1

ABBREVIATIONS

Lyotard References

D The Differend: Phrases in Dispute, trans. Georges Van Den Abbeele, Theory and History of
Literature, Vol. 46 (Minneapolis: University of Minnesota Press) 1988.

Hj Heidegger and “the jews”, trans. Andreas Michel and Mark Roberts ( Minneapolis,

University of Minnesota) 1990 (Hj).

I The Inhuman: Reflections on Time, trans. Geoffrey Bennington and Rachel Bowlby

(Stanford: Stanford Uni. Press) 1991 .

JG Just Gaming, trans. Wlad Godzich, Theory and History of literature, Vol 20. (Minneapolis:
University of Minnesota Press) 1985.

LAS Lessons on the Analytic of the Sublime, trans. Elizabeth Rottenberg (Stanford: Stanford

Uni. Press) 1994.

LE Libidinal Economy, trans. Iain Hamilton Grant (Bloomington & Indianapolis: Indiana Uni.

Press) 1993.

LR. The Lyotard Reader, ed. Andrew Benjamin (Oxford: Basil Blackwell) 1989.
LFE Peregrinations: Law, Form, Event (New York, Columbia University Press) 1988.

PW Political Writings, trans. Bill Readings & Kevin Paul Geiman (London: UCL Press) 1993.

PC The Postmodern Condition: A Report on Knowledge trans. Geoff Bennington and Brian
Massumi, Theory and History of Literature, Vol. 10 (Minneapolis: University of

Minnesota) 1984.

PE The Postmodern Explained, trans. Don Barry, Bernadette Maher, Julian Pefanis, Virgina
Spate, & Morgan Thomas (Minneapolis &London: University of Minnesota Press) 1992.

TP Toward the Postmodern ed. Robert Harvey and Mark S. Roberts (New Jersey: Humanities

Press)

Kant References
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KPW An Answer to the Question: “What is Enlightenment?”, trans. H.B. Nisbet, in

Kant’s
Political Writings, ed. Hans Reiss, (Cambridge, C.U.P.) 1990.

AP Anthropology from a Pragmatic Point of View, trans. Mary Gregor, (Hague,

Martinus Nijoff) 1974.

CF The Conflict of the Faculties, trans. Mary Gregor, (New York, Abrais Books)

1979).(CF)

CJ Critique of Judgment, trans. James Meridith, (Oxford, Clarendon Press) 1978. (CJ)
CPrR Critique of Practical Reason, trans, L.W. Beck (Indianapolis, Bobbs- Merrill) 1977.

CPuR Critique of Pure Reason, trans. Norman Kemp Smith (London, Macmillan) 1933

Gr Groundwork of the Metaphysics of Morals, trans. H.J. Paton (New York: Harper &
Row Publishers) 1964

MM The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University

Press) 1991.
Rel Religion within the Limits of Reason Alone, trans. Theodore M. Greene and Hoyt

H.

Hudson (New York: Harper & Row) 1960.

OTHER REFERENCES
Henry, E. Allison
IF Idealism and Freedom: Essays on Kant’s Theoretical and Practical

Philosophy, (Cambridge, C.U.P.) 1996.

KTF Kant’s theory of freedom,(Cambridge, C.U.P.) 1990.

Onora O’Neill

CR Constructions of Reason: Explorations of Kant’s Practical Philosophy (Cambridge,

C.U.P.) 1989.

James Tully
 3

SM Strange Multiplicity: Constitutionalism in an Age of Diversity, (Cambridge:

Cambridge University Press) 1995

INTRODUCTORY REMARKS

OBLIGATION AND THE DELIBERATIVE WILL:

A STUDY OF LYOTARD’S READING OF KANT’S PRACTICAL PHILOSOPHY

Toward the end of the The Postmodern Condition, Lyotard states that ‘ [C]consensus has become

an outmoded and suspect value. But justice as a value is neither outmoded nor suspect’. In
Lyotard’s view ‘we must arrive at an idea and practice of justice that is not linked to that of

consensus’ (PC 66). For the most part, Lyotard’s ‘philosophy of phrases’ may be seen to be his

answer to this demand for justice. As he comments, ‘a recognition of the heteromorphous nature of
language games is the first step’ in the development of an idea and practice of justice not linked to

consensus.

One of the underlying questions which is implied by the project undertaken in this thesis is

to develop what Lyotard might have meant by a practice of justice that is not linked to that of

consensus. What I take to be the fundamental starting point for beginning this project is Lyotard’s
Idea of language. Similar to that put forward by Wittgenstein’s Philosophical Investigations,

Lyotard suggests an Idea1 of language whose symbol is not some rationally or logically structured

1 Note that I capitalise “Idea” wherever I consider that an idea has a modelling or regulative function.
 4

system, but rather an Archipelago made up of a heterogeneity of phrase regimen and genres of

discourse.2 Under this Idea, a political judgment is authorised which settles conflicts and
differends,3 not by imposing or prescribing laws, as is the case with determinant judgments, but

rather, where a differend is detected, by establishing the differential between the parties. Such a

judgment carries out a synthesis of heterogeneities without collapsing difference and without
making difference impassable.

In this thesis, as a way of approaching the issue of justice, I have chosen to focus quite
narrowly on Lyotard’s reading of Kant’s practical philosophy and, in particular, Lyotard’s reading

of the categorical imperative and the typified form of the moral law. By providing this narrow

focus, I hope to isolate the question of politics in relation to the legitimation of prescriptions and
the determination of action - for the purpose of satisfying the demand of a prescription. Given

Lyotard’s particular reading of the categorical imperative, based on his pragmatic analysis of

prescriptions, it is possible to consider the categorical imperative as embracing, in condensed form,

the problem of modern and postmodern politics as it is confronted by various states of pluralism.

By focusing narrowly on Lyotard’s reading of the categorical imperative and the typified moral

law, I have limited the question of politics, as Lyotard does during a particular phase of his
writings,4 to a pragmatic and logical analysis of the prescriptive and normative phrases. Along

with this, and perhaps central to the focus of this thesis, I have been concerned with providing an

examination of the relation between prescriptive and normative phrases. In terms of Lyotard’s
philosophy of phrases, it is no exaggeration to say, that all the central political issues are bound up
2 See Glossary.
3 See Glossary.
4 Geoffrey Bennington has pointed out that Lyotard’s work is ‘more remarkable for its shifts and breaks than for any
continuity’, see: Geoffrey Bennington, Lyotard: Writing the event, (New York, Columbia Uni. Press, 1988) p.1. As
Bennington has stated, up until 1984 “Lyotard sees himself as having written three ‘real’ books (Discours, figure(1971),
Economie libidinale (1974), and Le Differend (1984) and preparing to write a fourth on the philosophy of the
contemporary arts.’ (ibid p.2) In Discours, figure, Lyotard argues for ‘the predominance of a certain psychoanalysis over
phenomenology.’ Further, it involves a critique of structuralism in all its forms (including Lacanian psychoanalysis) in the
name of a ‘libidinal economy’. In Economie libidinale, Lyotard extends this critique to Marxism, marking a break with a
long militant past. Le Differend marks a mature development of a break which occurs in the late 1970’s with Au Juste
and La Condition Postmodern. This break signals a more overt return to the issue of justice, and an increasing reliance
on the late Wittgenstein and Kant. The “fourth book”, to which Bennington refers, has not been written. Instead, Lyotard
has written a number of collections of lessons and essays: L’Inhumain (1988); Lecons sur l’analytique du sublime
(1991); and, Moralitiés postmodernes (1993). In all of these works Lyotard has deepened his reliance on Kant. To some
extent, as I shall argue in Chapter Three, Lyotard’s ongoing study of Kant’s Critique of Judgment may be understood to
provide a basis for a political judgment particularly suited to the pluralistic conditions of postmodern societies.
 5

in the way in which the relation between these two phrases are articulated. The importance of this

approach for the current debate concerning the relation between models of democracy and
difference can readily be grasped once it is understood that Lyotard deals with the problematics of

heterogeneity and difference within the context of a pragmatic analysis of prescriptive phrases, and

he deals with the problematics of modern forms of politics in the context of a pragmatic analysis of
the normative phrase.

Where this analysis of the relation between the prescriptive and normative phrases is
framed in the context of Kant’s formulation of the categorical imperative and the typified moral

law, it provides the opportunity not only to think a model of the deliberative will in terms of a

philosophy of phrases, but also to provide a fundamentally different model of deliberation to that
which is offered by Kant. Significantly, however, the development of this model is only made

possible by working from within the framework of Kant’s practical philosophy. On a close

analysis of Lyotard’s political thought it might be argued that its most significant advancements are
made simply on the basis of a reinterpretation of the Kantian model of the deliberative will - and

even more narrowly, on a reinterpretation of the categorical imperative. The force of this

reinterpretation of Kant’s concepts, however, relies upon a grasp of the significance of these
concepts as they operate to support more traditional notions of moral and rational agency.

What I have found interesting in being able to compare Lyotard’s relation to the Kantian
text with that of other Kantian scholars, is that Lyotard does not declare when he is departing from

a fairly accepted reading of Kant; nor does he stop to debate his reading in relation to these other,

more standard, approaches. This policy is adopted with respect to some of the most fundamental
tenets in the Kantian tradition. To some extent, Lyotard’s own philosophy of phrases authorises his

relation to the Kantian text. The political question, as posed by Lyotard, concerns the issue of how

we are to link onto any given phrase. On his approach, the occurrence of a phrase5 may be thought
to be radically unstable and equivocal. In short, Lyotard thinks the problematics of the phrase6 in

terms of the question of Being/Nonbeing, concluding that the occurrence of a phrase, and hence
5 See “presentation” in the Glossary.
6 See “phrase” in the Glossary.
 6

language at its most fundamental level, is there before being rational. In fact, as Lyotard rightly

points out, language (thought as the totality of phrases) does not exist, it is merely an Idea (PE 42).
Coming back to the issue of the relation of Lyotard to the Kantian text, one can say, on Lyotard’s

authority, that the concepts which make up the framework of Kant’s practical philosophy are open

to a multiplicity of interpretation; no single reading is able to provide the canon for the rest.
Having said that, however, I am still left with the thought that one, at the least, in the midst of the

heteroglossia, ought to pay their respects to other readings - and not just readings which might

confirm the hermeneutical club to which one belongs.

It is for this reason, and might I also add on Lyotard’s authority, that I have wanted to bring

Lyotard into conversation with other readers of the same text. On the arguments presented here
concerning the identification of politics with the multiplicity of genres, it might be said that it is

otherwise impossible to grasp how someone is interpreting a text without being able to make

analogical passages between various types of readings. Of course the aim of this type of reflective
activity, should not be to construct a consensus, but merely to establish differentials between

hermeneutical communities. In the context of writing this thesis I have also had to feel that pain

which is associated with the loss of a definitive perspective and even the loss of a local perspective
(that of a deconstructionism) which I have tended to universalise. As a type of confession, but also

so as to perform the self-ruination which is necessary so as to “embrace” heterogeneity, I have

found myself switching loyalties, returning like the prodigal son, but in the end sensing through the
pain and the pleasure of such a political judgment the destination of a thought which is in radical

conflict.

Under the guidance of this feeling of heterogeneity (heterogeneity felt as the sublime) there

is awakened the Idea that the text (language, thought), the Kantian text, does not have a single

destination. In the course of this thesis I bring Lyotard’s reading of Kant into contact with Henry
Allison’s. The purpose of this is not to show so much how Lyotard gets Kant wrong, but rather to

highlight the types of moves which Lyotard makes with the Kantian text. In one way I find

Allison’s reading more instructive than Lyotard, but in another way, the implications of which
 7

remain to be properly thought through, I find Lyotard far more interesting. To articulate what it is

that I find there that is so interesting is perhaps the task of this introduction. To say why I find it
interesting is perhaps linked to my sense of the indeterminacy of events. When I read Lyotard what

I find most interesting is that he has made a philosophy out of this indeterminacy and instability.

But not only that, he has made a philosophy out of this indeterminacy in the midst, or at the
foundations, of one of the most revered systems of rational thought. Whether he does it

intentionally, or whether this is simply the manner in which he has read the Kantian text, is difficult

to tell. In the end, however, it probably does not matter since the result is the same. By providing
another reading of the Kantian text, Lyotard engages in the political act of destabilising the political

formations and norms which have grown up around the text. By shifting the meaning of the text,

not only does he move the focus of moral and political debate (centred on the Kantian themes)
away from the traditional posturing, he also suggests a new line of thought.

For example, one of my central interests in this thesis is to attempt to understand how
Lyotard can not only link such rational concepts as obligation, respect, prescription, to a philosophy

of language which is marked by indeterminacy and heterogeneity, but to understand how he

legitimates such concepts in terms of (and identifies such concepts with) this indeterminacy and
heterogeneity. It is only in answering these types of questions that I am able to understand what

might be implied by the statement concerning the development of an idea and practice of justice

not linked to consensus. As suggested above, the way in which I have chosen to approach this task
is by focusing on Lyotard’s interpretation of the categorical imperative and Kant’s formulation of

the typified moral law. As Onora O’Neill has argued, concerning the framework of the Kantian

Critiques, the categorical imperative is not only the highest principle in Kant’s practical
philosophy, it is also, since Kant gives practical reason the privileged place over speculative

reason, the highest principle for both practical and speculative endeavours. As O’Neill points out,

without the practical constraint of the moral law the exercise of speculative reason lacks orientation
and is merely instrumental (CR x).
 8

Given this importance, it follows that where the categorical constraints which all

deliberative agent’s are said to be conscious of, are not linked to objective practical principles, but
to moments of heterogeneity and indeterminacy, that an entirely different model of deliberation

will arise. Where such constraints are resituated in terms of an Idea of indeterminacy and the

heterogeneity of language, as noted by O’Neill, this has implication not only for a practical reason
but also for speculative reason. Where the politics of the deliberative process is not identified with

any single genre of discourse, but with the multiplicity of genres, the resituating of the categorical

constraints in terms of an ontology of phrases and differends, has implications for the way in which
the entire flow chart of genres is to be thought. The claim here is that it is not practical reason

which provides the direction for thought in the midst of the heteroglossia, but that it is

heterogeneity itself (wherever it has its practical presentation in prescriptive phrases) which
orientates a will by immediately placing it under an obligation.

The issue here comes down to providing an interpretation of the Kantian concept of
obligation without disrupting its central significance for a model of a deliberative agent. That is,

while Lyotard resituates the concept of obligation in terms of a Levinasian ethical philosophy and

in terms of an ontology of instability and heterogeneity, he still wants to retain the character of the
concept of obligation as that which (practically) orientates a deliberative will. In doing this, it

should be noted that the traffic of concepts is not merely in one direction, namely it is not only the

concept of obligation which undergoes a change, but also the Idea of heterogeneity and difference.
By thinking the concept of obligation in terms of philosophy of phrases, Lyotard also thinks the

idea of heterogeneity in terms a Kantian transcendental idealism and psychology. For example, by

linking obligation to the Idea of heterogeneity and Instability, Lyotard, in effect, positions this Idea
in terms analogous to the Idea of Freedom in a Kantian model of agency; namely, as the idea which

is appealed to so as to legitimate a political judgment. A number of points follow from this

analogous connection: just as the Idea of freedom is not thought to be given as an object of
cognition, so too heterogeneity is not given as an object of cognition. Furthermore, just as Lyotard

interprets Kant to be arguing that obligation, respect, and the sublime are all negative modes by
 9

which the Idea of freedom is presented, so too Lyotard argues that obligation, respect and the

sublime are all modes by which heterogeneity and radical instability are presented.

For a large proportion of this thesis I aim to chart how Lyotard’s identification of obligation

with situations of difference may impact on a model of deliberative agency. As I have noted, I do
this by focusing on Kant’s categorical imperative and his formulation of the typified moral law.

Where this formulation is read in terms of Lyotard’s pragmatic analysis and philosophy of phrases,

it may be thought as articulating the differential between the forces of instability instituting
differences and obligations between parties, and the forces of order which aim to bring the

instability and differences under the rule of an objective practical principle. On this approach, the

deliberative will is thought to be exposed to the radicality and instability of a pluralistic world, and
at the same time by means of a deliberative process (which should be broadened so as to include all

genres of discourse - not merely the dialectical, forensic, and rhetorical genres) seeks to provide a

consensus. The question is, however, what type of consensus is authorised? Apart from the “fact”
of a universal sensibility (a feeling of the sublime held by all parties) concerning difference, what

type of objective consensus is authorised? And on the basis of what principle can this authorisation

be provided?

In answering this question, on the basis of the Kantian philosophical system, it seems that

that there are at least two ways which one can proceed. One can proceed by examining the
fundamental concepts operative within Kant’s practical philosophy or, one can proceed by

examining the reflective conditions under which critical thought operates. The first approach has

an eye to establishing a basis for a universal objective consensus, and the second operates as a
supplement to the first, providing a “unification” between heterogeneities where a universal

objective consensus is lacking. In this thesis I have focused primarily on the first approach, and the

ways in which Lyotard’s reading of the Kantian formulation of the categorical imperative alters
what it is possible to think for a practical philosophy. Basically, by looking at the way in which

Lyotard reinterprets Kant’s formulation of the categorical imperative and the typified form of the

moral law, I have attempted to mark out the new place and role which Kant’s deontic concepts
 10

have in the Lyotard’s model of the deliberative will. In this regard I have had to pay close attention

to Lyotard’s pragmatic analysis of prescriptive phrases, and I have linked, more explicitly than does
Lyotard, the problematics of prescription with the problematics of difference and heterogeneity.7

This move seems quite significant, since by identifying the pragmatic formation of the
prescriptive phrase with the practical formation of difference one is able to bring together Lyotard’s

thoughts concerning the differend with his thoughts concerning prescriptions. This identification

has a number of implications in terms of the framework of thought which Lyotard sets up around
the notion of the differend. First, it identifies prescriptions as the practical mode by which the

radical instability in language is presented. To put it in Lyotard’s terms, ‘the differend is the

unstable state and instant of language wherein something which must be able to be put into phrases
cannot yet be’ (D. §13). Where prescriptions are identified as the practical state whereby this

instability is made known, and where the problematics of the prescription is also linked to the

function and role of Kantian deontic concepts, it is possible to think through the meaning of this
instability in terms of a Kantian model of deliberation. Namely, because Lyotard both reconfigures

the sense of obligation in terms of its place in a philosophy of difference, and at the same time

retains its role in the Kantian model of moral and rational agency (i.e. as that concept which
provides both an objective and subjective constraint of the will), it is possible to think through

these moments of instability in terms of a Kantian model of the deliberative will. On this

argument, the instability and heterogeneity of language is made known as those categorical
constraints which are felt in the act of deliberation.

Furthermore, if one continues the analogy further and ascribes to obligation the place it has
in a Kantian transcendental psychology, it is possible to argue that the unstable instants of

language, that which Lyotard calls the differend, provide a practical orientation for the deliberative

will. In terms of Onora O’Neill’s thoughts concerning the importance of the categorical
imperative, one might also add, that the differend, made known through obligation and felt in the
7 Lyotard does not seem to link his pragmatic analysis of prescriptive phrases explicitly with thematics of difference and
heterogeneity. But on the basis of the argument that the meta-principle governing the pragmatic formation of
prescriptions is that of alterity, it follows that prescriptions may be understood as the practical formations of difference
and heterogeneity.
 11

act of deliberation, not only provides an orientation for the selection of actions and maxims, but

also for the exercise of theoretical thought. In short, all of the implications which the deontic
concept of obligation has for a Kantian moral psychology, may be said to follow concerning

Lyotard’s model of deliberation. The main difference being, however, that where Kant’s concept

of obligation is a rational concept par excellence, for Lyotard, it is the deontic concept which best
illuminates the pragmatics and the feeling of prescriptions.

By bringing Lyotard’s thoughts concerning the pragmatics of prescriptions into a more

direct connection with his thoughts concerning the differend one is also enabled to think the issues

of justice, raised in connection with the concept of the differend, in terms of the prescriptive

phrase. This move is authorised by Lyotard’s statements concerning a philosophy which has
justice as its unique concern. As he states, ‘If justice becomes the unique concern of philosophical

discourse, it is then in the position of having to comment not on descriptions (denotative

statements) but on prescriptions’ (LR. 282). Where prescriptions are thought in relation to
differends, they are also brought into contact with Lyotard’s notion of ‘wrongs’, ‘silences’ and

‘victims’ (D. § 1-18). On this argument, if prescriptions are identified as the practical mode by

which differends are known, so too can it be said that prescriptions are the practical mode by which
these wrongs, silences, and victims are known. In other words, what I am to identify, are the

moments of heterogeneity and conflict which have no other mode of presenting themselves except

immediately in the feeling of obligation. Given the place which the concept of obligation has in
Kant’s practical system, it is also assumed that these moments in which wrongs etc. have their

practical presentation, provide the only categorical orientation for the will of a deliberative agent.

If one considers Lyotard’s reading of his Marxist heritage, namely that he thinks that the

only deontic concept under which Marxism can be continued is the concept of a ‘wrong’, then it is

also possible to see how this approach to Marxism may be brought within the context of thinking
about a model of the deliberative will. In fact, given Lyotard’s reading of Marxism, it can be

argued that what is developed in this thesis, in the context of bringing the concept of obligation into

a thematics of the differend, is a Marxist model of deliberation. On this argument, the deliberative
 12

process cannot be thought to function in a dogmatic manner according to unchallengable models or

schemas of difference, rather the deliberative process itself is exposed (and it is a responsibility to
maintain this exposure) to an ontology of instability and heterogeneity in language - made present

in the feeling of obligation. On this approach, the deliberative will is not orientated by holding

dogmatically to schemas of difference, but rather by differends made practically present in the
feeling of obligation.

What is signified by the Marxist concept of a ‘wrong’, argues Lyotard, is a break with
Hegel’s Philosophy of Right . Indeed it is in Marx’s Critique of Hegel’s Philosophy of Right that

Lyotard finds the term ‘wrong’.

a class with radical chains, a class in civil society

that is not of civil society, a class that is the
dissolution of all classes, a sphere of society having a
universal character because of its universal suffering
and claiming no particular right because no particular
wrong but unqualified wrong (ein Unrecht schlechthin) has
been perpetrated upon it (LR.352).

What is important about this notion of a ‘wrong’, is that it marks the break with all thought which

proposes the arbitration, mediation and reconciliation of conflicts between disputing parties. Thus,

not only is Hegel’s Philosophy of Right in question here, but so too are the more contemporary
models of society that conceive society as a functional whole (Talcott Parsons) or as a self-

regulating system (Nichlos Luhmann).

As formulated by Marx in 1843 the notion of a ‘wrong’ is developed from a perspective

that is still Feuerbachain. It is still ‘humanist, Lutheran, and perhaps still dialectical’ (ibid). It has,

nevertheless, the critical function of authorising a judgment which is not, in the strict or the
general sense, legal. The oppression of the working class itself authorises a critical assessment of

the normative authority and sovereignty of the nation-state. The wrong which the working class

suffers at the hands of the bourgeoisie, provides another authority; as does the wrong which all
victims of wrongs suffer.
 13

The question is, of course, what is this authority that authorises the critique of the stable and

dominant forms power? And in what way can it oppose the sovereign government of the day? In
‘the Differend’ Lyotard links this other authority - that which is exterior to the sovereign authority -

to the vengeance of the victims, and more particularly, he links it with the pragmatics of a

prescriptive event (D.§ 42-44) The victims (of the wrong) cry, and their suffering is said to be
received as a request. Where this request is analysed in terms of Lyotard’s pragmatic analysis of

prescriptions, the addressee of the request is thought, not so much to understand the request, as to

feel it in the mode of obligation. The request itself, thought in terms of Lyotard’s interpretation of
Kant’s formulation of the categorical imperative and the typified moral law, may be identified with

the statement Act!; which also may be expanded to, Do Something!. The executive force of the

statement is not reliant upon identifying the principle of the maxim under which the victim
operates, nor consequently, upon a principle satisfying a universality test; the executive force of the

prescriptive statement is said to be derived from the situation of heterogeneity in which the

statement is made, and from the simple Obey! which accompanies all prescriptive statements.

On this argument, the authority which authorises the obligatory effect of the statement is

derived explicitly from the moment of heterogeneity: a moment in which all normative authority is
both suspended and overdetermined. Since the request of the victim, identified with a differend in

language, is only presented in the feeling of obligation, no community is there to witness or to

authorise the sense of obligation. This holds true for either a local community which authorises
norms in terms of the proper name of a collective (French); or, a republican politics which

authorises norms in terms of an entity which lacks a proper name (i.e. Man). On Lyotard’s critical

analysis of the various modes of legitimating prescriptions, there is an irreducible differential

between an ethical and political mode of legitimation. Prescriptions are judged to have ethical

validity, if they are presented in the modality of obligation; while prescriptions are judged to have

political validity, if they are authorised in terms of norms. On this argument, the categorical
constraints felt by the deliberative agent do not have their bases in norms or meta-norms (i.e. the

universality test), nor do they have their basis in a sovereign authority which is appealed to for the
 14

purpose of declaring norms; rather, the basis for the categorical constraints are the moments of

instability in language which are identical with differends, silences, wrongs and victims.

The importance of this argument, not only for the development of a Marxist model of

deliberation, but also for a liberal theory of rights, comes into sharp focus if it is recalled what
place the deontic concept of obligation has in the Kantian Doctrine of Right. As Kant defines it, a

right is simply that capacity which one person has to place another under an obligation (MM6:

232). Understood in these terms, not only is the individual moral agent implicated in the
problematics of obligation, but so too is the collective deliberative will. But the question is how?

For Kant one of the central concerns of practical philosophy, is not merely to formulate clearly the

supreme principle of morality, nor merely to carry out a critical examination of the deontic
concepts necessary to secure this principle, but further, to apply this principle in an analytical

manner so as to obtain the whole system of human duties. On this approach, obligation is

identified with the meta-normative constraints that are imposed on the act of deliberation. If it is an
individual deliberative agent, these constraints are imposed on the selection of maxims; where it is

a collective deliberative agent, the constraints are imposed on the making of positive laws.

In either case, on Lyotard’s analysis, normative constraints are not categorical, but

hypothetical (i.e. the obligations which such normative principles impose are not unconditional but

conditional); where it is a republican politics, or an incompatibilist model of agency, such norms

are framed in the hypothetical form, if you want freedom, then do x. Where norms are legitimated

in terms of the Idea of freedom, it is a question of submitting such norms to the deliberative modes

of will formation (i.e. dialectical, forensic and rhetorical modes of deliberation) and testing which
principles best approximate the ideal of freedom. But once again, on Lyotard’s account, the

constraints which are imposed by such principles as “man’s freedom as a human being”, his

“equality as a subject”, and “independence as a citizen” (MM 6: 314), can only impose
hypothetical, and not categorical constraints. This is another way of saying that the rule of reason

(or where law is identified with rationality - the rule of law) does not impose categorical

constraints; and further, where this argument is applied to a model of the deliberative will (and the
 15

problematics of what is felt as that which categorically constrains the will), it is possible to

conclude that it is not the rule of reason which the deliberative agent is conscious of in the act of
deliberation, but rather the rule of heterogeneity (made known in the feeling of obligation).

It is important to note that the argument concerning the hypothetical character of

normativity does not deny the importance of such normative constraints. Lyotard makes this clear

on a number of occasions, but in no clearer terms than the following:

I am speaking of liberal democracies of “advanced”

societies in which human rights are granted, respected as
much as possible, in any case always appealed to and
defended, and gradually extended to those who are called,
in North America, minorities. These commandments of
liberal democracy are good. They allow Amnesty
International to exist, they even demand that it should
exist. They allow me, on occasions, to publish these
minor reflections without difficulty. Anyone who does
not agree with them can always discuss them (PW 110).

The critical problem, nevertheless (in terms of Lyotard’s model of the deliberative will), with this

liberal notion of rights is that it introduces the threat of a transcendental illusion. On the basis of

Lyotard’s discussion of the function of the als ob, (‘as if’) and so, dass (‘so that’) operator,
contained in Kant’s formulation of the categorical imperative, he argues that the critical task

required of a political judgment, is that it keep distinct the various modes by which prescriptions

are legitimated. The problem with the Liberal notion of rights is that it confuses the normative
constraints imposed by the various Declarations and Bills of Rights (one might also add the

common law recognition of rights) with the categorical constraints felt in moments of

heterogeneity. Where this occurs, he argues, each person is seized by others, by responsibilities,
and is caught up in ‘defending the proper enjoyment of his or her rights in general life’. In doing

this, each ‘are diverted from his or her guard over the “general line” that belongs to him or her

(ibid).

In terms of the concepts which will be analysed in this thesis, the ‘general line’, which is

said to be the private affair of the soul, may be thought to be provided by the “feelings” of
 16

obligation, respect and the sublime. On this argument, freedom identified with the occurrence of a

phrase and the radical instability of language, is only ever revealed unequivocally in such
“feelings”. In the case of obligation and respect, these “feelings” are first of all considered to be

blank feelings since they do not properly arise in the faculty of pleasure and displeasure. Such

“feelings” can be regarded as the binding and motivational presentations of heterogeneity.

However, since such categorical constraints are only ever identified with I/You relations,8 formed

according to the meta-principle of alterity, it is not possible to think of a deliberative will being

constrained in general; this is the function of meta-norms, such as the universality test. On
Lyotard’s model of deliberation, one might say, that each individual is categorically constrained

only to the extent that wrongs and the requests of victims are felt in the modality of obligation; that

is, to extent that such request are felt as obligatory before being understood.

Where this argument is considered in terms of Kant’s formulation of the categorical

imperative and the typified moral law, the first statement of the formulation Act is said, on
Lyotard’s rereading, to be a prescriptive phrase, and the second statement, The maxim of your will

can always also be valid as the principle of a universal legislation, is thought to be comprised of

two normative components: the subjective principles (maxims) and the practical laws which
provide the criteria for selecting maxims. The two statements, or phrase regimen, are brought into

contact by the operator ‘as if’. Concerning the normative component, as noted above, Lyotard is

not opposed to the notion of normative constraints, but rather to the view that such constraints can
either replace the categorical constraints felt in moments of difference, or be identified with such

constraints. Such would seem to be the case in all moral and political philosophies that identify the

concept obligation with the problematics of normativity.

Having said that, it is clear that Lyotard has preferences concerning the form of political

legitimation that he would want to see put in place. For him, although he does not state it in these
terms, it may be said that the question for a politics is focused on the issue of sovereignty. What

type of political activity or judgment is to be identified with the addressor/sovereign instance of the

8 See “Prescriptive phrase in ” Table 1.1 and 1.2.

 17

normative phrase? Where a political activity has its authorisation in the Idea of the proliferation of

language, the answer comes back, that the only type of politics that is authorised to occupy the
sovereign position is one identified with the multiplicity of genres. In effect, as Lefort has argued

concerning modern democracies, the position of sovereignty is left empty.9 Where politics is

thought in terms of a philosophy of phrases, and where the meaning of such phrases is radically
unstable and equivocal, politics comes to signify the judgment whereby disputes concerning the

textuality of language, or linkage of phrases, is settled. Given the ontological indeterminacy of a

phrase, the manner by which the text is formed is irretrievably placed into conflict and differends.
A political judgment (analogous to the way a Kantian critical judgment resolves antinomies) can

resolve this dispute, not by subjecting the parties to a set of immutable objective principles, nor by

focusing on the content of a doctrine; but rather, by delimiting the stakes or the Ideal which
regulates the formation of linkages, and then by judging the respective claim according to their

governing Ideals.

On this argument, the normative component of a model of the deliberative will is involved

in an irreducible conflict. In terms of Kantian thought, one could say that the normative component

of the deliberative will, that component which provides the hypothetical constraints, is involved in
an irreducible conflict of reason. Where this conflict is thought in practical terms, it may be said to

involve an irreducible conflict of interests. This is so, since on Kant’s definition, an interest is

simply ‘a principle which contains the condition under which alone its exercise is advanced’ (CPrR
5:119). In a Kantian practical psychology, this conflict may be regulated by the interest of practical

reason (i.e. respect). Once again, however, on Kant’s model this respect is for the meta-normative

constraints which practical reason exercises over the deliberative process. On this argument, the
moral agent is said to act from respect when he or she selects maxims because they comply with

the meta-normative constraints. In this way, respect is thought to be proof of the practicality of

reason. On Lyotard’s approach, however, respect is identified as a fact of the differend. It

nevertheless retains its position as an interest which motivates the selection of maxims, this time,

however, not out of a respect for the meta-normative constraints of reason, but rather the
9 Claude Lefort, “The Logic of Totalitarianism”, The Political Forms of Modern Society: Bureaucracy, Democracy,
Totalitarianism, ed. John B. Thompson (Cambridge, MIT Press, 1986) p.279
 18

categorical constraints felt in the moment of heterogeneity. According to this approach, the

deliberative will is unconditionally motivated not to actualise the principles of reason, but rather to
actualise a situation in which silence can be heard, wrongs remedied and victims made litigants.

For the purpose of approaching the above concerns, thesis is divided into three chapters.
The first chapter will focus on the issue of the heteromorphous nature of language and what

implications this approach to language has for a practical philosophy. In particular it focuses on

Lyotard’s handling of the problematics of obligation, and goes some of the way toward
commenting on the relation which Lyotard’s notion of obligation has to the formation of a

deliberative will. Primarily I deal with these issues by looking at Lyotard’s pragmatic analysis of

the prescriptive phrase, and further his analysis of Kant’s formulation of the categorical imperative.
One of the underlying interests in this chapter, is Lyotard’s development of a notion of obligation

that does not have a basis in principles of reason but in the differend; and it is further to explore the

role which reason plays in providing a practical judgment of the rational and moral worth of an
action and maxims of action.

In the second chapter, I set up a comparison between Allison’s and Lyotard’s reading of
Kant, with a view to exploring their different concepts of the deliberative will. I seek to argue that

Lyotard operates with an incompatibilist model when it comes to analysing modern political forms.

I also seek to develop a model of the deliberative will based on an ontological concept of
transcendental freedom and the problematics of the phrase. In short, I seek to argue that the notion

of freedom which Lyotard works with is one which models a concept of language; on this

approach, freedom is thought in terms of the categories of the “occurrence”of a phrase and
“differends” (eg. instabilities, equivocation etc.). The practical consequence of such irreducible

differends, I argue, are prescriptive situations in which obligations are instituted by the mere

request of victims. It is argued that the quest for norms to regulate such conflicts provides a
constituting basis for the formation of the deliberative will.
 19

In the third chapter, I aim to develop, in more detail, a model of a deliberative will which is

thought in terms of Kant’s formulation of the typified moral law. In particular I explore to what
extent Lyotard reconfigures a Kantian moral psychology so as think through the question of how a

deliberative process might be orientated. In this chapter, I develop further an account of the role

obligation has as a categorical constraint upon the will, and in particular, through an exploration of
the nexus between obligation and the interest of respect, what role respect plays in orientating and

motivating a deliberative process. The argument is, that on Lyotard’s approach, the fundamental

orientation of a deliberative will is not provided by objective practical principles but by

unconditional obligations which are practical presentations of differends, wrongs, silences and

victims. Furthermore, I seek to explore what role the sublime plays in the development of

Lyotard’s concept of political judgment. In this connection I aim to examine the manner by which a
political judgment is orientated by the event of the differend felt in the sublime. In short, I seek to

argue that the sublime feeling provides an instantaneous and “autonomous” judgment concerning

the practicality of the differend - and that it thereby provides an orientation for a normative politics
thought as the multiplicity of genres.

CHAPTER ONE

JUSTICE AND THE CATEGORICAL IMPERATIVE:

 20

LYOTARD’S ANALYSIS OF THE KANTIAN MORAL LAW

In this chapter I aim, by means of providing a close reading of Lyotard’s work, to set up some of the problems which

will be developed in more depth in later chapters. By means of this reading I also hope to demonstrate the significance

of Lyotard’s approach to a Kantian practical philosophy and, in particular, the problematics of obligation. What is of

interest here is Lyotard’s attempt to develop a critical philosophical discourse which has prescriptive statements as its

object. The philosophical discourse which Lyotard develops aims at providing, or deducing, the principles and rules

which govern the various formations and legitimations of prescriptive statements by means of a deontic and pragmatic

analysis. The significance of Lyotard’s approach for a practical philosophy is that it takes seriously the executive force

which, on a pragmatic analysis, is the defining characteristic of prescriptions, since prescriptions are not primarily

concerned with the cognition of an object, but rather with the production of an action. On this approach, the various

questions of the justice of an action, or the justice of the executive force of a prescription, can only adequately be dealt

with if the executive force of the prescription is also incorporated into one’s assessment of it. What this requires is the

development of a deontic analysis which is sensitive to the pragmatic structure of prescriptions.

As I shall attempt to argue, the pragmatic distinction which Lyotard draws between prescriptive and normative

phrase regimens may also be read in terms of a broader philosophical concern which is aimed at developing a

poststructualist thematics of difference. Where the deliberative will is reinterpreted in terms of a philosophy of phrases,

and is thought to be the precarious expression of a ‘concatenation of genres’ and phrase regimens (D. §217), this same

will is understood to be brought into a relation with differences that have no basis within a consensus politics. In

Lyotard’s philosophy of phrases, it is possible to bring together the problematics of obligation and difference.

Importantly, a pragmatic analysis of prescriptive phrases also provides a basis for rethinking ‘obligation’ as the

immediate practical index of relations of alterity. On this approach, unconditional obligations do not have a basis in

either subjective or objective practical principles, but rather in the relations of difference made possible by the

pragmatic conditions of a prescriptive phrase.

The pragmatic analysis of a prescriptive phrase may be understood to provide an answer to the dilemma which

confronts modern democracies; that is, how is it possible for deliberative democracies, which are regulated in terms of a

concept of sovereignty as self-determination, to be brought into a genuine relation to difference (cultural, sexual, etc)?
 21

How might difference be thematised so that it is not thought as a moment which is internal to the process of deliberative

consensus? Or, how might difference be thematised so as not to be an integral part of the performativity of a political

system?10 To my mind, what Lyotard develops under the heading of a pragmatic analysis of prescriptive phrases, is one

way in which an answer to these questions may be developed. On this approach, the deliberative will is thought in terms

of a model of language that finds a basis for obligation, not in the activities of reason, in neither subjective nor objective

principles, but in the pragmatics of the prescriptive phrase regimen. To use Gillian Rose’s idiom, it may be said that in

Lyotard’s philosophy of phrases ‘Athens, the city of rational politics. has been abandoned: she (Athens) is said to have

proven that enlightenment is domination’.11 In this regard Lyotard may be set off on a ‘pilgrimage toward the New

Jerusalem, the imaginary community’, where he seeks to dedicate himself to difference and to otherness - ‘to a new

ethics which seeks to overcome the fusion of knowledge and power in the old Athens’.12 Where the deliberative will is

rethought in these terms, the moral law, that which orientates the will, is not identified with a norm governing maxim

selection, but with first-order prescriptions which are legitimated ethically. These ethically legitimate prescriptions can

be equated with those situations which are formed according to a metaprinciple of alterity. On this basis, it is argued

that it is situations of radical difference, or asymmetrical relations, which provide the pragmatic orientation for the

deliberative process (both at the level of interest and communication).

The claim made here is that the deliberative will is not categorically constrained, nor provided with a

fundamental orientation by practical principles; instead, the deliberative will is orientated by situations of difference

which lack any governing objective or subjective principle. On this argument, relations of asymmetry are defined as

those situations which lack any organising or governing universal principle, yet have the pragmatic effect of imposing

obligations.13 On Lyotard’s arguments, one could maintain that such asymmetrical relations find their practical

presentation in prescriptive type phrases or events. Irreducible asymmetrical relations, otherwise referred to as relations

of alterity, are those non-principled relations which nevertheless provide the basis for the sense of obligation. Lyotard’s

account of obligation is such that the basis for categorical restraint is found in moments of instability inherent to

10
Where differences (social, class, race etc) are seen to have a positive value for the purpose of maximising the
efficiency of a political system, difference is thereby thought to be fundamental to the operation of a system, and not that
which brings the system into question, or imposes a sense of obligation.
11
Gillian Rose, Mourning Becomes the Law: Philosophy and Representation (Cambridge, Cambridge Uni. Press) p.21
12
Ibid.
13
The claim made here concerning the relation of categorical constraints and norms is not that different to that made by
Ricoeur when he states: “Our wager is that it is possible to dig down under the level of obligation and discover an ethical
sense not so completely buried under norms that it cannot be invoked when these norms themselves are silent, in the
case of undecidable matters of conscience.” See Oneself as Another, trans. Kathleen Blamely (Chicago, Uni. of
Chicago Press, 1992) p.190. On the argument developed here, the categorical constraints are identified with an ethical
sense does not have its basis in principles but in situations of radical undecidability.
 22

language; rational principles merely provide hypothetical constraints and ways of stabilising relations between the

various agents instituted by language. Having said that, it is important to note that although the approach adopted by

Lyotard to the problematics of obligation seems overly formalistic and language based, its underlying meaning is to

provide a basis for obligation in relations of difference which are current. In this respect it is to be recalled that a

pragmatic analysis of phrase regimen has as its aim the investigation of a language in situ, as it is currently used. On

this approach, prescriptive phrases (and with them obligations) are the practical effects of instabilities and a radical

difference in “language” as it is currently used. Obligation and prescriptive phrases are thereby linked to a sense of duty

which stems from differences that are laden with conflictual and critical possibilities.

This chapter contests the claim that the only valid starting point for a practical philosophy is one that begins

with an analysis of norms - and the way in which norms provide a basis for obligations, the legitimation of actions, and a

model of deliberation.14 On Lyotard’s pragmatic analysis of phrases, it can be said that where a practical philosophy

takes the problem of the formation and legitimation of normative phrases as its starting point, it begins not by taking

prescriptions on their own terms: namely, it begins by subjecting the rules governing the formation and legitimation of

prescriptions, to the rules governing the formation and legitimation of cognitive phrases.15 In summary, two steps are

involved for the development of a philosophical discourse on justice and hence for a practical philosophy: first, as I have

already suggested, the identification, on a pragmatic and logical analysis, of the rules governing the formation of a

prescriptive phrase; and second, the determination16 of the various modes by which the prescriptive phrase may be

legitimated.17 In this chapter, in the first section, I shall primarily be concerned with surveying Lyotard’s pragmatic and

logical analysis of the prescriptive phrase; in the second section I shall look at Lyotard’s logical analysis of Kant’s

categorical imperative; and in the third section I begin to examine, by means of an analysis of the Kant’s moral law in

its typified form, the differential (i.e. different modes of formation and legitimation) between prescriptions and norms

and the analogical basis on which this differential may be thought.

14
See Christine Korsgaard, The Sources of Normativity, ed. Onora O’Neill (Cambridge, C.U.P., 1996)
15
As I will argue, to take a prescription on its own terms, is to be the obligee of a command. Where this prescription is
cited for the purposes of legitimation, one is no longer positioned as an obligee but as a commentator. In commenting
on the prescription, one makes the prescription the object of a cognition and seeks to validate it according some
cognitive rules of validation.
16
The difficulty with this approach is that it is inconsistent with the type of reflective judgment which is required if the
heterogeneity of phrase regimen and genres of discourse are to be maintained. By prescribing determinate boundaries
to phrase regimen Lyotard oversteps the conditions of an aesthetic judgment.
17
Lyotard identifies three forms of legitimacy: political, juridical and ethical. I further make the distinction between an
ethical and moral form of legitimacy. The ethical mode of legitimation is the one argued for by Lyotard; a prescriptive is
legitimated ethically by the mere feeling of obligation; a prescriptive phrase is legitimated morally (in the Kantian sense)
if its principle can, without contradiction, become a universal law of nature, and if the reason for selecting the
prescription is that it could become a universal law of nature.
 23

1.1 The Logic of Prescriptive Phrases

For Lyotard, if justice is to become the unique concern of a philosophical discourse, it will have to provide a

commentary, not on descriptives, but prescriptive statements (LR. 282). By focusing on prescriptions, a philosophical

discourse takes as its referent those statements which have, as their primary effect, not the cognition of an object, but

rather the production of action (LR. 283). Of importance therefore, to the philosophical analysis of prescriptions, is the

development of a way of explaining the production of action that is consistent with the pragmatics of a prescriptive

phrase.18 In general, we may say that on Lyotard’s analysis, that all prescriptions are productive of action, and that this

production of action is dependent simply upon the executive force of a prescription (ibid). It is important to note, that

this executive force does not find its basis either in reason, interest, inclination or desire. In short, the explanation for

the production of action and the executive force of prescriptions is not linked to a philosophy of the subject. Instead,

Lyotard explains the executive force of prescriptions in terms of a pragmatic analysis of prescriptions.

The location of a statement by a pragmatic investigation within a particular language game (eg. denotative or

prescriptive) involves more than the “discovery” of the rules regulating the semantics and syntax of the statement. Most

importantly, the “discovery” goes to that other semiotic domain located by Peirce: namely, the pragmatic domain.19

What is discovered by a pragmatic analysis are the rules related to the structure of our practice of using a particular

word or statement. Where an investigation only examines the syntactical rules regulating a statement all that is dealt

with is a timeless language inhabiting a logical space. On this argument (one which links Lyotard’s pragmatic analysis

of statements back to materialist or Marxist critical concerns) if one is going to investigate language proper, one must

investigate it in situ and thereby locate the pragmatic rules governing its use. One must investigate language as a spatial

and temporal phenomenon, and not merely a logical picture of language.20 From the perspective of a pragmatic

analysis the difficulty which any form of commentary on prescriptive phrases faces, is that by providing a commentary,

the executive force of a prescription (i.e. that very aspect of the prescriptive phrase which is to be analysed and

legitimised) is neutralised. I shall return to this point in more detail a little later. For the moment suffice it to say that

18
According to Lyotard, it is Levinas who demands that a deontics be situated at the heart of a philosophical discourse
(LR. 282, 285).
19
see: Charles Morris, “Foundations of Theory of Signs,” Otto Neurath, Rudolph Carnarp and Charles Morris, eds.,
International Encyclopaedia of Unified Science, vol. 1, pt. 2 (1938) pp.77-137)
20
This approach is analogous to that of Wittgenstein’s grammatical investigation: cf Ludwig Wittgenstein Philosophical
Investigations, trans. G.E.M. Anscombe (Blackwell, Oxford,1972) p 108.
 24

the neutralisation of the executive force is measured in terms of a ‘modification in the constraints that weigh on the

addressee’ (LR. 283). Lyotard remarks on this modification in the following way: by commenting on a prescription, the

addressee of a prescription21

has understood and hears a discourse, and he utters a

second discourse having the first as its reference. The
addressee of an order, on the contrary, does not have to
come and occupy the position of an addressor. He has
only to ‘cause to exist’ the reference of the order that
he received. (LR. 283)

If a philosophical discourse is to comment, therefore, on prescriptive phrases it must do so by taking into account the

peculiar pragmatics of the prescriptive phrase; the task for a philosophical discourse is to speak of prescriptions without

neutralising the executive force of prescriptions. As Lyotard points out, the only mode of linkage that is consistent with

the pragmatics of a prescription is that of “obeying or disobeying”. So if a pragmatic analysis is to be provided of

prescriptions it is essential that the executive force of the prescription be current; namely, the analysis should be carried

out, at the time that the prescription is effective, and not after the phrase has been neutralised. From the point of view

of providing a logical analysis the issue is not so much whether a prescriptive phrases has a logic, but rather what is this

logic, and how does it differ from the logic of descriptive statements? In other words, the issue for the development of

the logic of a prescription is to develop a logic of statements which have an executory force - and indeed to provide a

logic of the executive force. I shall now look at the arguments put forward by Lyotard to support his development of a

logic of prescriptions.

II

The first point that Lyotard notes, regarding the implication of the executive force of a prescription for a logical analysis

of statements concerns the perlocutionary character of prescriptions.22 (1) The importance of the perlocutionary
21
The argument is that an one cannot both be the addressee of a prescription and one who comments on the
prescription without neutralising the executive force of the prescription. Where one is the addressee of a norm, however,
it is possible to comment on a norm without neutralising the constraints imposed by the norm. I shall clarify the
distinction between prescriptions and norms a little latter.
22
It ought to be noted that Lyotard’s use of “perlocutionary” differs somewhat from that of Austin’s. As Judith Butler
points out, according to Austin’s tentative typology of the kinds of locutions that are performative: an illocutionary act is
one ‘in which in saying something, one is at the same time doing something’; a perlocutionary act, is an utterance that
initiates a set of consequences - ‘in a perlocutionary speech act, saying something will produce certain consequences,
but the saying and the production of consequences are temporally distinct.’ See Excitable Speech: A Politics of the
Performative (New York, Routledge, 1997) p.17. Lyotard’s use of “perlocutionary” does not seem concerned with
consequences, but rather functions to introduce temporality into the logical analysis of a statement. Furthermore, where
Lyotard develops his philosophy of phrases, he points out that all phrases, whether prescriptive or descriptive etc., are
performative in the sense that all phrases present a phrase universe in which the addressor is immediately situated by
and in that phrase universe (D§205). In this regard, it may be said that Lyotard thinks that all phrases are performative
in the illocutionary sense insofar as the addressor is immediately situated by the universe of a phrase. For example, the
 25

situation is crucial for the purposes of giving a deictic force to an instruction; and (2) the categorical aspect of a

prescriptive statement has a specific perlocutionary function; namely, to present the current situation between an

addressee and addressor of an instruction as one which is obligatory. I will now look at each of these aspects of the

prescriptive phrase in turn.

To understand the points that I am about to make it is, however, necessary to have some familiarity with

Lyotard’s formulation of first-level prescriptives. According to Lyotard, there are two elements which make up a

complete prescriptive statement, both of which are orders: (1) there is an order which carries an instruction; and (2)

there is the order which provides the executive force for the first order. The first order 'carries the instruction about the

act to be performed (Open the door!)'; the second order (Obey! ) simply recalls that the first order is executive' (LR.

305). The first order is that which is executable, and the second order is that which renders it executory (307).

Concerning the first order, or the instructive element of a prescriptive statement, Lyotard argues that the

significant difference between this and descriptive statements, is that what is in question in the statement is not

signification but reference. Unlike a person who comments on a prescription (i.e. someone who stakes the prescriptive

phrase as their referent for the purposes of deciding on its signification), the addressee of a prescription “has only to

‘cause to exist’ the reference of the order” (283). The fact that prescriptions are concerned with reference and not with

signification is made clear, Lyotard argues, by the use of the deictic. For example, in the prescription Close the door,

‘the door’ is understood as ‘the door of which I am speaking and which you know; this door here (with the force of ille)’

(283). As Lyotard notes, what gives the definite article of the prescription its force, is the ‘perlocutionary situation’ or,

‘the current relationship between the addressor and the addressee of the order’ (284). The reference is to this door here;

the deictics functioning to tie the instances of the prescription back to a “current” spatio-temporal origin so named “I-

here-now” (D. §50). Deictics designate what they designate when the phrase “takes place,” without anything more (D.

§ 66). The effect of the operation of the deictics is to introduce the logics of time into the analysis of the prescriptive

phrase.

On the same question of ‘reference’ there are two further points which Lyotard notes. First, the identity of the

meeting is called to order, war is declared, immediately situates the addressor as the chairperson or as a sovereign
respectively; We decree that it is obligatory to carry out such and such an action immediately situates the addressor as a
political sovereign; descriptive statements such as The university is sick, positions the addressor as a “knower” (PC 9).
 26

reference of a prescription is not only determined in terms of the current relation between the addressor and addressee,

the prescription also refers to a state of the referent that does not as yet exist (284). Thus, while the identity of the door

is solved in terms of the perlocutionary situation, the state of the referent (a closed door) does not yet exist. In this way,

Lyotard says, the addressee of the prescription ‘makes the reference exist; he produces a state of affairs’ (ibid). The

second point that can be noted concerning the logical implications of the executive force of a prescription, is that once

the addressee has produced the relevant state of affairs (i.e. once the prescription has been executed) ‘the order loses its

executive force’ (ibid). As Lyotard explains, this characteristic of the prescriptive phrase has a number of implications

for a propositional logic. If we judge the validity of a prescription, as we would a descriptive statement (i.e. in terms of

conformity of the statement to its reference), what we find is:

that such statements are never true in the sense of

conforming to that of which they speak, for they either
anticipate it when the reference is not correct, or they
must not be correct when the reference is.(LR. 284).

On the basis of this formulation concerning the ‘truth value’ of a prescriptive statement, Lyotard makes the important

observation that the time put into play by the pragmatics of the prescriptive phrase is both punctual and, according to the

truth functions used in propositional logic, occasions paradoxes (ibid). The time of prescriptions is punctual, in the

sense that the deictic operators of prescriptions take their point of origin from the perlocutionary situation; and the time

of prescriptions occasions paradoxes in that, as noted above, the reference is not correct at the time the order is given.

As I will show, the temporality put in place by the logic of the prescriptive phrase, has important implications

for assessing the legitimacy of a prescription. If the time of the prescriptive phrase is merely punctual and forbids any

recursive linkings on the model of if . . . ,then, then it is not subject to a cognitive mode of legitimation. This point is of

particular importance for the second order of the prescriptive statement (Obey!), which is the categorical element of the

prescription. This element, as noted above, has a perlocutionary function. In this case the perlocutionary situation does

not function to give the deictics their force, but the order itself is operating so as to give a prescriptive or categorical

effect to the situation. As noted above, the Obey! operates simply to recall that the first order is executive. It is of

particular importance to note that the categorical effect of the Obey! is not conditional upon an end being accomplished,

or on the compliance of the principle underlying the instruction satisfying a universality test; ‘it’ is simply obligatory

(307). Concerning the time of the Obey! it is neither punctual nor linear. It is a “now” of a prescription which is not
 27

given nor situated by the phrase23 . As Lyotard says concerning the Obey!, ‘it is never given in its own right but merely

hidden in the form of a complete ‘full’ prescriptive statement, that is instructives’ (ibid).

