The Plight of Ethics

Abstract

Since Kant, ethics has been synonymous with moral law, grounded in Reason. As Kant's heirs, we are still grappling with a tension he sought to resolve through his appeal to a rational God, namely, between ethics and politics. “Politics says, ‘Be ye wise as serpents,’” remarks Kant: “Morality adds (as a limiting condition) ‘and guileless as doves’” (1795, 338). For Kant, both the serpent of politics and the dove of ethics are bound by the same moral duty that has its source in the freedom of our sovereign rational will. The perfection of this good will is possible not as individuals but only from the perspective of what Kant calls “Universal History from a Cosmopolitan Point of View,” which it turns out is a view from the cosmos, more specifically, from the perspective of the “dwellers from other planets” whom Kant imagines viewing us from their own place in the universe (1784, n. 2).As we know, Kant insists that the concept of duty cannot be in conflict with doing our duty—or that ought implies can: “It is patently absurd, having granted this concept of duty its authority, to want to say that one nevertheless cannot do it. For in that case this concept would of itself drop out of morals…. [H]ence, there can be no conflict of politics as doctrine of right put into practice, with morals, as theoretical doctrine of right” (1795, 338). But what if the reverse were true? What if ought implies cannot? What if our obligations always outstrip our intentions? What if the sovereign will is fundamentally beholden both to other people and to the Other of language and culture, such that Kant's autonomous “I can” becomes “I suffer.” In other words, what if in order to save the ethical import of the concept of duty, morality itself must drop out?I am alluding to Levinas's notion of ethics as first philosophy, with all of the responsibility of modern ethics but none of its autonomy or self-certainty. Indeed, moving from Kant to Levinas we could say that autonomy and responsibility become inversely proportioned. For as rational law and self-sovereignty and everything that grounds modern morality slip away, our ethical responsibility increases. As we shake the ground from our soles/souls as so much dirt stuck there, as Deleuze (1968, 197) might say, and give up our illusions of putting ourselves into the shoes of others, nonetheless, we still have one more step to take, one more response to give. As we move from Kant's moral law to Levinas's ethical insomnia, responsibility becomes ratcheted up to such a degree that Derrida calls it “hyperbolic ethics” (2001).At first blush, it seems that all that Kant's duty and Levinas's responsibility have in common is the appeal to God, but even that is radically different between the two. It is noteworthy, however, that Kant's concept of duty, or Pflicht, could have been more literally translated as “plight” or even “pledge.” Indeed the English word plight has its origins in the Old German word Pflicht. And Pflichten can be translated as “obligation” or “responsibility.” Although I cannot follow the complex etymological connections that lead from Pflicht to responsibility, there are some forceful currents running through them, from the familiar connotations of obligation, promise, and binding to the extraordinary connotations of risk, danger, and hostage.1 Both plight and responsibility have their roots in the notion of pledge, in the sense of vowing a solemn oath and of one who becomes a hostage or bail for another. This history resonates with Levinas's notion of ethical subjectivity as pledge or hostage.It is also significant that Kant's word for duty, Pflicht, originally referred to social or community bonds forged through care and dependency. Pflicht comes from Pflëgen, which means care for or look after and has strong connotations of community.2 There is, then, care, dependency, community, and social bondage, so to speak, already contained within Kant's notion of duty as Pflicht or plight. Thinking of Kant's Pflicht as plight sets us on a path that leads more directly to Levinas. More important, however, it gives us a different way to reconcile ethics and politics. For plight means bind not only in the sense of pledge, as in vow an oath, but also in the sense of intertwine, plait, or braid. Ethics and politics are bound in this sense of intertwining both conceptually and practically. Indeed, we might even say that their necessary relationship puts us in a double bind, and this is the post-Kantian plight of ethics.In the history of moral philosophy culminating in our moment of hyperbolic ethics, our plight has become less familiar and more uncanny, as the notion of duty or obligation increasingly takes on the sense of risk and urgency involved in substituting myself for another in a way that entails danger, even hostage, which, by the way, also has its roots in a Latin word for pledge—pledge in the sense of giving oneself over for the other and