at work and con-
tinues to weigh upon the most traditional of rhetorical questions:
What is a case?
We shall start from the Latin word casus, which generally desig-
nates chance, but which in the Middle Ages also came to refer to
what Roman antiquity preferred to call cause (causa) and question
(quaestio). By virtue of semantic links, the verb cadere (of which
casus is the past participle) also progreSSively gives us: to fall, to
sink; to come to; to expose; to end; to finish. I shall schematise it as
follows: a case arises, it exposes itself to controversy, and then the
curtain falls. Other cases arise, and then further cases, undefined
and always new, but bound together by a universal principle of
rationality extant across the line of cases. Casuistry can thus be
thought of as a phenomenon of reproduction - the reproduction of
a mode of reasoning to which the very idea of Interdiction is ineluct-
ably bound. The life of the normative structure takes the form of
a succession of images in relations of analogy - cases. It is by virtue
of the work of the interpreter, a labour which Greek, and then
Roman, antiquity called rhetoric, that the technical and concrete
symbolic manoeuvres of the normative system are played out, and
deployed socially in the form of the exemplary. By mode of reason-
ing, I here refer to the Aristotelian notion of epagoge (epagoge), trans-
lated by Cicero as inductio, a word which also has the meaning of
to grasp, by direct intuition, the universal and the singular.9 Such
is the progress of the case, of any case whatsoever. In short, I shall
say that casuistry responds to the individuation of the Law, and
that this occurs in the diverse registers which we have described:
the individuation of Reason and of the principle of the Father.
To enter, as one must, into the entrails of casuistry - the expres-
sion used in moral theology is: to the marrow (medulla) - to enter
that space in a manner which can help us elucidate and understand
the respective roles of lawyer and psychoanalyst, it is necessary to
consider afresh the general problem which faces all interpreters
and in relation to which they situate themselves, each in their own
means for the judge and for the psychoanalyst. This banal distinc-
tion opens the horizon.
We shall reason in terms of the montages of Interdiction. To what
does the distinction between public and private respond in the
economy of the Roman power to divide? The jurist Ulpian provides
certain indications in elaborating the contents and specifying the
interrelation of the categories of public and private. On the side
of the public: ritual, religious and political functions (ceremonies,
priests, magistrates); on the side of the private: precepts (natural
law, international law and civil law).13 Put differently, the cat-
egories are not symmetrical, but rather relate to a hierarchy of
positions, to which the notion of Reference is the key. How does
Reference - in this case Rome, and the concerns of Rome, which
Ulpian evokes - become a Reference capable of founding something,
that is to say a discourse of foundation that maintains itself, that
stands (hence the status of Reference) and, from that, develops its
normative effects? Reference stands by virtue of the categories which
it is assumed to have engendered, as the category which defines
the order of categories, and above all else by virtue of that which is
public. Without ceremonies, without priests, without magis tates, there
would be neither anything Roman nor any precepts of law. We face
here directly the most extreme point of the institutional montage of
causality, the point where Reference is revealed as negativity,
absence, emptiness, which ritual and other religious and political
functions will give the form of representation, and thereby the power
to serve as symbolic foundation. To misrecognise this phenomenon
of reflexivity is also to miss the paradox of Reference, that it is
called into existence as the foundational representation by the cat-
egories that it has itself engendered. That is to say, if one does not
grasp this mechanism of supposition of the foundational axiom
of normativity, that the foundation of Law is the foundation of
social speech, then such foundations are doomed to remain incom-
prehensible and the logic of discursive places will be made the
object of numerous subversions. Let us continue. Transposed into
modern culture, the notion of that which is public signifies that the
social constitution of speech is at work, that it is constructed on the
basis of procedures and of places of discourse which in themselves
signify the condition upon which language depends: that speech
13. 'Publicum ius ill sacris, ill sacerdotibus, ill magistratibus cOl1sistit; privatum
ius tripertitum est . .. ex naturalibus praeceptis, aut gentium, aut civilibus.'
186 Law and the Unconscious
(b) The Oedipal scene and the trial. Research into the terrain of
encounter between two casuistries: judging and interpreting
Freud's discovery of the unknown key to the speaking being. For all
that, however, psychoanalysis did not fall from the sky, and in
consequence we have still to reflect upon the implicit axiom that
required the development of the two tribunals. I shall summarise
the argument in topical terms: genealogical Justice supposes two
different institutional levels of symbolic power.
The second Revolution of the interpreter destroyed dogmatic
psychology and, in consequence, devalued the ancient order of
jurisdictions. The power to institute humanity was built up again
by other means, but in conditions that were so confused that it is
difficult, when faced with judges who theoretically have a jurisdic-
tional monopoly, to situate the multitude of experts, and amongst
them psychoanalysts, who are called to exercise a casuistic func-
tion. The confusion becomes more explicit in direct relation to its
cultural irrelevance. Psychoanalysis has installed itself as the ulti-
mate discursive power preSiding over the explanation of every-
thing; it becomes a thought that is without thought, that is to say,
in more concrete terms, the manager of the human will to ignor-
ance. Symptomatically, this new religious discourse claims to set
itself above any interrogation of the foundations of the power of the
interpreter, foundations which also form the basis of the power to
judge in the name of sufficient Reason. From the space of this meta-
position, classically that of the divine essence, these analysts are
naturally drawn to ,the theme of that mysteriously autonomised
entity the Social. Rather than being attracted to the study of legal
phenomena, they want to ignore what brings the judge and the
psychoanalyst together, and also illuminates the Freudian discov-
ery: the exercise of a power of life and death over the subject. Mean-
while, whatever may be the historical circumstances that explain
this situation things cannot be left there; critique gradually imposes
a less complacent view.
