Critical Models Interventions and Catchwords

The theorist who intervenes in practical controversies nowadays discovers on a regular basis and to his shame that whatever ideas he might contribute were expressed long ago—and usually better the first time around. Not only has the mass of writings and publications grown beyond measure: society itself, despite all its tendencies to expand, in many cases seems to be regressing to earlier stages, even in its superstructure, in law and politics. Embarrassingly enough, this means that time-honored arguments must once again be trotted out. Even critical thought risks becoming infected by what it criticizes. Critical thought must let itself be guided by the concrete forms of consciousness it opposes and must go over once again what they have forgotten. Thought is not purely for itself: especially practical thought, so closely tied to the historical moment that in this regressive age it would become abstract and false were it to continue to evolve from its own élan regardless of the regression. This alone is the bitter truth to the talk of “the thinker in indigent times”:¹ what he produces depends on the fact that in making it conscious he activates the moment of regression imposed upon him. And especially when it comes to enlightenment about sexual taboos it is difficult to say anything that was not known already and then repressed again, most recently during the era of women’s alleged emancipation. Freud’s insights into infantile sexuality and the partial instincts,² which stripped the last shreds of legitimacy from conventional sexual morality, retain their full validity even in an age that would like to disarm depth psychology, and what Karl Kraus wrote in his incomparable early work Morals and Criminality—recently reprinted as the eleventh volume of his Works by Langen-Müller³—cannot be surpassed in rigor or authority. The situation itself helps perpetuate what has become obsolescent and therefore now truly evil: it is noted that nothing new is being said, as though that alone amounted to a refutation. But the second enlightenment that is nowadays played off against the first merely amounts, in Enzensberger’s phrase, to abolishing the original.⁴

Yet sabotage of enlightenment in the name of its obsolescence also derives its pretexts from the object itself. Talk of sexual taboos sounds anachronistic in an era where every young girl who is to any extent materially independent of her parents has a boyfriend; where the mass media, which are now fused with advertising, incessantly provide sexual stimulation, to the fury of their reactionary opponents, and where what in America is called a healthy sex life* is so to speak a part of physical and psychic hygiene. It includes, to use the nice formulation of the sociologists Wolfenstein and Leites, a sort of morality of pleasure, a fun morality.*⁵ In comparison with all this, proposals for the reform of legislation on sexuality prima vista have something venerably suffragette-like about them. And the guardians of absolute order can respond with a cheap irony that rarely misses. People have their freedom, they do what they want to anyway, and only crimes should be checked by the law—so why reforms?

There is no other response to this than that sexual liberation in contemporary society is mere illusion. This illusion arose together with the phenomenon sociology elsewhere describes with its favorite expression, ‘integration’: the same way in which bourgeois society overcame the proletarian threat by incorporating the proletariat. Rational society, which is founded upon the domination of inner and outer nature and disciplines the diffuse pleasure principle that is harmful to the work ethic and even the principle of domination itself, no longer needs the patriarchal commandment of abstinence, virginity, and chastity. On the contrary, sexuality, turned on and off, channeled and exploited in countless forms by the material and cultural industry, cooperates with this process of manipulation insofar as it is absorbed, institutionalized, and administered by society. As long as sexuality is bridled, it is tolerated. Formerly, society had reluctantly accepted sexuality through the sacrament of marriage; today, it takes sexuality directly under its control without any intermediate authorities like the church, often even without any state legitimation. But, at the same time, sexuality has changed because of this. If in his attempt to describe what is specifically sexual Freud emphasized the element of indecency—and this means what is offensive to society—then on the one hand, this element has disappeared, and on the other hand only now is it truly loathed, rejected. This reveals nothing less than a desexualization of sexuality itself. Pleasure that is either kept cornered or accepted with smiling complaisance is no longer pleasure at all; psychoanalysts would be able to demonstrate without difficulty that in the entire sex industry—monopolistically controlled and standardized as it is, with its ready-made appliqués of film stars—fore-pleasure and pleasure-substitutes have surpassed pleasure itself.⁶ The neutralization of sex, which has been traced in the disappearance of grand passion, blanches sex even where it is believed to be unabashedly satisfied.

However, one can conclude from this—and the contemporary neuroses should confirm this—that in truth the sexual taboos have not fallen away. Only a new, deeper form of repression has been reached, with all its destructive potential. Whereas sexuality has been integrated, that which cannot be integrated, the actual spiciness of sex, continues to be detested by society. If it is true that what is specifically sexual is what is eo ipso forbidden, then this prohibition knows how to make itself felt even in the manifestations of sex that are allowed or sanctioned. Surely nowhere more than in the zone of what is still consistently ostracized can so much of the concealed monstrosity be revealed. In an unfree society, sexual freedom is hardly any more conceivable than any other form of freedom. Sexuality is disarmed as sex*, as though it were a kind of sport, and whatever is different about it still causes allergic reactions.

