On Freud's theory of law and religion

IJLP-01210; No of Pages 11 International Journal of Law and Psychiatry xxx (2016) xxx–xxx

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International Journal of Law and Psychiatry

On Freud's theory of law and religion☆ David Novak J. Richard and Dorothy Shiff Chair of Jewish Studies as Professor of Religion and Philosophy, University of Toronto, Toronto, Ontario, Canada

a r t i c l e

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Available online xxxx Keywords: Law Myth Praxis Psychoanalysis Religion Theory

a b s t r a c t This paper is a critical engagement with Freud's anthropological theory of the origins of law and religion, which Freud developed as his representation and development of the Oedipal myth. Freud's mythology, it is argued, is the theoretical result of the essentially narrative nature of psychoanalytical praxis. Freud's myth, especially its treatment of patricide as the original sin, is seen to be a displacement of the biblical myth of fratricide as the original sin. It is argued that the biblical myth is more coherent than Freud's myth, and that it corresponds to the reality of the human condition better than Freud's myth. The paper concludes with the suggestion that the acceptance of the biblical myth in place of Freud's does not necessarily entail a rejection of psychoanalysis as a praxis. © 2016 Elsevier Ltd. All rights reserved.

1. Freud's praxis As a practicing physician, Doctor Sigmund Freud's patients came to him for relief of their suffering. Like any good physician, Freud had to begin his work with patients by taking their case history, which begins with a patient's description of how he or she is affected by an ailment whose cause is unknown to them. This description is usually an answer to the physician's second person question: “How do you feel?” Since this description is given in the first person: “This is how I feel,” it inevitably becomes a patient's personal narration of his or her own history. When the patient says “this is how I feel,” he or she is in fact saying: “This is how I feel now.” This present answer of the patient then prompts the physician to ask about the patient's past: “When did you start feeling this way?” So far, we see an interpersonal dialog between the patient and the physician, which is the narrative conversation of an I and a you. And, any such narrative conversation is essentially historical in the most personal sense, i.e., it is me as a patient telling my physician how I am experiencing or recalling my past. It is my re-living (erleben in German) my past rather than my simply traveling back (erfahren in German) to an intact past, a past as it really was (as in German, wie es eigentlich gewesen). That is why a good physician will want to hear some of the full life history of a patient and not just the patient reporting particularly painful episodes in that history. After this point in the patient–physician relationship, however, the dialog between the two of them halts. The physician has to now step away from the dialog with the patient and begin to diagnose the patient's condition. This is best done when the patient is not present ☆ XXXIVth International Congress of Law and Mental Health Vienna, Austria, 12 July 2015 E-mail address: [email protected].

with the physician. The diagnosis involves the physician becoming a third person subject (“he” or “she”) as well as the patient becoming a third person object (“him” or “her”). The physician becomes a spectator looking at the patient's condition. Based on their diagnostic findings, physicians are obliged to prescribe a medication or a regimen in order to cure the patient altogether, or at least to alleviate the suffering of the patient when a cure doesn't seem to be possible. Patients are equally obliged to follow what the physician has prescribed for them to do. Usually, that requires the patient to take their prescribed medication and follow their prescribed regimen. And, if the physician's prescription to the patient is to submit himself or herself to some other physician for more specialized treatment, the whole process of dialog–diagnosis–prescription begins all over again. Like any interpersonal relationship, the physician–patient relationship necessarily involves an ethic, i.e., criteria of what is to be done and what is not to be done by both parties in the relationship. The physician–patient relationship, though, is ethically significant only when it is a commitment that has been entered into freely by both sides. Both the physician and the patient are responsible for the free choice to be committed to each other in their therapeutic relationship. That commitment is one of trust: the patient and the physician must be committed to trust one another at the very outset of their relationship as a matter of faith, and during that relationship as a matter of emerging knowledge. Moreover, that trust cannot be imposed by one party upon the other nor, even more so, can it be imposed by a third party on the two parties to the relationship itself. As we shall soon see, the ethical importance of this mutually free, trusting relationship is especially significant in the relationship between a patient's psychoanalyst and a psychoanalyst's patient. (That is why, by the way, it is so difficult to maintain this relationship of trust between psychotherapists and patients in a setting like that of a prison or a mental institution, in

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Please cite this article as: Novak, D., On Freud's theory of law and religion, International Journal of Law and Psychiatry (2016), http://dx.doi.org/ 10.1016/j.ijlp.2016.06.007

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which therapists and patients are assigned to each other by those exercising impersonal authority there, thus making the therapy seem more like indoctrination.) Although initiated by Freud as a medical procedure, and a procedure he taught other medical practitioners who became his disciples, psychoanalysis departs from the usual medical trajectory just outlined insofar as the dialog between a patient as analysand and his or her therapist qua psychoanalyst is not just a part of their overall therapeutic relationship; rather, the dialog between the analysand and the psychoanalyst is what essentially constitutes their mutual, free, trustful relationship from beginning to end throughout. Indeed, the mutual processes of transference and countertransference make the psychoanalyst and the analysand become participants in a story they both share. Moreover, neither the patient nor the psychoanalyst can transcend what has become their story in advance of its being told, by coming to it with prefiguring categories. That is why the story to be told should not be prepared in advance of the psychoanalytical session, neither by the analysand nor by the psychoanalyst. Unconscious factors can only emerge spontaneously; their emergence cannot be planned or willed to emerge. The Unconscious (die Unbewusstsein, literally “not-awareness”) is not only the beginning (Anfang in German) of the story; it is the story's source (Ursprung in German), the fathomless chasm (Abgrund in German) that is neither totally accessible nor totally inaccessible. Along these lines, Freud compared his clinical work to that of an archeologist, who brings up long buried, forgotten, articles, which he cannot predict in advance what they are.1 Then, in the process of retrieval, the now surfaced articles have to be reassembled above ground. But, they are never the same as they were when they were buried in the ground. The surfaced articles undergo a radical transfiguration (Verklärung in German) in the present becoming very different, though still identifiable, from what they were in the past. Nevertheless, a person's past, even a psychoanalyzed person's past, cannot be transcended afterwards. To be sure, the process of psychoanalysis is meant to enable the analysand to “work through” (durcharbeiten) his or her past, yet no one can work through his or past all the way out of it. Psychoanalysis is meant to explain the past, not to explain it away. Instead, this working-through enables the persons involved in the psychoanalytic process try to bring some of their past (but never all of it) along with them as they more freely direct their own life story into the future. The working-through is so that our past is our ancestral home we can remodel in our present for the sake of our future, instead of it being our prison in which we are condemned to a life-sentence. Or, we might say Freud believed that through psychoanalysis those who have participated in it become, thereby, more the more active subjects of their own life story, and less the more passive objects in someone else's story, even if someone else's story is the one they have been telling themselves and others as if it were their own. That, ultimately, is the ethical task that emerges from within the psychoanalytic relationship.2 Furthermore, not only must the story emerge spontaneously within the psychoanalytic session so that there be an opening for some (but never all) unconscious factors to reach the conscious surface, but the

diagnosis or the discernment (diagnōsis in Greek; literally “knowing through”) of the present meaning too must emerge from within the psychoanalytic process. Only then can the analysand recognize himself or herself in what is said about the meaning (their Meinung or “meness”) of the story here and now. The same is true of the psychoanalyst. (Think of how much Freud learned from his patients about them and about himself.) The meaning of the story cannot be given by one party to the other didactically. Finally, psychoanalysis is unlike ordinary medical practice insofar as it does not prescribe a cure, for psychoanalysis doesn't cure anybody. When one is cured of a disease, one is able to transcend the disease by leaving it behind once and for all. But what ails the patient in this case is his or her own past (especially his or her unconscious past); and that cannot be removed from the patient's existence in the same way as a gangrenous limb can be removed from a patient's body. One's past is a vital organ, whose excision would kill the patient. In this case, it would kill the patient's soul. (I say “soul” or psychē in Greek or nefesh in Hebrew rather than “mind” or mens in Latin, because soul contains both conscious and unconscious elements, whereas mind seems to be confined to consciousness only, and even more narrowly, mind is confined to ratiocination.) In psychoanalysis, what ought to be done (and what ought not to be done) is not something the psychoanalyst prescribes for the patient based on the interpretation or diagnosis the psychoanalyst brings to the patient's condition. Instead, what ought to be done, especially in the way a patient relates with other persons in his or her life, itself emerges from within the psychoanalytic narrative relationship itself. This is an ongoing emergence, which is more suggestive than actually commanding. It is more a patient learning from within what he or she really wants to do because they now know what is truly good for them, rather than being obligated from without to do what someone else wants one to do, even if that obligation wisely intends what is good for the one so obliged. (In this way, psychoanalysis' inherent ethics is more akin to the desire-based ethics of the Aristotelians than it is to the command-based ethics of the Kantians.) Moreover, what emerges from within this relationship also suggests to the psychoanalyst how he or she might relate differently with significant others in his or her life, including his or her other patients. Thus what emerges from within the relationship between the psychoanalyst and the analysand enlightens them both, and it influences their respective actions or reactions in the world. Indeed, that kind of practical suggestion occurs throughout a good psychoanalytic relationship. Certainly, the ethical freedom of choice and its accompanying responsibility, which is inherent in this therapeutic relationship, is much more central to this relationship than is the freedom that is found in any other, let us say, less existentially significant therapeutic relationship.3 Recognizing that the origins of Freud's thinking begins in his therapeutic praxis requires us to look at the praxis before looking at Freud as a theorist. Finally, we will have to question just how one can relate Freud's praxis and his theory in deciding how we are to relate ourselves to Freud's overall teaching. 2. Freud's theory

