Law Critique (2015) 26:117–133

DOI 10.1007/s10978-015-9154-z

The Judge’s Two Bodies: The Case of Daniel Paul

Schreber

Peter Goodrich1

Published online: 8 May 2015

 Springer Science+Business Media Dordrecht 2015

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 me-
lancholegalist, a black letter theorist, a critic avant la lettre (noire), and a radical
theorist of an impure jurisprudence.

Keywords Kelsen
Lacan
Juridical theology
Psychoanalysis and law

Psychosis
Schreber

Juridical theology mirrors psycho-pathology1

There can be no better instance of the relation of psychoanalysis to law than that of
the hapless bellowing judge Daniel Paul Schreber. The case, the lapsus of the
unfortunate jurist is recorded not only in detailed court ordered psychiatric
evaluations but also and more famously in his Memoirs of My Nervous Illness
(Schreber 1988).2 These lurid and remarkably candid reminiscences have the
distinction of being authored by an extraordinarily distinguished lunatic lawyer, of
becoming the primary subject matter of a lengthy lawsuit and then of being the
subject of an equally expansive psychoanalytic treatment in absentia by Freud

1
Legendre (1974, p. 174).
2
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).

& Peter Goodrich

goodrich@yu.edu
1
Cardozo School of Law, Yeshiva University, New York, NY 10003, USA

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118 P. Goodrich

(Freud 1958) and later by his disciple, Lacan (Lacan 1993). The psychiatric and
psychoanalytic testimonies are unequivocal and unanimous in determining that
Schreber was psychotic, and indubitably mad. The courts too agreed that the
distinguished judge was indisputably insane, but also eventually determined that he
was legally competent, that he was capable of sitting as a judge, and should be
released from the asylum.3
The legal history is brief. In the Fall of 1884, the unknown Dr. Schreber, then
chairman of a state court, a magistrate, stood for election to the German Reichstag
but suffered a crushing defeat. A few weeks later he was admitted to the University
of Leipzig Psychiatric Clinic. He was suicidal, hypersensitive, obsessed with losing
weight and suffering from hypochondria. He was released after apparently
successful treatment by Professor Flechsig and continued to work as a judge for
the next 8 years. In the middle of November 1893, 6 months after taking up his
appointment to Senatspräsident of the Supreme Court of Saxony, Schreber suffered
a severe relapse of his ‘nervous illness’ and was admitted again to the University of
Leipzig Psychiatric Clinic. His symptoms now included the belief that he was
becoming a woman, that he was in direct contact with God, that the divinity wished
to copulate with him once his ‘unmanning’ was complete, and that it was up to him
to save humanity and restore the proper Order of the World (Weltordnung). Along
with these symptoms, and a high level of paranoia, Schreber also describes frequent
hallucinations, involuntary bellowing and a large number of other auditory and
visual delusions. At the same time, the Judge was adamant in his pleadings: ‘I deny
absolutely that I am mentally ill or ever have been. My mind, that is to say the
functioning of my intellectual powers, is as clear and healthy as any other person’s’
(Schreber 1988, p. 405).
It was during the course of this second and longer illness that, without his
knowledge, in 1894, at the instigation of his wife, he was declared mentally
incompetent (entmündigt) and committed into the asylum as an insane person
(Schreber 1988, p. 422). When Schreber discovered that he had been confined he
appealed the decision and, to his surprise, the order was confirmed and made
permanent by the County Court in April of 1901. The lawsuit that Schreber
conducted against this determination made its way to the Court of Appeals
(Oberlandesgericht) and contrary to psychiatric expectations he succeeded, after
firing his lawyers and representing himself, in overturning the original Order of the
District Court of Dresden. The avowedly and unrepentantly psychotic jurist, the
paranoid judge, himself successfully litigated his release from tutelage. As if that
were not extraordinary enough, the litigation, which was itself a symptom of
psychosis and specifically of denial of his mental condition, provides an
extraordinary set of legal and analytic documents. The pièce de resistance, the
Memoirs themselves considered as legal pleadings, dramatically juxtapose lunacy
and law, psychiatry and jurisprudence, psychoanalysis and legal theory. Most
indicatively, the Appeals Court Judge determined not only that Schreber was mad
but also specifically held that nothing in this madness prevented him from acting as

3
Not that he would sit as a judge, which was now administratively precluded, but that he could, that he
was competent to do so.

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The Judge’s Two Bodies: The Case of Daniel Paul Schreber 119

