Law Critique (2009) 20:245257

DOI 10.1007/s10978-009-9054-1

In Force Without Significance: Kantian Nihilism

and Agambens Critique of Law

Daniel McLoughlin

Published online: 18 August 2009

Springer Science+Business Media B.V. 2009

Abstract In Homo Sacer, Giorgio Agamben makes the claim that Kants moral
philosophy is prophetic of legal nihilism and modern totalitarianism. In doing so, he
draws an implicit parallel between Kantian ethics of respect and autonomy, and the
authoritarian constitutional theory of Carl Schmitt. This paper elucidates and
evaluates this claim through an analysis of Agambens assertion that the legal
condition of modernity is a nihilistic law that is in force without significance. I
argue that the theoretical continuity between totalitarianism and the Moral Law is
the problem of the undecidable, which arises when the empty ground of normative
judgment comes to light.

Keywords Agamben
Deconstruction
Derrida
Ethics
Exception

Hegel
Kant
Law
Nihilism
Schmitt
Sovereignty

Giorgio Agambens Homo Sacer is infamous for its diagnosis of the contemporary
biopolitical horizon as one of juridical nihilism. According to Homo Sacer, politics
is now dominated by a law that is in force without significance, a juridical form
that has its most radical realisation in the camp, and in the totalitarian states of the
twentieth century. Many of the theses that Agamben draws from this analysis have
caused considerable controversy, in particular, the arguments that the exception has
become the rule, that the concentration camp is the nomos of the modern, and that
there is an increasing convergence between totalitarian states and liberal democratic
ones. Alongside these theses, however, sits a lesser noted and yet no less
provocative claim: the accusation that Immanuel Kant, in his moral philosophy,
introduced this nihilistic legal form into modernity. According to Agamben, it is

D. McLoughlin (&)
School of History and Philosophy, University of New South Wales, Sydney, NSW 2052, Australia
e-mail: d_glock@fastmail.fm

123
246 D. McLoughlin

truly astounding how Kant, almost two centuries ago and under the heading of a
sublime moral feeling, was able to describe the condition that was to become
familiar to the mass societies and great totalitarian states of our time (Agamben
1998, p. 52).
On its face, the claim of a relationship between totalitarian domination and
Kants moral philosophy of autonomy and respect for humans as ends in
themselves, is a strange one. As such, this paper seeks to cast light on Agambens
critique of Kantian nihilism. I argue that one of the basic theoretical concerns of
Agambens engagement with politics is the problem of normative application, that
is, how the abstractions of the law come to regulate life. While it appears radically
counter-intuitive on a substantive level, the charge of Kantian moral nihilism is
dependent upon a formal analysis of the concept of law, with Agamben asserting a
homology between the type of legal decision that is possible in the exception, and
the type of moral decision possible under the moral law. There is an echo of the
camp in Kants ethics, not because Kant is a closet fascist, or that the Kantian Moral
Law is responsible for the experience of the camps, but because it is the first time in
which the indeterminate ground of the normative form is brought to light. While this
critique is not without its problems from a Kantian perspective, for Agamben,
contemporary political nihilism and the moral law find their conjunction in an
irreducible uncertainty that now besets normative judgment.

Judgment and the Empty Ground of Law

At first glance, one might question the relevance of an analysis of law to the field of
ethics, particularly that of the reactionary and authoritarian German jurisprudent,
Carl Schmitt. Much of the energy of positivist jurisprudence has been directed
towards preventing the conceptual confusion of law and morality (Hart 1958;
Kelsen 2006) and, as Kant indicates in the Rechtslehre, law is externally binding
and gives rise to sanction, where morality only binds the conscience (Kant 1974).
However, the concept or form of law is broader than its positive legal determination,
and what unites Kantian morality and Schmitts constitutional theory is the general
philosophical problem of the relationship between normativity and life.
The positivist jurisprudence of Schmitts time defined law as a system of norms
(Kelsen 2006). However, a norm is a general and abstract proposition, and this gives
rise to a legaltheoretical and political problem, that of the application of the law.
Any fact situation that is brought before the law is unique, and the task of the
decision maker is to decide whether the (particular) fact situation attracts the
operation of the (general) rule. According to Schmitt, legal positivism elides this
relation through its normative definition of law, excluding considerations of social
and political context as beyond the province of jurisprudence (Schmitt 1985).
Against this positivist normativism, Schmitt argues that all law is situational
law (Schmitt 1985, p. 13). For Schmitt, jurisprudence must encompass both the
abstraction of juridical norms, or what he calls the legal idea, and the concrete,
the immediate or real lifethat is, the socio-political medium that legal norms
seek to regulate. Due to the gap between law and life, a norm always requires the