also in the sense of making a promise or a binding oath, in other words, a speech act, the very possibility of which assumes both other people and the Other of language and culture. Kant's autonomous will gives way to the vulnerability of the face for Levinas or suffering as the uncanny “capacity” for vulnerability for Derrida. The “I can” of moral agency becomes passively subjected to the other upon whom it depends ontologically and biologically for its very existence. Levinas proposes a responsibility that I cannot refuse because there is no I without it. Insofar as I am, I am answerable and responsible to and for the other. Contra Hegel and Sartre, Levinas (1998) maintains that subjectivity is not the in-itself become for-itself but, rather, the in-itself become for-the other. Yet Levinas insists that this hyperethical responsibility operates on a level opposed to the political. Justice, he says, requires a third, whereas the force of our ethical obligation finds its imperative in the face-to-face relation, which cannot be translated into the political realm.If Kant reconciles ethics and politics by appealing to the rationality and goodness of God, for Levinas they couldn't be further apart precisely because of the relationship between the ethical face-to-face and God as infinite. Ethics is of the singular, unique, infinite, and untranslatable, an encounter with absolute alterity, whereas justice or politics is generalizable, finite, necessarily translatable, and requires arbitrators of civil codes. For Levinas, the gap between ethics and politics could not be wider (cf. Levinas 1989). So, how do we get from the Kantian concept of duty with its source in reason to the Levinasian notion of responsibility as “the essential, primary and fundamental structure of subjectivity” (Levinas 1985, 95)?In our attempt to untangle and thereby rebind ethics and politics, in order to forge the untranslatable singularity of each to the necessity of generalizable civil codes, it is significant that the word responsibility itself was first used in relation to politics and not to ethics. Specifically, in both English and French, it has its origins in late eighteenth-century discussions of government and civil law.3 Just as we found care, community, and dependency on others contained within the history of Kant's concept of duty, we find political and juridical law contained within the history of Levinas's concept of responsibility and his ethics as first philosophy.When the concept of responsibility moves into philosophy proper in the nineteenth century, it is not as an ethical concept but, rather, as a political one, which again refers to principles of law and government, specifically punishment, or what John Stuart Mill calls “punishability” and what F. H. Bradley calls “accountability” (see McKeon 1957, 6–7). Paul Ricoeur traces this slippage in the juridical concept of responsibility as attribution to that of retribution through the term account, which links imputation to responsibility.4 In Ricoeur's terms, responsibility as accountability suggests “the idea of a kind of moral bookkeeping of merits and demerits, as in a double-entry ledger: receipts and expenses, credits and debits,” wherein “the metaphor of a balance book seems to underlie” both being accountable for and giving an account, in the sense of recounting (2000, 14). In other words, in its juridical origins, responsibility is a matter of calculation and accounting on the scales of justice such that punishments are compensations or payments for crimes committed. Ricoeur points out that responsibility owes its associations with payment to the theological context that takes us back to Saint Paul's interpretation of the crucifixion of Christ as payment for original sin.It is perhaps no coincidence, then, that the word responsibility first appears in these juridical writings at the very same time that Kant produces his most powerful articulations of the metaphysics of morals in which he reconciles morals and politics through a kind of strict moral bookkeeping based on the principle of equality contained in the notion of lex talionis, or justice as retribution. Although lex talionis also takes us back to the Judeo-Christian doctrine of an eye for an eye and a tooth for a tooth found in the Old Testament, and ultimately Kant, too, grounds its absolute authority on the benevolence of a rational God, Kant is clear that the retaliation required by the law of talionis cannot be based on revenge but, rather, must be based on equality. The word that Kant uses for equality is Gleichheit, which also connotes likeness. To be fair, the punishment must fit the crime in the sense of like for like. In both his moral theory and his political theory, Kant insists on the connection between freedom and equality. Moreover, as we know, he maintains that morality requires that we do our duty for its own sake and not from inclinations or emotions alone. To spite the fact that Kant