[Editor's Note: The following essay by Ernesto Laclau, Professor of Political Theory at the University of Essex, is the text of his response to a lecture by Simon Critchley, Professor of Philosophy at the New School for Social Research, as part of the Albert Schweitzer Series on Ethics and Politics that took place in the spring of 2004 at New York University. I thank Prof. Laclau for allowing me to post his lecture here. You may send him comments to the following email address: email@example.com. I would also like to take this opportunity to remind visitors that they are welcome to submit articles or essays to be considered for linking or providing space on our site.]
|Ethics, Normativity and the Heteronomy of Law
The question we will address in this essay could be formulated in the following terms: what is the relationship between the ethical (a term that we will try to define later on) and the plurality of actually existing normative orders? Can the latter be derived consistently from the former? And if not, what kind of link could be established between the two? The answer to these questions is highly relevant to a further type of interrogation concerning the groundings of law: if the relationship between the ethical and the normative order was a transparent one, so that the grasping of the nature of the first would give us all we need to choose between the various alternatives at the level of the second, there would be an exact overlapping between ethical subject and subject positions within the normative order of the law. This transparency would be, in that sense, compatible with an autonomy conceived as self-determination. If, on the contrary, the transition between ethics and the normative order presupposes less than a strict overlapping between the two, the institution of law would require a grounding at least partially different from an ethical one; a dimension of heteronomy necessarily inhabits the legal order, and a gap consequently emerges between the ethical and the normative subject.
There is, however, a previous distinction concerning the normative which requires to be deconstructed before we start our exploration: the one grounding the opposition between the normative and the descriptive, between being and ought. The classical distinction between fact and norm comes from Kant and from his attempt to strictly separate theoretical and practical reason. We do not find any such a stark division in the previous philosophical tradition. The distinction cannot be strictly maintained because there are no facts that are not grounded in the elaboration of our practical relationship with the world. If I try to move to a door at the end of the room, the table opposite me is an obstacle; but if I try to protect myself from an attack, it can become a means of defence. It is only in practical life –i.e. in a life governed by norms- that the facts as facts can emerge. Even a purely contemplative attitude sees what it sees because it relies on systems of signification that are nothing else than the sedimentation of previous practical experiences. There are no facts without signification, and there is no signification without practical engagements that require norms governing our behaviour. So there are not two orders, the normative and the descriptive, but normative/descriptive complexes in which facts and values interpenetrate each other in an inextricable way. What we usually call morality belongs to those complexes.
But if morality belongs to those complexes, what I want to suggest is that the ethical does not. We have to proceed here to a second deconstruction, of an opposite sign to the first one. In the case of the descriptive/normative distinction we had to proceed to show the mutual contamination of two dimensions which are usually presented as separated. Our second deconstruction has to show the distance between two types of social experience which are usually presented as necessarily linked with each other. What is inherent in an ethical experience? It is, at first, difficult to answer the question, because our first reaction is to look for a norm more fundamental than the plurality of norms to be found in the various codes of morality. But this type of answer cannot escape the petitio principii that inhabits it: that of a ground which is not itself grounded, of a beginning by an irrational fiat, by a fact at the root of a normative order which is supposed to be essentially different from the factual one. There is no way of finding the experience constitutive of the ethical if we try to locate it within the positivity of the normative order.
How to go beyond this blind alley? If the positive character of the norm is the source of our difficulties in grasping the specificity of the ethical experience, perhaps the way to proceed is to go beyond that positivity, to detect the points in which the positivity fails to constitute itself. Let us concentrate for a moment on the opposition between “being” and “ought to be.” If our previous assertion that the normative/descriptive complexes contaminate and subvert the distinctiveness of its two intervening terms stands, in that case we cannot refer “the ought” to the normative order and “being” to the descriptive – that would simply reproduce the distinction that we were putting into question. There is no advance in opposing the fact of actual behaviour to the fact of the norm. There is, however, something that remains if we put aside these two positivities: it is the distance between the two. How to conceive of this distance? It is important to realize that this distance can only be approached if content (positivity) is resolutely ignored. The distance between two positivities can only be conceived as difference, and all identity being differential, the identity of one side of the opposition would become the prerequisite of the identity of the other. In that case distance and proximity would be strictly synonymous. But there is another way of approaching the matter. It is not the content of of the ought which is opposed to the content of actual behaviour, but the fact that the ought expresses a fullness that actual behaviour lacks. The ought expresses fullness of being, while actual behaviour shows deficient being. We are not far away from characterizing actual behaviour in terms of contingency and finitude. It is this distance between full and deficient being which is, in my view, at the root of the ethical experience.