a judge. It was held that he ‘was capable of presiding over a panel of judges, of
deciding the most intricate cases and delivering most difficult counsel’s opinions
with striking juristical reasoning’. Even the lower Court, which had affirmed the
trial court’s decision to detain the bellowing Judge, was of the view that ‘the
plaintiff’s high intelligence and his capacity of thinking according to formal logic
might not be markedly clouded by his mental illness’ (Schreber 1988, p. 477).
One obvious reading of these extraordinary decisions would be that madness and
judgment, lunacy and legal practice can co-exist, without the one impacting upon
the other. This is presumably because the agon of law and the formal logic of legal
rules have no direct connection to the realm of emotions and here the ‘passional
pyschoses’ from which, in the view of all of the courts that heard his case, Schreber
undoubtedly also suffered. The Appeals Court which finally rescinded the order of
legal incapacity indeed based their judgment in significant measure upon the fact
that the judge’s meticulously reasoned conduct of his case was a primary ground for
determining that while he was without question mentally ill he was equally
evidently legally capable of dealing with his affairs. In the opinion of the Appeals
Court, the decision to find the Judge competent was predicated as much as anything
else upon the fact that the jurist had appeared on time and fully prepared, had
submitted his own briefs and had rigorously marshaled the legal argument and
evidence, including the Memoirs, for his release. That he was capable of dealing
‘with so involved a legal matter in self-composed representation with circumspec-
tion and expert knowledge’ (Schreber 1988, p. 480) was persuasive evidence of the
fact that he was not legally incapacitated. That the Judge was also able to negotiate
detailed publishing contracts relating both to his own Memoirs and to the format of
his father’s much more popular book on Medical Indoor Gymnastics, provided
further proof of his ability to act rationally in the world and adequately to
distinguish negotium and otium (Schreber 1988, p. 493).
Judge Schreber was, by any definition except his own, psychotic. He believed he
was becoming a woman, he was in direct contact with God, he was hallucinating,
delusional and bellowing, but the Appeals Court of Saxony nonetheless ordered his
release. The ‘lunatic’s printed discourse’, as Lacan terms the Memoirs (Lacan 1993,
p. 11), was a successful pleading of legal sanity. The ontology of mental illness had
no effect upon the epistemology of the person, or the legal conception of action, and
so lunacy and law, juridical theology and psycho-pathology were deemed to inhabit
parallel but non-coincident realms. In holding the Memoirs of madness to be proof
of legal sanity the Appeals Court also and ironically affirmed the psychotic’s
schizophrenic division of the world. The bellowing Judge’s descriptions of the
malevolent interferences of the divine in the human, of miracles and soul murders,
transvestism and sex changes, were in legal judgment compatible with being normal
and living amongst the sane. The non-relation of the lunatic and the lawyer,
embodied as it is in this case in the singular person of our doctor of Jurisprudence,
thus transpires to be the manifestation of the close connection between psychosis
and reason, lunacy and law. Although mad, Schreber could function as a judge, act
as a lawyer and promulgate his own theory of law. The Memoirs thus constitute an
extraordinary and uncensored insight into the unconscious of a judge as well as

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providing a remarkable jurisprudential document and, I will argue, novel theory of

law.
Drawing upon both the psychoanalytic and the juristic interpretations of
Schreber’s writings, I will endeavor to listen to and expand upon the legal utterance
of madness in the belief that this discourse has much, indeed has everything, to
teach us about law.4 First, aligning myself with the psychoanalytic interpretation of
the Memoirs, I will argue that it is law, the ‘Father’s No’, that instigates and suffuses
the psychosis. Schreber is mad of, and mad with law. This leads him to an extreme
but recognizable revision of juridical theology or, to paraphrase Kantorowicz, ‘the
judge, Law’s son, becomes Law’s father’ (Kantorowicz 1958, p. 155). Finally, third
argument, juridical theology is but a small step away from legal philosophy, the
former indeed providing the structure for the latter. Schreber’s revival and rewriting
of juridical theology offers a radical critique of the legal philosophy of the late 19th
century and specifically of the resurgent neo-Kantian science of law that coincided
with the promulgation of the German Civil Code of 1900. His Memoirs were a
harbinger of critical legal studies and his bellowing, the one symptom that never left
him, was nothing if not a cry for creativity and desire, for ars inveniendi and with it
the return of art in law.

Psychoanalysis and Law

We can note initially, as already adverted, that while the Memoirs were begun as a
personal recollection and reflection upon Schreber’s history and its implications for
the crucial matter of religion, it was prepared for publication, and played a major
part in the lawsuit that he brought to end his tutelage. Thus, in the introduction, first
line: ‘I have decided to apply for my release from the Asylum in the near future in
order to live once again among civilized people and at home with my wife’
(Schreber 1988, p. 1). While the rest of the opening goes on to suggest that it is to
the court of public opinion and scientific verification that he wishes to appeal, the
first line should not be discounted. The Memoirs are a pleading, a part of litigation,
support for an action brought at law and extraordinarily replete with instances of
legal terms and maxims throughout the exposition. If he is mad, the Judge is insane
in Latin, a juridical lunatic, delirious in argot and concepts that derive, like
customary law, from time out of mind, and beyond the memory of men.
Just as the text begins with a reference to its status as legal advocacy, the
narrative of nervous illness that it relays also begins with an incident of juridical
significance. Returning to the starting point of the illness, the initial insomnia, the
4
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).

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The Judge’s Two Bodies: The Case of Daniel Paul Schreber 121