explicitly opposes to the mechanisms of nature the freedom that he claims warrants human dignity, Nietzsche criticizes Kant's “economic justification of virtue,” which makes morality a matter of mechanically following laws (Nietzsche 2003, 176; cf., e.g., Kant 1795, 340–41).Arguably, however, the strictness of Kant's concepts of duty and equality seems related to his insistence that lex talionis or retribution must be devoid of vengeance. Moral bookkeeping and mechanical principles are ways of trying to ensure an equality that does not unjustly favor those we love and torture those we hate. In this way, we could say that in spite of his various appeals to God, Kant attempts to salvage lex talionis from its vengeful Judeo-Christian roots. For Kant, the ultimate test for the strict principle of talionis, or like for like, is the death penalty. Interestingly, rather than interpret the death penalty as exchanging one life for another—life for life—Kant sees giving death as the necessary demand of the principle of talionis: “There is no similarity between life, however wretched it may be, and death, hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer.” So, a life of hard labor or in prison is never like death. Thus Kant concludes, “If, [however], he has committed murder he must die,” and “the best equalizer before justice is death” (1797, 474–75; emphasis in original). A death for a death is demanded by the principle of equality, which is the ground not only for both moral and civil law but also for Kant's first article of perpetual peace. The very concept of moral law that binds politics to ethics, then, is based on the principle of equality as like for like, which ultimately depends upon the death penalty, a death for a death, and the state's sovereign right to put to death.Insofar as Western philosophy, like Christianity, begins with a scene of capital punishment—that of Socrates being sentenced and put to death—doesn't it also begin with the death penalty? Derrida (2004, 146) asks this question and answers that philosophers from Kant to Levinas justify the death penalty and “just” wars on the basis of lex talionis, which takes us back not only to its theological roots but also to the basis of sovereignty. For the sake of protection by the state, the citizen subjects him- or herself to state sovereignty and grants it, and only it, the power to kill. In other words, all justified killing, killing that is not a crime, must be circumscribed by law as in war or state-sanctioned execution. This is why for Kant (1996, 132) it is better that the sovereign head of state be assassinated rather than be executed by law, since execution of the sovereign who makes and enforces the law would undermine the power of law itself. Derrida claims that no philosopher qua philosopher has opposed the death penalty on principle, that from Plato through Heidegger, “each in his own way, and sometimes not without much hand-wringing (Rousseau), took a stand for the death penalty” (2004, 146). He concludes that the death penalty is the keystone of speculative philosophy, that the death penalty and sovereignty are built on the same scaffolding, and that the death penalty is the “weld” or “cement”—we might say the bind, even the double bind—“that holds together Western traditions of religion, philosophy, and politics” (2004, 88).Is it possible, then, to salvage notions of obligation and responsibility from both their Judeo-Christian heritage and their Enlightenment reincarnations, which not only reduce morality to a matter of calculation, accounting, and bookkeeping but also and moreover are built upon the scaffolding of lex talionis, which necessarily leads to the death penalty? Can we think ethics, or politics for that matter, beyond debt management wherein taking a life, or more precisely, giving death, is the ultimate payback?Currently, the United States is the only country in the so-called developed Western world that continues to execute prisoners.5 Since 1982, in order to avoid construing the death penalty as cruel and unusual punishment, which would violate the Eighteenth Amendment, the Supreme Court has upheld the use of a tripartite lethal injection protocol as more “humane” than other methods of execution: the first drug renders the condemned unconscious, the second paralyzes the muscles, and the third kills by stopping the heart. The Court ruled that there is no cruelty in execution as long as the prisoner is unconscious at the time of death, particularly since the drug that stops the heart is excruciatingly painful.But why that second injection to paralyze the muscles? This supplementary injection can only be for the sake of the witnesses who want to see an inert body devoid of movement, unlike the wracked and bleeding bodies aflame in the electric chair. This so-called clean death sterilized with high-tech medical apparatus, including IVs, syringes, and hospital gurneys, supposedly sanitizes death; and like the surgical