This still leaves us, however, with the problem of the relation between the fullness of the ought and its own content. For if the experience of the fullness as an ethical command was necessarily attached to a particular content we would still be prisoners of the positivity of the norm and would have made little progress in our argument. Let us consider, however, the experience of the distance between being and ought in more detail. If the distance between being and ought is not the differential content between two positivities but the one between deficiency and fullness of being, in that case there is a lack in actual being which is the source of the distance. But in that case the content of the ought appears as essentially split: it is on the one hand a particular normative content while, on the other, this content functions as the representative or incarnation of the absent fullness. It is not the particularity of the content that is, per se, ethical, but that content in so far as it assumes the representation of a fullness that is incommensurable with it. That is why the ethical experience tends to express itself through terms such as “truth,” “justice,” “duty,” etc. –nobody will deny their ethical character, but their actual realization can be referred to the most different normative contents. We will discuss presently the meaning of such a description. But what we have to emphasize from the start is that if ethical experience is the experience of the unconditioned in a fully conditioned universe, it has to be necessarily empty and devoid of all normative content.
Let us give some examples of what we have in mind in making this distinction. The mystical experience is the experience of the absolutely transcendent. God, being absolutely ineffable, can only be approached by an experience which is beyond any worldly determination and which can only be expressed along the lines of a negative theology. Being God, the locus of a fullness incommensurable with any determination of the ens creatum has also to be by necessity absolutely empty –fullness and emptiness actually become synonymous. It is important to stress the fact that this emptiness, this absence of any concrete content, has nothing to do with any formalism. A formal determination is still a determination and as such has a content. Kant’s ethical formalism, for instance, is grounded in the normative content of the categorical imperative. Moreover, abstraction and generality are inherent to any formalism, while the mystical experience is absolutely individual and concrete. The emptiness with which we are dealing is not simply the absence of content but is itself a content –it is a fullness which shows itself through its very absence. Now, the important point is that the mystical experience does not lead to those who have passed through it, to live the recluse life of an anchorite but to engage themselves in the world in a more militant way and with an ethical density that other people lack. Eckhart compares the mystic to somebody who is in love: he will continue immerse in the daily activity, but the feeling of being in love will accompany all his actions. It is, paradoxically, the withdrawal of the mystic from the world the source of the ethical seriousness of his engagement in the latter.
Something similar could be said of the revolutionary militant. If I participate in a strike, in a factory occupation, in a demonstration just for the concrete objectives of these actions –a rise in wages, a change of the system of authority in the factory, the demands for some budgetary reform, etc.- my militant engagement comes to an end once these objectives have been achieved. If, on the contrary, my participation in all these activities are conceived as episodes in a more universal struggle for revolutionary aims my identification with the particular aims of those activities will be less complete but, paradoxically, for that reason, my militant engagement in them will be more intense. The revolutionary objective operates as a transcendent “beyond” all particular experience and is, in that sense, the point of identification allowing me to withdraw from the particularism of all concrete experience. This withdrawal, however, is only the prelude to the militant engagement in those very particularistic struggles, which cease to be merely particularistic as soon as they are seen as episodes in the prosecution of more universalistic aims.