first bellowings (brüllen [bullae]), takes us to the autumn of 1884. Schreber stood
for election to the Reichstag, the Saxon Parliament. He was defeated. He fell back
into law. He fell ill. It is surely not too much to suggest that he fell ill of law. We can
even borrow a legal interpretive maxim on this point: finisque ab origine pendet, the
end depends upon the beginning, a proposition that early lawyers were very fond of,
also sometimes formulated, as by Selden as the origin being instar omnium, the
exemplar of everything. The beginning of the illness lay in the failed attempt to exit
law, to escape the profession of judging and turn to politics. It was also, of course, a
rejection in that Schreber did not get the votes, was not democratically approved,
and failed to get elected. The result of this rejection, the failed escape attempt, was
simultaneously to throw him back into law and into illness, a melancholia that must
in part be a reflection of his never letting go of the lost object, the career in politics
that was not to be, save in his persisting dreams and increasingly exorbitant images
and phantasms.
Schreber’s Memoirs certainly return to the early illness but there is no mention ever
of the failure to get elected nor, a fortiori, of his desire to escape law, in Freud’s terms
the dictate of the father, the nom du père, for the world of politics, of non-law, of
greater creativity and the embodiment of passions. This silence, and here we can
borrow Freud’s Morellian method, which is to say we can admit the importance of the
incidental and the unmentioned, the significance of the insignificant, and infer that
this failed election is the originary lapsus, the start of the case in its dual sense, the
event that precipitates the illness and, in being unmentioned and so likely repressed, it
generates everything that follows, and specifically the massive emergence of desire in
law.5 This desire, this repressed creativity and imagination, this political and poetic
will, pervades the Memoirs and eventually sees Schreber standing in front of the
mirror dressed as a woman, and most importantly feeling much better for this
expression of femininity and desire (Schreber 1988, pp. 429–30). Freud indeed
concurs in this interpretation, at least in so far as he places an oneiric reverie at the
root of the second and much longer illness: ‘Once in the early hours of the morning,
moreover, while he was in a state between sleeping and waking, the idea occurred to
[Schreber] ‘‘that after all it really must be very nice to be a woman submitting to the
act of copulation’’’ (Freud 1958, p. 13). As we know, Freud traces this desire to
become a woman into Schreber’s relationship with Professor Flechsig, his first
analyst, and via that relationship and its transference, into the theory of a homosexual
desire generated by the absence of the father.
It is Lacan who draws out Freud’s theory of paternal lack, the rejection which in
this reformulation is translated into a foreclosure that propels the psychotic into
delusion. This is the attempt to fill the gap created by the failure of the Law, the
absence of the nom du père, the lacking name of the father, the function through
which both nomination and law should speak. In Lacan’s formulation, ‘whatever is
refused in the symbolic order, in the sense of foreclosure (Verwerfung), reappears in
the real’ (Lacan 1993, p. 13; see also Lacan 1977, pp. 200–201). Using the example
of Schreber’s fantasy of copulation as a woman, he concludes ‘there is no other way
of realizing himself, of affirming himself as sexual, than through admitting he is a

5
The reference to the Morellian method is drawn from Carlo Ginsburg (Ginsburg 1990).

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woman, transformed into a woman. This is the axis of delusion’ (Lacan 1993,
p. 252). If sexuation defines a primary law, both biblically and classically in terms
of Roman legal institutions, the law of persons beginning by demarcating slave and
free, and, immediately afterwards, designating male, female and hermaphrodite,
then we can understand that ‘the Father’s absence, manifested in the headlong rush
of psychosis, is not registered by perceptions or images, but relates to the order of
the signifier’ (Foucault 1977, p. 82). For the lawyer that signifier is ratio scripta,
Text as well as sex and it is Schreber himself who makes this most manifest in
determining quite independently of any court decision that his trajectory towards
femininity forecloses, or in legal jargon precludes, being a lawyer or a judge.
The lower courts had made a point of stating in their judgments that Schreber’s
legal capacity was unimpaired and the Appeals Court, in allowing his claim to
freedom both acknowledged his juristic competence and praised his conduct of the
litigation as evidence of legal skill and practical competence. It is thus in fact
Schreber who determined that the honorable and strenuous profession of judge that
he had previously pursued was now closed to him. He had been, his Memoirs inform
us, ‘a person of calm nature, without passion, clear-thinking and sober, whose
individual gift lay much more in the direction of cool intellectual judgment than in
the creative activity of an unbounded imagination’ (Schreber 1988, p. 63).6 Now,
however, ‘I have wholeheartedly inscribed the cultivation of femininity on my
banner … The pursuit of my previous profession, which I loved wholeheartedly,
every other aim of manly ambition … are now closed to me’ (Schreber 1988,
p. 178). In his own parlance, his ‘whole heart’, his entire desire and ambition, has
shifted from one cause to another, from one profession to its opposite, from
affiliation to the manly to cultivation of the feminine. It is fully compatible with this
logic of inversion, this trip behind the veil, this mirroring, that Schreber in effect
declares that he is sane but incapable of sitting as a judge whereas the courts held
that he was mentally ill but nonetheless competent to practice law, to be the
Presiding Judge, and to exercise the immaculate reason of legal decision.
Schreber himself draws the sharpest of distinctions between law and libidinal
economy. Law, for Freud, is the space of lack, the place of the absent father, a site
of melancholy, of loss that is not let go but rather retained in the displaced form of
totems and taboos, the boundary marks of the limit of reason. Schreber’s intense
emotions, the delusions and hallucinations may mark his attempt to escape from law
but they also retain and embody a relation to the lack that prompts them, the void
which they are projected so as to fill. Schreber, in other words, never really leaves
law but rather changes his mode of inhabiting it. The shift is from being spoken by
law to resisting the imposition of law, from obedience to rebellion, subservience to
autonomy, although ironically it is of course an imaginary autonomy, one which
leads to his incarceration. While the trajectory that Schreber pursues may seek to
part with law, with the interferences of the divinity in the world, with compulsive
thinking and the automatic writing of the divine rays and other miraculous bodies,

6
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).