strike in high-tech warfare, it focuses death into an imagined pain-free instant, but only by dividing it into the three stages of the lethal injection protocol, which ensures that the prisoner will look dead before he or she is dead.Writing for the majority, Chief Justice Roberts contended that the state adequately proved that the second paralyzing injection “serves two purposes: (1) preventing involuntary convulsions or seizures during unconsciousness, thereby preserving the procedure's dignity, and (2) hastening death” (Baze v. Rees, 553 U.S. 35 [2008]). Yet the preservation of dignity and quick death can be ensured only if the body is made to look dead before it actually is. Moreover, the dignity in death demanded by the Court takes us back to Kant's insistence that the death penalty is necessary in principle but must be practiced in a way that preserves the condemned person's dignity.On the one hand, Justice Roberts (with Kant) imagines a motionless, emotionless death with dignity. On the other hand, this fantasy of death with dignity, as opposed to other sorts of deaths, undermines Kant's principle of talionis wherein death is the great equalizer. For it also indicates that we are not all equal in death or, at least, that not all deaths are equal. Indeed, in practice, it is difficult—if not impossible—by the Court's own standards, to determine what such a painless dignified death would entail. What is dignified about being strapped to a gurney against your will, pleading for your life, dying in a theater with spectators watching through a window, losing the ability to speak or to protest, indeed, losing control of all of your bodily functions? In fact, none of us would know. And who is left to testify to one's own dignity or loss of it with such a death? The paralyzing motionless form of dignity approved by the Court indicates again that this so-called dignity is produced for the spectators and not out of respect for the condemned.Certainly the number of botched hangings, electrocutions, and even lethal injections indicates that even advanced technologies cannot ensure a pain-free instant death or guarantee that the victim is unconscious at the time of death. In fact, a study of postmortem examinations on prisoners executed by lethal injection concludes that given blood levels of anesthetic, “prisoners may have been capable of feeling pain in almost 90% of cases and may have actually been conscious when they were put to death…. Because a muscle relaxant was used to paralyze them, however, inmates would have been unable to indicate any pain” (Motluk 2005). This is not, however, merely a practical problem but also and moreover a philosophical one: because we cannot be certain, from a phenomenological perspective, what counts as “the time of death” or as “consciousness of death.”The three-drug protocol is designed to circumvent the very possibility of establishing whether or not the condemned person is suffering or in pain, whether or not he or she is conscious at the moment of death, and therefore whether or not the punishment is cruel and unusual as defined by the Court. Furthermore, this fabulous fantasy of painless death disavows the reality that we don't know how to define what constitutes consciousness of death because firsthand testimony is impossible. As long as Lawrence Brewer, recently executed in Texas, goes out snoring as if in a sound sleep (which he apparently did), at some level we can reassure ourselves that his death is the least cruel, most usual, and perhaps even the most desired, namely, dying in his sleep.Recently, abolitionists have turned to what they say is their most powerful argument against the death penalty, namely, the execution of an innocent man, Troy Davis, in Georgia in September 2011. Davis was found guilty of killing a police officer while attempting to escape the scene of a robbery. The argument that the criminal justice system can make mistakes, however, is not an argument against the principle of the death penalty. Neither is the argument that lethal injection is cruel and unusual. Rather, these arguments allow that although the practice is flawed, the principle may be sound; if only we improve and perfect the practice, then we authorize the principle. The fantasy of humane painless instant death, technologically administered, contributes not only to the idea of the perfection of the means of death in order to justify the principle of the death penalty but also to the fantasy of death itself as an absolute, in this case, the absolute end of suffering and pain.Following this line of thought, we might wonder why leading up to the execution of Davis on September 21 abolitionists around the world rallied and protested trying to save his life, while at the same time on that very Wednesday evening little attention was paid to another execution, that of Lawrence Brewer, the infamous Texan who tied a black hitchhiker to the back of his truck and dragged him to