Thus despite everything it is necessary to take up once again the subject of sexual taboos and the legislation of sexuality, not only because of a presumably powerless solidarity with the victims but also in consideration of all the damage that might be done by the increasing repression accompanying societal integration. This repression may permanently feed into the reservoir of authoritarian personalities, who are ready to run behind totalitarian governments of whatever stripe. One of the most palpable results of the Authoritarian Personality was that those people who had the specific character structure that predisposed them to become followers of totalitarianism were especially plagued by persecution fantasies against those whom they considered to be sexual deviants and, in general, by wild sexual notions they rejected in themselves and projected onto other groups. The German sexual taboos fall within the same ideological and psychological syndrome of prejudice that helped National Socialism build its mass support and whose manifest content lives on in a depoliticized form. But it could concretize itself politically at the right moment. Immanent to the system and yet also imperceptible, today it is more dangerous to democracy than are the neofascist groups, which for the time being find far less resonance and have far fewer material and psychic resources at their disposal.^a

Psychoanalysis investigated sexual taboos and their expression in law, especially in the criminological area—one need only mention Aichhorn’s studies⁷—and what it revealed at that time is still valid today. But this work needs to be supplemented if it is to comprehend the state of affairs in its most recent historical phase. In Freud’s era everything stood under the sign of precapitalist or high-bourgeois forms of authority: the patriarchalism of the nuclear family, repression by the father and its consequences, the compulsive character together with the anal syndrome ascribed to it. Of course, the thesis that the societal superstructure transforms itself more slowly than the base has also been borne out psychologically in the relative constancy of the unconscious, which Freud emphasized. In the face of the predominance of the real processes of society, the individual psyche is in fact secondary or, if you will, superstructure. Among the collective powers that have replaced the individual authority of the father, the father imago lives on, as Freud had already ascertained in Group Psychology and the Analysis of the Ego.⁸ However, since that time changes have occurred in the authoritarian structure of society that affect at least the concrete form of sexual taboos. Genital sexuality, against which the traditional threat of castration is directed, is no longer the target. The Lebensborn stud farms of the SS, the young girls who were encouraged to enter into temporary liaisons with those who had proclaimed themselves an elite and had organized themselves as such, are, like many pioneering crimes of the Third Reich, merely an anticipation in extremis of the tendencies of society as a whole.⁹ The SS state was no more a realm of erotic freedom than is the libertinage of the beaches and camp sites nowadays, which by the way can be revoked at any moment and returned to the state of what the language of taboos calls healthy attitudes. Anthropological traits such as young people’s overvaluation of the concrete, the atrophy of the imagination, the passive accommodation to overpoweringly given conditions, represent an aspect that rather precisely corresponds to the new form of sexual taboos.