I shall return to look at these points in more detail in Chapter Three. There I will consider the categorical

constraints imposed by a prescription for the purposes of developing a deliberative model of agency and, on the basis of

some of the observations noted above, examine what type of model best provides an explanation of the categorical

constraints felt by a deliberative agent. Based on the observations concerning the time of the categorical element of the

prescriptive phrase, it can be argued, without appealing to categories of ‘causality’ ‘character’ and‘law’, that the only

model adequate to the task of explaining the ‘effect’ of the categorical constraints is an incompatibilist one.24 Thus, a

number of issues are raised in relation to the question of how it is possible to legitimate such constraints. In essence,

where the categorical effect of the law is not linked to a principle of reason, but to the pragmatics of a prescription

which is formed according to a metaprinciple of alterity, the ethical legitimacy of the executive force of a prescription is

validated by its categorical effects (i.e. obligation and respect).25 The important point to note is that because obligation

is identified with relations of alterity, differends may be understood to provide the conditions in which obligations can

arise. Or more accurately, an obligation may be understood as the practical presentation of a differend. Where this

argument is linked to the development of a model of a deliberative will, the categorical constraints which are said to

provide an orientation for such a will are identified as a practical effect of relations of difference, and not the rationality

of a principle. When one considers the issue of the legitimacy of a prescription which derives its categorical effect from

relations of alterity or differends, it is clear (or it should be clear) that the executive force of such prescriptions cannot

23
The efficacy of the executive force of a prescription may be read in terms of Kant’s Third Antinomy. Where it is a
prescription which only has ethical legitimacy it may be argued that it does not exert its force within the realm of
experience; on the other hand, if it has political and juridical legitimacy it may be said to exert its force within the field of
experience. Based on statements made by Lyotard the following argument may be pursued. Where the executive force
of the prescription is exerted in the field of experience: ‘either this field is the referent for all if . . . . then linkings, and
then performativity has no place there; or else, the performativity of freedom finds its place there, and then its form
obeys the if . . . . . then type, and the imperative is not categorical’ (D. Kant Notice 2). In both cases the categorical
effect and thus the executive force of the prescription is neutralised.
24
In this thesis, an incompatibilist model is one which appeals to a concept of transcendental freedom so as to provide a
model of a deliberative will. In Chapter Two, I claim that Lyotard develops an incompatibilist model of the deliberative
will, but not one which thinks the concept of transcendental freedom in terms of the cosmological categories of
“causality” and “law”, but rather in terms the ontological categories of “occurrence”, “event”, “instability” etc.
25
In summary, Lyotard’s analysis of prescriptive phrases and the linking of this analysis with issues of legitimacy is very
cursory. One may however piece together the claim that where situations of radical difference arise in the context of
pluralistic societies, the mere Obey! may be understood to function so as to give that situation a categorical force. The
fundamental claim is that the categorical force of the asymmetrical relation does not rely upon a rational principle which
both parties recognise, but rather on the relation of difference itself. The Obey! operates to make the prescriptive Act or
Do Something (which arises in such situations) executory. Because the categorical constraint, arising from the Obey! ,
precedes any understanding of why one should be constrained, the temporality of categorical constraint is said to fall
outside the time of sucessivity of the before/after. In Kantian terms, the categorical constraint is said to be
unconditioned.
 28

be legitimated by appealing to norms. This is so since it is the lack of general or universal norms common to the parties

which provides the negative condition for the differend. If such prescriptions are to have validity (and by implication

we might also add, if the differend is to have ethical legitimacy) it is because of the immediate feeling of obligation and

respect which such events institute.

In summary, the logic of the instructive element of a prescription is distinguishable from a descriptive

statement, insofar as the perlocutionary situation is integral to the prescriptive value of the statement. The

perlocutionary situation not only provides the basis for identifying a referent, but also the basis for a situation that ought

to be changed. Where the situation is one of repression of radical difference, its referential value is provided by a

situation which is “current”; the categorical and ethical value of such a situation is not provided by a principle, but the

Obey!, and the sense of obligation and respect that is immediately instituted on the occurrence of such situations.

III

The next point that I wish to note concerning the logic of a prescriptive phrase concerns the deduction of a principle

which governs the formation and legitimation of a prescriptive phrase. This principle, I shall argue, holds a position in

Lyotard’s practical philosophy analogous to that held by the principle of autonomy in Kant’s practical philosophy. The

principle which I have in mind is that which Lyotard calls the ‘metaprinciple of alterity’ That/Thou/shalt/never be/I/!

(LR. 303). Like Kant’s principle of autonomy, which governs the formation and legitimation of moral action, the

principle of alterity may be understood to govern the formation and legitimation of ethical action. The distinction being

made between ‘moral’ and ‘ethical’ action will become apparent as I go along. Furthermore, like autonomy, alterity

may be thought to be a property of a ‘will’ just as long as the will is reconceptualised in terms of the problematics of

Being/nonbeing and of the phrase. We shall return to this second point (concerning alterity as the property of a

deliberative will) in the following chapters. Here I simply want to focus on the arguments which form the basis for

Lyotard’s deduction of the metaprinciple of alterity.26

26
By identifying the formation of obligations with the formation of differends, or situations of alterity, the claim is that the
only obligation worthy of the name comes from the removal of grounds. Thomas Keenan has stated the issue well, with
respect to ‘responsibility’: ‘the only responsibility worthy of the name comes with the removal of grounds, the withdrawal
of the rules or the knowledge on which we might rely to make our decisions for us. No grounds means no alibis, no
elsewhere to which we might refer the instance of our decision. If responsibility has always been thought in the Western
ethical, political, and literary traditions as a matter of articulating what is known with what is done, we propose resituating
it as an asymmetry or an interruption between orders of cognition and action. It is when we do not know exactly what we
should do, when the effects of and conditions of our actions can no longer be calculated, and when we have nowhere
else to turn, not even back to our “self,” that we encounter something like responsibility. Thomas Keenan, Fables of
Responsibility: Aberrations and Predicaments in Ethics and Politics, (Stanford, Stan., U.P., 1997) pp.1-2
 29

The argument advanced here is crucial to one of the central claims of this thesis: namely, that insofar as

differends are formed according to a principle of alterity, they may also be thought to provide a practical presentation of

differends. In fact, on my reading of Lyotard’s work, prescriptions provide the only presentation of differends; a feeling

of the sublime, which may also be said to provide a synthesis of heterogeneity is, on my reading, a secondary effect of

(ethically legitimate) prescriptions or practical relations of alterity. The claim, therefore, that prescriptions are formed

according to the principle of alterity should be taken as an argument for the identification of prescriptions with

differends. Relations formed according to the principle of alterity are to be understood as asymmetrical relations which

lack a common principle or end binding parties together.27 Importantly, where the categorical effects of the law are

identified with differends, such differends may be understood to provide a basis for the practical orientation of a

deliberative will. This interpretation stands in contrast to Kant’s identification of the categorical effect of the law with

the objective necessitation of a will set down in practical principles. On this argument, it is merely the sense of

obligation which provides the practical basis or orientation for action. Given that asymmetrical practical relations are,

by definition, relations lacking a common legitimating norm, the sense of obligation is the only means by which such

relations are legitimated.28

How does Lyotard deduce that the formation and legitimation of prescriptions are governed by the principle of

alterity? Once again, we can say that the basis for the deduction arises from his pragmatic analysis of the prescriptive

phrase. In particular, it is deduced by observing, on a pragmatic analysis, a number of negative cases in which the

addressee of a prescription puts her/himself on the addressor instance of the phrase. As we have already briefly noted,

perhaps the most important pragmatic feature of a prescriptive phrase is that the phrase cannot be commented on

27
Where this argument is understood in terms of that set out in the Postmodern Condition, the asymmetrical relations
which lack a common norm may be translated as relations constituted by “little narratives” that are rooted in difference
rather than in an identity which is established by grandnarratives. As David Carroll points out, “narrative, at least as long
as it remains ‘little,’ is taken by Lyotard to be a kind of open, highly mobile form that, in each instance determines on its
own how the various elements it contains or refers to will be interrelated. The little narrative is, in this sense, a kind of
“zero degree” of differentiating discourse - the form discourse takes to express diversity and unresolved conflict and
thus, resist homogenisation’ David Carroll, Paraesthetics: Foucault, Lyotard, Derrida (Methuen: New York, 1987) p.158.
In the Differend, Lyotard assigns “little narratives” a less significant role. Concerning their place in a deliberative
democracy he says, ‘the deliberative concatenation, which welcomes the competition between multiple genres of
discourse to signify the event and which favours judgment over tradition, has more affinity with obligation than with
narrative (which passes to the rank of fictive scenario’ (D §234).
28
Differends are defined in terms of unstable states in language. These unstable states may be understood to
immediately give rise to relations formed according to the principle of alterity or irreducible asymmetrical practical
relations. To the extent that Lyotard’s idea of language refers to that which is fundamentally conflictual, involving
encounters between heterogeneous phrase regimen and genres of discourse, the situations formed according to the
principle of alterity are irrepressible. These moments of difference which lack any common principle provide the basis
for the practical orientation of a singular will and a universal political judgment.
 30

without modifying the constraints which weigh upon the addressee of the prescription. Namely, a prescription cannot be

commented on without neutralising the executive force of the prescription. Lyotard provides an analysis of this aspect

of the relation between commentary and prescription in a number of places (LR. 282; PW 20): it is dealt with in terms

of the abyss which separates the prescriptive and descriptive phrase regimen (an abyss analogous to the Kantian division

within philosophy between theoretical and practical reason, and also dealt with in terms of a Wittgensteinian idea of

language) (LR. 331); it is also presumed in Lyotard’s arguments concerning the impossibility of a deduction of the law

(LR. 292; D. Kant Notice 2: §1).

When comparing the relation of a metalanguage (commentary) to descriptives and prescriptions, the relation to

descriptives is called isomorphic and the relation to prescriptions is called an ‘insurmountable’ allomorphism (289).29

Essentially, the point is that where a commentary is offered of descriptives the comment does not depart from the

statements own way of phrasing; the rules governing the formation and legitimation of the descriptive phrase regimen

are the same as those governing the commentary and vice versa. Where, however, a commentary is offered of

prescriptions we get, what in Lyotard’s idiom is called, a differend (D. § 196) between phrase regimen. Namely, the

rules governing the formation and legitimation of a prescription are subjected to the rules governing the formation and

legitimation of a descriptive (D. Kant Notice 2 §5). As we will note later, on Lyotard’s analysis, this differend involves

subjecting the legitimacy of prescriptions to the rule of consensus (ibid).30

The essential pragmatic rule that is used by Lyotard to deduce the metaprinciple of alterity, is that the

addressee of a prescription cannot become the addressor of the same prescription without neutralising the prescription’s

executive force. Lyotard, following Levinas, translates this pragmatic rule into the metaprinciple of alterity:

That/Thou/shalt never be/I/! (LR. 303).31 Relations which are formed according to the metaprinciple of alterity are at

29
David Ingram points out that the ‘key assumption in La Condition Postmoderne is that there is an isomorphism
between science on the one hand and ethics on the other’. For a more detailed discussion see, David Ingram,
‘Legitimacy and the Postmodern Condition: The Political Thought of Jean-Franscois Lyotard, Praxis International, 7
Winter, 1987/8, p. 287. In Lyotard’s terms the assumption concerning the isomorphism of science and ethics is identical
to that concerning the isomorphism of descriptions and prescriptions. As Ingram points out, in the context of La
Condition Postmoderne the issue of isomorphism is linked expressly to the legitimating function of grandnarratives; that
is, one grandnarrative is used to legitimate science and the state. On this argument, the isomorphism of descriptives
and prescriptives is based on the claim that the grand narratives which legitimate science and the state are the same.
Enlightenment grand narratives are exemplary, in that they presuppose that science directly institutionalises rational
discourse and that politics mirrors science.
30
It is perhaps this point concerning the proper mode of legitimating prescriptions, that defines the main issue of
contention between Lyotard’s and Habermas’ practical philosophy. Habermas is content to legitimise prescriptions by
subjecting them to the rule of consensus.
31
Here the ‘thou’ is to be understood as the addressee of the prescription; and the ‘I’ is to be understood as the
addressor. In other contexts, when Lyotard is focusing in more detail on the question of obligation, the addressee of the
 31

once (practically) asymmetrical and prescriptive: importantly, such relations are ethically prescriptive32 in that they

cannot be legitimated by a universal rational principle, but only by the feeling of obligation. Furthermore, the implicit

claim which is being made here (one which is not overtly asserted by Lyotard) is that the categorical imperative is not to

be understood as the expression of the principle of autonomy, but rather as the expression of the principle of alterity.

Where the categorical effect of the law is not linked to the inherent rationality of a principle but to the practical effect of

asymmetrical relations the requirement that the principle of the relation be universalizable is not essential to the binding

nature of the law. On this approach it can be forecast that the Kantian formulation of the categorical imperative will

either be replaced or undergo a radical interpretation breaking the link between the rule of reason and the categorical

effects of the law. Where relations are determined by a principle of reason they are not formed according to the

metaprinciple of alterity: rather it is a requirement of rational relations that the position of addressor and addressee be

readily exchangeable.

The connection between the principle of alterity and categorical effect of the law does not rest on a

metaphysics of the subject, but in its most simple form, on the pragmatics of a prescriptive phrase. On this pragmatic

analysis it is claimed that the addressee of a prescription cannot become the addressor of the prescription without

neutralising the executive force of the prescription. The proposition which arises from this analysis is that where the

executive force of a prescription is legitimated in terms of a norm this necessarily results in the neutralisation of the

executive force. In effect, norms cannot legitimate prescriptions without altering the basis on which a prescriptive

relation is formed: namely where a norm functions to legitimate a prescriptive relation, the asymmetrical nature of the

relation is also reduced. If the formation and legitimation of prescriptions are not tied to norms but to the immediate

practical effect of differends (i.e. asymmetrical relations), it follows that something other than norms are required for

the purpose of legitimating the practical relations formed according to the principle of alterity.

The importance of Lyotard’s pragmatic analysis of prescriptive phrases for the development of a politics of

difference can be grasped so long as it is understood that a pragmatic analysis of the prescriptive phrase is also an

analysis of the practical presentation of asymmetrical relations. The neutralisation of the executive force of prescriptive

prescription is called the you of the you ought to; and the addressor is called the I of the I am able to (D.. Kant Notice 2
§2)(see also Table 1.1 and 1.2). For the sake of consistency I will reformulate the principle of alterity as: That/you/shalt
never be/I/!.
32
Asymmetrical relations formed according to the principle of alterity cannot have a moral, political or juridical legitimacy.
An action will only have moral, political and juridical legitimacy if the relation between parties is symmetrical and can be
legitimated in terms of some common norm.
 32

phrases is also a reduction or neutralisation of difference. Lyotard analyses this neutralisation in a number of places. In

The Differend he looks at the issue in terms of the question of linkage (i.e. in terms of the issue of how one phrase is

linked to another). A linkage is categorised by Lyotard as either pertinent, impertinent or offensive (D. §139-40, 147-

49).33 If what is being linked onto is a prescription, the universe presented by the prescriptive phrase will be said to be

“current” if there is a pertinent linkage. In this case, it is argued, the universe presented by a prescriptive phrase ceases

to be current (or the linkage is impertinent or offensive) simply by not expecting the effectuation of the prescription (D.

§46). The same point can also be made in terms of the meta-principle of alterity; that is, the addressee/you of a

prescription cannot become the addressor/I of the prescription without adopting a mode of linkage which is categorised

by Lyotard as impertinent or offensive. In other words, the you of a prescription cannot become the I of the

prescription, without engaging in an act that is impertinent or offensive.

On Lyotard’s argument, the you of a prescription engages in an impertinence or an offence merely by citing the

prescription.34 In this case, the addressee puts him/herself in the same place as the addressor when citing the

prescription. By doing this, the addressee does not link onto the prescription with the purpose of executing it, but in the

manner of a commentator, links onto the prescription for the purpose of asking whether the prescription is really

obligatory.35 By citing a prescription, Lyotard argues, the addressee of the prescription makes the prescription pass

under the tribunal of cognition (D. §45); that is, the addressee takes the prescription as an object of cognition and asks,

for example (if he/she is a rational egoist), whether the executive force of the prescription can be legitimated in terms of

a test of rationality. Are there good reasons for carrying out the prescription?

As Lyotard notes, citation ‘submits the phrase to an autonymic transformation’ (D. §46). In the case of a

prescription, citation has the result of transforming the prescription into a description; and where it is the addressee of

33
It is not my intention here to critically examine Lyotard’s categories of linkage, but merely to note the relation between
the issue of the linkage of phrases and the neutralisation of the executive force of prescriptions. It should be noted that
the issue of linkage relates to the various modes by which a “language”, which is fundamentally at odds with itself and
conflictual, is stabilised or normalised. Some modes of linkage are more robust in their repression of difference.
34
For the purposes of understanding what implications this argument has for a Kantian notion of maxims and for the
Incorporation Thesis, this act of ‘citing’ may simply be understood as an act of recognition. In a Kantian idiom, the
obligation would only occur if the maxim is first recognised, and second, if it is recognised as able to take the form of a
universal law. To put the point more bluntly, the idea of an unrecognised maxim is contradictory.
35
Reinterpreting Korsgaard’s analysis of the sources of normativity slightly, we may say that the type of reflective
engagement identified by Lyotard under the heading of ‘citation’ is the source of normativity. In Lyotard’s terms, citation
is that act whereby the validity of a prescription is able to be tested in terms of its universalizability. Citation transforms
the prescription into a description and thus opens the way for the regulation of the “prescription” in terms of the idea of
universality. See Christine Korsgaard, “Lecture One”, The Sources of Normativity, ed. Onora O’Neill (Cambridge,
C.U.P., 1996) p.16. On her approach, normativity may said to have its foundation in a philosophical attitude and in such
questions as: ‘must I really do this? Why must I do it?’
 33

the prescription who is citing the prescription, citation has the effect of neutralising the executive force of the

prescription. The addressee moves from being the you of a you ought to, to being the I of an I think. In effect, as

observed above, by citing a prescription the addressee makes the prescription pass under the jurisdiction of the cognitive

tribunal. This has the following implication.

Instead of the order: Open the door, the tribunal has for
its cognizance the descriptive:It was ordered that the
door be opened. . . . . . it becomes The/open the door/.
(D. §45)

It should be noted, that the addressee may put him or her self in the position of the addressor by means of a number of

transcriptions, but in all cases the executive force of the prescription is modified. Some of the transcriptions are as

follows:

It is either reported: He said to close the door. Or

quoted: He said, ‘Close the door.’ Or symbolised: O(p),
which reads, ‘It is obligatory that p’ where p is,
according to some, a well-formed expression of
propositional logic (in this case a statement like the
door is closed), or, according to others, a proposition
root, which here means roughly ‘the closing of the door
by you’. or else it is symbolised in a perhaps more
refined way: Nx’ Oyα’, which would read, ‘x has ruled: y
must do α’, where x is the order-giver, y the receiver,
and α the action of closing the door. (LR. 283)

In all these cases the citation involves positioning the addressee of the prescription on the addressor instance. As we

have already observed, on a pragmatic analysis this move has the effect of neutralising the executive force of the

prescription and thus situating the addressee (now the addressor) in a different phrase universe. In all cases of citation it

is observed that the metaprinciple of alterity (which is deduced on the basis of a pragmatic analysis of prescriptions) is

not adhered to. None of the citations are themselves prescriptions.

For our purposes, the most important point to examine is that on Lyotard’s argument a normative phrase should

be understood as a phrase which cites a prescription. This can be readily seen by looking at Lyotard’s logical

formulation of the prescriptive and normative phrase. The prescription is formulated as: It is an obligation for x to carry

out act α.; while a norm is formulated as, It is a norm for y that “it is obligatory for x to carry out act α.” (D. §155). As

Lyotard points out concerning the norm,

 34
In its form, the normative entails the citation of a
prescription. This prescriptive is autonymized. The
normative is a phrase about a phrase, a metalanguage (D.
§ 207).

The normative phrase, of course, has a number of permutations,36 not all of which can be understood to involve the

addressee of a prescription citing the prescription.

It may be that the executive force of the prescription is already neutralised (i.e. it is already received as that

which falls under the jurisdiction of a cognitive tribunal) - as is the case where prescriptions are received already in the

context of a commentary, or in the context of a narrative form of politics (or genre of discourse), or in most deliberative

contexts. Lyotard canvasses this point when he says:

The one, whoever he is, who promotes an obligation to the

dignity of a norm is an addressee of that order who takes
it as the reference of his discourse and, in so doing,
moves into the position of addressor of a new statement,
the commentary that makes the order into a norm. It is of
course conceivable that he did not gain knowledge of that
order directly but was told of it; it could be objected
that the order thus did not reach him equipped with its
executive power, but was already neutralised and repeated
as a quotation in a descriptive discourse. This is
possible; but the situation is then merely displaced:
someone, whoever he is, necessarily, rightly or wrongly,
must not have ‘taken upon himself’ the order he heard, so
that this order could be made the object of a commentary,
even if this commentary consisted of a declaration that
the order were valid as a norm. (LR. 300)

Having said this, however, it also needs to be stressed that the issue concerning the relation of prescriptions and norms,

to a large extent, rests on philosophical claims concerning agency. Depending upon one’s model of agency, it may be

argued that an agent is only ever placed in relation to what Lyotard calls ‘neutralised prescriptions’. For example, as

Lyotard notes, the effects of the neutralisation of the executive force is carried through to one who hears or reads a

prescription after it has been placed in quotation marks:

The inverted commas around Oya in the statement of the

norm attest that the statement of the prescription is
here a quotation made by x, and that the reader, the
addressee of the complete message, is dealing with the
‘image’ of the deontic statement in the metalanguage of
norms. (LR. 295)

36
These permutations vary according to ‘the authorisation inscribed in the normative prefix’ (D. §199). Or, put
differently, the permutations vary according to the name which is invoked to occupy the sovereign addressor instance of
the normative phrase
 35

This would seem to be the case where the concept of normative agency is thought in terms of either a compatibilist or

incompatibilist model.37 For example, where the concept of agency is regulated by an (cosmological) Idea of

transcendental freedom, or where it is regulated by a concept of autonomy, prescriptions cannot be thought as givens,

rather they are made.38 Under this model, the rational agent is thought to be always already self-determining, and so is

always already thought to be placed on the addressor position of the prescription.39 The addressee is not obligated as a

you of a you ought to, but only as an I or We of an I/We declare that it is a norm that I/We ought to do act α. On a

Kantian model both moral and republican action may be said to have its basis not in a prescription, but rather in a

prescription which (1) has always already been cited, and (2) satisfies the test of universalizability.40 By Kant’s model, a

prescription would always already be caught up in the reflexive structure of the subject.

On a pragmatic analysis, however, we can say that whenever a prescription is cited this will necessarily involve

the neutralisation of the prescription. The meta-principle of alterity is deduced on the basis of the observation that

whenever the addressee of a prescription puts him/herself on the instance of the addressor, the executive force of the

prescription is neutralised. By putting him/herself in the position of the addressor, the addressee situates him/herself in

a different phrase universe (eg. normative, cognitive, speculative etc). The prescriptive phrase ceases to be “current”.

On the basis of this pragmatic analysis of a prescriptive phrase the meta principle of alterity (That/you,shalt never be/I/!)

is deduced. The addressee (you) cannot, by means of a citation, put him or herself in the position of the addressor (I) of

the prescription without neutralising the executive force of the prescription. The essential point here for the purpose of

developing a pragmatic analysis (and philosophical discourse) of a prescriptions, is to note that this analysis must be

carried out whilst the prescription is “current” or in its performative mode. Furthermore, if prescriptions are to be

identified with the production of action and a fundamental practical point of view, then the failure to develop a

37
The distinction between a compatibilist or incompatibilist model of human agency rest on how one thinks of the
dependence of reason on the determining causes. If such dependence is thought to be a causal dependence, then
human agency will have to be construed in compatibilist terms. On the basis of Kant’s arguments the distinction
between a compatibilist and incompatibilist model of human agency rests on claims concerning the spontaneity of
reason, and the claim that the categorical imperative is a product of practical reason. The rational agent never acts
directly on inclinations and desires, but only on imperatives (oughts ) which are the product of practical reason. The
sense of obligation is categorical only to the extent that it is tied to practical laws. On Lyotard’s argument, practical laws
do not provide the basis for the sense of obligation, rather it is those heterogeneous situations which, by definition, lack a
universal principle that provide the basis for the categorical effect of the law.
38
In Kant’s practical philosophy, the rational agent is said to act on subjective principles called ‘maxims’. It is important
to note that maxims do not have the logical form of prescriptions, but rather of propositions. The imperative form is
granted to objective practical principles which merely regulate the selection of maxims. But once again, this imperative
form is not located at the level of a first-order statement, but rather at the level of a meta-norm and meta-meta norms.
39
In Kantian practical philosophy, this issue is dealt with in terms of the relation between maxims and objective practical
principles, and in terms of the relation of two concepts of the will - Wille and Willkür See: Lewis White Beck, “Kant’s
Two Conceptions of the Will in Their Political Context’, Kant & Political Philosophy, ed., Ronald Beiner and William
James Booth (New Haven, Yale. U.P. 1993) p.38.
40
Where what is in question is moral legitimacy, the basis for the executive force must also be the incentive of respect.
 36

discourse on prescriptions whilst in their performative mode is also a failure to provide a truly practical philosophy or

philosophy of action.

The question which may be asked, therefore, is under what types of circumstances will prescriptions arise that

are not already validated in terms of existing norms? To provide an in depth answer to this question is not possible

here. The brief answer, however, is that prescriptions which are not already situated in terms of norms can only occur in

those situations of difference which are not regulated already by norms. In terms of Lyotard’s Idea of language (i.e.

Idea of a heterogeneity of phrase regimens and genres of discourse) where the deep structure of language is not thought

to be rational but fundamentally unstable, each occurrence of a phrase brings with it the potential for irreducible conflict

concerning its determination. Such conflict in turn is not regulated by the norms of any one genre of discourse.

Differends between genres thus occur at the border of each phrase with respect to the question of the linkage of phrases

or the stabilisation of language.

Where politics is identified with a single genre of discourse, other modes of stabilising language are not

actualised, other phrases and other societies presented by phrase universes are not brought into being. The silences

which accompany the stabilisation or normalisation of a language, institute, in Lyotard’s idiom, wrongs and victims. As

Lyotard defines it, a wrong will occur where a single rule of judgment is applied to heterogeneous genres in order to

settle the differend. In this case the conflict is thought to be resolved by giving one genre sovereignty over another.

This mode of “reconciliation” institutes a situation where a damages claim is only heard in the idiom of the offending

party. Where a political judgment is legitimated by an Idea of a heterogeneous language, such a judgment is authorised

to declare that such modes of reconciliation are illegitimate and that they institute victims and wrongs. In such cases

even the silence of victims is heard as a request for justice - such silences are themselves heard as prescriptions which

are sufficient to institute obligations to, and respect for, those who are silenced. On this argument, it is the very

instances of heterogeneity which are authorised to institute categorical constraints and have the capacity to give rise to

rights. Neither obligations or rights, however, have their basis in universal norms or in the consensus of a rational

community, but rather in a ‘dissensus’ “founded” on the heterogeneity and instability of language.

On Lyotard’s argument, the requests of victims do not appeal to a normative authority so as to have ethical

legitimacy; rather, their legitimacy rests on the formation of a differend according to the metaprinciple of alterity. In
 37

such cases, requests (even as they are heard in the silence) categorically bind the will of deliberative agents, orientating

such deliberation in the “name” of a heterogeneity. In such cases the political judgment which is authorised is not one

which settles the differends by promoting a single genre to the position of sovereignty, but rather one which reconciles

by establishing the differential between the parties.

1.2 The Categorical Imperative

I now want to move to the question of the formulation of the categorical imperative. The importance of this principle in

Kant’s thought has been stressed recently in the work of Onora O'Neill, as central not only to Kant’s ethics but to ‘his

whole philosophy’ (CR.p.ix). On O'Neill’s view, the categorical imperative is the supreme principle of reason. This is

so, she argues, (1) because the ‘practical use of reason is more fundamental than its theoretical or speculative use’; and

(2) because the ‘Categorical Imperative is the supreme principle of practical reason’ (CR 3). On this approach the

value-neutral knowledge of science is grounded on the same principles as those that guide action. Without this

grounding in practical reason, theoretical reason is disorientated in its inquiry. It is this capacity to provide an

orientation, or have a regulative function for all thought that defines the central importance of the categorical imperative

for both theory and practice.

In these sections I shall reconstruct from Lyotard’s work the way in which the categorical imperative is

rendered equally important, providing a basis for the orientation of action and theory. The major difference, however,

between Lyotard’s reading of Kant and that of O'Neill, is that Lyotard shifts the problematics of the categorical

imperative out of the realm of norms and citation, and into the domain of first-order statements. On Lyotard’s

argument, the proper analysis of imperatives has to be carried out while the performativity of the phrase is still active.

If the categorical imperative is to receive its proper formulation, then it should be developed on the basis that what is

being formulated is a prescription whose executive force is current and, alternatively, not one which has already

undergone the effects of citation; thus,the simple command Obey! best formulates the categorical imperative. This is a

statement which accompanies all instructions or hypothetical imperatives; it does not so much command an addressee to

perform a particular action, but rather ‘to receive the anterior or ulterior prescriptive statement in an attitude of carrying

it out or, in other words, of being obliged by this statement’ (LR. 305). In this chapter I shall not be devoting much

attention to Lyotard’s formulation of the categorical imperative, rather, I focus on his analysis of Kant’s formulation,
 38

since a focus on Kant’s formulation provides both an opportunity to reference Lyotard’s approach, and provides a basis

for considering the difficult issue of what deliberative model can be developed on Lyotard’s pragmatic analysis of both

prescriptions and norms.

Concerning the formulation of the categorical imperative, it should be noted that the Kantian formulation has

not been without its critics. From Hegel41 to Mill42 (to contemporary critics43 ) the charge has been that Kant’s

formulation of the categorical imperative is overly formalistic and does not provide any criteria on which maxims may

be selected. The defenders of Kant have been quick to point out that on a close reading of the categorical imperative

there are criteria which provide for the regulation of the deliberative process (IF 143). Kant’s formulation has been

saved by making a distinction between the possible senses of universality operating in it (IF 146), and by noting that the

test also requires that maxims be adopted for the right motives (IF 153). If an action is to be moral, the principle of the

maxim must not only conform to universal law, but also the incentive for adopting the maxim must be respect for the

ought expressed in the practical law.

Having said that, however, in all cases, both the criticism and the rebuttals of criticism function within the

same practical paradigm; namely, they all begin with the assumption that the formulation of the categorical imperative

is the formulation of a norm or meta-norm which legitimates the actions or maxims of an agent. In most cases, the

formulation itself rests on assumptions concerning the reflective nature and freedom of the agent. For Korsgaard, for

example, the reflective nature of the agent is to be identified as the basis for the principle of autonomy.

The reflective structure of human consciousness requires

that you identify yourself with some law or principle
which governs your choice. It requires you to be a law
to yourself And that is the source of normativity. So
the argument shows just what Kant said that it did: that
44
our autonomy is the source of obligation.

On this argument, the categorical imperative is simply the principle of autonomy.45 For Allison and O’Neill, the basis

for the formulation of the categorical imperative is a concept of agency that is regulated by both a concept of freedom as

41
Georg W. F. Hegel, The Scientific Ways of Treating Natural Law , trans, TM Knox (University of Penn. Press, 1982)
p.77-79.
42
John Stuart Mill, Utilitarianism, ed. George Sher. (Indianapolis, Hackett, 1979) p.4
43
Bruce Aune, Kant’s Theory of Morals, (Princeton, P.U.P., 1979) Ch II; David Wood, Hegel’s Ethical Thought,
Cambridge, C.U.P., 1990) p.154-61.
44
Korsgaard, ibid.. p.103-4
45
O’Neill, ibid., p.53; Barbara Hermann, The Practice of Moral Judgment, (Cambridge, Harvard U.P. 1993) p.237
 39

absolute spontaneity and autonomy (IF 152; CR 53). As I will note in the next chapter when we look at Allison’s

arguments concerning the Reciprocity Thesis, the formulation of the categorical imperative proceeds by attempting to

deduce the moral law that would govern the action of an agent that is assumed to be transcendentally free. On both

Korsgaard’s and Allison’s approach, it should be noted that their starting point reduces the principle of alterity by

assuming that the addressee of a prescription is always already an addressor. In other words, they both begin by

assuming that an agent is not simply obligated by a first-order prescription, if the agent is to be obligated it is only by

citing maxims and testing to see if they are universalizable. This is not to say that the agent is conscious of carrying out

this test. The moral consciousness attributed to human agency is of moral constraints as they arise in the process of

deliberation. In this manner, practical laws (the only practical principles that have the imperative form) serve as a

normative guide for the decision procedure involved in deliberation; the practical laws provide a basis for legitimating

maxims.

Both critics and defenders of Kant’s formulation of the categorical imperative adopt a model of the deliberative

will in which the moral and rational agent is only conscious of normative constraints. On this approach, the universality

test operates to regulate the selection of norms for the determination of actions. Obligations only ever arise at the level

of normative constraints. In contrast to this, as we have seen, Lyotard develops a notion of obligation that is not linked

to norms, but rather is the pragmatic effect of first-order prescriptive statements. Further, as I will develop toward the

end of this chapter, one can argue that Lyotard’s approach to the problematics of obligation also sets up a basis for

rethinking a model of the deliberative will. A close reading of Lyotard’s work on the categorical imperative is not only

important, therefore, for understanding some of his criticisms of Kant’s practical philosophy and formulation of the

categorical imperative, but also because it provides a basis on which it is possible to develop an alternative model of

deliberation; this applies to any model of deliberation, whether it is rational, communicational, moral, or interest-based.

I shall now turn to Lyotard’s analysis of Kant’s formulation of the categorical imperative.

II

In “Levinas’ Logic”, Lyotard provides a logical and pragmatic analysis of Kant’s formulation of the categorical

imperative. On a logical analysis, Lyotard shows, by means the notational conventions of Alchourrón and Kalinowski,

that the denotative form of phrasing is already concealed within the categorical imperative (294). According to Lyotard

'the fundamental law of practical reason is enunciated thus: "Act in such a way that the maxim of your will can always
 40

be valid as the principle of a universal legislation also"' [LR. 294]. Applying a deontic logical analysis (developed by

Von Wright) to the categorical imperative, Lyotard argues that it can be analysed as two statements linked by an

operator. The first statement is, "Act"; the second statement is, "the maxim of your will can always be valid as the

principle of a universal legislation also"; and, the operator is, " in such a way that".

Concerning the first statement "Act", Lyotard argues that this is to be understood as the prescriptive part of the

categorical imperative. He says that it can be rewritten as:

Do something, which in turn may be understood as (i) Thou

shalt, the pure prescriptive, It is obligatory that . .
.; (ii) To do something, which as we have seen may be
taken as a well-formed expression in propositional logic,
A thing of some kind is done, or else as a propositional
root, The doing of something (by you). (LR. 294)

In Von Wright’s notation a prescription is expressed by the O (p): O is the operator of obligation and functions

according to a deontic logic, and (p) is the proposition being considered. The difficulty with this notational form,

however, is that it does not allow us to make a distinction amongst the types of expressions which may occupy the

position of (p). To rectify this situation, Lyotard adopts the deontic notation of Achourrón and Kalinowski. Using this

notational form it possible to make clear that the prescription here does not determine the will except by its form. The

full expression concerning the prescription is given so as to include an addressee (y), and an order which basically

remains empty as to its content. "Act", is thus expanded out so as to be expressed as "There is at least one (y) and this

(y) must accomplish (a)” ; and (a) is to be understood as the symbol that designates an action that is not determined by

itself. The final expression that Lyotard gives for the "Act" is, "Accomplish an undetermined action" (LR. p.294). We

may expand the prescriptive out further, and say that "Act" stands for - 'there is at least one (y) and this (y) must

accomplish an undetermined action.’

A number of points need to be noted concerning Lyotard’s notational expansion of the statement “Act”. On his

approach, this statement may be understood as the prescriptive component of the categorical imperative. Two features

should be considered in relation to the statement “Act”. (1) It contains the operator of o, which has the executive force

to modify the will of the addressee; and (2), “Act” is a prescription which does not determine the ‘matter’ of the action

to be accomplished. On this basis it is possible to say that the executive force of the prescription, that which (on

Lyotard’s analysis) obligates, does not motivate a will to do anything in particular, but merely constrains it to
 41

accomplish an indeterminate act. In this way it may be said that the addressee of the categorical imperative is already

obligated, simply by the executive force of the prescription “Act”; or more accurately by the Obey! which, as I have

noted, has the perlocutionary function not of ordering action, but of commanding that the prescriptive statement Act be

received in an attitude of being obliged by the statement. On a pragmatic analysis, this prescription is sufficient to

institute an obligation upon the addressee (apart from any objective practical principle). In this context, the second part

of the categorical imperative, that which Lyotard examines as a norm, may be thought to be presented for the purposes

of providing a judgment of what must be done. As Lyotard notes concerning moral judgment:

Kant writes, ‘Natural law serves only as a type for a law

of freedom’. Were it not for this type, which results
from a transfer from nature to the will, the imperative
would provide no guiding thread, but would simply
prescribe action without suggesting any regulating Idea
(that of a supersensible nature, of a community of
practical i.e. free beings) to guide the judgment of what
must be done. (LR. 398)

In summary, on Lyotard’s approach, the first part of the categorical imperative provides the basis for the executive force

of the imperative. This basis, it should be noted, is not grounded in a rational principle, but simply in the pragmatics of

the prescription. In other words the constraints placed on the will of the addressee are not understood to be

fundamentally rational. Thus, the target of the moral law is not the execution of a rational order, but rather the

execution of the ‘variable of an unknown action’ (LR. 294); this is a conclusion consistent with the critical constraints

placed on the assessment of a free action. In its most urgent form the first statement of the categorical imperative

(“Act”), may be expanded to Do something!, the Obey! accompanying this statement. The second half of the

categorical imperative, the rational order, is used merely as a type of the law of freedom as a way of guiding a judgment

in the determination of the unknown action. Let us now turn to a more detailed examination of Lyotard’s notational

expansion of the second half of the categorical imperative.

III

As I have just noted, the second half of the categorical imperative may be understood as that statement which provides a

basis for a judgment concerning the legitimacy of an obligation and an action. On the basis of the argument so far

concerning a pragmatic analysis of a prescription, an obligation cannot be judged without neutralising its executive

force. In effect, a principle must be found for the obligation, so that the obligation can be put in a form which can

satisfy the universalizability test. According to Lyotard, the action, if it is an action which is free, will have its basis in
 42

an unconditional obligation and not in a principle of reason (D. Kant Notice 2: §6). The occurrence of an obligation (as

I will argue further in chapter three) cannot be predetermined in advance, but is conditional upon differends and

requests being made by victims or outsiders. On Lyotard’s approach, such requests may be equated with ethically

legitimate prescriptions, and with the first statement of the categorical imperative; namely, the request amounts to a

command that ‘there is at least one (y) and this (y) must accomplish an undetermined action’ (”Do something!”).

Thevarious norms (subjective and objective), identified with the second half of the categorical imperative, are then

applied to the task of determining what action must be performed. Where the principle of a maxim determining the

action can satisfy the universality test, then this action has rational legitimacy; if the maxim is selected because it

complies with the test, then the action has moral legitimacy. It may be said, therefore, that the second part of the

categorical imperative provides a way of judging actions. The judgment, however, is by no means unequivocal: the

same action may be judged to be both the effect of a natural causality and the sign of a free causality.

The second part of the categorical imperative is stated as follows: "That the maxim of your will can always be

valid as the principle of a universal legislation also" (ibid). On Kant’s argument, this statement presupposes the

reflective consciousness of the agent. It might be argued, on the basis of what has been said so far concerning a

pragmatic analysis of citation and reflection, that the normative agent does not simply hear the command Act, but rather

before any issue concerning what action must be performed, the command Act must be cited and undergo an autonymic

transformation. It may argued, therefore, that on a pragmatic analysis, what the normative agent hears, is not the

command Act, but rather, It was ordered that I Act. Only after this transformation is carried out, does the agent select a

maxim for the purpose of determining what action is to be performed.46 The agent will act on the maxim if the principle

of the maxim can be legitimised under the test of universalizability. On this test the agent asks, after citing the

command, Is it rational that I Act in this way?. As we have already noted, the act of citing a prescription is sufficient to

situate the addressee of the prescription on the addressor instance, thus substituting the principle of alterity for a

principle of sameness violating the asymmetry of the relationship which is a condition of respecting difference. The

judgment required by the (complete)47 second statement of the categorical imperative is sufficient to substitute the

46
The selection process will be politically determined by whatever authorisation the agent operates under for the
purposes of selecting. For example, the agent may not consider themselves free to select a maxim, but may feel bound
by traditional constraints to select those maxims which have been selected in the same situation in the past. This is the
operation by which judge-made law or common law is developed (except for the highest courts in a court hierarchy), but
also it is is supposed the basis upon which members of traditional societies link onto events.
47
It is only the basis of the universality test, that one need assume that the agent is free in the selection of a maxim.
Without this test, it may be that a maxim is selected because of contingent reasons (i.e. because that is the way that it
has been customarily decided).
 43

principle of alterity with a principle of self-determination.

As I shall note in the next chapter in relation to Allison’s reading of Kant, the capacity of self-determination

can either be thought under a concept of freedom as absolute spontaneity or autonomy. In the context of formulating the

categorical imperative, the issue concerning freedom, as it stands for Lyotard, is whether the concept of freedom, as it is

applied to the normative agent, is such that it disregards or forgets that an obligation does not have its basis in the

autonomous activities of the agent: namely, according the meta principle of alterity, the principle governing the

formation of prescriptions, the agent be autonomous, he or she cannot be both the addressor and addressee of an

obligation. The issue for Lyotard, is whether the concept of freedom, which is inserted into the problematics of

obligation, is such as to substitute the principle of alterity for the principle of autonomy.

On Lyotard’s argument, if there are to be two notions of freedom, one which is applicable to the addressor of a

prescription, and another which is applied to the addressor of norms, the differential between these moments of freedom

must be critically maintained so as not to legitimate the formation of obligations under the principle of autonomy. The

collapsing of the difference occurs when the freedom of the normative agent, identified with a freedom to declare or

enunciate what obligations are legitimate (JG 29-30), is taken to be the source of obligation. Where this done, it is

argued, that obligation has its basis in the principles provided by practical reason, rather than in the executive force of

prescriptive situations. This approach to the question of obligation, one which makes the freedom of the normative

agent its basis, is that which is favoured by most spectrums of moral and political philosophy. If, however, it is held that

obligation has its basis in a freedom of the addressor of a prescription (D. Kant Notice 2:§3), an I which the you can

never become, and further that such prescriptive events have a basis in differends between phrases and genres of

discourse, then the activities of a normative agent (whether regulated by compatibilist or incompatibilist models) may be

understood to be responses to the event of obligation, rather than the source of obligation. I shall return to this issue a

little later.

According to Lyotard, the second statement of the categorical imperative (The maxim of your will can always

also be valid as the principle of universal legislation) indicates that the prescription ("Accomplish an undetermined

action" etc.,) is also equally formulable as a universal norm. However, as already noted, on a pragmatic analysis the

equivalence between a prescription and a norm cannot be maintained. This aside, Lyotard shows that where it is held,
 44

on a logical analysis, that a prescription should also be valid as a norm (or principle of law) it may be written in

notational form as:

Nx'-', which is read, x has ruled: -', where x

designates an agent and N a norm function that presents
as a norm the expression placed in inverted commas on its
right (LR. 295)

In regards to this notation, Lyotard points out, that the operator N is to be distinguished from O, in that O belongs to the

deontic logic of prescriptions, and N to the logic of norms. As he argues, the logic of norms is descriptive, since it

'simply denotes the fact that the expression placed on its right is a norm'(ibid): this is the function of citation. The

notation for the norm is Nx'Oya - and this may be read as, "There is a norm decreed by x which declares: y must

accomplish a " (LR. p.295). Here x, simply by citing the prescription, brings the prescription within the universe of the

normative phrase. Here x could be either the addressee or addressor of the prescription, or he/she/they could be a third

party. In all cases, the effect of the citation is to provide a concept of the I/you of the prescriptive phrase in terms of a

whole whose model is nature (D. Kant Notice 2: §5) and whose principle is either subjective or objective. This point is

especially realised in the typified form of the moral law, where the principles of maxims are judged in terms of whether

or not they can stand the test of being universalised as laws of nature. The essential point that Lyotard wants to make

here is that the relation between 'the expression Nx'--' and the expression Oya, is identical to the relation between a

metastatement and an object language. As I have already noted, the effect of a citation is to set up a relation where one

discourse presumes to comment or have jurisdiction over another. In the case of prescriptions and norms, the effect is

achieved simply by the descriptive operation of a norm (ibid).

Thus, the second part of the categorical imperative, taken by itself (and minus the modalities of 'so that' and 'as

if') reads: The maxim of your will can always also be valid as the principle of universal legislation. This statement, in

turn, is broken into two parts by Lyotard. The first being, The maxim of your will; and the second being, can always

also be valid as the principle of universal legislation. Concerning the first part, “maxim of the will”, the importance of

this clause for the overall formulation of the categorical imperative cannot be underestimated. In Kantian terms, it is the

principle of the “maxim of the will” which is tested to see if it can become a universal law; and, in Lyotard’s terms, the

maxim of the will is said to be the ‘norm enunciating that the act is obligatory for the agent’ (LR. 295). Applying a

pragmatic analysis to this clause, what has been said previously concerning the effect of citing a prescription may also
 45

be seen to hold in this case. By enunciating that the prescription is obligatory, the normative agent48 is at once released

from the obligatory force of the prescription. Where it is held that the maxim enunciated by the normative agent is

taken to be the basis for both actions and obligations, the addressee of the prescription is likewise already thought to be

the addressor of the prescription. On this pragmatic approach, as I have noted, the situating of the addressee on the

addressor instance of instance of the prescriptive phrase results in the substitution of a prescription for a norm, and in

the reduction of the dissymmetry of the prescription by the symmetry of a norm. In this case, for example, the

“addressor” of the norm cannot be the victim who makes a request, but rather is the citizen who legitimates the request.

Considering the entire formulation of the categorical imperative, the differential between the first and second

statements may be understood in terms of the differential between prescriptions and norms respectively. Where the

second statement is analysed in isolation, the relation between its two elements may be understood in terms of the

differential between two levels of norms. The first level being the norm (“Maxim of the will”) which enunciates the

legitimacy of an obligation; and the second, the metanorm (i.e. the test of universality), which regulates the relation of

maxims. One way in which the relation between the two statements of the categorical imperative may be considered

(and I will explore this point in more detail in Chapter Three), is to think of the normative component as being offered,

or taken, ‘so as’ (or ‘as if’) to reduce the conflict which gave rise to the prescriptive event. By adopting this argument it

is possible to say that on the side of the prescription (where the relation is regulated in accordance with the principle of

alterity) there is a conflict which lacks any basis in a governing norm. This conflict, in turn, gives rise to the request

“Do something”. On the side of norms, a course of action or a policy is decided upon which will reduce the conflict

between the parties. In this context the decision of the normative agent is regulated by the universality test. The latter

capacity, that of setting policy, falls to the faculty of reason.

For my purposes, the important point to make here is that on Lyotard’s reading of the categorical imperative,

the prescriptive phrase (whose executive force institutes an obligation) undergoes, by means of an act of a citation, an

autonymic transformation. In terms of Kant’s formulation, the transformation precedes the application of the

universality test. As a prescription the maxim is, accomplish an indeterminate act; as a norm the maxim is, There is a

norm decreed by x which declares: y must accomplish an indeterminate act. The addressee of the prescription may also

48
The identity of the normative agent is itself open to an equivocation. In all cases it is identifiable by a proper name.
This proper name might be that of an individual (Joe Bloggs), or it might be the proper name of a collective entity
(Athens). Where the maxim of action satisfies the universality test, it is also judged that the identity of the normative
agent is that entity which lacks a proper name (eg. Man, proletariat, Woman etc.,).
 46

be the addressor and addressee of the norm. Where the addressee acts on the prescription, he/she does so simply

because he/she is constrained, or obligated, by the executive force to do so. Where the addressee acts on a norm, he/she

does so because there are compelling reasons for the action. These reasons, as I have noted, may have a basis in

tradition or democratic institutions; the point being that the basis for the action is already principled. Thus, before the

universality test can gain a foothold in the stakes of legitimation, a principle must first be provided for the prescriptive

situation, only then can the rationality of the prescriptive event be tested.49 I now pass to the question of the application

of the universality test.

The point to be noted here, is that on Lyotard’s reading a distinction should be made between ‘the maxim of

the action’, or the ‘maxim of the will that motivates the action’, and the maxim which is the ‘norm enunciating that the

act is obligatory for the agent’. The first notion of the maxim is, as I have already pointed out, identified with the

prescriptive element of the categorical imperative. In this case the obligation arises because of the executive force of

the prescription. The second notion of the maxim is the more usual Kantian concept; and where the concept of absolute

spontaneity is thought to be an ineliminable component of the concept of the normative agent, the maxim is thought to

be a product of the deliberative process of practical reason (i.e. the maxim is made by the normative agent). Everything

that has been said above, concerning the relation of the prescriptions and norms, applies to these two concepts of

maxims. As Lyotard argues, the 'subject' of the second statement of the categorical imperative is, maxim of the will,

and its predicate is, can always also be valid as the principle of a universal legislation. Taken by itself the 'maxim of the

will which commands the particular obligation to act' may be expressed as: 'At least one subject has ruled: At least one

subject must accomplish the said indeterminate action' (LR. p.295 ). The predicate, which involves the law of

universality, names that which can always be attributed to a maxim of the will 'if the action that the will commands in

accordance with this maxim is just (or moral)' (ibid). The predicate of such a maxim will always be 'the principle of

universal legislation' (ibid). By first citing the prescription, the prescription is placed under the rule governing the

formation of cognitives (i.e. the test of universality).

The relation between the subject/maxims (norms) and the predicate/universality test is made clearer by looking

at Onora O'Neill’s reading of the categorical imperative. According to her, the categorical imperative may be broken

into two clauses. The first being, act on a maxim; the second being, through which we can will at the same time that

49
O’Neill, ibid., p.83
 47

they should be universal laws (CR 83). On this approach, the concept of action which one is dealing with is such that it

can meet certain standards of consistency. This notion of action is supported by the first clause, which is said to already

bring action within the field of rationality. ‘Acting on a maxim’ is translated in terms of Kant’s definition of maxims

(i.e. a subjective principle on which the subject acts). The agent, the one who is the addressee of the categorical

imperative, is only ever thought to act on a maxim. As O’Neill points out, it is only because the actions of the agent are

thought to be already law governed, intelligible and rational, that it is possible to apply the universality test (ibid). ‘The

categorical imperative provides a way of testing the moral acceptability of what we propose to do. It does not aim to

generate plans of action for those who have none’ (CR 84).

To appreciate what is involved in this notion of action, it is important to understand more fully what is implied

by the clause ‘act on a maxim’. First, on an incompatibilist model of agency, one of the central possibilities available

to an agent, is that he/she can discard and select maxims freely. Having said this, the capacity of the agent to be self-

determining does not ‘require an explicit or conscious or complete formulation’ of a maxim by the agent (ibid). ‘Not all

the principles of action that a particular agent might exemplify at a given time would count as the agent’s maxim’.

Further, all action, regardless of whether it is routine, thoughtless or indecisive is ‘action on some maxim (ibid).

Importantly, on O’Neill’s reading, maxims may be identified with the ‘underlying or fundamental principles’ of actions.

The adoption of maxims, she argues, is less like the adoption of a set of moral rules, than it is the adoption of ‘more

general guidelines for living’ (CR 152). To have maxims that are morally appropriate (that which is made necessary by

the universality test), requires of us that we lead the sort of life that satisfies the criteria of the categorical imperative. It

provides a guide for testing the moral legitimacy of the life styles based on maxims. In short, on O’Neill’s approach, the

clause ‘Acting on maxims’, puts forward a concept of action which is always presupposed by social practices and

institutions; universality is the rule which guides in deciding what lifestyle one ought to adopt.50

As I have already noted, on Lyotard’s reading of the second statement of the categorical imperative, an action

is credited with moral worth ( and a maxim is morally legitimate) if the principle of the maxim can also be a universal

50
I shall return to a discussion of this notion of maxims and actions again in the third chapter. There I shall explore
further, how this notion may be related to a concept of action and maxims that is developed on the basis of conflicts that
bring into question the fundamental institutions which support a way of life. The argument pursued there will be that
ways of life are not radically challenged when tested in terms of objective practical principles, but rather are only
challenged (fundamentally) in those prescriptive situations in which objective principles are themselves found wanting.
Namely, those prescriptive situations in which the fundamental life styles are orientated by the obligations instituted by
the requests of victims and outsiders.
 48

law. If the maxim is to be morally legitimate, then the predicate which must be attributed to it is that its principle ‘also

be valid as the principle of a universal legislation’ (LR. 296). On the pragmatic analysis of the categorical imperative so

far outlined, it is already claimed that it is not the universality test which neutralises the executive force of the

prescription, but rather the citation of the prescription. As O’Neill has observed, the universality test, which tests for

consistency, can only be applied to action which is principled (CR 83). I will argue in chapter three, that on Lyotard’s

handling of ‘obligation’, where it is judged that an action is based on an unconditional obligation, the foundation for

action lacks any principle. My claim here is that the citation of the prescription already involves situating an obligation

in relation to subjective principles. The normative agent who cites the prescription declares the legitimacy of the

prescription based on the subjective principles. As noted above, the universality test does not neutralise the executive

force of the prescription, but tests the rational consistency of the norms which legitimate the prescription. On this

reading, the universality test functions as a meta-norm legitimating the selection of norms used for judging the validity

of a prescription. Where prescriptions are understood to relate to conflictual situations, the universality test may be

understood to test the legitimacy of the norms used to neutralise and regulate conflict. For a brief summary of what is

involved in the universality test, I turn again to Onora O’Neill.

As noted by O'Neill, Kant’s universality test is thoroughly rational and the formulation of the categorical

imperative is not to be understood as a formulation of the Golden Rule (CR 131). According to O'Neill, the universality

test may be said to have two applications. It can be used for determination of strict or perfect duties and/or it can be

used for the determination of wide (or imperfect) duties. Where a maxim fails on the strict duty test, it is said to yield a

contradiction in conception, (CR 132) and where it fails on the wide duty test, it is said to yield a contradiction in the

will (CR 133). Where there is a contradiction in conception, the very ability to think the maxim as universally adopted

breaks down, because of some incoherence in the way the world would have to be constructed so that the maxim could

be acted on. Where there is a contradiction in the will, there is a contradiction between the thought experiment of

universalising the maxim, and ‘the background conditions of the lives of specifically finite rational agents’ (CR 133).

All of these considerations she argues are sufficient to rebut any argument concerning the empty formalism of the

categorical imperative. What should be noted concerning these tests, is that the maxim, which is the object of the tests,

is not in an imperative form. As Allison and Aune51 have shown, maxims take the descriptive form: ‘When in S-type

situations, perform A-type actions’ (KTF 90). Stated in this form, the test of universality can function to regulate the

51
Bruce Aune, Kant’s Theory of Morals, (Princeton, Princeton U. P., 1979) p.24
 49

legitimacy of the adoption of a maxim. Where, however, the pragmatic and logical form of a maxim is rethought in an

imperative form, the maxim would be the wrong logical and pragmatic type for the test of universality.

From the various critiques and attempts to justify the categorical imperative, we may add at this point that there

is some doubt as to the significance which is to be attributed to the universality test. Does it simply signify conformity

to universal law?52 Or, does it also require that its adoption be universally beneficial? The first relates to what Wood

has called the "universality of applicability" and the second to what he calls "universality of concern" or "collective

universality".53 Depending upon the significance attributed to the predicate, the test applicable to the cited prescription

will, in turn, be altered. If the “concern” test is applied, then there are relevant criteria for testing the legitimacy of a

maxim. The applicability test, however, is empty and does not provide a basis for legitimating maxims - even though

this is its aim.

As Lyotard notes concerning the test of universality, based on the expression which links the subject to the

predicate (can always be valid as ) it can be argued: that if a maxim of a will can also be the principle of a universal

legislation, then this maxim ought (it is a demand of the necessity [the ought] attributable to the universality) be

immediately judged to be communicable to any subject and should be declared to any subject. Such a maxim is thus not

simply one which an enunciating subject thinks as obligatory for themselves, they also must think that it is binding on

everyone else. As stated, this observation by Lyotard, simply reflects the requirement of rationality. Namely, if the one

who declares the norm is taken to be rational, then not only will the declaration have a basis in reason, it will also have a

basis in reasons that all other rational beings should be able to accept. As Lyotard points out, the force of the modal

verb can, especially read in conjunction with the adverb always (jederzeit - every time), cannot be construed as

'probable', or even 'of great probability', but rather as, 'it is necessary that'(LR. 296). The full expression of the second

statement of the categorical imperative is thus given as:

If at least one subject has ruled: The said subject at

least must accomplish the said indeterminate action, then
any subject whatever has ruled: Any subject whatever must
accomplish the said indeterminate actions' (ibid).

