Before the law

Chapter 3

Before the law

‘Before the law’, an essay of Derrida on Kafka’s text with the same title, and which will be the main focus of this chapter, also includes a reading of Freud’s Totem and Taboo. The latter book repeatedly makes its appearance in Derrida’s texts,¹ but in ‘Before the law’ we find the most detailed consideration thereof. Freud’s Totem and Taboo enquires into the origin of religion, morality, social institutions and law. He contends that this origin is to be found in a crime, the killing of the primal father by a band of brothers, followed by the institution of totemism and the prohibition of murder and incest. Freud’s psychoanalytical account of the origin of the totem and of the prohibition of murder and incest has been challenged from various quarters. If totemism thought of as a system is indeed an illusion, as Lévi-Strauss has perhaps most persuasively shown, should one for that reason dismiss Freud’s Totem and Taboo and its theory of the primal horde in relation to the origins of law, or is there still some insight to be gained from it? Through a reading of ‘Before the law’ as well as a number of other texts of Derrida, it will be contended that Freud’s thinking remains of great importance in understanding law’s origin, even though it may be necessary to somewhat revise the traditional reading of Totem and Taboo. Derrida’s texts point to the importance of reading Freud in a specific way, rather than the rejection of his thinking as a whole in this respect, and more specifically, to the need for a reconsideration of the originary nature of the Oedipus complex. In rethinking the origins of law, Freud’s study of the universality of the incest prohibition in archaic societies remains of importance, as has been confirmed by anthropological studies on this prohibition as well as on the gift by among others, Lévi-Strauss and Mauss. The focus of this chapter will be Derrida’s reading of these texts, in considering the origins of law. So as to enable us to understand fully Derrida’s reading, the chapter will start with a brief exposition and contextualisation of Freud’s contentions in Totem and Taboo. This will be followed by a consideration of Lévi-Strauss’s structuralist critique of totemism as an institution as well as of the important role of incest in his thinking. We will then be in a position to understand Derrida’s problematisation of structuralism and his deconstructive reading of Lévi-Strauss’s texts as well as of Freud’s Totem and Taboo and Kafka’s Before the Law. In the final section we will briefly consider how Derrida’s analysis in ‘Before the law’ ties in with his later deconstruction of concepts such as justice, hospitality, friendship and democracy, with reference to the notion of originary guilt.

A number of Freud’s later texts concern themselves with the origin of religion, morality, law and other social institutions. Following the evolutionary thinking in relation to social phenomena which was prevalent around the turn of the twentieth century, Freud shared the view of certain anthropologists and sociologists that this origin is to be found in an elementary form of religion, specifically as practised by some Australian aborigines. Freud’s views in this regard are expressed primarily in Totem and Taboo (1913), where he enquires into the totem and its relation to the Oedipus complex. Freud in this respect finds a number of similarities between the beliefs in archaic communities, children (especially animal phobias), and neurotic patients as well as the symbolism in dreams. In the view which Freud (2001: XIII 103–7) adopts, the totem in its original form is an animal, which is peculiar to a specific clan and treated with superstitious respect. The totem may in general not be harmed, killed or eaten by members of that clan and they are believed to have descended from the totem. Originally the totem is inherited through the female line and restricts the sexual freedom of the younger generation –that is, sexual intercourse between brothers and sisters and between sons and their mothers (at 121–2). Freud as a consequence describes exogamy as the ‘notorious and mysterious correlate of totemism’ (at 105). At ceremonial occasions, identification of the clan with the totem is particularly emphasised, for example by dressing in the likeness of the totem and imitating it in sound and movement (at 140). At specific ceremonies the totem is furthermore killed and devoured by all the men of the clan (Freud 2001: XXIII 131).2 After the consumption of the totem animal, its death is mourned, followed by licentious festivities (Freud 2001: XIII 140). In an attempt to explain totemism as well as the fact that many of the archaic communities still to be observed at the time consisted of bands of males in totemic clans while concerning themselves primarily with the prohibition of two crimes (murder and incest), Freud (at 141–6) posits an ‘event’ analogous to the ‘crimes’ of Oedipus as depicted by Sophocles.3 In an early age, Freud contends, mankind lived in small hordes with a jealous, primal father in each instance ruling over such horde. The father had exclusive possession of all the women in the horde. If a son would invoke his father’s jealousy, he would be killed, castrated or driven from the horde (Freud 2001: XXIII 81). The sons – fearing, admiring, loving and at the same time hating the primal father, because of being deprived by him from having their sexual desires fulfilled by their mother(s) and sisters – one day decided to rise against him, and then killed and consumed him, so as to gain his strength. Either because no single brother was strong enough to take the place of the primal father or because if one of them were, it led to new battles, they eventually realised that the previous position of a single leader is no longer tenable. For the sake of peace with one another, they therefore decided on the institution of a (totemic) community of brothers, a kind of ‘social contract’ through which incest and murder (of the totem animal) were prohibited.⁴ In this development lies the commencement of social, moral and religious obligations, according to Freud (2001: XXIII 82–3). The institution of the totem (the totem being a substitute for the father (Freud 2001: XIII 141)) as well as the totem prohibitions, served as a covenant between the sons and the totem: the totem granting them everything they could wish for, and they in turn respecting its life. It was also an attempt at self-justification: if the primal father had treated them the way the totem treats them, they would never have killed him, in this way making it possible to origin of the totem (at 144–5).⁵ Totemism was thus instituted as an attempt at reconciliation with the father. Freud notes in this respect that immediately after the murder, the feelings of affection they had for him, turned into remorse (at 143–5), raising the question how this could have happened even before the institution of morality.⁶

