Jacques Derrida: The Death Penalty, Volume I and Volume II

The Death Penalty, Volume I and Volume II Book Cover The Death Penalty, Volume I and Volume II
The Seminars of Jacques Derrida
Jacques Derrida. First volume translated by Peggy Kamuf. Second volume translated by Elizabeth Rottenberg
University of Chicago Press
2013, 2017
312, 304

Reviewed by: Aaron Aquilina (Lancaster University)

Jacques Derrida presented these seminars at the École des hautes études en sciences sociales, improvising their translation when presenting abroad at New York University and the University of California, Irvine, between 1999-2000 and 2000-2001. The English translations of these seminars come directly from Derrida’s typed notes and are rigorous, including footnotes transcribing comments added by Derrida during the presentation of his lectures as well as reproducing his own private marginal notes.

While these two sets of seminars first and foremost deal with the question of the death penalty, the two volumes approach the principal enquiry from perceptibly different angles, and include several instances of (nonetheless relevant) digression that characterises Derrida’s style. Indeed, within these same seminars, there are conjured some surprising questions of literature, euthanasia, alterity, age, the heart, sexuality, grief, suicide, psychoanalysis, the animal, and deconstruction itself, alongside more expected discussion around law, justice, religion, history, politics, spectacle, sovereignty, cruelty, blood, murder and death.

The simplest way of describing the somewhat disparate interests of the two sets would be to say that, while the first volume is concerned with understanding what the death penalty is, the second explores what the death penalty means. This is not to say that the same questions are not repeatedly posed and transposed throughout both volumes, as most exemplified by Derrida’s chief interest in thinking with and through talk of abolition or retention and towards further unveiling the gestures of deconstruction, ‘becoming or revealing itself finally as that which finds itself grappling, in order to deconstruct it, with […] the strange and stupefying and shocking fact that never, but never, it turns out, has any philosophical discourse as such, in the system of its properly philosophical argument, opposed the principle, I repeat, the principle, of the death penalty’ (DPII, 2). While Derrida is himself against the death penalty, as he once clearly states, his main task is ‘to think otherwise the interest there could be in standing up against the death penalty and in universally abolishing the death penalty’ (DPI, 254). In fact, by the end of the last seminar one finds that Derrida, typically, has not provided a singular or conclusive position against the thoughts of that strongest advocate of the death penalty—Immanuel Kant.

He does, however, offer seminal insights and openings by which one might position oneself beyond arguments of, for instance, life imprisonment as opposed to the effect of criminal deterrence. Such arguments, Derrida points out, operate from within the death penalty’s own modality rather than interrogate its rationality; as such, even arguments against the death penalty are ultimately subsumed or enslaved within its logic. The death penalty seems inescapable; it seems to ‘[hide] a nonunifiable multiplicity of concepts and questions’, a ‘collective experience of putting to death’ (DPII, 18). Derrida, in fact, situates the death penalty at the heart of human sociality, quoting Kant in (at least partial) agreement: ‘The mere idea of a civil constitution among human beings carries with it the concept of punitive justice belonging to the supreme authority’ (first quoted DPII, 134).[i]

Being ‘at the origin of the social contract or the contract of the nation-state, at the origin of any sovereignty, any community, or any genealogy, any people’, that which kills us, then, is what lets us live (DPI, 20-1). Moreover, in its entrenchment in law and society, it stands to reason that the penalty is at the heart, also, of economics, and this Derrida meditates at length through common phrases such as “to pay with one’s life”, “cost him his life”, “risk one’s neck” or “the value of life”. These are words belonging to the economy of the talionic law (jus talionis), at its most extreme an economy of death, and more shall be said on this later.

In light of this troubling twist—it is the death penalty that allows us to live—Derrida examines throughout this idea of the penalty at the heart of law (going as far back as to the trial of Socrates) and with it, necessarily, this figure of ‘supreme authority’ and the logic of the exception. To this end, he repeatedly engages with contemporary political situations such as the case of Buffet and Bontems, the unwillingness or even inability of the 1948 Declaration of Human Rights to outlaw the death penalty, and, at length, the rather strange case of the United States—this both through an analysis of its history, so closely tied to the penalty, as well as through more tangential approaches, such as reading Franz Kafka’s Amerika. Even in the US’s temporary abolition of the death penalty (1972-77), Derrida says, ‘the court did not rule on the principle of the death sentence, but on the cruelty of its execution’ (DPI, 53). This is, perhaps, the point that he wishes to make most clear throughout the seminars: that there can be no law, nor society, without punishment as epitomised by the principle of the death penalty. This is why he claims that ‘it will always be vain to conclude that the universal abolition of the death penalty, if it comes about one day, means the effective end of any death penalty’, and, as such, ‘even when the death penalty […] will have been purely and simply, absolutely and unconditionally, abolished on earth [sic.], it will survive: there will still be some death penalty’ (DPI, 282-3).