52
As noted by Korsgaard, the constraints of the principles of reason may be understood not only to supply the form of the
moral law, but also a complete determination of maxims and a totality of ends (CKE 106). On this argument, the various
formulations of the categorical imperative are not all subsumed under the formulation which set down a mere formal
requirement (i.e. that a principle of maxim be able to take the form of a law), but in turn, provide criteria for the complete
determination of maxim and the totality of ends See:Christine Korsgaard, Creating the Kingdom of Ends, (Cambridge,
C.U.P., 1996) p.44.
53
Allen W. Wood, Hegel’s Ethical Thought, (New York: Cambridge U.P., 1979) pp. 29-30
 50

The claim being made here presumes the concept of rationality, and that the subject declaring the norm is rational. The

simple point being, that where such a subject declares a norm, this norm must have a basis in reasons that can always be

adopted by other rational agents.

As I will argue later in this chapter, and in the following chapters, the deliberative process engaged in by a

normative agent may be understood as a type of the law of freedom. For Kant, the type is contrasted with the

philosophical formulation of the categorical imperative, and for Lyotard, it is contrasted with obligations instituted by

prescriptive phrases, or ethically legitimate prescriptions. On both Kant’s and Lyotard’s approach, the typified form of

the moral law may be understood as a structure of deliberation (thought under the concept of transcendental freedom)

engaged in by the normative agent. The purpose of this engagement, on Lyotard’s argument, being the determination of

an action that will satisfy a victim’s demand for justice. In this context, the universality test is construed less in terms of

providing foundations for action, than that which provides idealisations for action.54

The question which remains is whether the ends and the idealisations provided by reason, for the purpose of

testing the legitimacy of maxims, are in fundamental conflict. Where the faculty of reason is thought to be the faculty of

principles and interests, and interests are in turn defined as, ‘a principle which contains the condition under which alone

a faculty is carried out’ (CPrR 120), it may be argued that if a supreme principle is lacking, there will be an irreducible

conflict among the principles. On my reading of Lyotard, and his way of thinking the notion of genres of discourse, a

postmodern politics may defined simply as the multiplicity of the principles of reason - or as a rule of reason which is in

irreducible conflict with itself. I shall return to this issue in more detail in the next chapter. For now, however, I want

to turn to the fundamental political question of how the prescriptive and the normative component of the categorical

imperative (and thus the deliberative will) are brought into contact with one another. Is this contact brought about in

such a way that the differential between the two phrase regimen is forgotten, or is contact brought about by an activity of

reflection that both (logically) establishes the differential and (psychologically) estimates the differential on the basis of

the sublime feeling (i.e that feeling which provides a synthesis of heterogeneity)?

54
This argument is in agreement with that put forward by Rorty in, “Idealisations, Foundations, and Social Practices”,
Democracy and Difference: Contesting Boundaries of the Practical, ed. Seyla Benhabib, (Princeton, P.U.P. 1996) p. 333-
5.
 51

IV

Lyotard devotes the last part of his analysis of the categorical imperative to the modality or operator, in such a way that

(so, dass ), which links the two statements of the categorical imperative. The importance of the analysis of this operator,

both for an understanding of Kant's moral and political philosophy, and Lyotard's handling of the question of an ethical

and political legitimation, cannot be overstated. In “Levinas's Logic”, Lyotard interprets the so, dass to be an operator

of equivalence or biconditionality.55 This reading of the operator, however, alters in the Differend and Lessons on the

Analytic of the Sublime. In these works he argues that it is the als ob (as if) that also modalises the relation between the

prescriptive and normative phrases of the categorical imperative; he recognises the regulative function of the test of

universality; and he also attempts to mark out the analogical relation between the two phrase regimen (D. Kant Notice 2:

§4; LAS 230). The argument of the later works is that 'universality cannot be effectively concluded from the maxim,

but only indirectly presented to the evaluation of it' (D. ibid). I shall now look briefly at both these readings.

In “Levinas' Logic”, Lyotard argues that linked to the normative component of the categorical imperative, the

so, dass, is what comes to determine the action, otherwise indeterminate'; it is the operator which provides the axis

between an indeterminate and determinate action. This axis is between the prescription, “Accomplish an indeterminate

act”, and the norm comprised in the statement, “The maxim of your will can always also be valid as the principle of a

universal legislation”. Read as a complete statement, the so, dass operates in such a way that the notational sign of the

prescribed indeterminate action has to be replaced with the sign of a determinate action. Henceforth, it is thought, the

categorical imperative provides an objective basis for the formal determination of morally legitimate maxims and

obligatory action. The question is, in what way does the so, dass provide the linkage for determination of the

indeterminate action? And further, how is the determination thought to relate to the problem of obligation? Is it thought

to provide a basis for obligation? Or does such a determination provide a basis for an idealisation, according to which

respective legitimacies may be regulated? And is an obligation which lacks a basis in a principle of reason judged to be

without any legitimacy?

Where the so, dass is thought in terms of an operator of equivalence or biconditionality, Lyotard suggests that

there are two ways in which the operator may be read. The first, and most obvious conclusion which can be drawn, is

that any obligation which lacks a basis in a universal norm has to be treated as having no obligatory effect. As Lyotard

55
In this regard it may be said that Lyotard reads the categorical imperative as a principle which affirms the Reciprocity
Thesis: If the moral law, then freedom, if freedom then the moral law.
 52

puts it,

it is only if the norm bearing on the obligation to

accomplish an action can be decreed as a universal norm
that the accomplishment of the said action can be
obligatory. It follows that the subjective obligation is
legitimate, that is, constituting the object of a norm,
only if it can also constitute the object of a universal
norm. (LR. 297)

This judgment is made contrary to any pragmatic conditioning which a prescription might have; it is based merely on the

universalisability of the norm legitimating the maxim. Not only does the so,dass operate to provide a formal

determination of the action which is obligatory, it also functions to constitute the basis of obligations. The ought is

identified with the objective unconditioned practical laws of reason. To make this point, Lyotard expands the final form

of the categorical imperative into the following statement:

At least one subject must accomplish such-and-such action

if, and only if, one subject at least having ruled: At
least one subject must perform the said action, then any
subject has ruled: Any subject must perform the said
action. (LR. 297)

From this statement, it may be observed that the determination of both the action and the obligatory character of the

maxim of action, first takes place at the subjective level of normative agency. The normative agent provides the

principle whereby the action to be performed is determined; the universalizabilty test operates to guide in the selection

of what norm is to be used for the purpose of determining the action.

On Lyotard’s reading of the so, dass as an operator of equivalence and biconditionality, one is authorised not

only to make inferences concerning the obligatory character of actions based on the universalizability of the principle of

a maxim, one is authorised to infer from the obligatory character of the action that the maxim which supports such

action is also universalizable. On this approach, the move from the obligatory character of an action, to a deduction of

the unconditioned objective principle on which the action is based, is only made possible, by first of all assuming that an

obligation has a basis in practical reason. On this proposal, an action is thought to be obligatory only if it is law-like in

structure, character and causality. It follows from this, that if a command to do an action is received in a manner which

is immediately obligatory, then it is presupposed that the action is: (1) based on a maxim; and (2) that the principle of

the maxim satisfies the universalisability test. This proposition does not allow for the possibility that obligations have
 53

their foundation in events which are contingent and historical.

The second way which Lyotard provides of reading the operator of biconditionality is more aligned with his

own position concerning the problematics of obligation. This is so, only to the extent that it makes spontaneity the

condition of the law. On this reading, the universality of a norm is not held to be the condition of the morality of an

action, but rather, the morality of the action is held to be the condition of the universality of the norm. The argument

here is similar, but not identical, to the Kantian practical deduction of freedom. In the Kantian deduction, however, an

action is not given as the proof of the practicality of reason, rather it is the interest of respect which provides such proof.

On both Kant’s and Lyotard’s arguments, an action, since it is also a phenomena, can only be ascribed an equivocal

value. It is both the effect of a natural causality and the sign of a free causality. On Kant’s argument, the free causality

is identified with the activities of reason, while for Lyotard it is identified with the occurrence of a phrase.56

On the other hand, respect for Kant and obligation for Lyotard,57 provide unequivocal practical proof of an

absolute spontaneity. For Kant, it is the spontaneity of reason, for Lyotard, it is the spontaneity of an occurrence of a

phrase. Strictly speaking, therefore, one cannot claim on the basis of Kant’s conceptual framework that the morality of

an action is the condition of the universality of a norm, without also reading into this, that the incentive upon which the

maxim of the action was adopted is respect. Where respect is made the focus, the same goes for what may be concluded

on Lyotard’s work. Only in this case it is not respect for an objective practical principle which motivates the selection

of a maxim, but rather the alterity of the other. Where it is obligation that is in focus, nothing can be deduced

concerning the practicality of reason; obligation is simply the immediate practical effect of the alterity of the other.

To conclude, where the so, dass of the categorical imperative is thought be an operator of equivalence, this can

only be supported where the concept of obligation is already thought in terms of the categories of “law”, “character” and

“causality”. In this case obligation and the will which acts from an obligation, is already identified as a product of

practical reason. As Lyotard comments concerning a biconditional reading of the so, dass: on the first condition, the

will is determined by the pure law; and on the second condition, the law is determined by a pure will. Both

determinations involve the operation of practical reason in its pure usage: the first in its legislative capacity; and the

56
I will look at this issue in the chapter two.
57
In chapter three I will explore how obligation and respect operate in Lyotard’s philosophy. There I will argue, that at
times they become interchangeable, but I will argue that they should be given distinct roles.
 54

second in its executive capacity.58 This biconditionality may be reduced to a conditional, where the concept of

obligation is no longer thought in terms of “causality”59 etc.. In this case, the obligation instituted by prescriptions may

be thought to provide the practical conditions for the demand of a universality test, but it does not follow that a universal

principle provides the conditions of obligation. This last approach may be aligned with that of Lyotard’s, given that in

the context of Lyotard’s philosophy of phrases differends may be understood to institute an obligation that something be

done to remedy a wrong. Such an obligation puts reason into conflict over the issue of which ideal best satisfies the

demand for Justice.60

Such is the conclusion concerning the operator so,dass read as a biconditional. I shall return to similar

arguments suggested by this approach when I look at Allision’s reading of Kant’s Reciprocity Thesis in the next chapter.

For now, however, I want to move on to consider the more critical approach to the operator so, dass, read as “as if”; or

read in terms of an analogical function.

1.3 The ‘as if’ Relation and Issue of Legitimation

In the Differend and Lessons on the Analytic of the Sublime, Lyotard appears to revise his understanding of the

operation of the so,dass. He no longer deals with the operator in terms of the logical function of equivalence, but rather,

in terms the function of analogy. Instead of understanding so dass as "so that", he says, we should understand it as "as

if" (D.. Kant Notice 2: §2) - "Act as if the maxim of your will can always be valid as the principle of a universal

legislation also.” This shift of understanding has important critical implications. Unlike an operator of equivalence an

"as if" is a generic name for the differential between the respective modes of legitimating phrase regimens ( ibid. §3).

In this context the "as if" sets off a relation of analogy which makes possible a critical passage from prescriptions to

normatives. The passage is made by critical thought on the condition that one does not forget the differential of the

respective legitimations.
58
It should be noted that the division of the capacities of practical reason may also be understood in the context of
Kant’s practical philosophy as coinciding with the division between (1) Wille and Willkür, and (2) objective practical
principles and maxims (subjective practical principles).
59
For Lyotard’s comments on the function that that category of causality has to play in making the operation of
equivalence possible between the prescriptive and normative component of the categorical imperative see LR. 298-99.
Basically Lyotard argues that Kant causes the differential between prescriptions and normatives to vanish by ‘identifying
the power of the subject of practical enunciation with causality and by conceiving causality as that same category that
permits theoretical reason to form denotative expressions well’ (299).
60
I will return to this argument in the third chapter
 55

How are we to understand this change of reasoning? One way that we can understand it, is by observing a

distinction which Kant makes between the categorical imperative and the law in its “typified” form. For our purposes

(for the purposes of understanding the relation between prescriptions and normatives, Levinas’ ethics and Kantian

morality, ethics and politics) Kant’s formulation of the “typified” law is more important than the formulation of the

categorical imperative. The reason for this is that the typified law may be understood to be that which actually guides

ordinary moral consciousness in the act of deliberation; whereas the categorical imperative is the philosophical

formulation of the moral law. As Allison argues, the law of the typic is given as a rule of judgment which operates so as

to regulate moral deliberation: it is an ingredient of moral experience, whereas the categorical imperative is a principle

which is deduced analytically on the basis of the concept of transcendental freedom (KTF pp. 233-5). Accepting this, it

can be seen that the problematics of the typic is of central importance to the questions of obligation and legitimation.

Here I will approach these issues by first setting out Kant’s arguments concerning the typic and then I shall contrast this

with Lyotard’s. The aim is merely to set up the terms of a debate that will be explored again in much greater depth in

the third chapter.

It should be conceded that what is in question here is not the symmetry between a moral consciousness and

objective practical principles;61 the typic itself provides the basis for a deduction of the practicality of reason. Rather,

what is in view is the identification of the law governing the selection of maxims as a type of the moral law. Whereas

Kant would think of the subjective rule of judgment as a type for the objective rule of unconditioned practical laws,62

Lyotard, I will argue, thinks the typical character of the law in terms of the subjective obligation instituted by

prescriptive phrases. On Lyotard’s approach, the obligation which is legitimated under the rule of the moral law in its

typified form, is only a type of an obligation in its subjective form. An obligation legitimated according to a universal

form of deliberation, outlined by Kant, is thought to be merely a type of that obligation put in play when the executive

force of a prescription is current.

61
The relation between moral consciousness and practical reason may be understood in terms of a structural relation of
the normative agent, or a relation between norms and meta-norms (i.e. subjective practical principles and objective
practical principles).
62
Drucilla Cornell adopts the Kantian approach to the “as if” relation. For her the “as if” functions so as to demand a
‘hypothetical experiment of the imagination’ that is at the same time guided by a representational device of reason. The
idea of a universal humanity would be one such device, and the idea of an original contract and veil of ignorance is
another (Rawlsian) devise: see Cornell, The Imaginary Domain , ibid., p.12.
 56

II

Kant, in the second Critique, formulates the law in its typified form as:

Ask yourself whether, if the action which you propose

should take place by a law of nature of which you
yourself were a part, you could regard it as possible
through your will (Cpr R 5:69)

What then are we to understand from this formulation of the moral law? What distinguishes it from the moral law as

formulated in the categorical imperative? Part of the answer to these questions is given in the statement which

immediately follows the above mentioned quote. Kant says ‘Everyone does, in fact, decide by this rule whether actions

are morally good or bad’ (ibid). As such, the formulation of the “first order” is not philosophical (as it is in the

categorical imperative), but rather factual; it is thought to be of the moral law as it operates in ordinary human reason.

It is to be noted, as Allison has pointed out, that the formulation provided is not of a moral law that is the presupposition

of moral experience,63 but is of a law that is an ingredient in all acts of deliberation (KTF 235). In short, the

formulation provided is expressive of a rule of judgment which is operative in all acts of moral deliberation.

The next point to note concerning this formulation of the moral law, is that in stating that the rule, in its

typified form, is that which ‘everyone’ operates under, Kant is not claiming to construct a human consciousness, but

rather to be describing a fact. The consciousness described is thought to be a brute given that cannot be derived from

higher principles or deduced from a concept of agency. Accordingly, the brute fact is not a consciousness of an express

and distinct principle, such as is formulated by the categorical imperative, rather, as Allison points out, it is a

consciousness of

particular moral constraints as they arise in the process

of practical deliberation, with the law serving as the
guiding rule (decision procedure) actually governing such
deliberation. (KTF 233)

These constraints are precisely those placed on the deliberative process by a moral judgment, and hence, by the moral

law in its typified form.

63
As would be the case if the moral law held the same relation to moral experience as the categories of understanding
do to experience.
 57

The next point to note concerning the typified moral law is the central position which it holds in providing

proof of the practicality of reason. It is one thing to claim that a consciousness of constraints in the act of deliberation is

a brute fact which no-one can dispute, but it is another to claim that this consciousness is (practical) proof of the

practicality of pure reason. On Kant’s argument, the typic operates to substantiate the argument that the consciousness

of constraints is a fact of reason. The rule of judgment is said to be both a product of practical reason and sufficient to

motivate and provide an interest for the selection of maxims. To argue that the consciousness of the constraints in

question is a fact of reason cannot be deduced a priori, but requires a synthetic judgment concerning the necessary

relation between the fact and reason. As Kant says in a Reflexion, ‘Something must therefore be given, which can stem

only from it [reason]; and its [reason’s] possibility can be inferred from this reality’ (Quoted in KTF 234 - parenthesis

mine). For the purpose of finding a fact that could prove the practical reality of reason, no object of experience is

adequate, but what is adequate is ‘the mere character [Denkungsart] and disposition based on principles’ (ibid). This, of

course, is what a consciousness of deliberation is said to be.

For Kant, of central importance to the deduction of the practicality of reason is the assumption concerning the

type of consciousness involved in the connection between the “consciousness of constraints”. This deduction could not

be carried through if it were not assumed that the typified formulation of the moral law were somehow representative of

the constraints which are felt. But further, the deduction from the constraints to reason rests on an assumed nexus

between the categorical nature of the constraints and the rationality of the agent being constrained. Namely, the

constraints are said to be categorical, and because the categorical nature of the constraints have to appeal to the

rationality of the one being constrained, they have to be expressed not only in a principle, but also in a principle which is

unconditioned and universal. If the one who is constrained is only constrained as a rational being, then it follows the

categorical nature of the constraint has to rest on its rationality. No appeal, for example, can be made to the obligatory

character of a gift.64 What is obligatory, or can be obligatory, is regulated according to a concept of rationality.

Likewise, it is also important to consider that a deduction concerning the practicality of reason is also a

deduction of the autonomy of reason; and where the agent in question is thought to be rational, it is also a deduction

concerning the autonomy of the agent. Once again, this deduction is made possible because of the nexus between the

constraints and the rationality of the agent. Because the agent is rational, the constraints must not only be rational

64
Georges Bataille, “The Notion of Expenditure”, The Bataille Reader, ed. Fred Botting and Scott Wilson (Oxford,
Blackwell Publishers, 1997), 172
 58

(insofar as their principle conforms to universal laws) in order to be categorical, but the consciousness of the rationality

of the constraints is sufficient to provide an interest in executing an imperative. Once again, this model does not have

any room for a notion of a law being able to provide an incentive for maxim selection etc., other than one which has a

basis in a principle of reason. According to Kant’s reading of the constraints on the deliberative process, it is possible to

say that a moral consciousness is the consciousness of standing under norms (maxims) whose selection is regulated and

guided by the meta-norm (the moral law) in its typified form. Moral consciousness is a consciousness of constraints,

and all the constraints are products of practical reason (i.e. maxims and the moral law in its typified form).

For Kant, the as if function (of the typified formulation of the categorical imperative) does not operate

between, what Lyotard calls, a prescriptive and a normative phrase regimen, but between two levels of normative

phrases. By treating the principle of the maxim as if it were a constitutive principle of nature, it is then judged whether

or not the action involves a contradiction. Importantly, what is being judged under this test is the rationality of the norm

used for legitimating action. In this case, the as if articulates a regulative relation between the meta-norm and the

norms. It guides the faculty of judgment in its manner of testing the validity of the norm. All in all, this is an operation

that is carried out under the conditions of an autonomous will. The as if has the function of articulating a demand of

reason for consistency, in forming the basis for selecting the maxim: in selecting a maxim, the agent must treat the

principle of the maxim as if it were a universal law of reason, and the agent must adopt the principle because he/she can

act under it (without contradiction) as a universal law of nature. Such is a broad summary of the way in which the typic

is said to operate in Kantian moral philosophy. I shall now turn to Lyotard’s approach to the typified moral law.

III

On Lyotard’s approach to the typic, and on his reading of Kant, the problematic of the typic is for the most part reduced

to the issue of discussing the differential between the prescriptive and normative elements of the formulation of the

typified moral law; the differential between these two elements being articulated by the operator als ob (as if). What

should be noted, as is the case with the categorical imperative, is that Lyotard does not alter Kant’s formulation of the

typified moral law; but he does alter the way in which it is interpreted. This shift of interpretation is enough to allow a

complete rethinking of what is involved in the deliberative act.

Considering Lyotard’s position in relation to a Kantian interpretation of the as if function, Lyotard would not
 59

deny the possibility of an incompatibilist model of agency; it is speculatively true that the agent is free to select maxims.

Nor would he deny, for that matter, the validity of the regulative function of the as if (analogical) in relation to the test

of universality; namely, treating the principle of one’s maxim as if it were a universal law of nature. Lyotard would say,

however, that on a pragmatic analysis, this function of the as if does not have any critical value since it does not mark

the differential between heteromorphous phrase regimen. The relation between the two levels of norms is isomorphic.

Further, where Lyotard does differ is that he would argue that the as if operator also functions to mark the differential

between the prescriptive and the normative phrase regimen. To grasp how Lyotard arrives at this conclusion it needs to

be understood that Lyotard identifies the moral law, not with a norm or meta-norm, but with the “quasi-fact” of

obligation as it is instituted by a prescriptive phrase (D. Kant Notice 2: §2).

On Lyotard’s approach, the analogical operation of the as if is brought into sharp focus if we look at the

operation of the so, dass and the als, ob, in both the typified and the philosophical formulation of the moral law.

Furthermore, by paying careful attention to various levels of legitimation operating in both expressions of the moral law

it is possible to see that what is at stake is not the relation between a prescriptive situation on the one hand, and a moral

and republican mode of legitimation on the other; but also, the relation between the prescriptive situation and various

modes of legitimation (i.e. republican modes, legitimated in terms of the Idea of Freedom and narrative modes which

are authorised by the proper name of a collective). I might also add, that what is at stake in the moral law, in its typified

(and philosophical) form, is an understanding of the relation between a narrative and republican or cosmopolitan form

of politics.65 What then, according, to Lyotard, is the significance of the as if operator in the context of these various

formulations of the moral law?

As I noted above, Lyotard attributes to the as if a critical function. He does this because, on his analysis of the

categorical imperative, the as if articulates an analogical relation between a prescriptive and normative phrases. The

prescriptive element is identified with the command Act, and the normative element (which may be understood to be

composed of two normative levels) is identified with The maxim of your will can always also be valid as the principle of

a universal legislation. In its typified form the second statement of the moral law is, The maxim of your will can take

65
I shall develop these terms in more detail in chapter three. Here I point out that a narrative politics may be identified
with and is constituted by subjective practical principles which do not so much prescribe how one ought to act, but
establish patterns or life forms which have a legitimacy in the past and are supported by the pragmatics of narratives.
Such communities are not regarded as ethical but rather, are thought of as natural - their reality can be established
according to the rules governing the formation a narrative phrase.
 60

place as a universal law of nature. What is important to note, is that on Lyotard’s pragmatic analysis the categorical

imperative is identified with the prescriptive Act, while the typified form of the law is identified with a meta-norm (i.e.

the test of universality). This can be observed from the following statement:

How, and at the cost of what transitions, the maxims of

ethical action, the categorical imperative, as Kant
writes in the second Critique, ‘must withstand the test
of the form of a natural law in general’, i.e. how and at
what cost the pure ‘Act’ is accompanied by the analogical
‘so dass meaning “in such as way that” and /or “as if”)
the maxim of your will could be laid down as the
principle of a universal legislation’.(LR. 398)

On this approach, therefore, the as if is not only thought to articulate the differential between the prescriptive and

normative phrase regimens, and prescriptive and cognitive phrase regimens; it is also thought to articulate the

differential between the moral law, the categorical imperative and ethical prescriptions on the one hand, and norms

(both particular and universal), the form of a cognitive rule, and universality on the other.

Cast in these terms, the as if has the critical function of articulating the differential between obligations which

have immediate validity under a moral law, and those obligations which are judged, in Kantian terms, to be morally

legitimate. On Lyotard’s argument, the as if might be said to be the ‘generic name’ of the differential between a

prescriptive and normative/cognitive mode of legitimation. On the side of the prescriptive phrase66 there is an ethical

mode of legitimation; on the side of the normative phrase there are the moral and political modes of legitimation (and

there are two modes of political legitimation - narrative and republican/cosmopolitan). As noted above, the prescriptive

element commands that an indeterminate act be accomplished, and that the normative element functions by means of so,

dass to determine the action which must be accomplished.

Put in simpler terms, a situation which gives rise to requests by victims is such that it demands that something

be done (some indeterminate act be accomplished) to afford political and juridical justice to the victims; the normative

component comes to determine what must be done to afford political justice to victims. Where the decision as to what

has to be done is based on traditional values and institutions, the decision concerning the selection of the subjective

principle is authorised by the proper name of the collective.67 Where the decision as to what has to be done is based on
66
Now identified by Lyotard with the moral law. Although because this notion of the moral law does not have its basis in
principles of practical reason, but in differends and requests - just exactly what instance are going to give rise to
unconditional obligations is left unpredictable and nondeducible.
67
I will return to this issue again in the third chapter. The analysis put forward here is based on Lyotard’s pragmatic
 61

a reflection on the subjective principles, as principles which have been made, rather than given, the determination of an

action is also guided by the test of universalisability. This mode of legitimation is authorised by the Idea of freedom. In

all cases, the determination of what must be done involves the transition between the prescriptive and normative phrase.

It is this transition that Lyotard identifies with the type (D. Kant Notice 2: §3). A number of factors need to be noted

concerning Lyotard’s understanding of the transition.

(1) In the transition between the prescriptive and normative phrase, as Kant points out, the natural law serves

as a type for the law of freedom (CPrR 5: 70). Lyotard does not interpret this to mean that the moral law in its actual

usage is a type of the abstract formulation of the categorical imperative; but rather that the moral law, both in its typified

form and abstract form (as formulated by Kant), are a type of the moral law in its prescriptive form (i.e. as that law

which institutes immediately, apart from the question of the legitimation by a principle, the feeling of obligation). (2) In

the transition, the natural law does not only serve as a law of freedom, but also as a type of cognitive rule (LAS 230).

As Lyotard points out, in order to make a determination concerning the moral worth of an action, the form of the law is

‘borrowed from the form of a conceptual, cognitive rule, and transposed analogically into the practical realm’ (ibid). In

being formulated as a type of the rule of knowledge, the typified form of the law of freedom retains from the conceptual

rule only its universal validity. On Lyotard’s argument the effect of this transition of universality from the cognitive to

the ethical realm is to reduce the determined character of the rule and to provide it with a regulative function.68 (3) In

the transition, Lyotard argues, that the concept of understanding (i.e. causality) is transformed into an Idea of reason,

and phenomenon (i.e. human actions) are grasped as signs of a free causality.69 (4) In the transition, a judgment

concerning all human action is subject to the equivocation spelt out by Kant’s third antinomy. The same action which

can be judged in terms of a natural causality, can also be judged to be a sign of a free causality.

Perhaps the most important point to note concerning the transition between the prescriptive and the normative

phrase, is that the typic, as Kant formulates it, introduces the Idea of a supersensible nature and ethical community into

the entire problematics of obligation and will (D Kant Notice 2: §4). The importance of this aspect of the transition, not

analysis of a politics identified with the narrative genre of discourse. Under the rule of such political forms, norms are
authorised by the proper name of the collective entity (Greek, Athenian, French etc) D Plato Notice: §1; §160; §199;
Cashinahua Notice).
68
This point could be challenged, since it is only in its logical operation that universality retains a determined character,
in relation to the synthetic judgments required for the formation of a cognitive phrase, universality only has a regulative
function.
69
It can also be said that this transformation of the concept of causality is required not only of reason in its practical use,
but also in its speculative use. In the context of Kant’s critical project, freedom is first introduced so as to satisfy a
logical demand of reason for completeness.
 62

only for an understanding of a Kantian practical philosophy, but also for a Kantian historico-political philosophy, cannot

be overstated. Its importance for understanding the problematics of obligation and the will in Lyotard’s philosophy of

phrases, also cannot be overstated. It is in the context of this aspect of the transition that the threat of an illusion

becomes most pronounced.

The problem with the transition, as with all transitions between heterogeneous phrase regimen, is that it brings

with it ‘the threat of a transcendental appearance’ (ibid. §5). As noted, the as if has a critical value where it functions

not to extend one mode of legitimation to another, but to mark out the respective modes of legitimation. As Lyotard

points out, the analogy resulting from the als ob succeeds in being critical

if the modes of forming and of validating phrases are

distinguished and if the fully disclosed differend can
thereafter, following Kant’s hope, be transformed into a
litigation. The as-if depends upon the transcendental
imagination for the invention of a comparison, but it
depends upon the faculty of judgment for its regulation.
(Kant Notice 2: §3)

On the other hand, the analogy resulting from the as if ‘is an illusion’ when the differences or differend between the

respective legitimations are forgotten or smothered. According to Lyotard, this last effect, is precisely what the ‘analogy

of legality introduces through the type’ (ibid. §5).

Through the analogy of legality, he argues, it is forgotten that the only ethical community is the I/you of the

prescriptive phrase: moreover, as I have noted it is an I/you relation which is formed according to the metaprinciple of

alterity. As Lyotard notes concerning the moral law in its typified form:

If the maxim of your will ought to be able to be set up

as “a universal law of nature,” to constitute “a
universal legislation,” it is apparently because the
dissymmetry between I and you ought to be disregarded for
the benefit of some universal , “humanity,” the we of
exchangeable I’s and you’s: “Act so that you treat
humanity, whether in your person or in that of another,
always as an end [. . . ],” “as if [you] were at all
times a legislative member in the universal realm of
ends’. They are thus exchangeable not only upon the
instance of the obligated one, the you of the You ought
to, in order to form a community of hostages, but also
upon the instance of the legislator, the I of the I am
able to, in order to form a community of constituents.
(Kant Notice 2: §5).
 63

The problem for Lyotard is not with the as if operator, but the analogy and the comparison invented by the

transcendental imagination. The analogy is said to be based on the presupposition that the dissymmetry between the

I/you of the ethical community (i.e. that “community” which is presented by the prescriptive phrase universe) can be

reduced in terms of a principle satisfying the universality test. The problem with Lyotard’s argument, however, is that

the analogy of legality, for Kant, does not operate between prescriptions and norms but between two levels of norms.

Kant can, through the type, introduce the analogy of legality simply because what is being tested are subjective practical

principles, or empirical practical laws. On Lyotard’s own arguments, it is possible to say that the community instituted

by such norms is not the I/you of the prescriptive phrase, but the we of a natural community identifiable by the proper

name of a collective. In this respect, the analogy of legality fits because it operates to test the consistency of the

reasoning implied in the subjective principles.

Thus, insofar as Kant constructs the analogy of legality to make a passage between local and universal

normative communities, one can say, on Lyotard’s own arguments, that this analogy has critical validity. The

differential which the analogy marks out is between communities instituted by two levels of hypothetical constraints and

not the differential between communities instituted by categorical constraints on the one hand and hypothetical

constraints on the other. Kant’s analogy of legality is not therefore based on the presupposition that the dissymmetry

between the I/you of the ethical community (i.e. that “community” which is presented by the prescriptive phrase

universe) can be reduced in terms of a principle satisfying the universality test. Rather, it is based on the presupposition

that the most basic practical relation is one which is already regulated in terms of subjective practical principles. Kant

does not allow for the possibility that I/you relations exist which are not already regulated by a norm; even less would

Kant consider that such I/you relations could constitute the pragmatic conditions for categorical constraint. Thus, if

Kant constructs the analogy of legality it is not because he thinks it is possible to reduce relations of dissymmetry, but

rather because it does not occur to him that such relations exist.

Having said that, one can certainly agree with Lyotard that a transcendental illusion is introduced through the

type where it is thought an ethical community may be constituted on the basis of the operation of deliberation. But this

is the case whether the moral law is identified with Lyotard’s ethical prescription, or with Kant’s various formulations

of the moral law. In both cases what is at stake is proof of a free causality. According to the critical resolution under

the Third Antinomy, no object of an intuition can be provided that would unequivocally be the effect of the causality of
 64

an absolute spontaneity. Insofar as an action occurs, or a maxim exerts itself in the field of experience, both events may

be explained in terms of a natural causality (or at least in terms of a past which is itself conditioned, and so on).70 In

this regard it is possible to say that ‘there is no ethical community’ (D.Kant Notice 2: §6). This is so, however,

regardless of whether the ethical community is identified with the irreducible I/You or a universal We of autonomous

agents. In both cases it is possible to argue that the foundations of the constraints forming such communities is never

given, but rather that it is only “felt” in obligation and respect - and as a secondary effect in the feeling of the sublime.

None of these “feelings”, or “events” on Kant’s argument, are objects of experience - yet they are signs of an

unconditioned causality.

The real question from Lyotard’s point of view concerning the appropriateness of the analogy of legality rests

on his pragmatic analysis of the conditions of a categorical imperative. On this analysis, both the formation and

legitimation of an unconditional ‘ought’ are tied to the pragmatic condition that the dissymmetry between the addressor

and addressee of the prescriptive phrase is not reduced. Where the addressee seeks to put him/her self in the position of

the addressor by means of citation or reflection this results in the reduction of the categorical affect of the ought; in

short, it results in the reduction of the feeling of obligation. On Lyotard’s argument, the I’s and the you’s of the

prescriptive phrase are only substitutable if a third party conceives of the whole which they form on the model of a

nature. This third party may even bear one or both of the names of the addressee and addressor of the prescriptive

phrase and thus may immanently reside in the supranatural world of the prescriptive phrase, but insofar as he/she even

conceives of this supranatural world, settling, for example, its relations in terms of a supranatural world of obligated

legislators, the third party escapes the ethical situation of being obligated (Kant Notice 2: §5).

In terms of Lyotard’s philosophy of phrases the threat of a transcendental illusion is not merely linked to the

issue of how one provides proofs of a free causality and thus an ethical community, but also to the problem of how one

provides an ethical legitimation of a prescriptive phrase. The transcendental illusion occurs where the modes of forming

and legitimating phrases are forgotten or smothered over. The real problem, therefore, from Lyotard’s point of view,

concerning the analogy of legality is that it functions so as to impose the rule governing the formation and legitimation

70
Where this argument is dealt with in terms of Lyotard’s philosophy of phrases the categorical effect of the law is not
thought to be able to exert itself in the field of experience without also reducing the mode of linkage to the if. . . then type
of linkage. As Lyotard says concerning Kant’s claim that practical reason becomes, in the field of experience, an
efficient cause through ideas, two things are possible: either this field is the referent for all if . . . then linkage, and then
absolute spontaneity has no place there; or else, the absolute spontaneity of freedom finds its place there, and then its
form obeys the if . . . then type, and the imperative is not categorical (D Kant Notice §2).
 65

of cognitive phrases on that of prescriptives. According to Lyotard, on a pragmatic analysis the rule governing the

formation and legitimation of cognitive phrases is the ‘rule of consensus and of exchangeability between partners, the

rule of dialogue’ (D Kant Notice 2: §5). Where the ethical legitimation of a prescription is worked out in terms of the

requirement that the maxim of the will ought to be able to be set up as a universal law of nature, the analogy of legality

functions to impose the rule of consensus on the question of the ethical legitimation of prescription. The political model

which results is one in which universal rights function to legitimate the positive laws of the state. Without denying the

place of a liberal politics, Lyotard would add to this the very practical role which situations of difference or differends

play in the formation of a deliberative will. Whereas rights help to determine the rational consistency of a maxim of

action, situations of difference provide the unconditional imperative that action must be taken.

It may further be argued, that where the ethical community is treated as if it were a natural community the

differend expressed in the I/You relation is made the object of a cognition. If the I/You relation is not an object of

experience, and if the only mark of the differend is a feeling which is not the object of an experience, then it follows that

such a relation cannot, without reducing it, be made the object of a cognition. In such a case it is not merely the

pragmatics of a narrative genre which operates as if the ethical community were a natural community, but also a

deliberative genre of discourse which tests a principle regulating the relation to see if it can be universalised as a law of

nature. On this approach the I/You community is treated as if it were already natural and rational, and that all that is

required so as to make a We, is that the principle governing the terms of the relation be universalisable. The problem

with this argument, however, apart from the most obvious problem of treating the supranatural world of the prescriptive

phrase universe as if it were natural, is that the rationality of local communities varies according to ends, and that not all

communities appeal to an Idea of Freedom as a way of legitimating norms. Traditional societies should not be treated as

simply belonging to a history which has a cosmopolitan trajectory; to do so results in the imperialism of one form of

legitimation over the rest.

All citations, commentary and reflection on the legitimation of a prescription will have the inevitable result of

reducing ethical legitimation to cognitive legitimation and in turn introducing a transcendental illusion. The Kantian

analogy of legality can only have critical validity where it is used to test the rational consistency of subjective norms. It

cannot, on a pragmatic analysis, have critical validity where it is used to test the ethical legitimacy of prescriptions.

Such an application results in the failure to be sensitive to the prescriptive mode of phrasing. The only safeguard,
 66

according to Lyotard, against the subjugation of the rule governing the ethical formation of prescriptions and its

attendant illusion is that one ‘phrase ethics ethically, that is, as someone obligated, and not as a scholar, be he a critical

one’ (Ibid).

If the analogy of legality, introduced through the type, proceeds by treating the ethical community as if it were

a natural community, this is because the I/you ethical community has already been brought together under a subjective

principle, which Kant calls a maxim. On Lyotard’s argument, concerning the politics identified with the narrative

genre of discourse, it is possible to extend Kant’s notion of a maxim to include a narrative pragmatics.71 It can be

added, therefore, that if the analogy of legality only proceeds by treating the ethical community as a natural community

(one which can be made the object of a cognition), it is because the I/you relation has already been brought together

under principles authorised by a collective entity (a we) identifiable by a proper name. On this reading the analogy of

legality operates to test the validity of norms which otherwise have authorisation in the weight of tradition. The

analogy of legality is thus appropriate for testing the rational consistency of all forms of received wisdom. It is not,

however, as noted above, appropriate for instituting categorical imperatives. Norms may pass the test of

universalisability but for all that such norms can only institute hypothetical imperatives. The supranatural realm of

categorical imperatives is not, according to Lyotard, instituted by well formed public opinion; it is not the result of a

well formed consensus. Rather, categorical imperatives can only arise in a supremely private mode of phrasing, of the

same nature as a Wittgensteinian idiolect (D. §164); in that mode where one party feels themselves to be obligated

before any normative basis for the obligation is found. Situations of radical difference or plurality provided by

postmodern Western democracies institute the practical conditions under which such obligations may occur.

The question remains, is there a more appropriate analogy than the one of legality which can be introduced

through the type? This issue will be explored further in the following chapters. Suffice it to say here that what is

required for the purposes of articulating the differential between prescriptions and norms, is neither a politics which is

authorised by the proper name of a collective entity, nor a politics which is authorised by the Idea of an autonomous

universal humanity. Rather what is required, so as to respect the differential between prescriptions and norms, is a

political model which is authorised by the I/you ethical relation. Fundamentally, the analogy required is not one which

introduces objective principles and legality into the ethical relation. The I/you ethical relation is that which institutes

71
As I will argue in third chapter, Onora O’Neill does something similar by interpreting Kant’s notion of ‘maxim’ in terms
of an Aristotelian ethics - see (CR ch8)
 67

obligations and yet it is, by definition, without a single principle to regulate the terms of the relation between the I of the

I am able to, and the you of the you ought to.72 The obligation is one which proceeds from the differend between the

parties. The question is, therefore, whether a political and normative model can be developed that can do justice to the

differential between prescriptions and norms? In the coming chapters I will seek to develop a model of a deliberative

democracy which can do justice to this differential.

The main principle which has to be preserved in constructing an analogy between the prescriptive and the

normative phrase regimen is the subjective principle of alterity. The political model demanded, therefore, is one which

stands in stark contrast to the Kantian model of moral agency which is formed according to the principle of autonomy.

The important feature that would seem to be required by a political model formed according to the principle of alterity,

is that it have as its constituting element unconditional obligations which have no basis in practical principles - either

constitutive or regulative of a political experience. Rather, what would seem to be required is a political model which

selects principles out of respect for those obligations put in place by the mere requests of persons lacking rights and the

ability to prove damages within the existing legal structures. In the coming chapters I seek to develop a model of a

deliberative democracy, based on an ontological concept of freedom and the problematics of the phrase, that satisfies

the demand of the principle of alterity - in short I will seek to develop a model of the deliberative will that is respectful

of the freedom of the other.

72
See Table 1.1 and 1.2
73 But, as Mark Poster points out, the aim of decentering the subject can be identified with a much broader trend within
in modernity. He suggest just some of the high points of this tradition. Mark Poster, Existential Marxism in Postwar
France: From Sartre to Althusser , (Princeton, P.U.P., 1977) p.318. “The aim of ‘decentering’ human experience, of
eliminating the egoistic illusion of man’s location at the metaphysical centre of things, was not new with structuralism.
Copernicus “decentered” man and his planet from a privileged place in the universe; Darwin “decentered” the human
species, placing it in an evolutionary chain of biological forms; Freud “decentered” the moral concept of the ego as the
autonomous agent of the personality. Continuing in the line of man’s detractors, structuralism decentered man from his
own meanings; the conscious subject was displaced from the centre of social activity.”
 68

CHAPTER TWO

TRANSCENDENTAL FREEDOM AND THE DELIBERATIVE WILL

ALLISON’S AND LYOTARD’S APPROACH

In this chapter I want to continue to look at Lyotard’s reading of Kant and the ways in which he

rethinks some of central themes of Transcendental Idealism. To do this I shall be comparing and

contrasting Lyotard’s reading of Kant with Allison’s (more hermeneutically sensitive) reading, in
order to show how Lyotard is resituating some of themes of transcendental idealism in terms of a

post-humanist philosophy of phrases. To a large extent I shall use Allison’s reading as a type of

proxy for the humanist Kant that Lyotard wants to critique and rethink in terms of the more general
structuralist aim of “decentering” the human subject.73

Lyotard’s reading of Kant is such that Kant is at once seen to provide an epilogue to
modernity and a prologue to an honourable postmodernity (D xiii). For Lyotard, Kant provides a

basis on which we can rethink both a model of rational and moral agency. More particularly, these

same themes can be related to a way of reconceptualising a rational deliberative process. This
argument has importance for deliberative models of democracy and for what Lyotard calls a

republican politics. The way in which we shall approach these issues in this chapter is through the

‘Incorporation Thesis’ and ‘Reciprocity Thesis’, as Allison dubs two crucial models in Kant’s
 69

philosophy. Under these theses conceptual claims are advanced concerning the types of models of

rational and moral agency which have to be adopted if we want to take ourselves as genuine
rational and moral agents. In both cases what is advanced is a conceptual claim concerning an

incompatibilist model of agency. Fundamental to these claims is the conditional argument that, if

we want to take ourselves to be genuine rational and moral agents, then we shall have to include as
an ineliminable component in our concept of agency, transcendental freedom. In this chapter we

shall explore the claims made under these theses as developed by Allison.

The significance of Allison’s approach for us is that while it attempts to take seriously the

claims made by Kant concerning agency, it also avoids making any metaphysical claims concerning

the noumenal character of the agent. In many respects Allison is much clearer than Lyotard
concerning the regulative role that is to be given to a concept of freedom as absolute spontaneity

and autonomy. I take Allison’s argument’s concerning the regulative function of the

incompatibilist models to be of major significance for how we are to think through the issue of
modelling the empirical activities of a deliberative democracy. Furthermore, Allison is also much

clearer than Lyotard on the question of the type of concept of freedom necessary for the

development of a model of rational and moral agency. Allison makes it clear that when it comes to
developing a concept of rational agency, it is only necessary to include in this concept the bare idea

of absolute spontaneity; a concept of rational agency does not require a concept of freedom as

autonomy. Furthermore, to have a concept of a self-legislating agent does not require a concept of
autonomy. Autonomy is only required for a concept of moral agency where the agent not only acts

on imperatives supplied to it by reason, but reason also supplies the incentive for the action.

The significance of these arguments for a republican politics will not be taken up in great

detail in this chapter, but it is implied that what pertains to an incompatibilist model of rational

agency also applies to a republican politics. More particularly, what is said concerning an
incompatibilist model of rational agency may also be taken to apply to a concept of sovereignty as

it is thought in relation to deliberative democracies and a republican politics. We shall return to

these issues again in the next chapter. Here all that I want to point out is that the conclusions which
 70

are made concerning the deliberative will may also be said to apply to a concept of ‘popular

sovereignty’ or ‘the people’.

In the sections in this chapter which focus on Lyotard’s work, what I aim to do is think

through the conceptual relations that are implied in the models of a deliberative will developed by
Allison in terms of what Lyotard calls the problematics of the phrase. To a large extent this task

involves thinking the spontaneous ground of deliberative action, not in terms of activities of reason,

but rather in terms of a spontaneity of the occurrence of a phrase. By doing this, the problematics
of deliberation and will is shifted away from phenomenological concerns and rethought in terms of

an ontology of a phrase; likewise, transcendental freedom is dealt with in terms of an ontology and

not a cosmology. The significance of this shift for a practical philosophy is immense; in effect,
what is accomplished by this move is the divorce of unconditional practical laws (and thus the

categorical imperative) from practical reason. Instead, unconditional practical laws are identified

as the immediate (practical) consequence of instabilities/differends in language. On this argument,

unconditional practical laws are the immediate (practical) consequence of a spontaneity in language

(i.e. the spontaneity identified with the occurrence of a phrase).

2.1 The Incorporation Thesis

I
According to Allison, the Incorporation Thesis is integral to a concept of rational agency which is

foundational to the structure of Kantian practical philosophy. As Allison points out, the model of

agency supported by the Incorporation Thesis is crucial to an understanding of the central

(practical) notion of interest and much of Kant’s moral psychology (KTF 249). Furthermore, and

looking ahead to the next chapter, the Incorporation Thesis plays an important part in

understanding Kant’s arguments concerning the demonstration of the practical reality of freedom
(ibid). As we will see, it is only on the basis of a rejection of a naturalistic account of rational

agency that one can maintain the possibility of autonomous action or a consciousness of action

from duty. On this reading, absolute spontaneity, and with it the Incorporation Thesis, must be
 71

presupposed by every act of rational agency. Since acting from duty is a species of acting,

autonomy must presuppose spontaneity, and the Reciprocity Thesis must presuppose the
Incorporation Thesis. The argument is that an agent can only act from duty if the transcendental

freedom of the agent is presupposed. Here, what I shall limit myself to is Allison’s reading of the

concept of rational agency that is developed in terms of the Incorporation Thesis.

According to Allison, Kant’s concept of freedom as spontaneity ‘is clearly expressed in the

Incorporation Thesis’(IF 130). This thesis, he argues, must be thought as providing a model of
agency that is at once ‘nonempirical’ and normative. It is nonempirical simply because the actions

described by thesis are not phenomena but are Ideal or intelligible; it is normative because it is

only in the light of the model ‘that we regard ourselves as acting on the basis of reasons and,
therefore, as subject to evaluative norms (whether moral or prudential)’ (IF 134). On Allison’s

analysis, under the Incorporation Thesis, the thought of transcendental freedom functions

regulatively in a concept of ourselves as rational agents with an empirical character. The

Incorporation Thesis may be defined in terms of three conceptual claims: (1) a claim about rational

agency in general’ (ibid); (2) a claim concerning the relation of rational agency and the moral law;

and (3) a claim concerning the absolute spontaneity of the will.

Here we will be primarily concerned with the exposition of the conceptual claim that if we

are to take ourselves as genuine rational agents then we must necessarily regard our decisions and
our action under the Idea of Freedom. In general the claim which is being made is that the ‘act of

incorporation’ has its basis in the absolute spontaneity of the will (IF 132). To understand what is

implied by this claim and to approach Kant’s concept of rational agency we need to have an
understanding of the importance of both the concept of freedom as absolute spontaneity and a

degree of familiarity with Kantian Transcendental Idealism.

II

According to Allison, we cannot begin to understand Kant’s concept of rational agency without

also engaging with Kantian Transcendental Idealism. Allison argues that that the transcendental
 72

distinction developed in the first Critique is not between two worlds, or two objects, but rather

between two points of view (or even more simply, two descriptions) (KTF 4). Allison calls his
approach to Kantian Transcendental Idealism the ‘two-aspects’ approach. The central claim which

is made under the two-aspects approach, is that a single occurrence (a human action) can be

considered from two “points of view” (ibid). As Allison acknowledges, this reading of Kant runs
into problems with Kant’s attribution of a double character (empirical and intelligible) to a single

agent. Allison argues, however, that these problems can be overcome if: (1) we read the dual

character to be one which applies to rational agency; and (2) that the contrast between the
characters (empirical and intelligible) be understood to be between two competing models of

agency (KTF 5). The empirical character of rational agency ‘amounts essentially to the familiar

belief-desire model; while the intelligible character of agency, which ‘appeals to the spontaneity of
the agent as a rational deliberator’ provides an incompatibilist model. The essential claim which is

made under the incompatibilist model is that ‘spontaneity is an ineliminable component in rational

agency’; this claim, Allison comments, is precisely the argument put forward under the
“Incorporation Thesis” (ibid).

From a theoretical perspective (the perspective of the first Critique) the possibility of
thinking the idea of freedom arises quite independent of any moral concerns and independent of

concerns regarding rational agency. As Kant states in the second Critique, as far as the possibility

of thinking the unconditioned as absolute spontaneity, it arises as an ‘analytical principle of pure

speculation’ (CPrR 5:48;50). Having said that, however, on Allison’s reading of the Third

Antinomy, a conceptual claim is advanced concerning the actions of rational agents and the

necessity of the idea of freedom for a concept of ourselves as genuine agents.

This conceptual claim, Allison argues, is not dropped by Kant in the context of developing

a practical philosophy. Rather, he says,

Kant assigns a necessary regulative role to the idea of

freedom with respect to a conception of ourselves as
rational agents. So construed, this idea is necessary
from a practical point of view in the sense that it is a
 73
condition of the very possibility of taking a practical
point of view. (KTF 247).

Taking ourselves to be acting under the idea of freedom is the very presupposition which is said to

make possible the moral standpoint. Without this (equivocal) epistemic starting point the issue of

legitimation would not be raised in a way which makes the deduction of the categorical imperative
possible74 ; in short, the Reciprocity Thesis75 would not stand if the type of freedom affirmed in

that thesis were not already thought to be transcendental.

If, however, the first Critique makes a conceptual claim concerning the necessity of the idea

of freedom for a concept of ourselves as rational agents, the second Critique goes much further

than this. First of all, as Allison points out, all ambiguity76 concerning the concept of freedom is
lost (KTF 247). On the basis of the “fact of reason” it is deduced that the type of freedom in

question is transcendental. Second, on the basis of the “fact of reason” Kant does much more than

make a conceptual claim; rather, he purports to establish the actuality of freedom (ibid). From the
point of view of the Incorporation Thesis, the second Critique purports to demonstrate the practical

actuality of that freedom which is the (equivocal) epistemic starting point for Kant’s practical

philosophy. Having said that, it is important to keep in mind the distinction between the
speculative and practical presentation of the Idea of freedom. In the practical sphere the

establishment of the objective (though practical) reality of freedom does nothing to advance a

speculative insight (no cognition of freedom is provided)77 although, as Kant points out, it does
provide an advancement in respect to the certitude of the problematic concept of freedom’

(CPrR:49;50).

74 Not only does moral legitimation presume a concept of transcendental freedom, but so too does rational legitimation.
As already noted the claim made under the Incorporation Thesis is that it is only in the light of a model of agency
regulated by the Idea of freedom that that we can regard ourselves as acting on the basis of reasons and therefore
subject to evaluative norms. Without this model the actions of the agent are understood to be the cause of the agent’s
empirical character (beliefs-desires).
75 As will be noted later, the Reciprocity thesis may be summarised as follows: We cannot both affirm freedom
(construed in the transcendental sense) and reject the categorical imperative. As such the Reciprocity Thesis gives
definition to the link between the moral law and the concept of freedom as absolute spontaneity and autonomy.
76 This ambiguity relates to the question of whether the object of freedom is an object of cognition and/or speculation.
77 For practical purposes, the question of the ontological status of transcendental freedom does not arise, thus no
speculative proof is provided that would extend the speculative employment of reason.
 74

Thus, we see that the central concept of the Incorporation Thesis (i.e. absolute spontaneity)

has both a theoretical and practical importance. In theoretical sphere, it provides a necessary
starting point for how we are to think of rational agency (both individual and collective). It is only

by thinking agency under this concept that it is possible for the agent to take herself to be an entity

which legitimately takes up the first-person perspective; a position of legislative sovereignty.

Further, as Allison points out, it is only by thinking agency under the concept of transcendental

freedom that it is possible for the practical perspective to be genuinely adopted; the I cannot

legitimately be the I of an I will unless its maxims and actions can be attributed to a causality
belonging to the I. On this argument, the practical perspective can only be truly adopted once the

rational agent is made the object of an Idea. Once this position is assumed, as is the case in both

the Incorporation Thesis (rational agency) and in the Reciprocity Thesis (moral agency), one can
then proceed to a deduction of unconditioned practical laws, and in turn the categorical imperative.

In contrast to its theoretical use, in the practical sphere the concept of absolute spontaneity is

legitimated or deduced on the basis of the fact of reason. The fact of reason, which is given a
number of definitions by Kant, provides practical proof for the reality of absolute spontaneity (i.e. a

faculty which can operate in a contra-causal (contra-natural) manner). The practical reality of

absolute spontaneity is proved by a faculty of the will which has the possibility of motivating itself
on the basis of unconditioned practical laws (i.e. a faculty of absolute spontaneity).

III
The spontaneity of the rational agent is the practical analogue of the spontaneity of the

understanding. As it is attributed to the rational agent, spontaneity may be defined, in broad terms,

as that capacity

to determine oneself to act on the basis of objective

(intersubjectively valid) rational norms of the rational
agent and in the light of these norms, to take (or
reject) inclinations or desires as sufficient reasons for
actions. (KTF 5)

On this argument, the intentional actions of an agent cannot be explained merely in terms of an

agent’s antecedent psychological state (as is the case with the Humean belief-desire model) or any
 75

other antecedent condition (eg., custom, natural law). Rather, the intentional actions of an agent

(an I or we will ) require, as a necessary condition, an act of spontaneity.

Any notion of genuine agency requires such a concept of freedom as absolute spontaneity

for the purposes of imputing action to an agent, and for the purpose of rational legitimation. On
Allison’s reading of the Incorporation Thesis, and in contrast to a very common reading78 of Kant,

actions which are not morally motivated are not to be thought as causally determined, rather the

ineliminable component of spontaneity is to be thought in relation to all imperatives and actions of

the rational agent. The capacity to act on the basis imperatives (moral and prudential) is itself, the

defining feature of free agency (KTF 86). In this regard, as Allison points out in respect to the first

Critique, reason is said to impose imperatives in all practical matters; the ought which is declared
by reason, is not declared merely in connection with the categorical imperative, but is declared

’whether what is willed is an object of sensibility (the pleasant) or pure reason (the good)’

(A548/B576).