123
In Force Without Significance 247

supplement of a decision maker with the authority to decide upon its application.
For Schmitt then, the authority to decide on the norm is crucial for the life of the
law, and as such, the decision is as much a part of the law as the norm. Schmitt
describes this conjunction of norm and decision as the substantial form of law, a
definition that encompasses both the general normativity of positivist legal
ontology, and the decision and authority giving these norms political valence.
Schmitts theory of sovereignty then approaches the limit of the legal order
through this problem of legal application, generated by the gap between norm and
decision. While a judge decides on the application of individual laws, the
sovereign decision gives the law as a whole the force it needs in order to apply to
and regulate life.
Kants ethical theory can also be understood as a response to the problem of the
normative regulation of concrete life. For Kant, all rational behaviour follows rules
or maxims, and the rational subject is suspended between the generality of rules and
the particularity of the situations to which they respond. The basic problem of
Kants moral theory is how the subject can determine which maxims are ethical and
hence should guide their action in the particular situation. In the Metaphysics of
Morals, Kant sketches out a system of moral rules that he believes are ethical, such
as the duty not to lie, or the duty of obedience to the state (Kant 1996). However
there are two prior questions that arise, and which Kant confronts in the Critique of
Practical Reason and the Groundwork to the Metaphysics of Morals.1 The first is
why these particular rules of behaviour should be considered moral: what reason can
be adduced for determining some rules as binding moral maxims, and others as
immoral or irrelevant? Second, even though morality is not enforceable by the state,
for Kant it is still defined by its having force, for moral maxims should be binding
on the subject as a rational being. In defining certain rules as moral, Kant must as
well find a principle which gives them force.
Schmitts constitutional theory and Kantian morality both confront the problem
of normatively regulating human behaviour. For both thinkers, the gap between the
general and the particular gives rise to the need for judgment as to the application of
abstract laws to particular situations. The fundamental problem they address,
however, is the ground or condition of possibility of those rules, something which
will define certain rules as laws/moral maxims, and render them enforceable as
such. How then does each philosopher define the ground of normativity?
In Schmitts Political Theology, the condition of possibility of juridical rule is the
complete suspension of the norms of the legal system by the sovereign: sovereign is
he who decides on the exception (Schmitt 1985, p. 5). According to Schmitt, a
juridical code is designed to regulate normal, politically stable conditions through a
system of general legal norms. When political order breaks down, and when there is
civil war or serious political conflict, then it may become impossible for the state to

1
While Agambens critique of Kant is mostly directed towards the Critique of Practical Reason, the
simple form of law that is the object of his critique is also found in the Groundwork to the Metaphysics
of Morals, in particular, the first formulation of the Categorical Imperative, which states that one should
act only in accordance with that maxim through which you can at the same time will that it become a
universal law (Kant 1997, p. 15). It is upon this text that I draw, as the place in which this form of law
first appears in Kants work, and which has attracted the most critical controversy.