Thus, we see Derrida’s second point: the death penalty is not only what is proper to law—‘the right to law [le droit au droit], the right to the violence of law’ (DPII, 48)—but also what goes beyond it. In its position as the foundation and birth of every law, every society, it also outside such laws and societies. It persists throughout both peace and wartime—however difficult it is, Derrida remarks, to properly distinguish between the two. Justice, then, is not what employs the death penalty, but rather it is the other way around. Keeping this in mind, one recalls the cases of King Charles I or Louis XVI, whom Derrida also talks about (especially of the latter, of course): the death penalty is not only that which the sovereign can wield, but also that which ends him.

Sovereignty is, in fact, one of the main concepts in question here. It is interesting, especially in light of Michel Foucault’s conception of biopolitics with which Derrida briefly engages, that, following the above understanding, presidency (and with it democracy) is viewed as a continuation of sovereign rule. Following commentary on Georges Pompidou and the 2000 American election (George W. Bush, Al Gore, Ralph Nader), Derrida talks of how this modern ‘sovereign known as “President”’ points to ‘something like a contradiction internal sovereignty: unconditional sovereignty is conditional’—here, the votes of a society given form by the death penalty. (DPII, 1, 57). In the French Revolution, where the death penalty made itself clearly known as what persists even in the suspension of law, that condition was the very physicality of the king, the body natural, which the guillotine severed.

When, however, the death penalty is utilised as a tool of law, one is indeed at the mercy of ‘he who decides the exception’ (first quoted DPI, 83).[ii] It is safe to say that Derrida here leaves Carl Schmitt’s definition of sovereignty uncontested, and similarly critiques the problematic of the exception (in continuation from the previous seminars, Perjury and Pardon) as the location from which order is maintained precisely because it is in opposition to the general law. Connecting back to the idea that the death penalty is what allows us to live on, Derrida explains ‘how this logic [of the exception], which is that of absolute sovereignty and the self-preservation of the political body, [authorizes] the absolute maintenance, even though or because it is exceptional, of the death penalty, in the name of the self-preservation of the sociopolitical body’ (DPI, 86). Sovereignty thus not only constitutes the penalty but is constituted by it: ‘the question of the death penalty,’ Derrida says, ‘is a question of the different ways the state has of affirming its sovereignty by disposing of the life of certain subjects’ (DPII, 19). This, in turn, is an affirmation utilised in the face of defiance—and here Derrida thinks with Walter Benjamin’s ‘Critique of Violence’—a challenge to the very figure of the sovereign: ‘The great criminal is […] the sovereign exception of one who has been able to defy and contest the monopolization of violence by law’; ultimately, what can be seen in ‘the one condemned to death [is] an absolute, almost sovereign power’ (DPII, 46). In the case of the death penalty, it would also be true, therefore, to say that the exception decides itself.

Derrida presents another way of understanding the exception: as miracle. ‘The exceptional situation, that is, the criterion of sovereignty […] is the same thing as what are called miracles in religion. It’s the same structure: a pure decision’ (DPII, 249). Throughout these seminars especially, Derrida upholds that one cannot understand the order of the political without understanding how it is interwoven with the religious. This point is frequently made through Political Theology, either overtly or in the seminars’ subtext, and serves to highlight the theologico-political role of the sovereign as underlined throughout. Derrida in fact reminds us how it is often through religion that the death penalty is sustained (namely Christianity, and occasional comments are indeed made on what is arguably the most prevalent figure of those condemned to death, Jesus). The death penalty found its first manifestation in human society as an implement not of human law but of the divine.

This is how the essence of sovereign power, as political but first of all theologico-political power, presents itself, represents itself as the right to decree and to execute a death penalty. Or to pardon arbitrarily, sovereignly. If one wants to ask oneself “What is the death penalty?” or “What is the essence and meaning of the death penalty?” it will indeed be necessary to reconstitute this history of sovereignty as the hyphen in the theologico-political. (DPI, 22-23).