We can now see the basic problem. Freud's exposure of the Oed-
ipal problematic as the province of Interdiction and of kinship is a
crucial feature of the genealogical power of States and cannot be
ignored. The casuistic function, therefore, must be revived, a fact
which poses the central question of Europe's cultural heritage: How
are we to think the institutional treatment of symbolic value in novel
terms? The traditional supposition of two modes of genealogical
Justice again becomes a reality, because psychoanalysis, in our soci-
eties, participates in tlte governance of the subject (whether or not this
structural fact is recognised by analysts). The problem is that of
198 Law and the Unconscious
(1) The judge and the psychoanalyst, and the two levels or modes of genea-
logical justice. It is possible to translate into socially understand-
able terms what initially and radically distinguishes the casuistry of
the judge and of the psychoanalyst when they address the stakes
of kinship.
The Oedipal problematic is always at issue, because we live with
images that we indefinitely work and transpose in the symbolic
labour of life. Reproduction, in conformity with structure, entails a
double exigency. On the one hand, to enter into speech, a person
must be instituted in their place as a subject, that is to say as a child
of the Text; it is a question of inserting the subject of kinship into
the foundations of discourse, into the principle of the Father, into
Reference as such. On the other hand, the human being's connec-
tion with the principle of the limit gives rise to relational practices,
which are themselves also subject to the law of discourse, through
which the bonds and the controversies of social exchange are organ-
ised. Here, in short, we have two schemes, two levels of institution
of the subject, which correspond to two modes of expression of the
structure of kinship.
The staging of the subject refers to what I shall call the mixing of
images, the primary Oedipal substance, which takes the form of
access to desire. The obligatory point of passage for this access is
well known, it is that of narcissism and of guilt. All cultures invent
transferential rites by means of which the subject is conveyed by
mediations (and most notably celebrations) destined to give form to
The Judge amongst Interpreters 199
(2) The judge and the psychoanalyst before the debt of the interpreter. One
can again advance critical inquiry into the distinction between the
two positions of the interpreter, by studying each one's relation to
the Third. How do casuists enter into their respective functions,
in such a manner that the science of just discourse would be the
instrument of their function, that is to say neither misappropriated
nor subverted? In terms of the structure of Interdiction, if the inter-
preters hold to the discourses of their respective domains, and rep-
resent the principle of the Father or the principle of Reason, how is
the judge or the psychoanalyst to be made to submit to the sym-
bolic obligation to pay the Third its proper dues?
To conceive what is at issue here - not simply the debt due on a
monetary loan by way of analogy with a contractual debt (which
here would be interpretation), but also a debt of representation (in
the relation between the casuist and their foundation), the abstract
debt of the bond to the Third - it is necessary to remember that
neither of the casuistic places is the place of the sovereign, the
hermeneutic place of the original Author, the absolute place of the
staging of Reference. Put differently, neither the judge nor the ana-
lyst incarnate the foundational axiom of interpretation; or, to recol-
lect the mediaeval metaphor for the State, neither can pose as living
writing. I8 Their position relates to that which is public, in the tech-
nical - functional - sense of this formula. Such are the demands of
the office of interpreter in the theatre of genealogical Justice. If such
is the first condition of non-perversion, there is still the question
18. The living writing, following the imperial Roman formula applied by
the mediaevals to the Pope: holds all the laws in the archive of his breast
(omnia iura habet in scrinio pectoris sui).
The Judge amongst Interpreters 201
19. I recall here the foundational Roman adage: Quod principi placuit legis
habet vigorem (that which pleases the prince has the force of law), the
model of formulae such as 'if the King wants it, the law wants it', 'the
King answers to no one'.
20. In French law, the essential text is the Code of Civil Procedure, ch. 1 on
the guiding principles of the trial; as, for example, art. 14: 'No party
can be judged without having been heard or called'.
202 LAw and the Unconscious
(3) The casuist and the principle of sufficient Reason. To continue with
the examination of the notion of reddere, for the casuist this means
to give back what is owed. We here encounter again the principium
reddendae rationis sufficientis isolated by Leibniz, the principle of a
sufficient Reason adequate to what must be given back. What can
one derive from this formulation, on the terrain of the two casuistic
forms evoked here, that of the judge, and that of the psychoanalyst?
What should one understand by rationem reddere? We shall discover
another side to casuistry, the problem of argumentation, which is
familiar to jurists who are traditionally trained in the theory of rhet-
oric. Psychoanalysts will also recognise the practical significance of
these considerations, granted that their professional duty is to give
reasons or to provide arguments.
I have already indicated how the question of the principle of
sufficient Reason should be set up in terms of the two structural
levels of Interdiction. This principle operates at two levels, that is
to say, it works simultaneously to stage the social representation of
the principle of the ultimate Reason and to make the dialectical
relation of the subject and the Third possible. Leaving to one side
the social theatre of Reason, we shall return to the second level, that
of instituting or symbolising the subject's relation to the Third. It
takes the form of giving legal status to what, remaining with the
perspective of the European legal traditions, I shall call the right to
object which all subjects recognise. What is this right to object? I
The Judge amongst Interpreters 205
The youth dies, lost in the lovelorn contemplation of his own reflec-
tion in the water's surface. He exhales his despair at being unable
to reach this 'shadow of a reflected image', namely, his own face. 1
Then, according to the poem: '0 utinam a nostro secedere corpore
possem!' A literal translation of which might be: 'Oh! that I am not
able to separate myself from our body.' Note that the text says 'our
body' rather than 'my body.' In other words, Narcissus addressed
his own image as though it were another person with whom he
nevertheless shared the same body. In so doing, he established the
indissociable, indestructible, bond between body and image.