123
248 D. McLoughlin

apply the constitutional legal order, for an effective normal situation is not a mere
superficial presupposition that a jurist can ignore; that situation belongs precisely to
its immanent validity. There is no norm that is applicable to chaos (Schmitt 1985,
p. 13).
According to Schmitt then, when an emergency destabilises the political order
and norms are no longer effective in regulating life, a political actor is needed who
can suspend the norms of law and restore social and political stability. Without an
authority that can step outside the law to guarantee this minimum of order it
requires, the polity is vulnerable to dissipation and overthrow. The decision to
suspend the constitution in the emergency situation thus allows for its application
under normal conditions, insofar as the sovereign decision produces and guarantees
the situation in its totality (Schmitt 1985, p. 13).
Where Schmitts response to the problem of normative application is the
sovereign exception, Kants response takes the form of the Categorical Imperative,
also known as the Universal Moral Law. As is well known, this states in its first and
most famous formulation, that one should act only in accordance with that maxim
through which you can at the same time will that it become a universal law (Kant
1997, p. 31). There seems, then, to be an immediate problem in drawing a parallel
between these two ways of articulating the condition of juridical possibility.
Schmitts sovereignty is an exception to the rule, an arbitrary decision without
normative form. By contrast, the condition of possibility of Kantian ethics is
normative, a law that applies universally to all rational subjects. The appropriate
parallel for Kants moral theory in the domain of jurisprudence would appear not to
be Schmitts decisionism, but the work of his theoretical antagonist, Hans Kelsen.
For Kelsen, whose jurisprudential method is explicitly neo-Kantian, the ground of
legal validity is not an act of will, but a transcendental-logical presupposition, or
Grundnorm, from which the positive norms of the legal order derive their legal
validity (Kelsen 2006). In order to make sense of Agambens comparison then, we
need to examine both Agambens analysis of the exception, and Kants argument
for the Moral Law in some greater detail.
For Agamben, Schmitts account of the exception is a singular insight into the
originary structure of the law, the limit concept of the doctrine of law and State, in
which sovereignty borders on the sphere of life and becomes indistinguishable
from it (Agamben 1998, p. 11). The theory of the rule of law grounds the
legitimacy of the state on its conformity to norms, as opposed to the discretionary
power of arbitrary government. The predictability and certainty of the application of
power by the limited liberal state then guarantees a certain minimum of freedom and
equality for the individual (Neumann 1957; Weber 1954). However, the theory of
the exception problematises this liberal opposition, illustrating that the rule of law
requires the supplement of an irrational and discretionary state violence which,
while outside legal normativity, is nonetheless legal.
Chapter 1 of Homo Sacer begins with an analysis of this paradox, which
develops on Schmitts statement that sovereignty should be associated with a
borderline case and not with the routine (Schmitt 1985, p. 5). Agamben treats
sovereignty as a topological problem, explicating the formal structure of the
sovereign limit of the law, in which the border of the juridical order is manifest

123
In Force Without Significance 249

through its suspension, and the production of an anomic void. This a-legal space of
the exception is not, however, indifferent to or entirely excluded from law. As
Schmitt argues, the exception reveals a specifically juristic elementthe decision
in its absolute purity (Schmitt 1985, p. 13). The exception is a moment of arbitrary
and a-normative action, which is nonetheless a part of the law, as the moment that
makes its application possible. The exception is thus what Agamben describes as the
force of law without law (Agamben 2005b, p. 39).
In the exception then, law is in force without significance. The exception is a
juridical condition, in which the subject is held accountable to the law. Although a
legal decision-maker normally judges in light of a norm, in the exception they are
free to decide in response to the particular situation. In the absence of legal norms
then, the exercise of legal power lacks any limit, and becomes radically uncertain
and unpredictable (Agamben 1998). Agamben thus describes this condition as a
zone of indistinction between law and life, as in the absence of general norms,
legal power becomes immanent to life itself, exercised purely in response to the
concrete situation. Finally, the structural relationship between legal order and
anomie involved in the exception, is an inclusive exclusion, or relation of non-
relation. That is, the anomie of the exception is included in law through its
exclusion from it.
There are then four aspects of the ground of law that characterise Agambens
reading of the exception as in force without significance: (1) the exception is an
anomic void, produced by the suspension of legal norms; (2) the exception is not an
absence of law but, rather, the pure form of law, and hence a zone of indistinction
between law and life; (3) as such, the subject of the exception is held accountable to
a law that cannot be formulated or known; (4) this anomic space exists in a relation
of inclusive exclusion to the normal legal order. If Agambens charge against Kant
is to hold good, then we should be able to locate these features of the exception in
the Moral Law.
For Kant, the rational subject should be obligated to act in accordance with moral
rules. However, for binding duties to exist, as distinct from a set of rules that one
can freely follow or discard as one pleases, there must be a maxim that commands
categorically, and from which these rules can be derived. The reason for this is that
if the grounding principle of morality affords exception, there could be no absolute
duty to adopt any moral rule that derives from it. The source of the binding quality
of moral maxims must therefore be a categorical moral imperative.
Kant develops his moral argument from the concept of law itself, for law brings
with it the concept of the unconditional and objective and hence universally valid
necessity (Kant 1997, p. 27). This is a response to a philosophical tradition that
grounds morality in human happiness. For Kant, however, happiness can only ever
provide a hypothetical imperative, in that its binding quality depends on an
empirically determined end that is external to the maxim itself (Kant 1997).
Happiness cannot then ground morality, because a categorical imperative cannot
depend upon an end for its necessity and thus cannot contain any object of the will:
as Wood writes The nub of the argument as Kant presents it in the groundwork is
that no law whose bindingness rests on an external interest can be truly universal,
that is, valid categorically for every rational will as such (Wood 1999, p. 11).