This is perhaps best taken up in Derrida’s overall discussion of the US. The consequences of religion as shaded into US law and vice versa—one aspect of which being their culmination into a vague concept called the right to life—at times confound Derrida. Speaking of abortion, for instance, he says: ‘It is always in the name of the right to life that these militants (most often Christian) claim to be fighting, and often violently […]. The fact that sociologically, statistically, historically, these militants are most often, notably in the United States, […] in favour of the death penalty […] is but one of the signs we have to interrogate’ (DPI, 121).

It was earlier stated that Derrida wanted to move away from arguments of abolition and retention, but this is not to say that such arguments were ignored. He does, in fact, continually interrogate the theologico-political matrix, at work in the US and elsewhere, through the writings of those living in states where the death penalty—in its most naked form, as legal punishment—is still at work. Aside from discussing more general arguments, Derrida also looks to specific thinkers such as Victor Hugo (Writings on the Death Penalty and his 1832 preface to The Last Day of a Condemned Man), Albert Camus (‘Reflections on the Guillotine’), Mumia Abu-Jamal (Live from Death Row), and several others (the most familiar names would be, perhaps, Locke, Rousseau, Sophocles, Diderot, Montesquieu, Nietzsche, Schopenhauer, Voltaire, Montaigne—the list goes on).

All this amounts to nothing short of a spectacle, albeit one that is not always visible; despite the ‘optimistic and teleological [global] tendency’ towards abolition, the show goes on (DPI, 136). This is the reason Derrida chooses to use the term “death penalty” throughout the seminars and not “capital punishment”. The latter phrase connotes the head principally, and one must keep in mind that ‘[w]ithin the legal procedure of execution, putting to death has not always involved attacking the head, decapitating, practicing decollation, hanging or strangulation of the condemned one, or again by a firing squad aiming at the condemned one’s face’ (DPI, 41). Furthermore, this phrase brings to the forefront the very idea of method, which of course connotes also the diverse histories of execution, cultures and religions, technologies, theatricalities.

Hence, “death penalty”, unlike “capital punishment”, goes some way towards revealing the increasing invisibility of the penalty. Following Foucault’s theories of both the spectacle and despectacularization (the latter with some divergence, namely in terms of what Derrida terms the virtual), Derrida attempts to peer into the (in)visibility of the penalty, from the crowds around the guillotine or town hangings to the electric chair and the lethal injection, in order to look at what he calls a history of blood, and the change ‘from the moment that one loses the visibility of literal blood, the visible literality of blood’ (DPII, 261). He goes on: ‘No history of the death penalty will be possible without a history of blood’ (and here Derrida points out the homonyms sans sang), and in this light he muses whether, in the same way that the guillotine was viewed as a humanitarian advancement, this might also be the case with the disappearance of blood—a ‘humanization’, ‘humanism’, and ‘humanitarianism’ of the death penalty (DPI, 191-2). Whenever this history of blood is brought to light, the subsequent points made by Derrida regard, much more often than not, the machine and the mechanistic, calling into question the concepts of progressivism and care (for the condemned individual) so closely associated with the death penalty—a surprising association, as Derrida evidences in several seminars, with something so barbaric and of which the sole purpose is the eradication of the individual. The process of erasure of the death penalty’s visibility, Derrida warns, should therefore not be taken as some gradual fulfilment of the abolitionist’s goal; visibility is erased only because the death penalty is so unmovingly entrenched within human society that it is itself a part of the progressions, technological or otherwise, of the ages.

This move from the public to the private space, even to the secret space (and the fact that crime is most often done secretly is not irrelevant, as Derrida muses), prompts him to explore the psychoanalytic concepts in which the penalty is shrouded, an endeavour undertaken mostly within the second volume. The conscious and the secrets of the unconscious is here read mainly through Theodor Reik, one of Sigmund Freud’s first students and who writes in his name. Apart from repeatedly commenting on this delegation of power through the act of writing in someone’s name (writing in blood, perhaps), Derrida brings in Reik primarily for his Freudian argument against the death penalty (in The Compulsion to Confess; this in lieu of Freud, who never directly wrote about the death penalty).