The modern mind is so throroughly attuned to the calculative
sciences that it is difficult to accept that the body is made present
for the subject by means of an image. Even if this is accepted, it is
difficult to take the further step of admitting that the status of the
body is thereby modified, that in its translation by representation
the body loses its status as a biological object and becomes some-
thing fictional. In other words, the body is not the body. Its con-
struction has been transposed into the domain of the image; the
body which we inhabit is indissociable from the grip of the image.
At the same time, however, the elaboration of human speech
takes into account the peculiar fact that the body cannot be said
except in so far as it is in the grip of fiction (fiction here being
1. 'repercussae ... imaginis umbra . .. ' Ovid, Metamorphoses, 1985 edn, War-
minster: Aris and Phillips, Book III, verse 434, p. 110.
211
212 Law and the Unconscious
2. The verb insto (the present participle of instans), derives from sto. See
Ernoult and Meiller, Dictionnaire etym. de la langue latine, 1979, Paris:
Klincksieck, p. 653.
3. A differentiation which in the circumstances relates to the trilogy of the
image, the body and the word.
4. [quid vident, nescit], Ovid, Metamorphoses, verse 430, p. 111.
5. 'The mirror stage as formative of the function of the 1', in Jacques
Lacan, Ecrits. A Selection, 1977, London: Tavistock, pp. 1-8.
Introduction to the Theory of the Image 213
and image - leaving his delirium he cries, 'I am that one! I realise
it and my image does not deceive me.'7 In effect, Narcissus under-
takes the path of humanisation in the wrong direction, a direction
that leads to the abolition of the image and so puts an end to the
disembodiment of the body upon which the future of human
representation depends. Reasoning in terms of the category of
Interdiction it can be observed that the basic law of the speaking
being is one of division, and the most basic division is that between
word and thing in respect of the body. On pain of death, the human
subject must give up any attempt to undo this basic division of
human life. The first point, therefore, is that Narcissus' suffering is
that sorrow which accompanies our terror at being confronted by
the necessity of this division, which requires that we absent our-
selves from ourselves and then master the resulting absence.
Ovid's poem also helps us to conceptualise the relation between
image and absence. The significant lines are these: croceum pro corpore
florem inveniunt Joliis medium cingentibus albis. 8 In place of the absent
Narcissus, the story places 'a saffron-coloured flower surrounded
by white petals' which to this day we call the narcissus. What does
this floral memorial tell us about the relation between subject and
image?
At this point, and for good reason, the image is no longer held in
the gaze of Narcissus. The image is offered instead to the gaze of
thought, and it enunciates or witnesses a truth which is no longer
corporeally present but exists only as a trace, or as the mark of
what was. In other words, it represents an absence. The truth of
Narcissus' desire for his image becomes a commemorated truth.
The reader of this poem in praise of inextinguishable desire sees
that desire represented at the end of the story. Our relation to the
image, in other words, is quite different from the relation through
which Narcissus saw himself. We see the image as the trace of an
absent presence, or to use a phrase which Schopenhauer borrowed
from Jacob Boehme, we see the image as signatura rerum, the signa-
ture of the thing. 9 How should one read a trace, mark or image
which testifies to an absence?
I shall return first to the conclusion of the myth of Narcissus, to
the moment when the poem uses the metaphor of a floral memorial
7. 'Iste ego sum; sensi nee me mea fallit imago', Metamorphoses, verse 463, p. 112.
8. Metamorphoses, verses 509-10, p. 114.
9. This notion returns us to the long history of the theme of the book of
nature. A classic passage from Schopenhauer, The World as Will and
Idea, 1907, London: Kegan Paul, at pp. 284-97.
Introduction to tlte Tlteory of tlte Image 215
13. [corpus putat esse quod unda est], Metamorphoses, verse 417, p. 108.
14. Jacques Lacan, Ecrits, at pp. 8-30 'Aggressivity in psychoanalysis'.
218 Law and the Unconscious
15. [quotiens liquidis porreximus oscula lymph is, His totiens ad me resupino
nititur ore . .. Cum risi, adrides. Lacrimas quoque saepe notavi Me lacrimante
tuas], Metamorphoses, verses 451-2, 459-60, p. 110.
16. Etymologariu11l, 'humanae vocis sonum captans .. .'
Introduction to the Theory of the Image 219
17. This term returns us both to the idea of gathering together, conserv-
ing, and to that of suppression or abolition. It plays a very important
role in the development of Hegelian thought on negativity and the
dialectic. See the remarks of Hyppolite, the translator of The Phenom-
enology of Spirit into French (Paris: Aubier-Montaigne, I, pp. 19-20);
and also A. Kojeve, Introduction iI la lecture de Hegel, 1968, Paris:
Gallimard, pp. 554-9. J. Derrida addresses the question of Narcissism
and specularity in terms of the problematic of Aufhebung in Margins of
Philosophy, 1982, Chicago: University of Chicago Press, at pp. 283-8.
