Abstract
The great work of the psychotic judge Daniel Paul Schreber, namely Memoirs of My Nervous Illness, has received predictable and rather unimaginative interpretations as the discourse of a lunatic. The work has not been studied as a theory of law. Schreber, it is argued here, was an extreme lawyer, a radical melancholegalist, a black letter theorist, a critic avant la lettre (noire), and a radical theorist of an impure jurisprudence.
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Notes
Legendre (1974, p. 174).
All references to the Memoirs and to the transcript of the Royal Court of Dresden’s decision are to the marginal page numbers provided in the Harvard reproduction of the 1955 translation (Schreber 1988), which has an excellent introduction by Samuel Weber. The definitive study of the case history is Lothane (1992). Eric Santner also provides a good overview and discussion of the history Santner (1996).
Not that he would sit as a judge, which was now administratively precluded, but that he could, that he was competent to do so.
I am here paraphrasing and adapting Jean Laplanche: ‘This project should be seen as both a preface and an introduction to investigations that would aim not at interpreting the oeuvre according to a certain conception of psychosis, but at listening to and making more explicit the poetic utterance of madness’ (Laplanche 2007, p. 14). Laplanche’s study of Hölderlin has many intriguing parallels with Schreber and allows the citation of the maxim as in poetry so in law. A variant of this analysis can be found in Foucault’s ‘The Father’s “No”’: ‘Any discourse which seeks to attain the fundamental dimensions of a work must, at least implicitly, examine its relation to madness: not only because of the resemblance between the themes of lyricism and psychosis … but more fundamentally, because the work poses and transgresses the limit which creates, threatens and completes it’ (Foucault 1977, p. 80).
The reference to the Morellian method is drawn from Carlo Ginsburg (Ginsburg 1990).
He continues: ‘I was by no means what one might call a poet, although I have occasionally attempted a few verses’ (Schreber 1988, p. 63).
The analysis of such a space, its ceremonial forms and symbolic expressions has been a central focus of Legendre’s work and can be approached best through (Legendre 1990).
Santner was the first to develop the concept of Schreber’s madness being an expression of an investiture crisis (Santner 1996).
The dictates papae are reproduced by Legendre (Legendre 1974, p. 68).
Santner usefully addresses this phenomenon in terms of the ‘migration of the royal flesh—that strange material and physical presence endowed with a peculiar force—that supplants the merely mortal body of the king into the bodies and lives of the citizens of modern nation-states’ (Santner 2011, p. 10).
The origin of the debate is Ulpian, and Digest 1.4.1, quod principi placuit, legis habet vigorem, but the proximate source is the glossator Azo and, because of the influence of Kantorowicz’s study, it is usually to Bracton, De Legibus et consuetudinibus Angliae that reference is made (Bracton 1968–77). See also (Lewis 1964; Haverkamp 2010).
For a discussion of the combination of rational law and mystical theology, see (Cacciari 2009, p. 181 et seq.).
The definition is impressively located in a footnote.
For further on the image, see Goodrich (2014).
References
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Goodrich, P. The Judge’s Two Bodies: The Case of Daniel Paul Schreber. Law Critique 26, 117–133 (2015). https://doi.org/10.1007/s10978-015-9154-z
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DOI: https://doi.org/10.1007/s10978-015-9154-z