Jack Robert Coopey
This was necessary at least to the extent that so- called capital punishment puts into play, in the imminence of an irreversible sanction, along with what appears to be held to be unpardonable, the concepts of sovereignty (of the State or the head of State — right of life and death over the citizen), of the right to pardon, etc.[i]
The seminars given in (1999-2000) by Derrida on the Death Penalty resemble Foucault’s later work in the College de France lectures in their constant investigation of the consequences and components of the death penalty which through Derrida’s careful unfolding analysis reveals severe political and social implications in his deconstruction. The seminars fall into the same category of post-phenomenological philosophy in investigating the main canonical texts and thinkers of the history of Western philosophy in order to critique the historical present on the concept of death penalty. In addition to this, Derrida implicates the death penalty in questions of sovereignty and the economy, and the ways in which the spilling of the blood of a state’s citizens involves a certain economy of conceptual content as well as concrete, financial implications. It seems that the context of these seminars within Derrida’s thought may have been firstly overshadowed by his immanent death in 2004, in conjunction with his previous text The Gift of Death (1995) which is his other serious consideration of religion and the political. Additionally, it appears that in his supposedly late political phase, that the death penalty in light of globalization of the 1990’s revealed a means by which to understand the neo-liberal, state of exception worldwide. The seminars simultaneously reveal a hidden part of Derrida that has not seen before, but the question whether these analyses of the death penalty are a repetition of various concepts mentioned throughout earlier works in his corpus is a haunting aspect of deconstruction and Derrida himself. The question of life over death involves the who, what and how in a primarily ontic or ontological question of how life itself is governed by the laws of death penalties and criminality. Although it is evident, that alongside a widespread critique of Derrida, is simultaneously his ability to analyse concepts at an intricate, fruitful and insightful ways, however it may seem these seminars merely reproduce Derrida’s methodology and ideas themselves. To put it more clearly, whilst Derrida did not explicitly write about the death penalty other than these two volumes, the questions of sovereignty, economy and cruelty can be seen as synonymous with the slogans of deconstruction such as the trace, difference and the spectre. Derrida in the first volume examines the ‘canonical texts’ and the ‘canonical examples’ involving the death penalty, being Socrates, Jesus, Hallaj, Joan of Arc, Locke, Kant, Hugo and the Bible. Derrida summarises the conceptual significance of these questions:
Three problematic concepts dominated our questioning through the texts and examples we studied: sovereignty, exception, and cruelty. Another guiding question: why have abolitionism or condemnation of the death penalty, in its very principle, (almost) never, to date, found a properly philosophical place in the architectonic of a great philosophical discourse as such? How are we to interpret this highly significant fact?[ii]
Therefore, alike to Derrida’s other work the question of the repressed, hidden and concealed is revealed in the question of the death penalty and punishment in general. Derrida also highlights the phenomenological status of the unforgivable in relation to capital punishment, which not only involves has juridical and political dimensions but also in the ‘stakes of its abolishment’ possessing implications for a theorization of globalization or Derrida’s term mondialisation. In addition, to this question of globalization the ‘history of its visibility’, the ‘public character’ and its ‘representation in the arts of theatre, painting, photography, cinema and literature’ are also key to Derrida’s investigation of the metaphysics of the death penality. In the first session, Derrida begins the question of the death penalty in the form of a ‘judicial decision’ in the form of the Other, which will inevitably tie into the question of sovereignty itself:
It is indeed of an end, but of an end decided, by a verdict, of an end decreed by a judicial decree [arrêtée par un arrêt de justice], it is of a decided end that decidedly we are going to talk endlessly, but of an end decided by the other, which is not necessarily, a priori, the case of every end and every death, assuming at least, as concerns the decision this time, as concerns the essence of the decision, that it is ever decided otherwise than by the other. And assuming that the decision of which we are getting ready to speak, the death penalty, is not the very archetype of decision. Assuming, then, that anyone ever makes a decision that is his or hers, for himself or herself, his or her own proper decision. […] The death penalty, as the sovereign decision of a power, reminds us perhaps, before anything else, that a sovereign decision is always the other’s.[iii]
In this sense, Derrida’s analysis will analyse the dynamics by which the sovereign will enact a judicial decree in a sphere or spectacle of visibility. These analyses bear resemblance to Foucault’s Discipline and Punish as well as his later work on the shift from pre-modern sovereignty necessitating a form of visibility in order to be enacted to be seen by the sovereign themselves as well as the governed. This shift from a democratic modernity to a neoliberal regime of invisible power and marketization is where Foucault and Derrida meet here. As Derrida remarks: “The state must and wants to see die the condemned one”.[iv] Derrida then shifts like Foucault to analysing Plato’s texts such as the Apology to analyse what shape sovereignty takes, and what form of judicial decree is made against Socrates and the eventual decisionism which results in Socrates’ death. These analyses of the earlier Greek demonstrations of sovereignty will provide an allegory for Derrida’s deconstruction of the United States and their stance on death penalty and the globalized state of exception they declared within Derrida’s time.