220 Law and the Unconscious
this object, not as a gaze upon the gaze which sees. With regard
to the theory of the relation of representation in the story of Nar-
cissus, it becomes apparent that the knowledge which the I has of
the I is a falsely reflexive knowledge: the I as a point of origin of its
own presence in the world is discovered only through this other as
object, namely its image. In strictly Hegelian terms, the source or
origin is here a result. 20
Second, what is the essential lesson of Narcissus' oscillation
between the recognition and non-recognition of his own image? The
problem is that of pure identity: how can one coincide with one's
mirror image, and who or what warrants this coincidence? This
essentially philosophical problem - and here some reference should
be made to the scholastic problematic of id cujus est imago (that of
which the image is an image)21 - gives us a clue as to the being of
the image for the subject. By this I mean that a transcendental ele-
ment is at stake in the relation of resemblance, an element which
has to do with something other than the concrete relation of resemb-
lance for a given subject or if I put it like this, the subject of the
face. This transcendental stake refers the subject - any subject - to
a guarantee of coincidence, or, more precisely, to the Reason of
signs, to pure alterity as the guarantee of the presence of the world
as a relation of meaning which is taken to be true. In other words,
the object of Narcissus' oscillation between the recognition and non-
recognition of his image is the guarantee of his divided being, the
foundations of truth, or the presupposition of the instance of the
third [tiercel which founds any relation to the object, the other-than-
self, and which, as we shall see, undoes any dual relation with the
object. This suggests that the structure of the human subject is a
structure of representation. Narcissus is faceless for Narcissus:
because he has no guarantee he is denied access to the mirror which,
in representing the Reason of signs, is always a transcendental
theatre. Narcissus is thus, ultimately, in the untenable position of a
divine creator, for whom the question of the mirror or of the guar-
antor simply does not arise.
Third, what makes the mythical circuit of speech work? A proper
understanding of the original scene of communication at the highly
abstract level at which Ovid places it, suggests that the answer is a
division or a cut rune coupure). In using this term, which was much
favoured by Valery,22 and which has enjoyed much success in con-
temporary philosophy and psychoanalysis, I take it to designate what
is at work in the reflexivity of the relation of self to self, namely
the division of the subject, which implies its presence in the world,
or, as I have already suggested, the mechanism of objectification
of the I as another for the I that sees itself. This presence of the self
as an effect, as an origin that is a result, is unavailable to Narcissus.
The mirror is a structure, or montage of speech and division. It
is a logical presupposition of human representation, and it signi-
fies for the subject. It signifies in two senses. First, it mobilises the
machinery of meaning, and constructs the subject hermeneutically
as the interpreter of its own representation. Secondly, according to
the juridical meaning of signification, division notifies the subject
of an irremediable loss, or, according to the Hegelian category of
negativity, the torment of origin. Indeed, a Hegelian phrase summar-
ises the subjective status of the dividing cut: 'separation from origin'
[Trennung von dem Ursprung).23 In these terms, Narcissus' futile des-
pair expresses the horror that follows in the train of non-separation.
The material of narcissism is therefore an ineradicable given of
the organisation of all social bonds. Again, Valery is instructive:
22. 'It is an extraordinary fact that we talk to ourselves and that this
discourse is indispensable to us ... Who speaks? Who listens? It is not
exactly the same person ... This voice can become (morbidly) a com-
plete stranger. The existence of this speech of the self to the self is the
sign of a cut. The possibility of being several is necessary for reason,
but also used by it. Perhaps we take the image as other to the impulse
of the mirror', Valery, manuscript edition, 1958, Paris: eRNS, 1918-20,
vol. 7, p. 615.
23. The formula relates back to what Hegel says of the relation of parents
to children: 'the piety of the children with regard to their parents is in
its turn affected by the emotional contingency of their having become
from themselves, or in themselves, in the form of an other who dis-
appears so as to attain a being-for-itself and a conscience proper to
itself through its separation from its source - a separation in which
this source dries up.' Phenomenologtj of Spirit, VI, A, vol. II at p. 24.
One could say that the origin suppresses itself.
Introduction to the Theory of the Image 223
24. [Car, je m'aime! ... 0 reflet ironique de Moi! 0 mes baisers! lances a la
ca/me fontaine . .. Faut-il rna vie a ton amour, 0 spectre cher?) Valery, in
one of the versions of 'Narcisse parle' [Narcissus speaks], in Oeuvres, I,
1957, Paris: Gallimard, pp. 1558-9.
224 Law and the Unconscious
the other to the self, and of the other as self. The material of nar-
cissism is the pillar of both subjective and social identities.
The question of the image is not only a question of the alienation
of the self. Alienation, which is only one aspect of the problem-
atic of specularity, is an articulation or transposition. It makes the
articulation of subject and institution - the symbolic - thinkable. The
symbolic has to be representable; and, given this necessity, it has to
reproduce the original scene of communication - the divided sub-
ject's relation to the other of the self - in order to modulate and
develop it at a level which transcends or exceeds the subject. The
metaphorisation of alienation is the foundation of symbolic organ-
isation. There is more to the image than the impasse of the self
because the instance of representation, which has to do with the
image and which might be termed the imaginal, constitutes the basis
or the starting point of this transport of metaphorisation. In other
words, for the imaginal the symbolic is already there.
If identity emerges from the elaboration of the narcissistic
impasse, this elaboration, which creates the similar as a term of the
dialectic of the mirror, would be inconceivable for the subject as
such were it not for the cultural use of the mirror. Focusing on the
structures of Western culture, my analysis will develop two themes.
First, it reveals the fate of the narcissistic structure by looking at its
encounter with the principle of institutions, that is, with the sym-
bolic order of a particular society. It then returns to the question of
the mirror as a presupposition of metaphorisation, the aim being to
define the contradiction which requires us to think of the mirror -
or, here, society as it presents itself as a mirror - as being capable
of fulfilling the function of representation, or of holding an image
up to the subject.
the legend of Veronica, who in one old version is said to have met
Jesus, who asked her for a piece of cloth, pressed it to his face, and
gave her back the cloth imprinted with his image.27 In another, medi-
aeval, version, which is concerned with the suffering of Christ and
which has taken over the modern tradition, Christ's self-portrait
is presented rather differently. The story tells of a woman from
Jerusalem who wiped Christ's face as he ascended Calvary; the
image of Christ remained imprinted on the cloth. This produced
the true image (vera icona) of the Saviour. The name of the legend-
ary heroine of this episode of the Passion is taken from the anci-
ent tradition, Veronica, which according to Greek etymology means
bringer of victory, is also the name given to the veil bearing the
image of the Holy Face (the veronica). Notice the semantic shift,
from the name of the legendary saint to the Effigy of Christ (Effigies
Christi), to the prodigious image which was imprinted on the veil
and venerated by pilgrims in the Middle Ages.