death. He, too, proclaimed his innocence of the murder of James Byrd Jr. until his dying breath. Reportedly there were celebrations of Brewer's death by people who thought that he got what he deserved for his heinous racist hate crime. The outcry against the execution of Davis at the very same moment as the jubilance over the execution of Brewer could be seen as a strangely perverse symptom of the history of racism trying to put things right by rejoicing over one execution while raging over the other. Even after the executions, there were comparisons between Davis refusing a last meal in order to pray silently with friends and family and Brewer ordering several pizzas, cheeseburgers, pounds of BBQ, tacos, and other comfort food and then refusing to eat it, which disgusted some commentators and prison officials, who suggested that Brewer was not only undignified but also ungrateful.Around the world, protesters held signs and wore buttons saying, “I am Troy Davis.” But what does it mean to say, “I am Troy Davis”? Does this identification with Davis suggest that like him, I am innocent or that like me, he is? Or that if the state executes him, it executes me or if it doesn't execute me, it shouldn't execute him? What does it mean for these protesters around the world, most of them free from prison, most of them white and middle class, to identify with Davis, a condemned black man, raised in poverty, who spent twenty years, half of his life, on death row waiting to be executed? Doesn't this also, at least implicitly, say that I am the victim of the death penalty rather than the perpetrator? After all, the protesters were not holding signs saying, “I am Troy Davis's executioner,” which they could have done, given that here, and even in France where the death penalty has been abolished since 1981, polls show that most people still favor it. And no one was holding signs saying, “I am Lawrence Brewer.” Even though the fact that we continue to live in a racist country is undeniable, from racist comments directed at President Obama from the highest level of elected officials, to the staggering statistics that show that by far most of the people in prison and on death row are African American, to continued economic inequities reported just recently that put the median income for black households at $31,784, well below that of whites (Pear 2011). The toxic combination of economic and social racism creates another type of lethal injection that, in various ways, is killing some people while benefiting others.I am lingering on this example because perhaps it can help make clear where ethics and politics intersect and intertwine, to the point of putting us in a bind, even a double bind, reflected in the following series of questions: Can we say not only “I am Troy Davis” but also “I am Troy Davis's executioner” and “I am also Lawrence Brewer and his executioner”? Can we avow our responsibility for, and complicity with, both their crimes and their executions? And what would it take to avow the differences between our comfortable lives and that of Troy Davis? Or, more to the point, to avow that at some level, the comfort of our lives is still dependent upon state-sanctioned killing, including the death penalty in all of its forms, most especially institutionalized poverty and state-sanctioned war? What would it take to avow that we are, in some way, also those whom we abhor and those whose actions from which we disassociate ourselves in the most adamant ways? That we are, so to speak, our own worst enemies?What would it take to avow that who or whatever they are, our enemies—whether racists like Brewer or terrorists like bin Laden—are also always projections of our own fears and desires? And whatever they have done, and whatever retaliation we seek, through our fears and desires, often unacknowledged, perhaps even unknown to us, we rationalize our own injustice and justify their torture and death. What would it take to avow that we are part of the ultimate binary killing machine: Us versus Them, Good versus Evil, Troy Davis versus Lawrence Brewer?To understand the effects of killing machines on both the victims and the perpetrators, we need a psychoanalytic supplement, to work through the double bind of ethics and politics. In order to begin to think about our own investments in state-sanctioned violence, we need to consider the ways in which death penalties of all kinds find their place not only in economic and political power struggles but also in revenge fantasies that fuel them, whichever side they are on. To this end, we need to consider the psyche as between reason and unreason, between plight as Kantian duty and responsilbity as Levinasian hostage, in order to bind and rebind ethics and politics, by virtue of our sociality that makes us subjects capable of both love and hate, desire and fear. Once you add the postulations of the unconscious to critical philosophy, it becomes necessary to analyze and avow our own psychic