According to Freudian theory, the prevailing form of sexuality sanctioned by civilization, genital sexuality, is not what it pretends to be—originary—but on the contrary is the result of an integration. Under the constraint of social adjustment, the partial instincts of the child are combined through the agency of the family into a unified drive serving the societal purpose of reproduction. The precarious nature of this integration into genital sexuality did not escape Freud’s notice and, in a thoroughly patriarchal and bourgeois gesture, he deplored it. A true, instinctually erotic life, the relations that generate pleasure, is by no means that healthy sex life* that in the most advanced industrial countries today is encouraged by all sectors of the economy, from the cosmetics industry to psychotherapy. Rather the partial libido lives on within the genitality into which it was fused. All happiness is aroused by the tension between the two. Just as the partial instincts remain thwarted to the extent that they are not fulfilled genitally, as though they were part of a stage that did not yet know pleasure, so too the genitality, purged of all the partial drives proscribed as perverse, is impoverished, impassive, as though shrunken to a point. From a psychodynamic point of view, the desexualization of sexuality would surely be considered the form of genital sex in which genital sex itself becomes a powerful generator of taboos and where the partial instincts are inhibited or obliterated. It’s a nice bit of sexual utopia not to be yourself, and to love more in the beloved than only her: a negation of the ego-principle. It shakes that invariant of bourgeois society in the widest sense, which since time immemorial has always aimed at integration: the demand for identity. At first it had to be produced, ultimately it would be necessary to abolish it again. What is merely identical with itself is without happiness. Genital sexuality’s concentration on the ego and its likewise self-centered Other—and it is not by chance that the designation “partner” has come into fashion—harbors narcissism. Libidinal energy is displaced onto the power that dominates it and thereby deceives it. Nonetheless, the sense of indecency that Freud emphasized clings to the excess of the partial instincts beyond genitality and confers upon genitality its force and its prestige. The traditional social taboos attacked both genitality and the partial drives in one, although they probably were chiefly directed against the latter; Sade’s œuvre was a revolt against this attack. In tandem with the increasing social reinforcement of genitality the pressure mounts against the partial drives and against their representatives in genital relations. What remains of the partial drives is cultivated only as socialized voyeurism, as fore-pleasure. Contemplation by many replaces union with one and thereby expresses the tendency to socialize sexuality that itself constitutes an aspect of sexuality’s fatal integration. The desexualization of sexuality is strengthened by the premium patriarchal society places upon the female character, her passive docility, weaned from all personal affect, if possible from all aspiration to her own pleasure. Sexuality is confiscated by an ideal of the natural life and in a culture of healthy outdoor living is reduced as much as possible to pure genitality that rebels against every refinement. The form that taboos assume in the environment of formal freedom should be studied; some importance should be given to such models as this idea of naturalness but also to the standardized, as it were, cellophane-wrapped samples of sex. In a climate that mixes the subterranean force of prohibitions with the lie claiming that those prohibitions have lost their force, the latest style of persecutions is flourishing. Unless appearances are deceptive, more than ever the partial drives are being repressed mentally and materially—complementary to the ego-weakness evident everywhere as a specific psychological inability to deviate from what everyone else is doing—while at the same time the partial drives are also being manipulated by society; the less, apparently, is considered indecent, the worse the vengeance exacted on what for all that is still judged to be so. The hygienic ideal is more rigorous than the ascetic ideal, which never wanted to remain what it was. However, the taboos in the midst of the illusion of freedom cannot be taken lightly, above all because no one completely believes in them anymore, whereas they are still reinforced by both the unconscious of individuals and by institutional powers. In general, the more eroded repressive ideas have become, the more cruelly they are enforced: their application must be exaggerated so that the terror persuades people that what is so powerful must also be legitimate. The witch trials flourished after Thomistic universalism had already waned.¹⁰ The exhibitionist confessions of sin by those who give free reign to their moralism by associating it with the word ‘rearmament’ are likewise so attractive to the masses because the concept of sin when detached from theological dogma no longer has any substance.¹¹ This is also what reinforces the specific character of taboo. Whereas primitive taboos were irresistible because they were motivated by the incest prohibition, whose power of psychological repression excluded all rational justification, sexual taboos in the age of at once both total and stymied enlightenment have an augmented power, since they no longer have a raison d’être even for those who obey them. The prohibition as such now absorbs the energies it used to receive from other sources that have become exhausted in the meantime. The lie branded onto the taboo becomes itself an element of sadism that overtakes the chosen victim and with a knowing nod gives him to understand that his fate is due not to the offense but rather to the fact that he happens to be somehow different, that he deviates from the collective, that he belongs to a precisely designated minority.—Nevertheless, the taboos nowadays do not have any new content: they are rather the imitation of more ancient ones. Lying deeply buried within the cultural imagination, these taboos can be exploited by manipulative powers. They are reawakened from above. Their imitative pallor serves social repression. They allow the accumulated ancient indignation to be redirected at whatever is timely and opportune, regardless of its quality: otherness as such is the chosen enemy. An empirical investigation is needed to explore how taboos, which are half forgotten and from a social standpoint in fact relatively obsolete, are able to be mobilized. At present it is difficult to say whether the rage exploited by the demagogy of morality is primarily and immediately a reaction to erotic privations. It is also conceivable that it is a reaction to the entire constitution of contemporary life. In the context of formal freedom each individual is burdened with an autonomy that, from an anthropological standpoint alone, he cannot bring off, while through the disproportion between the overpowering institutions and the minuscule scope of action granted him the individual also objectively feels overtaxed and threatened; a threat surely containing within itself, concealed and long since become unrecognizable, the ancient threat of castration. The taboos can be reawakened because social suffering—in psychological terms, that of the ego—is repressed and displaced onto sexuality, the age-old ache.¹² In total contradiction to what takes place on the surface, sexuality becomes the nerve center of society; at present the sexual taboos are stronger than all others, even the political taboos, despite the virulence with which the latter are hammered home.