Let us take the motto of the “general strike” in revolutionary syndicalism. All particular actions of the working class are seen as steps towards that ultimate event which is the general strike. Thus, the particular actions are not exhausted in their particularism: all of them are equivalent as far as the Endziel, the final objective, is concerned. The final objective splits the aims of the particular struggles and demands: their particularism is simply the bearer of a universalistic aim traversing all of them. It is in this dialectic of withdrawal/engagement where the distinctive feature of an ethical life lies. The experience of the ethical is the experience of that moment of transcendence which takes us beyond all particular aim, norm or action. What in the mystical experience we see in an extreme form is actually something belonging to the structure of all experience.
Before moving to our next problem, which is the relationship between the ethical and the normative, we have to say something more about the nature of the former. It is crucially important to stress that the equation fullness = emptiness that we have found as inherent to the mystical experience is not exclusive to the latter but is the trade mark of the ethical as such. Let us go back for a moment to the example of the general strike. What is the general strike? According to Sorel it is not an actual event but a social myth. Social myths, for him, do not have all the precise details of a blueprint of society such as a utopia but are restricted to a few, simple images, capable of galvanizing the imagination of the masses. What is the source of this simplification? The answer is to be found in the fact that a myth such as the general strike is no actual event but the name of a fullness that is merely the positive reverse of a situation experienced in which such fullness is denied. It is because we live a situation as unjust that we have the experience of “justice” as an actual fullness, but there is no logical transition from injustice as lack to justice as a fullness that would remedy such a deprivation. Many concrete contents can present themselves as the positivization of “justice.” In the example that we have been using, “general strike” is not the description of an actual event: its meaning is exhausted in symbolizing –naming- the series of particular struggles and demands which thus acquire their ethical dimension. It is through this equivalential function that the symbol weakens its particularistic meaning and develops the emptiness (= fullness) that transforms it into the name of the ethical experience.
We have now all the necessary elements to address the question of the relationship between the ethical and the normative order (the second deconstructive move which we alluded to at the beginning of this essay). There is here a clear alternative: either we can deduce from the emptiness of the ethical moment a normative content which would necessarily correspond to it, or – given the emptiness inherent in the ethical experience –such a deduction is impossible and, in that case, the transition from the ethical to the normative can only take place through something which only can be described as a radical investment of the ethical into the normative. Needless to say, the latter is the way that we are prepared to take. If the ethical experience is really the experience of the unconditioned in an entirely conditioned world, of a fullness – as the ground of the ought - which is beyond all determination, there is no way of moving in a straight way from that experience to a norm or injunction. It is only if the latter becomes the symbol of something essentially heterogeneous to itself, that a relation between the ethical and the normative can be established at all. This confronts us, however, with a set of theoretical difficulties that we have to address if the nature of this relation is really going to be brought to light.
A first dimension of the relation can be grasped by answering to a possible objection. The objection is the following: if the ethical can only exist invested in the normative, how can we actually distinguish between both? Wouldn’t it be simpler to speak about ethico-normative complexes in which the distinction between the two sides would become purely analytical? The answer to this objection can be given at two levels. Firstly by pointing out that the investment of the ethical into the normative does not simply consist in a confluence of the two orders but in a structural mutation that the former introduces into the latter. We have already mentioned what this structural mutation consists of: the establishment of an equivalential chain between the components of the normative order and the isolation of a set of key terms as signifiers of the emptiness (= fullness = ethical). In that sense, it is not true that a normative structure is indifferent to the presence or absence of ethical investment, or that the latter is not altered at all by the former. The duality between the ethical and the normative is shown in the distinction within a discourse between those elements that the ethical investment “universalizes” through an equivalential relation and those who function as ground of such universalization –i.e. as names of the ethical. In our previous example, “general strike” would be a name of the ethical, while the aims of the particular struggles are components of an ethically invested normative order as far as an equivalential relation can be established between them. The second answer to the objection mentioned above is that the quality of the ethical life existing in a given society is far from indifferent to the distinction between the ethical and the normative and from their differential positivization in the discursive field. If the ethical were entirely absorbed into the normative there would not be distinction between –for instance- justice and what a certain society considers as just at some point in time. This is the best prescription for totalitarianism. It is only if justice functions as an empty term, whose links with particular signifieds are precarious and contingent that something such as a democratic society becomes possible. There is no democracy without equation of fullness and emptiness. That is why the reduction of politics to the contents of a certain normative order and the identification of the ethical and the normative are inimical to democracy. And why the distinction of the ethical and the normative frees both the ethical and the political from their totalitarian fixation to any aprioristic and all-embracing normativity. I have been sometimes confronted with the objection that conceiving of the ethical as empty leaves social normativity without a ground. My answer is that it is precisely that absence of ground and the possibility of signifying the resulting emptiness that makes life in society worth living.
