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It is not only that for him as for the rest of us the flesh is weak, it is that the spirit is too prompt not to be lured. The apology for crime only pushes him to the indirect avowal [aveu détourné] of the Law. The supreme Being is restored in Maleficence.21 This avowal of the law does not amount to a confession of sin. Lacan is not saying that Sade’s apology for crime ultimately becomes an elaboration of guilt and thus a personal appeal for forgiveness. The apology for crime as such can only be an avowal of the fundamental sin of subjection to the law and an appeal for expiation from this sin—an appeal, in other words, for expiation from the malediction of the law itself. In this sense, the avowal of the law restores the supreme Being to the extent that it functions as a demand perhaps addressed to the power of what Walter Benjamin calls “divine violence,” which constitutes a form of retribution that “purifies the guilty, not of guilt, however, but of law.” “For with mere life,” Benjamin writes, “the rule of law over the living ceases. Mythical violence is bloody power over mere 150 Penumbra life for its own sake, divine violence pure power over all life for the sake of the living.”22 For Lacan, however, the confession that appeals to the power of such expiation implies a disavowal of what Schönberg called the miracle of the law, what Kant called the fact of the moral law, or what Lacan himself (in the last lines of “The Subversion of the Subject and the Dialectic of Desire,” which immediately follows “Kant with Sade” in the Écrits) called “the Law of desire.” Desire is the facticity of the law from which expiation is not possible. (And the dictum from the Ethics seminar, “do not give up on your desire,” would have a similar status to Schönberg’s exhortation). The death penalty is the point at which the possibility of such expiation definitively withdraws. The fulfillment of the law toward which Lacan’s analysis of Sade gestures would be nothing other than the mere presentation of the law beyond expiation.

Much like Saint Paul, Lacan situates the “Christian commandment” (“love your neighbor as yourself ”) beyond the logic of transgression to which the curse of the law restricts the subject. And he makes clear that Sade, in staging his apology within the parameters of the law’s dictates, keeps a distance from the implications of this commandment unto Christian charity.

For Lacan, however, this commandment does not imply a pacified love between men, but rather the absolute hostility that Freud associated with it in Civilization and Its Discontents. Sade’s extensive apology for crime functions to recoil from this dimension of méchanceté: “We believe that Sade is not close enough to his own wickedness to recognize his neighbor in it. A trait which he shares with many, and notably with Freud. For such is indeed the sole motive of the recoil of beings, sometimes forewarned, before the Christian commandment.”23 As evidence of this recoil, Lacan cites Sade’s rejection of the death penalty. “For Sade, we see the test of this, crucial in our eyes, in his refusal of the death penalty, which history, if not logic, would suffice to show is one of the corollaries of Charity.”24 Much as Levinas finds that the fulfillment of the law is overdetermined by a relation between the people and the threat of divine violence, Lacan finds that the history and logic of the death penalty is internal to the fulfillment of the law in the love for the neighbor. To oppose the death penalty, as Sade does, amounts to rejecting the facticity of the law, and thus to repressing the autonomy of desire. In other words, desire as such becomes legible only within the horizon of a sovereign violence. Carl Schmitt famously identifies such violence with the contingent possibility of a decision on the exception embodied by the person of the sovereign—the decision to suspend the validity of the entire law in states of emergency. For Lacan, this horizon becomes the “sinuous” line that constitutes the topology of the fantasy.

Lacan at the Limits of Legal Theory Notes

1. Martin Luther King, Jr., A Testament of Hope: The Essential Speeches and

Writings of Martin Luther King, Jr., ed. James M. Washington (San Francisco:

Harper & Row, 1986), 293.