The public sphere resounds with declarations either welcoming or deploring these changes in sexual morals. They are closely related to those current theses about the end of ideology that furnish stifling cynicism with the good conscience of enlightenment while at the same time suspecting every idea that points beyond the present conditions of being anachronistic.¹³ That despite all these views the taboos are not eliminated can be discerned in the forms of objective spirit, in the unspoken conventions and mores, and even more in the sphere of law. Everywhere prostitutes are being persecuted, whereas they were more or less left in peace during the era when sexual oppression was allegedly harsher.¹⁴ It is a mendacious and flimsy pretense to claim that there is no need for whores anymore after the success of women’s emancipation. It befits the zealots least of all to justify their measures with the same moral freedom they want once again to abolish. The technique of police raids, the closing of bordellos, which itself degrades prostitution into the nuisance it is so often accused of being, the fervor declaring some quarters particularly menaced, only then to wax indignant at the rampant influx of whores in the places where they must seek refuge—like the Jews they should have no shelter—all this indicates an attitude that, while crying murder over the degradation of eros, does all it can to degrade it once again: by condemning it to never know happiness. The prostitute, the image of what inexperience and envy imagine to be vice, is undoubtedly identified largely with the partial instinct. She is supposedly the source of perversity, in the most amazing contradiction to the miserable and miscarried way of making a living that prostitution has become in a society of glasshouses where every hiding place has been smoked out. There is no need to harbor illusions about the off-limits* sector, and yet the whores, who in the meantime have become as repulsive as society’s envy spitefully imagines them and treats them, should be defended against the ignominy of morality as unsuspecting representatives of an alternative sexuality. The arguments brought forward by this ignominious morality, the damages the whores cause, the offense they give, are nugatory; no one need tarry with them unless he wants to see them, even less if bordellos were tolerated. It is doubtful that the appearance of a streetwalker offers much novelty to young people, who are courted with devotion by the magazine kiosks; the harm such sights allegedly cause is fictitious. Ridiculous and annoying is a quid pro quo like the one that occurred when a Protestant pastor in a metropolitan quarter promised in his sermons and meetings to eradicate prostitution instead of restricting his nightlife to the evening concerts that are planned for him and his like and in which he can repress to his heart’s content. It is even more unbearable when the pimps, instead of ignoring him as is usual, shot at his apartment. However, the eventual police explanation that those shots had nothing to do with the pastor’s moral crusade does indeed represent a grave danger for public morality. In a society even remotely as politically mature as its constitution would suggest, the publicity alone would make such incidents impossible. It is indicative of the overall state of affairs that things like this occur and are flogged to death by the press without anyone perceiving the humor. Certainly it would be illusory to seek consolation in the thought that a backward and fanatical minority noisily imposes its will upon the majority. Unbridled morality could not work the street and give the offense it pretends to take if that morality were not in harmony with the population’s structure of instincts. It is undeniably clear that in Germany, where there are a thousand reasons to be wary of persecuting defenseless groups, prostitutes continue to be persecuted relentlessly. Murders of prostitutes go unpunished, and indeed perhaps in each individual case there might be a plausible reason why this is so; nevertheless, the frequency of such unsolved cases, in comparison with the swiftness, for instance, with which justice is meted out in cases of crimes against property, indicates that society’s power, however unconsciously, wishes death to those who in its eyes incarnate, erroneously, the pleasure that ought not to be.^b The hunt is raised against prostitutes not despite the fact that extramarital liaisons have become the rule but rather precisely because of it. Although women won emancipation professionally, they still have to bear their surplus of social burden, and even while being tolerated passively, they sense the taboo that can fall upon them at any moment: for example, they may fall foul of the law on procuration that has been expanded absurdly to cover absolutely anything, or they may become pregnant. This engenders vindictiveness. Part of the hopeless dynamic of what sociology likes to call interpersonal relations is also the fact that those who feel pressure attempt to transfer it onto other, weaker groups, and either rationally or irrationally perpetuate the odium. One of the favorite targets, distinguished by their powerlessness, are prostitutes. Prostitution is made to atone not only for men’s rancor at official monogamy, from which it in turn makes its livelihood, but moreover also for the rancor of women who, while often reluctantly enough getting involved in affairs because that’s just the way things are, continue to mourn the role for which bourgeois society has been training them for centuries, and secretly cherish the quite understandable desire for the security and reputation that marriage brings. The survival of sexual taboos confirms that persecution makes things no better, neither for those women who have been integrated into bourgeois professions, because in their private life they are denied bourgeois privileges, nor for the women who are made outcasts. Of all the nefarious effects of the shady and unacknowledged sexual oppression this is perhaps the worst. It is especially striking in that type of homosexual whose admiration of virility is coupled with an enthusiasm for order and discipline and who, with the ideology of the noble body, is ready to set upon other minorities—intellectuals, for instance.