Reik traces the progress of punishment—from a death penalty of retaliation and vengeance to one of protection, deterrence and prevention—and suggests a further possible path of progress: that of ‘the complete elimination of [criminal, judicial] punishment’ (DPII, 130). Realising that punishment is nonetheless integral to society, Reik advocates self-punishment, a taking on of our collective unconscious guilt, formulated as that which, ‘far from succeeding the crime, […] precedes it from the most archaic formation of the unconscious’, a guilt which ‘always refers back to an Oedipal situation’ (DPII, 12, 181). In psychoanalysis, then, all crime is at origin sexual. Ultimately, what Reik proposes amounts to ‘the psychoanalytic treatment of society as a whole’, ‘a worldwide autoanalytic treatment’ that deals with the foreign nature of forgiveness in the unconscious—foreign, Reik and Freud say, as are the ideas of caution, gratefulness or death itself (DPII, 132-33).

Though never stating it clearly as such, Derrida presents Reik’s ideas as compelling, and deserving of lengthy rumination, but ultimately unconvincing. On the aptness of Reik’s position within the history of thought of the death penalty, Derrida is also unsure: ‘I wouldn’t say either yes or no’ (DPII, 183). Such thinking, Derrida points out (and which, in fairness, Reik’s writings also deliberately evidence to some degree), follows a direct trajectory from the talionic law and its ‘interests and calculations’, the economy of punishment and death (DPI, 140). It is a law of obvious Greek and biblical proportions, but its rationality is epitomised through Kant, whose thought, callous as it is, remains improperly understood or else only weakly rebutted (and hence the very real need for these seminars, through which Derrida offers a diversity of counter-thoughts).

Though Reik acknowledges the theories of the talion, he seems to underestimate or at least under-represent the Kantian theory of law and ‘its reference to talionic law as pure rational principle and categorical imperative’ (DPII, 180). Derrida makes clear how Kant is already there before Reik on auto-punishment, and this, for Kant, by no means circumvents the necessity and even inevitability of the death penalty. In trying to understand ‘the extraordinary rationality but also the stupid uselessness of this Kantian logic […] as rigorous as it is absurd’, Derrida begins by underscoring Kant’s conception of the dual nature of man—the homo noumenon (the rational aspect) and the homo phaenomenon (man’s empirical life, as governed by Euclidian and Newtonian laws)—and Kant’s idea that, when condemned to death, it is the noumenon that punishes itself, condemning the phaenomenon to death conjointly with the ultimate figure of rational morality, the sovereign (DPI, 127).

Despite bringing in anti-rationalist arguments—chief among them those made by Cesare Beccaria, whose writings can be read as highlighting some of the problems one can already see with Kant’s division, and who attempts to disassociate the exception from the sovereignty of law—the ‘extraordinary rationality’ of the penalty perseveres. Further complication is added in Kant’s distinction between the two kinds of punishment: poena forensis (punishment delivered from the outside, by a judge or executioner) and poena naturalis (when the criminal spontaneously suffers from the crime, such as in the case of bankruptcy as a result of vice; self-punishment). Derrida strongly questions the rigour of this divide between the forensis and the naturalis, doubtful of whether there is ever pure auto-punishment or pure hetero-punishment (to use his terms), but even here Kant seems to have arrived already.

For Kant, the death penalty ‘must not serve any purpose, and it must take place even if it does not serve any purpose’, this because punishment ‘can never be decreed as a means to promote an end’, but solely as an end in itself, inflicted because the criminal ‘has made himself guilty of a crime’ (DPII, 39). This is what makes the death penalty a categorical imperative, and any idea of deterrence, social security, revenge or utility becomes merely subsequent or even completely irrelevant. Thus the death penalty—the poena forensis—is neither useful nor socially necessary, but must be maintained on the basis that it gives the human being—the noumenon—dignity and honor. The death penalty, in Kant, works in two directions: as both self- and external-punishment, working with the porousness of auto- and hetero-punishment.

In consequence, added to Kant’s strict defence of the figure of the sovereign (as his comments on the Revolution, for instance, make most lucid), there is also a counter-logic here which Derrida identifies: ‘To put to death a guilty citizen according to law and justice is in no way, according to Kant, to dispose sovereignly of his body’ (DPII, 42). In this framework, the rational aspect of man must comply with the idea that putting a human being to death is to respect the fact that it is a human being, a respect for the innate personality of man, which ‘makes every human being what he or she is, human, and thus a rational subject of law’, even if the criminal has forsaken their civil personality (DPII, 90). To abolish the death penalty would be to outlaw justice, and it is only moral justice that makes us human. To do away with the death penalty would be, to use a term with which Derrida credits Kant for its appearance in philosophy, a crime against humanity. Once again, the seminars revolve around the revolutions of the guillotine: the death penalty kills us only so that we may live; the death penalty kills us only so that we may be us, human.

