Law, Ethics and the Biopolitical explores the idea that legal authority is no longer related to national sovereignty, but to the 'moral' attempt to nurture life. The book argues that whilst the relationship between law and ethics has long been a central concern in legal studies, it is now the relationship between law and life that is becoming crucial. The waning legitimacy of conventional conceptions of sovereignty is signalled the renewal of a version of natural law, evident in discourses of human rights, that de-emphasises the role of a divine law-giver in favour of an Aristotelian conception of the natural purpose of life and the 'common good'. Synthesising elements of legal scholarship on sovereignty, theories of biopolitics and biopower, as well as recent developments in the domains of ethics, Amy Swiffen examines the invocation of 'life' as a foundation for legal authority. The book documents the connection between law, life and contemporary forms of biopolitical power by critically analysing the fundamental principles of the bioethical paradigm. Unique in its critical and cross-disciplinary approach, Law, Ethics and the Biopolitical will be of interest to students and teachers in the areas of law and society, law and literature, critical legal studies, social theory, bioethics, psychoanalysis, and biopolitics.
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Is there anyone who doesn’t evoke Antigone whenever there is a question of a law that causes conflict in us even though it is acknowledged by the community to be a just law?
(Jacques Lacan 1992: 234)
The goal of this chapter is to introduce the ethics of psychoanalysis and several concepts from Lacanian theory, using Lacan’s discussion of the Antigone tragedy and selected strands of its critical reception as a point of entry. In particular, it identifies and investigates the ethical dimension of desire that Lacan argues is exemplified in the dramatic action of the play. The chapter then elaborates the implications of the focus on desire for conceptualising ethics in terms of desire. It suggests that the psychoanalytic take on ethics marks a substantial and formal difference from other forms of ethical thought that preceded it in that it can conceptualise ethical action beyond ideals of the good. The meaning of this is explained by addressing criticisms of the approach articulated by Judith Butler (2000a). The chapter contextualises the criticisms and uses them as an occasion to further explore how the Lacanian approach posits an originary and irreducible relationship between law and desire. The discussion concludes by developing the Lacanian approach to ethics into a framework for analysing ideals of the good from a non-moral perspective.
The Antigone tragedy
The Antigone is the third of Sophocles’ Theban plays (1974). It centres on Antigone, one of the four children of Oedipus and his mother and wife Jocasta. She grew up journeying the countryside with her blind father, who was exiled from the city, but Oedipus is dead and she now lives with Creon, her father’s brother-in-law and current king of Thebes. Antigone’s sister Ismene grew up in Creon’s house and continues to dwell there. Their brothers Polyneices and Eteocles are dead; Polyneices killed in a military campaign against the city and Eteocles in defence of the throne.9 In the aftermath of the civil war led by the Labdacus’ sons, Creon decrees that while Eteocles is to be buried with state funeral rites, Polyneices’ body will remain exposed on the battlefield and not receive any rites at all. Antigone will not abide this and she violates Creon’s edict by burying her brother anyway. Upon the body’s discovery Creon reiterates his edict, this time threatening the penalty of death to anyone who disobeys. Antigone is relentless and buries her brother again. When the act is discovered she is accused and does not deny the deed. Creon then condemns her to be sealed alive in a tomb. Despite pleadings from his own son and the soothsayer Tierecias, the king refuses to relent on this decision (Lacan 1992: 263; Butler 2000a: 47). However, ominous signs of divine anger begin to appear. These finally make Creon change his mind but it is too late. The tomb is unsealed and it is discovered that Antigone has already hanged herself. In the end, the houses of both Creon and Oedipus are destroyed. Creon’s son and wife commit suicide and Ismene is doomed to live a solitary life, cursed and stigmatised.