The question is, however, whether it is necessary to claim, as is claimed under the

Incorporation Thesis, that absolute spontaneity is an ineliminable component of rational agency?

Can we not account for the ought on a sophisticated compatibilist model of rational deliberation?

According to Allison, we cannot understand why Kant insisted on including a spontaneity

component in his concept of rational agency, and why he thought such an inclusion required the
introduction of a nonempirical intelligible character, without looking at Kant’s views on the

spontaneity of understanding and reason in their epistemic functions (KTF 36). The main point of

this argument is to identify those activities of the understanding (identified with the activity of
judgment) and reason which Kant thinks of as spontaneous. In the case of the understanding, it is

the activity of ‘taking as’ (taking something as a such and such) and the cognitive self-awareness

(apperception) which is an inseparable part of the activity of ‘taking as’ (judging) that are regarded
as spontaneous activities (KTF 37).

78 eg. Bernard Williams in, Ethics and the Limits of Philosophy, (Cambridge MA: Harvard Uni Press). p.104.
 76

In the case of reason, in its logical use, once again it is the activity of ‘taking as’ (in the act

of inference drawing) which Allison claims (on his reading of Kant) is a ‘spontaneous, inherently
self-conscious activity of the subject’ (38). In terms of reason’s real use, it worth noting that on

Kant’s arguments in the first Critique, reason is sometimes attributed with a distinct and higher

level of spontaneity than understanding. This is so because reason is said to function in total
independence of sensibility and its conditions (A547/B575 and Gr 4: 452; 119). An idea of the

types of activities of reason that Kant regards as the spontaneous may be gleaned from the

following passage quoted by Allison:

Reason does not . . . follow the order of things as

they present themselves in appearance, but forms for
itself with perfect spontaneity an order of its own
according to Ideas . . . according to which it
declares actions to be necessary, even though they have
never taken place, and perhaps never will take place.
(Quoted by Allison KTF 35; [A548/B576])

From this passage it may be inferred that the activities of formation, regulation and projection are

all identified by Kant as spontaneous activities of reason. One also assumes that a self-
consciousness is built into these activities.

To understand why Kant argues that the spontaneous (epistemic) activities of both
understanding and reason are only intelligible, it must be recalled that on a critical judgment these

activities cannot be experienced but only thought. In this case, however, to say that the activities

are merely thought, is to say that there is a consciousness of the activities (apperception) which is
merely intellectual or intelligible. This is not to say that one can catch themselves, by means of

reflection, engaging in these activities (KTF 35); this type of self-knowledge would require an

intuition. Where the type of knowledge of these activities is intelligible, instead of reducing the
concept of a knowing subject to an empirical subject, the inclusion of the spontaneity element

requires the introduction of a nonempirical intelligible subject.

According to Allison, Kant’s essential argument underlying both the irreducibility of the

spontaneity component and the inclusion of an intelligible character (i.e. a model of agency based
 77

on the Incorporation Thesis) is the assumption that ‘to conceive of oneself (or someone else) as a

rational agent is to adopt a model of deliberative rationality in terms of which choice involves both
a taking as and a framing or positioning.’ (KTF 38 emphasis mine). ‘Taking as’, ‘framing’ or

‘positing’ are all activities of pure reason; if we consider pure reason to be practical (i.e. involved

in the decision making and choice of a subject) then we will also attribute an intelligible character
to such a subject.

On my reading of Allison, the act of ‘taking as’ would appear to have many equivalents, all
of which may safely be thought in terms of a general activity, or structure, of legitimation.79 For

example, ‘taking as’ is thought in terms of an act of ‘deeming’, an act of ‘self-determination (KTF

39), the act of ‘incorporation’ and the act of ‘adoption’ (40); a rational agent only ever acts on
desires, inclinations and incentives after such desires etc., have been deemed legitimate in terms of

good reasons. It is by this means (i.e. ‘taking as’, etc.) that the agent is thought to determine

him/her self. On Kant’s own definition of the Incorporation Thesis, supplied in Religion within the
Limits of Reason, incentives are said to determine the action of the agent, only to the extent that

such incentives have been incorporated into maxims.

[F]freedom of the will [Willkür ] is of a wholly unique

nature in that an incentive [Triebfeder] can determine
the will to an action only so far as the individual has
incorporated it [aufgenommen hat ] into his maxim (has
made it the general rule in accordance with which he will
conduct himself): only thus can an incentive, whatever it
may be, coexist with the absolute spontaneity of the will
[Willkür ] (i.e., freedom) (Quoted in IF 130 - Rel
:24;19).

If the spontaneous activity of reason is (practically) identified with the choice of the agent, it

follows that the agent cannot be thought to be determined by incentives; such incentives can

79 Allison does not use the term ‘legitimation’ in any thematic sense, rather he uses the term ‘justification’. Furthermore,
Allison expressly rejects Gurwitsch’s model of ‘legitimation’ as it relates to an account of ‘objectification’ in the first
Critique. (IF75). The main basis for his rejection of Gurwitsch’s model, however, is that it has a phenomenological
function of ratifying a pregiven spatio- temporal order of representation. This objection need not concern us in the
practical sphere, since the legitimation of rational and moral of maxims do not involve the ratification of pre-rational
desires and inclinations. Rather, the model of legitimation functions to govern the formation and selection of maxims.
Maxims have rational legitimation if they are selected for “good” reasons; maxims are moral if their legislative form
complies with the form of practical laws and if the incentive governing their adoption is to actualise the practical law.
 78

determine actions only if they have been adopted into the maxims of the agent. From this we can

see that the act of adoption is a spontaneous legitimating activity of reason: once an incentive is
adopted into a maxim, rational grounds are provided for pursuing the incentive.

The question is, however, how are all these various activities of reason related? The
reading which seems to make the most sense is that the act of adoption and incorporation are

fundamental rational activities whereby a rule is adopted and an incentive incorporated into a rule.

The adoption of such a rule, and the incorporation of a desire into a maxim, are one and the same
act. One does not adopt a maxim and then cast about for the appropriate incentive to incorporate

into a maxim. As Allison points out, it is rather that ‘in adopting a maxim one is at the same time

incorporating an incentive’ (IF 119). By means of this adoption/incorporation activity desire may
be said to “determine” the actions of the agent; but at all times, however, it must be understood that

such desire-based actions involve the spontaneous activity of the agent. It is through this

spontaneous activity (i.e adoption/incorporation) that the desire is ‘taken as’ a legitimate basis of
action.

As I have already suggested, the argument which Allison thinks best supports Kant’s
insistence on the inclusion of a spontaneity component within the concept of rational agency, is that

Kant had already included such a component in the epistemic function of understanding and

reason. Just as understanding in its judgmental activity, and reason in its logical and real use, are
intimately defined by activities that are spontaneous, so too is choice. Conceived in terms of a

deliberative rationality, the activities involved in choice are identified with the activities of

reason.80 So far we have considered these activities merely in terms of ‘incorporation/adoption’,

‘taking as’ and ‘deeming’, it is also important to note that on an analogy with the epistemic

spontaneity of the activity of ‘taking as’, we can also build into this activity, a self-consciousness

that is the practical equivalent of apperception.

80 According to Korsgaard, the connection which Kant makes in the Groundwork between freedom and reason, is based
on ‘the capacity of reason for pure spontaneous activity which is exhibited in its production of ideas. This spontaneous
activity shows that we are members of the intelligible world and therefore free (G 452)’. Christine M. Korsgaard, Creating
the Kingdom of Ends, (Cambridge, C.U.P., 1996) p. 161.
 79

On Allison’s reading of Kant, apperception is not to be thought of as a type of second-order

knowing (i.e. a knowing that one is knowing); it is a consciousness that is built into the act of
thinking. In thinking, one does not merely have a perception that X is an F, but a concept of X as

F; this in turn equals the taking as X as F and the consciousness of X as F (KTF 37). This ‘taking

as’ activity is equated with the spontaneity of the understanding in its judgmental activity. By itself
the ‘taking as’ activity is not thought to have self-awareness; that is, it does not have a

consciousness of its own activity, its activity of ‘taking as’, ‘knowing’ etc. The spontaneity of

apperception is that activity which provides the necessary self-awareness so that one not only
knows, but one also knows that one knows. As we have suggested, for Allison it is incorrect to

read Kant as imposing (under the concept of apperception) a type of second-order knowing on the

judgmental activity of understanding. The ‘knowing’ involved in apperception is, quite clearly, not
a self-knowledge which would require an intuition, rather it is merely an intellectual representation

(ibid). Importantly, apperception is regarded as a consciousness of the spontaneous act of thinking

(the ‘taking as’) that is built into and accompanies all thought.

Allison argues a similar point with respect to the practical equivalent of the activity of

‘taking as’. On this argument, the provision of motives (and we assume interests), which form one
of the subjective poles (along with maxims) of practical reason, is conditional upon the ‘I take’

accompanying all desire and inclinations. Without this necessary accompaniment, the rational

agent would not be able to take desires and inclinations as always already belonging to him/her,
and concurrently would not be able to take desires as always already incorporated as interests into

maxims. On this argument, desires as such are never made conscious, except as the interests or

motives of the rational agent. With the Incorporation Thesis in mind, Allison states,

in the light of this thesis, one may say that just as it

must be possible for “I think” to accompany all my
representations in order for them to be “mine,” that is,
in order for me to be able to represent anything through
them, so too it must be possible for the “I take” to
accompany all my inclinations if they are to be “mine”
qua rational agent, that is if they are to provide
motives or reasons for acting (KTF 40).
 80

With this necessary accompaniment of the “I take”, any determination by desires and inclinations

of a will is grounded in the spontaneity of practical reason. Desires can only motivate and interest
a rational agent, if they are first of all taken to be the desires of that agent, and therefore taken to be

reasonable.

As I have just noted, it is necessary for the “I take” to accompany all desires if they are to

motivate the rational agent. To say that desires are already taken to belong to the rational agent, is

simply to say that such desires are already (capable of being) incorporated into maxims, or
subsumed under rules of action. An obvious point to note here, is that in order for desires to be

treated as subsumable under rules of action, they also have to be treated as already belonging to the

rational order of the “I” of the “I take”. Rational agency may be said to be constituted on the basis
of this move that takes desires and inclinations as already belonging to the structures of rationality.

The compelling nature of desires is not sufficient to either determine the actions of an agent, or to

provide a practical presentation of an obligation.

The activity of the “I take” may be thought to involve both the activity of adoption and

incorporation. It is clear that the rational agent only acts on the basis of reasons. If desires are to
constitute a reason for the rational agent to act, it is only because the agent has adopted a rule of

action which at the same time incorporates a particular desire into it. The decision as to whether a

desire is to be acted upon is always treated in terms of the rationality of such a desire, and not in
terms of the strength of its determination or influence. Furthermore, just as the epistemic activity

of ‘taking as’ is thought to include a self-consciousness of the act of thinking, so too the practical

activity of ‘taking as’ includes self-awareness within it. The rational agent does not simply make
decisions, or will certain actions; the agent is also conscious of being an agent willing such actions.

Once again, the consciousness attributed to the “I” of the “I take” is not to be confused with self-

knowledge. On Kant’s critical analysis, such self-knowledge is always subject to the

transcendental conditions of experience and can only yield a knowledge of the empirical character

of rational agency.
 81

According to Allison’s analysis, however, to conclude that the self-consciousness of the “I”

of the “I take” is as indubitable as the self-knowledge of the “I” of the “I think” is premature. The
spontaneity of the understanding is self-certifying in a manner in which the spontaneity of practical

reason is not. To doubt one’s spontaneity in the act of thinking, is to doubt that one is a thinking

being; but this of course is to require an act of thought (IF 133). In the practical sphere, however,
reflection on the ineliminable moment of spontaneity only yields a conditional result. The “I” of

the “I act” can only take itself to be spontaneous if it takes itself to be acting under the Idea of

freedom. ‘If I take myself to be a rational agent, that is if I take myself to be acting on the basis of
reasons and a reflective evaluation of my situation rather than merely responding to stimulus, I

must necessarily regard myself as free’ (ibid).

We cannot have a complete concept of ourselves as rational agents without also including

amongst the spontaneous activities the regulative function of reason. We have already noted that

this function includes the activities of framing, positioning and projecting. These activities
supplement, or reinforce, the view that an agent is only ever obligated on the basis of rational

considerations. The obligation to perform an action only ever arises in the context of reason

guiding conduct by framing or positing an order of ends or ought-to-bes (KTF 40). Because the
activity of framing does not have its basis in any antecedent condition of desire, but rather in an

activity of reason which functions independently of all desires, the ends and obligations posited by

reason are held to go beyond those dictated by desires. Furthermore, if it is maintained that the
agent only ever acts on the basis of obligations provided by reason, then it also must be maintained

that such actions of the agent are never simply the causal consequence of an antecedent state of

desire, but only the reasons supplied by practical norms of reason.

What is being claimed here is that the spontaneity and independence of reason are to be

understood in terms of a transcendental freedom which is first introduced in the Third Antinomy as
a “mere idea”. As Allison points out:

absolute spontaneity and complete independence from

everything sensible, which are always the positive and
negative defining characteristics of transcendental
 82
freedom, are here understood as the spontaneity and
independence of reason in determining the will (KTF 55).

From the perspective of the first Critique, defining the activities of reason in terms of

transcendental freedom raises a number of complications concerning the relation of transcendental

and practical freedom, and concurrently, the spontaneity of reason and agency. The question which
is raised is whether practical freedom stands in a dependent relation to transcendental freedom. If

practical freedom is dependent, what is the nature of this dependence (eg. is it ontological,

psychological, conceptual)? If it stands independently, is the concept of practical freedom to be

understood in compatibilist or incompatibilist terms?

The importance of these questions comes into focus once it is realised that practical
freedom, as defined by Kant, is identified with human freedom as it is traditionally thought:

namely, freedom here is not treated (per the “Third Antinomy”) as a cosmological concept, but

rather as a psychological concept (KTF 54). With this point in mind, the question of the
dependence of practical freedom on transcendental freedom brings into focus the model of human

agency and whether it can be thought in incompatibilist terms. As Allison points out, there is

sufficient textual evidence in the Canon of the Critique of Pure Reason to support the view that
Kant thought that practical freedom could stand apart from transcendental freedom (KTF 55).

Even granting this claim concerning the independence of practical freedom does not compel us to

adopt a compatibilist model of human agency.81 Rather, on Allison’s reading, the contrast which
is being made in the Canon between transcendental and practical freedom is merely one between

divine and human freedom (KTF 64). Further, given that practical freedom is defined as involving

a genuine causality of reason (i.e. “a causality of reason in the determination of the will” [ibid]), it
still follows that it can be construed in terms of an incompatibilist model.

The difficulty of understanding practical freedom arises from the fact that it is said to
involve a causality of reason and yet, at the same time, it is contrasted with transcendental freedom.

As Allison puts it, how is it possible to conceive of ‘a genuine causality of reason that falls short of
81 In Kant’s work, practical freedom is consistently identified with the freedom that can be attributed to finite, sensibly
affected rational agents.
 83

full-blown transcendental freedom’ (ibid)? Or again, if transcendental freedom is defined82 (as we

have seen above) as requiring “the independence of this reason -in respect of its causality, in
beginning a series of appearances -from all determining causes of the sensible world” (ibid), how is

it possible to conceive of a genuine causality of reason that lacks this freedom? Can reason have a

genuine causality, and not act independently of all determining causes in the sensible world?

According to Allison, the answer to this question, and whether one arrives at a compatibilist

or incompatibilist model of human agency rest on how one thinks of the dependence of reason on
the determining causes. Quite clearly, if such dependence is thought to be a causal dependence,

then human agency will have to be construed in compatibilist terms. In all instances, the rational

agent does not act directly on inclinations and desires, but on imperatives (oughts ) which are the
product of practical reason. As finite sensibly affected agents the sensuous nature of human agency

may constitute restricting conditions, and may trigger agency, but these factors do not function as

causal determinants (KTF 65). As Allison argues, in human agency, as conceived by Kant, the
independence which reason has of sensible determination is only an independence of a

determination by particular inclinations and desires, it is not a necessary independence of

inclinations and desires in general. Yet, even with this necessary independence we can still say,
insofar as the activities of reason are practical and the agent acts on maxims, that a genuine

practical spontaneity does survive - be it limited by sensible conditions (ibid).

It is important to note, that practical freedom, so conceived, is not a sufficient condition of

moral action; that is, action in total independence of sensible conditions. All it supports is a

concept of genuine rational agency conceived as a capacity to act on imperatives. Insofar as moral
action is concerned, practical freedom does not rule out the possibility of selecting maxims which

conform to unconditioned practical laws, but in terms of providing a motivation for adopting

maxims, the practically free agent must find this motivation in sensible conditions (eg., future
happiness). Where practical freedom is not enlarged so as to include transcendental freedom,

reason lacks the capacity to supply its own incentive for adopting unconditioned practical laws. In

82 CPuR A803/B828
 84

other words, where a concept of reason is developed in terms of practical freedom, reason lacks the

capacity to be autonomous.

In the account of practical freedom offered in the Canon (Critique of Pure Reason ),

transcendental freedom is set aside, not in its capacity to regulate a concept of rational agency, but
rather in terms of its epistemological value as an explanation of appearances. In view of his

rejection of a speculative proof of transcendental freedom, Kant also holds open the epistemic

possibility that the causality of reason (involved in practical freedom) may indeed be explainable in
terms a natural causality. Kant does not have a problem with the rejection of an ontological

dependence of practical freedom on transcendental freedom. What is asserted, however, as Allison

argues, is a conceptual dependence: it is impossible to assert that actions are imputable to an agent
without also regulating the concept of agency in terms of transcendental freedom. Whether such

freedom can be speculatively proved is irrelevant to the question of how the agent must to be

conceived so that it can be thought to be a genuine rational agent.

The importance of the Incorporation Thesis for us is that it it provides an incompatibilist

model of rational agency. This is significant for understanding the type of models that are
presented not only for individual, but also collective rational agents. In connection with Lyotard’s

work, we might apply this model to the sovereign addressor of a republican phrase (i.e. a self-

legislating citizenry called ‘the people’). Following Allison’s reading of Kant we might then say
that ‘the people’ have both an empirical and intelligible character.83 On Lyotard’s pragmatic

reading of political forms he would argue that the empirical character is to be equated with a

politics identified with a narrative genre of discourse - and which is legitimated by appealing to the
proper name of the collective entity. Concerning the intelligible character, I shall, in the section on

Lyotard, seek to identify this with the occurrence of a phrase. Importantly, however, where the ‘the

people’ are thought in terms of an intelligible character, the thought of their actions is regulated by
a concept of transcendental freedom. In this case the identity of the sovereign/addressor instance of

the normative phrase is left empty.

83 In the sections on Lyotard, I will also distance Lyotard’s approach to the issue of transcendental freedom from one
which wants to think it in terms of causality, law and character.
 85

2.2 The Reciprocity Thesis

I

The Reciprocity Thesis is fundamental to an understanding of how Kant thinks through the relation

between the moral law, the autonomous individual and Republic. Where the modern concept of
the individual (person, citizen) and republic is developed in terms of a concept of freedom as

autonomy, the principle of a positive concept of freedom, autonomy, functions to legitimate the

maxims of individuals and the positive law of the State. The importance of the Reciprocity Thesis
is that it gives definition to the connection or relation between the moral law and the concept of

freedom as absolute spontaneity and autonomy. The development of this connection is important

since it addresses such questions as whether the moral law is to be legitimated on the basis of the
necessity of presupposing the idea of freedom or, whether the idea of freedom is to be legitimated

on the basis of the moral law? Further, a discussion of the reciprocity thesis helps us understand

the connection (and distinction) that Kant makes between the moral law and an unconditioned
practical law; and moreover, the connection and distinction between an unconditioned practical law

and the categorical imperative, the moral law and the categorical imperative. It helps us understand

the connection that Kant made between a negative and a positive concept of freedom and the
significance which the Incorporation Thesis (i.e. Kant’s concept of the rational agent) has in the

framework of Kant’s practical philosophy. Yet again, the Reciprocity thesis is important to an

understanding of how Kant’s concept of the Wille, as law governed, also undergirds the connection
between the concept of transcendental Freedom and the moral law; last, it makes clearer what is

the connection between the moral law and the “fact of reason”.

According to Allison, the Reciprocity Thesis is developed by Kant so as remove the claim

that morality is a “chimerical idea,” a mere “phantom of the brain” (Gr 4:445; 112). The question

which arises is, can the objective reality of the moral law be established? And, if it should turn out
that it cannot be established, is it possible to grant some other status to it - a status which would

afford proofs sufficient to reduce the above claims? As Allison presents the argument, the

Reciprocity Thesis functions as the first step in the Kantian legitimation of morality (KTF 213). As
 86

a first step, it begins by assuming the legislator is a transcendentally free rational agent, and then

goes on to ask, on what basis can the maxims of such an agent be legitimated? The proper basis
upon which the maxims of a transcendentally free agent are legitimated is the moral law.

The Reciprocity Thesis may be summarised as follows: We ‘cannot both affirm freedom
(construed in the transcendental sense) and reject the categorical imperative’ (KTF 213). The

analytic argument is: ‘“if freedom then the moral law,” and so to its reciprocal’ (KTF 203).

According to Allison, the various formulations of the Reciprocity Thesis, which may be found in
the Groundwork and the Critique of Practical Reason, may be reduced to reflect an underlying

argument

(1) As a “kind of causality” the will must, in some sense

, be law governed or, in the language of the second
Critique, “determinable” according to some law (a lawless
will is an absurdity); (2) as free, it cannot be governed
by laws of nature; (3) it must therefore be governed by
laws of a different sort, namely, self-imposed ones; and
(4) the moral law is the required self-imposed law (KTF
203)

As stated, this argument applies not merely to all rational agents, but it applies to rational agents
that are transcendentally free (divine and human). The question of law is raised in the context of

considering what law would govern such an agent. Quite clearly, a transcendentally free agent

cannot be governed by the laws of nature, for it is precisely in contrast to the laws of nature that the
negative concept freedom is defined. The Reciprocity Thesis does not begin with the premise of

the moral law, but rather with the premise of a transcendentally free rational agent; on this thesis

the moral law is deduced as a higher order principle which operates to legitimate the maxims and
ends of a transcendentally free agent. The moral law functions as a norm or meta-norm which

legitimates the prescriptions and norms of a rational agent that is transcendentally free. The first

point that needs to be grasped, therefore, so as to understand the Reciprocity Thesis, is the
connection between the concept of freedom as absolute spontaneity and the concept of freedom as

autonomy.
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II

As Allison points out, the Reciprocity Thesis is introduced in the Groundwork in connection with
the distinction between a the concept of freedom as absolute spontaneity, and the concept of

freedom as autonomy (IF 136). The distinction itself turns on the acceptance of the first limb of the

argument stated above, namely, that the free will must be law governed or determinable. If this
argument is accepted (and Kant provides little argument to support it), then the positive concept of

freedom is said to follow from the negative concept. The passage in the Groundwork is worth

quoting in full, since it captures many of the conceptual links which are made under the heading of
the Reciprocity Thesis.

The concept of causality carries with it that of laws

[Gesetze ] in accordance with which, because of something
we call a cause, something else - namely, its effect -
must be posited [gesetzt ]. Hence freedom of will,
although it is not the property of conforming to laws of
nature, is not for this reason lawless: it must rather be
a causality conforming to immutable laws though of a
special kind; for otherwise a free will would be self-
contradictory. Natural necessity, as we have seen,is a
heteronomy of efficient causes; for every effect is
possible only in conformity with the law that something
else determines the efficient cause to causal action.
What else then can freedom of will be but autonomy - that
is, the property which will has of being a law to itself?
The proposition “Will is in all its actions a law to
itself” expresses, however, only the principle of acting
on no maxim other than one which can have for its object
itself as at the same time a universal law. This is
precisely the formula of the categorical imperative and
the principle of morality. Thus a free will and a will
under moral laws are one and the same (Quoted in KTF 202;
Gr 4: 446-47; 114)

The important point that we need to note is the link between the negative and positive concept of
freedom. As can be seen from the above quote, the connection between the two concepts is made

possible by Kant’s definition of the will (Wille ) as a kind of causality which belongs to living

beings insofar as they are rational. Like any causality, the will cannot be lawless; but ‘must have a
specific modus operandi or “character” (IF 137).
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Earlier it was noted, in connection with the Incorporation Thesis, that transcendental

freedom is identified with the activities of practical reason and, in turn, practical reason is
identified with the deliberative activities of the will; in the context of the Reciprocity Thesis,

freedom negatively construed, is the capacity of the will to work independently of the laws of

nature; and positively construed, it is the capacity to conform to immutable laws of a special kind.
Or again, freedom negatively construed, is the capacity of the will to operate independently of alien

causes; positively construed it the will’s capacity of being a law to itself (IF 136). On Kant’s

argument, the analytical claim is that the negative definition of freedom is said to ‘lead to’ the
positive definition (ibid); or again, the positive definition is said to ‘spring from’ (fliesst ) the

negative definition (KTF 202). According to Allison, the argument which is made for the

connection, between a negative and positive definition, rests on the assumption that the will is law
governed. Since ex hypothesi, the will cannot be determined by alien cases or the law of nature,

‘nothing remains but to attribute to the will the property of being a law to itself’ (IF 137).

The difficulty, for the purposes of the Reciprocity Thesis, of linking freedom to

unconditional practical laws on the basis of a concept of the rational agent and will, is that the free

will is not defined in terms of unconditional practical laws, but rather as a will governed by
maxims (KTF 204). Even if we accept that the free will is rule governed, because of Kant’s

distinction between maxims and objective practical principles or laws (of which unconditional

practical laws form a sub-class), it is not possible, in any straight forward manner, to link freedom
to unconditional practical laws.

One approach to this problem has been to use the concept of rational agency as the basis for
linking freedom to unconditional practical laws. On this argument the claim is that the normativity

of the moral law can be deduced simply from a concept of rationality. On the basis of the concept

of rationality, it is argued that a rational agent must both legitimate maxims and apply a
universality test. The agent, when selecting maxims, can only refuse to follow rules at the expense

of giving up rationality. The argument is, as rational agents, we cannot adopt maxims without

being concerned whether or not the maxim can be legitimated in terms of “good” reasons; and, we
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cannot regard our reasons as good without considering their legitimacy for all rational beings in

similar circumstances. From the concept of rationality we can deduce therefore that the
universalisability test functions as the ultimate unconditioned practical law governing the choice of

maxims, and that the Kantian categorical imperative (Act only on that maxim through which you

can at the same time will that it should become a universal law) is the proper formulation of the
practical law (KTF 205).

The problem with this argument, according to Allison, is that it fails to take into
consideration the Kantian meaning of moral action. In order to act morally, one does not do one’s

duty, but one also acts from duty. The argument which seeks to deduce the practical laws from a

concept of rationality succeeds in providing a basis for deducing the normativity of the moral law,
but fails to provide a basis for deriving an incentive for acting morally. Allison argues that to

correct this shortcoming we should read Kant as having a ‘thick’ concept of rational agency (rather

than ‘a thin concept of rational agency, or even rational agency simpliciter [KTF 207]) as the
important link between freedom and practical laws. Under a thick concept of rational agency, the

agent is thought to be more than practically free, instead he or she is thought to be transcendentally

free. The difference between a thin and thick concept of rational agency is, respectively, the
difference between an agent whose choices are ultimately governed (though not caused) by a

fundamental drive or impulse, and an agent whose choices have their ground in a higher order

maxim of practical reason (and thus in an act of freedom).

The important point to note here is that where rational agency is thought in terms of

transcendental freedom, the legitimation requirement, that operates in respect of a concept of

rationality, is not annulled; in fact, as Allison points out, in respect to the concept of transcendental

freedom, the legitimation requirement operates so as to block appeals that are legitimate under a

bare concept of rationality, and further, it operates to extend the requirement to first-order or
fundamental maxims. In respect to the ruling out of certain types of legitimacies, it is no longer

possible, where maxims are legitimated in terms of a concept of transcendental freedom, to appeal

to “human nature” (or any of its equivalents) so as to validate maxims based on self-interest or
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other nonmoral motivational grounds. In the case where the legitimacy of maxims is regulated by

the Idea of freedom, an appeal to “human nature” can only be made if it is granted by the agent. In
other words, if there is an appeal to human nature, it is understood that it is the I of the I take (or I

will) who adopts this ground as the basis for legitimating maxims.

Second, where the Idea of Freedom is applied to rational agents the legitimacy requirement

is extended to first-order or fundamental maxims. Where transcendental freedom is not assumed,

fundamental maxims (which provide the basic practical orientation of the will) cannot be imputed
to the agent. Rather, such maxims are thought to provide the ground of rationality, and therefore

legitimacy, for all higher-order maxims. Where transcendental freedom is assumed, however, these

same fundamental maxims can be imputed to the agent and are thereby subject to a legitimacy
requirement. To claim that fundamental maxims are imputed, as Allison points out, is not to

reason that they are adopted in ‘some mysterious pre- or nontemporal manner or by means of a

self-conscious, deliberative process’ (KTF 208), but merely, that through reflection it is discovered
that ‘we have been committed all along to such maxims’(ibid). The important point is that once

the fundamental maxims are imputed to an agent, any continued commitment to such maxims is

regarded as a matter of freedom (and not nature) and is subject to a legitimacy requirement.

On the basis of the above claims the question then becomes, how is it possible to legitimate

such first-order or fundamental maxims? How is it possible to legitimate, what may be described
as, the fundamental orientation of the will? For example, is it possible to legitimate the

fundamental drives and impulses which govern an agents choices of maxims, in terms of higher

order principles? It is with such questions in mind concerning the legitimacy of fundamental
maxims, Allison argues, that the ‘analytic’ connection between transcendental freedom and

unconditioned practical laws is made (KTF 210).

On this approach, unconditional practical laws must function as the norms which govern the

adoption of maxims and the setting of ends. It is clear that such a transcendental function requires

that the practical rules be both universal and formal in the Kantian sense. After all, what is
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required of such laws is that they legitimate the adoption of maxims and the setting of ends -

regardless of the particular interest or desires involved. However, the fact that unconditional
practical laws are required to legitimate fundamental maxims regardless of particular interests and

desires raises some difficulties for the deduction of these laws. The problem arises if it is claimed

that conformity to practical laws is not merely a sufficient condition of legitimacy, but also a
necessary condition. As Allison points out, where conformity to practical laws is made a necessary

condition of legitimacy it is impossible to see how any first-order maxims (which govern maxim

selection in terms particular interests and desires, and set ends governing such selection) could ever
be legitimated (KTF 209). To overcome this difficulty, Allison suggests that conformity to

practical laws not be understood as a necessary condition of the obligatoriness of selecting maxims

etc., but rather that it relates merely to permissibility (ibid).

According to this view, it is a necessary condition of the legitimacy of the selection

(adoption) of maxims and the setting of ends, that such ‘selection’ and ‘setting’ be at least
permissible under practical laws. The task of making the analytical connection between

transcendental freedom and the unconditional practical laws is thus reduced to the task of deducing

what laws can be granted the transcendental function of determining the permissibility of maxim
selection and end-setting. On this argument, the only candidate which makes sense is the

uninformative practical law: “Conform your actions to universal law as such” (IF 145); this will be

the practical law that legitimates the maxim selection and setting of ends of any rational agent
which is assumed to be transcendentally free. For the moment, the question of whether or not this

law makes it possible to determine the permissibility of maxim selection etc., is not important. All

that is important to note is that a reciprocity can be established between freedom and unconditional
practical laws.

The question of whether the same reciprocity can be established (or whether Kant was
successful in establishing the same reciprocity) between freedom and the categorical imperative

(moral law) raises a number of other issues. If we limit ourselves to the question of legitimacy, it

is clear that both the practical law (“Conform your actions to universal law”) and the categorical
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imperative (“Act only on that maxim through which you can at the same time will to be a universal

law”) have a transcendental function with respect to the setting of ends and the selecting of
maxims. The difference would seem to be, however, that practical laws apply to transcendental

agents in general, whereas the categorical imperative applies to human agents who are imperfect

rational agents. This is not say that the categorical imperative is thought to somehow depart from
what is required by the practical law; quite the contrary, conformity to the categorical imperative is

seen to be equated with conformity to the practical law; which is to say, I conform my actions to

universal law when and only when I act on maxims that I ‘can will’ to be universal (KTF 210).

However, as Aune has shown, the categorical imperative cannot be equated, in any straight

forward sense, with the practical law. The primary distinction which can be made between the two,
is that the categorical imperative provides a decision procedure for the choice of maxims, whereas

the practical law does not. It is one thing to say that maxims should be selected on the grounds that

they conform to universal laws (although even this raises questions), and another to say that not
only should maxims be selected because they conform to universal law, but that such conformity

should be made the determining ground of the selection of maxims (and setting of ends). As

Allison points out, even the rational egoist can give their consent to the former; but they definitely
cannot consent to the latter. The question is then on what basis can Kant propose to argue that the

categorical imperative is directly implied in the practical law “conform your actions to universal

laws”.

The key once again for Allison to showing how the gap between the categorical imperative

and the unconditioned practical law may be reduced, is to realise that Kant does not attempt to
deduce the categorical imperative from a bare concept of a practical law. Rather, the metaphysical

deduction of the categorical imperative is carried out in the second Critique only by including

transcendental freedom as an explicit premise. The importance of this inclusion is that it makes
immediate sense of the requirement that “conformity to universal laws” include within it the

requirement that such conformity be made the determining ground of maxim selection. A

transcendentally free agent’s actions do not simply conform to universal laws, but more
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importantly, the determining ground for the adoption of maxims is conformity to universal laws.

For the purposes of legitimating the adoption of a maxim by an agent which is assumed to be
transcendentally free, it is not enough that the maxim (or its principle) conform to universal law;

rather, the maxim is only legitimate if conformity to universal law is the reason for the adoption of

the maxim.

The significant point that I would stress here, is a claim concerning the relation of the

legitimacy requirement of the categorical imperative and practical laws. To argue that the
categorical imperative can be deduced from the concept of practical laws is the same as saying that

the legitimacy requirement set down in the categorical imperative is already implied in the practical

law (“Conform your actions to universal law”). As Allison has shown, however, it is not possible
to make this deduction without also assuming that the agent (who is imposing this law on him or

herself) is a transcendentally free agent. With this assumption in mind, it is possible to conclude

that the categorical imperative does directly follow. The transcendentally free agent does not
legitimate the adoption of maxims merely because the principle of the maxim conforms to

universal law (where this law is also unconditioned); nor does the agent legitimate the adoption of

a maxim because it is thought that it is reasonable for any rational agent to act accordingly. As I
have noted, the assumption of transcendental freedom both blocks and extends the legitimation

requirement so as to bring into question appeals to human nature, and to require that the

commitment to first-order maxims also be legitimated. If one adopts a maxim because it is deemed
reasonable, this is an insufficient standard for bringing into question the commitment to first-order

maxims. Namely, it fails to take into consideration that it is only on the basis of certain

presupposed ends (which derive whatever justification they might possess from the agent’s desires)
that the principle or policy implied in a maxim is deemed reasonable.

It is not sufficient, therefore, for the purposes of legitimating a maxim of a transcendentally

free agent that the adoption of the maxim be reasonable. This test leaves unquestioned the basis of

the reasonableness. In order to legitimate a maxim the transcendentally free agent must go further

than asking whether the maxim conforms to universal law, or whether the maxim can be applied
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universally. In terms of Kant’s moral psychology, it is fair to say that what is reasonable is going to

depend upon the underlying set of intentions, beliefs, interests, desires, incentives, inclinations etc.,
which constitute the fundamental orientation of an agents will. And further, it may be thought that

such reasons satisfy the universalisability test; namely, they are regarded as reasons. In other

words, it is possible, if we follow Kant’s analysis, that actions and maxims conform to universal
laws and yet the disposition of the agent involved be judged to be evil. On Kant’s definition of

morality, mere conformity to universal laws does not legitimate maxims; the transcendentally free

agent, is also one whose incentive for adopting a maxim is that it conforms to unconditioned
practical laws; on the basis of this condition the agent is required to judge whether or not the

maxims which constitute the fundamental disposition of the agent, conform to unconditioned

practical laws. In this respect, it is understood that once the agent is assumed to be
transcendentally free, the continued commitment to first-order maxims is a matter of freedom; the

incentive governing their adoption, therefore, should be one of respect for the law. This would

seem to be precisely what is required of an agent by the categorical imperative.

As I have noted the concept of a will being a law unto itself need not take us beyond the

Incorporation Thesis. According to this thesis, the concept of a rational agent involves a notion of
agency that is never directly determined by desires and inclinations; rather, the agent only acts on

maxims which, in turn, are always governed in their formation by objective practical principles -

of which the categorical imperative is a particular type. The point to consider here, concerning the
type of “autonomy” that can be developed under the Incorporation Thesis, is that the act of

adoption/incorporation always involves the adoption of a subjective principle (maxim) in

accordance with an objective practical law (KTF 89). The minimally rational agent is one who
forms interests on the basis of a reflective evaluation of inclinations, and then on the basis of these

interests forms policies which are called maxims (ibid). Importantly, all maxims are regarded as

self-imposed rules. Regardless of the moral estimation of the maxim, it is always the I of the I take
that adopts the maxim. In all cases it can be argued, if we assume that the activities involved in the

rational deliberation are spontaneous, that the maxim is self-imposed rather than determined by the
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objects of desire and inclination or, more particularly, by a situation whose formation conforms to

the principle of alterity.

Furthermore, as we have seen, we do not have to raise the question of morality before it is

necessary to legitimate maxims. Because the rational agent is rational, the adoption of maxims is
always subject to the objective criteria of reasonableness provided by objective practical principles.

In each act of adoption, practical reason spontaneously provides principles (in an imperative form)

or norms which govern the formation and selection of maxims (and the setting of ends). As
Allison points out, all objective practical principles ‘express a “necessitation of the will,” that is an

ought that applies universally’ (KTF 89). If the reasonableness is intrinsic, and applies under all

conditions, then the ought is categorical and the objective practical principle is also an
unconditioned practical law. If the reasonableness is one which is contingent (namely, is

dependent on conditions specified by the agents interests, circumstances, capacities etc) then the

ought is hypothetical, and is contained, not in a practical law, but in an objective practical
principle. The rational agent’s maxims may conform to the requirements set out in both practical

laws and objective practical principles. Insofar as the legitimacy of the rational agent’s maxim is

determined in terms of its conformity to practical principles in general, the question of what
incentive the agent acts on is irrelevant. Furthermore, the only concept of freedom that is required

so as to develop a consistent notion of rational agency is that of absolute spontaneity: causal

independence is all that is required. From the point of view of legitimating the rational agents
maxims (in terms of a concept of rationality) it is not necessary that it be shown that the rational

agent’s incentive for adopting a maxim is respect for an unconditioned practical law. This further

requirement only becomes necessary when a maxim is legitimated morally.

The point to note here, therefore, is that the only concept of freedom that is required, so as

to develop a concept of genuine rational agency, is absolute spontaneity. The concept of freedom
as autonomy (in the strong sense) is only required so as to develop a concept of moral agency. It is

under this latter concept of agency, that the issue of incentives is crucial for the purpose of

legitimating maxims. As expressed by the categorical imperative, the formation and selection of a
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maxim may be said be moral if the legislative form of the maxim conforms to that of a practical

law and if the incentive for adopting the maxim is that it conforms to the practical law. In this
case the basis for adopting a maxim is not an incentive provided by an inclination or desire, but

rather the incentive is supplied by the practical law.84 Simply put, on this argument, autonomy is

the condition of possibility for morality; and spontaneity is the condition of possibility for a
genuine rational agency.

III
It is not possible to fully understand the Reciprocity Thesis (how it is impossible to affirm freedom

and at the same time deny the categorical imperative) without noting how the concept of

“intelligible character”, as it stands under the Incorporation Thesis, is developed. As I have noted,
on Allison’s reading the concept of intelligible character provides an incompatibilist model of

rational agency which appeals to the spontaneity of the agent as a rational deliberator. Under the

Incorporation Thesis it is asserted that spontaneity is an ineliminable component in rational agency.

According to this argument, intelligible character is simply identified with a ‘law of causality; and

the practical freedom of this character is limited to the bare idea of practical spontaneity or

incorporation (KTF 140). As I have noted, the assumption of such freedom, and the concept of a
rational agent in terms of practical freedom, is not enough to make necessary an analytic

connection between freedom and the categorical imperative. In order to make this connection,

Kant deepens his concept of freedom in Groundwork II, (‘as the culmination of a regressive
account of the conditions of possibility of the categorical imperative’ [IF 134]) so as to develop a

concept of freedom as autonomy. In this context autonomy is defined as the “supreme principle of

morality” (Gr 4:440); without it, the type of action prescribed by the categorical imperative would
be impossible.

84 It should be noted here that obligation and respect are quite different deontic concepts. Obligation is that which is
expressed by the reason contained in the practical law, and respect is the moral incentive necessary for the adoption of
a maxim. Obligation may be morally neutral; that is, the ought is simply that which all objective practical principles
express regardless of whether maxims conform to them, or whether the incentive for adopting maxims is respect for the
practical law. On this argument, the ought contains a ground for respect; that is, it is out of respect for the
necessitation expressed by the ought in practical laws that the moral agent selects a maxim.
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For our purposes, we may understand that the modification of the original concept of

intelligible character and the practical freedom of that character, are made necessary if the maxims
of the rational agent are to have a moral validation. On this basis it is clear that the concept of the

rational agent itself (qua concept of intelligible character) must be modified so as to provide the

(conceptual) ground of possibility of such moral action. As I have noted, moral legitimation
requires more than the adoption of a maxim that satisfies a test of universality, it also prescribes

what the appropriate motivation behind the adoption ought to be. As Allison puts it,

The key idea is simply that morality, as Kant analyses it

in Groundwork I and II, requires not merely that our
actions conform to duty but that they be “from duty,”
that is that the duty-motive of itself provides
sufficient reason to act. Expressed in Kantian terms,
this means that the recognition of an obligation brings
with it an “incentive” [Triebfeder ] or “interest” in
fulfilling it. Such an interest is termed by Kant a
“pure” or “moral” interest. Assuming autonomy, this
condition can be met, since ex hypothesi an agent with
this property is capable of being motivated by a non-
sensuous incentive. Lacking this property, however, such
motivation is impossible, since an interest stemming from
one’s needs as a sensuous being would then be required in
order to have a sufficient reason (incentive) to act. (IF
136)

A notion of rational agency that assumes more than a causal independence, but a motivational

independence85, is thus required as the necessary condition of forming and selecting maxims
morally. On Allison’s analysis, if the intelligible character of the rational agent is not thought in

terms of a freedom as autonomy, then the conditions necessary to provide a moral legitimation of

maxims would be lacking.

In the absence of the assumption of autonomy, maxims can only be legitimated rationally.

If all incentives governing the adoption of maxims have a basis in the inclinations etc. of the agent,
then the demands of the categorical imperative for a moral incentive are misplaced. The only

objective practical principles that would be relevant to such an agent are those prescribing

85 Moral interest, respect, is deduced on the basis of the concept of freedom as autonomy .
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hypothetical imperatives. Practical laws may express a necessitation of the will, or an ought that

applies under all conditions, but without assuming that autonomy is a property of the agent’s
intelligible character, the basis on which an agent adopts a maxim cannot not be respect for the

obligation prescribed by the practical law; in short, without the assumption of autonomy, it would

not be possible to think that ‘recognition of an obligation’ could bring with it an incentive or
interest to adopt maxims which actualise the practical law.

The contrast between the above approach to obligation and that of Lyotard’s is brought into
sharp relief if it is recalled that on Lyotard’s argument obligation does not have its basis in

objective practical principles, but rather in situations of radical difference (which lack a governing

principle). On Lyotard approach, it might be argued, in opposition to Allison’s reading of Kant,

that without the assumption of alterity as a property and principle of the deliberative will the

situations of difference could not bring with them an obligation nor the incentive or interest for the

adoption of maxims. The simple distinction to be made here, in relation to Allison’s reading of
Kant, is that obligation and the interests and incentives which guide and form the deliberative

process are not thought to have their basis in the spontaneous activities of reason, but rather events

and situations of difference. I shall now turn to look more closely at these issues as they relate to
the place of transcendental freedom in Lyotard’s philosophy of phrases.

2.3 Lyotard and Transcendental Freedom

Transcendental freedom is not made a theme or a problem in Lyotard’s philosophy of phrases. The

picture that one gets of his use of this concept is, therefore, somewhat confused. Here I try to bring

some clarity to Lyotard’s position in respect to transcendental freedom by first noting some of
distinctions which can be made concerning his use of this concept, and Kant’s use - as interpreted

by Allison. The argument presented in this section will presuppose that transcendental freedom

functions not only to regulate a concept of rational and moral agency, but that it is also necessary to
appeal to transcendental freedom so as to adopt the practical point of view required by a republican

politics. A question which is only briefly taken up in this chapter, but pursued more fully in the

next, is on what ground or basis can a rational and moral agent orientate their will? It is evident
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that where the moral law is regarded as an objective practical principle that the subjective

orientation of a will may be understood in terms of a relation that a fundamental maxim has to the
unconditioned law. It is not clear, however, what that orientation is to be where the only basis for

unconditional practical laws is thought to be spontaneous events of instability within language.

In this chapter, my concern will be to rethink the bare notion of absolute spontaneity that is

required for the Incorporation Thesis, in terms of Lyotard’s philosophy of phrases. I will also be

concerned to think through some of the implications which an ontological concept of freedom has
for a model of rational agency (individual and collective). Next, I will consider what implications

an ontological concept of transcendental freedom has for Kant’s Reciprocity Thesis; namely, I will

be concerned with exploring the possibility of an analytical link between a bare notion of absolute
spontaneity (as it is thought in the context of the problematics of a phrase) and a categorical

imperative. The central conclusion from this series of investigations will be that an ontological

concept of freedom does not provide a basis for the deduction of any objective practical principles,
let alone practical laws and the categorical imperative. However, having said that, an analytical

connection will be made between a negative and a positive concept of freedom, and further, the

conditions under which an unconditional practical law may occur will be deduced to be those
conditions which conform to a principle of alterity.

Concerning the distinctions which can be made between Lyotard’s and Kant’s approach to
the issue of transcendental freedom, perhaps the most important point to grasp is that I take Lyotard

to be treating transcendental freedom (in terms similar to the early Heidegger) as the problem of

ontology par excellence. In this respect, one of the primary focuses of Lyotard’s philosophy of
phrases is the ontological claim concerning the occurrence of a phrase. As I will argue, the

ontological status of the phrase relates directly to the irrepressible freedom of a phrase and the

identification of the types of “experience” in which this freedom is made immediate.

Furthermore, it is somewhat difficult to relate Lyotard’s themes of transcendental freedom

to the manner in which these themes are taken up by Allison in the Incorporation and Reciprocity
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Thesis. The main reason for this difficulty is that freedom, for Lyotard, is not connected first of all

to the problematics of subjectivity and rational agency, but to the problematics of Being/Non-being
and the phrase. Where the problem of transcendental freedom is recast in ontological terms (and in

terms of an ontology of phrases) the linking of freedom to the categories of experience (causality

and necessity) is made redundant; in addition, the linking of the question of transcendental freedom
to the problem of its conceptualisation, pursuant to a demand of reason, is not made the centre

piece or keystone in a conceptual system. Where transcendental freedom is linked to ontological

themes the issue of its legitimation, in terms of sufficient reasons (i.e. explanations of states of
affairs, and conclusions in arguments, objective practical principles etc), ceases to be of

importance. Freedom as a fact, as the fact of a n occurrence of a phrase, is self-legitimating simply

in terms of a freedom of existence. This approach to theme of freedom makes the identification of
rationality with freedom contingent. There does not have to be a sufficient reason, condition or

cause, before there can be an occurrence of a phrase.86

Connecting themes of an ontological freedom with the issues taken up in the Incorporation

and Reciprocity Thesis, requires us to rethink the connection between transcendental freedom and

rationality. Under the Incorporation Thesis, you will recall, transcendental freedom is linked to the
spontaneous activities of reason as it is carried out in a deliberative process. It will also be recalled

that, on Allison’s argument, what is suggested under the Incorporation Thesis is a conceptual

model of rational agency which is necessary to adopt if we want to take ourselves to be genuine
agents. In this section what I am interested in doing is developing Lyotard’s ontological concept of

transcendental freedom as a way of regulating and modelling a concept of the deliberative will. As

I shall attempt to show, this requires us to rethink the concept of the will outside a philosophy of
the subject and in terms of an ontology of a phrase. Irrespective of the ontological claims which

are made, what I shall primarily be concerned with in this section is the regulative function which

the concept of transcendental freedom has for the various ways of understanding the empirical
activities of deliberation. In an approach which stands in stark contrast to Lyotard’s (and in

contrast to that which we looked at in the last chapter), I will also attempt to develop an analytical
86 For a secondary discussion of this point see: Geoffrey Bennington, Lyotard: Writing the event, (New York, Columbia
U.P. 1988) pp.123-34.
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link between a bare concept of transcendental freedom and (what might be considered to be

Lyotard’s equivalent) of the categorical imperative. In conclusion, I shall argue that such a link
cannot be made - but that the failed attempt is nevertheless instructive in a different direction.

In this section what I shall attempt to do is develop some of Lyotard’s claims in a more
analytical direction. In doing this I am aware that I am going against the express intent of some of

Lyotard’s work. For example, in attempting to develop an analytical deduction of the moral law

based on a concept of freedom, I am ignoring Lyotard’s claim that the law cannot be deduced (D
Kant Notice 2 §1). As it turns out, Lyotard’s claim is correct, but it is only correct if a negative and

positive concept of freedom is not thought in terms of a rational will, but rather in terms of a

negative and positive concept of instabilities in language. Furthermore, I shall aim to develop
Lyotard’s own philosophy of phrases, in terms of a conceptual claim about the type of model of

language we have to adopt if we want to take it to be something that is fundamentally

undetermined. This last point is only inconsistent with Lyotard to the extent that he would also
want to make ontological claims concerning the indeterminacy of language.

The approach which shall be adopted in this section is as follows: instead of regulating a
model of rational and moral agency in terms a cosmological concept of freedom, I shall regulate it

by means of an ontological concept. I do this by developing a concept of freedom, not by extending

the categories of experience, but by thinking freedom in relation to the question of Being/Nonbeing
and a problematics of a phrase. Once such a ontological concept is developed, I then employ it in

precisely the same regulatory capacity as its cosmological counterpart. Namely, as a concept which

is used for modelling rational agency, it is employed to regulate an understanding of the

deliberative capacities of a rational agent. In this regard, the spontaneity of the deliberator is not

thought in relation to a cause, law, a character, or even an act, but rather in relation to an

exteriority, an event, a burst, a nothingness and a contingency. Deliberation itself, is thereby

understood not to have its basis in an event that is first of all reasonable or caused, but rather in an

occurrence of a phrase (which lacks reasonable grounds). Furthermore, it is claimed that as a

condition of the possibility of taking up a practical point of view, the ontological concept of
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freedom (like its cosmological counterpart), regulates our very sense of what it means to be

practical agents.

On Lyotard’s approach to the issue of Transcendental Freedom, to think that the normative

model of agency (offered under the Incorporation Thesis) is somehow definitive of the scope of
Transcendental Freedom is to make the mistake of thinking that freedom, and thus occurrences,

existents and beings, are already rational. From Lyotard’s perspective, the problem with claiming

that the scope of transcendental freedom is limited to the activities of the normative agent, is that
this argument has the effect of equating the scope of rationality with all existents; in other words,

where spontaneity is equated with the normative activities of an agent, this has the effect of

reducing all occurrences (in the act of ‘taking up’) to elements in a rational world.87 What is
required, so as to put the Incorporation Thesis into a perspective which is more akin to Lyotard’s, is

that we rethink the concept of transcendental freedom (that ineliminable component of the rational

agency) in terms of the ontology of a phrase. In this way, spontaneity is not connected to the
‘taking up’ activity, but to the occurrence of a phrase. As we will see this redefinition of the

concept of freedom has a number of implications for how we think of the deliberative activities of

a rational agent.

The question which we shall have to pursue is, in what manner does Lyotard’s concept of

transcendental freedom alter a concept of the rational agent and the deliberative processes
associated with rational agency? Further, it shall also have to be asked, in what manner does

Lyotard’s concept of transcendental freedom need to be advanced, if at all, for the purposes of

developing an idea of the conditions necessary for an ethical situation? Namely, we should
consider whether it is possible, on the basis of a changed concept of a rational will and

deliberation, to make a connection between a negative and positive concept of freedom - thought in
87 This criticism of Kant is not unlike that of Bernard Williams’. For Williams, the sphere of ethics should not be equated
with Kantian morality. As argued by Williams, the Kantian picture makes impossible an intimate connection with desires.
It is impossible for there to be something like a categorical desire. Instead, the relationship of the self to desire (a
perspective which is supported by the identification of spontaneity with the activities of reason) is always mediated by
reason. On Williams’ argument this position identifies the practical standpoint with that of a detached and impersonal
legislator; rather, he would identify the practical standpoint with a self that is more intimately connected to desires. See
Bernard Williams, Ethics and the Limits of Philosophy, (Cambridge MA: Harvard Uni Press, 1985), p. 64-5; see also
Williams, Moral Luck, (Cambridge: Cambridge Uni Press, 1981) p.13.
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terms of a principle of alterity. Central to these arguments, will be the claim that the deliberative

activities of reason are already inscribed within the problematics of the phrase and the question of
Being/nonbeing. Here it will be claimed that on Lyotard’s argument, deliberation should not be

thought primarily in terms of the spontaneity of reason, but in terms of the spontaneity of the

phrases that are linked together in the process of deliberation. Such an approach to deliberation
makes clear that a “pure” will is only the result of the precarious and contingent linking of phrases.

2.4 Lyotard and the Incorporation Thesis

I

As I have noted, fundamental to the Incorporation Thesis is the conceptual claim that a concept of

transcendental freedom is an ineliminable component in rational agency. I have also noted that
where transcendental freedom is thought in connection with rational agency it is not thought as a

cosmological, but rather as a psychological concept (i.e. practical freedom). The distinctions which

can be drawn between these two ways of conceptualising transcendental freedom have been noted;
as a cosmological concept, transcendental freedom does not contain any empirical component, and

is defined as ‘the power of beginning a state spontaneously’ (CPuR A 533/B 561); as a

psychological concept, practical freedom is a hybrid containing as essential components, both the
transcendental idea of freedom and a number of empirical concepts. In its relation to practical

freedom, transcendental freedom is characterised as the thought of the “absolute spontaneity of an

action as the ground of its imputability” (CPuR A 448/B 476).

With this link between transcendental and practical freedom in mind, it is also important to

recall that Kant first elaborates an incompatibilist model of rational agency in connection with the
legitimation and conceptualisation of the cosmological concept; namely, in the Solution to the

Third Antinomy.88 An appreciation of the relationship between the cosmological and the

psychological concept of transcendental freedom is important, since it makes clear that both the

88 The argument here is that a cosmological approach to the will results in the conceptualisation of the will in terms of
the category of causality (which in turn has an analytical link to “law” and “character” and “sufficient reason”). On this
approach transcendental freedom is thought in terms of a first cause or prime mover. Once made an ineliminable
component of a concept of the deliberative will, the spontaneity of reason is itself thought to be the ground of such a will;
out of reason springs forth the categorical ground of the will.
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concept of rational and moral agency are premised on the cosmological concept. Transcendental

freedom, as I have just noted, is an essential component of the incompatibilist model of rational
agency (i.e. a genuine concept of rational agency); and a thickened concept of transcendental

freedom, one which not only includes a causal independence but also a motivational independence,

is essential to a concept of autonomy and moral agency. What these connections make clear is that
by altering the way in which a concept of transcendental freedom is thought, one thereby alters

both a concept of rational and moral agency.