Taking his cue from a response penned by Kant in his 1798 edition of Doctrine of Right—where Kant outlines the crimes and appropriate punishments for rape and pederasty (castration) and bestiality (social exclusion)—Derrida points out several times how one never quite hears, in the tones above, of condemning the animal to death. A deconstruction of this line between human and animal, more specifically human death and animal death, seems to be suggested by Derrida as one possible way forward through this deeply anthropocentric rationality which would, in turn, create a space for a possible radical rethinking of the death penalty itself (here one begins to see the reasoning behind Derrida’s choice for the following and last seminar at the École: The Beast and the Sovereign).

This possible radical rethinking is more than a rethinking of all the above concepts, but furthermore a rethinking of death itself. Derrida asks, not exactly rhetorically: ‘must one start out from the question of the death penalty […] in order to pose the question of death in general?’ (DPI, 238). This question—one the ‘great thinkers of death never seriously spoke and which they no doubt held to be a circumscribable and relatively dependant, secondary question’—he answers in the affirmative, stating that ‘if there was one thing, one word to deconstruct, it is indeed what is called death’ (DPI, 237, 240). It must here be noted, however, that at this and other instances where a “deconstruction of death” is meditated, it is not taken up by Derrida, in part because of his main concerns in the seminars as recounted here and also because this would mean undertaking a “deconstruction of life itself”.

Derrida, however, does constantly think of death itself and what the death penalty unearths of this thought at the horizon of thought. One particular examination is of our way of being-towards-death (and Martin Heidegger is obviously here invoked, albeit only mentioned infrequently in the seminars), and the question of whether being condemned to death in some way alters our relationship with our death. This Derrida attempts to characterise through a distinction between being “condemned to die”, as we all are, and being “condemned to death”, where one is afforded a ‘calculable knowledge’ of one’s own time of death, knowing ‘in all certitude […] that the hour of [their] death is fixed, by others, by a third party, at a certain day, a certain hour, a certain second’ (DPI, 218). However, just like all border lines and divisions, this is a porous distinction: the case of terminal illness comes uncomfortably close to breaching it, and so does the ‘paradigm of the fatwa [such as the one unleased on Rushdie] [which] complicates all the more the question’ of condemnation and the human being’s relation to death (DPII, 197). Another question of death asked by the penalty, perhaps slightly less academic but all the more hard-hitting for it, is the following one which Derrida asks his audience:

If, given that I am in any case, like every living being, condemned to die, if not condemned to death, if, condemned to dying sooner or later, like everyone else, I had the choice between, on the one hand, dying at such and such an age, tomorrow or later today, of natural causes, as the result of an automobile accident or an illness (like almost everyone, in fact), and, on the other hand, of dying at another age, later, the day after tomorrow, in a year, ten years, twenty years, in a prison, because I will have been sentenced to death by capital punishment (the guillotine, the electric chair, lethal injection, hanging, the gas chamber), what would I choose, what age would I choose for my death?

As one can see, these seminars are vast in scope and ambitious in thought, in constant dialogue with the thinkers above. There are yet others that have not been mentioned here: the literature of Shakespeare, Genet, Baudelaire; the philosophies of Blanchot, Levinas, Marx, Descartes, and Hegel; the political theology of Donoso Cortés, the linguistic studies of Émile Benveniste, and the theories of Charles Darwin. The seminars also include frequent strands that Derrida transparently cuts short, having no time to devote to these thoughts the perseverance they deserve. While some of these are then taken up in The Beast and The Sovereign and elsewhere in his later works, these seminars deserve a close reading on the merits of both what Derrida said and what he leaves unsaid.

[i] Kant, Immanuel. ‘The Metaphysics of Morals’. In Practical Philosophy, ed. and trans. Mary J. Gregor. Cambridge: Cambridge University Press, 1996, p. 497.

[ii] Carl Schmitt. Political Theology: Four Chapters on the concept of Sovereignty, trans. George Schwab. Chicago: University of Chicago Press, 1985, p. 5.

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