The abominable paragraph on the law books against homosexuals managed to find safe passage into postwar liberated Germany. The mitigation that permits at least culprits of minor age to go unpunished can easily become an invitation to blackmail. Actually, there is no need to bring forth arguments against this paragraph: it suffices merely to recall its disgraceful character. Let me indicate just one, often overlooked, aspect of the ostracism of homosexuals, who of course are perceived as the portent of a sexuality alienated from its proper purpose.¹⁵ Some people say that so long as they do not abuse minors or dependents, in praxi homosexuals are far less harried nowadays than they were earlier. But it is absurd that a law is justified with the explanation that it will be not be applied, or only sparingly so. It is not necessary to spell out what such conceptual schemas imply for protection under the law and the real relation of people to the legal order. Even if homosexuals were finally left more or less in peace, the atmosphere of persistent legal discrimination would necessarily subject them to unremitting anxiety. If one accepts the psychoanalytical theory that claims that homosexuality in many cases is neurotic, a manner of resolving childhood conflicts that prevents the so-called normal resolution of the Oedipal complex, then the social and legal pressure, even if indirectly, will perpetuate and reinforce the neuroses, according to the psychological law of anaclisis.¹⁶ There are said to be many homosexuals who are intellectually gifted, psychogenetically the probable explanation being that the extreme identification with the mother leads them to internalize those traits the mother possesses in contrast to the father, the representative of a practical sense of reality. If my observations do not deceive me, then precisely among the intellectually gifted homosexuals is the psychological shackling of their productivity conspicuous, the inability to realize all that they are surely capable of. The permanent pressure of anxiety, and the social ostracism, which both inspires and in turn is reinforced by the legislation, play a large part here. Through the paragraph against homosexuality, society tends toward the same thing within the legal sphere as in countless other spheres, toward the destruction of intellectual powers. Where at least the social taboo against homosexuality is more modest, for instance in many aristocratic, closed societies, homosexuals appear to be less neurotic, in terms of characterology less deformed than in Germany.

However, the strongest taboo of all at the moment concerns everything that goes by the catchword “minor age,” a taboo that was already in full swing when Freud discovered infantile sexuality. The universal and well-founded feeling of guilt experienced by the world of adults cannot do without its inverse image and refuge, what it calls the innocence of children, and will use any and all means to defend it. It is common knowledge that a taboo becomes all the stronger the more its adherents themselves unconsciously desire what is proscribed and punished. The cause of the complex about minors probably lies in the extraordinarily powerful instinctual impulses against which it operates as a defense mechanism.¹⁷ This complex should be considered together with the fact that in the twentieth century, possibly due to an unconscious homosexualization of society, the erotic ideal has become infantilized; it has become what thirty or forty years ago with a lecherous shudder was called a “girl-child.” The success of Lolita, which is not a lascivious novel and moreover possesses too much literary quality to be a best-seller, could only be explained by the power of this imago. It is likely that the censured wish-image¹⁸ also has a social aspect, the accumulated animadversion to a state of affairs that pulls people’s puberty and independence apart temporally. Lolita, Tatjana, and Baby Doll¹⁹ have as their complement the public initiative groups who, if they had their way, would post a morally mature policewoman at every playground behind each child to protect it from the evil that adults are just waiting to perpetrate. Were a descendant of Fontane’s Herr von Ribbeck in Havelland to give pears to young girls, then his humanity would immediately be suspect.²⁰

The zone touched on here is delicate not only because of the violent affects that are unleashed as soon as one does not echo the dominant opinion, but also because of the undeniable protective function of the law. Of course, children must be protected from becoming victims of violence, and superiors must be prevented from misusing their position to force those who are dependent upon them to do their will. If a man who has committed sexual crimes against children is allowed to roam free because his parents have taken him in and gotten him a job—as though there were the least relation between the one and the other—then that would ultimately justify those purity-crazed organizations that sue the authorities: in their thoughtlessness the authorities may really bear the responsibility if soon afterward the man in question kills a young girl. But this kernel of truth has been encompassed by a mass of opinions that first of all must be examined instead of sanctimonious zealotry preventing any closer reflection. For instance, the allegedly dangerous effects of reading and viewing pornography are hypothetical. It is both foolish and an infringement upon personal liberty to withhold pornography from adults who enjoy it. As for minors, it is first of all necessary to ascertain the existence and nature of the harmful effects: neurotic defects, phobias, conversion hysteria, or whatever else.²¹ The awakening of interest in sexuality, which often is already present, cannot be defamed as harmful, unless one were radical enough to condemn sex altogether—an attitude that would hardly find much sympathy nowadays and that the apostles of morality are careful to avoid. Unmutilated, unrepressed sex in itself does not do any harm to anyone. This not only should be stated without qualification but also should imbue the logic of legislation and its application. In view of the actual and potential damage that at present can be wreaked upon humankind by its administrators, the need to protect sexuality has something crazy about it. But those who dare to say so openly are even fewer in number than those who protest against such prestigious social institutions as bacteriological and atomic warfare.