123
250 D. McLoughlin

As the only imperative that can bind absolutely is one that does not require an
empirical supplement, a categorical imperative must therefore lie in pure reason:
Everyone must grant that a law, if it is to hold morally, that is, as a ground of
obligation, must carry with it absolute necessity that, therefore, the ground of
obligation here must not be sought in the nature of the human being or in the
circumstances in which he is placed, but a priori simply in a concept of pure reason
(Kant 1997, p. 2). For Kant, then, emptiness and formality are the precondition of
the universal applicability of the Law. It is for this reason that the Categorical
Imperative takes the pure form of universality, for Kant deduces its first formulation
by emptying the concept of law of all determinate content:
When I think of a categorical imperative I know at once what it contains.
For, since the imperative contains, beyond the law, only the necessity that
the maxim be in conformity with this law, while the law contains no
condition to which it would be limited, nothing is left with which the maxim
of action is to conform but the universality of a law as such; and this
conformity alone is what the imperative properly represents as necessary
(Kant 1997, p. 31).
The Categorical Imperative as the condition of possibility of binding moral
rules then conforms to the four criteria that characterise the exception. The Moral
Law is produced in the same way as the exception, through the negation of
determinate moral maxims. As the negation of moral determinacy, the Universal
Law is not a moral maxim in the same sense as those it grounds, and is excluded
from the set of moral maxims. At the same time, however, it is included within
the set of moral rules it demarcates, as their condition of possibility. The
Universal Moral Law is thus characterised by the topology of inclusive exclusion
in relation to moral maxims. What is created by the suspension of moral
particularity is not something other to law, but its pure form. Finally, while the
ground of Kantian morality is framed as a universal law, rather than an exception,
it is the suspension of determinate content that produces an absolute and
illimitable legal force. The moral law is without significance, insofar as it does
not determine any particular moral action; the moral subject is thus standing
before a law that is absolutely indeterminate, and yet this law remains absolutely
in force.

In Force Without Significance

The notion that the Categorical Imperative is empty of content, which guides
Agambens interpretation of Kant, bears a substantial resemblance to Hegels
accusation that Kantian morality amounts to an empty formalism. For Hegel, the
formality of the Categorical Imperative renders it too indeterminate to ground
adequately any moral rules: as Ameriks puts it, for Hegel the content of Kantian
morality absurdly rests on a test which is too empty to prescribe any specific form of
action without also unacceptably permitting practically any other form of action
(Ameriks 2000, p. 310). However, this charge of empty formalism is a controversial

123
In Force Without Significance 251

one.2 Crucially, Kant argues that a range of maxims flow of necessity from the
universality and emptiness of the moral law. For example, as only maxims that are
universalisable without contradiction conform to the Categorical Imperative, Kant
argues that giving a false promise to gain advantage violates the Moral Law, since it
is impossible to universalise the maxim without undermining the institution of
promise (Kant 1997, p. 43). This problematises the account of the Categorical
Imperative as unable to guide the actions of the moral subject, and Kantians reject
the Hegelian charges that the Categorical Imperative cannot ground moral maxims
due to its empty formalism (Ameriks 2000; Pogge 1998; Wood 1999). If we are to
make sense of Agambens account of Kant, it is necessary to be clearer as to what
exactly he means when he describes the juridical condition of modernity as in force
without significance.
For Agamben, Schmitts work on sovereignty illustrates that law and polity have
always been founded in the negativity of its suspension. Nonetheless, the exception
in Schmitts schema remains a marginal phenomenon. While the ground of the legal
system is an exception, this a-legal act founds a system of determinate juridical rules
which regulate the polity. However, Agamben radicalises Schmitts work by
arguing that the negativity of the exception has become the rule.3 For Agamben, it is
this normalisation of negativity that represents the condition of juridico-political
nihilism, and which Kants moral law is said to prophesy.
Homo Sacer makes some very broad claims for the nature and extent of juridico-
political nihilism, writing for example, that the juridical condition of being in force
without significance means that the most innocent gestures or the smallest
forgetfulness can have the most extreme consequences (Agamben 1998, p. 52), and
that this condition has been radicalised to the extent that everywhere on earth men
live today in the ban of a law and a tradition that are maintained solely as the zero
point of their own content, and that include men within them in the form of a pure
relation of abandonment (Agamben 1998, p. 51). Homo Sacer also infamously
argues that the camp is the nomos of the modern, the concentration camp being the
space in which the exception is absolutised and given a permanent spatial
arrangement (Agamben 1998).
Given the dramatic flourish of such claims, they could be taken to suggest that the
political space of the modern West is reducible to a condition of anomie. If this were
so, it would be a problematic claim, given the continued existence of constitutional
orders. In order, then, to understand better the contemporary role of the law in force
without significance, I turn briefly turn to Agambens critique of Derrida, in light of
the analogy he draws between juridical nihilism and the relation of deconstruction
2
This essay is not the place to assess the validity of the Hegelian critique, nor the response of Kantians to
such claims. What I wish to examine is how this debate might problematise Agambens claim with regard
to this crucial theoretical debate around the moral law, given the seeming similarity between his position
and the Hegelian critique of Kantian formalism.
3
In his description of the law in force without significance, Agamben draws heavily on the work of
Walter Benjamin, particularly the Eighth Thesis on the Philosophy of History (Benjamin 1973, p. 259).
However, Scheuermann argues that Benjamins work was part of a general current of theory in the inter-
war years on the deformalisation of the law, including the work of Schmitt, and fellow travellers of
Benjamins in the Frankfurt School, Franz L. Neumann and Otto Kirchheimeer, a current of thought
which owed much to the work of Max Weber (Scheuermann 1994, p. 120).