The representation of alterity - in this case the Holy Face, the
figure of the absolute Other which was invented by Christian soci-
eties - organises the offer to the subject for which it metaphorises
the other of the self and the other as self. For each subject who is
of this culture, this representation founds the second order of the
image, and it is by means of these procedures that the institution of
images is inaugurated. Liturgies and rituals bear witness to this
shift in register. We are no longer in a relation of symmetry, or a
point for point correspondence with Narcissus' impasse with his
image; we are dealing with the advent of the other, not of the self
as an other but of the great Other who bears the imprint of the
divine, which pilgrims came to admire. We should attempt to define
the terms of this change of register.
27. On the history of this legend, see J.A. Robilliard, Dictiollnaire de spiritual-
iM ascetique et mystique, 1964, Paris: Beauchesne, sub Face, cols 27-8.
Numerous other indications can be found in A. Chastel, 'La Veronique'
1978, Revue de rArt, 71-8.
228 Law and the Unconscious
The holy object, the divine self-portrait, the true icon, or painterless
painting, is given the Greek term acheiropoietes, or works made
without the intervention of the hand, the term which in Byzantine
Christianity was used to designate the most important icons. We
may leave to one side for the moment the works of classical paint-
ing, and remain with the reliquary of miracles which was exhibited
in Saint Peter's in Rome and venerated by the tradition throughout
the Middle Ages.
The ritualistic or liturgical staging of the subject presupposes a
primary element which is often overlooked. This element is the sine
qua non of the prodigious image, the precondition withot which it
could neither come into being nor produce its effects; namely, the
construction of an uncrossable distance, an irreducible gap, or a
void which cannot be filled. In common with all holy dialectics, the
believer's veneration of the Holy Face presupposes a separation
from something incommensurable. The metaphorisation of pure
alterity by the representation of an absolute Other, which there-
by acquires for the subject the status of a transcendent image, is
effected by assuming that which tore Narcissus' in two: a separation
from self. The representation of the Holy Face is first and foremost
an apologia or defence of the gap, and it is on the basis of this
rhetoric of division that the divine can work subjectively as a meta-
phor for the void and for the gap.
What follows depends upon the demonstration effected by the
Veronica as a mirror in the second order of representation. What
is this demonstration? First, that the overcoming of Narcissism is
nothing other than a form of accession to a limit, or more exactly
to the principle of limitation. In cultural terms this is precisely what
was at issue in the veneration of the divine portrait; it was a means
of setting the subject on the way to a recognition of this principle
of the limit. Reasoning in modern terms, one might say that to
admire oneself in the divine image gives the key to the image of the
self as an unattainable image. This mode of subjective access to the
limit, to socialisation through an essentially religious structure, is a
condition of subjective life; it institutes the separation between the
self and its image.
The legend of the Veronica shows how the divine image was intro-
duced into the narcissistic relation. In constructing the void through
232 Law and the Unconscious
the very fact of its own instituted place, the absolute Other is the
figure that guarantees the principle of alterity and the procedures
for the metaphorisation of the image of the other than self and the
other as self at the level of the institution. The example of the Holy
Face allows us to identify what is in issue for the subject in the
scene of division which is thereby projected on the social stage. We
can now develop this explanation so as to grasp the extremity
involved in the power of staging the absolute Other, or of presenting
the absolute specular Object to the subject.
The logic of representation is such that the various elements or
indices of the problematisation of the mirror which we have just
invoked, once they are mobilised at the social level, are referable to
this scene of division. In particular, if the status of the absolute
Other is one of specular -presence, this mode of presence suggests
the way in which culture manoeuvres the origin or the source of
what presents itself as the image of the subject, of the outcome
which the structure of the mirror produces as origin. The question
of origin is therefore an effect of representation, a question which
puts the seeing subject in relation with the enigmatic presence of
the other as being, according to Ovid's formula, 'that which he sees
but does not know'. To echo the language of the Metamorphoses, I
shall summarise what is in issue for the subject in the scene of the
Holy Face by reference to an extract from one of Borges' poems: 'the
mirrors of the Eternal. _. That which has neither when nor why.,31
What this means is that the operation is one of reversal. The
absolute Other of division becomes a figuration of the original Other,
it is, yet again, an origin as a result. It is an effect of representation
which is configured as a scene of origin. This observation takes us
back to the foundations of the question of narcissism; the problem
of representing the self for the subject, in which the origin is no
more than a supposition which makes the image of self plausible.
More precisely, the problem of an unrepresentable representation
of self - a problem which Louis Marin's study of the Veronica
laboriously revolves around32 - is not the problem of working out
whether the unrepresentable can in fact be represented, but rather
that of working out what is so unattainable for the subject in this
38. The story is related in M. Tardieu, Les Paysages reliques. Routes et haltes
syriettnes d'Isidore a Simplicius, 1990, Paris-Louvain: Peeters, p. 12.