Concerning laws protecting minors, we should at least examine whether they really are the victims of violence or cunning ploys, or whether in fact they have not already reached that stage of development the law takes it upon itself to postpone, that is, whether they have not themselves provoked their own abuse for their own pleasure, or perhaps simply for purposes of blackmail. For the time being, a male prostitute who afterward murders and robs his clients, and then declares in court that he acted out of disgust at the things he was expected to do, has good chances of finding lenient judges. In addition, the protection afforded dependent persons is all too summary. Were the praxis to exhaust the letter of the law, there would not be prison space enough for all the offenders; certainly this alone is no argument but nonetheless a symptom. Moreover, it may well be that the regulations in force permit the theater director to have a liaison with his actress but forbid the theater manager from having an affair with one of his office employees. The relevant paragraphs need to be modified sensibly so that they are applied only to such cases where superiors exploit their position of power against subordinates, actually and demonstrably threaten them with dismissal and other disadvantages, but not when the situation itself brings the couple together, as for example Paulo and Francesca during their reading.²² A cautious version of paragraph 174 of the current penal code that excludes every misapplication is all the more urgent as it is precisely this paragraph—though by no means only this one among the paragraphs devoted to morality—that constitutes an invitation to, as it is called in the modern German jargon so conscious of tradition, knock off [abschießen, literally “shoot down”] those who are politically or otherwise undesirable.²³

On the whole it is not just a matter of moderating the legislation. Much should be strengthened, especially the paragraphs addressing crimes of brutality. As Karl Kraus recognized, prohibited tenderness toward minors is consistently punished more harshly than when the children are beaten half to death by parents or teachers.²⁴ If someone commits brutal acts of violence while drunk, then his condition will be taken into account and his punishment will be mitigated accordingly, as though in the heart of the esprit des lois there lives a code of conduct that not only tolerates drunkenness as an excess but requires it as proof of manly virtue. The fact that it is again and again affirmed to be no mere peccadillo when tipsy drivers—by the way still in full possession of their senses—have run someone down, simply shows how ingrained is the proclivity to see it precisely as a peccadillo, and jurisprudence should also take this into account. German driving practices, in contradistinction to those in the Anglo-Saxon as well as the Romance countries, surely belong to those national characteristics in which something of the spirit of Hitler’s Reich visibly survives: the contempt for human life. And indeed, it is an age-old ideology, already thrashed into every Gymnasium pupil, that human life is not the highest good. What earlier was an object of scorn for being merely empirical as opposed to the majesty of the moral law has now become, as a result of the evolution of a society proud of having rid itself of ideologies, an object of scorn for the most primitive impulses of self-preservation, the urge to get ahead in the nonmetaphorical sense, the incarnation of a healthy will to succeed. Admittedly this behavior too is not wholly without ideology. Where formerly the moral law held sway, now surveillance insures that the traffic regulations are respected: the precondition for killing someone with a good conscience is the green light. In an analogous fashion social psychology in its investigation of National Socialist mores introduced the concept of legality.²⁵ Planned murders were covered by some kind of arrangement or other, even post festum, as when the “people’s representatives” declared them lawful. The brutality manifested in street traffic apparently has just as much need for legal justification as does the persecution of innocent victims and innocent offenses. The endorsement of brutality and twisted instincts wherever they harmonize with institutional social forms faithfully accompanies the litany of hate against the partial drives. In principle and with unavoidable exaggeration, one could surely say that in law and morals sympathy is accorded to everything that perpetuates the modes of behavior of societal oppression—and ultimately sadistic violence—whereas modes of behavior that are contrary to the violence of the social order itself are dealt with mercilessly. A reform of penal law worthy of the name, which admittedly is hardly imaginable here and now, would free itself from the spirit of the Volk, from those faits sociaux Durkheim had already wanted to recognize by the pain they cause.²⁶