123
252 D. McLoughlin

to metaphysics, as for Agamben, the prestige of deconstruction in our time lies

precisely in its having conceived of the entire text of tradition as being in force
without significance (Agamben 1998, p. 54).
Since his earliest works, Agamben has maintained a critical distance to
deconstruction, at once praising the sophistication of Derridas thought, and arguing
that deconstruction is a form of nihilism that brings to light the originary negativity
of metaphysics, and which philosophy must surpass (Agamben 1991, 1998, 1999,
2005a). According to Agamben, deconstruction throws into question the law or
meaning of the textual tradition by undermining the primacy of presence and
signification for the philosophical tradition (Agamben 2005a, p. 103). At the Greek
origin of this tradition, the ground of human language was understood to be a kind
of natural writing of truth upon the soul, and the ideal for philosophy, as the search
after truth, is to contemplate thought directly, in a direct and unmediated
relationship between thought and the truth of being (Culler 1982). However, in
order to communicate this truth, philosophy must necessarily resort to language, that
is, to the re-presentation of truth, the mediation of an originary presence. Derrida
undermines this metaphysics of presence, arguing that we are always already
within language as signification, and there is therefore no meaning prior to the
structure of the sign. The sign itself is always split between signifier and signified,
and meaning is therefore not dependent upon the ideal content of thought that is
communicated through language, but rather through the play of signifiers. Meaning
is never fully present but, rather, produced through the systematic differences
between signifiers, the differing-deferral of meaning, or differance. The ground of
language is not, then, an originary presence, but rather a non-origin or originary
difference, which Derrida also designates through the non-concepts of the originary
supplement or the trace. The ideal of truth and presence at the origin of being and
language is simply an after effect of this originary difference: through this sequence
of supplements a necessity is announced, that of an infinite chain, ineluctably
multiplying the supplementary mediations that produce the sense of the very thing
they defer: the mirage of the thing itself, of immediate presence, of originary
perception. Immediacy is derived (Derrida 1998, p. 157).
In Agambens reading of Derrida, the trace names the impossibility of a sign to
be extinguished in the fullness of a present and absolute presence. In this sense, the
trace must be conceived before being, the thing itself, always already as sign and
repraesentamen, the signified always already in the position of signifier (Agamben
2005a, p. 103). The role of the trace in signification is analogous to that of the
exception for law. As negativity, it is outside the field of presence and
signification. However, as the possibility of signification, it is present in language
in the form of its erasure.4 The effect of deconstruction on metaphysical thought is
thus to bring to light the constitutive role of negativity for meaning and being.
However, in rendering the fullness of presence impossible, deconstruction also
throws into crisis the possibility of stable signification. As meaning is always
4
The question of whether Agambens critique of Derrida is correct is beyond the scope of this paper. I
merely schematise Agambens analysis of Derrida in order to shed light on Agambens account of
nihilism. On the relationship between Agamben and Derrida, see Johnson (2008), Librett (2007), Mills
(2008, pp. 2833) and Thurschwell (2003, 2005).