The confrontation between Antigone and Creon is characterised as a dramatisation of the conflict between formal law and ethical conscience. The most influential interpretation for modern generations in this regard is probably G.W.F. Hegel’s (1977). Hegel saw the tragedy in terms of a conflict between two forms of justice related to different forms of ethics, one associated with Antigone and seen as pre-political and based on diké (the unwritten law of the gods), and the other represented by Creon and seen as based on the institution of the rule of law or nomos (Douzinas and Warrington 1994: 43). Hegel’s interpretation is that Antigone’s final act of suicide signals the eventual reconciliation of the contradiction between unwritten and pre-political ethical obligations to clan and kin and the rule of law in a formal legal sense. For Hegel, the tragedy could be seen as a dramatisation of a metaphysical and historical progression that will see the unconditional call of justice sublimated into the legal principles of a state. The conflict is fully resolved with the actualisation of eternal justice, achieved in a state that establishes a universal rule of law. Hegel’s account has been extremely influential, and while each of the writers above makes their own contribution, they are all also speaking back in some way to Hegel’s idea of the harmonisation of formal legal right and justice.10
One important strand of commentary in this regard is informed by Jacques Derrida’s critique of the concept of reconciliation itself in Hegelian philosophy (1986). In much of his writing, Derrida’s critical targets are the seemingly straightforward categories of political thought, which have achieved the appearance of stability by virtue of Hegel’s logic of the dialectic (Kellogg 2003). In Derrida’s reading, Antigone does not usher in a universal rule of law but rather stands as a reminder of an eternal and irresolvable conflict between conditioned written law and unconditional justice (Derrida 1986), her tragic fate thus revealing an aporia in the concept of law itself (Fitzpatrick 2000). Instead of reconciliation, Derrida argued that the actual outcome of Hegel’s formula is an ‘eternally circulating and irreconcilable antithesis’ (Douzinas and Warrington 1994: 30). The reconciliation that Hegel foresaw on the horizon for humanity never arrives; it remains forever ‘to come’ (Derrida 1992: 28). Justice is only ever a factor in conditioned legal decision-making, which it also exceeds. Derrida shares Hegel’s understanding of Antigone as representing something unconditional and ‘eternally other’ (Douzinas and Warrington 1994: 21).11 The difference is that Derrida suggest the impossibility is primary and focuses on the way that the appearance of reconciliation depends on hiding Antigone’s body, so to speak. In Derrida’s hands the split in the ‘ethical substance’ that Hegel saw remains forever open.
Marking a distinct departure from the Hegelian interpretation, Lacan finds significant the fact that Antigone never actually claims to be motivated by the sacred rights of the dead and the unwritten laws of the gods. Her desire puts her in touch with the force of ‘a certain legality’ that is not articulated in any law, human or natural (Lacan 1992: 324). At no point does she explicitly argue that she has a duty to family that overrides the concerns of the state. She never makes the claim that she or anyone else has an obligation to kin that takes precedence over obeying the written laws (Lacan 1992: 279). Her action goes beyond any concern for her own; it drives Creon ‘beyond all limits’ and makes the community ‘lose its grip’ (Lacan 1992: 268–69). Antigone’s desire appears to be a ‘“crazy”, unaccountable event’ from the perspective of the community (Ži
ek 1997: 223).
From this perspective, Antigone’s second violation of Creon’s law is an illustration of a more radical aspect in the relation between the subject and signification, which is, at least formally, a universal relation (Walsh 1999: 98). Thus, Lacan argues that Antigone’s desire to bury her brother is based not on his particularity or the family’s historical specificity but on ‘no more than the break that the very presence of language inaugurates in man’ (Lacan 1992: 279). There is no justification for what she does beyond the fact that Polyneices is her brother. Lacan also notes that unlike all of Creon’s speeches that are ‘developed with an end in view’, Antigone’s justification for her action essentially has no point. This is because it happens after the moment when Creon asks her to explain herself; she justifies her action with ‘the martyrdom we have witnessed already behind her’ (Lacan 1992: 254–55). Contra Hegel, Lacan also argues that Antigone is not acting on the basis of an ethics of family when she insists on burying her brother. This is the significance of her statement that she would not have violated Creon’s edict for a child or husband but only for her brother: ‘it is this alone which motivates me to oppose your edicts’ (1992: 279).