240 Law and the Unconscious
and hence in the real father. Therefore, the cultural representation
of the Third, or, in other words, the Father, is a prior offer of iden-
tification, an offer which is made to all subjects of the culture in
question. What stands out in the process of identification is the role
of a Third which serves to mediate subject and image. The story of
Iamblichus reminds us of the binding of the subject and of the social
construction of the Father, as well as of the central role of identi-
fication that the Father plays in the complex Oedipal prehistory of
the subject, a prehistory which, it should be emphasised, is inscribed
in language and for this reason mobilises the cultural resources of
representation. In the story of Iamblichus' miracle, knowledge of
the name was necessary before the apparition of the gods could be
invoked. What this means is that we are faced here with the articula-
tion of the subject of language and society, with the relation between
man and culture, an articulation which literally carries life, and
gives a symbolic foundation to being.
The structural function of the father in the anecdote of the philo-
sopher allows us to glimpse a further stake of these identifications,
namely that of Reason. Ovid begins the story of Narcissus by evok-
ing the onset of a delirium (novitas furoris).39 This is precisely what
is in issue. Consider the Austrian poet Georg Trakl, the author of a
text which, in the context of the narcissistic scene, evokes the mad-
ness and impending apocalypse of the subject: 'But as I descended
the rocky path, madness seized me and I cried out loud in the
night; and when I bent down with silvery fingers over the taciturn
waters, I saw that my face had left me. And a white voice spoke to
me: Kill yourself!,40
This poetic fragment brings us to the most extreme point in the
question of the mirror, the atomic core of the constitution of the
subject. This is a question of Reason, or of the principle of life in
and by representation.
(2) The relational nature of identity and the mirror. Observations on the
symbolic status of the mirror. Any reference to the image or to the
mirror refers to something which is embedded in that obscure space
of the known in the unknown, or what, since Freud, we have come
to call the unconscious.41 Whatever has to do with the phenomenon
(a) The mirror and its relation to speech. The mirror exists only for a
subject of speech: it presupposes the universe of speech. The mirror
244 LAw and the Unconscious
(b) The mirror as a cause of images. I would like now to draw atten-
tion, at the most banal of levels, to what can be gleaned about the
phenomenon of the mirror from the words of Narcissus who sud-
denly recognised that 'I am that one; I realise it and my image does
not deceive me.'44 It should be noted both that the mirror produces
an image, and that we love this image. What should be understood
from this is that at the level of causes the image has a double mean-
ing: it evokes both a relation to the principle of causality and a bond
of love.
Thus the story of Narcissus can serve to clarify certain essential
features of the notion of an image, but only on the condition that
43. K. Schipper, Le Corps taoiste. Corps physique - corps social, 1982, Paris:
Fayard, pp. 137ff.
44. [Iste ego sum; sellSi nee mea laUit imago], Metamophoses, verse 463, p. 112.
246 Law and the Unconscious
First, the relation to the mirror is a reflexive one, such that the
mirror itself becomes inscribed in it, as the history of the Holy Face
well shows. The gaze can only possibly return upon itself by virtue
of reflexivity. The necessary route of a gaze which sees itself is a
reflexivity which orchestrates the dialectical schema of the causa-
tion of the subject. In a cultural context, or at the subjective level of
the speculary relation, the subject is caused by an image which
makes him return to himself. Reflexivity, in other words, is the
agency of a schema in which the constitutive principle of the Third
takes its place. It is from this, by way of the metaphor of the mirror,
that the relation of identity emerges and man is introduced to caus-
ality as the externality of the subject.
45. [Isla repercussae, quam cernis, imaginis umbra est], Metamorphoses, verse
434, p. 110.
Introduction to the Theory of the Image 249
(3) The mirror as a metaphor of the limit. The mirror - or what I call
a mirror - is an integral part of the arrangement of the principle of
life in and through representation, and it opens into a process of
symbolisation which is linked to the phenomenon of language.
Institutional systems constitute the normative frame within which
the human being encounters the social structures of Reason: at the
same time, in assuming the risk that this structure might collapse,
the human being encounters the possibility of its own negation as
a subject of the Reason of images or of Reason in general. In these
terms, if we relate the symbolic status of the mirror to the principle
of Reason, we cannot fail but encounter the problem of Interdiction,
of 'speech between' or by interposition. And, in those terms, the
mirror can be studied as a discourse of separation, that is, in its
relation to the problematic of Interdiction, which is nothing other
than the overcoming of narcissism, the mirror is the form of acces-
sion to the limit.
This leads us to a question that the mirror can illuminate in terms
of the play of Interdiction at the two levels of representation. On
the one hand, the mirror organises the subject's asymptotic point:
the subject, separated from its other than self, can never return to
its image; Narcissus' tragic demand is doomed to failure. On the
other hand, at the Oedipal, familial, level, this means that, on the
basis of the narissistic division (the separation from the other than
self), parents serve as the mirror for their children in that they
represent the principle of division by means of language.
We also know that the mechanism of identity is such that in
representing the subject, the symbolic third - that is the third of
division, the representation of the principle of alterity - arrives
(according to the Ovidian formula 'himself the same with himself')
at the place of the 'with', that of the mediating third of the narcis-
sistic relation of the subject with the other than self. As the example
of Durer well shows, the identification of the subject requires a
subjective inscription, or inscription in the non-knowledge of rep-
resentation, of the mediating Third itself, and in this instance
the Figure of the Saviour. In other words, the constitutive Third
of division can only operate on condition of also being the place
of the image.