The Apology says it explicitly (24b–c): the kategoria, the accusation lodged against Socrates, is to have done the wrong, to have been guilty, to have committed the injustice (adikein) of corrupting the youth and of (or for) having ceased to honor (nomizein) the gods (theous) of the city or the gods honored by the city — and especially of having substituted for them not simply new gods, as the translations often say, but new demons (hetera de daimonia kaina); and daimonia are doubtless often gods, divinities, but also sometimes, as in Homer, inferior gods or revenants, the souls of the dead; and the text does indeed make the distinction between gods and demons: Socrates did not honor the gods (theous) of the city and he introduced new demons (hetera de daimonia kaina).[v]
The next aspect which Derrida analyses is the paradox of the abolition or the maintaining of the death penalty in ‘democratic modernity’ which he refers to as the present political situation globally. Derrida sees this paradox operating between the right to kill in war of a nation state and as a democratic state, and the maintaining of the death penalty which almost acts like a kind of state of exception. The paradox or contradiction between maintaining a supposedly democratic state in Ancient Athens and the United States whilst permitting the murder of foreigns and its own citizens under certain exceptions to the rule is where Derrida reveals this conceptual impasse and insightful paralell to the democratic modernity we inhabit. Perhaps one question Derrida raises here, is how we can better construct a more democratic ‘democracy to come’ in Derrida’s messianism without this exception to the rule, however to what extent democracies can exist without exceptions to rules is perhaps not a possibility.
Even in nation-states that have abolished the death penalty, an abolition of the death penalty that is in no way equivalent to the abolition of the right to kill, for example, in war, well, these several nation- states of democratic modernity that have abolished the death penalty keep a sovereign right over the life of citizens whom they can send to war to kill or be killed in a space that is radically foreign to the space of internal legality, of the civil law where the death penalty may be either maintained or abolished.[vi]
Just like in Foucault, Derrida wishes to understand how the ancient origins of the death penalty in his analysis of Socrates’s trial then grounds and organises the rationality behind the democratic modernity which permits death penalty still in particular nation-states. Derrida’s commentary follows a historical account from the Apology onwards towards the onset of the Enlightenment, most explicit in the work of Kant who for Derrida explicates a rationality of justifying the death penalty as a law of man as opposed to beasts who commit crimes and resorts to a brutal, ‘natural life’.
Here, in a logic that we will continue to find up to Kant and many others, but in Kant par excellence, access to the death penalty is an access to the dignity of human reason, and to the dignity of a man who, unlike beasts, is a subject of the law who raises himself above natural life. That is why, in this logic, in the logos of this syllogos, the death penalty marks the access to what is proper to man and to the dignity of reason or of human logos and nomos. All of this, death included, supposedly testifies to the rationality of laws (logos and nomos) and not to natural or bestial savagery, with the consequence that even if the one condemned to death is deprived of life or of the right to life, he or she has the right to rights and, thus, in a certain way to honor and to a burial place.[vii]
Thus, Derrida argues that in Kant there is a systematic account of how the death penalty in fact is above the natural law of killing, in that in its act of justice and rectifying the law of human beings is in fact, a product of reason. The death penalty is viewed by Kant as a object that is above the natural law, but is a means of restoring the natural law without descending into natural or bestial savagery as a result. As a result of these preliminary analyses, Derrida moves into the core of the death penalty which similarly to Foucault’s lectures realises the theological dimension to how decisions of life and decisions of death are mediated by a onto-theological basis. Derrida even goes as far to say that:
[…] it will indeed be necessary to reconstitute this history and this horizon of sovereignty as the hyphen in the theologico- political. An enormous history, the whole history that at the moment we are only touching on or glimpsing. It is not even certain that the concept of history and the concept of horizon resist a deconstruction of the scaffolding of these scaffolds. By scaffolding, I mean the construction, the architecture to be deconstructed, as well as the speculation, the calculation, the market, but also the speculative idealism that provides its supports. History, the concept of history is perhaps linked, in its very possibility, in its scaffolding, to the Abrahamic and above all the Christian history of sovereignty, and thus of the possibility of the death penalty as theologico- political violence. Deconstruction is perhaps always, ultimately, through the deconstruction of carno-phallogocentrism, the deconstruction of this historical scaffolding of the death penalty, of the history of this scaffold or of history as scaffolding of this scaffold. Deconstruction, what is called by that name, is perhaps, perhaps the deconstruction of the death penalty, of the logocentric, logonomocentric scaffolding in which the death penalty is inscribed or prescribed. The concept of theologico- political violence is still confused, obscure, rather undifferentiated (despite the hyphen we see being clearly and undeniably inscribed in the four great examples, in the four great paradigmatic “cases” that I have just so quickly evoked: trial with thematic religious content and execution, putting to death by a state- political agency, law itself, the juridical, beginning with the “judgments” and the code of Exodus, the juridical, then, always assuring the mediation between the theological and the political); this relatively crude but already sufficiently determined concept of the theologico- political, the theologico- juridico- political will demand from us an interminable analysis. […] One would then ask oneself: “What is the theologico- political?” And the answer would take shape thus: the theologico- political is a system, an apparatus of sovereignty in which the death penalty is necessarily inscribed. There is theologico- political wherever there is death penalty.[viii]
It was necessary to quote Derrida at length here given the immense amount of explication he makes in these conceptual movements. Foucault in his analyses in the Will to Know (1971) College de France lecture similarly analyses the history of sovereignty as a moment of theological significance primarily because there is a moment of miraculous exception, in which knowledge is founded and the sovereign is the one who firstly found the knowledge, and then controls the dissemination of this knowledge and its operations. In a concise metaphor, Derrida even draws the parallel of the telos of deconstruction in itself, that it is necessary in its ability to deconstruct the literal scaffolding of the death penalty and its executions themselves. The next point which Derrida gracefully moves onto, is the linkage between what he calls ‘literature and death’ which specifically refers to the works of literature that are produced about and concerning death, but also how literature for Derrida constitutes a direct European ‘contestation of the death penalty’. For Derrida then, the pen and the scaffold are at odds with one another, in that literature or the ‘right’ to literature constitutes a freedom of public assembly that not only is against the barbarism of the death penalty but that literature in this way is against death, and the right to death that any supposed historical sovereign possesses. Derrida explains the dialectic between:
[…] “literature and death,” “literature and the right to death,” or the trail of countless literary or poetic works that put crime and punishment, and that punishment called the death penalty, to work or on stage. […] if the history of the general possibility, of the largest territory of the general conditions of possibility of epic, poetic, or belle-lettristic productions (not of literature in the strict and modern sense) supposes or goes hand in hand with the legitimacy or the legality of the death penalty, well then, on the contrary, the short, strict, and modern history of the institution named literature in Europe over the last three or four centuries is contemporary with and indissociable from a contestation of the death penalty, an abolitionist struggle that, to be sure, is uneven, heterogeneous, discontinuous, but irreversible and tending toward the worldwide as conjoined history, once again, of literature and rights, and of the right to literature.[ix]
Derrida moves onto the onto-theological dimension of the death penalty and its relation to the sovereign, through the concept of the exception. The primary thinker Derrida is referencing here is Carl Schmitt and the state of exception which foregoes the possibility of suspending the rule of law to save the ultimate state of law. This parallel is synonymous with Derrida’s reading of Kant discussed before in which Kant sees the death penalty as a means of sustaining the rationality of human beings by providing death in a rational, ordered logic without returning to natural or bestial savagery.