In this sense, she does not desire to obey or resist the law and is not motivated by the morality of her actions. Thus, everything would have been all right if the community had been able ‘to cover over everything with the same funeral rites’ (Lacan 1992: 283), just as everything would have been all right if Antigone had ceded to her desire. This is not what happened, though; unlike her father, Antigone is not the victim of tragic blindness but instead knowingly desires her eventual fate. The consequences of such desire emerge for everyone when she abandons any attachment to her life. It is not her exclusion per se that is the issue for Lacan, but this fact of her desire. Ismene grew up in Creon’s house: she is willing to abide Creon’s laws and urges Antigone to do the same. Antigone wants something else and, in this sense, it is an inherent feature of her desire that pushes her to ‘the realization of something that might be called the pure and simple desire for death as such’ (1992: 282). Consider Lacan’s highlighting of the Chorus as ‘the emotional means’ of tragedy. He says to his audience that in tragedy ‘your emotions are taken charge of by the healthy order displayed on stage. The emotional commentary is done for you’ (1992: 252). Lacan suggests that the Chorus exemplifies the function of the pleasure principle.12 This is why it repeatedly implores Creon to make an exception for Antigone, even though it also says that it regards her as inhuman and monstrous, and fears having someone like her as a neighbour. The Chorus’ protest against Creon’s edict is not against the death penalty nor is it made in the name of justice, but instead is delivered out of fear of the extreme ‘point of apocalypse’ to which everyone is heading (Lacan 1992: 207). Her desire draws her and Creon both ‘into the realm of death’ (1992: 248). In this sense, the problem with Antigone’saction for the city is not primarily that it transgresses the law but that it brings the legal order itself to a point of ‘radical annihilation’ (Lacan 1992: 212). By emphasising this aspect of Antigone’s action, Lacan is suggesting the operation of something beyond the good that cannot be absorbed by a legal order. While none of our fates may ‘reach the tragic level of Antigone’s’, we all have a bit of Antigone in us in the sense that we also must negotiate unwilled aspects of desire (Lacan 1992: 300).
One way of unpacking the implications of this formulation is through Judith Butler’s critique of Lacanian psychoanalysis, which is based on the claim that Lacan’s formulation denies the historically constituted nature of all social structures and forms of power. In particular, she argues that Lacan’s theory is abstractly universal and denies the possibility that the heteronormative dimensions of the social world are contingent and open to contestation (Butler 2002). In Antigone’s Claim, Butler argues that this is exemplified in the fact that Lacan makes the central concern of his interpretation the nature of Antigone’s desire and not the nature of the symbolic order in which she is located. Indeed, it is true that Lacan is interested in the unconditional aspect of desire that Antigone displays in burying her brother, which is not just puzzling for the Greek Chorus but also for interpreters who continue to make disparate meanings of it (1992: 207).13 The next section will explore the salient features of the Lacanian concepts germane to this debate, such as the symbolic order of language and discourse, the unsymbolisable real, and, in a more limited sense, the imaginary order of identification. I will then connect these concepts to the details of Butler’s critique and to the meaning attributed to Antigone by Lacan.
The limit of the good
According to Lacanian theory, every subject is born into a situation of meaning and signification that is organised through networks of intersubjective relations, which are experienced as mysterious, unknown and inescapable. Lacan calls this realm of signification the symbolic order of language and discourse (2006: 228–29, 276–77). The real in Lacanian theory stands for a kind of quasi-metaphysical ungroundedness of all symbolic constructions, the radical ‘lack’ of referent upon which all symbolic meaning depends. The fact that humans create shared meaning that ‘superimposes the reign of culture over nature’ is an existential response to the radical absence of that division in the first place (Lacan 2006: 229/277). Thus, lack is real in the sense of always implying a ‘“something else” needed to complete or ground the symbolic’, such as faith, anxiety or pleasure (Lacan 2006: 228/276). The real is a name for this lack, which is also the condition for the emergence of human sociality and meaning in the first place. Butler’s rejoinder to this has been that the concept of an impossible and unknowable real ‘is posited as accountable for the contingency in all ideological determinations, but is never subject to the same logic of contingency that it secures’ (Butler 1993: 195–96).
In other words, while Lacan might not be referring to a classically oedipal desire for the mother in the way that Freud was, his concept of the real nonetheless contains the same idea of something that is ‘always in the same place’ relative to the symbolic (Butler 1997). This suggests there is some inevitable subjective pivot point for entry into language (Butler 1997). As she writes:
On the one hand, we are to accept that ‘the Real’ means nothing other than the constitutive limit of the subject; yet on the other hand, why is it that any effort to refer to the constitutive limit of the subject in ways that do not use that nomenclature are considered a failure to understand its proper operation? Are we using the categories to understand the phenomena, or marshalling the phenomena to shore up the categories ‘in the name of the Father’, if you will?