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his recourse is to writing his own laws, and to rectifying the Order of the World in
his own image.
God may speak German, the basic language (Grundsprache) to which the
Memoirs refer, but the most obvious feature of the judge’s fight for freedom is its
legal character. We can note the profusion of juristic terms in the descriptions of
Schreber’s madness, the pervasive use of the language of the two laws, utrumque
ius, and the Latin of ratio scripta, of the reason of law according to the German
civilian tradition, the mos italicus. Lacan refers to a hieroglyphics that requires
disencryption, and Freud to the language of dreams, but the most obvious feature
of the jurist’s expression is surely the prevalence of Latin terms, legal figures, and
juristic expressions that are seldom any more coded than in their normal judicial
use. The whole metaphysical struggle of the Memoirs is to restore the ‘Order of
the World’, the proper law of the human relation to the divinity and to that end
Schreber is both the rectifier of the specific tort (Unrecht) committed by Flechsig
against the Order of the World and a crusader for the dual law, at one point citing
the motto of the first Crusades, in hoc signo vinces (Schreber 1988, pp. 144, 78).
Elsewhere it is Schreber’s rights that have been infracted, administrative law is no
ground for his incarceration, a topic on which he submits a lengthy and perfectly
reasoned essay, and the laws of nature in the form of the proper Order of the
World are returned to time and again (Schreber 1988, pp. 223, 268). The purpose
of the whole exercise, restoration of the harmony of the Order of the World, is
early on defined juristically as the project of an unconventional but ‘equalizing
justice’. Latin crops up grammatically correctly, declensions all in place, at
various points, along with a variety of maxims and figures. The souls of the
departed are, for instance, described as ‘being hung on bundles of rods (like the
fasces of the Roman Lictors)’ (Schreber 1988, p. 125). When ‘fleeting improvised
men’ appear they are frequently the representations of departed lawyers. The
prosecutor, the counselor, the lawyer, the court clerk all make appearances, either
disguised in Schreber’s clothes, his armamentarium, or simply as fleeting
improvised, unreal and vanishing figures. Interestingly it is a species of these
improvised men that are responsible for the recording of all of the metaphysical
actions, the thoughts and nerve wars that are reported in the Memoirs. The
‘writing down system’ (das Aufschreibesystem) that they operate from the distance
of their celestial residences, as the scriptorium of God, is evidently in one part a
version of the process of recording, tabling and fining, of tabulating and enrolling
that marks the presence and function of legality. This is the theatrum juridicum of
chancery, of the cancellarius who by writing down erases debts, and latterly of
the clerk who by writing down makes real.7
One final instance of the depth of the juridism enlaced in the pleadings, the
Memoirs, can be taken from the brilliant reading offered recently by Mark Sanders.
He makes the point that even after having recovered from his first illness, thanks to
the treatment offered by the Director of the University of Leipzig Psychiatric Clinic,

7
These themes are pursued in wonderful detail in Vismann (2008). For the writing and filing practices
relevant to Schreber’s era and the continuation of the medieval motto quod non est in actis non est in
mundo (what is not written down does not exist), see Vismann (2008, chapter 4).

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the maligned Professor Flechsig, the judge nonetheless refers to certain mistakes
made in his treatment (Sanders 2016, p. 1). Most notably: ‘I believe I could have
been more rapidly cured of certain hypochondriacal ideas with which I was
preoccupied at the time, particularly concern over loss of weight, if I had been
allowed to operate the scales which served to weigh patients a few times myself; the
scales used at the University Clinic at the time were of a peculiar construction
unfamiliar to me’ (Schreber 1988, p. 35; Sanders 2016, p. 2). Unfamiliarity
prevented the Judge from being able to weigh himself, and Flechsig is mildly
reproved for not having had the time to teach him how to use the scales. Schreber
treats this failure as of minor importance and passes quickly over it. Borrowing from
Freud, however, Sanders points out the extraordinary significance of the scales, the
most basic symbol of justice, and the implication of not being able to weigh himself,
which is that the judge could not judge, could not weigh and balance the cases
before him and so is prevented from doing his job (Sanders 2016, pp. 3–4). This
then leads immediately to the cause of the second illness, insult added to injury,
which is that having failed to escape law into politics, the cause of illness number
one, he is now promoted to President of the Appeals Court. He has, it would seem,
already unconsciously and somewhat ironically declared his own insipient judicial
incompetence prior to his elevation to the higher bench. It is in any event this
unexpected legal promotion that somehow triggers the second and longer illness
from which the bellowing judge never fully recovers.

Juridical Theology

Sanders makes the point that if there is a flaw in the original treatment, a crack in the
cure, then it is a failure to repair the judicial function, the ability to judge. This
interpretation can be given additional support by considering the return of the
metaphor of the scales at the end of the book, where in triumphal mode, Schreber
announcing of his future life that ‘the scales of justice are coming down on my side
more and more … a very special palm of victory will eventually be mine’ (Schreber
1988, p. 293). The scales, however, signal more than mere law, they are the figure of
justice, of a beyond law within law, of the ameliorative power to harmonize the
conflicting and to mitigate the rigidity of strict rule. That justice is more than law is
lexically apparent in the shift from the figure of the scales to that of the palm, the
Christian symbol of triumphal entry, the coming of Christ and the prelude to death
and resurrection. This sense is amply confirmed by the text, which equates the palm
of victory with a ‘growing soul-voluptuousness’ and more specifically with
Schreber’s becoming a woman, with ‘the result that by divine fertilization offspring
will issue from my lap’. And then, to close the point, Schreber compares his
sacrifices over the 7 years of his illness to ‘a martyrdom which all in all I can only
compare with the crucifixion of Jesus Christ’ (Schreber 1988, p. 293).
The psycho-pathology propels a juridical theology, an excursion into the sources
of law and the modes of its apprehension and promulgation. If the function of
juridical theology is to establish, or properly to re-establish, an invisible legal
structure and mythic order to the world, to construct a sacred space, a site of rites