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Already in his 1896 paper, “The Etiology of Hysteria,” Collected Papers, trans. J. Riviere (London: Hogarth Press, 1924), 1:184–85, and often thereafter, Freud compared his psychoanalytic work to archeology, a discipline he had a life-long interest in. 2 Note the French philosopher, Paul Riceour, Freud and Philosophy, trans. D. Savage (New Haven, CT: Yale University Press, 1970), 45: “[R]eflection is a task, an Aufgabe . . . reflection is not intuition . . . the positing of self is not given … it is not gegeben, but aufgegeben.” Furthermore (ibid., 424), Riceour speaks of psychoanalysis as “the process of becoming-conscious (Bewusstseinwerden), in place of the so-called self-evidence of being-conscious (Bewusstsein).” Here Riceour is contrasting psychoanalysis with the phenomenology of Freud's Vienna-educated contemporary, the philosopher Edmund Husserl (even though Husserl is the most important influence on Riceour himself). Riceour then calls this “the practical and ethical side of reflection” . . . and it (a là Spinoza) “leads from alienation to freedom and beatitude” (ibid., 45). This is how Riceour characterizes philosophy, with which he wants to associate Freud, noting “one of his [Freud's] earliest wishes — to go from psychology to philosophy” (ibid., 312).

Sigmund Freud was not only a practicing clinician, but he was also a theorist. He was Professor Freud as well as Doctor Freud. Freud's theorizing was of two kinds. 3 The American philosopher and psychoanalyst, Jonathan Lear, makes this point most insightfully in his Love and Its Place in Nature: A Philosophical Interpretation of Freudian Psychoanalysis (New Haven, CT: Yale University Press, 1990): “Accepting responsibility is essentially a first-person relation. In accepting responsibility, I acknowledge who or what I am” (p. 66). He then adds: “once one has accepted responsibility for an emotion, one can . . . hold oneself responsible for it . . . I ask: is this the way I want to be? . . . because . . . I have acquired some ability to shape and control my emotional outlook” (p. 66, n. 63). See, also, Jürgen Habermas, Knowledge and Human Interests, trans. J. J. Shapiro (Boston: Beacon Press, 1971), 235.

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The first kind of theorizing was directly connected to Freud's clinical praxis. Here he formulated categories that enabled him to train others in the practice of psychoanalysis. We might call this kind of theorizing “technical” insofar as Freud was devising professional techniques for psychoanalysts to use in their clinical praxis. We can certainly see the practical need for this kind of technical theorizing on Freud's part. He was not only operating a therapeutic clinic; he was founding a school of like-minded disciples and colleagues. Here Freud was constructing his theoretical psychology, enunciating a logos for mapping the human psyche. That is how Freud was prescribing a methodology for his school. All this notwithstanding, all but the most committed Freudians have found this kind of technical writing to be the least interesting of Freud's writing (even though it was written in excellent German prose). It tends to be quite scholastic, even dogmatic, rather than being the more introspective reflection one finds in both his case histories and his philosophical speculations. (Its only virtue for the philosophically inclined is that in his methodological writing Freud was much more precise in his use of terms than he was in his more speculative writing.) Yet there is more to Freud's theorizing than his clinical methodology. Considering his success as a clinician, who was already training other successful clinicians in the use of his therapeutic techniques, why did Freud feel the need to engage in the type of theoretical work that involved extensive speculation on culture (Kultur, or what some used to call “civilization”) too? Why did Freud want to be, not only a practicing psychotherapist plus a theorizing psychologist, but also to be a theorist, i.e., to be a philosopher?4 I would suggest two reasons why Freud's philosophical work is connected to both his clinical praxis and his technical theory of that praxis. First, already in his clinical work, Freud experienced the resistance of his patients to interpretations of their own story that were requiring them to radically rethink the meaning of their own lives. For the initial shock of these new interpretations, which the patients themselves were arriving at with the active participation of their psychoanalyst, threatened many of his patients (and the patients of his early disciples) with a condition that Freud's contemporary theorist, the theoretical sociologist Emile Durkheim called anomie. This condition is a person's feeling that their normal social-world and its protective regularities are being taken away from them. Anomie leads to the type of anxiety, with its defensive retreat into safer traditional territory, which causes the patient to resist the radical new interpretation of the human condition provided by psychoanalysis.5 Resistance is the normal reaction to any such assault on one's identity (physical or psychic). Now it would seem that the individual patients got much of that resistance from the cultural environment in which both they and Freud himself were living, and in which all their relatives, friends, and fellow citizens were nurtured and educated. So, if psychoanalysts have to deal with the resistance of patients to their reinterpretations of the patients' narrative, and if that resistance clearly comes from the surrounding culture, don't psychoanalysts have to deal with the source of the resistance they must confront? If not, how could psychoanalysis survive

4 Even though Freud did not consider himself to be a “philosopher” in the professional sense of that title, he was “doing philosophy” by developing a foundational theory of human nature nonetheless. The most important acceptance of Freud as a philosopher is by Ricoeur, Freud and Philosophy. The most important rejection of Freud as a philosopher is by the analytic philosopher, Adolf Grünbaum, The Foundation of Psychoanalysis: A Philosophical Critique (Berkeley, CA: University of California Press, 1984). Phenomenologists like Riceour tend to be more sympathetic to Freud's thinking than are many analytic philosophers. That might be because phenomenology like psychoanalysis is introspection, bespeaking the experience from within, using the language it shows itself by (phainēmenai in Greek). Analytic philosophy, however, speaks-about the experience in a meta-language that is often foreign to the context of the experience itself, and to the subjects of the experience themselves. 5 Note the American theoretical sociologists, Peter L. Berger and Thomas Luckman, The Social Construction of Reality (Garden City, NY: Anchor Books, 1966), 103: “All social reality is precarious. All societies are constructions in the face of chaos. The constant possibility of anomic terror is actualized whenever the legitimations that obscure the precariousness are threatened to collapse.”

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if it were to remain passive in or indifferent to such a hostile environment? Wouldn't the surrounding culture, if not confronted, make psychoanalysis a silent pariah? Of course, most psychoanalysts are neither equipped nor willing to take on that larger challenge. More modestly or more timidly, they are only willing to deal with resistance as it confronts them immediately, when it comes from their patients' individual backgrounds. But Sigmund Freud proudly proclaimed psychoanalysis to be his own creation (meine Schöpfung ist).6 Therefore, he had to be up to the cultural challenge, as the leading adherents of that culture saw Freud's creation to be a threat to the credibility and authority of both their law and their religion. Here Freud had to take public responsibility for his creation. And, just as he was willing and able to combat former colleagues (like Jung and Adler) whom he saw as threating the psychological validity of his creation, so was Freud willing and able to combat those he saw as threatening the cultural validity of his creation. The resistance of the culture of Vienna (taken both literally and figuratively) to Freud might even be likened to the resistance of Athens to Socrates, as both Socrates and Freud (mutatis mutandis) were engaged in what Socrates said is the ongoing project of “examining myself and others.”7 (In Freud's case, that meant his ongoing self-analysis along with the analysis of his patients.) And, while both Socrates and Freud were considered to be nihilists by many of their contemporaries, each thinker was convinced he was actually contributing to the health of his culture. Thus Freud's attempts to overcome the modern cultural resistance to his psychoanalysis were like Socrates' attempts to overcome the ancient cultural resistance to his philosophy. Freud, especially, had to show his culture that he understood it and its discontents better than its adherents, while never making his culture's adherents unrecognizable to themselves in his interpretation of their story. For Freud considered himself still very much part of his modern European culture, and like Socrates (though unlike Socrates' pupil, Plato) he seemed to have no desire to be part of any other culture.8 Indeed, Freud saw himself as being devoted to the ideals of his enlightened culture, which he desired to promote more realistically than many of its more idealistic advocates. The second reason I think Freud had to engage in theoretical and not just practical work (or even the theory of praxis) is the fulfillment of a philosophical need and not just a polemical or defensive one. If psychoanalysis is a praxis, dealing with what its subjects are to do and not do and why, then psychoanalysis (as we have seen) is an essentially ethical enterprise. Inherent in psychoanalysis' operations is the need to guide (if not actually to command) what both subjects and practitioners are to do and what they are not to do, even if this action is only the way one tells his or her story. However, unlike those who would relativize psychoanalysis by confining it to a particular cultural moment (which is now seen by many of these critics to be passé), Freud was convinced that his praxis (and its inherent ethic) is based on human nature, i.e., it is based on what is the permanent human condition anywhere and at any time. As such, psychoanalysis is not just a reaction to the fin-de-siècle Viennese situation, nor is it just a reaction to the European situation, nor is it even just a reaction to modernity. Like any authentic philosopher (as distinct from a mere cultural critic), Freud had to ground his ethic in a philosophical anthropology, i.e., in a theory of human nature. Cultures are the ways human persons develop their nature in the world. So, Freud was looking for the universal human nature that underlies all particular cultural manifestations of it. For the most part, Freud's philosophical speculation stopped at the level of philosophical (as distinct from “cultural,” let alone “physical”) anthropology. To be sure, Freud did occasionally go deeper in his