The points that I now want to draw out, therefore, in connection with Lyotard’s reworking

of the concept of transcendental freedom in terms of an ontology,89 is the break which this

institutes with the categories of experience and the principle of sufficient reason. The point to note
concerning this argument, is that where an ontological concept of freedom is used to model a

concept of rational agency, and where freedom is not identified with the activities of reason, but the

occurrence of phrases that happen in a deliberative process, irreducible gaps are opened up internal
to a model of rational deliberation between phrases. The occurrence of a phrase (i.e. the

occurrence of the elements involved in rational deliberation) lacks a sufficient reason for being, yet

it happens.

Drawing the link between Kant’s cosmological and psychological concept of freedom helps

us to understand the implications for some of the same merges of concepts made by Lyotard.
Namely, what it helps us to do is make comparisons and distinctions: first, between Lyotard’s

ontological and Kant’s cosmological concept of freedom; and then to trace the implications which

the differences have for the rest of a practical philosophy. The first point which I shall consider is
the identification which can be made between Lyotard’s ontological claims, concerning the
89 In juxtaposing Lyotard next to Allison I am aware that that this lends itself to a “two world” reading of Lyotard’s
“ontological” approach. It needs to be noted that Lyotard’s Heideggerian approach to freedom is itself anti-dualistic and
concerns an approach which thematises the “mode of being” that something has in the world. On this approach “being”
is not treated as a quasi thing which can be known determinately. Thus, the occurrence of a phrase is not some thing
(either noumenal or phenomenal) which can be given in a determinate way. As Bennington points out concerning
Lyotard’s notion of presentation as it relates to phrases (translated by Bennington as ‘sentences’): ‘the complexities of
presentation should remove any suspicion of a “metaphysics of presence” attached to the notion of a sentence. A
sentence is never simply present (to itself) split on the one hand between presentation and the universe presented
(situation), a sentence is also, constitutively, linked to other sentences’ (Lyotard, ibid., p.130). In short, as I shall note,
the occurrence of a phrase is neither a noumenal transcendental entity nor a phenomenal situated entity.
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occurrence of a phrase, and its identification with transcendental freedom. It is also interesting to

note that Lyotard’s ontological question concerning freedom may be read as cosmological, in that
both issues are taken up in connection with time-space problematics. The distinction which has to

be kept in mind, however, is that Lyotard deals with the issue of time-space in relation to the

question of Being/Non-Being and the problematics of a phrase (D. Aristotle Notice: §3:2), whereas
Kant deals with the issue of time-space, in terms of a phenomenology developed in the

transcendental aesthetic of the Critique of Pure Reason. This distinction has importance for

thinking the relation of the I of the I take (a self-legislating subject) and I think to desires,
inclinations, feelings, representations etc. Without the presupposition of the ideality of time and

space based on a phenomenology of the subject, it is possible to think the relation of an existent to

a rational agent outside the concept of the I of an I take.

To clarify some of these points, I will first develop the identification which can be made

between Lyotard’s theme concerning the occurrence of a phrase and transcendental freedom
quoting from “Newman: The Instant” (1984) - where Lyotard defines the meaning of an

“occurrence” and “event”. In this quote, Lyotard is referring to Newman’s paintings (which may,

of course, on Lyotard’s broad definition of a phrase, be called phrases). To grasp the importance of
this passage for a philosophy of phrases, it should be noted that in the Differend (1983), the term

“occurrence” is applied to a “phrase”. In that context the term occurrence is used to make a

transcendental distinction between the “now” of a phrase which situates instances by means of
deictic operators (I-here-now), and the ”now” which is identified with the presentation of a phrase.

It is the “now” of the presentation which is identified with the occurrence of a phrase. This “now”

is called absolute (in that it cannot be presented) and it is identified with the boundary between the
diachronic operators “before/after” (Aristotle Notice: §3.2). The ‘occurrence’ is also thematically

linked to Aristotle’s notion of a “now” which is the boundary between a before/after, Levinas’

There is (Il y a) (D. §111) and Heidegger’s Ereignis (occurrence) (Aristotle Notice: §3.2; 187;
202); although some important qualifications are made by Lyotard with respect to a straight

forward identification between his and Heidegger’s use of the terms occurrence. I shall return to
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develop these points in a moment, but for now let us dwell on some of the thoughts that are implied

by the term “occurrence”.

The titles of many of his paintings suggest that they

should be interpreted in terms of a (paradoxical) idea of
beginning. Like a flash of lightning in the darkness, or
a line on an empty surface, the Word separates, divides,
institutes a difference, makes tangible because of that
difference, minimal though it may be, and therefore
inaugurates a sensible world. This beginning is an
antinomy. It takes place in the world as its initial
difference, as the beginning of its history. It does not
belong to this world because it begets it, it falls from a
prehistory, or from a a-history. The paradox is that of
performance, or occurrence. Occurrence is the instant
which ‘happens’, which ‘comes’ unexpectedly but which,
once it is there, takes its place in the network of what
happened. Any instant can be the beginning, provided that
it is grasped in terms of its quod rather than it quid.
Without this flash there would be nothing, or there would
be chaos. The flash (like the instant) is always there,
and never there. The world never stops beginning. For
Newman, creation is not an act performed by someone; it is
what happens (this) in the midst of the indeterminate.
(LR. 243)

As can be seen from this passage the conceptual identity between the Kantian notion of

transcendental freedom and Lyotard’s occurrence and event is readily apparent. First, the
language suggests that Lyotard is thinking the problem of the occurrence both in terms of a power

to begin a state spontaneously and in the antinomical terms set out by Kant in the Third Antinomy -

where Kant legitimates the cosmological concept of transcendental freedom.

The differences, however, between Kant’s and Lyotard’s approach to freedom is that an

occurrence is thought in ontological terms as a ‘burst’ or a ‘flash’ of an existent,90 rather than in

90 At this point one might make comparisons between Walter Benjamin’s writings on the experience of the city and what
might be termed Lyotard’s writings on the experience of phrases and “language”. This notion of “experience” in both
cases, needs to be broaden beyond that developed by Kant in the first Critique. For Lyotard, it is necessary to extend
the concept of experience to quasi-factual states of mind such as “feelings”. In both cases the experience (of the city
and of phrases) evokes a categorical framework or doctrine of categories that is not established on the basis of
substance or subject. In the place of a Kantian transcendental deduction of the categories of quantity etc. based on the
pure unity of the apperceptive I, both Benjamin and Lyotard develop an immanent critique of categories based on
experience. As Howard Caygill has pointed out, for Benjamin the experience of the city ‘replaces substance and subject
with transitivity’. And on the basis of the ‘impure dispersal of anonymous transitivity’ such ‘categories of modern
experience were derived as ‘porosity’, ‘threshold’ and ‘shock’ ” : Howard Caygill, Walter Benjamin: The Colour of
Experience, (Routledge, London 1998) p.120. For Lyotard, it might be said that the notion of ‘occurrence’ replaces that
of substance and subject and that on the basis of the experience of the impure dispersal of phrases such categories as
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terms of ‘law’, ‘causality’, ‘character’, or even as an ‘act’ or ‘power’. Lyotard makes this

sufficiently clear when he says:

Presentation is not an act of giving (and above all not

one coming from some Es, or some It and addressed to some
us, to us human beings) Nor by presentation (every term
to designate this is illusory and illusionist, I have
said why) do I understand the act of a dunamis, of a
potency, or a will of this potency, a desire of language
to accomplish itself. But merely that something takes
place. This something is a phrase, undoubtedly. (D
Aristotle Notice: §3.1)

Perhaps of greater importance, is to note that where freedom is thought in ontological terms as a
‘burst’ or ‘flash’ of an existent it cannot be attributed either to either a rational or irrational activity,

nor to a causality. This observation, of course, has a number of implications for the way in which

Kant conceptualises the cosmological concept so as to satisfy the completeness requirement of the
principle of reason. In the Kantian context, because transcendental freedom is already thought in

terms of a Divine act which has its own causality, law and character, the demand of reason can be

satisfied since what it can appeal to, so as to legitimate explanations, is already fundamentally
rational. On Lyotard’s approach, a pure will cannot be thought in terms of either a causality of

nature nor a causality of reason, but rather in terms of the occurrence of phrases which, linked

together, constitute a will. In opposition to Kant, Lyotard would not claim that it is the capacity to
act on the basis of practical principles that is the defining feature of a deliberative model of agency,

but rather that it is the capacity to act on the gaps and nothingness which each occurrence in the

deliberative process involves.

As Lyotard points out concerning the statement "Every Phrase is " (D §131): is , is not

“which is”; nor does it mean is real, and even less does it mean is rational (ibid). Furthermore, in
the statement, every phrase is, “every phrase”, he says, signifies “everything that happens”; and is

signifies “there is, it happens”. “It happens”, as he points out, signifies “what happens, in the

sense that quod is not quid (in the sense that the presentation is not the situation)” (ibid); more to

“burst” and “flash” are deduced. One might also add the ‘differend’ to Lyotard’s list of categories of the experience of
language.
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the point, since what we are dealing with here is the ontological condition of a phrase prior to its

representation, is would (but it does not) designate the occurrence “before” the signification (the
content) of the occurrence. The reason is does not designate the occurrence, is because by

designating the occurrence in terms of a “before” signification, it would occult the (absolute) now

(nun ) of the phrase in terms of the diachronic operators of successivity before/after. As Lyotard
points out, the is should rather be thought as Is it happening? where the “it indicates an empty

place to be occupied by a referent” (ibid).

The contrast between Kant’s notion of transcendental freedom (as read by Allison) and

Lyotard’s, is brought into sharp focus if we consider the contrast in relation to the issue of

legitimation. On Allison’s reading of Kant, every occurrence (in time) is already regulated in terms
of the category of causality and space time forms. An occurrence is defined as ‘the “causality” of

every cause’ (KTF 17). Understood already in terms of the category of causality, reason demands

that every occurrence be legitimated in terms of the entire sum of conditions and consequently the
absolutely unconditioned. In order to satisfy this demand the category of causality is extended so

as to become a cosmological idea. The cosmological idea provides the basis for legitimating an

occurrence and is appealed to so as to satisfy the completeness requirement, and to provide a

sufficient reason for the occurrence. thesis for transcendental freedom in the Third Antinomy is

legitimated on the basis that it satisfies the completeness requirement demanded by the regulative

principle of reason. As a result (so as to satisfy a demand of reason), every occurrence that happens
is always already thought to have a sufficient reason for being; the demand of reason is that this

sufficient reason not only be provided by explanations which refer to a set of conditions (which are

in turn explainable by another set of conditions), but that an ultimate explanation (which has its
ground in a cause which, in turn, has no explanation) also be provided.

When we compare this account of transcendental freedom with that of Lyotard’s, the first
point to note is that the occurrence of a phrase is not thought to be always already bound by a

legitimation requirement of reason. First, the occurrence is not thought in terms of a cause; it is not

thought to come into being because there has been a sufficient causality for it to do so.
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Importantly, the occurrence of a phrase is thought as a boundary, or ‘distinguishing limit, between a

“before and after”; or as the zone of contact between the anterior and the posterior’ (Aristotle
Notice: §2). As a boundary it is distinguishable from an Husserlian “living present” which is both a

permanent point of origin and a time which constitutes the transcendental subject, and the

diachronic time on the side of the object. Furthermore, it is distinguishable from the “now” which
is immanent to the diachronic operators “before and after”; in this case the “now” does not involve

a capacity of presentation, but rather that of a situating and cross-referencing referents which take

place in the heart of a universe presented by a phrase. In short, the occurrence of a phrase cannot
be identified with a noumenal thing-in-itself, nor with a phenomenal object situated in time.

A boundary is not completely transcendent of time (before/after), since it ‘is itself affected
by the before/after’; nor is it completely immanent to time, since as a “now” which presents a

phrase universe, it is not the same as the time (identified with the time which functions in phrase

universes so as to situate instances constituting the phrase universe) which situates instances of a
phrase universe. Where the requirement demanded by the principle of sufficient reason is that of

universalizability, such a requirement only operates in relation to explanations and referents which

can be situated along the directional axis of before/after. Since, as a boundary, the occurrence of a
phrase cannot be located on this axis, it is exempt from the principle of reason. In fact, the

principle of reason is itself a phrase, whose occurrence lacks any basis in reason. The only basis

for the presentation of the phrase if the conditioned is given, the entire sum of conditions, and
consequently the absolutely unconditioned is also given, is that it happens. It is only by

retrospectively linking onto the phrase according to the rules of logic that a basis in reason can be

legitimated. In doing that, however, another phrase is presented and so on; the claim is that the
presentation of the phrase does not have a basis in rationality, but simply in its happening or

occurrence.

Accepting this reading of Lyotard, that the cosmological concept of transcendental freedom

can be thought in terms of an ontology of the phrase, let us now consider what implications this

may have for an incompatibilist model of rational agency.

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II

As I have noted, under the Incorporation Thesis transcendental freedom is identified with the

activities of practical reason and, in turn, practical reason is identified with the deliberative
activities of the will. On this approach both rational and moral deliberation are thought not only to

involve a consciousness of a set of practical constraints but the very activity of deliberation is itself

regulated or guided by the moral law. The essential point, from the perspective of the argument
which I am wanting to pursue, is simply to note that rational deliberation is thought to be always

governed by unconditional objective practical principles. As I have noted, the oughts upon which

the rational agent is said to act are all provided by such principles (whether they are hypothetical or
categorical). On this approach we can say that the occurrence of a maxim and any other basis on

which a rational agent may be thought to act is already fully explainable in terms of principles of

rationality. Both the act of incorporation and adoption involve deliberative judgments carried out
in terms of already established objective principles. The claim is not that the rational agent makes

maxims by referencing a distinct and explicit awareness of the objective practical principles but

merely that reason always intervenes in the formation of maxims by providing a sufficient reason
for action.

On Allison’s reading of Kant, it has been seen that the relation of maxims (or first-order
practical principles) to objective practical principles (second and third order principles) is

analogous to the relation, in theoretical sphere, between empirical and pure concepts: the latter

provide the rules governing the formation and legitimation of the former. The question for us, is
whether the formation of all first-order principles is to be governed and legitimated by objective

practical principles? On Lyotard’s reading of the deliberative process, this would only be possible

if each occurrence of a phrase were already explicable in terms of objective principles.91 Given
that an occurrence of a phrase does not have its basis in a sufficient reason or a cause, the

deliberative process itself (which is constituted in terms of a series of linkages between phrases)
91 It should also be noted, that on Lyotard’s arguments ethically valid prescriptions are not legitimated by appealing to
norms of practical reason, but to a feeling of obligation which has a basis in the spontaneous instabilities of language.
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also cannot be thought to include only that which is rational: at each zone of contact between what

has been and what is to come it is required, under a model of a rational agency regulated by an
ontological concept of freedom, that the occurrence of a phrase be included in the deliberative

process. By including the occurrence of a phrase in the deliberative process, that which is neither

natural nor rational is thought to be the spontaneous ground of deliberation.

Concerning these same issues, Lyotard never directly takes up the question of what is

required so as to form an incompatibilist model of rational agency.92 Where he does, the problem
is very rarely dealt with in terms of individual rational agency, or even individual moral agency.

Rather, his most detailed accounts in this area are in connection with what he calls the ‘pragmatic’

form of modern politics (PE 42-3). Any discussion which is offered of what may be described as
an incompatibilist model is taken up only in the context of a discussion concerning the self-

legislating political sovereign (i.e. a We of a We will).93 The central focus of these discussion is

not so much the development of a conceptual model of a deliberative democracy, different to those
formed on the basis of a concept of practical freedom, but rather the issue of legitimation.

Lyotard’s primary concern seems to be the epistemic issue of legitimating claims concerning

spontaneity. The question which may be asked therefore, on Lyotard’s behalf (so as to connect
Lyotard’s themes concerning phrases with the question of an incompatibilist model of a collective

will), is when can a political sovereign legitimately claim to be a self-legislating or self-

determining sovereign? Lyotard’s approach to this issue may be looked at in connection with his
discussion of Republican forms of politics and the pragmatics of modern Declarations (D

Declaration of 1789 Notice; PE 51). In pursuing this question I shall also be noting the way in

which Lyotard tends to think through a conceptual model of deliberative politics.

92 So as to be clear, Lyotard’s incompatibilist model of the deliberative will or rational agency may be seen to be taken
up in terms of, what Kimberly Hutchings has called, “Lyotard’s Republicanism”: Kimberly Hutchings, Kant: Critique and
Politics (Routledge, London, 1998) p.132. As pointed out by Lyotard in a number of places, a republican politics is not
one which is legitimated in terms of the proper name of a collective, but rather the Idea of Freedom (PE 51). The
question is, however (and this is the question which I am exploring in this section) what type of idea of Freedom is
involved. My claim, is that Lyotard’s Idea of freedom is that which is linked to the event of a phrase, and has as its
basis, the instability of language which makes possible the differends and the moral orientation of the deliberative will.
Lyotard’s incompatibilist model is thus a model of language which has the concept of freedom (thought in terms of the
ontology of a phrases) as an ineliminable component.
93 For the moment, for the purpose of exploring the structure of Lyotard’s argument, I shall leave aside the question of
the phenomenological leap which is implied by a move from an I of an I will to a We of a We will.
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Importantly, Lyotard is not clear as to what concept of freedom should be used to regulate a
model of a deliberative process; in some cases it is a cosmological concept and in others it is

autonomy; only indirectly does he introduce an ontological concept as a way of regulating a model

of deliberation. I shall deal with these points in the ensuing discussion. Here, however, I want to
briefly set forward the conceptual model of deliberative democracy which I think is most consistent

with the direction of thought contained in Lyotard’s philosophy of phrases. Lyotard provides his

most explicit description of the deliberative model of politics in The Differend (D. §220; §210-
217) and again condenses and affirms this model in The Postmodern Explained (PE. 47-49). In

summary, the deliberative process may be described loosely in terms of a series of linkages

between phrases and further as a solution to the political question par excellence , namely the
question of how a phrase is to be linked onto (D. §184; §188; §190). Lyotard’s description of

deliberative forms of democracy are to some extent confused and, from my perspective, left

somewhat unresolved. I attribute this confusion to Lyotard’s failure to deal more consistently with
some of the strands in his wide-ranging philosophy. On the one hand it is accepted that a

deliberative model is regulated by the Idea of freedom and, following Lefort’s analysis of

democracy, that where sovereignty is attributed to the Idea of a free community, the sovereign
addressor of normative phrases is left empty (D. §200; PE. 51; PW. 118; LR. 73-4). On the other

hand, however, Lyotard does not resolve how his ontological approach to the occurrence of a

phrase impacts on his discussion concerning the relation between a republican politics regulated by
a cosmological concept of transcendental freedom and ethically legitimate prescriptions.

It will be recalled that in Chapter One it was concluded that a republican politics, or the
Idea of a free humanity, does not provide the rule for legitimating ethical prescriptions; the Idea of

a free humanity introduces the threat of a transcendental illusion by subjecting the prescriptive

mode of formation and legitimation to the rule of consensus governing the formation and
legitimation of cognitive phrases. When it comes to a political model however and the necessary

attentiveness which must be paid to the occurrence of a phrase and the question of how to link onto

a phrase, the model authorised by the Idea of free humanity would appear to be rivalled by none.
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As Lyotard points out concerning a ‘politics of terror’ authorised by the Idea of freedom, this mode

of politics

far from dispensing with deliberation and its

institutional organisation, it (a politics of terror)in
fact demands it. For this organisation alone carries to
the limit the responsibility each person (as both
representative and represented) has regarding each of the
genres of discourse necessary for a political decision.
What people put on the line in these deliberations is
not only, and perhaps not essentially, their lives: it is
their judgment, their responsibility in the face of the
event. We should remember that, in principle, a complex
deliberative organisation leaves open the way that one
phrase or genre of discourse is linked to another. This
is true in every step in the process of the will. (PE 55-
6)

From the perspective of a receptiveness to the occurrence of a phrase the deliberative model which

is regulated by the Idea of Freedom is said to make possible ‘the practical reception of an event’

(LFE 37); indeed, according to Lyotard, there would not be ‘an ethical occurrence if thinking were
not advised of the idea of universal freedom’ (Ibid., 36-7).

As I have pointed out this ethical receptiveness to an occurrence in Kantian thought

requires that an occurrence already be thought in terms of the category of causality and, in turn, in

terms of the practical concepts of “character” and “law”. The ethical reception most commonly

applies to occurrences such as maxims of action and action itself. Where these occurrences are
judged ethically they are assessed as equivocal signs of an absolute causality; only feelings of

obligation, respect and the sublime are regarded as unequivocal signs.

So how do we reconcile Lyotard’s two judgments concerning the function of the Idea of

freedom? On the one hand, his positive view that the Idea of freedom makes possible a practical

reception of the event, and on the other, his view that the Idea of freedom, where it is linked to an
Idea of a universal humanity, introduces the threat of a transcendental illusion. I would suggest the

missing element which would give a more complete picture of Lyotard’s model of deliberative

democracy concerns the claim that the occurrence of a phrase necessarily gives rise to differends.
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That is, where there is an openness to the event of a phrase, as is the case under a deliberative

model regulated by the Idea of freedom, the war between genres of discourse, concerning what end
the current phrase is to be subjected, is intensified. Such a conflict is descriptive of the linguistic

situation which persists in radically pluralistic Western democracies and sets up the pragmatic

conditions under which ethical prescriptions may form. The crucial point here is that the Idea of
freedom functions so as to regulate a judgment concerning the ethical goodness of the reception of

an event. On Lyotard’s reading, the imputation of good or evil to an action involves the

presupposition that the agent is the addressee of an unconditional obligation. The action is good if
it is carried out under the guidance of respect for the obligation, and it is evil if such guidance is

disregarded (D. Kant Notice 2: §6).

On my understanding of Lyotard’s philosophy of phrases, such unconditional obligations

are contingent on the formation of silences, victims and wrongs. It is the formation of these

situations which provide the necessary asymmetrical relations indicative of the pragmatic
conditions of a prescriptive phrase. As argued in the first chapter, all other relations are governed

by principles and in such circumstances prescriptions are received in a manner which already

neutralises their executive force. In the light of this understanding of Lyotard’s philosophy of
phrases, the Idea of freedom functions so as to regulate a judgment concerning the ethical

receptiveness not merely of occurrences but also of differends. Or, more plainly, the Idea functions

to regulate a judgment of those actions that are claimed to be responsive to the plight of victims.
Such actions are good or evil depending on whether they are motivated by a respect for the victim.

The solution to this problem is deferred to a further judgment, whose value is in turn is deferred to

still another judgment, and so on. Under the regulation of the Idea of freedom an action may be
judged as either a positive or negative sign of an unconditional obligation or ethically valid

prescription, depending on whether it is judged good or evil. Furthermore, under the regulation of

the Idea of freedom, the action or maxim of action should not be judged to be the effect or
consequence of an unconditional obligation, but merely its sign. The subsequent action and maxim

of action prompted by an unconditional obligation does not therefore produce an ethical

community. Rather, such a maxim or action can only be carried out as if it were the law of such a
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community. As I have noted in Chapter One, this is not only because of the problems concerning a

proof of the unconditional ground of action, but also because of the differend between prescriptives
and cognitive phrases. The as if functions to mark the differential between the ethical

(prescriptive) and political (normative) community.

In Chapter Three I shall also argue that on Lyotard’s analysis the Idea of Freedom is not

properly identified with a universal humanity wherein there is an exchangeability between

legislator and obligee. Rather, I shall show that on Lyotard’s considered view, heavily influenced
by Levinas’ ethics, the Idea of freedom is only identifiable with the addressor of a prescription.

The question therefore which is raised in the context of deciding on the absolute spontaneity of a

deliberative agent (either individual or collective) does not figure on a judgment of the free will of
the agent, rather it centres on a judgment of whether or not the agent is the addressee of an

unconditioned obligation. On this basis it is possible to say that if the Incorporation Thesis has a

place in Lyotard’s philosophy of phrases it does not function regulatively in a concept of ourselves
as normative rational agents, but rather regulatively in a concept of the unknown addressor of an

ethically valid prescription and in a concept of the normative agent as the addressee of an

unconditional obligation. The possibility of a practical reception of an event is not premised on the
absolute spontaneity of the normative agent, instead it is premised on the possibility of the

normative agent being placed on the addressee instance of a prescriptive phrase universe; namely, it

is premised on the possibility of the normative agent feeling obliged before knowing the reason
why he, she, it is obliged and before knowing to whom he, she, it is obliged. A practical

perspective is itself ushered in when the normative agent is shifted from a legislative position onto

the position of being obligated.

In the context of the outline of the deliberative model provided by Lyotard the practical

moment may be said to provide the highest end, or in Kantian parlance, the cast of mind
(Gesinnung - an ultimate subjective ground), that makes possible the transcendental appearance of

a single finality. As noted, in a deliberative democracy the occurrence and differend is exposed;

nevertheless, the transcendental appearance of a single finality has the effect of helping forget or
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making the differend bearable (D. §210). As noted in Chapter One, this transcendental illusion,

whereby the asymmetrical relation of the prescriptive phrase is treated as if it could be litigated by
a single principle or end, is inevitable once the transition is made to the normative phrase universe.

On Lyotard’s description, the ethical moment in the deliberative process takes place under
the guidance of the interrogative prescriptive ‘What ought we to be?’. Under the influence of the

interrogative prescriptive, the general feeling is that a discussion should take place concerning the

single finality that might unite the parties involved in a differend. The questioning takes place on
the level of an abstract generality that requires that the parties answer the question as if they already

belonged to a universal we. Namely, the we involved in the interrogative is not a particular

historico-political entity (“we English”) but rather “we humans”. The general feeling surrounding
such discussions, which are necessarily dialectical in the Kantian sense, is that they cannot help but

put the we back in question. In this way even though a single finality is provided that would

regulate the deliberative process, this finality itself is always brought back into question. The
finality may provide the illusion of settling differends but such an illusion is only probationary and

temporary.

At this point I am only interested in drawing out the parallels and difference between Kant’s

Incorporation Thesis and a similar type of thesis in Lyotard’s philosophy of phrases. Later I will

look at the more detailed account of the deliberative model which which Lyotard provides. Suffice
it to say here that it may be argued that Lyotard does think that the thought of transcendental

freedom functions regulatively in a concept of ourselves as rational agents with an empirical

character. As I have noted above, the Idea of freedom makes possible the practical reception of the
event on two fronts: first, as I will argue in the Chapter Three, the Idea of Freedom is deduced from

within the prescriptive phrase on the basis of the effect of the feeling of obligation as the immediate

implication of the addressor; second, the Idea of freedom functions to regulate judgments
concerning maxims of action and action itself. In this instance, if it were not for the Idea of

freedom the speculative claim could not be made that an action or maxim of action is the sign of

an absolute spontaneity or an unconditioned obligation.

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I shall now move to questioning some of the arguments and thoughts which Lyotard offers
in support his approach to a Repubilcan politics and the deliberative process. In particular I am

interested in looking at the way in which Lyotard uses the Idea of freedom and, in the light of

recent Kantian studies, which concept of freedom Lyotard thinks is necessary to a deliberative
model of agency. Further, I am also interested in looking at how an ontological concept of freedom

might operate in a deliberative model.

On Lyotard’s approach to the question of Republican politics, which he equates with a

politics identified with a genre of deliberative consensus (D. §199), there is the implication that

such a politics is regulated not simply by an Idea of freedom but also by a principle of autonomy
(D.§155). On this point it is necessary to say that Lyotard confuses the two concepts of freedom.

For example, in some instances he uses the concept of autonomy simply to describe a will which is

self-legislating.94 Perhaps one of the clearest indicators of Lyotard’s confusion in this area is
found in the following remarks concerning the second Critique. Here Lyotard reduces the principle

of autonomy to the problematic of a ‘subject who is at once the sender and the addressee of the

prescriptive statement’ (JG 30).

The Kant of the second Critique belongs to this

problematic. At least, he also belongs to it (for Kant
is also bound to a different language game, much less
“modern” and much more “Jewish.”) Here one finds
something that is already opposed to the previous model
(Plato’s), a model in which imperatives were construed
hypothetically as in the form If P, then R. Now the
imperatives have a categorical form, and they are
categorical only inasmuch as the will, in the Kantian
sense, is autonomous in the utterance of the law. And so
we get this idea of autonomy. (JG 30)

A number of points may be made here. As defined, Lyotard’s enunciating subject could just as

easily be applied to an incompatibilist model of rational agency. As Allison has quite clearly

shown, one does not have to be autonomous to be self-legislating. Second, Lyotard reverses the
relation of maxims and unconditional practical laws, making the categorical form of unconditional
94 Lyotard identifies a self-legislating will with an ‘enunciating subject’ (JG 29).
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practical laws dependent upon their utterance by a rational agent. He does this because, as we have

noted earlier, the logical form which Lyotard gives to norms is one which depends primarily on a
declaration made by a sovereign addressor. Third, he identifies the capacity to utter categorical

imperatives with autonomy; once again, one does not have to develop a concept of rational agency

under a concept of autonomy so as to legitimate the claim that an agent can utter the law; one only
has to think an agent under a concept of autonomy if one is wanting to claim that the rational agent

utters the law because it conforms to unconditional practical laws. Further, Lyotard misses the

point that hypothetical imperatives involve the same capacity of enunciation as categorical
imperatives, since a spontaneous act of reason is involved in the supply of all objective principles.

To add to the above confusion concerning the concepts of freedom, Lyotard at a later date
develops a model of a deliberative democracy, or Republican politics, in terms of an Idea of

Freedom which also involves the concept of freedom as autonomy. In a statement concerning a

model of a deliberative democracy Lyotard makes clear that a motivational requirement must be be
satisfied before the positive laws of the state can be fully legitimated. From this we see that

Lyotard runs together (what in Kantian thought would be called) morality and politics. Lyotard

makes this point when he says,

I hope you will agree with me without developed

argumentation that the ethical approach is basically
relevant, although not sufficient to deal with everything
we call political. The most obvious reason for this is
that every political deliberation and decision, either
explicitly or implicitly, involves a reference to and, as
much as possible, an answer to the issue of what “we”
ought to be or become in our present circumstances. (LFE
35)

From this statement, however, it is not obvious why we should think that there is any point of
identification between politics and ethics. The question, ‘what ought “we” to be or become in our

present circumstances?’ could be asked just as easily by a rational-egoist. It would not be

necessary to have a consistent concept of moral agency before one could think of an agent adopting
maxims satisfying this test. As formulated, not even a compatibilist model of rational agency

would have problems incorporating this test; a maxim which satisfied the rationality requirements
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of universality would be sufficient to satisfy what is demanded by this question. Furthermore, even

if we assume that the requirement of legitimation is extended to fundamental subjective principles,

one could safely incorporate this test into an incompatibilist model of rational agency. In that case,

it is still possible to claim that one does not have to be moral. Under such a model of the rational

agent the local ethos is thought to be adopted freely. It is certainly not necessary that we develop a
concept of rational agency in terms of autonomy in order to ask the question, ‘What ought we to

be?’

The confusion concerning the concepts of freedom is further added to when Lyotard

identifies the “fact of reason” with the interrogative prescriptive, ‘What ought we to be etc?’

‘Here’, he says,

without further explanation, I shall call the law the

fact that there is a question or that we are questioned
about what we ought become and what we ought do to become
it. That fact Kant calls a ‘factum rationis,” the
indisputable fact that practical reason is an apriori
transcendental condition for any morality whatsoever.
(LFE 35)

However, it is entirely inconsistent with Lyotard’s position elsewhere and certainly with a

Levinasian ethics, to equate the fundamental practical perspective instituted by the prescriptive
phrase with that of an interrogative. The one who asks the question is not the addressee of a

prescriptive phrase but the normative rational agent who questions him/her self concerning the

legitimacy of maxims. It means very little that the “we” implied in the question is the “we” of a
cosmopolitan Republic; as I have noted, rational egoists can quite easily comply with the test of

universalizability without being moral agents (they can adopt maxims which comply with

unconditional practical laws because they see that such adoption will lead to their future happiness
and wealth etc); what they cannot do is adopt a maxim because its legislative form complies with

unconditional practical laws.

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Putting to one side these confusions,95 it is nevertheless important to note that Lyotard

distinguishes a deliberative (or republican) form of politics from a narrative politics precisely on
the grounds that under a deliberative form of politics ‘the abysses’ that separate genres of discourse

from each other (and even phrase regimens from each other) are able to be perceived. It should not

be thought, therefore, that the Idea of Freedom, which regulates the deliberative process, is
applicable to the spontaneity of reason (i.e. that maxims are made according to the rules supplied

by reason) but rather that it refers to the occurrence of a phrase whose linkage is regulated under

the ontological idea of freedom (and whose linkage may also be thought to constitute a precarious
“will”).

Regulated according to this Idea the deliberative process is marked by an irreducible

conflict between genres of discourse (at each point of contact between the past and the future).

Any phrase in the deliberative process which links (i.e. as a boundary between a past and future) ‘is

always a pagus, a border zone where genres of discourse enter into conflict over the mode of
linking’ (D§ 218). In opposition to this a narrative form of politics is that form within which, ‘the

heterogeneity of phrase regimens, and even the heterogeneity of genres of discourse, have the

easiest time passing unnoticed’ (D §219). Wherever in a deigetic time a narrative politics stops ‘its
term makes sense and retroactively organises the recounted events’ (ibid). In a narrative politics

‘the unleashing [dechainement ] of the now is domesticated by the recurrence of the before/after.

The diachronic operator, or operator of successivity, is not called back into question’ (ibid).

Primarily, where an ontological idea of freedom (and the problematics of a phrase)

regulates a model of the deliberative process this process cannot be thought either in terms of a
‘law of causality’, a ‘cast of mind’, nor in terms of fundamental maxims (i.e. self-love) or

95 The confusions which I have outlined may be understood to be related to those concepts of freedom which Lyotard
thinks are necessary to include in a concept of political sovereignty in order to develop what may be regarded as a
genuine concept of sovereignty. The argument which I am putting forward, based on my reading of Allison, is that if
what is required is a concept of the political sovereign as ‘self-legislating’, then all that need be included in our concept of
political sovereignty is transcendental freedom - not autonomy. If on the other hand we want to think of a political
sovereign as a genuine moral agent then it is necessary to include in our concept of sovereignty a concept of freedom as
autonomy.
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orientations of a will.96 Rather, the deliberative process is first thought in terms of the occurrence

of phrases and the threat of the conflict between genres which each occurrence brings. In this
regard, politics itself is defined as the ‘threat of the differend’ and as ‘the multiplicity of genres’

which may be actualised in the determination or provision of a law regulating the linkage of

phrases. As Lyotard says, politics

is not a genre, it is the multiplicity of genres, the

diversity of ends, and par excellence the question of
linkage. It plunges into the emptiness where “it happens
that . . . “ It is, if you will, the state of
language, but it is not a language. Politics consists in
the fact that language is not a language, but phrases, or
that Being is not Being, but There is’s. (D §190)

Stated like this, it would seem that where a model of rational deliberation is regulated according to

an ontological concept of freedom what we are left with is a type of decisionism. Since the
deliberative process is not to be thought either in terms of a law of causality identified with the act

of adoption/incorporation, or with a cast of mind (Gesinnung - an ultimate subjective ground), but

rather the “Is it happening?” of a phrase, it would seem that the determination of an occurrence
falls to the brute choice of a subject. This would indeed seem to be the case, but for the fact that

the conflict of the genres of discourse also institutes an ethical situation or asymmetrical relations

in which the fundamental orientation of a will is not provided by a self-determining subject but by
a feeling of obligation. This feeling does not have its basis in the spontaneous activities of a

subject but in the anarchic elements of language (i.e. the occurrence of a phrase).

2.5 Lyotard and the Reciprocity Thesis

The point which I now want to develop is analogous to the problem which Allison explores under

the heading of Reciprocity Thesis. Here I am interested in making the analytical link between

freedom and the law in terms of the problematics set up by Lyotard. As under the Kantian

96 This is not to say that these cosmological and psychological categories do not have significance, but merely that they
are not central to the question of the spontaneity of the deliberative process.
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Reciprocity Thesis, it is intended that the analytical link will be made by both deducing the

unconditioned practical principle and the conditions of freedom which make possible the type of
action required by such a principle. I will begin by considering the analytical link which can be

made between a concept of freedom as absolute spontaneity and a concept of freedom as alterity;

contrasting this with the Kantian link made between a concept of freedom as absolute spontaneity
and a concept of freedom as autonomy. As I have noted, the Reciprocity Thesis is introduced in

the Groundwork in connection with that distinction between concepts of freedom. In that context

the distinction and the nexus between the two concepts is defined in terms of a concept of
rationality. Namely, the particular analytical link which is made between a negative and positive

concept of freedom is only made because it is presumed that a free will is also one which is

regulated by the objective principles and logical procedures of reason. In short, not only are the
individual concepts of freedom defined in terms of a will which is law governed, but the link

between the concepts is made on the same basis. Negatively, freedom is defined as that which is

not determined by alien laws, and positively it is defined as a freedom which is self-determining
(according to its own immutable principles).

Where the issue of the analytical link between a negative and a positive concept of freedom
is dealt with in terms of the problematics of a phrase and ontology, the notion of a will which is

law governed cannot be utilised so as to make the link between the two concepts; likewise, the

deliberative process of a republican politics cannot be thought to be one whose spontaneity rests
with the activities of reason. If anything, what is required so as to make the link between the two

concepts of freedom is a concept of language which is thought, not in terms of a law-structure, but

in terms of instabilities and all its other equivalents (eg. contingency, equivocalness, indeterminacy,
anarchy etc). In this context the Incorporation Thesis and the (intelligibility of) deliberative

activities are not so much identified with the activities of practical reason, but rather, with the

spontaneity of the occurrence of a phrase. In the deliberative process this spontaneity may be said
to apply to maxims and objective practical principles, not because of the rationality implicit in

them, but because they occur as phrases. In this way a model of the deliberative process may be

constructed in terms of the open and uncertain time-space made immediate by the occurrence.
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If we attempt to make a distinction between a positive and negative concept of freedom in

terms of an idea of language (that is itself defined not in terms of laws but in terms of the differend
or instabilities that are immediate with every occurrence of a phrase), we get some of the following

results. In the first place, note that, strictly speaking, the ontological concept should be formulated

as an absolute spontaneity of a phrase. Here we are merely concerned to add to the bare concept of
spontaneity a notion of instabilities and differends which are immediate on every occurrence of a

phrase. Negatively, Lyotard interprets the differend in terms of wrongs, victims and silences; and

positively, he interprets it as the occasion for the invention (through the productive imagination and
reason) of ideas which will regulate the oughts and the ought-to-be’s. The following remark

concerning the differend can be taken to involve a construction of a negative and positive concept

of instabilities/differends:

To give the differend its due is to institute new

addressees, new addressors, new significations, and new
referents in order for the wrong to find expression and
for the plaintiff to cease being a victim. This requires
new rules for the formation and linking of phrases. No
one doubts that language is capable of admitting these
new phrase families or new genres of discourse. Every
wrong ought to be able to be put into phrases. A new
competence (or “prudence”) must be found. (D.§21)

The negative concept of freedom may be said to entail those instabilities in language which lack an
objective principle whereby a differend may be resolved. Such instabilities are not always already

norm governed. The situation implied by these instabilities is one where parties are brought into a

face to face relation which cannot be normalised by an appeal to objective principles which both
parties recognise. The positive concept entails the same instabilities but interprets them as the basis

for the imaginative production of language.

The question is whether, given that an analytical link can be made between Lyotard’s

positive and negative concept of freedom, anything like the Reciprocity Thesis can be asserted?

Can it be claimed ‘if freedom then the law and so its reciprocal’? As I have noted in respect to
Allison's reading of Kant’s Reciprocity Thesis, the analytical connection between freedom and the

moral law is made only by presupposing the transcendental freedom of a rational agent and by
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asking on what basis the maxims of such an agent may be legitimated? In the context of Kant’s

practical philosophy it is only unconditioned practical laws which can provide the basis for the
legitimation of the maxim of a transcendentally free agent. On Lyotard’s analysis this conclusion is

ruled out. The analytical link between freedom and the moral law is not possible since the

presupposition involved does not relate to the transcendental freedom of a rational agent but rather
the transcendental freedom of a phrase. Rationality is not incorporated into the analysis of

freedom, so it is not necessary to conclude that the activities of the deliberative will are legitimated

in terms of unconditional practical laws. Instead of presuming the transcendental freedom of the
rational agent it is the transcendental freedom of phrases marked by instabilities that is presumed.

As I have also noted, the Reciprocity Thesis is not merely concerned with making an
analytical link between freedom and an unconditioned practical law, but rather between freedom

and a principle governing the conditions which make (unconditioned or) moral action possible. In

one sense, therefore, the Reciprocity Thesis may be taken to supply an analytical link between
freedom and an unconditional practical law. This conclusion has importance for modelling a

concept of rational agency. In another sense (that which is the proper goal of the Reciprocity

Thesis) the Reciprocity Thesis may be taken to supply an analytical link between freedom and a
principle governing the conditions which make possible unconditioned actions. This conclusion

has importance for a model of moral agency.97

On Allison’s reading of Kant’s Reciprocity Thesis, the link between freedom and

unconditional practical laws and then from unconditional practical laws to the categorical

imperative, is made on the basis of what is described as a legitimacy game. If one is a

transcendentally free rational agent, then it is a requirement of reason that one be able to legitimate

one’s maxims not only in terms of reasons but also in terms of reasons which are able to satisfy a

universalizability test. Where, however, the starting point for the analytical deduction of the moral
law is the occurrence of a phrase an application of the legitimacy game is not already bound to the

requirements of reason and a universalizability test. In this case, legitimacy is not understood to be
97 Once again this conclusion, from an epistemic point of view, should only be thought as a model for regulating the
empirical aspect of deliberation
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the sole province of reason; rather the test of legitimacy is itself understood in the light of

differends and instabilities. As I have already noted, according to Lyotard the instances of
instability are those events which are not already governed by norms; the determination of the

event (the supply of a norm) is only made after the event and as a result of differends between

genres of discourse. In this case the legitimacy of a maxim has to be judged by means of a
reflective judgment which must find or invent the norm for the purpose of providing a

determination. In short, the task of legitimating an event, which in turn may involve the conflict of

maxims, falls to a reflective judgment and not to reason.

In a practical sense the legitimacy of such event/instabilities is tested immediately in terms

of a feeling of obligation. This of course is not possible where obligation is understood to be

expressed by objective practical principles. In such instances of instability (not governed by

norms) victims of wrongs make requests and cry-out for vengeance, the request is heard and upon

hearing it an obligation is felt.98 On Lyotard’s account, the important point to note in respect to
the situation of the victim is that the victim not only suffers damages but he/she is also in a

situation which is not justiciable according to existing norms.99 Where the situations of instability

are conceived in a practical sense, what occurs are prescriptions which lack political or judicial
validity; that is, prescriptions occur which cannot be legitimated in terms of norms. Stated

positively, such events in language institute ethical prescriptions whose only basis of legitimation

are immediate feelings of obligation.

Where Lyotard’s claim concerning the ethical legitimation of prescriptions is thought in

terms of the construction of a model of a deliberative will, it is important to note that the process of
deliberation must be extended beyond normative boundaries to asymmetrical conflicts or relations

which lack a regulating norm. In Lyotard’s terms, deliberation not only requires a political and

juridical legitimation, it also requires an ethical legitimation. This form of legitimation (identified
with the feeling of obligation) is an intensely individual affair; but it avoids confusing the

98 On the place of the victim in deconstructive thought, see Andrew J.McKenna, Violence and Difference: Girard,
Derrida, and Deconstruction, (Urbana, University of Illinois Press, 1992) pp.69-83.
99 We shall return to this issue in the next chapter.
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normative constraints with the categorical constraints felt in moments of heterogeneity. By paying

attention to the ethical mode of legitimation and including it within a model of deliberation the
individual, according to Lyotard, is not diverted from his or her guard over the “general line” that

belongs to him or her (PW 110). Rights do become repressive by providing the only legitimate

source of constraint. On this account deliberation begins and has its foundations in the set of
feelings which are instituted by moments of dissymmetry and not in adopted norms.

Thus, where we seek in the context of the problematics of a phrase to make an analytical
link between an ontological concept of freedom and an unconditioned practical law the deduction

of the law cannot proceed in the direction of an objective practical principle: it cannot be concerned

with a test of objective universalisability. As already noted, the test of universalizability may be
understood to be already conditioned and governed by a fundamental orientation of the will.

However, where instability is integral to the concept of freedom what is required is a mode of

legitimating prescriptions that is not already regulated by norms and does not have allegiance to a
fundamental maxim-orientation. In such instances, it is not a provision of reason which forms the

basis of the obligation but the pragmatics of the phrase universe which is instituted by instabilities.

As argued in Chapter One, if a metaprinciple is to be deduced which can govern the formation of
unstable situations, that metaprinciple would be the principle of alterity That/Thou/shalt never

be/I/. The unstable situation is precisely that instance which brings parties into a face to face

encounter which lacks a norm; in short the unstable situation is that which institutes the categorical
constraints which can be identified with the law. This deduction of an unconditioned principle

does not yield anything like an objective universal law; more likely it yields a deduction of a

principle which governs possible occurrence of categorical constraints. It in no way is the source
of such constraint.

Returning now the problem of the Reciprocity Thesis (i.e. making the analytical link
between freedom and the categorical imperative), it is possible to argue, from what has been

concluded above, that where the basis of linkage between phrases is a concept of language thought

in terms of fundamental instabilities the analytical link can be made from a bare notion of freedom
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as absolute spontaneity to a more complete notion of freedom as the freedom of the other. This

conclusion is justified only if it is accepted that such instabilities are the occasion for relations
which are governed according to a principle of alterity. Under such conditions it is argued that not

only is there an immediate practical presentation of the occurrence of a phrase but also that the

addressor of (prescriptive) the phrase (identified with such instances) is (negatively) presented as
transcendentally free.100 For the purposes of a Reciprocity Thesis, therefore, it is not possible, on

Lyotard’s approach, to deduce objective unconditioned practical laws governing rational

deliberation. If anything, all that can be deduced are the necessary conditions under an individual
will be categorically constrained and the principle of alterity governing the formation of such

conditions.

Comparing Lyotard’s approach to obligations with Kant’s, the problem for Lyotard is that a

deduction of obligations cannot be carried out a priori: norms do not govern the occurrence of

instabilities. Such obligations simply happen as an immediate consequence of an instability in

language which is formed according to the metaprinciple of alterity. The law which institutes an

obligation cannot be deduced simply on the basis of a bare concept of spontaneity (thought in terms

of instabilities/differends in language). An instability in language simply occurs and there is no

underlying reason for its occurrence. Where the pragmatics of such instability is identified with the

prescriptive phrase and with a Levinasian face to face encounter, instabilities are understood to

immediately give rise to a law and to categorical obligations. The law deduced here may be said to
be unconditioned but it is not an objective unconditioned practical law.

Thus, on Lyotard’s argument the law cannot be deduced. To the extent that the foundation
of the law is the occurrence of a phrase it follows that no deduction of the law can be provided.

This conclusion, however, should not rule out the validity of a reflective engagement with the

asymmetrical situations which are the immediate practical presentation of such occurrences. By
means of a reflective engagement one cannot be deducing the principles which already govern

instability, but one may nevertheless invent principles that provide a basis on which such

100 This point will be taken up in more detail in the next chapter.
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instabilities may be handled. It follows that where a model of a deliberative democracy is regulated

by an ontological concept of freedom the deliberative process should not be thought to be

fundamentally rational. Moreover, since spontaneity is not linked to the activities of reason but to

the occurrence of a phrase, unconditional practical laws are not thought to be objective principles

of reason; rather, their possibility is linked to the instabilities of language. Thus, if the activities of
a deliberative process are to be regulated by unconditional practical laws, this regulation can only

come from those negative events (differends) identified with wrongs, victims and silences. In such

cases unconditional obligations, which lack any basis in the reasons available to a community, are
the immediate practical register of instabilities and differends. Rather there is simply a feeling:

that such victims ought be plaintiffs; that the damages which are suffered ought be able to be

recognised; and, that there should be a judge who is able to hear the complaint.

CHAPTER THREE
THE DELIBERATIVE WILL & POLITICAL JUDGMENT:

OBLIGATION, RESPECT AND SUBLIME FEELINGS

So far I have attempted to show how Lyotard reconfigures some of the central concepts of Kant’s

practical philosophy and have alluded to a model of a deliberative will that might be deduced on
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the basis of the principle of alterity. The aim has been to develop a democratic model that would

satisfy the critical demand of articulating the differential between the prescriptive and normative
modes of legitimation. In Chapter One, it was pointed out that what is required, in order to develop

a critical relation between prescriptive and normative phrase regimen is an analogy resulting from

the als ob (as if) that would distinguish the various modes of forming and validating phrases, and
then, on the basis of the fully disclosed differend, transform the differend into a litigation (Kant

Notice 2: §3). The question is, therefore, what type of political model would satisfy this critical

demand? What analogy can be introduced through the type that does not bring with it the threat of
forgetting and smothering the differend between the prescriptive and normative phrase?

In this chapter I first of all develop the Idea of language which is central to Lyotard’s
politics: namely, an Idea of a language which is heterogeneous and conflictual. This Idea of

language is fundamental to the understanding of what is involved in making a passage between

phrase regimen and genres of discourse in general, and is therefore basic to developing an
understanding of the conditions required of a political judgment which must pass between the

prescriptive and the normative phrase regimen. After examining Lyotard’s Idea of language I

return to Kant’s formulation of the typified moral law and further question what is involved in this
formulation which is at once composed of a prescriptive and normative element. On Lyotard’s

approach, it is argued, the prescriptive component of the law is made practically present by means

of the feeling of obligation and respect. In relation to a deliberative will, obligation provides the
basis for binding a will, while respect provides a motivational ground. In short, the feeling of

obligation and respect provide the practical basis for orientating the will. In the last section of the

chapter I examine the relationship of sublime feeling to the feeling of respect. The argument is that
while respect provides a practical basis for orientating a will, the conditions which govern the

formation of a sublime feeling are analogous to the conditions which are necessary for the political

judgment101 which traverses between the prescriptive and the normative phrase universe. On this
101 Jay Bernstein has analysed the connections which can be made between an aesthetic and political judgment in the
following manner: “Aesthetic judgment, the judgment of taste, intends a cognition of what is significant or worthy in itself
through the way it resonates for us; sublimity intends an experience of emphatic otherness or alterity irreducible to truth-
only cognition or moral reason; genius intends an acting beyond the meaning-giving powers of the subjective will; the
sensus communis intends a conception of community whose mutualities and attunements condition and orient what
aesthetic judgment judges and genius creates. Together these concepts trace or envision an alternate form of
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approach, the situation of radical instability and difference are thought to be made immediately

present in the feeling of obligation and respect, while the sublime feeling is the instantaneous and
spontaneous judgment formed on the back of obligation and respect. The type of reflective

judgment which is located in the feeling of the sublime is analogous to the type of judgment

implied in the ‘as if’ operator which articulates the link between prescriptive and normative phrase
regimen.

It was already noted in Chapter One that if an analogy is to be developed between the
prescriptive and the normative phrases, it must be one which does not disregard the dissymmetry of

the ethical community (i.e. the I/you of the prescriptive phrase) for the benefit, either of a universal

we which lacks a proper name, or an historico-political we which is identified by a proper name

(Australian, Chinese, English, Vietnamese, Koori etc). What is required, it was suggested in

Chapters One and Two, is a model of a deliberative will which is not developed by means of an

analogy of legality. The analogy of legality is only appropriate where it is thought that the ethical
relation is one which is already regulated according to principles. In that case, the Idea of a

universal we and the test of universality, is applied for the purposes of testing the rational

consistency of such principles and projecting an end to the formation of such principles. Where,
however, the ethical relation, the moral law, the ‘fact of reason’ etc., are all thought to lack any

foundation in principles, an analogy of legality is inappropriate for marking and regulating the

differential between ethical and political modes of legitimation. On this approach, the typified
form of the moral law (i.e. the moral law as it operates in moral deliberation) is not one which

imposes unconditional obligations on the basis of objective practical principles; rather, obligations

have a basis in the pragmatics of prescriptive phrases.

In Kantian terms, in order to rethink what is involved in moral deliberation, it is necessary

to reconsider the typified form of the moral law. As has already been suggested, since the typified
form of the moral law can be identified in Kantian thought with the universal structure of moral

deliberation and the fact of reason, the reconsidering of what is involved in the typic amounts to the

community which is irrevocably ‘political’ in its complexion: The Fate of Art: Aesthetic Alienation from Kant to Derrida
and Adorno (Cambridge: Polity Press, 1992) p.9.
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development of a different model of deliberation. The central claim made here is that the

categorical constraints felt by the deliberative agent, do not have their basis either in reason nor in
the freedom of the deliberative will. Rather, in terms of the pragmatic analysis offered of

prescriptions, the categorical force of a prescription is identified with the practical implication of

irreducible relations of difference (I/you relations). Contextualising these claims in terms of the
antinomy that is implied in the concept of law between voluntas and ratio,102 Lyotard may be taken

to argue that the force of the law, or the categorical effect of the law, does not have its basis in

principles, nor freedom its basis in the spontaneous activity of the faculty of principles (i.e reason);
rather, he may be taken to argue that the categorical constraints binding the deliberative will have

their basis in the will of the abject other103 - those who fall under the category of ‘victims of

wrongs’; and further, he may be taken to argue that freedom has its basis in an occurrence of a
phrase and the contingency of linkages.

As I have noted earlier, in terms of the model of the deliberative will provided by Lyotard,
if one is looking around for categorical constraints, or a basis for such constraints, this can only be

found in ethically valid prescriptions which are legitimated immediately by the feeling of

obligation. If Lyotard’s reinterpretation of Kant’s formulation of the typified moral law is taken as
a guide for developing what may be considered to be Lyotard’s model of deliberation, it may be

concluded (in contrast to Kant’s model of deliberation where it is the meta-principle to test the

universalisability of all maxim of the will that provides the categorical constraint) that the
formation and legitimation of categorical constraint is contingent on the pragmatic situations

offered by asymmetrical relations. In essence, as I have argued, asymmetrical relations occur, on

Lyotard’s reading, in those situations which cannot be regulated in terms of a final end (i.e.
differends resulting in victims, wrongs and silences). In the context of a deliberative model of

politics such asymmetrical relations occur in those situations where the governorship of the linkage

of phrases, provided by the dialectical (in the Aristotelian sense) and rhetorical genres, is not
102 Franz Neumann, The Rule of Law: Political Theory and the Legal System of Modernity, (Dover, N.H.: Berg, 1986)
p.45.
103 The abject status of the victim is neatly summarised by Andrew J. Mckenna in the following statement, ‘when the
violence of all against all becomes the violence of all against one a victim is produced, which is likely to happen when a
difference, a weakness, marks out a single member of the melée for destruction.’ See Andrew J McKenna, Violence
and Difference: Girard, Derrida, and Deconstruction: ibid., p.69.
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suffient to allow a differend to flow into the political institutions in the form of a litigation (D. §

141). As noted, a differend is to be contrasted with a litigation insofar as it involves a conflict

between at least two parties that cannot be equitably resolved for lack of a judgment applicable to

both arguments (D. xi).104 The claim is that, paradoxically, it is these material conflicts resulting in

differends which provide the basis for the categorical constraint of a deliberative will. The
determinations of such a will can be thought to be good or evil depending on whether it is judged

to act out of respect for the unconditional obligations which such situations present.

