Crop of Laszlo moholy-nagy, composizione A.XX, 1924 | Sailko, CC BY 3.0 https://creativecommons.org/licenses/by/3.0, via Wikimedia Commons.

Act only in accordance with that maxim through which you can at the same time will that it become a universal law¹

Act as if your maxims were to serve at the same time as a universal law²

These are two well-known formulations of the categorical imperative. For Kant, these formulations serve as the ‘canon’ and ‘strict method’ of moral judgment.³ Both ask whether a particular maxim—universalized, that is, imagined as universal law—can consistently be willed. How did he come to this?

From Freedom to Form

To make moral decisions, to legislate for ourselves, we must be free to do so, otherwise we would be mechanically determined entities subject to the causal laws of nature. Freedom is therefore central to the categorical imperative. Moreover, if there is to be any form of beginning rather than an infinite regression of causes, he figured there needed to be a first cause that was not in itself determined by another cause. This is why Kant assumed ‘an absolute spontaneity of the cause’.⁴ That things could begin on their own became a key factor in his conceptualisation of freedom and the moral law. In order to properly discern the necessity and universality of the categorical imperative, practical reason has to be pure, a priori reason, independent of material experience. If it were not, it would be contaminated by natural inclinations and contingent objects of desire that would interfere with one’s freedom and duty.

Kant’s answer to this challenge is to urge us to turn our attention away from possible objects of desire or desirous ends, and towards the ‘form’ of the categorical imperative itself. What sort of form is this? Divorced from any sense of materiality, we know that the commands of the categorical imperative are not contingent, but necessary and universal. To command with necessity and universality is to take the form of a law, hence the formulation: ‘Act as if your maxims were to serve at the same time as a universal law’.

Empty Formalism

Now it is this ‘formalism’ of the categorical imperative that has borne the brunt of critique. The argument goes that a moral law truly without end, object, matter, or content would be useless; it would be, to use Hegel’s formulation, an ‘empty formalism’.⁵

One might object that Kant himself inferred a number of duties from the categorical imperative, such as the duty against taking one’s own life, the duty against lying to obtain a loan, or even the duty not to waste one’s life in ‘indulgence in pleasure’ like ‘South Sea inhabitants’.⁶ The latter example, in particular, betrays as much condescension as it does Protestant work ethic, which only seems to support Hegel’s critique that the imperative does not produce a determinate content purely from itself; that its content is instead presupposed or already given for it to be productive.

 Adorno pushes the objection further. For him, Kant starts off by postulating freedom and extracts an immense pathos from it, but in the end freedom is dispensed with entirely. We are so duty bound to follow maxims generated through the form of the categorical imperative, that there is nothing left of ‘even this miserable freedom to do the wrong thing and behave like an utter swine’.⁷

The early critique of Kant offered by the critical legal scholars Costas Doziness and Ronnie Warrington is similarly trenchant. As they put it, ‘Kantian formalism … ends up in the blatant assertion that formal legality equals justice … We need to reintroduce ethics in law but traditional moral philosophy has proved insufficient.’⁸

In sum, for many, (empty) formalism is highly problematic.

Force and Emptiness

But what if it is precisely the emptiness of the categorical imperative, its complete lack of content, the absence of any sanction, threat, or reward—what if it is through this emptiness that the imperative gains its categorical force?

The idea of a radical alignment between emptiness/absence with absolute force has been well theorised in recent years.

Žižek, for example, has argued that the Lacanian big Other (that aspect of the Symbolic order that is experienced or represented by the subject as having normative force, whether it be legal rules or grammatical rules of language itself) has absolute force as a result of its very absence.⁹ The structure is Freud’s in Totem and Taboo: the murdered father proves more binding than the living one ever was, returning as totem, and so as pure law and the prohibition of incest.¹⁰ For a society under the rule of law, parricide must already have occurred; the father is always already dead. From the very beginning then, the effective force of the big Other is its non-existence.¹¹

Žižek further relies on an analogy between the non-existence of the big Other and the Kantian imperative where the ‘empty form of the Law functions as the promise of an absent content (never) to come’.¹² Žižek relates the empty Kantian imperative to Kafka’s ‘Before the Law,’ where one is guilty without knowing which rules one has infringed (of which more later). One is always guilty and as such, Žižek claims that ‘for the first time in the history of philosophy, the assertion of the Law is unconscious’.¹³ Moreover, it is precisely when ‘the symbolic norm fails to appear, that we encounter the Law at its most radical, the Law in its aspect of the Real of an unconditional injunction’.¹⁴ That the the Big Other does not exist serves to make it all the more powerful as it becomes a Symbolic void in which the Real intrudes. In other words, the Real, which by definition resists symbolisation, intrudes as Imaginary simulacra. Indeed, the virtuality of the Big Other means that it only exists ‘insofar as subjects act as if it exists’¹⁵ and therefore has the same status as an ‘ideological cause such as Communism or Nation’,¹⁶ with all the totalitarian dangers that these bring.