6 The Future of an Illusion, trans. W. D. Robson-Scott, rev. J. Strachey (Garden City, NY: Anchor Books, 1961), 59 = Die Zukunft einer Illusion (Frankfurt am-Main: Fischer Verlag, 1993), 139. 7 Plato, Apology, 29A. 8 See Plato, Apology, 30A–E; Crito, 53B–C.

Please cite this article as: Novak, D., On Freud's theory of law and religion, International Journal of Law and Psychiatry (2016), http://dx.doi.org/ 10.1016/j.ijlp.2016.06.007

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speculation, by trying to connect his philosophical anthropology to an ontology or a theory of universal being. Freud did this when he invoked terms from Greek philosophical ontology such as the dyads Logos (reason) and Anangkē (necessity or fate), or the dyads Eros (love) and Thanatos (death).9 Nevertheless, though Freud didn't go very far in his ontology, he did go quite far in his philosophical anthropology. Therefore, this is the most promising place to confront Freud as a philosopher. However, Freud did not present his philosophy the way most philosophers present their theories, i.e., methodically in the form of a logical argument. Instead, Freud presented his anthropological theory in the form of a primal narrative (Urgeschichte in German), i.e., what Freud imagined to be how (rather than exactly when) human interpersonal nature emerged or evolved on earth. One could say that Freud's narrative theorizing is the method of individual psychoanalysis writ large on humankind.

3. Freud's narrative theory Freud's narrative theorizing is quite an achievement, requiring somebody of Freud's genius to even try his hand at it. But, is Freud's story true on two counts? First, does Freud's story give us a coherent picture of how human, interpersonal nature has operated since its emergence in the world? Second, since Freud's story is meant to explain their human nature to human persons here and now so that they can recognize themselves in the story, how well does this story correspond to their own personal experience? This is quite different from asking how a theory accurately describes or corresponds to facts or events in which those to whom the story is being told do not have to recognize themselves therein. The story is not like an hypothesis about an impersonal, natural state of affairs, which being repeatable, can be tested experimentally.10 Nor is it like a hypothesis about historical events that can be tested by comparing it to reliable (and, preferably, multiple) accounts of what happened to somebody else. For every universal story, or what we now call a “master narrative,” cannot just be repeated in the third person and be creditable about human nature to those humans whose nature it is. Instead, the story must be-related in the first person to a second person. It must be told as I (the story-teller) to a you (the hearers of the story), who can say “this story is about us; it is ours.”11 Nevertheless, isn't this narrative theorizing at odds with Freud's often fervent desire to be taken seriously as a social scientist?

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See Lear, Love and Its Place in Nature, 147–55; also, Riceour, Freud and Philosophy, 536. Note The Future of an Illusion, 49 = Die Zukunft einer Illusion, 134: “Thus we call a belief an illusion when a wish-fulfillment is a prominent factor in its motivation, and in so doing we disregard its relations to reality [Wirklichkeit], just as the illusion itself sets no store by verification [Beglaubingungen].” Freud speaks of “my illusions”(ibid., 86). So, how can Freud insist that “our science is no illusion” (ibid., 92), when his theory is like religious illusions, which also do not admit of the type of empirical confirmation that seems to be what essentially characterizes a theory as being “scientific” rather than being speculative or imaginative? And, as we shall see, Freud's imaginative theory also reflects his liberal wish-fulfillment, viz., that humans are progressively becoming more and more autonomous because of their increasing scientific knowledge, giving them more and more control over nature (ibid., 90). In the end, all that Freud and his disciples can claim (quite arguably) is that their theory has more heuristic value regarding human nature in general than competing theories do. So, once Freudians drop their scientific pretensions (including the pretension of being objectively disinterested, hence “value-free”), and stop seeking the approval of scientism's advocates (who assume that natural science and its methods hold the answers to all answerable human questions), the more they will accept the fact that their praxis is an art, not a science; and that this by no means makes it nonsensical (contra ibid., 92). Thus Riceour, Freud and Philosophy, 208: “Consequently, one does psychoanalysis a service, not by defending its scientific myth as science, but by interpreting it as myth.” And, as Freud's younger Viennese contemporary, the philosopher, Ludwig Wittgenstein, put it in Tractatus Logico-Philosophicus, 6.52, trans. D. F. Pears and B. F. McGuiness (London: Routledge and Kegan Paul, 1961), p. 149: “[W]hen all possible scientific questions have been answered, the problems of life remain completely untouched.” 11 See Hans-Georg Gadamer, Truth and Method, 2nd ed., trans. G. Barden and J. Cumming (New York: Crossroad, 1982), 289. 10

In the representation of the origins of human nature, which is essentially interpersonal or social, Freud has often been accused of being a bad anthropologist.12 Though drawing upon the work of a number of his contemporary social scientists (working in what the French call les sciences humaines), Freud seems to have drawn conclusions from their empirical findings that go far beyond what can be rightly inferred from the data themselves. Moreover, unlike the social scientists whose work Freud drew upon (and whom he carefully cites), Freud got all his data second-hand, i.e., he did no empirical research of his own, no field work among the “primitive” people he and his contemporaries thought were closest to the early humans who had more recently evolved from ape-like animals. Also, Freud is charged with over-inferring from the anthropological data he discovered secondhand. Shouldn't he have made more modest theoretical inferences from the data by means of induction, rather than making grandiose inferences that go beyond what the data themselves could possibly warrant? But, what the critics miss here (which Freud's often adopting what he considered to be strictly “scientific” language often obscures) is that Freud's construction of the story of human origins is a speculative enterprise, not an empirical one. What is the difference between the two, though? To answer this question, let us look to a younger Viennese contemporary of Freud's, the philosopher Karl Popper. For Popper argued that a scientific theory is not derived from the data by induction; instead, a theory is formulated apart from the data, and only then is the theory brought to the data to explain the data. As such, the data do not verify the theory, i.e., prove the theory to be either true; instead, the data can only falsify the theory. That means that a theory is falsified by the data if the data, through testing, repeatedly contradict significant conclusions deduced from the theory.13 This leaves the field ripe for a newer better theory that has greater explanatory power than the falsified theory to displace it and replace the old theory accordingly. (Think of how Einstein's new theory of relativity explained the solar eclipse of 1919 better than the older Newtonian theory.) Usually, the more coherent explanation of the data is simpler, involving fewer assumptions, which itself recommends the simpler theory, providing it applies to at least as much of the data (and, preferably, more of the data) than the theory it is attempting to supplant. (This is the methodological principle called “Ockham's razor.”) Taking our cue from Popper (mutatis mutandis), Freud's theoretical construction of the story of human origins cannot be refuted by arguing that it is not inductively demonstrable from empirical data, since the story is not making any demonstrable claims. It is not claiming there is any particular evidence for it, upon which it is based. The plausibility of the story lies in its general heuristic value, i.e., how much or how little of our human origins it explains to us, and how well or how badly it explains the ongoing influence of those origins on our human life here and now. Not making a factual claim, a theory cannot be falsified by a counterfactual. Freud's story can only be falsified if it can be shown to be less plausible by its having less explanatory power than rival stories. In fact, Freud himself, referred to his own theories as “my illusions,” and that they are “capable of correction” — but by others rather than by

12 See Riceour, Freud and Philosophy, 208, n. 56 for references to critiques of Freud's ethnology by such prominent ethnologists as Malinowski, Kroeber, and Lévi-Strauss. See Yosef Hayim Yerushalmi, Freud's Moses: Judaism Terminable and Interminable (New Haven, CT: Yale University Press, 1991), 19, 86, for a more appreciative view of Freud's unusual historical method by a prominent Jewish historian. 13 Note Popper's magnum opus, The Logic of Scientific Discovery (London: Routledge, 1992), 108: “We choose the theory which best holds its own in competition with other theories… This will be the one which not only has hitherto stood up to the severest tests, but the one which is also testable in the most rigorous way. A theory is a tool which we test by applying it, and which we judge as to its fitness by the results of its applications.” Popper's book is his English reworking of his original 1935 book, written when he was still in Vienna, Logik der Forschung: zur Erkenntnistheorie der modernen Naturwissenschaft.

