We might say that the ethical dimension of an action is ‘supernumerary’ to the conceptual pair legal/illegal.
This in turn suggests a structural connection with the Lacanian notion of the Real. As Alain Badiou has noted, Lacan conceives of the Real in a way that removes it from the logic of the apparently mutually exclusive alternatives of the knowable and the unknowable. The unknowable is just a type of the knowable; it is the limit or degenerate case of the knowable; whereas the Real belongs to another register entirely.
Analogously, for Kant the illegal still falls within the category of legality -they both belong to the same register, that of things conforming or failing to conform with duty. Ethics – to continue the analogy – escapes this register.
Even though an ethical act will conform with duty, this by itself is not and cannot be what makes it ethical. So the ethical cannot be situated within the framework of the law and violations of the law. Again, in relation to legality, the ethical always presents a surplus or excess. The question then becomes: ‘what exactly is the nature of this excess?’ The simple answer is that it has something to do with the Kantian conception of ‘form’. The exact meaning of this requires more careful consideration. EOR 12