This structure—a Law fully in force yet empty of content—receives a juridical-political formulation in Giorgio Agamben. Alongside his well-known theorizing of the state of exception, Agamben also developed the idea of the ‘virtual exception’. The virtual exception is the pervasiveness of the prescription without content or what Agamben also calls ‘being in force without significance’.¹⁷

To exemplify this, Agamben also turns to Kafka’s ‘Before the Law’. Here, the open door of the law does not prevent the man from the country from passing through, because the law prescribes nothing. One cannot open a door that is already open: ‘[t]he open door destined for him includes him in excluding him already and excludes him in including him’.¹⁸ This radical openness or abyss around which law circulates, that we are in it without it being fully realized, is the power of the virtual exception. It is, in his view, analogous to Kant’s categorical imperative and Agamben acknowledges Jean-Luc Nancy as the philosopher who has most rigorously thought this notion of being in force without significance, though Nancy does so in his own terms.¹⁹

Law Addressed to Freedom

Nancy acknowledges that Kant’s moral law quite justifiably offends our sensibilities in respect of its coercive intent, yet suggests that the categorical imperative is much nearer to us than we suspect. He reads Kant with an appropriate degree of impiety, appreciating the necessity of freedom’s unconditional prescription while thinking beyond Kant on the essence of freedom itself. Freedom for Nancy is absolute, or it is not freedom. Absolute freedom is conceived here, somewhat paradoxically, as that which is not conceived. There is nothing before and nothing at the moment of freedom. Instead, ‘freedom consists in not consisting, without contradiction’.²⁰ Only in this way can it be truly free, that means even free from itself.

Nancy further draws our attention to the significance of Kant’s unveiling of freedom as the ratio essendi (reason of being/ground of existence) of the moral law.²¹ This does not mean that freedom founds the law from a position outside it, but that freedom is necessary for the realization of the law insofar as the law cannot be addressed to a subject who is not free. Nature is not free and is therefore not subject to the moral law. Nature cannot and does not do otherwise. But ‘humanity’ is ostensibly free. We can act otherwise and our freedom to do so implies an inherent capacity for transgression, which in turn implies the existence of something to be transgressed. This ‘something’ is the moral law or categorical imperative, that which is necessarily addressed to us in virtue of our freedom.

The categorical imperative, then, is addressed to freedom,²² but freedom itself consists in not consisting. Its recipient is a radical emptiness, an absence of ground. In engaging that freedom, the moral law draws its boundaries, demands obedience, and does so by necessity.

Law Addressed to Sovereignty

Finally, let us turn briefly to Kelsen’s Basic Norm, the supposed unifying foundation of the legal order (from a ‘legal science’ perspective) whose validity cannot be derived from a superior norm, and which has also been critiqued for being formalistic. I suggest that while Kantian moral law is addressed to freedom, the Basic Norm, which in the end Kelsen admitted was not a ‘real act of will’,²³ is simply addressed to sovereignty. The Basic Norm is necessary for there to exist, at least in theory, a legal order free from sovereign exceptionality and free from abuses of power. This does not mean the Basic Norm itself exists in reality and this does not mean that exceptionalism and sovereignty may not creep back in. The point, as far as I see it, is that one must act as if it exists in order to effect a relation between law and sovereignty, where law comes to define itself in contradistinction to sovereignty.

This notion of the ‘as if’ is borrowed from Hans Vaihinger, whose Philosophy of ‘As If’ built a whole theory of knowledge out of fictions we know to be false but cannot do without.²⁴ The Basic Norm, in this sense, is one such fiction inasmuch as it is a presupposition that we treat as if it were true in order to carry on.²⁵  I suggest that this is the same formalist procedure as Kant’s moral law: for the realisation of moral law and freedom alike, ‘act as if your maxims were to serve at the same time as a universal law’(emphasis added).

Law’s Necessity

Formalism has long been anathema to critical legal thought and it is not my intention here to rehabilitate it. Instead, I wish to suggest that formalism may make sense when thought in a certain way (even for critical legal theorists): its very emptiness is what allows law to be generated from nothing, a nothing that is still something (to paraphrase Nancy).²⁶ For Žižek and Agamben this emptiness is a warning: a law in force without significance as the very form of sovereign and totalitarian power. For Nancy the danger is real but inseparable from the ontological condition itself. I take emptiness in this latter sense: not a threat that can be simply overcome, but one that co-exists with law’s necessity. I conclude with three points:

1) Rather than think of the ground(s) of law, following this analysis it might be useful to think in terms of the law’s relationality (Law/Freedom, Law/Sovereignty, etc) or if one were to keep to the discourse of grounding, that this ground might be conceived as nothing other than a relation.