At a subjective level, clinical experience in psychoanalysis readily
confirms the intensity of the identificatory stratagem: to the extent
that they are objects of love, parents have a narcissistic vocation,
and are called to the place of the narcissistic image for the child. We
Introduction to the Theory of the Image 251
touch there upon the subjective economy of the limit and upon
problems of treating narcissism which the social translations of
Interdiction are charged to resolve through the unending work of
the interpreters. At an institutional level, as Freud demonstrated in
relation to the phenomenon of group identification with a leader,
the person who occupies that position is in the place of the ego
Ideal for each of the members of the group. Finally, the parental
function - by which term I refer to the generic genealogical func-
tion common to all adults who come to this place - is founded on
the structure of representation, on the montage of the Reason of
images. The parental function is at one and the same time both a
form of relationship to the child, and also plays the role of the nar-
cissistic image for the child so that the process of identification can
be put in motion. Adapting a formula of Lacan's, 'a man's desire is
the desire of the Other', we can say that 'a man's image is already
the image of the Other'.
47. Isidore of Seville, Etymologiae, II, 22: ['Ipsa est philosophiae species, quae
Logica dicitur, id est rationalis definiendi, quaerendi et discerendi potens'].
Introduction to the Theory of the Image 253
and thereby claim that life can live in ignorance of the institution
of distance. This is a crucial point: the institution of distance has
abandoned the West. This accounts for the considerable theoretical
difficulty, not to say impossiblity, of recognising the logical beyond
in which the reason of images and of language is founded. In this
beyond, there is a logic which is not Aristotelian; in it, man con-
fronts a category of nothingness, the void, negativity. Here we reach
the most extreme point of the question of representation, at which,
one might say, it is subjectively incandescent. What is in issue is the
construction of a discourse on the cause of causation, the construc-
tion of a principle of causation as such so as to make society perform
its anthropological function in relation to each and every subject.
It is possible to represent what is at issue schematically. Human-
ity confronts the speechless void. To establish foundations is to erect
a screen to protect us from the void. Upon this screen are inscribed
all the historical and mythological stories of the world. This is the
dimension of the fantastic; the logic which operates at this level can
be understood as the fantastic beyond of institutions. Western his-
tory is full of attempts to delineate this logic. Two examples in
particular stand out: Pieo della Mirandola's project for a poetic
theology, and Vico's attempt to restore to law the poetic dimension
which sustains it. We have now, using different means, to discover
what this fantastic dimension and its structural principle hold for
USi that is why we have to rethink the question of mythology.
Bibliography of Principal
Works by Pierre Legendre
BOOKS
255
256 Law and the Unconscious
SELECTED ARTICLES
257
258 Law and the Unconscious
Fates. The latin Fata or Fates, the daughters of necessity, designated a life
lived before the law, a life spoken in advance by the discourse of truth, the
destiny of the subject captured by the institution. In classical terms, the
Fates (Lachesis, Atropos and Clotho) were born with each individual and
dictated the course of his or her life from birth to death. The discourse of
the Fates was the speech of the oracles, the portentous speech of a destiny
opaquely and irredeemably spoken in advance. In Legendre'S terminology,
the discourse of the Fates is the founding speech of the law for each and
every subject. The Fates dictate both kinship and sociality, they determine
in advance that we are born into a family and into an institutional order.
The function of the Fata can thus be divided into two aspects or levels. The
familial fates are those that institute the subject within the normative order
of institutions, they dictate the paternal power of the father and the com-
parable authority of the sovereign. The familial fates inscribe a genealogical
law, the institution of the family, into the soul - the imaginary - of the
subject. The legal fates are those that bind the institution to the order of a
divine truth, they are fate in the sense of fatality or foundational speech
dictating the limit of what is human in relation to the divine. Fate in this
context refers to the normative social discourses which institute subjectiv-
ity: it is the western subject's fate to live in relation to legally designated
origins and authorities.
Image. Both state and law, in Legendre's definition, are 'montages' or com-
plex assemblages of images. The political order, in other words, depends
upon the manipulation of subjective attachment through the play of images.
Because attachment to political and legal authority is a matter of desire -
of 'love of the censor' - it is most successfully generated through uncon-
scious forms, through images and other fictions of an author of the laws or
sovereign figure of power. The image is thus crucial to an understanding
of the authority of law, because it is the image, the speculary structure
of authority, which generates the subject'S submission to law or, to use
Legendre's terms, the capture of the subject by the institution. To understand
An Abbreviated Glossary 259
Narcissism. Using the work both of Freud and of Lacan, Legendre inter-
prets the myth of Narcissus in terms of the centrality of the image to both
individual and social identity. At the level of the individual, the story of
260 Law and the Unconscious
Narcissus, the story of a youth who falls in love with his image, is inter-
preted in terms of the institution of subjectivity in the form of semblance.
In recognising him or herself in the mirror, the subject identifies with a
likeness or image that both represents the self and is separate from the self.
In legendre's analysis, the story of Narcissus is that of a subject who
recognises himself as an other, as a semblance or in classical terms as a
likeness constituted in a relation with the truth (verisimilis). The theory of
narcissism predicates that to be a subject is to be an image amongst other
images. At the level of the social the recognition of the self as other is the
primary mechanism of political attachment. The art of politics is the art of
managing narcissistic identifications whereby the subject can come to love
the semblance or image of a social Father in precisely the same manner that
the child recognises itself in its parents. The social image or properly icon
of authority thus enters the subject as a likeness and the political bond is
constituted by the manipulation of the subject's attachment to its image.