123
In Force Without Significance 253

subject to the play of differance, any text is open to a process of deconstruction. The
deconstructive account of language thus renders all meaning subject to the
indeterminacy of the interpretative act, one which can never be assured.
We are now in a position to provide an interpretation of the law in force without
significance in light of the analogy Agamben draws to deconstruction. The role of
the exception in contemporary politics is not to efface normativity in toto but,
rather, to undermine the possibility of founding a system of determinate juridical
norms. The bourgeois rule of law takes the certainty provided by the norm as its
principle of political ordering and the ground of its legitimacy. However, just as the
trace brings to light the negativity that founds language, thereby disrupting the
possibility of linguistic determinacy, the normalisation of the exception undermines
the distinctions and decisions upon which the liberal political order is founded,
between constitutionalism and tyranny, norm and anomie. Under conditions of the
normalised exception, politics suffers from a radical undecidability produced by the
insertion of anomie within the political sphere.
For Agamben, the totalitarian states of the twentieth century, and the camp as
their decisive technology, are the exemplars of the nihilistic form of law. However,
the camp, as a space of total exception whose inhabitants have been stripped of all
rights, is not the general condition of the totalitarian state, but rather its limit point,
the most extreme manifestation of its anomic tendencies. The National Socialist
State never abolished the Weimar constitution but, rather, erected a system of party
governance alongside the regular state, in a radical proliferation of centres of power
(Arendt 1968). This confusion was compounded and facilitated by the suspension of
key constitutional provisions (Agamben 2005b). The totalitarian state form is
politically formless, not because it is completely anomic and lacks legal rules, but
rather, because it was a condition of radical legal uncertainty, in which no-one can
be clear on the location of power, or be sure of its demands, since any guidance
provided by the explicit legal system can be overridden by its anomic double. For
Agamben, the camp is the localisation and absolutisation of the principle that
structures and disorders the legal form of the total state.
The nihilism of the law in force without significance thus has a paradigmatic role
in Agambens critique of contemporary politics. The increasing resort by liberal
democratic states to techniques of exception, to camps, to states of emergency, and
biopolitical governance, disrupts the claims of the rule of law to determinacy,
thereby undermining the opposition between liberal democracy and absolutism and
the claim to political legitimacy that derives from this. When the constitutive
negativity of the law is brought to light within the political sphere, the structuring
principle of the political is no longer the order and determinacy of the norm but,
rather, political disorder and undecidability.

The Categorical Imperative and the Undecidable

In light of this analysis, we can now return to the problem of the Categorical
Imperative as being paradigmatic of juridical nihilism. As we observed, Kant and
some of his defenders argue that particular moral rules flow of necessity from the

123
254 D. McLoughlin

Categorical Imperative. If this were the case, then the Moral law would play a role
analogous to Schmitts exception. That is, while the Universal Law itself is
indeterminate, it would be of marginal relevance to the system of moral norms.
While it would provide the foundation for morality, it would be irrelevant to the
moral subject once it had done the work of generating those moral maxims, for these
rules would themselves determine the behaviour of the moral subject.
However, Kants moral law does not primarily secure moral maxims that the
ethical subject must obey. Rather, the Categorical Imperative is designed to be a
tool of practical applicability, a guide for the subject in their own moral decision-
making. While moral rules are said to flow from the imperative, it is the imperative
itself that guides moral judgment rather than the duties themselves. In every
concrete situation, ones motivation and maxim of behaviour must be judged and
tested against the Moral Law, and hence morality always requires a judgment which
is an interpretative act.
Kantian morality thus demands, not just conformity to a law, but a judgment as to
what the law demands. However, due to the formality of the Categorical Imperative,
what exactly is demanded in each case of judgment can never be known with
absolute certainty.5 It may be most likely that giving a false promise to gain
advantage violates the Moral Law, as Kant argues. Yet the Moral Law does not
specifically oblige one to obey this maxim but, rather, that one engage in the testing
of moral maxims and motivations. As such, it always remains possible that the Law
could be read otherwise. Therefore, as Slavoj Zizek argues, the emptiness of the
moral law bears witness to the persisting uncertainty about the content of our
actswe never know if the determinate content that accounts for the specificity of
our acts is the right one, that is, if we have actually acted in accordance with the
law (Zizek 1999, p. 365). The Categorical Imperative does not demand compliance
with particular moral maxims but, rather, that the subject takes responsibility for the
decision as to what is moral. While the emptiness and formality of the moral law
opens the space of moral autonomy, the price of this freedom is the burden of the
undecidable. The Kantian moral subject lives before a law that demands compliance
without exception, and yet whose demands can never be definitively known. As
Agamben puts it then, the limit and also the strength of the Kantian ethics lie
precisely in having left the form of law in force as an empty principle (Agamben
1998, p. 52).
Thus far, I have explicated the logic of Agambens argument in terms of the
relationship between the emptiness of the Categorical Imperative as Universal Law,
and particular maxims with empirically determined ends, which the moral subject
must test against it. I would like to conclude, however, by raising a potential problem
with Agambens attempt to assimilate the form of the Moral Law to the law of the
totalitarian state. This arises, not from the relationship between particular moral

