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They took their stand at the foot of the mountain.” But the Talmudic passage immediately reinscribes these lines within a kind of rabbinical fiction that opens the horizon of a divine violence. Yahweh threatens to destroy his own people, using the mountain itself as an implement, if they decide not to accept the law that he presents to them. Rabbi Abdimi bar Hama bar Hasa comments that the lines from Exodus “teach us that the Holy One, Blessed be He, inclined the mountain over them like a titled tub and that He said: If you accept the Torah, all is well; if not here will be your grave.” The miracle “that there is a law” thus happens as a violent extortion that divides the life of the people to whom the law is delivered. The revelation of the law only becomes a historical event to the extent that the very life of the people suddenly depends entirely upon its acceptance. The threat of divine violence places the Israelites in the position of making the impossible choice between the law and their own extinction.
For Levinas, however, this decision is not simply a forced choice because it occurs before it becomes possible to distinguish between freedom and coercion (unless the “force” in the forced choice names precisely the status of force or violence beyond their determination according to the distinction between freedom and coercion). One significant section of his reading revolves around the apparently nonsensical promise, which the Israelites were supposed to have offered Yahweh once he presented them with the law: “we will 146 Penumbra do and we will hear.” The nonsense of the promise inheres in its inversion of a normative temporal order that the divine commandment generally functions to preserve. To the extent that the commandment prescribes certain deeds that should follow its word, it also prescribes in general that the deed as such should follow the word, that the deed is only possible based on a clear preliminary understanding of the word, and further, on the presupposition that the word is inherently understandable. Conceived in this way, the form of the commandment inscribes the primacy of reason with respect to the law, the primacy of metalanguage with respect to language. How, then, could one do the law without first having heard its requirements, or without having scrutinized the ground for its claim to adherence? The praxis that pertains to this inversion, as Levinas elaborates it, fulfills the law; and this fulfillment of the law takes place within the horizon of divine violence: “To receive the gift of the Torah—a Law—is to fulfil it before consciously accepting it…Not only does acceptance precede examination but practice precedes adherence.
It is as if the alternatives liberty-coercion were not the final ones, as if it were possible to go beyond the notions of coercion and adherence due to coercion by formulating a ‘practice’ prior to voluntary adherence.”13 The gift of the law is already the fulfillment of the law; the miracle of the law lies in its being accepted without being understood; the fact of the law lies in an act that goes beyond freedom and beyond the will.
Saint Paul’s elaboration of “the fulfillment of the law” can be read as both an extension and a transformation of the same tradition. The love for the neighbor fulfills the law in that it constitutes a fundamental praxis from which the authority of the commandment itself would derive. What distinguishes the Christian love for the neighbor from the tradition from which it emerges, however, is that this love moves beyond the threat of every possible violence upon the life of the one to whom the law is addressed. Paul thus opens the trajectory, which culminates in Kant, that makes love for the neighbor into the movement whereby law is detached from the event of its revelation and the threat of sovereign violence that it implies. Rather than commanding what cannot be done, the prescription to love the neighbor commands what can only be done without being commanded. “Love does no wrong to a neighbor; therefore, love is the fulfilling of the law.” The impossibility of the command paradoxically bears witness to a fundamental stratum of possibility, what Kant calls the “practicability” or even the “feasibility” (Tunlichkeit) of the moral law.14 Even where the command has been articulated, the praxis of love itself should always have come before the law that makes it imperative: “For, as a commandment [to “Love God before all, and your neighbor as yourself”] it requires respect for a law that commands love and does not leave it to one’s discretionary choice to make this one’s principle. But love for God as inclination (pathological love) is impossible, for he is not an object of the senses. The same thing toward human beings is indeed possible but cannot be commanded, for it is not within the power of Lacan at the Limits of Legal Theory any human being to love someone merely on command. It is, therefore, only practical love that is understood in that kernel of all laws.”15 Love thus becomes synonymous with an ethical courage: one must always love without fearing for one’s life. Love is not love that admits the extortion of the violence that subtends every commandment. At the limit, such true unforced love (even the love of God himself) necessarily entails the death of God since its horizon exceeds the reach of his power. If the death of God shows that death itself has an omnipotence beyond the power of divine violence, then love belongs to the horizon of death.
LACAN AND THE DEATH PENALTYLacan locates the facticity of the law (the fact that there is a law) in analytic experience: “The hard thing we encounter in the analytic experience is that there is one, there is a law.”16 If the rudiments of a legal theory could be found in Lacan’s writings, they would thus be largely consistent with the tradition that accepts the “hard thing” (or the “miracle”) that “there is a law” without concept and without theory, and that makes this thing itself the basis for the contestation of injustice. Moreover, like Levinas, Lacan finds that this “hard thing” is inseparable from a sovereign violence, and he shows that this violence emerges where the law itself can no longer account for its own existence.
Despite readings that emphasize its analysis of the moral law, Lacan’s “Kant with Sade” is as much an engagement with questions of positive legality. According to a tradition that conceives law as divided between these two—moral and positive—poles, Lacan never examines questions of the former without measuring their impact upon the paradigm of the latter.