Where the typified form of the moral law is rethought so that the categorical constraints felt

in the act of deliberation are no longer attributed to principles of reason, the fact of the categorical

constraints cannot be deduced as a fact of reason. In addition, where the typified law is interpreted
pragmatically, the fact of moral constraints may be deduced under a number of names: the fact of

the irreducible I/you relation, the fact of the heterogeneous, the fact of the differend, the fact of the

infinite, the fact of a wrong/victim/ silence (D.§44). On Lyotard’s approach, the categorical
constraints, which are felt in the act of deliberation, are the practical presentations of differends

between phrase regimen and genres of discourse. To say that the categorical constraints are

identified with the voluntas and not the ratio of the law, is merely to signify that such constraints
are, on a pragmatic analysis, identified with the executive force105 which is immediate (practically)

upon the occurrence of a differend. This force, for Lyotard, does not have a basis in the

reasonableness of the abject other’s position, nor in feelings of empathy, pity or grief for the
suffering of the victim, but rather in the pragmatics of requests addressed by victims to anybody

that hears.106

104 For a discussion and an example of a differend see Bill Readings, “Pagans, Perverts or Primitives” , Judging Lyotard,
ed. Andrew Benjamin (Routledge, London, 1992) pp.168-191.
105 By using the term “force”, I am referencing Jacques Derrida’s ‘Force of Law: The “Mystical Foundation of Authority,” ’
Deconstruction and the Possibility of Justice, ed., Drucilla Cornell, Michel Rosenfeld, David Gray Carlson (New York,
Routledge, 1992). As I have been arguing concerning the prescriptive event, the force of law, is for Derrida identified with
the “experience of the impossible” (p.16). He considers this experience under the heading of “anxiety” etc . In the terms
which I have been pursuing, this experience may be identified with “obligation” and “respect” Like in Kantian moral
psychology, none of these feelings associated with the ‘experience of the impossible’ are the object of an experience.
106 Note that on Lyotard’s approach such requests may involve only silences. The essential point is that the practical
reception of such instances in language complies with the pragmatic structure of prescriptions - an example of which is a
request.
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Considered in terms of Kant’s political philosophy and the various liberal concepts of rights

and the state, the identification of categorical constraints with relations of alterity or difference has
the positive value of retaining a notion of the categorical, while at the same time rejecting tired

forms of universalism. On this argument, any system of positive laws, regardless of political

configuration, does not have its foundation in a natural law or other inalienable concepts of rights.
Rather, if there are rights, they are dependent upon the contingency of differends in language. This

is to say, rights defined ( as Kant does) as the capacity to place another under an obligation (MM

6:231), stem not from an abstract system of universal principles but from the pragmatics of
contingent situations in language. Rights are dependent upon the occurrence of differends and the

praxis which is implied by such situations. It is in situations of difference that the feeling of being

placed under an obligation arises. On Lyotard’s approach, therefore, the rights which legitimate a
system of positive law are not able to be enshrined in a code (LR. 286) or a Bill of Rights since

they are primarily situational and dependent upon the wrongs which are current under the particular

modes of political legitimation.

In the context of developing a deliberative model based on Lyotard’s philosophy of phrases

one of the definitions of the differend is ‘the unstable state and instant of language wherein
something which must be able to be put into phrases cannot yet be’ (D. §22). Lyotard sets up this

definition of the differend forward so as to contrast a cognitive and communicational model of

language with his philosophy of phrases. The essential difference is located in the
communicational model’s inability to accommodate the need for the invention and institution of

new idioms and genres of discourse. On Lyotard’s pragmatic analysis of phrases, an invention of

new idioms also involves instituting ‘new addressees, new addressors, new significations, and new
referents (D. §21). Or, using Lyotard’s definition of the “social”, where the social is defined in

terms of the addressor, addressee, referent and sense, phrase instances (D §194); the invention of

new idioms may also be understood as the presentation of new societies.

Under a communicational model a parties relation to language is instrumental: a person

merely uses language to augment to their profit the quantity of information communicable through
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existing idioms (D §23). According to Lyotard where something like a communicational model of

language (i.e. any model which answers the question of what is to come next by merely drawing
on existing resources) is met by a differend it is the function of feelings to provide a critical

judgment of the situation. Namely, it is through feelings that the interlocutors are made aware that

the instant which has occurred in language is one wherein ‘something which must be able to be put
into phrases cannot yet be’ (D. §22). Interlocutors operating under determinant type Kantian

judgments

learn through the feeling of pain which accompanies

silence (and pleasure which accompanies the invention of
a new idiom), that they are summoned by language, . . .
to recognise that what remains to be phrased exceeds what
they can presently phrase, and that they must be allowed
to institute idioms which do not yet exist. (D. §23)

In the case of a differend, the feeling in question is the Kantian sublime. Later, I will argue that the

sublime may be understood to provide the aesthetic assessment of the heterogeneous pragmatic
situations identified with ethical prescriptions: to put the point more sharply, it will be argued that

the sublime provides the aesthetic assessment of the “feeling” of obligation, since strictly speaking

obligation is not a feeling but an immediate constraint upon the will. In summary, therefore,
categorical constraints, and the source of what Kant calls rights, are tied to the occurrence of the

unstable instants of differends in language. It is these instants that provide the necessary

heterogeneity between parties that is crucial to the formation of ethical prescriptions. The question
for the moment, however, is how does Lyotard’s philosophy of phrases relate to Kant’s typified

moral law?

In rethinking Kant’s formulation of the typified moral law in terms of Lyotard’s pragmatic

analysis of prescriptions and norms, I am also aiming indirectly at providing a basis for a critique

of some of the models of democratic politics currently proposed. A model of deliberation, which is
not categorically constrained by principles supplied by reasons, has to be contrasted with

republican and proceduralist accounts of democratic will formation.107 In contrast to the

107 See Jürgen Habermas, “Three Normative Models of Democracy”, Democracy and Difference: Contesting the
Boundaries of the Political, ed Seyla Benhabib (Princeton, Princeton. U.P., 1996) pp21-31.
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republican model, it is argued that the force of the law is not based on a consensus reached by

means of an institutionalised exercise of public reason by autonomous citizens. Rather, as already

noted, such force has its basis in a dissensus (paralogy) (PC. 60-1) and the politically illegitimate

requests that are issued by the victims: even the victims of such institutionalised forms of public

reason. In agreement with Habermas’ proceduralist model of democracy, Lyotard would argue that
it is necessary to set right the communitarian reading of public communication offered by the

republican approach; namely, he would agree that a democratic will formation does not draw its

legitimation or categorical force from a previous convergence of settled ethical convictions (the
pluralistic condition of society makes such a convergence impossible to imagine).108 But contrary

to Habermas, Lyotard would not identify the categorical force of the law with the reasons arrived at

by means of procedural guarantees providing a basis for compromises and bargaining.109 On

Lyotard’s approach, the norms arrived at by such a procedural model can have political legitimacy

and impose hypothetical and normative constraints, but they do not provide the categorical basis

for the orientation of such will formation (D. Kant Notice 2: §2).

If Lyotard’s approach cannot be identified with these deliberative models of democracy, nor

can it be identified with the Liberal interest-based model of democracy (Lockean version).110 This
is to say, if the categorical effect of the law is not identified by Lyotard with reasons, nor is it

identified with interests. Apart from the fact that interests may be understood to be products of

practical reason and, therefore, have their basis in some desired end (even where interests are
thought in terms of desires and inclinations) it is not considered that it is the simple failure to meet

the desire and inclination of victims which is at the basis of the categorical force of the law.

108 Habermas, ibid., p. 24

109 Ibid., p.25
110 For an account and criticism of an interest-based and deliberative model of democracy, see Iris Marion Young,
“Communication and the Other: Beyond Deliberative Democracy”, ibid., pp.120-1. Examining political modernity,
Chantal Mouffe in The Return of the Political, (London, Verso, 1993) argues that there are two traditions, ‘liberal’ and
‘democratic’. Within the Liberal tradition, she argues, ‘political liberalism’ is to distinguished from ‘economic liberalism’
and a liberalism which requires us to endorse individualism (P.43). According to Mouffe, John Rawls, A Theory of
Justice, is an example of political liberalism (p.42), but it is also not a very good example, since it does not provide a
clear concept of the “political” (p.47). Rawls’ politics, she argues, is a ‘politics of interest’: namely a politics which is
governed by the ‘pursuit of differing interests defined prior to and independently of their possible articulation by
competing alternative discourses’ (p.49). The type of political liberalism which Mouffe advocates is not one where
politics is regulated by a morality but rather defined in terms of Schmitt’s friend/foe relations or as conflicts that work
their way out at the level of interests, power etc.
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According to this argument, the claim for justice is not reconciled with an image of the state

apparatus which focuses on implementing the interests of the whole. On Lyotard’s approach, if any
claim can be made, based on an interest model, then this would be provided by a non-deducible

fact made present upon the occurrence of differends. As I will show later, what is referred to here

as the non-deducible fact, is the interest of respect which does not take its starting point from a
shared ethical consensus nor individual self-interest; rather, it has as its starting point a break in a

shared perspective and interest and the immediate categorical constraint (which issues from such

breaks) to act so as to realise the justice of another.

By limiting myself to an application of Lyotard’s pragmatic analysis of the Kantian

formulation of the typified form of the moral law, I am aware that I have failed to develop more
fully a political model based on Lyotard’s model of language. It is worth noting, however, that the

model, or more accurately, symbol, put forward on this approach is suggestive for the type of

model required of a politics which must operate against the background of a religious, cultural and
societal pluralism. Here I am thinking of Lyotard’s use of the Kantian symbol Archipelagos,

(CPuR :A 236;B 284), which presents the idea of the proliferation of the faculties (D. Kant Notice

3:§1). For Lyotard, the symbol is a way of validating, or providing knowledge, of the dispersal of
phrase regimen and genres of discourse. Under this symbol and Idea of language a critical activity

of the faculty of judgment is authorised to “unify” the faculties; this it does without imposing an

objective universal rule.

In terms of the symbol Archipelagos, the faculty of judgment is said to be analogous to an

admiral who sends out expeditions with the task of presenting to one island what they have found
on other islands (ibid). The faculty of judgment is said to be a milieu in which all marking-out of

limits to legitimacy takes place (LR. 397). ‘It is what allowed territories and domains to be marked

out, and what established each family’s authority over its island. It does this only because of the
commerce it keeps going between them’ (LR. 397-8). On Lyotard’s argument, the reflective

condition of critical judgment is analogous to the type of condition required of political

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judgment.111 Like a critical judgment which moves between the faculties of knowledge, a political

judgment must range across the genres of discourse which, when identified with a politics,112
provide the stakes for how actions are to be determined and how one phrase (eg. a prescriptive

phrase) is linked to the next (D §199).

Having said that, it would seem, on Lyotard’s own analysis of the various political forms

that the primary focus of a political judgment involves the analogous comparison made in respect

to the typified moral law: namely, it involves the analogy resulting from the als ob that
distinguishes the various modes of legitimating prescriptive phrases. With this in mind it is

possible, while focusing on the problem of developing a pragmatic analysis of the typified form of

the moral law, to also have the archipelago as a symbol of the type of task engaged in here. The
political judgment moves from one phrase regimen to another establishing the differential for their

respective legitimacies and without extending one mode of legitimacy over all the rest. Further,

like the faculty of judgment, a political judgment is also thought to provide the determination of the
right mode of object-presentation for the purposes of validating claims concerning damages (D.

Kant Notice 3 §1).

A not too dissimilar argument concerning a model of political judgment, is put forward by

James Tully in his work Strange Multiplicity (SM). Instead of an Archipelagos as a symbol, Tully

relies on Bill Reid’s sculpture The Spirit of Haida Gwaii as an object for an Idea of cultural
diversity (SM 17). On Tully’s argument, political judgment is given a function similar to the

practical form of reasoning developed by Wittgenstein in Philosophical Investigations. According

111 David Ingram has argued that Lyotard does not fully develop a clear understanding of the reflective condition of the
Kantian notion of judgment until Le Différend. In Au Juste Ingram argues that the disinterested perspective of Kantian
judgment is linked to that of a ‘great prescriber’ who makes final judgments concerning boundaries between various
language games. In Le Differend, the Kantian notion of judgment is developed and is quite clearly reflective. No final
verdicts are handed down concerning the boundaries and domains of validity identified with phrase regimen and genres
of discourse. As Ingram points out, instead of a notion of a “great prescriber” we have that of a “guardian who, while not
a litigant in the dispute, intervenes indirectly on behalf of the weaker party by judging what is ‘just’ or conducive to an
agreement to disagree. As Ingram points out, Lyotard’s preferred symbol for this notion of a community in which there is
an agreement to disagree is the archipelagos: David Ingram, “The Kantianism of Arendt and Lyotard”, Judging Lyotard,
ed. Andrew Benjamin, (Routledge, London, 1992) p.137.
112 This statement makes little sense unless it is understood that Lyotard argues for two forms of politics. First, there is
a politics whose condition is analogous to the reflective condition of critical thought; and second there is a politics
analogous to the determinate condition (supplying objective rules and principles) of Kantian reason and understanding.
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to Tully, the form of reasoning developed by Wittgenstein can be used for the express political

purpose of questioning ‘the imperial and monological form of reasoning’ that is ‘constitutive of
modern constitutionalism’ (SM 113). Once again, only this time relying on the Wittgensteinian

symbol of language as a ‘city’ (104), Tully explains that the language of constitutionalism, like

language itself,

has grown up in a variety of forms through long use and

practice, interacting and overlapping in many ways in the
endless diversity and strife of human activities. Like a
city, it does not have a uniform constitution imposed by
a single lawgiver, although, of course, areas of it have
been made regular by reforms, just like some newer
neighbourhoods of a city (SM 104)

What is interesting about this model of language is that it authorises a particular mode of reasoning

involved in a grammatical investigation. Concurrently, it also provides a basis for judging the
illegitimacy (or at least of limiting) a purely logical approach to language. Practical reasoning in a

grammatical investigation, like the reasoning involved in Kant’s “faculty” of judgment, is able to

traverse this complicated network of difference by means of an analogical practice. The

understanding of a general concept, Tully argues, can only take place by the assemblage of

examples carried out in dialogue with those who see things differently. The reasons why a concept

should or should not be used in a particular circumstance, he argues, is reliant upon the
presentation of examples and analogies that come from varying points of view. In this context, a

politically informed judgment concerning terms which are common to a number of cultures can

only be made by means of various dialogical presentations of examples and analogies (SM 107-8);
it is only according to this manner of finding one’s way around in a language that a political

judgment can be made concerning a concept or idea that is ‘common’ to various language games or

genres of discourse.

On Lyotard’s approach, we might talk less about the language of constitutionalism, than we

we would the constitutionalism of language. This point relates directly to the linking of a concept
of justice with a particular Idea and symbol of language. As noted in the opening lines of thesis,

this would be a concept of justice identified with a dissensus rather than a consensus. Thought of
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in terms of an “archipelago”, a “city” or the “Spirit of Haida Gwaii”, a political judgment may be

understood as the admiral which sends out expeditions to provide a determination of the right mode
of object-presentation appropriate to the formation and legitimation of phrase regimen. For the

purpose of making a political judgment concerning the Kantian formulation of the typified moral

law, what is required is a determination of the right mode of object presentation for the
prescriptive, moral and republican phrase. If this political activity is thought under the regulation

of an Idea of the proliferation of phrases and genres of discourse and validated in terms of a

symbol, such as Wittgenstein’s city, the type of political judgment which Lyotard may be seen to
engage in is one which aims at establishing ‘the variety of forms’ and ‘the interacting and

overlapping’ modes of phrasing, that are implied in what Kant formulates as the universal form of

deliberation. Not unlike Tully’s study, which looks at ancient and modern forms of
constitutionalism, thereby showing that the issue of rule governance is at least contextual and

equivocal, Lyotard’s approach to Kant’s formulation of the typified moral law, shows that it too

may be understood to imply a number of readings; and moreover, that it does not have a uniform
constitution imposed by a single lawmaker. Rather, where the typified form of the moral law is

viewed in terms of an ontology of phrases, it is seen to be comprised not of one, nor of two, but at

least three phrase regimen, all with their peculiar forms of constitution.

3.1 The Deliberative Will and the Typified Moral Law

Reading Lyotard, the picture that one gets of the typified moral law is of various societies,
presented by phrase universes struggling for supremacy over one another. In this regard, so as to

capture the element of conflict expressed in Lyotard’s language, Bill Reid’s sculpture The Spirit of

Haida Gwaii is an appropriate symbol for imagining the Idea implied in Lyotard’s approach to the
typified form of the moral law. The sculpture is of a large canoe containing thirteen spirit creatures

from the Haida mythology (SM 17). James Tully describes the sculpture in considerable detail and

interprets its meaning to be that of people who live out their lives according to constitutional
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‘dialogue, or multilogue, of mutual recognition’. According to Tully, this is the constitutional

game they play as passengers in the canoe ‘vie and squabble for position, both in the canoe and
Haida mythology’ (SM 25). For my purposes here, this statement is to be compared with the

image which Lyotard presents concerning the Kantian ‘abyss’ between ‘obligation and the world

determined by cognition’.

This abyss, or differend, between prescription and cognition, Lyotard argues, is neither to

be filled in or hollowed out. Concerning this abyss, or differend, he says:

there is no abyss, as in no general limit, except because

each party - to dip back into forensic or warrior type
symbolism - grants itself a right of inspection over the
other’s argumentation, and so extends its pretensions
beyond its borders. It is at this price that each party
discovers its borders. (D. Kant Notice 2: §3)

Where the typified form of the moral law is rethought in terms of an ontology of phrases, it is to be
understood that the cognitive phrase not only encroaches upon the prescriptive phrase (and vice

versa), but that each phrase cannot avoid resorting to the other phrase regimen in order to establish

its own legitimacy. As I will show later in this chapter, according to Lyotard phrases belonging to
different phrase regimen are said to “encounter” each other ‘in proper names, in worlds determined

by networks of names’ (D. §39). Concerning the establishment of legitimacy, a descriptive phrase

is said to be legitimated cognitively, only by recourse to an ostensive (And here is the case); while
a prescription is said to be validated politically and juridically by recourse to a normative phrase (It

is a norm that . . . ) and is legitimated ethically by a feeling of obligation (tied to the You ought to)

(D. §41). On Lyotard’s reading of Kant’s faculty of judgment, in all of the above cases the
judgment is called on to determine the right mode of object-presentation for the purposes of

permitting the validation of a statement. Lyotard’s argument is that this operation takes place in

cognitives ‘under the regimen of schema, in dialectical argumentatives under that of a symbol, and
in prescriptives when it is a matter of evaluating responsibility and morality, under the regimen of

the type’ (Kant Notice 3: §1).

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As noted in the first chapter (and also noted in respect to the practical reasoning of

Wittgenstein), the passage which the faculty of judgment makes between phrase regimen is carried
out by means of the use of analogies and comparisons. This is marked by the “as if” function,

which is the generic name for the differentials between phrase regimen. In the context of an

analysis of Kant’s formulation of the typified moral law, a faculty of judgment is said to function
so as to maintain the differentials between each of the societies presented by the various phrase

universes. Here we can name three. First, there is the I/You society which is presented

immediately upon the occurrence of the prescriptive phrase (Act); second and third, there is the
equivocal society which is presented immediately upon the occurrence of a norm legitimated in

terms of an Idea of Freedom. What I have in mind here is summed up by the statement, the maxim

of your will can always also be valid as a universal law of nature. The universe suggested by this
formulation is equivocal because the identity of the addressor of such a norm is split between an

entity which has a proper name and an entity which lacks a proper name. Without going into any

details here, I shall be arguing that in modernity this type of normative phrase forms the basis for
both a republican and totalitarian politics. Where the addressor of a norm which claims to have

universal application is identified with the proper name of a collective entity, what occurs is the

universalisation of the norms legitimated by the proper name; where the addressor is identified
with an entity that lacks a proper name (eg. the Idea of Freedom), then the real community (bearing

the proper name) is plunged into despair about its identity - the norms of the real community are

always judged with suspicion (LFE 39).

A question I shall pursue concerning Lyotard’s approach to the normative component of the

typified moral law, is whether the model which he uses to think through the terms of the society
presented by the normative phrase is in some instances a classic republican model (PE 51) (i.e.

does it assume a background of integrated ethical life?). One imagines, however, that the type of

political judgment which Lyotard is calling for (and the one he would invoke on the basis of his
model of language) seeks to give recognition to the diversity of societies (thought in terms of the

instances of phrase regimen - addressor, addressee, referent, and a sense [D. §193-4]) expressed by

the formulation of the typified moral law. One also imagines that he would aim to do this without
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subjecting any one form of society to any other. Here I attempt to see how Lyotard resolves this

tension in his political model of a deliberative democracy - or at least I am interested to find out
what is the basis for his assumptions concerning an homogenised background to the political life.

Lyotard might be understood to advocate, like Tully, a deliberative process which is

regulated according to a constitutional dialogue, or multilogue, of mutual recognition. However,

where the adversaries which are before the critical watchman are those societies instituted by the

prescriptive and cognitive phrase regimen, it is not possible that a mutual recognition take place at
the level of an objective consensus; a universal consensus, or universal we, crossing all differends,

is only made present at the level of an aesthetic bond (D Kant Notice 4: §5). On this argument, the

objective universal consensus of rational beings remains an ideal which regulates the selection of
practical principles. This can happen, as a republican model suggests, according to a hermeneutical

process of self-explication of a shared form of collective identity, or according to a proceduralist

model which assumes a pluralistic background. In all cases, however, an evaluation of such a
deliberative activity, remains subject to an antinomy between determinism and freedom. The

actions and maxims of the normative agent, cannot be taken as unequivocal proof of an

unconditioned universal practical subject that would unite the I/You. An alternative, and indeed a
supplement to the failure of a republican mode of legitimation, would require a political judgment

to reconcile the parties by putting their differences into perspective.

On Lyotard’s analysis, the prescriptive and cognitive phrase are not only two heterogeneous

phrase regimen, they are also incompatible. The primary basis for this claim would seem to be

that, within the terms of a prescriptive phrase, obligations occur without having any basis in either
the accepted norms of a local or international community; rather, obligations themselves are

thought to be linked to the very instability of language. What this analysis of obligation and

categorical constraint provides is a tension between the forces of law and order on the one hand,
and the forces of anarchy on the other.113 Lyotard’s argument would seem to lead in the direction

113 Rainer Schürmann, Heidegger on Being and Acting: From Principles to Anarchy, trans. Christine-Marie Gros and
Rainer Schürmann (Bloomington: Indiana University Press, 1987). Reading Schürmann’s arguments in conjunction with
Lyotard's, it might be claimed that the precursor to a sensitivity of obligation and respect (i.e. practical relations to an
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of the claim that the more the instabilities of language are controlled, the greater the lack of a sense

of obligation. On this argument there is (seemingly) a paradoxical tension between, the desire for
law and order and the desire for categorical constraint or obligation.

The prescriptive phrase is itself the practical expression of a differend between genres of
discourse: the irreducible I/You relation of the prescriptive phrase, is the practical presentation of

an I/You relation at the level of a differend between genres of discourse. The subjection of a

prescriptive phrase by means of citation to the rules governing the formation of a cognitive phrase,
automatically brings into play a type of political judgment which aims at settling differends by

imposing a common objective law; this law will be found by means of dialogue, dialectics, forensic

or deliberative rhetoric. On Lyotard’s argument concerning political judgment, this approach to a

differend cannot bring about the reconciliation of the parties. Rather, what is authorised by the

Idea of a proliferation of language, is a political judgment which brings about the reconciliation of

the parties (the I/You) by means of an activity of reflection or ‘precise discernment’ (LR. 339).
Here the parties are reconciled by attempting to account for singularities, rather than attempting to

fit one party into another perspective, or fitting both into a more abstract perspective. On this

approach, reconciliation of the I/You of a prescription, is not managed by collapsing difference into
the union of an objective we (either one bearing a proper name or a universal we) but by ordering

difference. As noted above, if there is a we then, at most, it is paradoxically identified with the

political activity that traverses the differences - a ‘we’ of reflective judgment.

The issue concerning the differend between the prescriptive and the cognitive phrase goes

to the very heart of what is at stake in the pragmatic analysis of Kant’s formulation of the typified
moral law. As I have argued in the first chapter, it is only by an ‘act of citation’ (or, as I have

argued in respect to Allison’s interpretation of Kant, an act of ‘taking as’) that the test of

universality can be applied. But primarily, what is required so as to apply the test of
universalisabity, is that the universe presented by the prescriptive phrase (the I/You relation) be

treated as if it were a universe presented by a cognitive phrase. This point is made clear in the

other) is a life lived from within the open and uncertain (anarchic) space opened up by language. For Lyotard, however,
this would probably result in casting Man in too prominent and heroic role (D. Aristotle Notice: §3.2; §173).
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formulation of the typified law: the agent ought to act only on maxims whose principle can be

made a universal law of nature. The point of the objection is, it would seem, that the universe
presented by a prescriptive phrase is only made possible because of the failure of principles to

establish a single historico-political reality. As the practical presentation of a differend, it is also,

one might claim, the practical presentation of two irreducibly different worlds.114 The two worlds
come into contact and conflict at the level of proper names, and one world is presented to another

(practically) in the mode of obligation. To apply the universality test to this type of situation would

miss the whole point of what is required so as to bring about a reconciliation of the I/You. As
noted above, what is required so as to bring about the settlement of a differend is the establishment

of the respective differentials of each parties claims. Where the differend is taken as irreducible, a

universality test would be applied not for the purpose of reconciliation but for the purpose of
idealising differentials.115 Such idealising, on Kant’s own account, would amount to the

advancement of culture and is, by consequence, the ultimate end of nature (CJ §83).116

Having said that, it should be noted that where there is a political form that can effectively

stabilise the textuality of a language, on Lyotard’s account there also will be a political form that is

adverse or impervious to the moment of categorical constraint or obligation: the I/You relation

114 The “worlds” spoken of here are not to be identified with those suggested under the “two worlds” approach to Kant’s
Transcendental Idealism (i.e. noumenal and phenomenal worlds) . Rather, the “worlds” suggested by Lyotard are those
which are constituted by the networks of quasi-deictics formed by names of “objects” and by names of relations
designating “givens” and the relations between those givens (D. §60). On Lyotard’s argument, it is the peculiar faculty of
the proper name that it facilitate the conflict “within” language and thus the anarchy of language. In a rather provocative
style, he suggests that litigations (i.e. the settling of differends) always result in the dismissal and sometimes the demise
of ‘entire worlds of names’ (LR. 356). He claims that the ‘extermination of the Communards, extermination of counter-
revolutionaries, extermination of Armenians are examples of the demise of such worlds (ibid). The settling of differends
by means of ruling objective universal principles results in the destruction of differends and with it ‘the destruction of
whole worlds of names’ (ibid). Furthermore, the “worlds” spoken of here may also be identified with the worlds of proper
name constructed by the performative character of (small) narratives. As David Carroll has pointed out, “Lyotard
considers the right to narration - what he calls ‘a force of narrating practically invincible in everyone’ - to be the basic,
‘inalienable’ right of alterity: that is, not the right of the individual subject to be and express him/herself, but rather the
right of the other to be other, of the alien to differ from the norm’ (David Carroll, Paraesthetics ibid. p.159.)
115 Perhaps this argument can be understood in terms of Kant’s principle that we are treat and respect others as ends-
in-themselves. On this principle, as Onora O’Neill argues, ‘It is not enough when we deal with other human beings (as
opposed to ideally rational beings) to act on maxims with which they can possibly agree, whatever their ends. It is also
necessary to adopt maxims that “endeavour to further the ends of others” (G, IV, 430)’ (CR. p.115).
116 The multiplication of the principles of reason inevitably enhance the conflictual state of reason and with it mature the
reflective capacity of critical thought. In Lyotard’s terms, this multiplication of the principles of reason may be identified
with the developing abundance of ends which prescribe the stakes for genres of discourse. In short, where principles of
reason are invented the differends between genres of discourse is intensified and the reflective conditions of a political
judgment are called upon to respond to this intensification.
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does not arise (D. §234). To understand this claim a series of connections and identifications must

be understood. The stabilisation of the linkages of phrases have the effect of annulling the
possibility of an anarchic conflict concerning the textuality of a language. In effect, where a

political form, such as that identified with the narrative genre of discourse, operates to provide a

basis for litigating all differences, differends are annulled and the practical presentation of
differends in the irreducible I/You relations of the prescriptive are also, at the same time, annulled.

Making this type of connection is, on Lyotard’s account of obligation, identical to claiming that the

political forms which stabilise the linkage of phrases also annul the feeling of “obligation” and thus
the possibility of genuine categorical constraint. In the context of the Idea of language proposed, it

can be said that where a will fails to feel categorically constrained, it also has lost its means of

orientating itself in language (finding its way around the city or archipelago). The question
concerning Kant’s formulation of the typified moral law, therefore, is to what end is the test of

universality to be applied for the purpose of orientating such a will? Is it assumed that the

practicality of reason is realised by providing an objective basis upon which conflicting parties can
reach a consensus? Or is it assumed that reason reconciles (paradoxically) by idealising

differentials? What type of political judgment is authorised under the Kantian formulation of the

typified moral law? What model of the deliberative will is authorised?

II

Lyotard’s political analysis suggests that the textuality117 of language, or the linkages from one
phrase to the next, are fixed by rules of linkage provided by genres of discourse (D. §40). These

genres provide the stakes, ‘and submit phrases from different regimen to a single finality’ (ibid;

117 By using the term “textuality”, I am thinking of the connection which can be made between Lyotard’s approach to
language and persons such as Roland Barthes. For example, in “From Work to Text,” in The Rustle of Language, trans.
Richard Howard (New York: Hill and Wand, 1986) speaks of the “plurality” of text (pp.59-61). The essential idea here is
concerns the excessiveness or uncontainability of the word with respect to the symbolic systems of ordering and other
overarching schemas and paradigms. On this approach the task of any disciple or culture or symbolic order is to bring
textuality , and therefore meaning, under control. The problem here is not that there is no meaning, but rather that there
is too much. Likewise, apart from the more obvious references, such as Derrida and Cavell’s work on language, one
may also point to Mikhail Bakhtin’s, :Discourse in the Novel,” in Dialogic Imagination: Four Essays, ed., Michael
Holquist, trans. Carl Emerson and Michael Holquist (Austin: Uni. of Texas Press, 1981). Like Wittgenstein, Bakhtin does
not symbolise language as a total system immanent in local discursive effects, but as a plurality of social or “verbal-
ideological” languages, a heteroglossia agitated by a play of centripetal and centrifugal forces (pp. 270-272)
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§180). In this manner, the differend between phrase regimen118 concerning the sense and the

pragmatics identified with a single proper name, is shifted from the level of phrase regimens to that
of a differend concerning ends (D §40). Thus on Lyotard’s approach, the various forms of politics

can be analysed in terms of genres of discourse. All forms, to one degree or another, aim to

stabilise the modes of linkage between phrases and thereby fill in the nothingness, or the abysses,
which are said to separate one phrase from the next (D. §188). By this argument, politics is defined

both in Marxist and Schmittian terms as being fundamentally conflictual, and in more conservative

Hobbesian terms, as that which aims to keep conflict under control.

Politics is conflictual insofar as language and, primarily, the linkages between its given

elements (LE 42) (i.e. phrases) is contingent. In this regard politics is not defined in terms of any
single genre of discourse, but in terms of a conflict between genres over the question of linkage:

namely, “which phrase is to come next?” Concerning this definition of politics, Lyotard says,

Politics, however, is the threat of the differend. It is

not a genre, it is the multiplicity of genres, the
diversity of ends, and par excellence the question of
linkage. It plunges into the emptiness where “it happens
that . . .” It is, if you will, the state of language,
but it is not a language. Politics consists in the fact
that language is not a language, but phrases, or that
Being is not Being, but There is’s. (D. §138)

The conflict and differend between genres of discourse takes place at the point of linkage and is

irreducible. This irreducibility rests on the ontological claim that there are phrases and that it is

necessary to link (even if by a silence) onto a current phrase, but that the question of how to link is
contingent (D. §40). Politics, defined as the multiplicity of genres, is in irreducible conflict on this

question of linkage.
118 Phrase regimen may be understood as a specific disposition of a phrase universe; that is, all phrases are said to
present a phrase universe, which is constituted by four instances: the addressor, addressee, referent and sense. The
disposition of the phrase universe consists in situating these instances (what Lyotard also calls the society of the phrase)
in a specific way in relation to one another (D. §25;PC 10; PE 42). The phrase may entail several addressors etc but its
regimen or disposition is determined by rules of formation and linkage. The rules of formation and linkage that
determine regimen have to distinguished from the rules or modes of linkage which stem genres of discourse. The
difference between these rules is contrasted in Wittgensteinian terms as analogous to the difference between the set of
rules that constitute a game, and the set of recommendations which form a strategy for how to win a game (D. §185).
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Where politics is identified with the multiplicity of genres, the question of how control is
gained over the occurrence, and hence over the prescriptive event that is possible with each

occurrence, is left open. On this argument, the categorical constraints which are said to have their

practical basis in differends or the instabilities within language, are made available to the extent
that deliberative forms of politics are tolerant of the anarchic forces of language. Each phrase

brings with it not merely the potential for disputes that can be resolved in terms of accepted norms,

but also disputes which are not already governed by norms.119

On the other hand, a politics which is identified with, or takes place as, a genre of discourse

is a conservative force controlling semantic and other linguistic disturbances. The important point
to note here is that because of the antinomy which Lyotard sets up between the conditions of

obligation and the conditions of settled modes of textuality and linkages, the conditions of

obligation are to varying degrees reduced by the form of politics identified with a genre of
discourse. This point is made more obvious if what has been said so far concerning the relation of

prescriptions and norms thought in terms of the act of citation is recalled. For where a politics is

identified with a genre of discourse, its regulatory function concerning the differends of language
operates so as to reduce such differends in terms of a norm or principle. On this argument, the

norm or principle may be understood to be imposed for the purpose of settling a differend arising at

the border of a phrase (D. §218). Namely, the norm is imposed so as to settle the irreducible
conflict which takes place with each occurrence of a phrase - but in reducing conflict it also

reduces the pragmatics which support the occurrence of an obligation.

119 This position can be contrasted with that espoused by Ronald Dworkin in A Matter of Principle (Cambridge: Harvard
University Press, 1985) and Law’s Empire (Cambridge: Harvard Uni. Press, 1986) in which it is asserted that there are
always “right answers in hard cases” (MP p. 153). To be fair, Dworkin is not a legal positivist; his position does not
amount to a claim that all conflicts reduce, in a straight forward manner, to rule-governed behaviour. Rather, his claim is
that right answers concerning a conflict are those legal judgments which show the existing law in the best light possible.
This interpretation of the legal text is itself regulated in terms of principles of justice and fairness and procedural due
process that aim at manifesting the integrity of the law. On this argument, the right answer to a conflict is reached by
laying bare the coherent set of principles that make the law judicially forceful and just (LE 243). The assumption here is
that the existing body of law can be extended by means of judicial interpretation and thereby cover all conflicts.
Lyotard’s claim is that there are certain conflicts, such as employer/employee conflicts, which cannot be fairly treated
under the existing body of law. Fair treatment of these parties would require the establishment of separate tribunals
under which each parties claims could be handled (LR. 353-5).
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It is in relation to this conservative definition of politics120 that a number of themes in

Lyotard philosophy of phrases may be brought together: the conflictual element of language is
itself premised on the ontological claims concerning the occurrence of a phrase, linkage and time

(D. §94); the conflictual element gives rise to pragmatic (and might we also say interpretative)

relations that are formed according to the meta principle That/You/shalt/never be/I/! (i.e. relations
that are irreducibly asymmetrical); these relations constitute the pragmatic basis for prescriptions

that are only validated on the basis of the feeling of obligation; relations of conflict can give rise to

a form of politics which is identified with a single genre of discourse; where politics takes place as
a single genre of discourse conflicts and differends are reduced to litigations by being regulated in

terms of a common principle and norm; the imposition of norms which reduce relations of conflict

also reduce the situations in which obligations can arise; this reduction of the categorical effect of
prescription is marked and effected by the citation of a prescription in a norm; where politics is

identified with the multiplicity of genres it may also be understood to be identified with the

multiplicity of norms that are available for reducing situations of conflict; where politics is
identified with a single genre of discourse the imposition of a set of norms is authorised by an

appeal to some sovereign authority; where politics is identified with a single genre of discourse,

this genre varies ‘according to the nature of the authorisation inscribed in the normative prefix (D
§199).

On this argument, the price paid for bringing situations of conflict and ontological
instability in language under control is the reduction of obligations and the categorical effects

arising from differends. One can also add that the price paid for filling the position of sovereignty,

by raising one system of norms or one set of ends above all the rest, is the loss of a living or
ontological language thought in terms of the symbol of The Spirit of Haida Gwaii. Where the issue

120 In this regard we may say that all politics, insofar as it is confused with a single genre of discourse, and is not
thought as the multiplicity of genres, is right wing. A Marxist discourse marked the differend between classes, but in
terms of postmodern conditions a model is required that can deal with a multiplicity of differends (PW 207; PC 14-5).
Thus, a politics identified with classic forms of Marxism is criticised for lacking the sensitivity to differends that are not
class based. During the “Algerian” writings, Lyotard is critical of the Marxist reading of revolutionary nationalist
movements. On the Marxist approach, all differends must be translated in terms of the fundamental schema which is
that of class struggle. Were Marxism to be brought up to date with postmodern conditions, it would have to be sensitive
in a reflexive manner to the “currentness” of differends. What is required is a situational analysis that lets go of dominant
schemas and begins by reflexively expanding upon the feelings which such situations induce (PW 112-3).
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considered here is framed in terms analogous to that of Tully (i.e. in terms of an antinomy between

an ancient and modern constitutionalism), the claim might be that the ancient constitutional form of
language is supplanted by a modern form, where, in an attempt to bring order to the variety of

forms of language, a single law-maker imposes a uniform constitution. The question then,

concerning Kant’s formulation of the typified moral law, is can it be read so as to be analogous to
the ancient constitutional form of language? And can a model of a deliberative will be developed

(on the basis of this formulation) that could be judged to be legitimate in terms of this ancient

constitution?

Is it possible under Kant’s formulations of the typified moral law to give expression to a

political activity that is respectful of difference? Or again, does the formulation express a
differential between phrases that is itself in need of a political judgment that makes reconciliation

possible by marking differentials? As I have already noted concerning the typified moral law,

insofar as it may be understood to put into relation a prescriptive, a normative and a meta-
normative phrase, it cannot be analysed properly without bearing in mind the differential between

the prescriptive and normative components. Furthermore, to the extent that the formulation may be

said to include a prescriptive phrase it may be understood to take into account, or include in its
formulation, the practical exposure to instabilities in language giving rise to differends. On this

account, the deliberative will is itself formed and orientated by an exposure to the anarchic

potential that comes with each occurrence of a phrase. This reading of Kant’s formulation of the
typified moral law (itself a proxy for the universal structure of the deliberative will) thus not only

includes the problem of what type of judgment is required so as to traverse from situations of

irreducible conflict to the formation of norms governing politics, but it also suggests that such a
will is rooted and orientated by singular events of material and practical conflict.121

121 James Williams, Lyotard: Towards a Postmodern Philosophy, (Polity Press, Blackwells, Oxford, 1998) 10-12. As
Williams points out, Lyotard’s philosophy of action is one which focuses on ‘the actual state of the society we live in,
independent of any prior philosophical theory as to the state it should be in or could be in’ (p. 10). Lyotard’s philosophy
puts the terrain of an action first. In contrast to Habermas, the critical activity required of a politico-philosophical thought
which is regulated by an Idea of freedom is not one which has links to the activity of rationality, but to the spontaneity of
a phrase and the material conflict to which such conflicts give rise. Obligation precedes the rational and is grounded on
the “currentness”, or what Williams calls, the “materiality” of differends.
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On Lyotard’s analysis of the modes of political legitimation, it is possible to argue that the

typified moral law authorises at lest three forms of politics, each of which may be analysed in terms
of a struggle between the prescriptive phrase and the various normative systems supplied by genres

of discourse. Insofar as the prescriptive phrase can be identified with differends (or insofar as we

can accept that the metaprinciple of alterity, which governs the formation of ethically valid
prescriptions, is identical to the principle which governs the formation of differends), the issue of

how a prescriptive phrase is linked onto, and cited in a normative phrase, also translates as an issue

concerning the settlement of differends. On this approach, the struggle between the prescriptive
phrase and the normative phrase may also be understood as a struggle to gain control over the

occurrence of a phrase and the irreducible conflict that is possible with the occurrence of each

phrase.

The question is, therefore, how can the various modes of legitimation which are suggested

in Lyotard’s interpretation of Kant’s formulation of the typified moral law be figured in Lyotard’s
more detailed description of a deliberative model of democracy? In order to answer this question it

is necessary to summarise Lyotard’s description of a deliberative model of democracy.

In general, the deliberative mode of politics is described as one which organises itself

around an empty centre where deliberation is said to take place (D. §200). The empty centre is the

addressor instance, or instance of sovereignty, of the normative phrase. As pointed out by Lyotard,
the position of sovereignty within deliberative democracies remains vacant. Thus, although the

sovereign remains the ultimate voice of the law, it is designated by contract (PW 118). According

to Lyotard,
this is the paradox of democracy in that the supreme
agency or foundation for making decisions concerning the
whole community is based on the decision of the
community. In this sense the transcendence or Otherness
attached to the notion of the Law that is considered as
the ultimate court of appeal remains immanent to the
community’s sameness. The vacancy of the space of
authority . . . is the perfect example of the blankness
or looseness that the open system preserves within
itself, in order to criticise, correct, and adjust its
own performances. (PW 118)
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Deliberation, in its strict sense, according Lyotard, takes place in various genres of discourse (i.e.

dialectical, rhetorical, forensic) D. §213. These genres of discourse are said to be put in
‘governorship of phrases thereby allowing their differend to flow, in the form of litigations, right

out into the (empty) milieu of political institutions’ (D. §200).

Importantly, however, before deliberation, in the strict sense, gets underway or is called

upon, it is given a direction by, what Lyotard calls, the highest end in the deliberative model of

politics. The highest end, as I have already argued, may be understood to be supplied by differends
and their accompanying unconditional obligations. As we have already seen, the highest end is set

in answer to the question What ought we to be?. This question reaches its most intense application

when the “we” involved is the irreducible I/You of the ethical prescription. The setting of a single
finality for the interlocutors of a differend cannot help but introduce a transcendental appearance of

a universal community. The “we” involved in the interrogative prescriptive, it will be recalled,

cannot be limited to a we which is bound by a common ethos; nor, it should be added, can it be tied
to a we of Western intellectual rationality.

The important point to be made here, is that within the context of post-modern deliberative
democracies, which are in essence pluralistic, there is an uncertainty about the identity of the we.

The fact that the question of a final identity even arises is evidence of this. As Lyotard argues, and

is also pointed out by Bill Readings in his analysis of the Wim Venders film Where the Green Ants
Dream,122 the question of a final identity does not arise in the narrative tradition. Such narratives

say that ‘we ought to be what we are’ (English, Irish, French, Cashinahua, etc.) (PE. 49). In a

deliberative democracy there are as many final identities as there are historical narratives. Any
setting of a single finality, and with it the introduction of a transcendental appearance, cannot help

but be fragile and uncertain.

However, as fragile as the single finality is, it performs the function of providing (the

illusion of) a unity and an orientation for the genres of discourse at play within the deliberative

122 Bill Readings, Ibid.

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process. This orientation is marked by a series of steps, which Lyotard bravely calls, ‘a flow chart

of the free will, or pure practical reason’ (Ibid). On Lyotard’s model of deliberation, once the
answer to the question of “What ought we to be?” is supplied, this is then linked onto with a “What

ought we to do?” (D. §211). This question is said to have the effect of making duty pass into the

hypothetical mode (Ibid). Namely, if you want to be this, then do the following. This question is
also said to call for an ‘inventory of the means to attain the end: an analysis of the situation, a

description of the resources available to both allies and adversaries, and a definition of their

respective interests’ (PE. 48). This phrase of the deliberative process is described as cognitive and
properly belongs to specialists etc.. Once the information is collected a new genre of discourse is

called for where the stake is What might we do?. Here we move to the production of scenarios or

simulations, or what Kant might have called, Ideas of the imagination, or what Freud might have
called, free association (Ibid).

It is in the above scenarios, Lyotard argues, that deliberation, in the narrow sense of
argumentation or Aristotelian dialectics, takes place. The result is the choice of a scenario along

with the end which it implies. The scenario gives the answer which is the least evil to the question

of the means and ends. The choice of the scenario takes the form of a Kantian reflective judgment
which does not follow any rules. The phrase of judgment is then legitimated and made executory,

which is the charge of normative discourse, of positive law and constitutions etc..

As noted earlier, the deliberative model which Lyotard offers is described as a

‘concatenation’ of phrase regimen and genres of discourse (D. §216). The linking of one phrase

obeying a regimen (and finalised by a genre) to another phrase obeying another regimen - or at least
finalised by another genre - occurs at every step in the deliberative “flow chart”. For example, as I

will argue later in this chapter, the linking of the We ought to with We are able to conceals the

paralogism of the we.

Even more acutely, however, political deliberation in the narrow sense involves placing at

least three genres of discourse in the governorship of the linkage of phrases. The heterogeneity of
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the genres, however, form a unity under the single finality set in response to the question What

ought we to be? and further take place in scenarios that are anchored in possible reality by means of
proper names. According to Lyotard, in such scenarios the emphasis is placed on conflict with one

or more opponents. The fact that there are opponents at this stage in the deliberative process

emphasises the point that ‘humanity has not been realised’ and that communities legitimated by
narratives and proper names remain present. (D. §212). Where the linkage of phrases is placed

under the governorship of dialectical and rhetorical genres the result is that, added to the structure

of scenarios, more emphasis is placed on conflict. This is so since the aim of the debates in the
argumentative process is the silencing and persuasion of one’s opponent concerning the choice of a

scenario; where it is a “deliberative” rhetoric (as defined by Aristotle), arguments are exchanged

between the parties before a judge (eg. the Assembly). In modern democracies, Lyotard argues, an
important supplement to a deliberative rhetoric is brought in from “forensic” type rhetoric, ‘where

it is a question of persuading not the opponent but the third party, who sits in judgment’ (Ibid).

The latter supplement is a public polemics involving the campaign for public opinion; it is more
rigorous than any of the other deliberative genres in its aim of silencing the opponent.

The next step in Lyotard’s description of a deliberative model of democracy, is a political

judgment which takes the form of making the decision or choice of scenarios. This decision may

be said to have an ethical and political/juridical form of legitimation. It receives its ethical

legitimation, as already noted, by a judgment that is regulated by the Idea of Freedom. In

accordance with what has already been argued, the decision for a scenario can be judged good or

evil depending on whether the decision is reached by respecting or disregarding any unconditional

obligation. Such unconditional obligations will be felt at the level of individuals and are purely
private to the one who feels the obligation. On the basis of this feeling of obligation he or she will

judge the decision which is made at the level of public opinion to be good or evil. The public

decision in favour of a scenario will find its political and juridical legitimation by satisfying
existing norms and meta-norms (eg. constitutional law).
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How then does this model of a deliberative democracy relate to Lyotard’s interpretation of

the Kantian formulation of the moral law? As I have suggested in Chapter One, on Lyotard’s
interpretation, three modes of legitimation can be said to be operable in Kant’s formulation of the

typified moral law: first, the ethical mode of legitimation whereby prescriptions are legitimated

immediately by the feeling of obligation; second a political and narrative mode of legitimation
whereby prescriptions are legitimated in terms of subjective practical principles authorised by an

appeal to the proper name of a collective and the authority of a tradition or custom; third, a

speculative mode of legitimation which sets down a meta-principle for testing the rational
consistency and universalisabilty of subjective practical principles. As noted in Chapter One, the

first mode of legitimation is identified with the word Act in Kant’s formulation of the categorical

imperative; the second mode of legitimation is identified with the maxim of your will; and the third
mode of legitimation is identified with also be valid as the principle of universal legislation.

Concerning the ethical mode of legitimation, this may be said to occur outside the limits or
parameters set by the various genres involved in political deliberation (narrowly defined). As I

have noted, where the deliberative genres are placed in the governorship of phrases this has the

effect of turning all differends into litigations. All conflict is thought to be able to be regulated by
principles arrived at by a well formed consensus. The ethical prescription is that which receives its

mode of legitimation apart from principles and immediately by the addressee’s feeling of

obligation.

During the process of deliberation, as has been pointed out, one of the aims of the

conflictual nature of deliberation is to silence the other party to the deliberative process. Differends
resulting in wrongs and victims will occur where one of the parties to the deliberative conflict has

suffered damages which cannot be expressed in a language common to the other party and that of

existing public opinion. For example, where public opinion is formed in the face of a polemics
which has as one of its strategies an attack on an opponent’s ethos, the opponent’s silence will in

turn become a case of a differend where claims made in defence of one’s ethos are not broadly

shared by the public. A differend may also occur where a judgment concerning a scenario (i.e. the
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means and the ends adopted by a society to achieve certain higher ends) cannot be legitimated in

terms of existing norms. This is the case in regards to Aboriginal claims of sovereignty. Such
claims concerning the direction Australian society should go, may comply with certain higher ends

but are not justiciable under the present system of government.

Later I will look at the logic of silence and how silence may be understood in the context of

a deliberative process. The important point to grasp here is that, on Lyotard’s arguments, it may be

claimed that within the context of the formation of a deliberative will, arguments supported by
principles can only provide hypothetical constraints, whereas the silences which may occur during

the course of such deliberation may provide categorical constraints. As I will argue later in this

chapter it is the feeling of respect and obligation which provide the binding and motivational
ground for the formation of a deliberative will and it is the feeling of the sublime which guides a

political judgment on what decision is to be reached or scenario chosen; of course these feelings

can be ignored.

Returning to Kant’s formulation of the typified moral law, it may be said that in the event

that such requests do institute a feeling of obligation in their addressees, what is conveyed to the
addressee is that he/she ought do something (Act!) to institute new idioms which do not yet exist

that will give expression to the wrong and convert the victim into a plaintiff. In carrying out an

action, however, it is not possible for the agent to institute either a Levinasian or Kantian ethical
community. ‘Causality through freedom gives signs, never ascertainable effects, nor chains of

effect. No “nature,” not even a supersensible one, not even as an Idea, can result from obligation.

The imperative does not command one to act so as to produce a community of practical, reasonable
beings, but as if the maxim of action were supposed to be a law of this community’ (D. Kant

Notice 2: §6).

On Kant’s analysis the action willed by pure practical reason must be, at once, morally and

physically possible (CPrR 58-9). In the idiom of Lyotard’s philosophy phrases, where this

requirement relates to the ethical possibility of action, the action in question can only be taken as
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the sign of an unconditioned obligation. As noted above, such signs do not have ascertainable

effects. Where the requirement relates to the physical possibility of the action, or to the
requirement that a pure obligation give rise to a phenomenon that is explicable according to the

rules of cognition, it is to be understood (in terms of the pragmatics involved) that it is also a

requirement that it be possible for the addressee of an ethical phrase to become the referent of a
subsequent cognitive phrase. With this point in mind, it may be said that the maxims of action,

and the actions themselves involved in the deliberative process, can only be taken as signs of

unconditional obligations. Where such maxims etc. are treated as phenomena they cannot be said
to be examples of an ethical community. As was outlined in Chapter One, on Lyotard’s reading,

the as if in Kant’s formulation of the categorical imperative marks a differential between the

prescriptive and normative phrase. In carrying out an action, the deliberative agent can only act as
if the maxim of his/her action were supposed to be a law of either the Levinasian or Kantian ethical

communities.

Concerning the political mode of legitimation, this may be said to relate to the selection or

decision concerning the scenario that sets the means and the ends of the deliberative community.

In making this selection one can disregard unconditional obligations and choose a scenario that
affirms the status quo. Or one can, out of respect for such obligations, choose a scenario that gives

expression to wrongs and transforms victims into plaintiffs. It may be that such efforts cannot have

a legal legitimacy under existing norms. Where this is the case, the unconditional obligation
extends further than the invention of scenarios, to the institution of political action that has as its

aim the alteration of the existing constitutional structure of hypothetical constraints.

As I have noted in Chapters One and Two, the meta-norm of universalizability may be

regarded as a regulative principle guiding a political judgment. If a political judgment is integral to

the selection of a scenario, then the Idea of freedom is necessary to the assessment of such a
judgment’s ethical validity. As I have already suggested, the maxim of action which links onto an

unconditional obligation may be treated as a sign of an absolute spontaneity or it may be treated as

conditioned by a past. The same argument applies to scenarios which are in effect rooted in
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subjective practical principles. The chosen scenario, which may be equated with the ‘resolution,

the program, the result of a ballot, the judge’s verdict’ (D. §214), may be judged by an individual to
be a positive or negative sign of an unconditional obligation. Where the chosen scenario ignores

the categorical restraints which are felt by the individual in question, the scenario and the resulting

political judgment, will be judged to be evil. It will be judged to be good where it respects the felt
obligation.

In summary, it may be concluded that in the act of political deliberation, both categorical
and hypothetical constraints operate on the will of constituents. The formation of a public opinion

and the resulting political judgment is made in the midst of such constraints. Since categorical

constraints are of the order of a Wittgensteinian idiolect, it is only the You of a You ought to which
feels such constraints. No We is placed on the addressee instance of an ethical prescription.

Consequently, while the addressee may do everything within their power to respect the obligation

(eg. select a certain scenario) these actions may not coincide with those of the rest of the
community. In such instances the political actions of the deliberative body will be judged as unjust

by the individual in question. In all cases the categorical constraints operate to provide an

orientation for an individual’s selection of hypothetical constraints and their resulting scenarios and
political judgments.

From the perspective of Kant’s moral psychology, we might also add, that insofar as a
political judgment is understood to be that of an empirical will, and insofar as the empirical will

takes an interest in the law of the differend (made present through the feeling of obligation), such a

will is motivated to act, not on the basis of self-interest, nor in a manner which reproduces the
mode of linkage which is habitually undertaken, but rather, on the basis of a disinterest for one’s

own world and an interest for the world of another - as yet unknown. Out of respect the empirical

will is placed under the law of another; it hears the request of one not belonging to its world - and it
acts. In accordance with Kant’s critical assessment of action in the first Critique, a judgment

concerning whether or not the actions of a will are in fact unconditioned by one’s own world

remains equivocal. From the perspective of a cognition which judges actions according to the
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world to which a will belongs, actions can always be explained as consistent with the pattern which

forms that world; on the basis of an ethical judgment, however, the same actions may be judged to
be the sign of an unconditional obligation, or of the differend which gave rise to that obligation (D.

Kant Notice: §6).