2) Rather than think in terms of what Derrida has called the ‘force of law,’²⁷ this analysis invites consideration of what one might call the ‘necessity of law’ or ‘law’s necessity’ or ‘law as a response to necessity’; in other words, a necessity conceived perhaps even in Derrida’s own terms, a ‘singular necessity, not simply the law, but Necessity, the other which I cannot escape.’²⁸

3) Beyond the formal expression of law’s necessity lies the question of substantive content, and we might begin to think these in different registers. Law’s necessity does not in itself validate any particular law. It merely states that there must be law, and thereafter this law flourishes in its contingency.  The fiction works on that formal condition, treating one situation (emptiness) as if it were another (replete with determinate content). The legal fiction may thus be compared with the late Kelsen’s Basic Norm and with Vaihinger’s ‘as-if’: an unavoidable presupposition, rather than a claim about something that exists in actuality. Emptiness gives law its necessity; fiction, its material contingency; and the two are different registers. This, in the end, is what Kant’s categorical imperative may disclose.

1Immanuel Kant, Groundwork of the Metaphysics of Morals (1785) (Mary Gregor tr, Cambridge University Press 1997) 4:421.

2Immanuel Kant, Grounding for the Metaphysics of Morals (James W Ellington tr, 3rd edn, Hackett Publishing Company 1993) (4:438)

3Kant, Groundwork, 4:424 and 4:436–37.

4Immanuel Kant, Critique of Pure Reason (Werner S Pluhar tr, Hackett 1996) A446/B474.

5See GWF Hegel, Elements of the Philosophy of Right (1821) §135R (Allen W Wood ed, HB Nisbet tr, Cambridge University Press 1991).

6Kant, Grounding, 4:421–23.

7Theodor W Adorno, Problems of Moral Philosophy (Rodney Livingstone tr, Stanford University Press 2001) 133.

8Costas Douzinas and Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics and the Law (Harvester Wheatsheaf 1994), 167.

9Slavoj Žižek, ‘The Big Other Doesn’t Exist’ (1997) 5 Journal of European Psychoanalysis <http://www.psychomedia.it/jep/number5/zizek.htm>.

10Sigmund Freud, Totem and Taboo (James Strachey tr, Routledge 2001 [1913]).

11See Žižek, ‘The Big Other Doesn’t Exist’.

12Slavoj Žižek, The Plague of Fantasies (2nd edn, Verso 2008) 292.

13Žižek, The Plague of Fantasies, 292.

14Žižek, ‘The Big Other Doesn’t Exist’.

15Slavoj Žižek, How to Read Lacan (Granta 2006) 10.

16Žižek, How to Read Lacan. Note the capital letters, marking them as fixed ideologies rather than as more generalised concepts that, in contrast, can be potentially conceived against totalitarianism.

17Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen tr, Stanford University Press 1998) 51. Note that for Agamben this structure is the nihilism of the ban that is to be resisted rather than affirmed.

18Agamben, Homo Sacer, 51.

19Agamben, Homo Sacer,  51.

20Jean-Luc Nancy, The Experience of Freedom (Bridget McDonald tr, Stanford University Press 1993) 172.

21Kant, Critique of Practical Reason (Mary Gregor tr, Cambridge University Press 1997) 5:4n. For Nancy’s own reading, see ‘The Kategorein of Excess’, in A Finite Thinking (Simon Sparks ed, Stanford University Press 2003).

22Nancy, The Experience of Freedom, 150.

23Hans Kelsen, General Theory of Norms (Michael Hartney tr, Clarendon Press 1991) 256, where the Grundnorm is finally described as a genuine fiction in the sense of Vaihinger’s philosophy of as-if; Cf Hans Kelsen, Pure Theory of Law (2nd edn, Max Knight tr, University of California Press 1967).

24Hans Vaihinger, The Philosophy of ‘As If’: A System of the Theoretical, Practical and Religious Fictions of Mankind (CK Ogden tr, Kegan Paul 1924).

25See Gilbert Leung, ‘Illegal Fictions’ in Benjamin Hutchens ed, Jean-Luc Nancy: Justice, Legality and World (London & New York, Continuum 2012), 82

26Jean-Luc Nancy, ‘On Finitude and Sovereignty’ Critical Legal Thinking (15 September 2010) https://criticallegalthinking.com/2010/09/15/on-finitude-and-sovereignty-jean-luc-nancy/.

27Jacques Derrida, ‘Force of Law: The Mystical Foundations of Authority’ (Mary Quaintance tr), in Acts of Religion (Gil Anidjar ed, Routledge 2002).

28Jacques Derrida, ‘On Reading Heidegger: An Outline of Remarks to the Essex Colloquium’ (1987) 17(1) Research in Phenomenology 171.