Did Freud believe that the killing of a primal father actually occurred, and is he therefore, because of a belief in the phylogenetic inheritance of this ‘event’ to be associated with Lamarckism? On the face of it, Freud⁷ can certainly be read in this way, as commentators have argued,⁸ although, as Derrida (AF 34–6) has pointed out, things may be somewhat more complex.⁹ The major difficulties with Freud’s account perhaps lies in (1) its assumption concerning the universality of the Oedipus complex and tied closely to this (2) the assumption of the existence of something like ‘totemism’ from which other institutions subsequently evolved. The latter point was elaborated on by anthropologists such as Alexander Goldenweiser, Alfred Lowie, Franz Boas, Alfred Reginald Radcliffe-Brown and Claude Lévi-Strauss. Although Freud was aware of the various manifestations of the totem in different societies, he believed as noted earlier that certain clans of Australian aborigines give evidence of the most original form, totemism having at an earlier stage been a feature of all societies. The criticism of this evolutionary view of society, specifically in relation to the totem, as held by Freud and others around the turn of the twentieth century, by Lévi-Strauss, is for our purposes the most important and will be discussed next. The first point (totemism’s relation to the Oedipus complex) will be enquired into below in our discussion of Derrida’s ‘Before the law’.

Lévi-Strauss, in stark contrast to Freud, contends that the notion of ‘totemism’ is nothing but an illusion, the bringing together of different ideas under one name as a result of Western prejudice against people deemed ‘primitives’ or ‘savages’ (Lévi-Strauss 1991: 1–2). Anthropologists created the impression that there are vast differences between ‘primitive’ societies and Western civilisation, with only the latter being characterised by rational thinking. The ‘phenomenon’ of totemism, Lévi-Strauss argued, was a projection of the Western mind, and, aligning himself with Rousseau’s thinking on human nature, an exorcism of the close relation that exists between man and nature. In the traditional Western view of ‘primitives’ and of ‘totemism’, the ‘savage’ was too close to nature, too close to animals, in comparison with the discontinuity evident in the relation which ‘civilised’ (that is, normal, white, adult) man has with nature (at 2–3). According to Lévi-Strauss, and in line with his structuralist views, totems function in heterogeneous ways in different clans, with the consequence that totemism cannot be viewed as a system. This is borne out by the fact that the reason for the adoption of a specific plant, animal or lifeless object as a totem differs greatly among different tribes and clans.10 Nonetheless, the different ways in which relations to a totem are structured (inter alia matrilineal/patrilineal hereditary transmission, as existing between the group/individual between a species of animal/plant or a specific animal/plant, as well as the different taboos related to a totem) are all different means to give expression to the relation between nature and culture (at 16–17). The ‘irregularity’ which exists in this regard does not therefore necessarily mean the non-existence of a ‘structural principle’ (at 88). The theory which Freud (2001: XIII, 110–13) explicitly rejected – that the different totem animals are a way of distinguishing between different clans – finds an important place in Lévi-Strauss’s theory. According to Lévi-Strauss (at 77–8) it is precisely because of the resemblance in relation to the differences between animals and the differences between men that totemic representation takes place. In this respect the myths on which totems are based, reveal, as observed by Radcliffe-Brown, that they have a single theme:

Developing this idea further, Lévi-Strauss concludes that the choice of totem is simply one of the ways in which a structural principle – that of the union of opposites – finds application (at 88). The relation that is in this way posited between correlations and oppositions can of course take place in a variety of ways, which explains the wide array of totem representations throughout the world. Totemism is thus merely one of the ways in which opposition is made to serve the purpose of integration, rather than being an obstacle thereto (at 89). Through his analysis of totemism and myth, Lévi-Strauss in essence attempts to show that the ‘savage mind’ is as logical or coherent as the ‘Western mind’, the only difference being the nature of the things to which they are applied (Lévi-Strauss 1963: 230; 1966: ch. 1).11 The study of the totem in archaic societies in particular shows the unconscious logical structures of the mind, which is a feature of all of humanity, and which remains beyond human control.¹² In different societies, both ‘primitive’ and ‘civilised’, one can thus observe the recurrence of the same patterns, as a consequence of the demand for order (Lévi-Strauss 1966: 10).