5
A similar move is in operation in Agambens analysis of the shift from the Mosaic Law to the sole
Commandment of the New Testament: to love thy neighbor. The demand that one loves ones neighbour
captures the various edicts of the Mosaic Law within its scope. However, lacking any determinate
referent, it exceeds the Mosaic Law, and demands a process of interpretation and self-examination from
the believer as to what exactly will constitute loving ones neighbour in the particular circumstances
(Agamben 2005a).

123
In Force Without Significance 255

maxims and the emptiness of the moral law, but rather from the relationship between
the first formulation of the Categorical Imperative as Universal Law, and its second
and third formulations. For Kant, the moral law not only demands that ones maxims
of action are universalisable, but that one should treat himself and all others never
merely as means but always at the same time as ends in themselves (Kant 1997, p.
41) and that a rational being must always regard himself as lawgiving in a kingdom
of ends possible through freedom of the will (Kant 1997, p. 41).
Debates around Kants moral philosophy have tended to focus on the first
formulation of the imperative and the problem of the empty form of law. However,
for Wood, the first formulation of the form of universal law is the most inadequate
formulation of the principle (Wood 1999, p. 11), and the Hegelian inspired battles
over universality have directed attention away from the more fully fleshed out
accounts of the Categorical Imperative found in its second and third formulations.
Pogge emphasises that the three determinations of the Categorical Imperative are
different formulations of the same law. This means that the Categorical Imperative
is not purely empty and formal, but that it has some substantive content. While the
form is expressed in universality it also contains the specification of this
requirement to the domain of (rational) beings capable of moral agency, and the
demand for completeness within this domain (Pogge 1998, p. 205).
In the latter formulations of the Imperative, Kant then provides guidance for
decision making beyond the empty form of universality. This problematises the
notion that the Categorical Imperative is so indeterminate that the most innocent
actions could have the most extreme consequences. From the Kantian perspective,
while the Categorical Imperative does not determine any particular empirical act in
itself, it does provide some guidance as to the likely range of actions that might be
considered morally obligatory. The emptiness and formality of the law then give
rise not only to the need for a judgment undetermined by empirical ends, but the
demand that the judgment be guided by autonomy and respect for humans as ends in
themselves, which are not determinations of particular moral actions but, rather,
reformulations of the principle of the empty law. To deny these a role in an
understanding of the Moral Law is to work against the logic of Kants argument for,
as Pogge argues, respect for humans, as ends in themselves, flows necessarily from
the idea of universality. If one subscribes to the Kantian analysis of the empty
ground of law, there is thus a radical difference between the likely demands of the
law of political nihilism and the Categorical Imperative. The emptiness of the
exception opens a space within the juridical order to exploit humans as a means to
attain the ends of state, and the subject of the exception stands before the arbitrary
power of a pathological and authoritarian law. By contrast, the emptiness of the
Moral Law gives rise to an obligation to respect human dignity. It is the gap
between these two accounts of the likely demands of the empty law, which renders
Agambens analogy so counter-intuitive.
Nonetheless, the kernel of Agambens analysis of this form of law holds good,
for this does nothing to erase the space of judgment and undecidability. For
Agamben, the trace is the extreme point of signification produced through its
suspension, and deconstruction is the moment in which this negativity comes to
light in the domain of metaphysics, illustrating the constitutive instability of textual

123
256 D. McLoughlin

meaning. Similarly, the juridical condition of the normalised exception brings to

light the originary negativity of the law, throwing into crisis the system of legal
meaning by undermining the determinacy of legal norms. In analogous fashion, the
Categorical Imperative is in force without significance insofar as it brings to light
the negative ground of law in the field of ethics. The modern moral subject, and the
deconstructive subject of language, find themselves in the same predicament as the
subject of the normalised exceptionbeholden to a law, and unable to determine
definitively whether their actions are in conformity with its demands. This does not
mean that the subject of political nihilism and the moral subject find themselves in a
void of moral, linguistic or political meaning. Rather, it designates a situation in
which undecidability becomes paradigmatic for a normative system, and life before
the law becomes subject to an irreducible uncertainty.