On this argument it is possible to identify the fact of such categorical constraints which

occur at the border of each phrase (or more precisely, the constraints which occur as a result of the

conflict concerning linkages which occurs at the border of each phrase) with the Kantian fact of
reason. In this manner, insofar as the typified moral law is said to provide the formulation of a

judgment which places categorical constraints upon all acts of deliberation, Lyotard’s reading of

Kant’s formulation of the categorical imperative can be seen to have the implied function of
shifting the fact (of the categorical constraints) from the domain of principle and practical reason to

that of the occurrence of a phrase and the differend. As I noted in Chapter One, on a pragmatic

reading of Kant’s formulation of the categorical imperative, the categorical effect is not attributed
to the universality of a principle, but to the Obey! which accompanies the command Act. But

further, insofar as the formulation of the categorical imperative is thought to be expressive of the

universal structure of moral deliberation, it can also be claimed on Lyotard’s analysis, that the
sense of categorical constraint which a will feels in the moment of deliberation is not attributable to

principles of reason, or even to the principle expressed by the typified moral law, but to ethical

prescriptions identified with moments of differends (i.e. simple prescriptions which the normative
agent cannot legitimate in terms of the norms which constitute and govern his/her own world).

Additionally, not only is it possible to claim that Lyotard does not agree with Kant
concerning the reasonable status to be attributed to the fact of the categorical constraints, it is also

possible to show that he disagrees with Kant on the particulars concerning the deduction of

freedom (i.e. the practical deduction of freedom based on the fact of the categorical restraints). For
Lyotard, obviously this is not a freedom that is identified with the normative activities of reason

nor, as I have argued in the second chapter, should it be equated with a cosmological concept of
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freedom.123 Nor is it a freedom that is identified with the spontaneity of the normative agent;

rather, on Lyotard’s approach, all that can be deduced from the categorical constraints, is that the
addressor, and not the addressee, of the prescription is transcendentally free. This can be seen from

the following remark:

To the You ought to then there corresponds, on the order

only of an Idea, an I am able to and not a You are able
to. This I am able to is not a phrase that links onto
the You ought to by way of an entity which would be self-
same, I over here and you over there (as in free will),
but the phrase I am able to ought to be the same phrase
as You ought to. Along with the universe of the
obligation, instantiated upon the addressee, you ought to
copresents a universe of freedom, which is instantiated
upon the addressor. As for knowing who says I, or even
if this I says itself, that cannot be done. . . . I am
able to is to be understood as follows: I am not
constrained by the linkages that regulate cognizable
objects, especially not by empirical interest and
motives, I transcend them. In this way, in the phrase of
obligation, dependence upon the law is presented as a
feeling, at the same time as independence from the
regimen of cognition is presented as a mysterious
presupposition. (D Kant Notice 2: §2)

Thus, on Lyotard’s proposal, the practical deduction based on the fact of categorical constraints,

does not lead in the direction of reason, nor in the direction of meta-norms constraining the

selection and determination of maxims and ends, but rather in the direction of the addressor of the
prescription, and in the direction of relations of difference (differends) which institute ethically

valid prescriptions. This point is further borne out if it is recalled that it is not a principle which is

identified with the constraint, but rather the pragmatic effect of a relation of alterity. This is to say
that the pragmatic effect of the prescription, what I am here identifying with the categorical

restraint of the law, is identified with the effect of irreducible asymmetrical relations between

parties. Stated in terms of the Levinasian principle of alterity, the categorical restraint is to be
identified with the fact (presented by ethically valid prescriptions) that You/ shalt never be/I/!

On the basis of a pragmatic analysis of obligation, as we have seen, Lyotard argues that the
addressee cannot be identified with the addressor of a prescription. And further, he claims that
123 Although, as I will show, Lyotard is equivocal on this point.
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transcendental freedom can only be identified with the addressor and not the addressee. He thus

rejects a notion of prescriptive phrases or obligations which are formed according to the principle
of autonomy. Commenting on this aspect of Kant’s moral philosophy, he points out that the quasi-

fact124 of obligation may serve as a point of departure for the deduction of freedom. According to

this argument, the decision whether the freedom involved is that of the obligee or obligor, depends
to some extent on the formulation of the canonical phrase of freedom. Lyotard’s claim is that the

Kantian formulation is: “If you ought to, it is because you are able to” (Kant Notice 2: § 2). In

formulating the phrase of freedom in this manner, he says, ‘Kant favours a frequent error: you are
obligated to carry out an act (it being understood: instead of being constrained to carry it out) only

because you have the possibility (in the sense of contingency) not to carry it out’ (ibid). On this

argument, the basis for the Kantian deduction of freedom and the identification of this freedom
with the obligee, is the freedom which the moral agent has concerning the content of a maxim and

the freedom to refuse to obey the law. As Lyotard rightly points out, this freedom, made known by

being placed under the law, does not provide a basis for the proof of transcendental freedom. ‘The
freedom deduced from the law is not the contingency of linkages’ (ibid).

Lyotard’s basic claim is that before the addressee of an obligation can link onto a
prescription with an I won’t do it, he/she ‘was still first a you grabbed hold of by the obligation’.

The one who says I won’t do it, is first of all placed in a prescriptive phrase universe where he/she

undergoes the displacement of being an I placed onto a you instance. I shall return to expand this
point in a moment, but first it needs to be pointed out that Lyotard misconstrues the Kantian

deduction of freedom. Here I am not in disagreement with the claim that Kant’s canonical

formulation of the phrase of freedom may be stated as: If you ought to, it is because you are able.
The Kantian reciprocity thesis supports this claim, and goes further to state that the canonical

formulation of the phrase of obligation is: if you are able to, then you ought. (If freedom, then the
124 On Lyotard’s argument, obligation (like the feeling of the sublime) is not a fact, in the sense that it is not a
phenomenon (i.e. that thing for the concept of which an intuition may be provided). This quasi-factual status is crucial to
the role which feelings play in the deduction of freedom. A feeling is not thought to be an intuitive given (which only has
the function of validating the phrase which describes it). Feelings, in this regard, as quasi-facts, are not thought to prove
anything, but only to indicate (see Kant Notice 4: §3). Importantly, the argument here is that if ‘feelings” were a given
then, at best, they would only admit the antinomy which applies to actions. Their status as quasi-facts is meant to allow
for an unequivocal deduction of freedom; this deduction, however, on Lyotard’s argument, cannot be thought of as a
“proof”, but only as something which “indicates”.
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law; if the law then freedom). Lyotard, however, misconstrues what is involved in the claim I am

able. The basis for this claim is not the contingency of linkage (i.e. the ability to refuse to obey), or
the freedom of choice concerning the content of maxims, but rather the incentive or interest of

‘respect’. On the Kantian model, I am able to because I have the capacity to act from respect for

the law, and this capacity or interest is just that ability to act in independence from any pathological
determination.

In contrast to how Lyotard presents Kant’s argument, the Kantian practical deduction of
freedom (the I am able to) is not a phrase which links onto the phrase of obligation, but is a co-

presentation of the phrase of obligation.125 On the Kantian argument, the recognition of an

obligation brings with it the immediate and pure interest of respect. In recognising the objectivity
of an obligation, or in being conscious of standing under the law, the I also necessarily has an

immediate interest in carrying out the law (Gr 4: 4460-1; 123-4). According to this argument, the

you of the you ought to is said to be, at one and the same time, the I of the I am able to. Respect in
this manner functions as the subjective ground upon which the rational agent selects maxims and

determines actions. The only major question, for developing a positive notion of the freedom of

the obligee is whether this pure rational interest is sufficient (or can be made a motivational
ground) to counter other pathological interests.

As I have argued (following Allison), insofar as maxims are products of practical reason,
and insofar as the formation of maxims are subject to the objective criteria of intrinsic and extrinsic

reasonableness, the deliberating agent may be said to determine their own action by means of

hypothetical and categorical imperatives. Where maxims have hypothetical validity, the agent
determines action by judging what is reasonable in the circumstances; where maxims have

categorical validity, the agent determines action by judging what is reasonable for all times and

circumstances (KTF 88-9). In the last case, the agent is said to determine his action by means of a
categorical imperative (or an ought). In the case of a moral agent, the formation and legitimation of

a maxim is not only judged according to objective criteria, but also subjective criteria. That is, a

125 This is the way in which Lyotard presents his own approach to the deduction of freedom (Kant Notice 2: §2).
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maxim of action is judged to be moral if its principle satisfies the universality test and if it is

selected because it satisfies the universality test. In contrast to rational action, moral action has an
additional motivational requirement. One not only forms maxims according to the test of

universality, one also selects these maxims out of respect for the objective necessitation expressed

in an unconditional practical law

On Kant’s model, it is ‘respect’ which provides the (subjective) categorical constraint of

the deliberative act (CPrR 5: 73-4): respect constrains the will of the normative agent to select
maxims that are able to take the form of laws (i.e. be universal laws of nature) because they can

take that form. It is possible to say, therefore, that the objective validity of a principle of reason

provides objective ground for the selection of a maxim, while the spontaneous act of taking a pure
interest in the law, provides the subjective ground. On Kant’s argument, in the same moment that a

you is conscious of being a you of a you ought to, he/she is also conscious of being an I of an I am

able to. The practical consciousness, or proof, of transcendental freedom occurs necessarily and
immediately upon recognising the objective validity of the law. The deduction of the freedom of

the obligee does not, as Lyotard argues, result from a moment outside the moment of obligation.

Rather, it may be said that obligation and respect, the you ought to and the I am able to, are,
respectively, the objective and subjective ground of the same event (i.e. consciousness of standing

under the law).126 To some extent, as I will attempt to show, Lyotard also adopts this model of

obligation when developing his notion of politics. It would seem that a republican politics would
require such a model of obligation. However, for the most part, Lyotard develops an

126 According to Mary Gregor, this distinction between objective necessity and subjective necessity forms the basis for
two concepts of obligation. On her argument, Grotius successfully provided a theoretical framework for the first concept
(Natural Law) but not the second. Pufendorf, however, came close to developing a theoretical framework for both
concepts of obligation. He came close in the sense that he argued that the mind could be moved to comply with the law
of nature merely by an intrinsic motive based on its recognition of just reason. He failed because he links the concept of
‘just reason’ not to unconditional practical laws, but to the conditional ‘what would be advantageous to beings with a
nature like ours’. See Mary Gregor, ‘Kant on “Natural Rights”, Kant & Political Philosophy: The Contemporary Legacy,
ed. Ronald Beiner & William James Booth (New haven, Yale U.P., 1993) pp.56-61.
Christine Korsgaard, points out that the ‘the term “obligation” is a source of confusion, because “an obligation” is
sometimes used loosely as a synonym for “a duty,” a required action. But “obligation refers not so much to the action as
to the requiredness of the action, to its normative pull. We say that we feel obliged, or are under an obligation, to
express our sense that the claims of morality are claims on us. The idea that moral conduct is obligatory . . . , is
intended to capture both elements of the normativity of morality: its power both to motivate and to bind’. Christine
Korsgaard, Creating the Kingdom of Ends, (Cambridge, C.U.P., 1996) p.44.
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incompatibilist model of obligation in which freedom is not identified with the freedom of the

obligee, but rather, the obligor.

III

As suggested in Chapter One, the real basis for Lyotard’s rejection of the Kant’s identification of
freedom with the addressee of the obligation is his pragmatic analysis of prescriptive phrases. On

the basis of this analysis it is claimed that the addressee of a prescription cannot put themselves in

the position of the addressor without neutralising the currentness of the prescription. It was stated
in Chapter One that the act of citing a prescription has this effect. Seen in terms of Allison’s

reading of Kant (in Chapter Two), it may be added that the spontaneous act of ‘taking as’, along

with recognition, may also be identified with an act of citation - all of these activities having the
effect of neutralising the prescriptive phrase. On Lyotard’s approach, the activities of reason do

not merely fail to provide a basis for categorical constraints, they actively neutralise such

constraints. It is not possible, therefore, on Lyotard’s pragmatic approach, that obligation, at least
according to the rules governing the formation and legitimation of an ethically valid prescription,

be given an objective dimension. Obligation may, however, be given an objective dimension in the

context of political and juridical forms of legitimation. The latter form of legitimation requiring
norms and the citation of prescriptions by norms. In contrast to a moral and political philosophy

which presumes that universal norms provide the basis for obligation, Lyotard would claim that an

idealisation of an unconditioned practical law may function to provide a political legitimation in

terms of the idea of freedom, but it does so only at the expense of neutralising the categorical

constraints of a prescription.

As noted above, Lyotard’s position concerning the practical deduction of freedom is

formulated in terms of a philosophy of phrases and a pragmatic analysis of the phrase of obligation.

The essential point to come from this analysis concerning freedom is that ‘along with the universe
of the obligation, instantiated upon the addressee, you ought to copresents a universe of freedom’

(D Kant Notice 2: §2). His claim, as can be seen in a passage which precedes this statement, is that

in “hearing” you ought to the addressee of a prescription also hears a phrase ‘awaiting its
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formulation under his or her responsibility’ - this phrase is, he says, You are able to. The point

being made here is reflected in Lyotard’s thoughts concerning the expression Obey!. It will be
recalled that this statement, which is said to accompany all prescriptions, is that which renders

executory all prescriptive statements that are executable. It is not understood or comprehended, it

merely has the effect of modifying the will of the addressee. Or again, as pointed out earlier, the
form of the Obey! ‘is not that of universality, which is denotative; it is that of obligation which is

pragmatic’; “it” is not obligatory because “it” is universal, it is simply obligatory; “it is to be done

before ‘it’ is understood” (LR. 307). The “hearing” of the You ought to! may, therefore, be
identified with the “hearing” of the Obey! of the prescriptive phrase. In hearing the Obey!, the

addressee of a prescription hears at the same time the imminent phrase of freedom which is ‘unable

to be formulated in a description’ (D. Kant Notice 2: §2). This phrase of freedom, awaiting its
formulation, ‘is marked or announced as a partial silence, as a feeling, as respect’ (ibid, emphasis

mine).

Moving to the question of whether or not the one who is constrained can also be understood

as the author of such constraints (and thus to the issue of autonomy), Lyotard writes that ‘the

question put to critical metalanguage is knowing whether the you in You ought to and the you in
You are able to are the same you, whether the entity that is obligated and the entity that is the first

cause are the same entity’ (ibid). In answering this question he does not engage with the issue

concerning the interest of respect: namely, that the formulation of freedom is marked or announced
in the feeling of respect. Perhaps this is because Lyotard is only interested, at this point, in the

critical function of respect as a feeling and not its practical function as a motivation or incentive.127

Instead, Lyotard moves on to analyse the problematics of freedom, not in terms of the feeling
(interest) of ‘respect’, but in terms of the “quasi-fact” of obligation (D. ibid). In doing this, it may

be said, on the basis of a traditional approach to the problematics of obligation, that Lyotard

127 I shall return to this point in the last section of this chapter. The essential lesson here is that respect is regarded by
Lyotard to be a “blank” feeling. As an incentive it is not felt. The faculty of pleasure and displeasure, however, provide
an instantaneous and spontaneous estimate of the incentive. On this argument the sublime feeling is that aesthetic
estimate which is provided of the prescriptive event. The feeling occurs as a secondary effect, and has the appearance
of coming from outside the will.
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focuses on the binding aspect of the executive force of a prescription and not its motivational

aspect.

This last point is important. While it is not possible, on Lyotard’s approach, to analyse

categorical constraints in terms of a distinction between objective and subjective grounds, it is still
possible to analyse such constraints in terms of their binding and motivational force. The binding

character of the executive force of a prescription is not linked to the rationality of a principle

supporting it, but to the formation of prescriptive situations (identified with differends); and the
motivational aspect, likewise, can also be identified with the prescriptive situation and may be

analysed in terms of the interest of respect. Insofar as Lyotard may be interpreted as not departing

from a Kantian psychology concerning respect, it might be thought that he supports the claim that
the interest of respect can form the premise in a synthetic deduction of the practicality of reason

and the transcendental freedom of Willkür. But this cannot be the case, for firstly, the fact of the

interest of respect cannot form the basis of a deduction of the practicality of reason, since it is not
the principles of reason which provide the basis for the categorical constraint, but the practical

relation of alterity; secondly, the fact of the interest of respect cannot form the basis of a deduction

of the autonomy of Willkür. This is so since Willkür is identified with a faculty which adopts the
incentive of respect because of the interest it has in an ought expressed in objective practical law.

The claim which is made concerning the deduction of the autonomy of Willkür can also be
made concerning the principle and character of the deliberative will. Insofar as both Willkür and

the deliberative will are thought to be thoroughly rational, and therefore only interested in acting on

maxims which conform to universal principles, it follows that neither would be interested in acting
on obligations instituted in situations of alterity (i.e. situations lacking a governing principle).

However, to the extent that the deliberative will, in spite of its own interiority, can be taken hostage

by an ‘exteriority’128 (in a Levinasian sense expressed in the language of Totality and Infinity129),

128 As has been shown by Critchley, the notion of exteriority expressed in Totality and Infinity, later undergoes a change
in the work entitled Autrement qu’ etre ou au-delà de l’essence (1974) (Lyotard also makes a similar point). According to
Critchley, Levinas (1974) ceases to frame a notion of exteriority in terms of the categories of Being and instead becomes
preoccupied with the model of the Saying and the Said as a way of explaining how the ethical signifies within ontological
language. See: Simon Critchley, The Ethics of Deconstruction: Derrida & Levinas, (Oxford, Blackwell 1992) p.7
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then it is possible to claim that the fact of respect which would, on Lyotard’s reinterpretation of

Kant, be immediate upon this event, provides a basis for the deduction of the transcendental
freedom of the deliberative will. Here transcendental freedom is not understood as the capacity to

act out of an interest of objective principles, but rather, as the capacity to act out of interest for the

world of another. Furthermore, the concept of freedom implied in this deduction should not be
equated with a cosmological concept (as Lyotard has a tendency to do), and thereby thought in

terms of the categories of ‘character’, ‘law’,’ causality’; rather, it should be thought in terms of an

ontological concept of freedom, and thereby thought in terms of the categories of a ‘burst’ or a
‘flash’ of an existent. In this manner, the freedom of the deliberative will is not attributable to a

permanent substance or subject but rather to the contingency which surrounds the occurrence of a

differend (D. §155). As I will attempt to show for the remainder of this chapter, while Lyotard did
not expressly state these views concerning the transcendental freedom of the deliberative will, they

are implied in his work which deals with the operation of respect and the sublime.

To summarise what has been said so far about the question of respect. My argument

concerning the interest of respect is that insofar as it can be identified as a fact of the differend, and

insofar as differends are made practically present in obligations, respect functions as a motivational
ground for the self-ruination of the pretensions of normative powers. Where respect is identified

with the fact of the differend and its categorical constraining power upon deliberation, the

motivational basis for action is not grounded in a maxim of self-love and self-actualisation through
repetitive modes of linkage; rather one’s Gesinnung130 (i.e. one’s fundamental rationale for

perpetuating a world), as Kant would call it, is made hostage and brought into question by another,

and another's world,131 yet unknown. On Lyotard’s argument the ground of a critical assessment of
129 In Totality and Infinity Levinas’s manner of dealing with the concept of exteriority is still wedded to the categories of
Heidegger’s fundamental ontology. As Lyotard notes, Levinas made such a critique of Totality and Infinity in “Signature”,
see: LR. 281. To frame the pragmatics of a prescriptive phrase in terms of a fundamental ontology, differs from a
cognitive approach to prescription, only in that the conditions which are thought to explain the executive force of a
prescription are thought to persist in separation from the conditions of the mind. The problem with this approach, is that
on a pragmatic analysis it may be seen to adopt a theoretical stance in relation to the executive force - once again
neutralising such force. The ontological description thus fails on the criteria stated above - since it fails to engage with
the prescription whilst the prescription is “current”.
130 Gesinnung is translated as “disposition” - and is defined as ‘the ultimate subjective ground of the adoption of maxims’
(Rel 6: 25; 20)
131 On the face of it, this view of alterity, which I am offering here, is more consistent with Husserl’s and Derrida’s, than
Levinas’ and Lyotard’s. On Husserl’s and Derrida’s argument, the other can only be recognised as Other, ‘ in its form as
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ones situatedness in the world is not provided by the courts of reason, but by situations of

difference which are made known practically in the mode of obligation and respect and critically
and politically in the mode of sublime feelings.

One might wonder what such a claim concerning the operation of respect has to do with
politics. Typically, the concept of respect is more accurately handled under a study of moral

psychology. Afterall, as Kant has shown, it is the issue of internal constraint or incentive which

distinguishes the Doctrine of Right from the Doctrine of Virtue. Juridical duties enacted by the
positive law-maker only impose external constraints (eg. sanctions) on a will, while duties of virtue

or ethical duties are enjoined by an “inner legislation” and involve a self constraint (MS 6: 16-21;

218-22). How then is it possible to ascribe a political value to the interest of respect which is
inextricably interwoven with this self-legislation and constraint? While objective universal

principles are thought to be foundational to a form of liberal thought concerning the rights of the

citizen versus the state,132 the motivational basis on which such principles are adopted are not
understood to be within the province of politics. On this approach ‘respect’ is thought to be the

motivational grounds upon which universal principles are adopted. But what of the situation (as is

accepted by Critical Legal Theorists the Frankfurt School and antifoundationalist thought in
general133) where universal principles are themselves understood to be grounded in interests? In

that case the question of interests, and therefore respect, is shifted to the realm of politics.

ego, in its form of alterity, which cannot be that of things in the world. If the other were not recognised as a
transcendental alter ego, it would be entirely in the world and not, as ego, the origin of the world. To refuse to it an ego
in this sense is, within the ethical order, the very gesture of all violence’ : Derrida, Writing and Difference ibid., p. 125.
This position can be contrasted with Lyotard’s following statement: ‘The I placed in the position of a you is someone to
whom a prescription is addressed, the simple prescription that there be prescriptions (and not only descriptions, not only
cognition). The I in this situation learns nothing, since there is nothing to learn (a command is not a bit of information).
The I does not even know if the other is also an I, nor does the I know what the other wants from the I nor even if the
other wants something from the I, but the I is immediately obligated to the other. This is what the I’s placement onto the
you instance marks: You ought to (D. Levinas Notice: §1). On Lyotard’s argument the difference between these views of
alterity may however be reconciled where ‘obligation’ and the ‘sublime’ are understood as two modalities by which
heterogeneity is presented. Where one is dealing with the ‘sublime’, alterity is thought as the synthesis of absolutes
(LAS 123), which in turn, as Samuel Weber has suggested, is one way in which Lyotard’s notion of phrase universes
and genres may be thought (JG 103).
132 Steven B. Smith, Hegel’s Critique of Liberalism: Rights in Conflict, (Chicago, Uni. Chicago Press, 1989) p.2-3.
133 For a summary of the debate concerning the possibility of a critical self-consciousness see: Stanley Fish, “Critical
Self-Consciousness, Or Can We Know What We’re Doing?”, Doing What Comes Naturally (London, Duke Uni. Press,
1989) p. 436. For a recent criticism of Fish’s position that ties in somewhat with the argument developed here
concerning respect and the sublime, see: Thomas Keenan, ibid. p. 16-23.
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How is it possible to get a critical distance from one’s own beliefs and interests? Rational

principles can only provide this critical distance if they are not themselves implicated in the
rationality embedded in the overall framework imposed by dominant interests. Where such claims

for rationality are rejected and where it is accepted that a deliberative will is always situated in a

pregiven structure of interests, one way to approach the problem of critical distance is to look for a
preconceptual activity which provides the basis for such distance. It is in relation to this issue that

Lyotard’s use of Kant’s moral and aesthetic psychology may be interpreted. Rejecting the

neutrality of rational principles Lyotard looks for a different mode of synthesising difference or
dealing with differends (i.e. one which neither collapses difference or makes it absolute). In the

practical sphere, as I have argued, the claim is that the “feeling” of obligation and respect provide

the mode whereby such difference is presented. Where such feelings operate the deliberative will
is not self-interested, neither is it interested in the law of a universal we; rather, it is interested in

the law of those who are currently victims. Such feelings, as I have argued, provide a binding and

motivational basis for a deliberative will. When it comes to a political judgment, as I will argue in
the next section, it is the uninterest (in the objects of the world) of the sublime feeling which

provides the necessary critical distance for rejecting dominant forms and concepts that would aim

at resolving difference. Under the guidance of the sublime feeling a sensitivity to Ideas is
developed and the conflict between principles of reason is enhanced. The claim for the critical

distance of the sublime is based on the argument that the uninterest of the sublime does not have its

basis in the dominant objects of interest or in the world of the normative agent; rather, its basis is in
conflict or differends and its pairing with the feeling of respect.

Why, then, is respect a central element in the development of a postmodern model of the
deliberative will? The simple answer to this question rests on Lyotard’s notion of politics as

identified with the multiplicity of genres, the diversity of ends and the threat of the differend. But,

as I have also shown, Lyotard’s notion of obligation and respect are identified with the formation of
differends. On this approach, a political judgment has its means of constraint and motivation in the

feelings and interests made “present” on the occasion of differends. The point to remember here is

that the condition of political judgment, as I have noted, is analogous to the reflective condition of
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critical thought. This is to say, like reflection, it has the task of reunifying the genres and phrase

regimen, settling differends (I/You relations), not by its own authority to prescribe laws (LAS 2),
but because of its capacity to account for the singularities in an activity of precise discernment. As

I have suggested, this political judgment is itself authorised by an Idea or a principle of teleology

which aims at the freedom of language or phrasing. This finality, as I have also have suggested,
should be identified as the finality of a contra-finality (zweckwidrig CJ §23)134; that is, the finality

of an activity that is itself the expression of a conflict of ends (stakes set by genres of discourse).

Where this is thought to be the political activity for deliberative democracy, reason finds its place
as that faculty of culture which is productive of Ideas. Where the typified moral law and a model

of the deliberative will are rethought in terms of this notion of political activity, obligation and

respect, as the fact of the differend provide a basis for guiding thought in its deliberation.

3.2 Respect and and a Postmodern Model of a Deliberative Will

I
To expand upon this notion of respect I will attempt to reconfigure Kant’s moral psychology in

terms of Lyotard’s philosophy of phrases, paying close attention to Lyotard’s reading of Kant, and

in particular his reading of Kant on themes of ‘respect’ and the ‘sublime’. As I will attempt to
show, both these themes have a central place in developing a psychology of the type of political

activity required for a postmodern society.

Generally speaking, Lyotard does not want to equate genres of discourse with the Kantian

faculties. This prohibition, however, only extends to the scope of genres and faculties. As he

134 In the Differend, where Lyotard writes of the “finality” of the sublime, this is translated as ‘the finality of a nonfinality’
(D. Kant Notice: §4). In Lessons on the Analytic of the Sublime, it is translated as ‘contra-final’ (LAS 69). In the
Differend the passage which is referred to in the Critique of Judgment (§ 27) uses the word Unzweckmässigkeit to
describe the finality of the imagination. In Lessons on the Analytic of the Sublime, the passage referred to uses
zweckwidrig (§23). The point being made here is summed up in the following passage from the Critique of Judgment:
‘the most important and vital distinction between the sublime and the beautiful is certainly this: that if, as is allowable, we
here confine our attention in the first instance to the sublime in Objects of nature, (that of art being always restricted by
the conditions of an agreement with nature,) we observe that whereas natural beauty (such as is self-subsisting)
conveys a finality in its form making the object appear, as it were, preadapted to our power of judgment, so that it thus
forms of itself an object of our delight, that which, without our indulging in any refinements of thought, but, simply, in our
apprehension of it, excites the feeling of the sublime, may appear, indeed, in point of form to contravene the ends of our
power of judgment, to be illadapted to our faculty of presentation, and to be, as it were, an outrage on the imagination,
and yet it is judged all the more sublime on that account’ (§23 emphasis mine).
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points out, 'certain overlappings are possible: certain descriptives might belong to the faculty of

cognition, certain prescriptives to the faculty of desire. There is an affinity between the cognitive
genre and the understanding, between the dialectical genre and speculative reason,'(§ 187) but a

strict table of correspondence cannot be established, especially with respect to the narrative genre

and the "faculty" of judgment . There is, however, for our present purposes, a more important
analogy to be made between faculties and genres of discourse. As I have already argued, Lyotard

seeks to draw an analogy between the reflective conditions of critical thought, which is responsible

for the task of the “unification” or “reconciliation” of the faculties, and a political judgment which
has the task of “unifying” the multiplicity of genres. Once again, it may be claimed that

analogously to the Kantian faculty of judgment which is authorised in terms of a principle of a

teleology of nature for freedom, political judgment (identified with the multiplicity of genres) is
authorised by the invention of its own principle of a ‘finality of a contra-finality’ (a finality of

conflicting finalities).

In order to understand, therefore, the central importance which ‘respect’ has in Lyotard’s

political philosophy it is necessary to note the position which it holds in Kant’s philosophy of the

faculties. In the second Critique, under the heading "On the Primacy of Pure Practical Reason in its
association with Speculative Reason", Kant states that where we consider the primacy between

two things connected by reason from a narrow practical perspective, it is the concept of interest

which determines the question of primacy. Something will have primacy insofar ‘as the interest of
the others are subordinate to it and it is not inferior to another (CPrR 120). He then argues that

every faculty of the mind is subordinate to reason, insofar as each faculty has an interest (defined

as, “a principle which contains the conditions under which alone its exercise is advanced” [ibid]),
and insofar as reason is the faculty of principles. Reason is thus said to determine the principles for

all other faculties including its own.

Concerning the primacy of practical reason over speculative reason, Kant advances a

number of arguments, but the central claim is that because every interest is practical, the exercise of
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the speculative interest has to be determined in terms of the interest of practical reason. As Kant

says concerning the irreversibility of the primacy of practical reason over speculative reason,

Nor could we reverse the order and expect practical

reason to submit to speculative reason, because every
interest is ultimately practical, even that of
speculative reason being only conditional and reaching
perfection in practical use (CPrR 122).

Interpreting this claim concerning interest, Lyotard focuses on the issue of the “employment” of the

faculties. As noted, the concept of “interest” provides a principle which alone contains the

conditions under which the exercise or employment of a faculty is advanced. From this concept of
employment, Lyotard frames the issue of interest in terms of transcendental/actual, potential/actual,

and posse/esse relations (LAS 173). The concept of interest is central, or fundamental, to the

possibility of the faculties of the mind passing from being a mere potential, or transcendental
storage of determinations, to becoming actual. It is ‘interest’ which makes it possible for a faculty

to make the passage from posse to esse (ibid). Governing all of this actualisation, or employment of

the faculties, is the interest of practical reason, which may be thought to provide the conditions
under which all of the interests are advanced.

Before the faculty can pass from potentiality to actuality, however, more than just the
facultary interest is required. It is also necessary that an empirical will (“on the ground”) take an

interest in actualising the interest of the faculties. As Lyotard points out then, there are two sides to

this "interest" (174), the facultary interest and the interest of the (empirical) thought which employs
a faculty; and the difference between them is that the first is a priori, and the latter (the empirical

interest) is calculated (LAS 174). Concerning how these two interests are linked, Lyotard argues

that each faculty

attests to a sort of “need” to actualise the faculty, a

pressure on the possible to be realised which is a pure
prattein. We might say a kind of facultary “will to be”
(...). And on the other hand, on the side of the
empirical, this facultary “will” cannot be effected
unless it can make itself heard to a thought immersed in
the world of empirical interests, conditions and charms’
(LAS 177).
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On Lyotard’s analysis, therefore, the actualisation of all of the faculties of the mind is made to
depend upon being called or ordered into action. In terms of the various types of statements which

are available to the various faculties (and no doubt for reason of hierarchy), it is practical reason

which, as Lyotard notes,

carries in its intrinsic condition of possibility , in

its imperative form of the law, the obligation to be
realised. “Act”: this is what practical reason prescribes
to practical thought (to empirical will) and this means
nothing other than - actualise me (LAS175).

In order to obtain the effect of actualising the general facultary will (as is presupposed by the

interest of reason), he argues, ‘there must be an incentive in the will capable of overcoming the

internal obstacles i.e. the preestablished incentives that are the will’s attachment to the empirical
ego’ (ibid).

A number of points should be noted concerning Lyotard’s interpretation: first he does not
question the claim that practical reason provides the basis for the categorical imperative. This

claim runs counter to the general thrust of Lyotard’s arguments that the categorical restraints is

provided by unprincipled or asymmetrical relations. It should be clear that practical reason, as a

faculty of principles, cannot supply categorical restraints, but only hypothetical constraints. This

confusion concerning Lyotard’s use of the concept of the faculty of reason can be noted in a

number of places (eg. D. Kant Notice: §2) As such, however, if it is the case that the faculty of
reason does provide the basis for categorical constraints on the empirical will, then Lyotard has no

defence against the argument that such constraints also provide a basis for the deduction of the

practicality of reason; and further, he has no defence against the claim that practical reason is
autonomous (since it supplies both the imperative and the incentive to comply).

To counter the position that practical reason provides the basis for the categorical restraints,
it need only be noted that Lyotard does not attribute the categorical effect of a command of reason

to a principle of reason, rather he locates its categorical effect - as has already been seen on his
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analysis of Kant’s formulation of the categorical imperative - in the imperative, Act. Granted,

Lyotard’s reading of Kant’s formulation is very unusual, given that reason is the faculty of
principles and that Lyotard locates the categorical effect of reason not in principles but in reason’s

identification with prescriptive statements. As I have noted elsewhere, on Kant’s account, if a

categorical effect is to be attributed to practical reason it is because its principles are thought to
have an intrinsic validity. What then (for the purposes of developing a political thought authorised

by an Idea of the proliferation of language) is to be retained from this account of interest and the

faculties?

A point that needs to be looked at is Kant’s definition of an interest (i.e. ‘a principle which

contains the conditions under which alone its exercise is advanced’). This definition is particularly
appropriate for thinking of the disposition of both phrase regimen and in particular genres of

discourse in his philosophy of phrases; but it is not helpful for thinking about how a political

judgment is advanced; nor is it appropriate as a definition of respect, where respect is identified

with the fact of the differend. If anything, in Lyotard’s thought, the political moment involves a

conflict of principles and it is out of that very conflict that relations of alterity and hence obligation

and respect arise. On Lyotard’s account, respect and obligation, as I have already attempted to
argue, should not be grounded in principles, nor in the faculty of principles, but in the differend.

As for how the empirical ego is kept awake, or hears the command to act, or the command to

actualise the will(s) of the multiplicity of genres of discourse, this does not come at the prompting
of reason, but rather, as Lyotard notes in an earlier work on Kant, from the conflict amongst the

principles (LR. 328). This conflict is premised not so much on the freedom of reason, and the

conflict amongst its principles, but on that of the occurrence of a phrase.135

Importantly, since on the approach that I am wanting to develop, the fact of respect is not

attributable to the recognition of an unconditional practical principle, but to the practical

135 Another and more generous reading of Lyotard, which has occurred to me too late to think through its implications for
the arguments of this thesis, but perhaps is a crucial point which I have overlooked in my reading, is that what Lyotard is
doing is reinterpreting the faculty of reason. Rather than being the faculty of principles, it is, primarily, the faculty of the
imperative. By commanding Act, reason initiates its own internal strife amongst its principles. I prefer to reject this
idealistic basis for the imperative and rather ground the conflicts in language (i.e. between hermeneutical communities
arranged at the borders of the elements of language (phrases) that are equivocal to the core).
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presentation of a differend, it is not, first of all, normative criteria which guide a political judgment

or deliberative will. This is not to say that such a judgment does not notice criteria, or that it is not
constrained by such criteria,136 but merely to recall that norms only provide hypothetical

constraints. All that is being said, is that where politics is thought to be the multiplicity of genres,

then its motivational basis for judging amongst the norms will be respect for the obligation
instituted by a particular differend. Where such a differend is understood in Lyotard’s terms, the

obligation will always be to the one whose world has been silenced by the current mode of

phrasing. As Ingram points out,

justice demands only that one judge without prescribing,

that one listen for the silences that betoken différends
so as finally to let the suppressed voice find its proper
idiom.137

The political question, as I have noted, is what phrase is to come next? Where this question is
answered out of respect, the next phrase aimed at is one which gives a voice to those who currently

lack a voice.

As has been noted in Chapter Two, in Lyotard’s philosophy of phrases the concept of the

differend is linked to the concept of “victims”, “wrongs” and “silences”. Indeed from an analytical

perspective there is a reciprocity between all of these concepts, with the proviso that it is
understood that a differend implies only a certain type of silence (I shall return to this point later).

Having stated that, however, it is fair to say that insofar as differends are irreducible on Lyotard’s

model of language, so too are victims, wrongs and silences. One can say, if differends then
victims, and if victims then differends (D. §36).

On my understanding there are a number of ways to approach Lyotard’s concept of the

differend. But if one is attempting to think through the importance which this concept might have

for a deliberative democracy (and in turn the importance which the concept of victims, wrongs and

136 For an explanation of how a political judgment is hypothetically constrained and influenced by criteria see “Genres of
Discourse” in the Glossary.
137 Ingram, ibid., p. 138.
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silences have) the best place to start is to consider the relation which differends have to the

institutions of litigation. On Lyotard’s approach to the deliberative model of democracy, it is the

dialectical and rhetorical genres of discourse which are put in the governorship of phrases. These

genres are said to thereby allow the differend between phrases and genres of discourse to flow ‘in

the form of litigations’, right out into the (empty) milieu of political institutions’ (D. §200). Stated
in these terms, what is implied in the concept of litigation is to be given a broader application than

cases brought before a court. Rather, it is extendable to the entire deliberative process; in particular

it may be extended to public polemics whereby public opinion is formed and a political judgment
made.

Accepting the above argument for the extension of the concept of litigation to the entire
deliberative process, we are now in a better position to appreciate how some of Lyotard’s

arguments concerning the differend may be applied to a deliberative model of democracy, and it

may also be appreciated how it is possible to privilege the position of the victim in the context of
the deliberative process. In general, in the context of a litigation, a plaintiff becomes a victim

when no presentation is possible of the wrong he or she has suffered. But if the plaintiff has

suffered damages it is up to the plaintiff to prove the reality of such damages. If the other party to
the case can obtain the silence of witnesses, the deafness of a judge, and discredit the testimony of

the plaintiff then the damages which are complained of cannot be attested and it will be as if the

damages did not exist. Where a plaintiff is placed in this situation a differend is said to occur. On
this definition, a differend is said to occur in ‘the case where the plaintiff is divested of the means

to argue and becomes for that reason a victim’ (D. §12).

According to this approach, the differend is signalled by the plaintiff’s inability to prove

that he/she has suffered damages. Put more directly, one can say that the differend is signalled

when a plaintiff becomes a victim. A case of a differend between two parties occurs

when the “regulation” of the conflict that opposes them is

done in the idiom of one of the parties while the wrong
suffered by the other is not signalled in that idiom (D.
§12)
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It may be the case, therefore, that a plaintiff speaks up by lodging a complaint, or asserts a claim of
damages in a debate, but as a victim, this plaintiff is reduced to silence. To understand this point

concerning the analytical reciprocity between the concept of the differend and that of the victim,

wrongs and silence it is helpful to look at an example of a differend provided by Lyotard.

According to Lyotard, the deliberative model of democracy which is legitimated by the Idea

of Freedom is, above all other political models, responsible in the face of the occurrence of a
phrase. A deliberative politics takes to the limit the responsibility which each person has regarding

each of the genres of discourse necessary for a political decision. The deliberative model of

democracy, it will be recalled, is defined by Lyotard as a concatenation of phrase regimen and

genres of discourse whose highest and single finality and unity is provided by the answer given to

the canonical phrase of the prescriptive: What ought we to be?. As I have also already noted,

where a deliberative model is legitimated in terms of the Idea of freedom there is an irreducible
uncertainty concerning the identity of the “we”. This uncertainty is propounded by the various

meta-narratives or philosophies of history. All of these philosophies seek to provide an answer to

the question of what ought “we” to be, where “we” is understood to apply to the universal
community of humanity. Each meta-narrative provides the single finality which influences the

judgments and linkages of the deliberative process. But in each of these meta-narratives the “we”

is brought back into question as there is no unequivocal way of settling the dispute as to the
identity of the universal community. It is in this context that Capital and in particular the economic

genre that is identified with Capital is of particular significance.

Under the economic genre the heterogeneity of phrase regimens and genres is provided with

the higher stakes of a single finality. Heterogeneity finds a universal idiom in the economic genre,

with a universal criterion - success in having gained time - and a universal judge in the strongest
money - in other words ‘the most creditable one, the one most susceptible of giving and therefore

of receiving time’ (D. §251). However, according to Lyotard, although the economic genre puts on

the garb of an emancipatory philosophy of history and therefore has pretensions of being validated
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by the Idea of freedom, it does not bring the rule of its idiom back into question. Under the

economic genre you do not gain because you listen and welcome the obligation What ought we to
be?, rather you gain ‘because you’ve gained some time and are able to gain even more’ (D. §253).

Hence, the economic genre of capital does not require the concatenation which admits the
heterogeneity of genres of discourse. Quite the contrary, ‘it suppresses that heterogeneity’ (Ibid).

Where the economic genre of discourse provides the highest finality for the deliberative process, it

only tolerates this form of politics to the extent that the social bond is not yet entirely assimilated to
the economic phrase alone. This situation of the suppression of heterogeneity by the economic

genre of capital is perhaps first highlighted by the Marxist critique of capital. As noted by Lyotard,

according to the Marxist critique, capital was responsible for perpetrating

a class with radical chains, a class of bourgeois society

which is not a class of bourgeois society, a sphere which
has universal character by its universal suffering and
claims no particular right because no particular wrong
but wrong generally (ein Umrecht schlechthin )is
perpetrated against it. (D. §236)

In Lyotard’s idiom, the wrong in this case results from the fact the finality of the economic genre
makes a claim to universality and seizes or can seize upon all phrase regimen and their linkages.

Where the economic genre provides the single finality for the heterogeneity of phrase
regimen and genres, wrongs, victims, differends nevertheless occur at that unstable point and

instant in language wherein something which must be able to be put into phrases cannot yet be. As

with all differends this instant in language is marked by a silence and the feeling of pain which
accompanies the silence. In the case of the heterogeneity of phrases whose single finality is

supplied by the economic genre, the unstable instant identified with the presentation of a differend

is signalled by a silence and suffering of the “workers”. Through this feeling of pain which
accompanies the silence human beings are summoned by language to recognise that what remains

to be phrased exceeds what can currently be phrased under the rule of the economic genre.
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On Lyotard’s reading, Marx is one human being who did hear the summons of language

through the suffering and silence of the labourers. In hearing the summons he attempts to find an
idiom that will give expression to the wrong and provide a rule wherein the worker as plaintiff will

cease to be a victim. Under the economic genre the labourer has to speak of his/her work as though

it were the temporary cession of a commodity, the “service,” which he/she putatively owns (D.
§12). If the labourer fails to have recourse to this idiom, or seeks to provide a different concept of

labour, he/she fails to exist within the field of reference. If in the litigation the labourer appeals to

his/her essence (labour-power) as the force which creates surplus value, the third party (eg. judge,
public) operating under bourgeois social and economic law, is not competent to hear this. The

idiom does not provide the third party with the competence to judge the differend between labour-

power and capital. In this case a wrong and a victim are said be presented ‘by mere fact that the
wage earner’s suit is tried in a language whose regime excludes the very Idea that a labour force

capable of creating value could be associated with the name “wage earner”’ (LR. 354).

The significant point to grasp from this case, is that a third party cannot have cognition of

the plaintiff or the damages incurred in any other idiom than the one which he or she operates

under. Furthermore, where proof is required so as to establish the reality of the damages incurred,
the third party’s cognizance of a plaintiff and the damages will always be limited to what is

possible under a cognitive discourse. But what of the situation, as is the case with the “worker’s

claim”, where the proper name of the plaintiff and the damages incurred are also objects of an
Idea? The situation described here is not dissimilar to the conflict which takes place in the Kantian

Third Antinomy where human action is at once thought to be the object of an Idea for a speculative

and ethical discourse, and a phenomenon for a cognitive discourse. Insofar as the proper name of
the worker and the damages incurred are objects of an Idea, a third party which operates under a

cognitive discourse is unable to pass judgment on the validity of the claim. Another third party

operating under the rules of a non-cognitive discourse must be set up to pass judgment. Where,
however, the third party operating under a cognitive discourse does presume to pass judgment,

ruling that the plaintiff does not have a case and that the damages do not exist, in this situation, the

plaintiff may also be understood to be a victim and the damages a wrong.

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From this it may be concluded that the privilege which is accorded to victims on the basis
of the occurrence of a differend is attributable to the victim’s status as the object of an Idea. The

differend, as it occurs in all case where proof is required of the damages suffered, is between a

cognitive and noncognitive discourse (eg. speculative and ethical). In all situations where the
proper name of the plaintiff involved in a conflict is not only inscribed in a cognitive discourse but

also a noncognitive discourse, the proper name will be involved in a differend. Insofar as the

proper name of the plaintiff is the object of a cognition, the plaintiff’s complaint will be heard; but
insofar as the proper name is the object of a speculative discourse the plaintiff will be reduced to

silence. He/she will be a victim who has suffered a wrong.

This conclusion is of course highly problematical. Quite clearly, given the privilege which

the victim is given in Lyotard’s philosophy of phrases it is not sufficient that the status of “object of

an Idea” be accorded to anybody who fails to prove damages under a cognitive discourse. So how
is the status of victim to be attributed to a proper name? Or reciprocally, how is the status of object

of an Idea to be attributed to a proper name? Let us take the case of the labourer under the

economic genre and Marx’s response to the summons of language in the face of their silence and
suffering as a type of paradigm for identifying victims and objects of Ideas. In this example, the

object of an Idea is the proletariat and a worker’s proper name is also an object of an Idea to the

extent that it can be said to belong to the proletariat. The problem here, as is the case with all
objects of an Idea, is that an example cannot be provided of such an object. The worker, insofar as

he or she is said to belong to the proletariat, cannot be pointed to as an example of the proletariat.

In short, the worker in question cannot be known in as much as he/she belongs to the proletariat.
How then can it be known that the proper name of the worker is the object of an Idea? Or stated

otherwise, how is it possible to know whether a worker is a victim?

On Lyotard’s argument, it is feelings which provide the only manner in which it can be

known whether or not the proper name of an individual is also the object of an Idea. I will return to

expand on this function of feeling later in this chapter. Here I merely want to outline how feelings
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operate in the particular (and paradigm case of an antinomy or differend) case of the worker under

the economic genre. As with all differends and wrongs (as defined by Lyotard) this one is
‘expressed through the silence of feeling, through suffering’ (D. §236). But not just any silence, or

feeling accompanying silence, can provide an expression of differends, wrongs and victims. After

all what is being signalled here is not a particular silence but rather a limit to a mode of phrasing as
it exists under a single finality. It is a universal silence in that it registers a silence that applies to

all modes of phrasing under the economic genre.

Further, the feeling which accompanies this silence must also be a paradoxical feeling in

form. It must register pain, since the instant which is felt in language (i.e. the differend) is one in

which something which must be able to be put into phrases cannot yet be, and it must be a feeling
which marks this limit to the current mode of phrasing. But it must also register pleasure at the

prospects of inventing a new idiom that will cause the plaintiff to cease to be a victim. In short, the

feeling required is that of the sublime. So, if we ask how is it possible to know whether or not the
proper name of a plaintiff may also be identified with the object of an Idea or the status of victim,

the answer is by means of the feeling of the sublime manifested by spectators who are not

themselves involved in the struggle of the actors in question. In the case of the workers under the
economic genre the feeling identified is that of enthusiasm, the feeling of solidarity. (LR 355).

Given that in all cases the victim, as Lyotard defines it, is identified with the object of an
Idea it is now possible to understand more clearly how the victim can also be identified with the

addressor (the I am able to) of the prescriptive phrase. As noted, along with the universe of

obligation instantiated on the addressee, you ought to also co-presents a universe of freedom that is
instantiated on the addressor instance. Where the victim is identified with the I of the I am able,

dependence on the law of the victim (namely, the Do Something) is presented in a situation as a

feeling of obligation, while at the same time the victim’s independence from the regime of
cognition is presented as a mysterious presupposition. In this manner the victim is heard to say, ‘I

am not constrained by the linkages that regulate cognizable objects, especially not by empirical

interests and motives, I transcend them’ (D. Kant Notice 2: §2).

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II
A number of points may be noted concerning the interrelations that occur between the

genres of discourse and the type of psychology that is presupposed by such relations on the basis of

what Lyotard says concerning the Kantian faculties. The first is that an ontological claim is made
concerning the conflict or differend between genres of discourse. The next is that the feelings of

obligation and respect are identified as the fact of the differend. They are facts, insofar as they are

the feelings of the differend. Obligation is the differend felt as binding, and respect is the differend
felt as an incentive or motive. Both of these points have been noted previously. One further fact

(of the differend) may be noted, and this concerns the indirect or mediated relation between the

differend and the normative powers of synthesis generally (i.e. the imagination).138 In this case,
sublime feeling is also identified as the fact of the differend.

With these points in mind, I return to Lyotard’s reading of Kant’s philosophy of the
faculties to single out three different relations regulated in terms of the categorical effect of the law

of practical reason: (1) the inter-faculty relations in which it is the law of practical reason which

institutes the facultary interest and "will to be"; (2) the direct and immediate relation which
practical reason has to empirical thought in the faculty of desire; and (3) the indirect and mediated

relation which the faculty of practical reason has to empirical thought through the other faculties

(i.e. the power of synthesis in general).139 As I will argue, the question concerning the relation of

138 Lyotard argues that Kant identifies the imagination and not the understanding with ‘the principle or power of
synthesising in general, which he calls the “transcendental apperception,” a pure, original, and immutable
“consciousness”’ (LFE 33). On this reading, it is clear that a differend is not, by analogy, first of all gathered together in
a unit under a concept or principle. Where the power of unifying is attributed to the imagination, diversity is not gathered
together in such a way as to make conscious or knowable. Where the power of synthesising in general is identified with
the imagination ‘there is no longer any occasion for an “I,” what is at stake in ‘the process of synthesising is to make
possible not a self-conscious knowledge of data but a feeling of the innumerable forms in which the data can be
synthesised’ (ibid). In the Critique of Judgment the imagination is called the faculty of presentation (Darstellung) and
representation (Vorstellung). According to Lyotard it can be argued that the work of presentation no longer requires an ‘I
think’, all that is required, for the purpose of guiding the imagination through ‘the flood of possible forms is an “It is felt
that . . . “. Where there is a differend the imagination fails to provide a form under which a conflict can be grasped. This
failure to synthesise is itself the basis for the feeling of the sublime. For a recent detailed discussion on the distinction
which is to be made between Kantian Darstellung and Vorstellung see: Martha B. Helfer, The Retreat of Representation:
The Concept of Darstellung in German Critical Discourse, (New York, SUNY Press) 1996.
139 Lyotard takes the view that Kant identifies the powers of synthesis in general not with the understanding but with the
imagination. He argues that Kant alters his position concerning this issue in the Third Critique.
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the aesthetic of the beautiful and the sublime are focused on the proper aesthetic feeling which is to

accompany a politics identified as the multiplicity of genres.

The actualisation of a politics identified with the multiplicity of genres does not happen

without the differend first creating in the faculty of desire an incentive which is capable of
overcoming the incentives of the inclinations, self-love, and self-conceit. As Lyotard points out,

The interest of practical reason can only be understood

if practical reason creates in the ego an "interest"
relieved of its choice object, the ego itself (LS 175).

This change of "interest" involves more than a change of the object of interest, it requires the

transformation of the interest itself. According to Lyotard, the interest is not simply an interest of

the ego reorientated to the law; but rather it is the interest of law itself -'For what rational law
requires is its interest and not the interest of the ego' (ibid). Or, if we are to be consistent and do

not attribute the law to rationality, what can be said here is that the interest of respect is not simply

an interest of the ego reorientated to the law (here “interest” is understood as a principle which
contains the conditions under which alone a genre’s exercise is advanced); but rather, that it is the

interest of the differend. As I have argued, the differend is made practically present according to

the metaprinciple of alterity, and the one who has respect, is also the one who has been moved out
of their own world and been exposed to another (by a ‘breaking in’ - in the Levinasian sense). The

interest of respect has its “ground” therefore, in the world of another - which the ego does not

comprehend - yet is motivated to actualise.

Of fundamental importance here is the argument or perspective already established in the

second Critique: namely, that the law is the determining ground of both the ethical objects and
interest in those objects. The empirical will, by itself, cannot choose the good nor have an interest

in the good. Primarily, this is so since the good is identified with the will and the maxims of a will

having its ground in the Unconditioned. Unless an empirical will is grasped by the law (which is
simply the law of an absolute spontaneity), it has no access to the good. As Kant points out, this

way of approaching morality is radically different to the Ancients who devoted 'their ethical
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investigation entirely to the definition of the concept of the highest good and thus posited an object

which they intended subsequently to make the determining ground of the will in moral law' (CPrR
65). Instead, Kant inverts the order of determination, making the law and its categorical effect the

basis of the good. The ought does not have an object which is its determining ground, but rather it

provides the transcendental condition for the determination of the good or for the determination of
actions and norms. Where the ought is identified with the differend, and not an unconditional

practical law, the transcendental condition for the determination of the good is the irreducible

conflict of principles. The selection of a norm can only be made by making passages between the
various parties in conflict - not with the aim of establishing an objective consensus, but rather a

differential. Further, only obligation and respect are the immediate unequivocal signs of the

spontaneity of a phrase or differend; the judgment concerning the actions and maxims which are
based on such obligations are subject, respectively, to the equivocation outlined in the Third

antinomy, and to the analogical presentation of the universal principle as a type.

Having said that, it should be noted that the interest of the law is also, according to Lyotard,

a ‘paradoxical interest’ (176). This is to say, that in terms of the world of the addressor of the

prescription the law induces an interest, but in terms of the current normative world of the
addressee (or from the empirical perspective) it induces a disinterest. The faculty of desire must

produce in itself (without calculation or pathos) a disinterested incentive. No advantage is given to

a will which listens to the law. Such a will cannot hope that an interest in the law will bring with it
happiness or a form of self-worth. The law simply commands its actualisation without offering the

ego any reward. The actualisation is carried out by a will on the basis of a respect for the one who

commands. The condition upon which the law is to be actualised is that there be both a disinterest
for the objects of inclination and an interest for the law (LS 176). Or more politically, the

condition upon which the law is to be actualised is that there be a disinterest in the current

normative world (the current politics identified with a single genre of discourse) and an interest in
the actualisation of the world of the victim (as yet unknown).
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Such is the case for the practical presentation of the differend. The actualisation of a world

will always have to be judged according to the equivocation set out in Kant’s Third antinomy: that
is, the same actions can be judged to be consistent with a past and therefore not representing a

break with the current political system. Niklas Luhmann’s ‘system theory’ would be sufficient to

account for any deviant action, as would Habermas’ consensus theory. Both systems embrace
novelty or difference; in fact such difference is judged to be a healthy sign of the democratic system

at work.140 Having said that, the fact that a sufficient explanation has been offered under one

model should not provide a bar to another explanation being offered under a different model. On
the basis of a “two aspects” approach to transcendental idealism, it can be argued that the same

actions which function as an example in a scientific debate, may also function as a sign in a

speculative debate, and in the context of an ethical judgment as a sign of the moral worth of the
action (i.e. a sign of an absolute spontaneity).