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and ceremonies of reverence from which law and justice mystically emanate, then
Schreber can be interpreted as offering a novel and in many respects involuntary
figuration of truth and law.8 Recollect that Schreber wanted to be free of the
evaluations of the father figure Flechsig. He wished to be taught how to weigh
himself, how to evaluate and measure on his own. The Oedipal complex is
functioning here. He recovers and it is only later that he accuses Flechsig of ‘soul
murder’ and simultaneously blames both his own illness and the infracted state of
the polity upon Flechsig’s and then God’s improper attempts to take over his body
and his thought processes. The scales are awry and the bulk of the bellowing Judge’s
struggle and sacrifice is concerned precisely to restore the proper relation of law to
theology by devising his own schema of the interdependence of the spiritual and
temporal.
The juridical theology of the Memoirs can be approached in relation to parallel
questions addressing the classical topic of the foundation of law: the first is that of
who speaks. Who is authorized to speak? Who speaks and remains to speak again?
The second is that of what is said. What becomes law for us? The starting point must
be that Schreber’s principal illness is triggered by his appointment to the position of
Senatspräsident, Chief Judge of the Appeals Court. The drama begins with an
investiture crisis, a well-recognized and highly significant juridical version of the
political theology of sovereignty. The question has to be addressed initially through
Schreber’s biography. Most importantly, prior to the onset of his illness, he is an
atheist. Without being contemptuous of religion, Schreber favored evolutionary
theory and confesses at two junctures that he did not believe in God. Lacan goes so
far as to depict him as a ‘disciple of the Aufklärung, he is even one of its last
representatives’ (Lacan 1993, p. 124), for whom religion was not an issue and for
whom science and materialism held sway. Borrowing from the terms of the day,
Schreber had to invent God so as to kill him. As Nietzsche put it, one cannot kill
what does not exist and then, on the other hand and paradoxically, the God that one
kills is thereby likely immortalized.
Returning to the question of juridical theology, Schreber’s first issue is with
taking up the place of the lawgiver, or at least that of the highest judge in the realm.
It is, as said, an investiture crisis and it is worth momentarily dwelling upon this
historical and theological concept.9 How better to understand juridical theology than
through theological politics and the issue of the investiture crisis which resulted in
the medieval tables of the law, the dictatus papae or canons that Pope Gregory VII
promulgated to reassert that the Roman Church was founded by God alone and that
emperors could be appointed and deposed by the papacy as the vicars of God.10
Dictate one was that God founded the Roman Church. Dictate two stated that the
Roman pontiff alone can with right be called universal. Later dictates spelled out
that only the pope can use the imperial insignia, and ‘that of the pope alone all

8
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).
9
Santner was the first to develop the concept of Schreber’s madness being an expression of an investiture
crisis (Santner 1996).
10
The dictates papae are reproduced by Legendre (Legendre 1974, p. 68).

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126 P. Goodrich

princes shall kiss the feet’. Dictate twelve is that the Papacy ‘may be permitted … to
depose emperors’. In sum, the Roman pontiff was supreme, vicarius Christi, and in
direct and immediate line to the expression of divine decree. Schreber’s apparent
investiture crisis is close to being a direct mirroring and complete inversion of the
earlier assertion of papal supremacy. Made President of the Appeals Court, installed
in high judicial office, apparently over-valuing his new role, Schreber embarks upon
a very literal search for the sources of his authority and grounds of his legitimacy.
He had, as he himself stresses, been an atheist and now he is caught up in an office
that requires him to play the part of sovereign and fend off the theistic roots of legal
legitimacy so as to give effect to his own mystic body.11
The question of juridical theology, a variant upon the lucubrations of political
theology that are addressed to the angelic character of kingship, devolves upon the
relation of law to sacred or mystic sources, to the supernatural and supra-sensible.
The legal formulation of the question returns to the glossators and is elaborated by
way of interpretation of the position of the law-giver as being sub Deo et sub lege,
and elsewhere as being both infra and supra, below and above the dictates of law.12
Schreber’s investiture crisis, in other words, mirrors that of the Gregorian reforms in
the precise sense that it is not the dictatus papae that are to be reinstated, these are
foreclosed, and in their place the Judge seeks to establish, to carve out a worldly
space of law, that he commands. The juridical theology that Schreber pronounces is
of justissima tellus in the legal argot, that of a most just earth, a tellurian equity that
repairs the wrongs that God has done, and rectifies the terrifying miracles, the
intrusions and the soul thefts that the impure, the tested souls and the dead, the
‘fleeting improvised men’ have wreaked upon humanity. Most importantly, while
Bracton’s solution was classical and juridical, arguing in effect that the king was the
embodiment of utrumque ius, of both laws, Schreber takes a different tack and
recognizes the necessity of a theological resolution to the juridical problem. The
demand of lawgiving, of presiding, of being a ‘supreme court of justice’ required a
sacrifice of self, a rebirth that is marked in theological terms by the impossible unity
of divine and human, spiritual and temporal in the exception, in haec imago, this
image, this face, this Schreber who, to indulge a pun is also this screamer, this
uniquely bellowing jurist, this ebullient lawyer who proclaims and announces.
Schreber is very clear that his Memoirs are a text not only of legal utility for him,
but also and in the longer term more relevantly: ‘I plan to submit my Memoirs to
specialists from other fields of experience, particularly to philosophers and
theologians’ (Schreber 1988, p. 422). The juridical theologians have ignored this
importuning and the gap needs to be filled. Schreber’s juridical theology, his
complexio oppositorum, begins with the critique of religion and specifically with an

11
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).
12
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).