What is an exception? More than once, last year, we insisted on the character of absolute exception that pardon must maintain, a pardon worthy of the name, a pardon that is always unforeseeable and irreducible to statement as well as to contract, to determinative judgment, to the law, therefore, a pardon always outside the law, always heterogeneous to order, to norm, to rule, or to calculation, to the rule of calculation, to economic as well as juridical calculation. Every pardon worthy of that name, if there ever is any, must be exceptional, should be exceptional, that is in short the law of the pardon: it must be lawless and exceptional, above the laws or outside the laws. The question then remains: what is an exception? Can one pose this question? Is there an essence of exception, an adequate concept of this supposed essence? One may have one’s doubts, and yet we commonly use this word, as if it had an assured semantic unity. We regularly act as if we know what an exception is or, likewise, what an exception is not, as if we had a valid criterion with which to identify an exception or the exceptionality of an exception, the rule, in short, of the exception, the rule for discerning between the exceptional <and> the non- exceptional — which seems, however, absurd or a contradiction in terms. And yet, people commonly speak of the exception, the exception to the rule, the exception that confirms the rule; there is even a law or laws of exception, exceptional tribunals, and so forth.[x]
For Derrida, the exception represents a form of messianic moment that is invisible and unpredictable. The law as well as the exception following Benjamin and the onto-theological view of the founding of sovereignty and violence are a momentality which is heterogeneous to itself and unforeseeable. Derrida deconstructs using questions about the essence of an exception and to what extent there is an exception of exceptionality, if there is a rule to the exception, how can we then distinguish between the exception and a non-exception? Derrida argues that the common intuition is that the exception is an exception to the rule, so it appears with the Schmittian dynamic of the state of exception, and furthermore developed in Agamben’s homo sacer, that the state of exception is itself a contradiction, which in its essence actually permits its existentiality, insomuch as a momentality is only a momentality distinguished from eternity as a diffraction within eternity itself and not without. Similarly, this paradox of the exception also resembles the contradiction of our democratic modernity and the impenitence of the death penalty within it, and to what extent can we work to undo these types of logic, as no exception to the rule, Derrida merely gestures but remains silent. As a bridge from the exception, Derrida then wishes to push into a Wittgensteinian sphere of the problem of the inexpressibility of pain as a form of leap of faith, such that suffering from cruelty is also a form of exception itself.
Our two questions then became: what is cruelty? And what is the exception? Does one have the right to ask the question, what is? with respect to them? With respect to them, which is to say, for us, with respect to that which links them here indissociably, irreversibly, namely, what we call the death penalty, the question, itself enigmatic, of the death penalty. To think the tie between cruelty and exception, one would have to set out from this exceptionally cruel thing that is the death penalty. Before even letting ourselves be pursued by this question, by the machinic and armed apparatus of these questions that descend on us even before we have asked them (What is and what does cruelty mean? What is and what does exception mean?), allow me on this date to mark precisely, and without convention, in what way they are questions of the millennium and questions of the century, questions of the historic passage at which we have arrived. […] But also because we are at a unique moment in this history, at a moment when, often while basing itself on an equivocal thinking of cruelty (the reference, on the one hand, to red blood and, on the other hand, to the radical malice of evil for evil’s sake, of the “making suffer just to make suffer,” which are two very distinct semantic features of what is called cruelty) […].[xi]
Thus, the death penalty is the exception to the utmost of cruelties in Derrida’s argument. Like Foucault’s shift from the ancient conceptions of the death penalty, Derrida also wishes to emphasize the relevance of these metaphysical debates on the present of communication technologies and the present struggles of abolition. This movement from the Ancients to our technologized present is already at work in Heidegger and through Foucault’s later work, in the ways that technologies are sustaining catastrophic logics of exception.
We are going to continue today — but differently, changing our references and rhythm a little — with what we began to elaborate last time by interweaving the two motifs or the two logics of cruelty on the one hand and sovereign exception on the other, all the while analyzing the current situation in the ongoing struggle for abolition, with the role of new media (Internet, etc.) and the strategy of texts on human rights, the right to life, and on the theological origins of the concepts of modern politics, notably of sovereignty (with reference to Schmitt). The history of law and the history of so- called communications technologies, the joint history of the juridical or judicial machine and of the informative or informational machine were and remain, then, the irreducible element of our questioning.[xii]
Derrida then links these questions of the exception, cruelty and the death penalty to how technologies inform and disseminate these modes of sovereignty. Additionally, Derrida argues for the abolition of the death penalty in analysing the economy of the death penalty, particularly in regards to the economics behind the penal system in the United states. In Volume II he elaborates and goes over previously established material but extends his analysis to the question of pain and concludes on the concept of blood in order to draw conclusions on his analysis of the death penalty to allegorize an abolitionism against seeing the red sight of blood.