Another version, however, of the same objection is frequently presented in the following terms: if there is no logical transition between the ethical and a certain normative order, if the presence of the ethical in the normative is the result of a radical investment, why prefer one normative order rather than other? Don’t we end in that case with a normative deficit? Are we not risking the worst consequences of a pure decisionism? Let us consider the matter carefully. A pure decisionism would involve the existence of an omnipotent subject. Only somebody who is not subjected to any limitation could choose without any restriction –except that, as the existentialists would have it, such an omnipotent chooser does not have any reason for his choice. But, most important, such a chooser is a pure fiction. We are always already within a certain normative order and all we can do is to displace through our decisions the areas of that order that are going to be the object of the ethical investment. I have written elsewhere that the subject is the distance between the undecidability of the structure and the decision. This means that an omnipotent chooser would also be an absolute subject –and, conversely, a chooser who is less than omnipotent would also be less than a subject. We live in a world of sedimented social practices that limit the range of what is thinkable and decidable.
This sedimentation of social practices is an existential in the Heideggerian sense: it is constitutive of all possible experience. So to the question why prefer a certain normative order to others, why invest ethically in certain practices rather than in different ones, the answer can only be a contextual one: because I live in a world in which people believe in A, B and C, I can argue that the course of action D is better than E; but in a totally presuppositionless situation in which no system of beliefs exists, the question is obviously unanswerable. In the case of the mystic, as we have seen, the contact with divinity as an absolute beyond all positive determination is followed by a normative investment which is the source of a militant engagement; but it is clear that the particular normative order which is the object of such an investment is not dictated by the content of the mystical experience –which has no content- but by the positive system of religious beliefs –the sedimented practices- within which the mystic lives. Many times I have been asked if there is not a normative deficit in the theory of hegemony that I have elaborated with Chantal Mouffe in Hegemony and Socialist Strategy –the argument being that the theorization of hegemony is an objective neutral description of what is going on in the world, while the book also makes a normative choice (radical democracy) which does not necessarily follow from such theorization. My answer is twofold. Firstly that, as I have argued earlier on, there is no such thing as a neutral factual description: the system of supposedly descriptive categories that we have used corresponds to “facts” which are only such for somebody who is living within the socialist tradition and has experienced the set of defeats, social transformation and renaissance of hopes to which we make allusion. Secondly, that within that normative/descriptive complex it makes perfect sense to advocate the normative displacement involved in the notion of “radical democracy.” The latter is the result of a pluralization of social struggles anchored in the new structures of contemporary capitalism. These displacements are both factual and normative, but it is clear that on both counts, the story that we are telling only makes sense to particular interlocutors who have been part of a certain history, not to an unencumbered spectator. To ask for an absolute grounding of a system of norms would be tantamount to requiring 1) a radical separation between fact and value, and 2) to legislate for humanity in general, independently of all communitarian framework.