2. John Rawls, A Theory of Justice, rev. ed. (Cambridge: Harvard University Press, Belknap Press, 1970), 3.

3. See Hans Kelsen, Introduction to the Problems of Legal Theory, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 1992); and Jacques Derrida, “Force of Law: ‘The Mystical Foundation of

Authority,’” trans. Gil Anidjar, in Acts of Religion, ed. Gil Anidjar (New York:

Routledge, 2002). For a discussion of Kelsen and Derrida, see Margaret Davies, “Derrida and Law: Legitimate Fictions,” in Jacques Derrida and the Humanities: A Critical Reader, ed. Tom Cohen (Cambridge: Cambridge University Press, 2001). Throughout this paper, I am further indebted to Juliet Flower MacCannell’s reading of Rousseau with Lacan—especially her understanding of the social contract as the “negative law” of universal dispossession. What seems ultimately at stake in such a reading is the determination of whether democracy is essential to the concept of the political, or whether, as Carl Schmitt decided, the concept of the political only emerges with the suspension of the regime of democratic legality. See Juliet Flower MacCannell, The Hysteric’s Guide to the Future Female Subject (Minneapolis: University of Minnesota Press, 1999). See also Willy Apollon’s “Introduction” to Lacan, Politics, Aesthetics, ed. Willy Apollon and Richard Feldstein (Albany: State University of New York Press, 1996).

4. The list of attempts to emancipate legal theory from such an entrenchment would also have to include the psychoanalytic teaching of Jacques Lacan, which I will address later in the paper, and Antonio Negri’s communist theory of the state. See Antonio Negri, Insurgencies: Constituent Power and the Modern State, trans. Maurizia Boscagli (Minneapolis: University of Minnesota Press, 1999); and Michael Hardt and Antonio Negri, Labor of Dionysus: A Critique of the State-Form (Minneapolis: University of Minnesota Press, 1994).

5. Kelsen, 26.

6. Derrida’s elaboration of the question is incompatible with Kelsen’s theory, however, in that, for Derrida, the force of law can never be theorized simply as a “norm,” comprehended in terms of a generic attribute.

The epistemological aspirations of the theory of law will always encounter insuperable obstacles in the force of law. For Derrida, as for Walter Benjamin, whose text provides the occasion for his intervention, the theory of law must always begin—and perhaps end—with a critique of violence. I will return to this point later, but in connection with a discussion 152 Penumbra of the presentation of law in psychoanalysis.

7. Rawls, 320.

8. Ibid., 322.

9. Ibid.

10. This aspect of civil disobedience is perhaps not far from the Stoic “contempt” that, at one point in his analysis of Kant and Sade, Lacan levels against the Sadian experience of jouissance. “What [pain] is worth for Sadian experience will be better seen by approaching it through what, in the artifice of the Stoics, would dismantle this experience: contempt… Imagine a revival of Epictetus in Sadian experience: ‘See, you broke it,’ he says, pointing to his leg. Lowering jouissance to the destitution of such an effect where its pursuit stumbles, isn’t this to turn it into disgust?” Lacan, “Kant with Sade,” trans. James B. Swenson, Jr., October 51 (winter 1989):

60. (This translation will be slightly modified throughout.)

11. Arnold Schönberg, Das Chörwerk, Sony 2K44571. For an important discussion of the law in Schönberg’s opera Moses und Aron, see Massimo Cacciari, Icônes de la loi, French trans. Marilène Raiola (Paris: Christian Bourgois, 1990). (English translation forthcoming from Stanford University Press.)

12. See Gershom Scholem’s essay, “Revelation and Tradition as Religious Categories in Judaism” in The Messianic Idea in Judaism, And Other Essays on Jewish Spirituality (New York: Schocken Books, 1971).

13. Emmanuel Levinas, Nine Talmudic Readings, trans. and intro. Annette Aronowicz (Bloomington: Indiana University Press, 1990), 40.

14. Immanuel Kant, Critique of Practical Reason, ed. and trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), 66. “Fontenelle says: ‘I bow before an eminent man, but my spirit does not bow.’ I can add: before a humble common man [einem niedrigen bürgerlich-gemeinen Mann] in whom I perceive uprightness of character in a higher degree than I am aware of in myself my spirit bows, whether I want it or whether I do not and hold my head ever so high, that he may not overlook my superior position. Why is this? His example holds before me a law that strikes down my self-conceit when I compare it with my conduct, and I see observance of that law and hence its practicability proved before me in fact.”