Please cite this article as: Novak, D., On Freud's theory of law and religion, International Journal of Law and Psychiatry (2016), http://dx.doi.org/ 10.1016/j.ijlp.2016.06.007

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himself.14 Now, of course, Freud's theory does not admit of the kind of scientific scrutiny that Popper would require for the validation of a theory in natural science, since the data it comes to explain: interhuman relations, hardly admit of the kind of experimentation whereby a strictly scientific hypothesis could be tested.15 Along these lines, I think Freud would agree with Aristotle (himself a great natural scientist) that ethics, dealing as it does with human interaction, cannot be formulated with this kind of scientific precision.16 Nevertheless, Freud's theory can be seen to function similarly to Popper's more general notion of a theory, i.e., as a kind of a priori conception formulated to explain a whole range of data retrospectively, rather than being a more specific inference made after the fact a posteriori. Although theories are formulated abstractly, apart (i.e., stepping back away) from the data, theories are never created in an historical void; thus no theorist can claim to be totally original. Every theory, no matter how novel, is not starting the discussion; instead, every theory is entered into a conversation already taking place. The presentation of a theory is a discursive practice; thus the theorist needs to know with whom he or she is both speaking to and from whom he or she is listening. That is why every theorist must plan his or her entry into the ongoing discussion carefully, understanding at what point in the history of the conversation they are making their entrance. Not taking notice of what has preceded one's entrance into the conversation, and thus not responding to it, would make one's own theory speak a language one's conversation partners do not speak among themselves. They would, therefore, be unable to respond in kind to what is now being represented to them in the new theory. So, any new theory is always coming to replace or supplant an old theory; and any new theory can always be supplanted by either a newer theory or a more cogent reinterpretation of an old theory that has been made to survive a new theory's seeming triumph over it. Along these lines, Freud was very much aware of the discourse he was entering, basically launching his theory in his first major foray into anthropology, in his 1913 book, Totem and Taboo, by connecting his speculative narrative to “a hypothesis of Charles Darwin about the primal social state of man.”17 We shall return to Freud's theoretical employment of Darwin's more empirical anthropology later, but my point now about his explicit mention of Darwin is that more than any other nineteenth century thinker, Darwin gave human nature a natural history insofar as human nature is seen to be developing in time as a part of the larger development of biological nature, the realm of all life on earth. So, while any human discourse has a history, Darwin enabled the very object examined by the natural sciences (or at least biology) itself to be historical. Thus a developing human story, after Darwin, had to be a story of human development. In this way, Freud tried to root his philosophical anthropology in natural science, which now saw all earthly nature developing through time, i.e., historically, with human nature being a part of that temporal development. (Before Darwin, human nature was either viewed as being ahistorical, or human history was viewed as being something sui generis, separate from the rest of permanent, unchanging nature.) The connection to Darwin, considered to be the father of evolutionary (i.e., historical) biology, was Freud's point of entry into

what he considered true “scientific” discourse. (Whether evolutionary biologists, then or now, would welcome Freud or Freudians into their discourse, however, is arguable.) The historicity of a theoretical discourse is even more essential when the discourse is a discourse of competing human narratives. For these narratives are our histoires, whereby we tell ourselves our own stories, i.e., what we think we have done in the past, what we think we are doing in the present, and what we hope we will be doing in the future. Yet throughout all these changes, we have still kept our identity as the univocal subject of the past, present, and future of our story. As such, we humans are responsible for our story in all three of its phases, as it is our own story. That is why we cannot pretend it is someone else's story and, therefore, their responsibility rather than ours. The theory is not about the narrative, the theory is the narrative in a self-reflective mode. As such, we have to be able to recognize ourselves in the story. Isn't this what Freud claimed is happening in a good psychoanalysis? The narration itself is our discursive reality. As we have seen, there is no way to verify whether what is being told during the psychoanalysis really occurred, or whether it really occurred the way the patient has recounted it. In fact, any such “empirical” attempt would undo what ought to be done in the psychoanalysis. For we are not concerned with how the past has influenced one's present selfawareness, but rather how well or badly the past has been taken up into a person's present self-awareness, and his or her self-projection into the future. Moreover, because of the inevitable transference that takes place in the patient's telling of his or her story to their psychoanalyst, the psychoanalyst himself or herself becomes part of this story along with the patient, thus having as much responsibility for the interpretation of the narrative and its practical implications as do the patients themselves. In this way, Freud was, in effect, psychoanalyzing human culture as the essential content of human nature, especially its two main manifestations: law and religion. Although Freud used the language of contemporary social science, he was doing much more than the other social scientists were doing then (or are still doing now). Freud was formulating a myth. Now by “myth,” I do not mean its usual connotation that designates either a conscious lie or an unconscious delusion. Instead, I use the term “myth” in its original denotation (mythos in Greek), which designates a masterstory of human, even cosmic, origins.18 The value of this kind of master-story (like a good theory) is heuristic, not indicative. That is, it presents an ontological foundation for explaining an entire way of life to those who accept the myth's truth and order their lives accordingly. As such, it is more than a hypothesis that can be tested experimentally. It is even more than a scientific paradigm which, although it explains a whole range of facts, is still limited to the specialized discourse of scientists nonetheless.19 And a myth is even more than a “world-view” (Weltanschauung), which is usually the way individual thinkers look at the world before them from their limited, historically conditioned perspective.20 Like hypotheses, paradigms, and world-views, myths are not empirically demonstrable; i.e., they explain the data they refer to; they are not explained by them. But, unlike hypotheses, paradigms, and world-views, myths are not invented or constructed; rather, they

14 The Future of an Illusion, 86. Freud distinguished illusions, which have some correspondence with general human experience, from delusions, which have no such correspondence. Freud hoped religion as a less “scientifically” respectable illusion would be gradually replaced by a more “scientifically” respectable illusion like his psychoanalysis (ibid., 72). Yet, by referring to “the religions of humanity… as mass-delusions” in Civilization and Its Discontents, trans. J. Riviere (Garden City, NY: Anchor Books, 1958), 23, Freud seemed to be saying that rational, scientific examination and persuasion in cases of such mass-delusion will be no more effective than he thought psychoanalysis would be with psychotic patients. 15 So, Freud is not being fair when he says that “certain experiences of life and observations of nature have made it impossible to accept the hypothesis [italics mine] of such a Supreme Being.” Haven't Freud's critics, whether religious or secular, said the same thing (tu quoque) about his “hypothesis”? 16 Nicomachean Ethics, 1.3/1094b13–14. 17 Totem and Taboo, trans. A. A. Brill (New York: Vintage Books, 1946), 162.

18 Note James DiCenso, The Other Freud (London and New York: Routledge, 1999), 11– 12: “The etiological accounts of Freud's pseudo-historical constructs act as myths informing us about the status and impact of ideal cultural forms. The significance of these mythical constructs parallels Mircea Eliade's interpretation of cosmogenic myths as pardigms for cultural worlds or the order of things.” DiCenso then references two of the works of Eliade, the influential (and controversial) Romanian-American historian of religions, viz., his 1959 book, The Scared and the Profane; and his 1961 book, Cosmos and History. Furthermore, “the point, however, is not to imagine how symbol systems came into being, but rather to understand how such cultural resources function in psychoanalytic terms.” (ibid., 144) 19 See Thomas S. Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962), 43–51. 20 The notion of Weltanschauung and its limitations is most famously put forth by Hegel. See Phenomenology of Spirit, nos. 599–600, trans. A. V. Miller (Oxford: Oxford University Press, 1977), pp. 365–66.

