Schroeder, Jeanne L. The Four Lacanian Discourses or Turning Law Inside-Out. New York: Routledge-Cavendish, 2008.
As Alain Badiou insists, Lacanian ethics is a rejection of a Levinasian theory of the other. Levinas insists that we respect the absolute otherness of the other that the I of the subject can never fathom. But to do so, is precisely to treat the other as a transcendental thing – a noumenon. It is to assume that the other exists. To a Lacanian this is mystification. It is telling that Levinas insists that we are ethically called on to recognize the other’s face, and have a face-to-face conversation with the other. From a Lacanian perspective, Levinas is completely taken in by the feminine masquerade and thinks that a true face exists beneath the other’s opaque mask! He thinks that God exists. As such, Levinas is guilty of idolatry. 164
Lacan is revealed as the anti-Levinas. Justice requires not that we respect the ineffable otherness of the Other because to do so is to objectify the Other, and reduce her to what Badiou calls suffering animality.
As Badiou insists, otherness, diversity, and multiplicity are mere empirical facts that have no moral purchase. Otherness understood this way merely exists – it is the status of a thing. In contrast, justice insists on a notion of a radical equality that goes beyond mere empiricism. Consequently, Badiou, despite his avowed atheism, states that our ethical duty to other humans does not spring from our sympathy for their empirical suffering (animality), but from our recognition of their potential for ‘immortality.’ Political equality requires that we decide to recognize the sameness – our shared capacity for immortality—in the other despite her empirical otherness. This takes an act. 167
Lacan insists that the subject cannot hold the Other apart as Levinas would want us to, precisely because the desire of the subject is the desire of the Other.
Indeed, to proclaim the Other to be other consists in nothing but the subject’s attempt to export her internal split into the Other, thereby abjecting him. In other words, the subject is in the impossible situation of having to both engage the Other while keeping her distance. The Other is extimate, simultaneously external and internal to the barred subject. 167
To recapitulate, Kantian morality is defined by the formal demands of universality imposed by the categorical imperative. Therefore, it has no pre-existing content. The concept of good relates to substantive content – pathology. Morality consists of adopting maxims for action that are consistent with right regardless of the consequences. Kant goes so far as to posit that doing an act that is consistent with right because one desires to achieve a good result is smeared with pathology and, therefore, is not purely moral – in Christian terms it is sinful.
As we say, a problem facing Kant is that if the criterion for ethical law is purely formal, how can we recognize the ethical law and achieve right? More importantly, even if our souls were noumenal, as empirical human beings each of us is a phenomenon defined by her pathological content. Moreover it is impossible for any human being to fully know her own intentions – in Kant’s words, “The depths of the human heart are unfathomable.” Consequently, it is not merely that we can’t identify what right might be, we can never know whether we are acting rightfully in accordance with the ethical law which is real.
Nevertheless, Kant also understands that it is precisely this impossibility to know the ethical law that makes the subject an ethical creature capable of making ethical decisions. This trauma is the condition of human freedom. If we know what we had to do, we would not be free – w would not be making choices so we would have no moral responsibility for our acts. If we could see the mind of God we would become automatons. Our capacity for sin creates the possibility of holiness.
Lacan considers Kant the father of psychoanalysis. The problem with psychoanalytic ethics is precisely that we are duty bound to be true to our desire. Our desire is the desire of the Other, but the Other never answers our question, “What do you want from me?” We can never see the mind of God. Consequently we are forced to choose what to do. Although the choice is forced on us, it is radically free. It is the freedom of choice that makes the choice a moral act. And it is the fact that the act is our choice that makes it our own and imposes ethical responsibility if we choose wrongly. As Badiou says, ethics is a wager on which we must bet everything.
The ethical law constitutes a trauma. It is the repressed real to which we have no direct access, but which structures our lives. We are in a constant state of anxiety because we are duty bound to obey an ethical law we can never know. Indeed, as Kant insists, the only thing we can know is that we are always at least partially wrong and sinning against the ethical law.
We have seen that master’s and university’s discourses that characterize most modern jurisprudence reflect a profound fear of freedom. The master claims that we are obligated to obey the law merely because it is law, and not because we decide that it deserves to be obeyed. Positive laws are propsed precisely to limit the freedom of the subjects who are subjected to the law.
Being goal driven, the university’s discourse of law-and-economics seeks predictability. Consequently, it defines “rationality” in terms of predictable ends-means reasoning and seeks to squelch spontaneity. Classic law-and-economics at least pays lip-service to freedom in that it claims to merely respect the aggregate pre-existing goals of its members. It is just that sometimes we need to use the law to help—i.e. force—people to act rationally and choose the most appropriate means of achieving these ends. But note that insofar as the economist believes that the subject’s goals are pre-existing and are incapable of being rationally chosen, there is no Kantian freedom in this system at all.
From a Lacanian perspective, the fear of freedom is perfectly understandable. Freedom is terrifying. It is the abyss of the real where there are no answers. Infancy itself is a form of psychoanalysis in that the child learns how to integrate the facts of his life into the symbolic.
Positive law is in the realm of the symbolic. By adopting positive law we try to integrate the facts of our ethical life into the symbolic order. We adopt positive law precisely in an attempt to relieve us from the impossible demands of ethical law – to free us from our freedom. The symbolic is only created by the repression of the real that is its limit. Positive law is structured around a founding repression of not merely content, generally, but ethical law, specifically. 168-169