Once we have characterized the relation between the ethical and the normative in terms of radical investment, we still have to address two closely related questions: 1) what is the structure of a radical investment; and 2) what determines the terrain of the investment. For our answer that such a terrain is determined by the ensemble of the sedimented social practices is clearly insufficient. Even if the ethical investment does not operate in a vacuum –it is not the source of the norm- it changes the latter to some extent and it is possible at all because of the constitutive dislocations of the normative order. Let us give a couple of examples. A set of social dislocations generates a series of situations that people live as unjust. Between them a relation of equivalence is established in the way we described above and as a result a widespread sense of injustice starts prevailing in that society. As we have seen, justice –as one of the names of social fullness- does not have a content of its own and needs to borrow it from some of the normative proposals that present themselves as incarnations of justice. Let us suppose that a content such as “socialization of the means of production” starts playing such a role. In order to do so and become the signifier of social fullness (an absent fullness, as we have seen) it has to be absolutely empty and this is only achieved because of the plethora of signifieds resulting from the operation of the equivalential chain. “Socialization of the means of production” not only signifies what it directly designates but also the end of all injustices present in society: the unfair distribution of income, the unevenness of the access to the means of consumption, unequal opportunities of access to employment, all kinds of social discrimination, etc. It is in that way that “socialization of the means of production” becomes the signifier of the lack (= fullness). This is the moment of the ethical investment in the normative. A certain order fulfills the ordering function. Because the ordering function fills a lack which is not associated with any actual content, this duality between order and ordering, between the ontic and the ontological, can only reproduce itself sine die.
Why is it that a certain order rather than a different one fulfills the ordering function? A first answer is availability. It is the order that presents itself as fulfilling the ordering function which will be the object of the ethical investment. This is possible because the gap between order and ordering can never be ultimately filled. In a situation of generalized disorder people need some order and the concrete order that fulfills this ordering function is only a secondary consideration. It is because of that the order best located to fulfill the ordering function will be the object of the ethical investment. This cannot be, however, the whole answer, for, as we have seen, there is in all society a normative order governing institutional arrangements, contacts between groups, circulation of goods. This is what we have called the realm of the sedimented social practices. It is clear that although many aspects of it can be threatened by antagonisms and dislocations, many social practices subsist which are not affected by these traumatic events. Even in periods of deep social dissolution –what Gramsci called “organic crisis”– vast areas of society remain unshaken. So if a certain normative proposal clashes with central aspects of social organization which are not put into question, it will not be recognized as an order able to fulfill the ordering function and will not be the object of a hegemonic ethical investment. This constant renegotiation of the relationship between the ethical and the normative actually constitutes the very fabric of social life.
There is a last point that we have to address. We have said that the relation between the ethical and the normative is one of investment (for there is nothing which could be called an ethical normativity), and that this investment is radical (for there is no way of logically moving from ethical experience to norm). In that case, however, there is a heteronomy of the law that is inherent to social life. For Hegel, for instance, true infinitude, self-determination and freedom were synonymous. If in passing into the other I only pass into my self I am entirely self-determined and the distinction between freedom and necessity collapses. This means that there is going to be a full transparency of the social order to the subject (“the truth of the individual is the State”) and that the gap between “order” and “ordering” will ultimately be closed. But if that gap is, as we have asserted in our argument, permanent, in that case there is a heteronomous dimension of social life which cannot be eliminated. This does not mean that the category of autonomy (as self-determination) becomes obsolete, but it does mean that autonomy and heteronomy are in a more complex relation than what it is usually assumed. If the gap between order and ordering could be rationally closed because there is an order which is (as in Plato) the good society, in that case order and ordering would exactly overlap and there would be no need for any ethical radical investment. The world of ethics would simply be the world of specifiable social norms. But there is no possibility of such a rational closing, not because one advocates any irrationality, but because the gap that we have detected is inherent to rationality itself. In that case there is no order which can claim a monopoly of the ordering function, emptiness is at the heart of the structure and the distinction between the ethical and the normative becomes crucial and with it the notion of investment. To some extent one reveres the law because it is law and not because it is rational. This opacity of the law and the necessary heteronomy that it involves is perhaps, however, at the origin of another type of freedom, one that no longer conceives itself as unchallenged self-determination. For the subject which is free because it is entirely autonomous can only be a universal subject for whom there is no constitutive exterior, while the subject emerging from the undecidable game between autonomy and heteronomy is one inhabiting a more humble but more human environment: one for whom there is no universality but universalization, no identity but identification, no rationality but partial rationalization of a collective experience.