According to Lévi-Strauss, in The Elementary Structures of Kinship (1969: 24–5), the prohibition of incest nonetheless remains of importance as it provides the bridge between nature and culture, the latter being born only with the prohibition of incest.¹³ This prohibition nonetheless forms part of both nature and culture, seeing that it has the universality of an instinct and is thus part of nature (at 10) whereas it is at the same time subject to contingent rules and thus part of culture:

(at 12)14

The primary role of culture, as Lévi-Strauss contends, is to ensure the continuing existence of the group as a group, and as in other domains, to replace chance by organisation (at 32). The rules of exogamy are instituted, as with all classifications, because of the need for order, specifically for the purpose of the continuous existence of the group. It is thus an intervention, but not in any arbitrary sense: ‘it is the intervention’ (at 32). Formally, as Lévi-Strauss points out, the prohibition is an assertion by the group that in relation to sexual matters one cannot simply do as one pleases (at 43). The incest prohibition and its inverse, the rules of exogamy, are ‘culture itself’ because they aim at ensuring that the distribution or circulation of women takes place under the control of the group and are the same for everyone (at 42, 45). The incest prohibition, because of its implications (she who may not be taken is given up) in other words amounts to a rule of reciprocity similar to an exchange of gifts (at 51ff.), with women being the most highly prized category of goods (at 51, 61–3). The exchange of women, similar to the totem, but more fundamentally so, serves the purpose of integration (at 25):

Consequently, exogamy should be recognized as an important element – doubtless by far the most important element – in that solemn collection of manifestations which, continually or periodically, ensures the integration of partial units within the total group, and demands the collaboration of outside groups. Such are the banquets, feasts and ceremonies of various kinds which form the web of social life. But exogamy is not merely one manifestation among many others. The feasts and ceremonies are periodic, and for the most part have limited functions. The law of exogamy, by contrast, is omnipresent, acting permanently and continually; moreover it applies to valuables – viz., women – valuables par excellence from both the biological and the social points of view, without which life is impossible, or, at best, is reduced to the worst forms of abjection. It is no exaggeration, then, to say that exogamy is the archetype of all other manifestations based on reciprocity, and that it provides the fundamental and immutable rule ensuring the existence of the group as group.

The prohibition of incest is therefore not in the first place about not being allowed to marry one’s sister, mother or daughter because of some intrinsic quality, but about being obliged to give them to others (at 481). Marriage,Lévi-Strauss (at 483) concludes, is the archetype of exchange and ‘the woman herself [is] the supreme gift among those that can only be obtained in the form of reciprocal gifts’ (at 65). The rules of exogamy are furthermore not necessarily tied to the totem in a specific way. In the Inuit, for example, exogamy is practised only in relation to the immediate family, with the consequence that it is not related to totemism (Lévi-Strauss 1991: 11–12). The latter requires the formation of a system on the social level. Totemism cannot therefore be said to have been a feature of all societies and there cannot be said to be an original form of totemism from which all others derive as Freud believed.15 In some Australian groups the rules of exogamy moreover have no relation to totemic beliefs and customs (Lévi-Strauss 1991: 36). For Lévi-Strauss, the incest prohibition, rather than totemism therefore lies at the origin of culture, which (together with their ability of speech) place ‘primitive’ societies on the same level as modern societies (OG 108). Freud’s contention in relation to exogamy and the existence of an intrinsic relation to the totem are thus rejected too. The prohibition against incest is moreover subject to different rules in different societies and one of these (matrilineal) cannot be said to be more originary than the others.¹⁶