When I declare, if I come to you and say, without declaiming, “I’m in pain [je souffre],” “I am suffering [je souffre]” in my soul or in my body, in particular when I murmur “I am suffering” in my psyche, without so- called physical distress, assuming this is possible, a purely psychical distress, well then, what is it I am saying to you in the same breath? Do you understand me? What do you understand? You hear what I am saying, of course, but do you understand me? Do you understand the meaning of these words “I am suffering”? Perhaps, then, I should clarify and sharpen the meaning of my question and change my vocabulary a little in order to make you understand where I’m going, in order to entrust you with my strategy when I declare without declaiming that “I am suffering.” It is certainly not in order to awaken your compassion, this you have surely understood, but, as a teacher, to lead you, pedagogically, to the question that I want you to hear [entendre]. If I tell you or if I think “I am suffering” in my soul and cruelly so, then it is because I have what is called peine [pain, penalty]. There it is, there’s the word: it has been let loose, and it remains loose. Je peine [I’m at pains] and j’ai de la peine [I’m in pain]; je suis peine [I’m pained]. What peine are we talking about? What does peine mean? This peine [pain, penalty], does it come from me or from the other, ultimately? What is its cause? And who is its cause? Does it ever come only from me, this so- called peine? Does it always come from the other, and from the outside? Or are things more convoluted, and precisely painful (penibles, peinlich), because of this? I pass from one language to another in order to problematize, in order to draw your attention to the semantic problem that opens up between the painful [pénible] of the peine and the penal [pénal] of the peine, between the painful of the pain and the painful of the penalty.[xiii]
In conclusion, we can read the two volumes as a death penalty for Derrida as assigned by Derrida himself. The two volumes should be understood within the context of Derrida’s later political phase as an investigation into the history of the death of penalty to critique the contemporary discourses of death penalty in the United States and worldwide. Furthermore, Derrida uses the concept of the death penalty in order to explore the state of exception, cruelty and sovereignty that the United States also has subsumed over the globalized world since its ascension to a superpower post World War Two. The impossibility of the Other to understand the pain of another is another way of Derrida attempting to voice the pain and injustice of the death penalty. The relation between the concept and blood is for Derrida in understanding how the blood of the death penalty can be conceived in order to advocate its abolitionism. Derrida in this sense, hopes to never see the red of blood return, only to disappear, but regrettably Derrida disappeared only three years after the last seminar only to return as a spectre of thought to haunt the history of philosophy, hopefully eternally, ever to return as a name that changed thought or how thinking thinks.
How to conceive, how to conceive of it, the relation between the concept and blood? How to conceive of blood? Can blood be conceived? And how might a concept bleed, how might it, this concept, lead to an effusion [epanchement] of blood? Whether it comes to concepts or blood, we are thus a long way from being done with the impermeable [l’etanche]. We are a long way, a very long way, from being done — will we ever be done? — staunching the flow [d’etancher]. No doubt you remember that this word, impermeable [etanche], the impermeable [l’etanche], retained us briefly in passing last time. What does staunching [étancher] mean? We were present at the scene of the hemorrhaging, if not the hemophilia, of the wound and the bleeding to be staunched, of the effusion of blood to be staunched (by draining, suturing, ligaturing, stricturing, closing the wound, binding). The scenography of hemography, the hemoscenography, seemed to us to demand a certain privilege, a certain prerogative, even if water and tears could also be seen figuring among the liquidities to be staunched. Among the liquid bodies produced or secreted by the body itself — water, tears, blood, to which one would have to add milk or sperm — we felt called upon by the death penalty to see red, to see the red of blood return or disappear.[xiv]
[i] Derrida Jacques (trans. Peggy Kamuf) (eds.) (Geoffrey Bennington, Marc Crepon, Thomas Dutoit), The Death Penalty, Volume I, The University of Chicago Press (Chicago, 2014), p. xiv.
[ii] Ibid., pp. xiv-xv.
[iii] Ibid., First Session, December 8, 1999, p.1.
[iv] Ibid., p.2.
[v] Ibid., p.5.
[vii] Ibid., p. 8.
[viii] Ibid., p. 23.
[ix] Ibid., First Session, December 8th, 1999, p. 30.
[x] Ibid., Second Session, December 15th, 1999, p. 69.
[xi] Ibid., Third Session, January 12th, 2000, p. 69.
[xii] Ibid., Fourth Session, January 19th, 2000, Right to Life, Right to Death, p. 69.
[xiii] Ibid., Volume II, Second Session, December 13th, 2000, p. 29.
[xiv] Ibid., Volume II, Ninth Session, March 21st, 2001, p. 214.