Although the reading of the Critique of Practical Reason and its determination of the “doctrine of virtue” belong to the explicit program of Lacan’s essay, it also implicitly opens the way for an elaboration of the relation between psychoanalysis and the problems of legal institutions that pertain to the “doctrine of right.” Indeed, the proper names invoked by the title itself might well bear witness to such a concern with both major divisions of the Metaphysics of Morals: whereas Lacan makes Kant into the name for the determination of the subject by the moral law, he makes Sade into the name for the institution of the moral law as the foundation of right and the possibility of justice.
The perverse virtue of the Sadian maxim is not only to introduce the division of the subject (enoncé, enonciation) there where this division is repressed in Kant by the voice of conscience, but also to introduce the claim upon a right there where Kant limited himself to positing a fact, that is, the moral law as the “fact” of reason that constitutes the inviolable dignity of the person. In other words, Sade shows that even this universal fact takes place within the horizon of sovereign violence; he demonstrates that, politically speaking, a systematic and potentially infinite violation (jouissance) can occupy the place of 148 Penumbra what Kant calls dignity. The challenge of Sade is his claim that the universal is inseparable from violation and thus that jouissance is inseparable from the possibility of justice. Lacan responds to this challenge by revising both Kant and Sade. On the one hand, he locates the fact of law in desire rather than reason; on the other, like Sade (but also Levinas) he situates this fact within a sovereign violence. For Sade, sovereignty lies in the freedom of transgression, but the sovereignty that matters for Lacan is manifest in the cruelty of the death penalty. Whereas the sovereignty of transgression inheres in the violation of the law, Lacan shows that the death penalty is a paradoxical corollary of Christian charity, and thus that its sovereignty inheres in the fulfillment of the law. Lacan reinscribes this fulfillment as the “autonomy” of desire.17 In a discussion of censorship from his seminar of 1954-1955, Lacan examines a law that is formally analogous to the ultimatum that Yahweh delivers to the Israelites. Lacan addresses what he calls a “primordial law”: “any man who says that the King of England is an idiot will have his head cut off.”18 The law is primordial because it excludes the position from which its acceptance could be the result of a deliberative act. The death penalty is thus the point at which the possibility of such an act is excluded. The law is accepted to the precise extent that its non-acceptance entails the death of its addressee.
I want to show you that any similar law, any primordial law, which includes the specification of the death penalty as such, by the same token includes, through its partial character, the fundamental possibility of being not understood. Man is always in the position of never completely understanding the law, because no man can master the law of discourse in its entirety.
I hope I’m giving you a feeling of this final, unexplained, inexplicable mainspring upon which the existence of the law hangs. The hard thing we encounter in the analytic experience is that there is one, there is a law. And that indeed is what can never be completely brought to completion in the discourse of the law—it is this final term that explains that there is one. [Et c’est bien ce qui ne peut jamais être complètement achevé dans le discours de la loi—c’est ce dernier terme qui explique qu’il y en a une.]19 How does Lacan’s version of the death penalty differ from the divine violence that Levinas locates in the rabbinical tradition? The answer to this question can be found in the closing pages of “Kant with Sade”: the sovereign violence of the death penalty emerges on the far side of the commandment to love the neighbor. It is, as Lacan writes, “one of the corollaries of Charity.”20 In other words, the death penalty is the sovereign violence that survives the death of God, that goes beyond the divine violence which binds the people to the law. The death penalty is also a violence that binds one to the law, but, whereas divine violence comes from the same God who gives the law itself, the death penalty would come from a different god—or it would name, rather, the sovereign power of death itself freed from reference to any determinate Lacan at the Limits of Legal Theory authority. Whereas Yahweh threatens his people with the death that he has the power to administer, the recourse to the death penalty amounts to the deployment of death itself as a power. Although the death penalty remains inseparable from the incomprehensible fact that there is a law, it has a scope that far exceeds the limits of this fact. For Lacan, the problem of the death penalty only emerges with the fulfillment of the law in the love for the neighbor. In fact, following Freud, he describes this roving death as the repressed truth of the love for the neighbor—such that it becomes possible for him to understand the fulfillment of the law starting from the death penalty rather than from love. Rather than the revelation of the law in its praxis, the fulfillment of the law thus exposes the dimension of a sovereign violence that is irreducible to the law. The fulfillment of the law exposes that the fact of the law does not belong to the horizon of the law, and thus what Lacan calls ethics corresponds to the fulfillment of the law in this sense.
These considerations might help to measure the complexity of Lacan’s assessment of Sade’s position in the last pages of “Kant with Sade.” Lacan’s basic point is that, despite Sade’s systematic apology for transgression and destruction, the logic of his demonstration remains bound to what Saint Paul called the “curse of the law.” Lacan limits himself entirely to the closed set of “opportunities” opened by the explicit prohibitions (rather than the mere fact) of the law. The logic of the argument thus gestures toward that fulfillment in which tradition upholds the event of a miraculous rupture with this
Sade thus stopped, at the point where desire is knotted together with the law. If something in him held to the law, in order there to find the opportunity Saint Paul speaks of, to be sinful beyond measure, who would throw the first stone? But he went no further.