As I have pointed out, on Lyotard’s approach the pure ethical community consists only of
the I/You of the prescriptive phrase, the asymmetrical relation of parties which cannot be brought

together under a existing principle of reason: an ‘[O]obligation cannot engender a universal history,

nor even a particular community’ (D § 235). If there is a practical synthesis uniting the parties it is
not provided by the maxims of an empirical ego, but by the feeling of obligation and respect which

registers the failure of principles to provide a synthesis. The pure ethos consists only in the feeling

of obligation, and it is only the one who feels obliged who “knows” that he/she is obliged. The
question is then, can the political activity which has its basis of legitimation in the differend and

obligation engender a universal history by other means? If not by practical means, such as

obligation and respect, and if not unequivocally by action, then how? It is clear that insofar as the
reflective conditions of politics are identified with the multiplicity of genres, and that such

reflection functions to unify the genres by establishing differentials, such an activity has a

“universal” character. As I have argued, this politics is identified with a form of judgment which
crosses borders (not with a view to imposing its own legislation) between phrase regimen and

140 Jürgen Habermas, Legitimation Crisis, trans,. Thomas McCarthy (London, Heinmann, 1979) p.106-7; Nicholas
Luhmann, “Some problems with Reflexive law”, In A. Febbrajo and G. Teubner, eds. State, Law, Economy as
Autopoietic Systems: Regulation and Autonomy in a New Perspective, (Milan) 1992.
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genres. It stands to reason therefore, that there should be some type of sign of its activity, some

sign of its actualisation (even if the sign is to be identified as the actualisation). Furthermore,
insofar as this political activity is that which legitimates, or authorises itself, under the principle of

a finality of a contra-finality (or the principle of a teleology of language for freedom) there should

be some sign, some way of validating the claim that progress is being made toward this end. It is in
connection with these themes that we may look at Lyotard’s examination of the beautiful and the

sublime.

3.3 Sublime Feelings and Political Judgment

The issue to be addressed here concerns the identification of the type of judgment that is required

so as to actualise the politics demanded by the differend and authorised by an Idea of the

proliferation of language. It should be clear by now that the type of activities connected with
determinate judgments cannot be understood to actualise this politics. Such judgments result in the

imposition of a particular set of norms over the heterogeneity of language. It follows therefore, that

the type of activity required by this political judgment is reflective. The question is, however, what
type of reflective judgment best meets the demand of the differend to reconcile the parties without

imposing a rule? What type of reflective activity best respects the heterogeneity of phrase regimen

and genres of discourse? For the purposes of understanding how the prescriptive and normative
elements of the typified moral law are to be reconciled, this problem may be thought to be

analogous to that which is at the centre of Kant’s Third Critique: namely, how are nature and

freedom to be unified in a philosophical system? What type of system would this be? Is not the
symbol of reflective judgment (i.e. the “field” and the “milieu” CJ. 13) the appropriate symbol for

the presentation of such a system? And is not the question of a system of critical philosophy

analogous to the question of a system of political philosophy as it is faced with the differend
between the prescriptive and normative phrase?
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Where the problem of the Third Critique is thought in terms of the issues set up by the

typified moral law (i.e. the political problem par excellence - the relation between the prescriptive
and the normative phrase) it may be viewed as providing an answer to how the I and the You of the

prescriptive phrase are to be reconciled. How is a synthesis of the parties to be provided? Can a

world be provided in which the I and the You are reconciled? Would the political judgment
constituting such a world be analogous to the judgment of taste or the sublime? What type of

political judgment is to occupy the sovereign addressor instance of the normative phrase? If it is

not legislative, what is it? What type of political judgment will do justice to the heterogeneity of
the I and the You of the differend (made present in the prescriptive phrase)? For Kant these

questions are raised in terms of the issue of the rule of law (which for him means the rule of a

universal law that might be read as one having the capacity to unite the I and the You of the
differend); the reconciliation of the I and the You and the relation which this event has to the

normative phrase, is dealt with in Kant’s terms as a question of Nature. Can this rule of law be

actualised by nature and in nature? Can the ideal of a Universal we be actualised by nature and in
nature? And if so, what activity of nature might actualise this rule?

The function which the beautiful has in the third Critique is crucial to the overall project of
providing a philosophical system, and thus, a unity of nature and freedom. The beautiful is a

pleasure which simply happens, it occurs on the occasion of certain objects in nature. As Lyotard

points out, the German word for pleasure, "Gefallen”, is indicative of how this event occurs. It is
unexpected. Naturally, the human mind does not have an interest in such pleasure: when pleasure

happens, it happens as though it fell from the sky (LS 161). Importantly, the a priori condition of

pleasure is disinterestedness. As a phrase event, pleasure has (the form of) an object (usually
natural) as its addressor and as its addressee, the faculty of feeling. Like the prescriptive phrase,

this event happens in such a manner that the feeling which it institutes in an addressee is at once its

subjective state and its legitimation. The feeling of pleasure, like respect, is also an a priori
synthesis, only here, instead of registering the relation of reason and the faculty of desire (i.e. the

conflict of principles and desire), it registers the necessary relation of the understanding and the

imagination.
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In Lyotard’s terms this can be transcribed in the following way. On the basis of the feeling
of the beautiful (i.e. pleasure), the addressee deduces a power or faculty of reflective judgment

which is thought to belong to the addressor (i.e. Nature). Furthermore, the addressee deduces, on

the basis of the actualisation of the aesthetic event which has befallen her/him, that Nature has the
capacity to actualise this disinterested reflective activity. This deduction has great significance for

the overall project of uniting the faculties. In short, the actualisation of a disinterested activity

shows itself to be favourable to the demand to actualise the facultary will in general and the faculty
of freedom in particular (LS 171-2).

It is on the basis of this type of conclusion that the critical judge of the third Critique feels
justified in pairing what at first appeared to be two heterogeneous delights: namely, favour and

respect. The first type of delight being the only free delight (CJ 49), and the latter is an interested

delight instituted by the law and imposed upon a faculty of desire (ibid). In the disinterested
activity of favour, deduced on the basis of the feeling of pleasure, the critical judge finds (so s/he

thinks) an activity which satisfies the demands of the law concerning the objects of the world:

namely, that an interest in the objects of the world should not form the basis of the maxims of a
will. This much the aesthetic phrase of the beautiful satisfies. It is an a priori condition of its

formation that the object of the phrase (i.e. Nature - the addressor and referent) not exert a charm

upon the mind.

Thus, on the basis of the aesthetic phrase of the beautiful a number of important critical

conclusion are drawn. The object of pleasure (i.e. the beautiful) is itself thought to be an analogical
or symbolic presentation of the Good (CJ 223). The activity of the taste of reflection, which

presumes the delight of favour (CJ 49), is thought to be a (nonconceptual) activity that can realise

the rule of law. Kant's essay, “Idea for a Universal History with a Cosmopolitan Purpose” is the
story of this realisation (KPW 41). The activity deduced on the basis of the feeling of pleasure, is

one that is to be regulated by an Idea of Nature. The actualisation of the rule of law in a

Republican Cosmopolitanism is said to form the "highest purpose" of Nature (KPW 51). The
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question which Lyotard asks concerning these conclusions, is whether the initial pairing of the

aesthetic phrase of favour and the ethical phrase of respect is legitimate (i.e. does such a pairing
satisfy a critical judgment?); and answers that the aesthetic phrase of the sublime, at one and the

same time, breaks the pairing and reveals its lack of a critical basis (LS 172). This conclusion, of

course, cannot be reached without also impacting on the Universalism of a Cosmopolitan politics,
Liberalism, Republicanism, or any of the other politics authorised by emancipatory meta-narratives.

Just what that impact might be remains to be seen.

Apart from Lyotard's argument concerning the illegitimate pairing of the two delights, there

are also Kant's own repeated reservations concerning the attempt to base a normative politics upon

the reflection of taste. As pointed out, the a priori conditions governing the formation of this
reflective activity exclude the possibility of it being linked to the faculty of desire and thus to a

political will. In terms of the definitions of delight offered by Kant, the free liking called “favour”

does not have any interest in the real existence of the object. The political implications of this are
clearly shown by some of the examples which Kant gives of the judgment of taste in practice.

If anyone asks me whether I consider that the palace I

see before me is beautiful, I may, perhaps, reply that I
do not care for things of that sort that are merely made
to be gaped at. Or I may reply in the same strain as
that Iroquois sachem who said that nothing in Paris
pleased him better than the eating-houses. I may even go
a step further and inveigh with the vigour of a Rousseau
against the vanity of the great who spend the sweat of
the people on such superfluous things. . . . . All
this may be admitted and approved; only it is not the
point now at issue. All one wants to know is whether the
mere representation of the object is to my liking, no
matter how indifferent I may be to the real existence of
the object of this representation (CJ 43).

As I suggested, the reflective nature of judgment rules out the possibility of providing universal

criteria by which one could institute a cosmopolitan political project. Nor, would it seem, on
Kant's own arguments, that it is legitimate to authorise, as does Schiller, the thought that the

aesthetic education of a people will lead to the actualisation of the Good.141 As Lyotard shows, an
141 Friedrich Schiller, On the Aesthetic Education of Man, trans. Elizabeth M. Wilkinson & L.A. Willoughby (Oxford,
Oxford U.P., 1982).
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analogical passage from the beautiful to good may be legitimate, but this does not authorise the

thought that if a person feels the beautiful then s/he will do the good. On a critical analysis of the
differential separating these two phrase regimen, one is only authorised to think, "as the beautiful,

so the good", not if the beautiful, then the good" (LS 165).

To return now to the critical judgment concerning the pairing of the two delights: favour

and respect. The pairing itself, as Lyotard shows, rests upon a logical and a teleological argument

(LS166). What is at issue here is the correct aesthetic assessment of respect (moral feeling). In the
first case (logical), it is argued that the possibility of the ethical and aesthetical judgments rest upon

similar transcendental conditions; in the second (teleological), it is argued that the disinterest of

favour is compatible with the interested disinterestedness that is respect: namely, it is argued that
the disinterest of favour can actualise law. Both of these arguments supporting the pairing are

found to lack a critical basis. As we have noted, if the paring could be judged to be critically valid,

then it would also be possible to argue (teleologically) that the rule of law can be actualised in
nature.

As Lyotard argues, the pairing of the two delights, favour and respect, rest upon a 'gesture
of the mind' (LS 182). This gesture, he says, is surreptitious and results in the objectification of the

Idea of absolute spontaneity; the gesture links that which speaks through the beautiful object, to

that which speaks in moral consciousness. According to Lyotard, this is the reflective movement
of a teleological judgment. Nature speaks through the beautiful object of a 'quasi-finality, a quasi-

intentionality, and a quasi-regularity’ (ibid). Such a finality cannot be made the object of a

cognitive phrase, so it is reflectively judged to belong to that which speaks in moral consciousness:
in this manner the Idea of absolute spontaneity is seen to be objectified (eg. in the beautiful object).

Is this pairing of respect and favour by the 'gesture of mind' legitimate?

Strangely, it is Kant who shows in the "Analytic of the Sublime" that the pairing of respect

and favour lacks a sound critical basis. There, he quite clearly argues that if there is to be an
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aesthetic judgment made of the good, then it is not to be carried out by the judgment of reflective

taste (pleasure), but rather, by that of the sublime:

the intellectual and intrinsically final (moral) good,

estimated aesthetically, instead of being represented as
beautiful, must rather be represented as sublime, with
the result that it arouses more a feeling of respect
(which disdains charm) than of love or of the heart being
drawn towards it - for human nature does not of its own
proper motion accord with the good, but only by virtue of
the dominion which reason exercises over sensibility (CJ
123-4).

What seems odd about this claim is that respect (which is called a "feeling" and provides a
judgment concerning the good) should also require an aesthetic assessment. Is it not possible to

say that respect is also an aesthetic judgment, that it provides its reflective estimation of itself?

And if so, is it not possible that respect can orientate a political judgment whose reflective
conditions are analogous to critical judgment? It would at first seem plausible to argue this case

on some of the suggestions put forward by both Kant and Lyotard. However, such is not the case

since “respect”, properly understood in Kantian terms, is not a “feeling”.

The key to this problem, as I suggested earlier, is in the distinction between a moral feeling

and an aesthetic feeling. Strictly speaking, as Kant argues in the second Critique, a moral feeling

is a feeling which is concerned only with the practical,

and with the representation of a law simply as to its form
and not on account of any object of the law; thus, it
cannot be reckoned either as enjoyment or as pain, yet it
produces an interest in obedience to the law, and this we
call moral interest. And the capacity of taking such an
interest in the law (or having respect for the moral law
itself) is really a moral feeling (CPrR 80)

From this we see that moral feeling is simply to be understood as the capacity to take an interest in

the law. The analytical argument requires that there be such a feeling and that this feeling not be

mediated by sensation. Simply put, respect is a pure 'non sensuous interest' (ibid) of and in the law.
If it were sensuous, then it would be pathological, thus reducing its a priori connection to the law.
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If we think of respect as a feeling, then we must as suggested by the remark quoted above,

think of it in practical terms as the capacity to take an interest in the law (and on Kant’s definition
of respect as an interested Delight [CJ 49]). According to Lyotard, the important point to grasp

concerning this interest is that it is produced immediately in the faculty of desire by the law (LAS

126). On Lyotard’s interpretation, ‘[R]espect is the sensation of thought that is obliged, thought
that is purely and immediately obligated by practical reason’ (ibid). Thus, the altogether ‘singular

temper’ of respect has no reference to any objects that could affect thought or make thought

dependent upon them by the feeling they provide for it’ (ibid). Respect does not ‘witness’ to
thoughts liability, it is the incentive to act. Respect is a “blank” feeling, and it is only as an

‘extrinsic or secondary effect’ that a feeling of pain and pleasure (a state of mind which seems to

come from outside the will - that “feels” respect) accompanies this blank feeling (ibid).

Transcribed into the language of the Differend, pain comes when pure obligation, or the law

of the differend, resolutely opposes the attachment of the will to its favourite object, the ego. The
pain comes as the secondary effect of the faculty of desire’s attraction to or preoccupation with an

object. First, however, where the thought that desires is simply orientated practically by the

“feeling” of the categorical constraints of law, ‘it does not feel any “passion”. It does not suffer in
the least.’ (ibid). The “soul stirring delight” which thought feels upon the practical presentation of

the law, is not the feeling of respect, or obligation, but that of the sublime. This point is of

fundamental importance for the purposes of understanding how a political judgment might
orientate itself in the midst of a differend and in connection with an obligation.142
142 In what follows, I agree with David Ingram, with only a minor qualification, that ‘reflective judgment encompasses
and even incorporates the differential structure of language encapsulated in the notion of the différend’ (Ingram ibid., p.
141). I do not agree, however, that Lyotard dissolves judgment into a ‘play of phrases’ (ibid). As Ingram would have us
think of judgment, I believe that judgment is, for Lyotard, determined precategorically, and that where reason is
distinguished ‘from the sort of cognitive truths expressed in propositional or categorical judgments, I believe that Lyotard
would argue that judgment is conditioned by reason (primarily a conflict of reason). In contrast to Ingram’s approach to
judgment, I think Lyotard would argue that judgment does not disclose Being or Truth, but rather beings and obligation.
As I have noted concerning Lyotard’s definition of politics, ‘politics consists in the fact that language is not a language,
but phrases, or Being is not Being, but There is’s (D §190). On Lyotard’s approach to genres of discourse, as that which
provides the stakes and the ends for a political judgment, it is possible to identify the faculty of genres with that of reason
(both provide ends and stakes); further, since judgment, for Lyotard, does not take place in a vacuum [other phrases
and a range of modes of linkage always precede the ‘current’ phrase (D § 184)] it is possible to say, as does Ingram,
that judgment ‘is determined precategorically by the web of meanings comprising an ontological preunderstanding’
(Ingram, ibid., 141). What judgment discloses on Lyotard’s account, however, is not a form of life, or a mode of being,
but a formlessness and beings in conflict. Further, what is disclosed is not Truth, but the practical mode by which this
conflict is presented; namely, obligation and respect.
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If it is feelings which are to provide an orientation for a political judgment, then properly
speaking it cannot be either obligation or respect which provides this orientation (respect and

obligation provide an orientation for a will); rather, it is an ‘extrinsic or secondary effect’, that

feeling of pain and pleasure that accompanies this blank feeling “respect”, which provides such an
orientation. In terms of Kant’s moral psychology, as I have argued, obligation and respect may be

regarded as the “binding” and “motivational” element of the law. The feeling of the sublime, on

the other hand, would provide the orientation for a political judgment concerning the determination
of the differend. In short, the sublime provides an unequivocal sign of the heterogeneity involved

in the differend. To the extent that I identify the law and the categorical constraints which are

“felt” by a deliberative will with the heterogeneity of a differend, the sublime is itself the sign and
the event of this differend. Further, to the extent that the faculty of pleasure and pain has a

tautegorical and heuristic capacity (LS. 8-32), and that this capacity functions as a way of

orientating judgment, it can be said that an instance of heterogeneity is able to guide judgment by
means of this feeling.

To explain the relation of the sublime to the differend and how this orientates a model of a
deliberative democracy legitimated in terms of the Idea of freedom, I refer back to an example

given earlier of the labourer’s position under the economic genre of discourse. As I noted there,

the economic genre is such that it prescribes a single finality for the heterogeneity of phrases and
genres of discourse. It does not, however, provide a mode of linking phrases that is legitimated in

terms of the Idea of freedom. As Lyotard puts it, ‘capitalism does not constitute a universal

history, it is trying to constitute a world market’ (D. §255). Unlike deliberative democracies which
are legitimated in terms of the Idea of freedom, the economic genre provides for a politics (a mode

of linking) where the multiplicity of genres and their respective ends cannot be expressed.

In the context of a politics identified with the economic genre the differend occurs as the

unstable state and instant in language wherein something must be expressed but cannot find its

expression. The case of the suffering and silent labourers provides just such an instant. This state
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may be described in practical terms as a type of pressure which is brought to bear on empirical

thought; namely, although the economic genre aims at subsuming all others under its rule, the
responsibility before the multiplicity of genres and phrases is nevertheless registered on a practical

level; as has been argued here, it is registered in terms of the “blank” feelings of obligation and

respect. However, such “feelings” do not provide an evaluation of the instance of silence in
language; they merely obligate the addressee to Do Something!. Rather, it is feeling of the sublime

which provides the evaluation and it does so by registering intense pain and pleasure.

Pain accompanies or marks a failure on the part of language to put into phrases something

which demands to be phrased. Where the plaintiff labourer is unable to find an expression for the

damages which he/she has suffered, let alone provide proof of those damages, just such an instant
in language is said to arise. Since the silence and wrong suffered are thought to occur because a

particular mode of phrasing has reached its limits, the feeling which is experienced at this point is

treated as analogous, if not identical, to that analysed by Kant when imagination is summoned to
provide a dynamical synthesis of an object of an Idea (LAS. 131-146). Pleasure, on the hand,

occurs, because the imagination has neverthless been called upon to finalise itself under the rule of

reason.

On Lyotard’s argument, the feeling of the sublime (felt by an international audience) is

most commonly treated as a type of starting point for signalling the occurrence of a differend and
the event that a non-cognitive phrase regimen is attached to a proper name. In this regard, the

development of the theme of the sublime is central to Lyotard’s way of thinking of the move from

Modernity to Postmodernity. On the level of an aesthetic judgment the shift from Modernity to
Postmodernity may be described as the shift from a sublime feeling which places the accent on

pleasure (i.e. enthusiasm) to one which places the accent on pain (a vigorous sorrow) (D. §256).

Thus one way to consider the distinction between Modernity and Postmodernity is in terms of the
different ways in which the differend presents itself in the feeling of the sublime. What the

sublime signals in both cases is that the current mode of phrasing under a deliberative political

model has reached a limit. As has been noted, the single finality of the concatenation of phrase
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regimen and genres, identified with the deliberative model, is supplied by various philosophies of

history or meta-narratives. The differend occurs as that instant which signals the limit of the
deliberative process under the guidance of any one single finality. In other words, the differend,

presented through the feeling of the sublime, functions as a critical check to the pretensions of a

political universalism which may attach to any one mode of linkage. Furthermore, it functions to
support a deliberative model where it is the multiplicity of genres and their respective ends that

demand actualisation.

In Modernity, Lyotard argues, the differend was presented by the feeling of the sublime

identified as “enthusiasm” (D. §255). In this case the pain associated with the recognition that a

mode of phrasing or political model has reached a limit is outweighed by the pleasure associated
with the prospects of instituting a mode of phrasing that has universal application. In this regard,

the various philosophies of history which provide an answer to the question of What ought we to

be? were regarded as sufficient to generate a confidence that a universal mode of linkage could be
actualised in historico-political projects (and thus in more than mere feelings). To this effect,

Lyotard says, the “philosophies of history” which inspired the nineteenth and twentieth centuries

can be identified as making a claim which assures ‘passages over the abyss of heterogeneity or of
the event’ (D. §257).

The occurrence, however, of repeated differends attached to historico-political names has

been sufficient to put the claim made by philosophies of history into doubt. In fact, the repeated

occurrence of differends has been forceful enough, Lyotard argues, to shift the mode by which

differends present themselves in the feeling of the sublime. In the contemporary historical period,
the occurrence of differends, identified with the proper names of historico-political events, function

as counter-examples to the universalistic claims of the various philosophies of history. The names

which Lyotard offers are: Auschwitz, Berlin 1953, Budapest 1956, Czechoslovakia 1968, Poland
1980, Paris May 1968, etc. (Ibid). Auschwitz is said to show up the limits of the speculative

doctrine which claims: ‘Everything real is rational, everything rational is real’. The events

indicated by the names “Berlin”. . . . “Poland” make felt the limits of the doctrine of historical
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materialism which claims: Everything proletarian is communist, everything communist is

proletarian. The event indicated by the name “Paris May 1968” highlights the limits of the doctrine
of parliamentary liberalism which claims: Everything democratic is by and for the people,

everything by and for the people is democratic (Ibid). In each of these cases the deliberative

democratic process under the guidance of a single finality may be thought to reach a limit and
therefore fail in its capacity to provide a positive presentation of the universal community of man.

This is not to say that Lyotard holds to the view an Idea of a universal humanity should not
be maintained, or that that no presentation of such a community is possible. Quite the opposite.

The occurrence of differends and the feeling which accompanies them does not bear witness to the

“fact” that Ideas are dying out in postmodernity. The feeling of a vigorous sorrow instead bears
witness to the fact that the object of Ideas cannot have a positive presentation, and further, such a

feeling in itself is a negative sign of the gap between Ideas and observable historico-political reality

(D. §259). Perhaps more importantly, the feeling of the sublime is itself the sign of a universal
history (and a progress in that history) where this history is understood to be linked to an idea of

humanity which is not the master of “its” ends; a humanity which is sensitive to, and capable as

much as possible of pursuing, the heterogeneous ends implied in the various known and unknown
genres of discourse (D. §253).

In Postmodernity, therefore, if the sublime may be said to provide a sign of a differend it is

because a noncognitive phrase regimen, or Idea, has come to attach itself to a proper name. As

noted in the Marxist example of the labourer under the economic genre of discourse it is the

feelings of an international third party or audience, the feeling of the sublime marked in a sense of
solidarity with the struggle of the workers, which provides the reflexive starting point for the

elaboration of the Idea to which the proper names of the workers belong. It is important to note

that is neither the feelings, nor the actions of agents involved in the struggle, which provide the
sign of an Idea. The third party, which may be cast in the position of a ‘public’ on their way to

forming an opinion and passing a judgment, is the proper locus for the presentation of the differend

in the sublime. Furthermore, as has already been noted, it is important not to make the critical error
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of identifying the real working class, or its bureaucratic representative, with the object of the Idea.

It is not possible to put in place any procedures defined by a protocol unanimously approved and
renewable on demand that could establish in general the reality of an object of an Idea (D. §5). In

terms of Kant’s transcendental idealism, the identification of the real working class (or an

international association of workers) with the object of an Idea called the proletariat, involves a
transcendental illusion.

The only proof that is given critical legitimacy as the presentation of an Idea, is the
inexplicable feeling of the sublime felt by an international public. In Modernity the public felt

enthusiasm at the prospect of the invention of a universal idiom that would give expression to all

wrongs and provide a voice for all victims. In Postmodernity, the public feels sorrow in the face of
the realisation of the gap which exists between the Ideal of a universal community of man and the

historico-political reality. Nevertheless, the disruptive feeling of the sublime remains as evidence

of the development of culture thought in terms of a sensitivity to Ideas. Ideas may not have a
realisation but they nevertheless exert a force in the form of an irreducible demand requiring the

bringing back into question of current static models of politics.

In The Inhuman, which appears two years after The Differend, it is the child or the infant

which (in the face of the redundancy of a politics legitimated and identified with philosophies of

history) comes to occupy the only point of resistance avaliable against a politics identified with the
economic genre. In answer to the question What ought we to be?, Lyotard suggests that no single

finality can be provided, and that it is the child, who exists in an initial and miserable of state of

indeterminacy, that is eminently human and calls upon the adult community to become more
human.

Shorn of speech, incapable of standing upright,

hesitating over objects of interest, not able to
calculate its advantages, not sensitive to common reason,
the child is eminently the human because its distress
heralds and promises things possible. (I. 4)
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This privilege granted to the child may be understood if we recall that the Idea of humanity that

Lyotard wishes to promote is one which is marked by an indeterminacy concerning ends; an Idea
which promotes the open endedness of a promise of things possible. Furthermore, this privilege

may be understood if it is considered that the philosophies of history were merely aiming to

provide an answer to the question of “What ought the child to be?”. Accepting this, the
philosophies of history may be redundant in Postmodernity but the question, and the obligation

heard in the question, remains. Where this Idea of the child is built into and regulates the

deliberative process of a democracy it may be said that it functions so as make that process open to,
and welcoming of, the obligation heard in the What ought we to be?. Furthermore, the Idea of the

child opens the process of deliberation to this interrogative prescriptive without providing any

single answer; for if the Idea of the child does provide a finality, it is the contra-finality identified
with the conflict of ends.

What then is left of the objectification of the Idea of freedom in Nature which is judged
teleologically? As I have suggested above, the role of nature in the sublime is drastically

circumscribed. This point is reinforced when it is recalled that there is no object of the sublime:

there is only sublime feeling (LS 182). In the sublime it is impossible for there to be a gesture of
the mind from an object to a moral consciousness - the object is missing (i.e. it is a formless

object).143 The sublime gives no indication of there being anything final in Nature - the only

finality indicated is that which is identified with the causality of the Idea of absolute spontaneity.
In the sublime, if there is a Nature, it is put in the employment of this other finality. Kant suggests

that since the sublime 'gives no indication of there being anything final in nature', the only use that

can be found for nature is in 'the possible employment of our intuitions' being put to the service of
'inducing a feeling in our own selves of a finality quite independent of nature' (CJ 93).

The question in the sublime, therefore, concerning the objectification of the Idea of absolute
spontaneity, relates to the status of these possible "intuitions". Is there a gesture of the mind from

an object to that which speaks in moral consciousness, as there is with a teleological judgment?
143 On the argument that I have been developing, the object in question is the object of an Idea identified as victim (eg.
the child).
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Or, is the gesture reversed? Are these uses, which are made of Nature, sufficient to grant Nature a

subjective finality? Or, is such finality conditioned by, or conditional upon, the disorganisation of
(and lack of finality in) “nature”? As I have noted, the feeling of the sublime bears witness to the

liability that an empirical ego has to the law. The fact of the law (respect) is felt in the soul stirring

delight which is the sublime, and in this manner there is a register (in the faculty of pain and
pleasure) of categorical constraints. In the terms which I have been developing, one could say the

fact of the differend is felt by the deliberative agent (in his/her capacity to judge) according to the

aesthetic mode of the sublime. Obligation is the fact of the differend felt as binding, respect is the
fact of the differend felt as motivational and the sublime is these facts or “feelings” felt as feeling.

The sublime provides an instantaneous and spontaneous judgment of the practical presentation of

heterogeneity; it is the spontaneous aesthetic evaluation that takes place on the occurrence of a
differend; and on such an occurrence, a political judgment is put on notice of the irreducibility of a

conflict. As I have noted, the proper engagement for a political judgment in such cases is not to

reduce the difference in terms of objective rules, but to establish differentials by means of
principles of finality. On this argument, even if obligation is divorced from the practical laws of

reason and located in the differend, it is still fair to conclude that the sublime lacks any object of

nature. And it is also fair to say that the only unequivocal “event” (which on Kant’s argument does
not fall under the jurisdiction of cognition) which can have the status of a sign of the differend, is

the sublime feeling. The sublime is both the aesthetic estimation of the differend and the sign of an

Idea.144

In the sublime (in contrast to the beautiful), critical thought, and thus a political thought, is

not given any indication of there being anything final in nature. Instead, the only indication given
concerning nature is of the possible and contingent employment of intuitions, for the inducement of

a feeling for a finality not grounded in the world of the empirical ego. For Kant, such intuitions

can be employed for the purposes of inducing a feeling for the finality of reason and the law of
reason. On the pragmatic approach to obligation, one can claim that such intuitions may be

144 On the basis of the arguments developed in Chapter Two, the sublime is not to be regarded as the sign of the Idea of
freedom thought as a First Cause or Prime Mover, but rather as sign of an ontological freedom - the freedom of the
phrase (its instability for the purpose of linkage). The sublime is both the sign of this freedom and bears witness to this
freedom.
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employed for inducing a feeling for a finality requested by victims. Or, since such intuitions can be

identified with the conflict attending the state of the victim, it is fair to say that a conflict which
lacks a synthesis under existing schemas, principles or concepts provides the occasion for a sign of

a freedom not found in the world of the normative agent. Such differends, and the “feelings”

accompanying the differends, provide the quasi-factual basis for a deduction of the absolute
spontaneity of the basic elements of language (i.e. a phrase). If it is nature which arouses the

sublime feeling, it is not one, (the writing of whose forms) which is able to be immediately read by

the feeling of the beautiful (i.e. pleasure). ‘No object of a coded nature is sublime’ (LAS 69).

If we consider this issue in relation to a political judgment, the “thing” which invokes or

induces the sublime feeling is not going to be a “raging ocean” etc.; but like the raging ocean, it
will be a “thing’ that cannot be contained by a form. In the theoretical sphere, the “thing” which

invokes the sublime is that which cannot be contained in a sensible form; in the practical sphere,

that which invokes the sublime is any historico-political event that cannot be contained or
legitimated according the norms attributed with universality. Lyotard gives a number of examples

of such events (LR. 393). Such events, like the sublime in nature, remind the mind of the Ideas that

are absent for the purposes of settling the instability of language. By reminding the mind of an
absence or silence, the feeling of the sublime revives other Ideas (conflict between ideas is thus

renewed). So what are the intuitions that a thought makes use of in the sublime? Given what has

been argued so far, one might say in negative terms that they will be intuitions which appear to a
popular taste and ethos as hideous, contrafinal, illadapted, etc.. In a positive sense, these intuitions

always point to a finality that is not natural or not politically the current one.

Thus one might consider that if the interests of the law are to be actualised in the fullest

sense of the term, then not only is it necessary that those interests be implanted in a will by the law,

it is also necessary that those interests be brought to bear upon the faculty of presentation. This is
not simply because once having dominated a will, the law then seeks to extend its rule to the

faculty of presentation. Rather, it has a double effect: by extending the rule of law to the faculty of

presentation not only are the interests of the law actualised in and by that faculty, but there is also a
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concurrent inducement of a feeling for the law. The latter is not a moral feeling but the feeling of

the sublime which has powerful moving affects. It is an evaluation and not an action (D. §238)
The inducement of the feeling of the sublime has the effect of arousing or stirring up moral feeling.

From this we see the twin importance of what may be called (not without qualification [D. §202])

the sacrificing of the imagination on the alter of the law (LS 188).

How then is the interest of the law actualised by the power of presentation? The key here,

once again, is interest. In the beautiful the imagination in its autonomy shows a disinterest in the
objects of the world; in the sublime, however, the imagination does not merely show a disinterest,

it shows an uninterest. This uninterest is expressed in terms of a 'thrusting aside of forms' (LS

187). What is seen to happen in the 'Analytic of the Sublime', is that the interest of practical reason
(i.e. that which demands to be listened to 'without interest') is shifted from the disinterest of favour

to the uninterest of the imagination in the sublime. This is a crucial point in Lyotard's argument,

for it tells us what is supposed to be going on in the politics defined as the multiplicity of genres.
The thrusting aside of forms suggests the aesthetic mode of a political judgment that is kept in

constant conflict without resolving the conflict. It suggests a political mode of judgment that is

vigilant when it comes to detecting when a politics has been identified with a single genre of
discourse. It also suggests a politics that thrusts aside authorisations which seek to legitimate a

genre’s claim to sovereignty. On Lyotard’s analysis, in our current political climate, the target for

such a political judgment is the politics which is identified with the economic genre of discourse
(D. §240). The interest of the law of heterogeneity shows great interest in the uninterest of the

imagination (in the sublime).

Does it follow from this that it is by means of the uninterest of the imagination that the rule

of law is objectively actualised? Or is it only subjectively actualised in the feeling of the sublime

itself? The answer is that the thrusting aside of form and the breaking of the hold which a
normative power has on the situation is a negative presentation of the rule of law. In this uninterest

of the imagination, the imagination is said to discover its true (ethical) destination (ibid).
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the pain that the impossibility of presentation gives to
thought, is a "mediation" authorising exalted pleasure to
discover the true (ethical) destination of thought, thus
evoking respect. (LS 187)

As will be recalled, where Nature speaks through the beautiful object (eg. a landscape) this

involves a gesture of the mind toward moral consciousness; the judgment is that it is Freedom or
God which speaks in Nature regarded as art. In the sublime, nature does not send thought a cryptic

message concerning its destination; rather, in the sublime the imagination and the understanding

are ignorant of nature, nature remains that which cannot be 'elucidated, explained, or proclaimed'
(LS 183) (nature itself is in conflict and lacks finality - this nature is not given to an intuition, but

only felt in the sublime). From this we take it that no objectification of the Idea of Freedom is at

issue in the sublime, simply because nature is not taken to be that in which the law speaks. Rather,
the law only speaks in the "fact" of reason which is the feeling of obligation and respect; and

secondarily, as its proper aesthetic assessment of the differend in “nature”, in the sublime.

As Lyotard argues, however contra-final it may appear to taste and to the finality of nature

the uninterest of the imagination in forms shows itself to be 'finalised, or finalisable, upon the Idea

of the ultimate destination' (LS 187). The displeasure which insists on signalling to the
imagination how contra-final the faculty of Reason is for it, is nevertheless 'still represented as

final' (CJ 109). The key here is that the more 'an anti-landscape exceeds the putting into form', the

more the rule of law is actualised. As Kant puts it, it is only through 'the sacrifices' (of forms) that
the might of moral law makes itself known (CJ 123).

The significant point here is that in the 'Analytic of the Sublime' the imagination literally
wills that it be taken hostage by the interests of Reason. It may be that the occurrence of the

sublime feeling befalls an imagination, and that the uninterest in forms also befalls it; but it would

seem that once the discovery is made that the greater interests of the law are actualised in this
activity, the imagination itself gives up its natural vocation to take up the unnatural calling of

depriving itself of its own freedom and production. In depriving itself of its freedom, as Kant

points out, the imagination receives 'a final determination in accordance with a law other than that
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of its empirical employment’ (CJ 120). In making this sacrifice of itself to the law, the

imagination, (willingly) placed at the service of the law, gains an extension and a might greater
than that which it sacrifices. But as with the will in the state of obligation, the only evidence which

is given of this event is the feeling of the sacrifice itself (pain). In terms of the notion of the

political judgment which I am exploring, the imagination may be said to sacrifice itself in the
service of heterogeneity; that it is unable to synthesise or objectify such heterogeneity, except

negatively in feeling, is judgment made by the pain felt as the imagination thrusts aside forms.

Thus, the major distinction which is to be made between the relation of the faculty of desire

and the law, and the imagination and the law, is that the former does not have any choice (reason

simply produces the interest of respect in it), whereas the latter, although pressured by reason,
nevertheless turns voluntarily to the law. In turning, the imagination is not to be understood as

being already situated on the addressee instance of the law. In sacrificing of the its natural finality

to the supersensible finality of the addressor of the law (i.e. the I of the I am able ) the imagination
comes willingly. The sacrifice, the turning to the law, does not take place ‘under the regimen of

the you of the you ought to (this is only attributed to the “feeling” of respect and obligation), but

rather it takes place ‘as a “writing” to the other under his or her law’ (D. Levinas Notice: §3). Such
work of the imagination would be the confidings of a hostage. It is in the work of the imagination

that the liability for the addressor of the law is assumed. Where the reflective condition of the

imagination is that of the sublime, it responds to the moment of the differend, by saying to the
victim - yes you are my masters. The one who reads this writing of the imagination is the one who

makes requests in the law.

The analogy which can be made between Lyotard's thoughts on the sublime and his political

thought is therefore clear. Of all the political forms which offer themselves as being most akin to a

sublime aesthetic it is a deliberative democracy. While it may be said to be a political form, the
form itself is quite weak in that it allows for the differend between genres of discourse and phrase

regimens to be exposed (D §217; 234). In other words, here the type of political judgment involved

in the deliberative process does not determine the occurrence of the phrase to the point that the
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instability and equivocalness of the phrase is not to some extent exposed. Nevertheless, if the rule

of law is to be actualised in post-modernity, then the lack of an objective universalism needs to be

replaced by a subjective finality. The conflicts encouraged within a deliberative democracy afford

the occasion for the law of the differend to impose its own finality on what remains of a "normative

politics" when the "natural" forms (so to speak) are no longer given. The occasion of an event
either being overdetermined or underdetermined (which amount to the same), as would appear to

be the case in post-modern deliberative democracies, is also the occasion for the rule of law as it is

actualised under the guidance of obligation and respect and witnessed to by the sublime.

In post-modern deliberative democracies such conflicts provide the occasion for which the

function of the imagination is retracted. The more that the a normative political sphere can appear
as an anti-landscape, the more it can be offered as the occasion for a prescriptive event. We need

only recall that where the imagination in the sublime is witness to the law of the differend, the

sacrificial activity of a productive imagination (forms) and recognition provide the occasion for the
contingent use of the situation. The major change which is required of current deliberative

democratic forms, is that the addressor instance of the normative phrase has to be completely

emptied of a politics identified with a single genre of discourse. Currently, the obligation as it is
instituted under the law of the differend, orientates the will toward a world which is not that of the

economic genre of discourse; and respect implies the motivation to actualise the world of all those

who are silenced by such a genre of discourse. The liability, therefore, which ‘we’ have as a
political community is that our imagination be put in the service of actualising the norms which

would remedy wrongs and provide a basis for victims to become litigants. As noted, this does not

imply that there needs to be an objective consensus across differences, but rather the establishment
of a differential in which the respective legitimacies can be judged and validated.
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CONCLUDING REMARKS

We might conclude by saying that the important distinction which needs to explored for the

purposes of developing a Marxist model of the deliberative will along the lines Lyotard suggests is

a distinction between the categorical constraints which are felt by a deliberative will and the feeling
of the sublime which is to guide a political judgment. If we consider this issue in relation to

Lyotard’s reading of Kant’s formulation of the typified moral law and the categorical imperative, it

is possible to identify the categorical constraints, not with the principle of a maxim, but with the
Obey! which accompanies the statement Act!. On the argument which I have advanced, the

executive force of such prescriptions will have ethical validity (i.e. impose categorical constraints

upon a will) where it is received in moments of instability and heterogeneity in language. As I

have noted, these categorical constraints which are felt by the deliberative will, orientate such a

will not in terms of objective practical principles, but in terms of providing a situation in which

victims are made litigants. Respect, on the other hand, provides the motivational ground for the
selection of maxims that will realise this end.

On this argument, the conflict concerning the selection of maxims cannot be resolved by
imposing an objective consensus; rather, the judgment must be made under the guidance of the

aesthetic of the sublime. Although it would be necessary to further develop this idea, what I think

is suggested by this guidance is that one strive to present heterogeneity by maintaining a political
form which leaves empty the position of sovereignty and vigilantly promotes on-going conflict

between genres of discourse. No doubt maxims are selected, but they are not to be selected without

the multiplicity of genres coming into conflict.

In this thesis I have attempted to develop what Lyotard might have called a Marxist model

of the deliberative will. On this approach there are four points of focus that one can look at: (1) the
Idea under which the model of the deliberative will is to be thought; (2) the categorical constraints

which are felt in the act of deliberation; (3) the reflective condition of the political judgment which

makes a passage from the moment of heterogeneity and instability to the moment of normative
 205

determination concerning the selection of maxims; (4) the role and function of the idealising

activity of reason. During the course of this thesis I have focused mostly on developing an
understanding of the second point, and have only touched briefly on the other points which would

all deserve further examination.

Concerning the first point, in Chapter Two I suggested that the Idea under which this model

of a deliberative will should be developed can no longer be thought in terms of the categories of

experience, but rather should be thought as the ontological question par excellence. To examine
this Idea further, would be to exploration the relation between the contingency of existence and the

moments of categorical constraint and the sublime.

Concerning the third point, in Chapter One and Three I have suggested that a model of the

deliberative will is incomplete unless it is understood what type of judgment is implied by the “as

if” operator which articulates the connection between the prescriptive and normative phrases. It is
in this connection that it is necessary to develop further how a political judgment might operate

between the sphere of heterogeneity and the sphere of norms. Where this issue is dealt with in

relation to the Kantian critical project it is clear that what is required, so as to develop the type of
reflective conditions under which such a judgment operates, is an investigation of the reflective

conditions under which critical thought operates as it moves amongst the heterogeneity of the

faculties. On the arguments advanced above, which have for the most part relied upon Lyotard’s
interpretation of Kant, it is suggested that it is the feeling of the sublime [as that feeling which is a

sign of heterogeneity (LAS Ch 6)] that orientates critical thought as it moves between differences.

Lyotard provides the clue to this where he states, ‘aesthetic judgment conceals, I would suggest, a
secret more important than that of doctrine, the secret of the “manner” (rather than method) in

which critical thought proceeds in general’ (LAS 6). On his argument, critical thought should by

definition ‘be purely reflective (it does not already have the concepts it seeks to use)’ (ibid).
Moreover, since it is aesthetic judgment which “reveals reflection in its most ‘autonomous’ state,

naked, so to speak”, it follows that the ‘autonomous’ manner by which critical judgment must
 206

proceed, if it is not to be already influenced by existing norms and legislative powers, is through an

aesthetic judgment.

Concerning the fourth point, I have only made allusions throughout the thesis to what I

think might be the role of reason in the deliberative model. First, I suspect that what Lyotard calls
the multiplicity of genres, might just as easily be identified as the multiplicity of the principles of

reason. The type of model which is suggested, therefore, is one where reason is kept on a

permanent state of alert, fluctuating between resolutions of conflicts and states of war. Further, as
has been pointed out, on this model, reason gives up its place as that which provides the categorical

constraints for the will, but it nevertheless retains its place as that which provides hypothetical

constraints. The point which I have barely touched on is the relation between the conflict of
reason and the teleology that is implied by this conflict. The argument here, as I envisage it now, is

that culture is advanced by the production of Ideas and therefore the increase of conflict and

heterogeneity of principles.

The other major point which I have failed to explore sufficiently, is the connection between

the model that of the deliberative will suggested by Lyotard and Marxism. However, in this regard
the fundamental connection which can be made is that which has been explored most thoroughly in

this thesis, namely the connection between heterogeneity and obligation. As Lyotard argues

concerning Marxism, the current issue is not whether it has come to an end, but how it is to
continue (D171). For Lyotard the question of the continuance of Marxism is linked to its dualistic

conception of society (P.C. 12), but more fundamentally to a conception of a ‘wrong’ which

provides the concept upon which the division of society may be thought. In this regard, it might be
argued that the concept of a ‘wrong’ (along with the differend etc.) provides one of the

fundamental bases upon which a politics and a model of a deliberative will may be legitimated.

This claim brings me back to the quote given in the opening lines of this thesis concerning the need
to develop an idea and practice of justice not linked to consensus. It would seem that the linking of

an idea and practice of justice to the concept of ‘wrong’ would do just that. Here justice does not
 207

arise from consensus but from the differends and the silences, wrongs and victims, that are only

known in the modality of obligation and respect.

What is authorised by the concept of a ‘wrong’ is both a critical model of the deliberative

will and a critical form of politics. On the basis of Lyotard’s philosophy of phrases, it is possible to
argue that such a model only has a critical value for as long as the differend which provides the

principle of division does not become redundant. Such was the case, according to Lyotard, in

Marxism concerning the principle of class struggle. As Lyotard points out, even though Marx’s
critical perspective was developed and refined by the Frankfurt School and the group Socialisme ou

barbarie (of which Lyotard was a founding and long standing member) it lost its radicality once

the principle of division upon which it was based (i.e. the class struggle) was blurred (PC 13).
After that, he says,

the critical model lost in the end its theoretical standing and was reduced to the

status of a “utopia” or hope,” a token protest raised in the name of man or reason or

creativity, or again of some social category - such as the Third World or the students -

on which were conferred in extremis the henceforth improbable function of critical

subject (PC 13).

On Lyotard’s arguments, Marxism makes an error by equating the practical agent with the critical
agent. On his reading of Kant, if there is a critical subject then it is not the subject of the second

Critique (the man of action), but rather the “subject” of the third Critique, and in particular it is the

subject of aesthetic judgment. In analogous terms, as Kant argued in Conflict between the
Faculties, the ‘sign of history’ is not the ‘middle class’ of the French revolution but the

international spectators who watched on with enthusiasm. The critical subject (as I have noted in

regard to the sublime feeling) may be understood not as the agent whose will has been placed under
categorical constraints arising from differends, but rather as the subject who bears witness to such

constraint; this witnessing takes place immediately and spontaneously in the feeling of the sublime.

Importantly, the issue concerning the principle of division can only be developed reflexively on the
 208

basis of current wrongs and not imposed as a schema or dogma that allows one to read off all

difference as a mode of class struggle. On the arguments advanced in this thesis, wrongs have their
practical presentations in the feeling of obligation and respect and their critical presentation and

assessment in the feeling of the sublime. Under the binding, motivational and guiding influence of

these syntheses it is the task of the deliberative agent to (reflexively) find or invent the principle of
division that best represents what is at stake under current wrongs. Pursuant to the principle of

division the reconciliation of the parties may be brought about by setting down the respective ends

governing each mode of phrasing and the necessary requirements governing the mode by which
each type of phrasing is legitimated. Setting forth the difference, in this case, is precisely the

manner by which justice is achieved for each party. This is not the justice of a consensus but a

dissensus.

GLOSSARY

Differend: Differends necessarily involve a conflict, but not all conflicts are differends. A

differend is to be contrasted with a litigation. The ‘differend is the case of a conflict, between (at

least) two parties, that cannot be equitably resolved for lack of a rule of judgment applicable to
 209

both arguments. One side’s legitimacy does not imply the other’s lack of legitimacy. However,

applying a single rule of judgment to both sides in order to settle the differend as though it were
merely a litigation would wrong (at least) one of them (and both of them if neither side admits this

rule). The implication of the differend is that a universal rule of judgment between heterogeneous

genres is lacking in general’ (D. xi).

Phrase: As has been pointed out by the English translator (Georges Van Den Abbeele), it is more

accurate to translate “phrase” with its English cognate (phrase ) than by its more semantic
equivalent sentence . There are various reasons for this decision. The term itself ‘is not a

grammatical or even a linguistic entity (it is not the expression of one complete thought nor the

minimal unit of signification), but a pragmatic one’ (D 194). The French term phrase , like the
English cognate equivalent, conveys this pragmatic point in that both can be used as a noun or as a

verb with no appreciable semantic differences. This, however, is not the case with the semantic

equivalent sentence. Where sentence is used as a verb it is only meant in a juridical sense. To
phrase on the other hand relates to the question of the possibility and impossibility of what can

and cannot be “put into phrases”. As Lyotard shows, to phrase does not necessarily mean ‘to give

voice’. Liddell and Scott cite an example of the use of the word phrazo (root phrad ) in
Herodotus, which may be translated as ‘unable to express here meaning through speech, she

indicated with her hand’ (LR. 372).

‘A phrase presents what it is about, the case, ta pragmata, which is the referent; what is

signified about the case, the sense, der Sinn ; that to which or addressed to which this is signified

about the case, the addressee; that “through” which or in the name of which this is signified about
the case, the addressor’. ‘A phrase may entail several referents, several senses, several addressees,

several addressors. Each of these four instances may be marked in the phrase or not’ (D §25). (D

§25).

Phrase Regimen The regimen of a phrase may be identified with the disposition of a phrase

universe which consists in the situating of the instances (referent, sense, addressor and addressee)
 210

in relation to each other (D §25). The phrase universes or regimens are constituted by the way the

instances are situated as well as their interrelations. The addressor of a prescription is not situated
with regard to the addressee in the same way as an addressor of a norm (D §79). The rules that

form phrase regimen are not prescriptive and do not of themselves create obligations (D §175).

Phrases obeying different regimen are untranslatable into one another (D § 78).

Genres of Discourse: ‘A genre of discourse imprints a unique finality onto a multiplicity of

heterogeneous phrases by linkings that aim to procure the success proper to that genre.’ (D §180).
The criteria here for the linking of phrases are first of all those provided by genres of discourse. As

Lyotard says, ‘No matter what its regimen, every phrase is in principle what is at stake in a

differend between genres of discourse. The differend proceeds from the question, which
accompanies any phrase, of how to link onto it’ (D §188). Genres finalise or take hold of phrases

and the instances they present, especially ‘us.’ On this approach ‘we’ do not intend phrases, but

our ‘intentions’ are ‘tensions (to link in a certain way) exerted by genres upon the addressor and
addressee of phrases, upon their referents, and upon their senses. We believe we want to persuade,

to seduce, to convince, to be upright, to cause to believe, or cause to question, but this is because a

genre of discourse, whether dialectical, erotic, didactic ethical, rhetorical, or ‘ironic’,’ imposes its
mode of linking onto ‘our’ phrases and onto ‘us (D §183). Genres of discourse are said to finalise

the phrase universe situations ‘in accordance with certain stakes: convincing, persuading, affecting,

etc. (D § 194).

Proper Names: A proper name is said to be like a deictic, in that ‘it is a designator of reality’. Like

a deictic ‘it is the abridged equivalent of a definite description or of a a bundle of descriptions’. It

is ‘a pure mark of the designative function’. Unlike a deictic, the proper name is a mark which can

operate in independence of the “current” phrase’. In the case of proper names, the independence of

the mark, in relation to the “current” phrase (i.e the ostensive), comes from the fact that it remains
invariable from one phrase to the next even though what it marks is found sometimes in the

position of addressor, sometimes in the position of addressee, sometimes in the position of referent

(occasionally even in the position of grammatical predicate: “Its a Kant”). Its rigidity is this
 211

invariance. The name designates the same thing because it remains the same. The other “possible

universes the proper name traverses without being altered are not merely those in which the
descriptions that can be attested to it are different: Kant the author of the Critique of Pure Reason;

Kant, the author of the Critique of Judgment; Kant, whose dying days are recounted by Thomas de

Quince . . . They are above all those phrase universes in which the proper name inhabits different
situations among the instances: I name you Kant; Dear brother, I embrace you, signed Kant; It

sounds like Kant; Kant was then writing the “Observations on the feelings of the Beautiful and the

Sublime” (D.§57). The invariability of the name as it moves from one phrase to the next, is not
only that which makes equivocation possible concerning the name; it also ‘promotes’ differends

between phrase regimen and genres of discourse (LR. 350.

For the purpose of a politics, this last point has significance for an incompatibilist model of

the deliberative will. The same entity, designated by the proper name (be that the name of an

individual or that of a collective entity), can be the object of a cognitive phrase and a speculative
and ethical phrase. The same entity can be viewed as a phenomenon subject to a natural causality,

or as the sign of an Idea. Of significance here is the distinction between a politics of the proper

name and a politics of the quasi-deictic We. In the first case, it is possible to develop a politics
regulated by the Idea of the proliferation of language, in the latter case there is a politics regulated

in terms of a phenomenology of the subject. Where the We is thought to be a subject-substance

spanning the differend between prescriptive and normative phrases, there you have a politics
regulated in terms of the unity of subjectivity, and not the proliferation of language (D. §155).

Presentation. ‘A phrase presents at least one universe. No matter which regimen it obeys, it entails
a There is [Il y a ]. There is what is signified, what it is signified about, to whom and by whom it

is signified: a universe. At least one universe, because the sense, the referent, the addressor, or the

addressee can be equivocal’ (D §111). ‘The expression There is is a mark of presentation in a

phrase’ (D §112). The presentation entailed by a phrase is more accurately called ‘one being, one

time, (un etre, une fois )’ and not Being. The presentation entailed by a phrase ‘is one

presentation, or what in a phrase-case is the case. Being would be a case, an occurrence, the “fact”
 212

that it happens to “fall,” that it “ comes running (Fall, occurrence ) (D §113). The presentation

entailed by a phrase is not presented in the universe that this phrase presents (D §116).

Prescriptive phrase: For the purpose of this thesis a prescription which is ethically valid may be

understood to be identical with an (irreducible) I/you relation, a Levinasian ethical situation, a face
to face relation, a victim/addressor relation. The logical formulation of the prescription is “It is

obligatory for y to carry out x”. From the perspective of a political community which legitimates

obligations on the basis of norms, the ethically legitimate prescription may be understood to be an
unlegitimated I/you relation - a relation which cannot be reduced or legitimated by norms

authorised either by the proper name of a collective or a universal we. Prescriptions which are

politically and juridically valid are prescriptions which are legitimated in terms of norms. On
Lyotard’s analysis, these norms, for the most part, may be legitimated either by the proper name of

a collective or the Idea of freedom. The legitimation of a norm by an Idea of freedom gives rise to

a politics of terror. ‘Terror in this way plunges the real community into despair about its identity’
(PE 55). Legitimation of the norm by the proper name of a collective gives rise to a despotic form

of politics. A totalitarian form of politics occurs where the governmental institutions legitimated

by the Idea of freedom are subjected to the legitimation by the proper name of the collective (eg.
Nazism, not the Stalinist mode of legitimation) PE 56. The totalitarian form of legitimation

universalises the particular, while a politics of terror regards every particular reality as a plot

against the universal will (PE 54).

TABLE 1.1

Prescriptive phrase the addressor is called the "I" of the "I am able to"

the addressee is called the "you" of the "you ought to"

the performativity of the prescription is presented practically

the performativity of the phrase is presented as the feeling of obligation

 213

Normative phrase: the addressor is split into two entities;

(moral and republican) the addressor is split between the Idea of Freedom and the proper name of

collective;

the addressor is split between the "I" of the "I take" and the "we" of the proper

name of a collective;

the addressor instance is left empty, any singularity intending on occupying this

position will be suspected of being merely a usurper or impostor;

The performativity of the norm is subject to the antinomy of Nature and Freedom

The performativity of the phrase is both an object of an Idea and object of a

cognition;

the determination of the I/you relation is/is not unconditioned;

the determination of the I/you relation is made out uninterest;

Normative phrase: narrated world legitimated by the proper name of a collective.

(narrative)

TABLE 1.2

Prescriptive phrase = (irreducible) I/you relation;

Levinasian ethical situation;

face to face relation;

victim/addressor relation

It is obligatory for y to carry out x

unlegitimated I/you relation.

 214

Normative phrase = Legitimated I/you relation;

I/you relation legitimated by an I or a We;

I/you relation made the referent of a phrase declared by a third party;

I/you relation made the referent of a theoretical phrase;

I/you relation made the object of a questioning;

I/we decree as a norm that it is obligatory for y to carry out act x.

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