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are received or inherited from prehistoric sources. Some myths are then formulated and reformulated, which requires a great thinker like Sigmund Freud to do it insightfully. Indeed, Freud's reformulation of the Oedipus myth (which the Greek playwright, Sophocles, first formulated in Oedipus Rex over two millennia earlier) was accomplished with Darwin's help. Finally, though Freud invented or created psychoanalysis, whose methods he used to interpret the Oedipal myth, he did not create the myth any more than a patient or a psychoanalyst creates the mythological material that emerges out of the unconscious. One could even say that both are revelations.21 Later, philosophical interpretations might come from those who have listened to these myths deeply and reflectively.22 Note what Freud says about his mythology: “We do not share the belief that myths were read in the heavens and brought down to earth; we are more inclined to judge… that they were projected on the heavens after having risen elsewhere under purely human conditions.”.23 4. Freud's counter-biblical narrative Already in Totem and Taboo (1913), Freud was constructing a master story about the origins of human sociality. And, as was the case in his last great book in 1939, Moses and Monotheism, Freud was consciously constructing his master-story to counter the biblical master-story. In fact, a straight line goes from the 1913 book to the 1939 book, which might be seen as the sequel to the earlier book. Moreover, both books are primarily in dialog with anthropologists, who are the social scientists Freud wanted to be taken seriously by. That is why, it seems, in Moses and Monotheism, Freud invokes anthropological treatments of the biblical narrative much more than actually invoking the text of the Bible itself (let alone the Jewish tradition of biblical exegesis). That notwithstanding, we should examine that other master-story when questioning how persuasive Freud's master-story is on key points, especially Freud's views on the origins of law and religion.24 Now my bringing the biblical story into this examination of human origins is because Freud himself chose his narrative over the biblical one. But, also, the biblical story is my story, i.e., it is the master- story of the Jewish people I was born into (as was Freud); and it is the master-narrative into which I have chosen (unlike Freud) to connect my own life story as a minor episode therein. So, I confess I am trying to counter Freud's master-narrative with the master-narrative he tried to counter. After all, Freud attempted to replace what I believe is irreplaceable. How can I not try to argue for its irreplaceability, even its superiority? Nevertheless, I am not countering Freud's master-narrative with the biblical one by claiming that mine is better than his because mine claims to have been revealed by God, whereas Freud, the vehement atheist, could not make a similar claim for his story. For the theistic origin of the biblical story is a faith assumption I cannot prove, any more than Freud's explanation of divine revelation as itself a deceitful human invention or a human delusion can be proven. That is why arguments based on the superiority of the origin of one story over the other are futile. That is why I have bracketed the question of the authority of the text I employ in my argument against Freud. I am only interpreting 21 Note Yerushalmi, Freud's Moses, 35: “[T]he return of the repressed is the Freudian counterpart to biblical revelation, both equally momentous and unfathomable, each ultimately dependent, not on historical evidence, but on a certain kind of faith, in order to be creditable.” 22 Note Socrates, the “ur-philosopher” of the West, whom Plato has saying in Phaedo, 61B: “One who is really a poet makes myths [poiein mythous], not discourses [logous]; though not even being a myth-speaker [mythologikos], I have taken the myths of Aesop and made them known [ēpistamēn].” (my translation) 23 Quote from his 1913 paper, “The Theme of the Three Caskets,” in Marsha Aileen Hewitt, Freud on Religion (London and New York: Routledge, 2014), 136. 24 In Hebrew, the word dat means both “law” and “religion,” probably reflecting the view that all true law is rooted in God's wise will. Also, the Latin words for “law” (lex) and “religion” (religio) might well have the same root, ligare, meaning “to bind,” i.e., to obligate. Here too, this probably means that only God has the right to originally obligate as the giver of the original law (Urgesetz in German).

the story, not justifying my interpretation of it by an appeal to its having been accepted by the Jewish people as divine revelation. Therefore, I only argue for the greater coherence of the biblical story than Freud's, especially in terms of its teachings on normative questions, legal and religious, like incest, murder, and idolatry. In other words, my argument does not invoke transcendence; it only invokes what is immanent within the story itself. Indeed, I can no more prove the existence of the God who the Bible claims to be the transcendent source of its story, any more than Freud can disprove the existence of this God (or any other god); or any more than Freud can prove the existence of whom he calls “the primal father,” any more than I can prove the non-existence of this person. Moreover, as the Talmud emphasizes, although in the Bible the prohibitions of incest, murder, and idolatry (with which Freud is also concerned) are explicitly presented as having been revealed by God, our reason would have discovered them from within universal interpersonal experience, even had these prohibitions not be revealed and written down in the Bible.25 In other words, the ethical validity of these basic moral norms does not depend on whether the primal story in which they are presented is demonstrably true or not, since no such demonstration is possible anyway. Thus the only claim that can be made for the heuristic superiority of one story over any rival story is that it provides a more coherent metaphysical account of the cosmic significance of these norms, plus it is closer to the moral experience of those now being told these stories. And there is much more likelihood of these stories challenging each other's existential validity when both stories have long been told in the same historical culture as that of those to whom they are now being recounted and advocated. Freud began to construct his master-narrative on what he calls “an historic explanation,” which is “a hypothesis of Charles Darwin about the primal social state of man. From the habits of the higher apes Darwin concluded that man too lived originally in small hordes in which the jealousy of the oldest and strongest male prevented sexual promiscuity.” Then he quotes directly from Darwin's The Origin of Man: [J]udging from the social habits of man as he now exists, the most probable view is that he originally lived in small communities, each with a single wife, or if powerful with several, who he jealously defended against all other men… the strongest, by killing and driving out the others, establishes himself as the head of the community… The younger males being thus driven out… when at last successful in finding a partner, prevent too close breeding within the limits of the same family.26 At this stage of the construction of his master-story, Freud seems to be positing that incest is what might be called the “original sin,” because what he calls “incest dread” leads to the prohibition of incest itself. Hence its prohibition is not an “innate instinct.27 But this cannot be taken as the origin of moral law, since “incest dread” is not a response to a commandment. Incest is not an act one ought not do because one has been commanded not to do it. In the talmudic interpretation of the biblical narrative that Freud is countering, “exogamy” (literally, “marrying out”) is presented as a positive moral norm: “a man shall cleave [vedavaq] to his wife, and they shall become one flesh” (Genesis 2:24). The negative moral norm is derived from the first part of the verse: “therefore, a man shall leave his father and his mother,” which is taken to mean that humans ought to seek their mates outside their immediate family.28

25

Babylonian Talmud: Yoma 67b re Leviticus 18:4. Totem and Taboo, 162–63. Ibid., 161. 28 Babylonian Talmud: Sanhedrin 58a. Whether or not Freud actually knew this rabbinic treatment of Genesis 2:24, he used this same verse to illustrate the value of exogamy in his 1912 paper, “The Most Prevalent Form of Degradation in Erotic Life,” trans. J. Riviere, Collected Papers (London: Hogarth Press, 1925), 4:205–08. 26 27

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Freud's “incest dread,” however, is not the kind of moral dread or fear the Bible talks about when indicating a negative commandment, a “thou shalt not.” There, “fear” (yir'ah in Hebrew) means to restrain oneself from performing an act, especially because of why the act is not to be done.29 Moreover, even though violating a negative commandment presupposes an offense against the source of the commandments, and entails negative consequences (i.e., punishment) from that source, the commandment only functions morally when its reason, not its presupposition nor its consequence, is what primarily motivates the subject of the commandment to refrain from doing what he or she has been commanded not to do. Conversely, the dread of the brothers of which Freud speaks, which prevents them from engaging in sexual relations with their mothers and sisters, is not the kind of fear that prevents a person from doing something because this act is contrary to what is right and good for human beings, which is the reason it is prohibited. These acts, then, would be harmful to those who do them and harmful to those to whom they are done. In the case of mother-son incest, we might say that the son is harmed by being (in effect) drawn back into his mother's womb, thus kept in his dependent infancy, rather than developing his own independent identity in the world. And the mother is harmed because she is (in effect) drawing her son back into her womb, thus devouring his independent identity in the world. In the case of brother–sister incest, the brothers and the sisters are being kept back within their childhood roles rather than being directed towards mates with whom they can grow out of their childhood dependency on their parents. This kind of incest, too, is (in effect) being drawn back into one's mother's womb rather than directing them away from that womb to discover somebody else, who came out of a different womb. In the case of father-daughter incest (which is far more common than either mother-son or brother– sister incest), the father is returning his daughter to her mother's womb by treating her womb like he treated her mother's womb out of which their daughter came. In Freud's view, though, the brothers are afraid to have sexual relations with their mothers and their sisters because it is dangerous to appropriate the possessions of somebody more powerful and vindictive than themselves. Hence avoiding incest is not because it is bad for those to whom it is done and to those who do it. Instead, one avoids incest because he must protect himself from the wrath of a jealous, possessive father. That is why we have to look for the origin of moral law elsewhere in Freud's master-story. Now Freud is not satisfied with just leaving the story at the level of avoidance of the cruel, vindictive, murderous father, whose sons flee his prevention of their social-sexual maturity by keeping all the women in the horde for himself. He thus develops the next chapter of the story as follows: One day the expelled brothers joined forces, slew and ate the father, and thus put an end to the father horde. Together they dared and accomplished what would have remained impossible for them singly. This violent primal father had surely been the envied and feared model [Vorbild] for each of the brothers. Now they accomplished their identification with him by devouring him, and each acquired a part of his strength. This memorable, criminal act with which so many things began [Anfang nahm], social organization, moral restrictions, and religion.30 At this point, Freud sees the origin of law as a body of moral restrictions emerging from a compact among equals. Here the equality among the brothers is hardly won, because they have all equally killed their oppressive father, and they have all equally divided up his remains so that

29

Palestinian Talmud: Berakhot 9.7/14b. Totem and Taboo, 183 = Totem und Taboo (Frankfurt am-Main: Fischer Verlag, 1991), 196. 30