15. Ibid., 71.

16. Lacan, The Seminar of Jacques Lacan, Book II: The Ego in Freud’s Theory and in the Technique of Psychoanalysis( 1954-55), ed. Jacques-Alain Miller, trans.

Sylvana Tomaselli (New York: Norton, 1991), 129. (This translation will be slightly modified throughout.)

17. See Lacan, Écrits (Paris: Seuil, 1966), 814.

18. Lacan, The Ego in Freud’s Theory, 128.

Lacan at the Limits of Legal Theory

19. Ibid., 128, 129.

20. Lacan, “Kant with Sade,” 74.

21. Ibid.

22. Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings, ed. and intro. Peter Demetz, trans. Edmund Jephcott (New York: Schocken Books, 1978), 297.

23. Lacan, “Kant with Sade,” 74.

24. Ibid.

–  –  –

In the recent work of Slavoj Žižek, “love” has taken on a politically revolutionary meaning by coming to name the event that breaks with the normal order predicated on a dialectic of Law and Sin (or desire).1 Though not exclusively, the Christian notion of agape functions as the primary source of inspiration for this renewed conceptualization of the unconditional point that goes beyond a given state of affairs. Along similar lines, of course, is the pivotal intervention of Alain Badiou, who argues in favor of, on the one hand, an understanding of love as “evental” and, on the other hand, Saint Paul as the model for any militant ethics. Extrapolating from these two lines of reasoning, it should not be surprising to find agape again as the central point around which many other contemporary critiques of ideology have begun to revolve.

Taking a Lacanian step back, however, might give us the opportunity to ask whether the glad tidings of agape overlook one crucial “logical” moment. In order to address this question I will make use of one of Lacan’s most important texts, “Logical Time and the Assertion of Anticipated Certainty,”2 which has proven to be most inspiring and useful for demonstrating the precise moment of rupture, or what Žižek has qualified as “the act.”3 Returning to this text will hopefully clarify that this moment of love is not exclusively the moment of the act, nor simply the fidelity to a truth, but also the possible moment of being reduced to waste.

156 Penumbra

In close connection to the problem of love and desire, this moment of being reduced to waste—a certain falling out of the world—has been explored by Marguerite Duras. While returning to Lacan’s article I will thus read it in conjunction with Duras’ The Ravishing of Lol V. Stein. Lacan himself has focused on Duras’ novel in another text, “Homage to Marguerite Duras, on Le ravissement de Lol V. Stein,” where the informed reader can discern two allusions to his commentary on Antigone: “splendor” [éclat] and “betweentwo-deaths” [entre-deux-morts].4 Indeed, is Lol V. Stein not as splendorous and apolis as Antigone? Is she not “this wounded figure, exiled from things, whom you dare not touch, but who makes you her prey”?5 Does she not take up the function of beauty, as the last protection against the horror of jouissance? The two figures of Antigone and Lol share the distinction of being the main characters of their tragedies, but not without contaminating others with a “leprosy of the heart.”6 It is therefore possible to raise the question: who, in fact, is the tragic figure? If pressed to answer, one might be tempted to argue that the tragic figure is not Lol, but Jacques Hold (and not Antigone but Creon).

Perhaps this lack of clarity prevents the reader from identifying with Lol, and instead implicates one in the triangles that she organizes, whereby one comes to occupy a position that she herself has set in place—her own. While caught within this ambiguity, the reader is made attentive to the temporal unfolding of a structure, and the “place” that a character takes within it. The effect of occupying such an awkward position, for the reader, is not unlike the effects taking place in the narrative itself, most significantly during the crucial scene at the Casino, where Lol loses her fiancé Michael Richardson to the mysterious femme fatale Anne-Marie Stretter. It is at this precise point, the superficial or “impotent” changes of the narrative itself, that the drama of Duras’ novel should be located. Lol, I would argue, is not the passive subject of painful events, but rather someone who remains faithful to the place she comes to occupy during the event at the Casino.

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