Derrida on Lévi-Strauss

The important contribution of structuralism according to Derrida lies in its placing in question of the concepts of metaphysics, such as the nature–culture opposition, its abandonment at times of a search for an absolute origin (WD 286), its rejection of an evolutionary approach, and its attempt to undermine the assumptions of Eurocentrism. As we will see, structuralism’s relation to metaphysics nonetheless remains ambivalent and at times it is not vigilant enough about its reliance on the concepts of metaphysics in its critique of metaphysics. In the case of Lévi-Strauss, this is because the full implications of the idea of a classificatory structure are not as yet grasped and also because of a residual nostalgia for origins and pure presence (WD 292). The notion of a structure, as Derrida points out, has operated since the inception of Western philosophy with the idea of a centre, point of presence or fixed origin, which keeps the structure in place (WD 278). This centre has in addition the role of limiting the ‘play’ of the structure, the ‘field of infinite substitutions’, as Derrida also refers to it (WD 278, 289).17 Within the traditional concept of structure, ‘play’ in this sense is allowed, but only within certain definable limits. The centre is therefore inside the structure, yet it is also ‘outside’ of the structure in the sense that it is not itself subject to the play of the structure (WD 278). In structuralism, and specifically in the work of Lévi-Strauss, we see the centre of the structure operating in this sense in relation to the prohibition against incest, which Lévi-Strauss posits at the origin of culture. Derrida here provides a minute analysis of what is at stake in the nature–culture distinction and the role of the prohibition of incest as origin in Lévi-Strauss. As noted earlier, Lévi-Strauss points out in this regard that the prohibition of incest finds itself in the peculiar position that it seems to (1) itself form part of the transparent system of (cultural) differences, and that (2) it at the same time provides the origin of the difference between nature and culture; it is therefore also located outside of the (cultural) system as its condition of possibility (OG 103–4).¹⁸ The difficulty Lévi-Strauss encounters here ties in with the traditional, metaphysical distinction which he adopts between nature and culture, and which he views as ‘two mutually exclusive orders’ (Lévi-Strauss 1969: 8). In accordance with this distinction, that which is universal and spontaneous, and which is not dependent on a particular culture or determinate norm, belongs to nature, whereas that which depends upon a determinate system of norms, which can vary in different societies, belongs to culture (WD 283). As we saw above, the prohibition against incest is universal and therefore must fall within nature, yet it is also determined by norms, subject to variation, and must therefore at the same time form part of culture (WD 283, OG 104).19 Lévi-Strauss therefore refers to the prohibition of incest as a ‘scandal’ as it does not appear to fit neatly into the traditional metaphysical framework (Lévi-Strauss 1969: 8–9). As Derrida (WD 283) however notes, there is a ‘scandal’ here only because of the reliance on the concepts of metaphysics, here the nature–culture distinction. Lévi-Strauss, in spite of his awareness of the problem surrounding the nature–culture distinction, is nonetheless prepared to make use of this (metaphysical) distinction as a tool in his analysis or what he (Lévi-Strauss) refers to as bricolage. In this respect, Lévi-Strauss can be said to separate method from truth (WD 284). Both in relation to the concept of structure in general and here specifically with the incest prohibition in structuralism, a contradiction is at stake which as Derrida notes ‘expresses the force of a desire’ (WD 279). In other words, because of the ‘play’ of the structure, and in order to counter the anxiety that goes along with this, metaphysics responds with a desire for presence.²⁰ We can also express this in a different way: the incest prohibition does not simply produce a scandal to the concepts of metaphysics, but escapes these concepts, precedes them, perhaps as their condition of possibility (WD 283). How does the prohibition of incest relate to this pre-origin of play? Derrida accuses metaphysics of wanting us not to contemplate the origin of this prohibition:

It could perhaps be said that the whole of philosophical conceptualization, which is systematic with the nature–culture opposition, is designed to leave in the domain of the unthinkable the very thing that makes this conceptualization possible: the origin of the prohibition of incest.

(WD 283– 4)

As appears from this passage, the ‘centre’ that is posited by structuralism (here the prohibition of incest) is already a substitute or a supplement, not of some pre-existing presence, or of an absence, but that which precedes the presence/absence distinction. The positing of an origin in other words always goes along with the suppression of its own pre-origin. The origin of this prohibition is explored further in Of Grammatology where Derrida discusses this prohibition in relation to the texts of Lévi-Strauss as well as of Rousseau.²¹ Here we return to the notion of ‘desire’ raised above. The desire for presence follows, as we noted, from the absence or rather abyss of presence, namely the representational structure which structuralism has exposed and which makes full presence impossible (OG 163). This abyss, which is the pre–origin of representation, itself involves a form of desire. What is ‘desired’ is ultimately total enjoyment, absolute expenditure – that is, death, ‘our indestructible mortal desire’ (OG 152, 183–4, 266) or what Derrida also refers to as arche-writing (the trace left by this ‘desire’ for death).22 This means that the mother and the sister (the objects of incestuous desire) are always already supplements of what is ultimately desired (OG 156–7, 266).²³