Reference. The question of the origin of law and so also of its legitimacy
is addressed by Legendre by way of a discussion of reference. In a prosaic
sense, reference evokes the characteristic form of legal reasoning from
precedent texts or from rules and other authorities spoken in advance of their
instant use. The law, in this sense, speaks 'in the name of' a prior determina-
tion or source. Reference is here a logic of textual authority which guaran-
tees the order of law by referring it to prior textual sources which constitute
the reason and the truth of legal practice. At the level of the symbolic, the
An Abbreviated Glossary 261
upon the interpretation of writings which can be made to state the truth
and so express the law. The textual order or Text is founded, in other
words, upon an orginary truth, a divine source that is represented polit-
ically as the imperial or sovereign author of the laws, a living writing or
oracular text. Classically, the emperor was said 'to carryall the laws in the
archive of his breast' (omnia iura habet in scrinio pectoris sui). The Text was
not any simple or mere writing, it was the living embodiment of the law,
and so also the bearer of a transcendent meaning that the lawgiver would
state as the delegate or vicarious mouth of its originary author. The Text
spoke 'in the name of' a higher source of law and was in consequence
the means of access to truth. In that the Text represented the reason and
the law of social being, it was not only an emblem of political authority
but was the structural form of sociality. In one sense, this meant that the
texts of the law instituted the institutional form of social life, the persons,
actions and things that make up the institution and that would govern
life (magisterium vitae). In its symbolic aspect, the Text was the Empire of
the possible, a geography, both a parent and a country. In the words of one
classical jurist, Rome, meaning the written law, was a shared fatherland or
common home (Roma communis nostra patria est). According to another
etymology, the text was both terror (terreo) and territory (territorium), it
both circumscribed and conquered the world, it was the legal form of
community, a space of habitation. The subject was a 'child of the text' and,
captured by its institutional reason, both lived and died within its confines.
Third. The trinitarian structure of the Christian faith represents an essen-
tial feature of Western sociality. Power is never directly present but is
always triangulated, which is to say mediated through the space of the
third. In a theoretical sense, the Third is the structural site of the absolute,
the empty space, abyss or nothingness upon which both value and power
depend. As the founding principle of the social, the logic of the Third is the
logic of the distance or lack which makes power possible, it is the inaug-
ural space or theatrical stage of social value and subjective attachment.
In theology, the power of God or absolute place of the mythical Third
must thus always pass through a mediating figure - that of the Pope, the
emperor or the priest - before it becomes an object of subjective attach-
ment. The logic of the Third thus refers to a logic of exchange between the
subject and the absolute, which takes place across the space or distance of
interpretation. To communicate with, or to love, the enigmatic figure of
social authority or of divine power, the subject must address that figure as
a lack, as something absent or in Lacan's terms, as the object of an imposs-
ible desire. Thus Legendre variously refers to the Third as the absolute
Other, as the Image, Emblem, Mirror or Text. At the level of the Western
institution, the necessary yet empty space of the Third to which desire is
addressed is replicated most prominently in the practices of penitence and
law. Both practices are triangulated - confession and trial both take the
form of actus trium personarum - so as to allow the subject to address the
absent space of power, the place of divine desire or sovereign will, respect-
ively through the figure of the priest or that of the judge.
Index
263
264 Index
choreography 40, 46, 57, 61 discourse 155
Cicero 90, 100, 181 inaugural 154
circumcision 110, 205 legal 122, 189
Cistercians 81 places of 184, 194-200
Code 103 dissemblance 100
Coing, Hermann 113 distinctiones 123
Coke, Sir Edward 28 division 141, 230
commentaries 123, 124 dogma 137-41, 159, 257-8
common law 118 dogmatics xiv, 15-16, 22, 69, 85,
communication 72-4, 83, 89, 103, 95-7, 98-100, 114, 125,
106, 137, 139, 141-56, 224 137-42, 154, 204, 257-8
confession 50, 171, 175, 176 and dance 37-9,56-9
contract, of love 75 function of 131-3, 144
Corpus Juris Civilis 8, 22, 24, 121 and tears 48-56
copyists 134-5 double reading 22
correspondence 74 Douzinas, Costas 7, 29
counter-dogmatics 15-16 dreams 67,128
Counter-Reformation 39, 119 Durand, Guillaume 64
Courts of Conscience 128, 173, Durer, Albrecht 229,236, 252
245
courtly love 79-80 Echo 216
crimen falsi 69 effigies 20, 121, 227
critical thought 189, 190, 197 emblems 20, 69, 70, 148
enigma xiv, 24, 70, 72, 81, 98, 107
dance 37-67 enjoyment 112, 113, 129
and belief 59 Enlightenment 120
and smell 46 epistemology 121, 126, 174
d' Auvergne, Martial 77 Eros/ Anteros 239-40
decorum 41 erotics 14-15, 17, 74, 79, 92, 130
decretals 121 of communication 72,74,123
de Pisan, Christine 36 erudition 72, 74, 86, 98, 112, 121
de fide instrul1Ielttorul1I 24, 36 eschatology 50
delirium (institutional) 19,28, 91, ethics 11, 168, 174,209
240,247 etymology 212
deportment 62-3 Eumenides 208
Derrida, Jacques 219-21 Euripides 56
desire 86-90, 112, 117, lSI, 176, exegesis 154-6, 179, 206
195-8, 199, 214, 229 eyes 48, 60-2
dying 95 and tears 48-56
social 13, 66, 126, 229
subjective 32, 49-51 face 11,228
destiny 51, 114, 115, 118, 143, 178 divine 226-8, 236-40
see also fate of the father 248
differentiation 137, 143, 157, 162, social 11, 228
178,212, 230 false Decretals 87, 127
Digest 8, 16, 19, 27, 108, 122, 132, fanaticism 72, 92
202 fantasm 8, 9, 17, 34, 35, 50, 66, 81,
dignitas 22 85, 93, 104, 112, 131, 163, 175,
disappearance 148 195, 198-200
Index 265