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each of them might obtain some of the father's formerly total power. Many years later, in Moses and Monotheism, Freud elaborates on this theme, speaking of “[t]he memory of the deed of liberation they had achieved together and the attachment that had grown up among them during the time of their exile — led at least to a union among them, a sort of social contract [Gesellschaftsvertrag]. Thus there came into being the first form of a social organization… in short, the beginnings [die Anfänge] of morality and law.”31 Later on in this narrative, Freud concludes that “giving equal rights to the brothers ignores the father's wishes… Here social laws became separated from others which… originated directly from a religious context.”32 But what is this religious context wherefrom a different kind of law emerges than the law which emerges from a social contract among equals? How did this religious context come to be? Again, in Totem and Taboo, Freud imagines the origin of religion to be because “the original democratic equality of each member of the tribe could no longer be retained… a tendency to revive the old father ideal in the creation of gods,” which he speaks of as “the edification of the murdered father from whom the tribe now derived its origin.” This leads to “the institution of paternal deities the fatherless society gradually changed into a patriarchal one.”33 Now “patriarchal deities” are most certainly law-giving gods. So, the difference between the origin of secular law and the origin of religious law is that secular law emerges from among equals and applies to them equally.34 Religious law, conversely, is rooted in the inequality of God and his human subjects who, it might be said, are all equally unequal before this transcendent God. Elsewhere, Freud argues that the secularization of law is an “advantage… to leave God out altogether and honestly admit the purely human origin [Ursprung] of all our obligations and precepts of civilization.”35 Freud is convinced that this new godless morality makes “these commandments and laws… lose their rigidity and unchangeableness as well.”36 Yet even Freud had to admit, nonetheless, that without a divine sanction, “purely reasonable motives can effect little against passionate impulses [leidenschaftliche Antriebe].”37 Indeed, what force does a moral law have if we think it was made by persons essentially no different form ourselves? And, if moral law is, therefore, changeable, what prevents humans from changing it, even abolishing it, when it no longer (in Freud's words) “serve[s] their interests”?38 In fact, at times of great political and cultural crisis, such relativism actually works against our truly perennial human interests, for it provides a rather puny bulwark against God-substitutes like Hitler, who claim to restore the old security people used to find in the old religions. So, it would seem, even for Freud's interests as an Enlightenment rationalist, that the old religious-moral absolutes, which have a long history of rational interpretation that doesn't attempt to overcome their origins, that these old absolutes would be a more effective bulwark against the type of new, idolatrous despotism that drove Freud out of Vienna, and which murdered members of his own family as well as over one third of his people. However, one cannot invoke the old God and his Law as a bulwark against the new gods, unless one believes in the true

31 Moses and Monotheism, trans. K. Jones (London: Hogarth Press, 1939), 104 = Der Mann Moses und die Monotheistische Religion (Frankfurt am-Main: Fischer Verlag, 1975), 89. 32 Ibid., 153. 33 Totem and Taboo, 191–92. 34 Since, for Freud, the institution of the incest taboo preceded the religious invention of God, with its inherent equality of humans before God, it has a kind of pre-religious, secular character (ibid., 186). Furthermore, Freud notes: “With the institution of paternal deities the fatherless society gradually changed into a patriarchal one. The family was a reconstruction of the former primal horde and also restored a great part of their former rights [früheren Rechte] to the fathers.” (Ibid., 192 = Die Zukunft einer Illusion, 204) 35 The Future of an Illusion, 66–67. 36 Ibid., 67–68 = Die Zukunft einer Illusion, 144. 37 Ibid. 68 = Die Zukunft einer Illusion, 145. 38 Ibid.

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reality of this God and his Law.39 Regarding this belief to be what Plato called a “noble lie” is insufficient.40 God's Law only functions cogently and effectively when it is a foundation (a yesod in Hebrew), which is different in kind from a merely useful hypothesis. 5. The original sin It seems that the first law that would have to emerge out of this social contract would be the prohibition of murder. After all, would the brothers want done to them what they did to their father? How could they live in a society that is indifferent to murder, i.e., which does nothing to either prohibit it before the fact or punish it after the fact? Wasn't their previous society with their omnipotent father one where the father could, without legal sanction, capriciously kill his children with total impunity (like the old Roman patria potestas)? In fact, wasn't this the kind of social arrangement the sons wanted to get away from, whether by involuntary expulsion or voluntary flight? As Freud put it in his conclusion to Totem and Taboo: [T]he first rules of morality [Moralvorschriften] and moral restrictions of primitive society… [are] reactions to a deed that gave the authors of it the conception of crime. They regretted this deed and decided that it should not be repeated and that its execution must bring no gain. This creative sense of guilt [schöpferische Schuldbewusstsein] has not become extinct in us.41 Freud sees this “sense of guilt” as stemming from the ambivalence the sons felt towards their father, i.e., “the coincidence [Zusammentreffen] of love and hate towards the same object,” which is “originally [ursprünglich] foreign to our emotional life… was [however] acquired by mankind from the father complex.” This is “the fundamental phenomenon of our emotional life.”42 Nevertheless, how could murder be cogently prohibited when the society itself only arose because its founders were able to kill their oppressive father, a murder for which they consequently, but not initially, felt guilty?43 Now if I understand the plot of Freud's story correctly, the brothers did not feel guilty when planning this primal murder before they actually did it, nor when they were in fact killing their father. The brothers only felt guilty about what they had done afterwards. But, if feeling guilty is the conviction that one deserves to be punished for what one has done (or even plans to do), that is because one has violated a negative commandment – a “thou shalt not” – which one believes is justified in prohibiting what it actually prohibits. Yet, as the Talmud puts it: “We have heard the punishment (onesh in Hebrew), so where is the prohibition?”44 In fact, nullum crimen, nulla poena sine lege (“no crime, no punishment without a prior law”) is a universally accepted legal principle, whose ethical cogency is self-evident. Only acts proscribed in advance of somebody actually committing them are crimes deserving of punishment.45 Thus Freud, too, says that “the sense of guilt expresses

39 Ibid, 43–44. Here Freud argues against the German philosopher, Hans Vaihinger, who had argued in his 1923 book, Die Philosophie des Als Ob [The Philosophy of ‘As If’], that there is value in maintaining views we know are fictitious. For Freud, once such views are unmasked as cover-ups of real, but repressed, events, their value, whether theoretical or practical, is thereby lost. 40 Republic, 414C. 41 Totem and Taboo, 205 = Totem und Tabu, 214. 42 Ibid., 202 = Totem und Tabu, 212. 43 Freud speaks of “a guilty conscience [Schuldbewusstsein — better, though more awkwardly, translated as “consciousness of guilt”], where we become aware of the inner condemnation [Verurteiling] of such acts which realized some of our definite wish impulses… conscience [das Gewissen] also originated on the basis of an ambivalent feeling from quite definite human relations which contain this ambivalence.” (Totem and Taboo, 90 = Totem und Tabu, 119) 44 Babylonian Talmud: Sanhedrin 54a. 45 See Hannah Arendt, Eichmann in Jerusalem, rev. ed. (New York: Penguin Books, 1964), 254–55.

itself in an unconscious seeking for punishment.”46 But shouldn't we distinguish acts deserving punishment because they violated a proscription, especially a law whose reason is obvious to everybody so that nobody can claim ignorance of it, from the wishes of somebody to violate a proscription, but who did not actually do so? In order to be ethically cogent, the prohibition must precede (1) the act itself, (2) the wish or thought of doing the act, and even more so, (3) the prohibition must precede the judgment of whether punishment is warranted or not. Indeed, it would seem that a good psychoanalyst could help a patient overcome undeserved guilt feelings by helping the patient see that real acts which violate reasonable proscriptions do deserve to be punished. That would make the patient's overcoming unreasonable guilt feelings itself more reasonable. Feeling guilty is reasonable when the person feeling this way has actually done something bad, and who thus needs to decide just how to become reconciled to those to whom they have done bad. Feeling guilty is unreasonable, though, when it is for just thinking or wishing to do something bad. As such, it is the exception, not the rule. Only by knowing what is real guilt can we judge what is unreal guilt, just as knowledge of what is healthy enables us to distinguish from it what is sick.47 In this regard, Freud has the problem of a number of social contract theorists, especially the most prominent one in recent times, John Rawls, who claims that persons come to initiate and renew the social contract from behind what he calls “a veil of ignorance,” i.e., with no normative baggage, or with normative baggage they must totally suppress and never retrieve.48 So, we might ask both Rawls and Freud: How can amoral persons legislate norms which are ethically cogent? How can something come from nothing (ex nihilo nihil fit)? Or, how can persons who have never been intelligently and benevolently commanded, themselves intelligently and benevolently make laws that command themselves and others like themselves accordingly? Indeed, Freud exacerbates the problem by presuming that persons who now regard themselves to be criminals can cogently prohibit the very act that brought them together to the social contract in the first place. But how could they do so without inviting a tu quoque retort from those whom they are commanding not to murder? Or, as the Talmud puts it: “Don't blame somebody else for a fault [moom] that is yours.”49 Wouldn't any such prohibition on the part of the brothers be taken to be ethically unintelligible? In the Bible, the “original sin” of humankind might not be Adam and Eve violating the prohibition of eating from the tree-of-the-knowledgeof-good-and-bad since, in fact, that is not called “sin” (het’ in Hebrew). Instead, one could say that the promised expulsion from the Garden of Eden is a prediction of the inevitable, natural consequence of this act of choosing to be in the real world, rather than a punishment imposed on the first couple in reaction to their violation of an actual norm. The term “sin” actually appears first a bit later in the biblical narrative, just before Cain murders his brother, Abel, God warning him that “you can control it” (Genesis 4:7). Thus murder could well be considered the original sin. As such, God judges Cain for his chosen act and sends him into exile as his punishment. But where was Cain commanded not to murder another human being? Here again, “we have heard the punishment, so where is the prohibition (azharah)?” Well, the ancient rabbis saw the prior prohibition of murder in the first mention of God's contact with the humans God has just created, i.e., “the Lord God commanded [va-yitsav] humankind [ha'adam]” (Genesis 2:16). Now this can also be read as “the Lord God commanded concerning humankind [`al ha'adam], i.e., doing a word play on the similarity of the word for