In cases where actions are the results of conflicts between the ego and the id, the question of whether juridical judgments should be severe or lenient centers on the controversy concerning freedom of the will. Usually the partisans of free will decide in favor of the theory of retribution, which Nietzsche had already seen through, and in favor of severe punishment.²⁷ The determinists, on the other hand, opt for the theory of education (special prevention) and for the theory of deterrence (general prevention). This alternative is disastrous. The problem of freedom of the will probably cannot be resolved abstractly at all, that is, by using idealized constructions of the individual and its character as something existing purely for itself, but only with the consciousness of the dialectic of individual and society. Freedom, even that of the will, must first be realized and should not be assumed as positively given. On the other hand, the general thesis of determinism is just as abstract as the thesis of liberum arbitrium: the totality of the conditions upon which, according to determinism, acts of the will depend is not known and itself constitutes an idea and should not be treated as an available sum. At its height philosophy did not teach one or the other alternative, but rather expressed the antinomy of the situation itself. Kant’s theory that all empirical actions are determined by the empirical character that is itself originally posited by the intelligible character in an initial act of freedom, is perhaps the most extraordinary model of this antinomy, no matter how difficult it is to imagine a subject capable of giving himself his character,²⁸ and whereas in the meantime psychology has revealed the factors in early childhood that determine character formation, factors German philosophy, at least at the end of the eighteenth century, had not the faintest idea of. The more the elements of character must be attributed to the empirical sphere, the more vague and intangible becomes the intelligible character supposedly underlying everything. It probably cannot even be defined as an individual psyche at all, but only as the subjective disposition of an association of objectively free people. All this turns traditional philosophy, the field where jurisprudence locates its foundations in the debate concerning penal law, into a wasteland. This makes it easy for the arbitrariness of a mere worldview to surreptitiously assume supreme authority. Whether one adheres to determinism or the doctrine of free will depends for the time being on the alternative one chooses, for God knows what reasons. Whereas all other domains of the world are being so relentlessly transformed into scientific disciplines that expertise and specialization confiscate every possible knowledge, a discipline that prides itself on its scientific rigor as much as jurisprudence does, at a decisive juncture, takes common sense* as its central criterion, with all of its inherent murkiness, right down to healthy popular sentiment and the average opinion. This gives the destructive instincts psychology discovered behind the authoritarian need to punish an opportunity to come into play exactly where the demand for reason in jurisprudence becomes emphatic: where reason extends beyond the domain in which it is institutionally reinforced. Nevertheless, the contradiction in which philosophy has entangled itself, that is, that humanity is inconceivable without the idea of freedom while in reality people are neither internally nor externally free, is not a failure of speculative metaphysics but the fault of the society that deprives people even of inner freedom. Society is the true determining factor, while at the same time its organization constitutes the potential for freedom. After the decline of great philosophy, which was completely aware of the objective societal elements inherent in subjective freedom, the antinomy it perceived has been reduced to isolated slogans that are not even antithetical anymore. On the one hand, there is the hollow pathos of freedom evoked in official declamations, which mostly performs a rallying function in favor of unfreedom—that is, in favor of the authoritarian ranks—and on the other hand lies the obtuse and abstract determinism that goes no further than merely affirming determination and in most cases does not get at the true determining factors. At the center of the controversies in moral and legal philosophy once again absolutism and relativism shadowbox each other. The unmediated division between freedom and unfreedom is false, although even this has its element of truth: a distorted expression of the real separation of subjects from one another and from society.

A rigorous determinism, for all the accuracy with which it expresses the unfreedom of people within the established order, would in effect have nothing convincing to oppose the praxis of Auschwitz. Here it encounters the limit that is neither transcended by the substitute philosophy of so-called values²⁹ nor dissolved in the mere subjectivity of morality. This limit marks the irresolvably differential moment within the relation of theory to praxis. Praxis is not tantamount to autarchic, immobilized thought: the hypostasis of theory as well as that of praxis is itself an element of theoretical untruth. Anyone who helps a victim of persecution is theoretically more in the right than someone who persists in meditating on whether there is an eternal natural law or not although moral praxis requires all one’s theoretical consciousness. To this extent Fichte’s proposition that the moral law is intuitively self-evident for all its dubiousness still makes a valid point.³⁰ A philosophy that makes impossible demands on itself in regard to praxis, to the point where it would like to force a complete identification of praxis and theory, is just as false as a decisionistic praxis that eliminates all theoretical reflection. Healthy common sense, which simplifies this in order to have something tangibly useful, threatens the life of truth itself. Today philosophy is not to be transformed smoothly into legislation and juridical procedures. A certain modesty is proper to them, not only because they are not on a par with the complexity of philosophy but also for the sake of the theoretical state of knowledge. Instead of just up and cheerfully thinking away and betraying the question to a false profundity or a radical superficiality, jurisprudence must first of all catch up with the most advanced level of psychological and social knowledge. Science everywhere is occupying the field of naive consciousness, to the very point of paralyzing every unregimented thought; yet in the field jurisprudence takes for its own, the sciences of sociology and psychology indeed have at their disposal more information than do the juridical experts. The latter combine a pedantic-logical systematic with an intellectual attitude that acts as though science had learned nothing about determinant factors and as though each person could choose on his or her own the philosophy that suits him or her best and then substitutes a clattering bustle of homemade concepts for the knowledge currently available. In general one may venture the hypothesis that a philosophy mobilized in an auxiliary role—nowadays most evident in existential ontology—actually has only a reactionary function. On the other hand, the undiluted discoveries of psychoanalysis should be applied to sexual taboos and to legislation concerning sexuality: they should be made productive for questions of criminology. Without any claim to systematicity, several possible investigations may be enumerated.