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The Judge’s Two Bodies: The Case of Daniel Paul Schreber 127

assault upon the practices of the divinity.13 There is, as bedrock, as the foundation of
human life, a juridical ontology manifest in the already cited concept of the Order of
the World: ‘This may seem somewhat obscure, in so far as the Order of the World
may appear as something impersonal and higher, more powerful than God or even
as ruling God. In fact there is no obscurity, ‘‘The Order of the World’’ is the lawful
relation which, resting on God’s nature and attributes, exists between God and the
creation called to life by Him’ (Schreber 1988, p. 63).14 Schreber’s epistemic
struggle is thus located within the divine and is technically Manichean, a battle of
God against himself, Deus contra Deum, whereby the Judge endeavors to bring God
into conformity with his own being, attributes and powers.
The cause of the theological struggle lies in certain divine confusions and most
particularly the transgression of the proper and lawful separation of spiritual and
temporal, tellurian and celestial realms. In the normal ‘Order of the World’, ‘as a
rule, God did not interfere directly in the fate of peoples or individuals’ (Schreber
1988, p. 12). It was key to the lawful functioning of things that after creation, ‘from
then on, He left the created organic world as it were to itself … In general He
diverted His activity to other celestial bodies and to drawing up to Blessedness the
souls of departed human beings; He Himself retired to an enormous distance’
(Schreber 1988, pp. 251–52). Now, much later, something is rotten in the state of
Denmark, things are out of joint and the reason is that God has ceased to recognize
the proper limits of divine manifestation and has failed to maintain the great
distance from the world that is necessary for celestial being. Through a plethora of
means: divine rays, nerves, homunculae, terrifying miracles, tested souls, fleeting
improvised men and other manifestations of soul murder and of the dead, God
endeavors to intrude upon and reorder the temporality. Such incursion is disastrous
because contrary to the ‘Order of the World’ but also because it is founded upon
misunderstanding. Schreber makes clear from early on, that ‘regular contact
between God and human souls occurred only after death’ (Schreber 1988, p. 12).
God dealt only with corpses and the failure to recognize this limit and propriety was
the cause of all the conflicts and failures: ‘A fundamental misunderstanding
obtained, however, which has since run like a red thread through my entire life. It is
based upon the fact that, within the Order of the World, God did not really
understand the living human being …’ (Schreber 1988, p. 55). Allied to this,
Schreber notes also that God fails to comprehend human language, mistaking nerve
language for actual human expression, and so confuses dreaming with thought,
unconsciousness with consciousness. As if this were not rotten enough, the jointure
of divine and human is most emblematically rendered asunder by the realization,
‘incredibile scriptu … God is totally incapable of judging a living human being
correctly’ (Schreber 1988, p. 246).
The issue is again that of judging, the inability to weigh what Sanders notes as
being the symptom of a comprehensively juridical psychosis. God cannot judge
because it is not part of the divine function or ‘Order of the World’, for the deity to

13
For a discussion of the combination of rational law and mystical theology, see (Cacciari 2009, p. 181
et seq.).
14
The definition is impressively located in a footnote.

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128 P. Goodrich

intrude, speak or determine after the creation. It was his mandate and promulgation
that God withdraw and thence the justice of the earth belongs to the judge who can
weigh and measure sub Deo et sub lege, non sub homine—under God and under
law, but not under man. Here Schreber pictures himself as the archetype of the
persona germinata, a figure which Kantorowicz briefly discusses in terms of the
theology of mixed personality, the impossible unity of two natures in one person.
The persona germinata, to cite Kantorowicz’s vivid depiction, ‘is ontological … an
effluence of a sacramental and liturgical action performed at the altar, it is liturgical
as well’ (Kantorowicz 1958, p. 59 et seq.). The impossibility of this conjunction lies
in the sacrificial mystery of manifestation. To germinate is not simply to bear but in
classical Latin also means to manifest, to exhibit, to beget and so the judicial
persona germinata must in strict juridical theology split himself so as to give birth
to the earthly spirit, the justissima tellus of law. Lacan calls it martyrdom to the
unconscious, and that provides a certain definition to the Christian narrative in
which the only and exemplary unity of contraries in Christ results necessarily in
sacrifice. Anselm Haverkamp captures the point well in observing that this is the
product of ‘the arcane dialectic, in which the Son’s Law remains submitted to the
Father’s Law [at] the cost of the Son’s sacrificial performance for a new covenant,
semper reformandum’ (Haverkamp 2010, p. 55). The investiture crisis is resolved
for Schreber by the inversion of investiture, abandonment of the institution, of the
Appeals Court, in favor of a self-sacrifice that will cleanse the law by restoring the
proper ‘Order of the World’. Schreber abandons law so as to restore it. This is
achieved, note, by means of the Judge’s expulsion of the divinity through his own
adoption of the impossible intermediate position between the two spheres. The
bellowing Judge belongs to one but manifests the other, he is both germinated and
germinating. Recollect that it is Schreber who will repopulate the world and whose
suffering will expiate the divinity and engender a realm of right or at least of wrongs
corrected.
The key to Schreber’s juridical theology lies in the fact that while his sacrifice
expresses the presence of the divine in the human, it functions to separate the two
realms, and specifically to distance the spiritual and other worldly from the material
and extant. His sacrifice of himself salvages the temporal and restores his atheism
and enlightenment to their proper place upon the earth. We might ask at what cost,
but there is no real sense in which I can here pursue the internality of sacrifice, the
phenomenology of pain as a substantive dimension of juridical theology beyond
making one essential methodological observation. Schreber’s sacrifice, his throwing
of his body between God and the world, his suffering nerves, his lack of sleep, his
hallucinations, his billowing and bellowing are all gauged to protect the ‘Order of
the World’, and specifically human rights to autonomy, to peace and freedom from
the various species of celestial intrusion, miracles and other fleeting improvisations.
In embracing the role of the divinity, Schreber seeks to rid the world of the divine.
He is sub Deo et sub lege, but only so that humanity can be sub homine et sub lege
or, in the more radical formulation of early humanist lawyers, pro lege et pro grege,
for the law and for the people. The judge is, in part, and this is the nature of
sacrifice, that which he wishes to condemn and eradicate.