46 47 48 49

Civilization and Its Discontents, 91. See Plato, Republic, 409A–D. A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 3–22. Babylonian Talmud: Sanhedrin 18a re Zephaniah 2:1.

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“humankind” (ha'adam) and the word for “blood” (dam). And, in fact, the rabbinic term for “murder” is “bloodshed” (shefikhut damim).50 However, when in the biblical story did God command the first humans and their descendants not to murder one another? Where is there a forerunner to the sixth of the Ten Commandments: “you shall not murder [lo tirtsah]” (Exodus 20:13), given centuries later at Mount Sinai? Perhaps one could answer that because God respects humans by making us the subjects of his moral law commanded to us, humans are therefore obliged to imitate God's respect for us by treating our fellow humans accordingly as the objects of moral law we have all been commanded to follow. In other words, what God has done for you, you ought to do for your fellow humans, and not against them. As the Bible puts it: “How can I curse what the Lord has not cursed; how can I be violent [ez'om] with those who the Lord has not been violent with?!” (Numbers 23:8) In fact, as the Talmud teaches, when God attempted to impose the Law on Israel with threats of violence, the Law had no moral authority. It was only when the Law was freely accepted (much later in fact) as the loving gift of God that it gained moral authority.51 As such, punishment is a consequence of violating God's law, but avoidance of punishment is not the reason for not violating God's law; it is only a motive for not doing so. The reason for not violating God's law is because such violation would be offensive to the beneficent God who gave us the law for our good, not our harm. Beneficent action evokes a beneficent response, both to the original benefactor and to the other objects of his beneficence, whether that is taught by precept or even by example.52 Furthermore, in the biblical story, the original sin is not the brothers murdering their father; instead, the sin is one brother murdering the other brother.53 Unlike the Oedipal myth that Freud made the cornerstone of psychoanalysis, where the son murders the father in order to return to his mother and have her all for himself, one of the ancient rabbis imagined that the original brothers, Cain and Abel, were fighting over their mother.54 They desired, as the Anglo-American poet, W. H. Auden wrote: “not universal love, but to be loved alone.”55 Inasmuch as a mother loves her sons in the same way as her sons, whereas a wife loves her husband one way and her son another way, isn't sibling rivalry for the love of a parent a more likely human scenario than a son wanting to love his mother the way his father loves his wife? Aren't the children (girls as well as boys) competing for their mother's love first and foremost? Doesn't the violence occur when one child feels that his or her sibling is getting more of their mother's love, and at the expense of this now resentful, alienated child? In other words, it seems that rivalry over the same kind of love is more likely to occur than rivalry over two different kinds of love. Moreover, this kind of sibling rivalry could just as easily be between females, which is contrary to Freud's clearly male-centric approach in his reinterpretation and development of the Oedipus myth.56 In the biblical narrative, authentic human being begins and is sustained by being commanded by the one true source of all morally

50 Ibid., 56a–6 re Tosefta: Avodah Zarah 8.4. See, also, David Novak, The Image of the NonJew in Judaism, 2nd edn., ed. M. LaGrone (Portland, OR: Littman Library of Jewish Civilization, 2011), 97–112. 51 Babylonian Talmud: Shabbat 88a-b re Exodus 19:17 and Proverbs 11:3. 52 Ibid., 133b re Exodus 15:2. 53 This point is emphasized by the Church father, Augustine, City of God, 15.5. By quoting the pagan author, Lucan (Pharasalia, 1.95), he emphasizes a more universal acceptance of fratricide as the original sin. See Riceour, Freud and Philosophy, 211. 54 Midrash Rabbah: Genesis, 22.7. 55 “September 1, 1939” in Seven Centuries of Verse: English and American, 2nd edn., ed. A. J. M. Smith (New York: Scribner's, 1957), 687. 56 For a discussion of how Freud's male-centric approach has troubled even some Freudians, especially some female Freudians who are otherwise beholden to him, see DiCenso, The Other Freud, 23–27. DiCenso, following the approach to Freud of the French psychoanalyst, Jacques Lacan, attempts to interpret Freud in a less male-centric way, even arguing that Freud himself made attempts in that direction.

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valid, hence irrevocable, commandments. Human societies arise in the world to make the observance of these commandments a public reality. But the source of that irrevocable law could only be the Creator-God. How could it be a human father, when children learn soon enough that their father is quite fallible and not always wise or benevolent? That is something wise and benevolent parents readily admit, especially when they hold their children up to a higher standard that they acknowledge has authority over them too. That is why, it seems, Adam, Cain's physical father, does not appear either before or after Cain's crime. For how could Adam assume Godlike authority as either prime lawgiver or final judge when he himself is under God's authority as much as his sons are, since he is obviously not divine? (Along these lines, isn't it pointless to condemn tyrants for “playing God” if, like Freud, one believes God to be a human invention?) Thus the Talmud indicates that even children are supposed to know, insofar as their parents have already instructed them, that when a parent's command contradicts a divine command, the divine command always takes precedence, “because you are all obligated [hayyavim] to honor Me.”57 So, if the origin of human society is the patriarchy both the Bible and Freud assume it is, that patriarchy itself, in the biblical view, is under the law it did not create and cannot, therefore, repeal or claim permanent exemption therefrom. The law originally makes the society (lex facit regum); the society does not originally make the law (rex facit legum).58 Yet it would seem that for Freud (and for Rawls), society can do what the Bible assumes only God can do: create something out of nothing (ex nihilo). How can those coming from a state of lawlessness come to a state of lawfulness by their own efforts alone? What distinguishes law from what one philosopher has called “ordered brutality”?59 But how could those who themselves had never been commanded know how to command anyone else rationally? For, as Freud would have it, their only experience of being told what to do or not to do by anybody came from their brutal, self-serving, primal father, exercising physical power, not moral authority, and for his own interest, which is usually at odds with the interests of those under his power. Furthermore, the notion that law is not original in the human condition, and that somehow or other it emerged as a human invention, in fact, commits what philosophers have called the “naturalist fallacy,” i.e., deriving a prescription (an “ought”) from a statement of fact (an “is”).60 If the brothers' killing their father is something they felt they had to do instead of being something they ought not have done, how could the moral proscription of murder be derived from this fact? By contrast, the biblical myth of human origins does not commit this fallacy. That is because the prescription “you shall not murder your human neighbour” is not derived from a statement of what God did, but rather it is derived from a statement of what God commands, which is the way God contacts his human subjects normatively, and from which they can infer the specific commandments that normative contact entails. A prime prescription, what the legal philosopher Hans Kelsen called a Grundnorm, can cogently engender subsequent prescriptions in a way a description, however elementary, cannot do.61

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Babylonian Talmud: Yevamot 6a re Leviticus 19:3. For this concept's function in both Christian and Jewish, biblically based, political theology, see Oliver O′Donovan, The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge: Cambridge University Press, 1996), 236–42. 59 Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 205. 60 G. E. Moore, Principia Ethica, 4.67–68 (Cambridge: Cambridge University Press, 1903), pp. 113–14. For the principle “no ought from an is,” see David Hume, A Treatise of Human Nature, 3.1.1., ed. L. A. Selby-Bigge (Oxford: Clarendon Press, 1888), pp. 469–70. 61 See Kelsen, The Pure Theory of Law, trans. M. Knight (Berkeley, CA: University of California Press, 1970), 193–214, even though the thoroughly secularist Kelsen would not recognize a divine command to be a Grundnorm. 58

Please cite this article as: Novak, D., On Freud's theory of law and religion, International Journal of Law and Psychiatry (2016), http://dx.doi.org/ 10.1016/j.ijlp.2016.06.007