investments in state-sanctioned violence, killing, and war. Psychoanalytic avowal is another form of plight or pledge in the sense of vowing an oath to admit and explore our own economic and psychic investments in the violence we say that we abhor. This is particularly relevant when we feel outraged or wronged and want payback. Recall the “with us or against us” reactions to September 11, 2001, and the continued political discourse on “hunting down” terrorists and “making them pay.” Think, too, of all of the revenge fantasies—too many to begin to list—that populate our cultural imaginary evidenced by popular media, including a new TV soap opera aplty called Revenge.In addition to indulging in self-righteous indignation and outrage we need to examine our own economic and psychic investments in, and dependence on, state-sanctioned violence, killing, and war. For example, directly or indirectly, many of us receive our paychecks from the very state governments that are executing people and from the federal government that is sending soldiers off to kill and be killed. As my grandmother used to say, rather than accuse someone else for the stink all around us, “the fox should smell his own hole first.” This goes not only for Kant's serpents, those clever politicans, but also and even more so for Kant's doves, those supposedly guileless moralists. After all, Kant' serpents and doves originally found their home in Christ's instructions to his disciples in the New Testament: “Behold, I send you forth as sheep in the midst of wolves: be ye therefore as wise as serpents, and harmless as doves” (King James Bible, Matthew 10:16).This expanding beastiary warning us against our fellow man by reminding us of our own animality is another signal that we need psychoanalysis to begin to understand our fears and desires as social creatures. But when we add the psychoanalytic postulation of unconscious fears and desires, our ethical and political responsibilities become even more complicated and more acute. For we become responsible not only for our actions, or our intentions à la Kant, our beliefs and emotions à la Sartre, and those of the other à la Levinas, but also for our own unconscious fears and desires, which remain hidden even from us.If Derrida's hyperbolic ethics puts us in a double bind between law and radical alterity, then psychoanalysis may be the only way to navigate between these conflicting obligations to respect the dignity of each, in Kant's sense of universal equality and also in Levinas's sense of singularity, which takes us beyond equality to asymmetrical responsibility. Derrida's hyperbolic ethics brings the Kantian and Levinasian imperatives together in the impossible double bind wherein to do one is not to do the other, yet it is necessary to do both; ought imples cannot, which does not exonerate us from but, rather, intensifies ethical and political obligations.Psychoanalysis gives us a way of addressing the tension between ethics and politics that springs the trap of this double bind. The pledge of psychoanalysis is to critically examine how we project our unconscious fears and desires onto others whom we call foreigners, enemies, monsters, deserving some form of death penalty. It commands us to investigate how we distribute dignity, equality, and respect such that some profit while others pay the price. The psychoanalytic supplement binds ethics to politics without appeals to the soveriegnty of the will or of God but, rather, through the interminable process of analyzing the ways in which we disavow and avow our investments in violence and cruelty.Without sovereignty and without ownership, we are responsible for what we cannot and do not control, for our unconscious fears and desires and their effects on others. The fragile hope is that by acknowledging the death drive within ourselves, we can begin to prevent killing and never give up trying to find ways to abolish death penalties in all their forms. The death drive is not the Kantian notion of death as the great equalizer but, rather, the tension in life itself, both destructive and creative, always conjoined with both pleasure and pain, joy and sorrow, and the ambiguities of life that not only exceed but also expose the fantasy of death as an absolute end point or final resting place. Far from the Perpetual Peace of the Dutch innkeeper's sign, with which Kant ironically opens his essay, the death drive is the force that fuels the fantasy of the end of life as everlasting peace.Is philosophy, perhaps all philosophy, ultimately founded on the absolute certainty of death, that we are all, in one way or another, sentenced to death? Derrida demonstrates philosophy's bind to death and the death penality. Yet, in his last seminar, while powerfully calling into question the meaning of death and who can die, Derrida also appeals to the fact that every living being dies as perhaps the ultimate ethical bind. Has death, then, as the absolute and only equa