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The Judge’s Two Bodies: The Case of Daniel Paul Schreber 129

There is a final and curious feature to Schreber’s juridical theology which can
lead us into his jurisprudence and the novelty of his legal theory. This is the
extraordinary role of, or in Lacan’s idiom, his martyrdom to images. Schreber was
most strikingly attached to his hallucinations and, at the same time analysts have
paid little attention to these or, as André Green observes, ‘Freud’s brilliant analysis
says almost nothing of Schreber’s hallucinations’ (Green 1999, p. 164). What he
does say, however, is key, and that is to observe that what is abolished on the inside
returns by external means, as visual hallucination. Schreber describes himself as a
‘seer of spirits’: indeed the greatest of all millennia (Schreber 1988, p. 77). It is to
his hallucinations that Schreber directs his most virulent defense of his condition,
claiming that his ability to see departed souls and all the other manifestations of the
other world is not simply a gift but has an objective reality that science ‘would be
very wrong’ to dismiss (Schreber 1988, p. 79). The hallucinations are what the
psychosis produces. They mediate, as internal and external images, as pictures,
between the sphere of an absent God, the foreclosed father, and the domain of the
human. Two observations may help elucidate the key role that the image, as
exemplar, as emblem of psychosis and of its productivity may play.
The first is that the image is no ordinary signifier but rather has an ontological
status, and a heavy semantic value. The image is the form of manifestation of divine
being and whether it takes the form of rays, nerves, fleeting improvised men, birds,
bees or Napoleonic sovereign figures they all share the character angelicus of
miraculous apparition. Schreber’s talent lies in controlling the images, in being able
to picture both with the bodily eye and with ‘the mind’s eye’ (Schreber 1988,
p. 158). The image, whether voluntarily summoned or imposed by a miscreant and
lacking divinity, has a divine source, as is expressly stated by way of citation to the
Biblical: ‘He created man in His image and in the image of God created He him.’
This passage has to be understood literally, according to Schreber, meaning that
humanity is image and that it is only the image that travels between the tellurian and
the celestial. The image is the law in that it is all that maintains the necessary
distance between the divine and the human, the dead and the extant, chaos and the
Order of the World. More than that, it is the image that keeps madness at bay and so
makes law possible. It is emblematically the medium and the foundation of legality.
It is the image, the inconomus that establishes the order of rituals and the legitimacy
of ceremonies that cover over the absence of the father, the pure blankness that lies
at the origin of law.15
The second aspect of the theory of the image can help elucidate and draw the
analysis towards Schreber’s peculiar and symptomatic jurisprudence. The image is
linked to desire. Freud of course makes this point on numerous occasions after his
text on Schreber and one can certainly read the theory of the dream as wish
fulfillment and of the image as the marker of the ‘other scene’, of unconscious
thought, into the analysis of psychosis. The hallucination expressed in images is the
symptom of the attempt to escape madness on several levels. Note that the Memoirs
themselves, part of the legal argument that Schreber presents in his case, are
expressly composed of ‘images and similes’, the rhetoric of supernatural expression

15
For further on the image, see Goodrich (2014).

123
130 P. Goodrich

(Schreber 1988, p. 2). The desire for release is both expressed in images and is
descriptive of the experience of images. They are the world that he inhabits and at a
certain juncture we learn that images, visible inside and outside Schreber’s head, the
phenomenon of ‘picturing’ is valuable, pleasurable and effective as ‘a reversed
miracle’. There is creative power in picturing, it has effects, it does what it
visualizes or, in Pauline language, id efficit quod figurat. The power of the image is
its creative force, its facility in capturing the will, in entering the subject, in getting
under the skin. An extreme example is the process of becoming a woman which is
both an act of imagination and ‘the impression that my body has female breasts and
a female sexual organ … The picturing of female buttocks on my body—honi soit
qui mal y pense—has become such a habit that I do it almost automatically
whenever I bend down’ (Schreber 1988, p. 233).The image, and here the theology of
icon and idol briefly referenced by Schreber, is helpful, as the manifestation and the
object of desire. The image is a woman created and creating, the source and the
expression of soul voluptuousness and the avenue to the state of blessedness that
awaits.