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6. The problem of religion Finally, this brings us directly to the question of religion, i.e., the God question. Now there is no doubt that Freud's atheism is central to his philosophy. (Whether it is central to his clinical praxis is arguable, however.) Yet unlike so many modern atheists who can't understand how anybody could have ever believed in God, Freud takes the religious recognition of God very seriously, for this recognition fulfills a very strong and persistent human need (Bedürfnis in German, and a favorite word of Freud's). Freud sees gods and God to be the human projection on to reality of a replacement for the omnipotent father whom the first humans had just killed. Their motive in killing him was because his continued dominating presence was depriving them of their own independence, which means, fundamentally, their inability to become fathers themselves, since the primal father kept all the women to himself. Nevertheless, Freud imagines that the brothers also regretted what they did to their father. But why? Wasn't their father an insufferable, selfish, violent, dangerous threat to their lives? Why not good riddance? So Freud seems to answer this obvious question as follows: “The situation created by the removal of the father…must have brought about the extraordinary increase of longing for the father [Vatersehnsucht].” That is because “the brothers who had joined forces to kill the father had each been animated by the wish to become like the father.” But, he goes on to say: “this wish had to remain unfulfilled. No one could or was allowed to attain the father's perfection of power, which was the thing they all sought.” So there was “a tendency to revive the old father ideal in the creation of gods.”62 Along these lines, elsewhere Freud says that the human person “creates for himself [schafft sich] the gods whom he dreads, whom he seeks to propitiate… [t]he defense [Abwehr] against childish helplessness… a reaction which is precisely the formation of religion [Religionsbildung].”63 But what did the primal father do for his sons and not just against them so that they should miss him, despite what he had done to them and what they had done to him? Well, what the father did was to protect them from other fathers, from the forces of nature that he could handle as a powerful male better than his boys, and protect them from each other (in a way that Adam couldn't protect Abel from Cain). That is why, it seems, the sons project an ideal being on to external reality who, over time, becomes greater and greater than the primal father ever was.64 However, what took humankind so long to figure out how their prehistoric ancestors had deluded themselves and deluded their descendants? Well, it would seem that, as far as Freud is concerned, humankind could only wake up from this delusion with the quantum leap of modernity during the Enlightenment. For this is when humankind (actually, only West-European humankind), at the time of the French revolution, killed off the royal father (i.e., Louis XVI) and then divided up (at least in principle) his absolute sovereignty among all the citizens in the form of equal rights for the republican sons. Based on this revolutionary trajectory, Freud was convinced that enlightened reason will ultimately triumph over blind faith. Nevertheless, Freud's modernist optimism evidenced in his 1927 book on religion, The Future of an Illusion, is very much toned down in Moses and Monotheism, finished in 1939, after escaping the Anschluss that drove him out of Vienna by the most unenlightened, irrational Nazi despotism. 7. The divine lawgiver-judge Perhaps what Freud missed in the history of religion, certainly in the history of Judaism (the religion he was born into and never formally renounced membership in), is that God is not primarily thought of as Savior, especially insofar as God's saving activity is largely seen to have been done in the irretrievable past or to be yet done in the radical, 62 63 64

Totem and Taboo, 191 = Totem und Tabu, 203. The Future of an Illusion, 35 = Die Zukunft einer Illusion, 127. Ibid., 47.

unpredictable, messianic future. Instead, God is seen primarily to be Lawgiver (noten ha-torah), who does not save humankind from the world, but rather gives humans a modus vivendi to live in the world without being done in by the world. Therefore, the original sin in this area of human life is the type of autonomy that presumes we humans can totally govern ourselves as if we created ourselves. Yet how can we be beholden to ourselves, if we have not created ourselves? Isn't any maker greater than what he or she has made? Moreover, this kind of radical autonomy presumes we humans come from nowhere and are bound for oblivion. But doesn't that make our human attempts to live rationally, i.e., purposefully, exercises in futility, since the rest of the world seems to be irrational and purposeless, if not absurd? It shouldn't be forgotten that the same Lawgiver God who gave humans “justifiable [tsaddiqim] statutes and laws” (Deuteronomy 4:7) is the same God who created a lawful universe lawfully. “He commands [tsivah] and it comes to be; he spoke and it endures.” (Psalms 33:9). Surely, this view of God does not provide the balm Freud thought the human projection of God has provided deluded religious believers. For the Lawgiver God is also “the judge [ha-shofet] of the whole earth” (Genesis 18:25), who not only gives the Law, but who enforces the Law by severely convicting those who have violated it, and whose exonerating mercy is mysteriously unpredictable. Substituting anything or anybody else for God the Lawgiver is what is called “idolatry” in the Bible. It is the sin of wanting “to be just like God” (Genesis 3:5), which means that God has been totally replaced as God. Of course, the only way God can be replaced is by being permanently displaced, i.e., to be killed. And, though Nietzsche didn't coin the phrase “God is dead” (Gott ist todt), his is by far the most well-known formulation of it.65 Freud's counter-biblical narrative seems to be influenced by the idea of the death of God, whether he actually took it directly from Nietzsche or not. But Nietzsche is much more radical than Freud, who often talked like an Enlightenment optimist, speaking of transposing the transcendent God into immanent human reason (which he even named logos).66 Conversely, Nietzsche stresses that once God has died (presumably having been killed by modern man), humankind is thereby on its own, without a rudder in a fundamentally irrational world, without any way to return to our pre-modern, enchanted existence. Any attempt to understand our power to be an evolving increase of our power over the world, Nietzsche would regard as a return to a god, however modernized that god becomes. More brutally honest than Freud, Nietzsche understood the risk atheists must take if their atheism is to be truly radical, instead of sublimating the longing for the old dead God above us into a new god who is within us.67 Indeed, isn't the modern notion of “autonomy,” not so much the projection of human power on to a superhuman being, as Freud following Feuerbach frequently asserts, but rather the reduction of the biblical God into godlike human beings, who can direct themselves into a future of their own making?68 Nietzsche will allow us no such refuge with any idealized, immanent god.

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Thus Spake Zarathustra, pt. 2 Note The Future of an Illusion, 89–90 = Die Zukunft einer Illusion, 156: “Our god Logos is perhaps not a very almighty one [but]… we have one sure support [Anhalt] which you lack. We believe [glauben] that it is possible for scientific work to gain some knowledge about the reality of the world, by means of which we can increase our power [Macht] and in accordance with which we can arrange [einrichten] our life.” 67 Thus Zarathustra (who seems to be the voice of Nietzsche himself), after his proclamation of the death of God, proclaims: “I teach you the self-transcending man [den Uebermenschen]. Man is what must become something to be surpassed [überwinden]. What have you done to overcome him?” Also Sprach Zarathustra, 3, Friedrich Nietzsche: Werke (München: Carl Hanser Verlag, 1967), 1:549 (my translation). Surely, this is more radical than the type of enlightened, progressive, immanent humanization of God that Freud was still advocating as late as 1927 (before the Great Depression and before the rise to power of Hitler, both of which occurred thereafter during his lifetime). 68 For the importance of the 19th century German philosopher, Ludwig Feuerbach, in Freud's thinking, especially his thinking about religion, see Hewitt, Freud on Religion, 15– 17. In general, Hewitt's book gives the most thorough representation of the complex thinking of Freud and his disciples on religion. 66

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8. Freud's praxis and/or Freud's theory? Freud's master-narrative, his counter-biblical story, which is the way he presented his philosophical anthropology has a number of very serious philosophical flaws. I have tried to point out some of them. The lingering question, though, is whether the value, indeed the validity, of his impressive clinical modus operandi is contingent on his theoretical philosophy or not. It seems there are three possible options here. First, if one holds the praxis to be contingent on the theory, then acceptance of the theory validity will necessarily entail acceptance of the praxis. Second, if the theory only informs the praxis, then one could accept the praxis while denying the theory. Third, one could deny any theory is needed even to only inform the praxis. Fourth, one could even accept the praxis yet affirm some other theory as better informing the praxis than Freud's own theory does. Fifth, if one rejects the praxis,

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then one certainly will reject the theory, as the theory is harder to justify than the praxis. Sixth, one can be indifferent to both the praxis and the theory. Accepting the first four options makes one a Freudian or at least “Freud-friendly.” Clearly, though, the fifth option makes one an antiFreudian, while the sixth option makes one a non-Freudian. In my own case, though impressed by Freud's praxis, I still find the biblical theoretical alternative to Freud's theory more philosophically cogent; and that attachment is much more than a sentimental one. The fourth option, then, is my option, which does not entail the rejection of Freud's impressive praxis. In fact, the biblical myth might even be able to theoretically inform Freudian or Freudian-influenced praxis better than Freud's own myth/theory could do.

Please cite this article as: Novak, D., On Freud's theory of law and religion, International Journal of Law and Psychiatry (2016), http://dx.doi.org/ 10.1016/j.ijlp.2016.06.007