Acknowledgments I am grateful to Catherine Mills, Simon Lumsden and Jessica Whyte for their
thoughtful comments on drafts of this paper.

References

Agamben, Giorgio. 1991. Language and death: The place of negativity (trans: Pinkus, Karen E. and
Hardt, Michael). Minneapolis: University of Minnesota Press.
Agamben, Giorgio. 1998. Homo Sacer: Sovereign power and bare life (trans: Heller-Roazen, Daniel).
Stanford, CA: Stanford University Press.
Agamben, Giorgio. 1999. Potentialities: Collected essays in philosophy (trans: Heller-Roazen, Daniel).
Stanford, CA: Stanford University Press.
Agamben, Giorgio. 2005a. The time that remains: A commentary on the letter to the Romans (trans:
Dailey, Patricia). Stanford, CA: Stanford University Press.
Agamben, Giorgio. 2005b. State of exception (trans: Attell, Kevin). Chicago: University of Chicago
Press.
Ameriks, Karl. 2000. Kant and the fate of autonomy: Problems in the appropriation of the critical
philosophy. New York: Cambridge University Press.
Arendt, Hannah. 1968. The origins of totalitarianism. New York: Harvest Book-Harcourt.
Benjamin, Walter. 1973. Theses on the philosophy of history. In Illuminations, ed. Hannah Arendt (trans:
John, Harry). London: Fontana.
Culler, John. 1982. On deconstruction: Theory and criticism after structuralism. Ithaca, NY: Cornell
University Press.
Derrida, Jacques. 1998. Of grammatology (trans: Spivak, Gayatri Chakravorty). Baltimore: Johns
Hopkins University Press.
Hart, Hubert. 1958. Positivism and the separation of law and morals. Harvard Law Review 71 (4): 593.
Johnson, David E. 2008. As if the time were now: Deconstructing Agamben. South Atlantic Quarterly
106 (2): 24.
Kant, Immanuel. 1974. The philosophy of law: An exposition of the fundamental principles of
jurisprudence as the science of right. Clifton, NJ: A.M. Kelley.
Kant, Immanuel. 1996. The metaphysics of morals. Cambridge: Cambridge University Press.
Kant, Immanuel. 1997. Groundwork of the metaphysics of morals. Cambridge: Cambridge University
Press.
Kelsen, Hans. 2006. General theory of law and state. London: Transaction Publishers.
Librett, Jeffrey. 2007. From the sacrifice of the letter to the voice of testimony: Giorgio Agambens
fulfilment of metaphysics. Diacritics 37 (23): 11.
Mills, Catherine. 2008. Playing with law: Agamben and Derrida on postjuridical justice. South Atlantic
Quarterly 107 (1): 15.
Neumann, Franz. 1957. The change in the function of law in modern society. In The democratic and the
authoritarian state: Essays in political and legal theory. Glencoe, IL: Free Press.

123
In Force Without Significance 257

Pogge, Thomas. 1998. The categorical imperative. In Kants groundwork of the metaphysics of morals:
Critical essays, ed. Paul Guyer. Lanham, MD: Rowman & Littlefield.
Scheuermann, William. 1994. Between the norm and the exception: The Frankfurt school and the rule of
law. Cambridge, MA: MIT Press.
Schmitt, Carl. 1985. Political theology: Four chapters on the concept of sovereignty. Chicago: University
of Chicago Press.
Thurschwell, Adam. 2003. Specters of Nietzsche: Potential futures for the concept of the political in
Agamben and Derrida. Cardozo Law Review 24: 1193.
Thurschwell, Adam. 2005. Cutting the branches for Akiba: Agambens critique of Derrida. In Politics,
metaphysics and death: Essays on Giorgio Agambens Homo Sacer, ed. Andrew Norris. Durham:
Duke University Press.
Weber, Max. 1954. Max Weber on law in economy and society. Cambridge, MA: Harvard University
Press.
Wood, Allan. 1999. Autonomy as the ground of morality. ONeil Memorial Lecture, University of New
Mexico.
Zizek, Slavoj. 1999. The ticklish subject: The absent centre of political ontology. London, New York:
Verso.

123