Conclusion

I have traced the curious path of the bellowing judge not least because I believe that
his troubled descent into psychosis reflects not only a reaction to the practice of law
but more specifically mirrors the jurisprudence of his epoch. The Judge suffered a
descent into the disorder of images, into the unconscious manifest, as a result of two
separate attempts to escape law, first into politics and secondly into images, into
voluptuousness and femininity. It is a strange trajectory for a judge to take but at the
same time I have argued throughout that his discourse, his Memoirs, similes and
images, should be read as an expression of law, as a judicial illocution and
utterance. In this respect, if we dare take the lunatic’s printed discourse seriously,
and I believe that we should, then it is a highly critical account of the state of law,
paternal and positive, and it merits careful reconstruction as both an expression of a
theory of law in its own right and by way of comparison to and criticism of the legal
theory of his day.
‘One does not usually and without further reason declare the adherents of
spiritualism mentally ill’ (Schreber 1988, p. 481). So the Appeals Court rather
archly declares in arriving at its determination that Schreber’s ‘mental abnormality’
did not negate his legal capacity. His madness was purely religious and, insofar as
he was not seeking converts, it was inoffensive. The proof of his competence was
only recent according to the same Court, and resided in his ability to deal, quite
literally, with the nom du père: ‘Plaintiff has only recently brought clear proof of his
competence … in that he dealt with the extraordinarily difficult question of making
further use of his father’s book Medical Indoor Gymnastics after its publisher had
gone into liquidation’ (Schreber 1988, p. 510). Testimony indeed one could say, in
that the one time we know that Schreber consulted his father’s book, to try and
discern how best a woman should position herself in the ‘succumbing part’ of sexual
intercourse, the book had nothing whatsoever to offer (Schreber 1988, p. 166). The

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The Judge’s Two Bodies: The Case of Daniel Paul Schreber 131

father is always a disappointment. That aside, Schreber’s ability to negotiate the

space of his father’s success and implicitly at least promote the book suggests a
certain overcoming of the law of the father, his own degree of distance from the
external no, the foreclosure that in psychoanalytic argot generated the psychosis.
The judgment of the Appeals Court is interesting primarily in its reflection of the
prevalent jurisprudence of turn of the century Germany. Spiritualism, not being
science, may well be mad but it is objectively a common species of madness and
cannot serve as the basis for confinement. The other side to that thesis is that
spiritualism and religion more generally have nothing to do with law. Their
irrationalism separates them from any meaningful interaction with the hierarchy and
system of norms, let alone the determination of the validity and concretization of
rules. The grundnorm and grundsprache are entities born of the same time and
philosophical currents but they inhabit opposite sides of the divide between
temporal and spiritual. The grundnorm is a creature of reason, grundsprache a
spiritualistic hallucination, a religious dogma. It is Schreber who best contests that
point, and argues that the dogma be jettisoned, that grundsprache be exiled to the
extra-terrestrial, to other worlds, while also cogently insisting that the ‘slogan of
hallucination’ not be thrown too easily at his inventions. As I have argued
throughout, the legal discourse of madness needs to be attended to and, to borrow
from Haverkamp’s argument in the comparable context of Hölderlin, coming to
terms means coming to tropes (Haverkamp 1996, p. 108).
Schreber’s battle with law may have had its genesis in a latter day investiture
crisis and indeed it seems unquestionable that the nineteenth century collapse of
authority, the death of God in philosophy and literature generated a radical distrust
of the law of the father, of the contemporary dictatus papae, but that as we see from
his willingness to foster his father’s book, it is not authority that is the primary issue.
Recollect that what the Judge could not find in his father’s book was any advice on
sex, on creativity, on jouisssance, on emotion. It is thus rather the nihilism of legal
reason, the desiccated interiority of law, the emptiness of jurisprudence and the
limitations of its categories that disturb and motivate Schreber to his undoubtedly
inordinate imaginings. Nonetheless, Schreber has what Kelsen lacks. Schreber
makes up for what his father could not give him, namely desire, and so it is that the
most striking feature of his legal theory is its introduction of human passion, will,
some variant of the lex amatoria, into the restoration of the proper order of the
world, free of God’s presence, and liberated from the empty speech and blank
thoughts of the father.
I have in sum suggested that Schreber is an exemplary case, an instructively mad
judge who reflects the great philosophical crises and long-term juristic movements
of his era. His juridical theology, with its strange figures and curious tropes, its
myriad images of the impossible unity of the divine and the human, of father and
son, could only lead to the sacrifice of his institutional position and normative role.
He had to abandon himself to become himself, his juridical-theology was not only
reflected in, but inextricably mixed up with his psycho-pathology. At the level of
jurisprudence, to the extent that it differs from juridical theology, which is not
much, Schreber gave up the purity of law. He opted for imagination and generation,

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132 P. Goodrich

for picturing and poetry, for figures and fictions and these, we cannot doubt,
represent the pathology of law, as much as the illness of the body.
The final irony of the case of Schreber is that he was released. Just as legal
science does not acknowledge the relevance of religion to normative argument or to
determinations of competence, so too law is blissfully ignorant of both passion and
psychosis. Even though the judges unwittingly utilized a crypto-psychoanalytic
logic of decision, they discounted the relevance of all his symptoms. Except for one.
The Court mentions that it might be wisest for Schreber to remain in the asylum for
as long as his vociferation and bellowing, what Nietzsche would have termed his
brontological ailment, continued. Certain aspects of the bellowing are of particular
interest. First, the bellowing emerges as a response to blank thought, to the cessation
of thinking, caused by the interference and withdrawal of divine nerves. Second, it
is regularly occasioned by his own nakedness. Third, it carries an uncanny relation
to his wife whom he imagines must find it unbearable to live with. The bellowing, as
far as we know, never ceased. The Judge never gave up, he could not relinquish his
desire, he never abandoned his cause and with it the necessity of speaking out.
Schreber afflavit et dissipati sunt, he bellowed and they fled, which is to say that he
remained a fate, he continued to feel both his own emptiness and the necessity of
creativity despite the law. More than that, his bellowings kept the gods at bay and
put the law, however strangely, to profane and human use.

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