1. A representative survey should be conducted centering on the relationship between sexual prejudices and fantasies of punishment on the one hand and ideological predispositions and inclinations of an authoritarian nature on the other. The so-called F-scale from The Authoritarian Personality could serve as the point of departure.³¹ However, it would be necessary to adapt the research instrument in terms of the range and variety of opinions about sexuality. It should be stressed that at that time in America the query statements related to this area were the most powerfully selective and continue to be so in attempts to adapt the American scale to conditions in Germany.

2. For a given limited period, a sample of the judicial opinions handed down in morality trials should be selected, probably at random, and the decisive standpoints as well as the argumentative structure should be identified and analyzed. The prevailing categories as well as the logic of the presentation of evidence should be confronted with the findings of analytical psychology. It is to be expected that the justifications encountered here in many cases resemble the kinds of items recurring regularly in the newspapers: that the body of Mrs. X, a social security pensioner, was recovered from a river, that it is a case of suicide, and that psychological depression is assumed to be the motive of the deed.

3. A representative sample of prisoners incarcerated for having committed sexual offenses or sexual crimes should undergo psychoanalytical study for the duration of their sentence. The analyses should then be compared with the judicial opinions for the purpose of examining their soundness.

4. The categorial structure of the relevant penal laws should be critically analyzed. However, a fixed external standpoint should not be adopted: they must be examined only with a view to their immanent logical consistency. The tendency of what to expect can be discerned, for example, in the notion of a partial compos mentis. It allows for the lunacy where the same person is first consigned to prison or a correctional house when judged responsible for his actions, and then to a mental institution when subsequently judged not responsible.

5. Certain aspects of the code of criminal procedure relevant to sexuality would merit specific study. Thus in all cases where a defendant is accused of offending public decency, particular emphasis should be given to the police reports referring to the often confused situation in which the crime is supposed to have been committed. Much suggests that these reports often arise as a result of pressure exercised upon intimidated defendants caught in the course of a police raid. Certainly many of them are unaware of the significance of the statements they make to the police.—Also the fact that the accused are not permitted a lawyer during the preliminary examination often makes their defense more difficult. This too should be investigated.

6. Individual trials, which need not directly involve sexual offenses, but in which elements relating to sexuality are touched upon, should be studied in detail in order to ascertain in what manner those elements have helped determine the course of the trial and possibly the rendering of the verdict. The recent past offers the case of Vera Brühne. It is conceivable that correlations can be shown between the severe verdict handed down on the basis of hardly conclusive circumstantial evidence and the erotic matters brought up in the trial, although much of it had no plausible connection with the murder. The indefensible belief that a woman who has a libertine sex life is also capable of murder surely played a latent role in the trial.³²

7. Dogmatic concepts that still haunt legislation today, such as those of healthy popular sentiment, universally valid opinion, natural morality, and the like, should be isolated and analyzed by those trained in philosophy. Particular attention should be devoted to the rationalistic justifications more iuridico of actions that in truth follow the laws of psychological irrationality.

8. With full awareness of the unquestionably extreme difficulties confronting such a project, one should undertake empirical studies of the question whether certain actions and behavior tacitly believed to have a harmful influence on adolescents actually do cause verifiable harm. Exhibitionists, often presented as monsters, are in reality mostly innocuous and harmless, if credence can be given to psychoanalysis. They do nothing more than look compulsively for their pathetic satisfaction and surely belong in therapy more than in prison. The psychic damage, however, they supposedly cause the minors who see them is for the time being merely asserted. Although it has not been proven, it is indeed possible that encounters with exhibitionists cause psychic disturbances in children; yet, it is not too far-fetched that some girls and women, for psychogenic motives, invent terrible experiences with exhibitionists or, as psychoanalysis terms it, that they fantasize their pasts: criminology is well acquainted with the situation thanks to the testimony of witnesses. Likewise the effect that so-called indecent depictions have on youth should be investigated. A group of adolescents who have read some book considered immoral could be questioned about the various dimensions of their intellectual and psychic state, their ideas about morality, eroticism, even about their desires and urges, and another group that has not read the book could be similarly interrogated. Particular care must be taken that the groups are not self-selected, that is, that those people who read the book are not already at the outset sexually more experienced or inquisitive than those who will not read it. It is wholly to be expected that such investigations will prove to be unfeasible practically, or that it will be impossible to develop a method that guarantees sound and unambiguous results. However, even this would be instructive: the simple fact that the presumed damage can be neither proven nor denied would have to result in legislation that would proceed extremely cautiously with the concept of such damage.