In the past few decades, we witness a renaissance of Schmitt studies in the English-speaking world. The field of legal philosophy in the US shares a similar trend. A vast amount of manuscripts, journals or PhD dissertations published every year and engage Carl Schmitt’s thought in different ways. As a disputed figure like Schmitt, the reception of his doctrine widely varies in the spectrum between far left and far right. Among many controversies, one of them is about him joining the Nazi party in 1933 and the immanent relationship between his political decision and his legal thought. Through the careful examination and critical engagement with Schmitt’s works in different periods, William Scheuerman argues that the life-long belief of legal indeterminacy led Schmitt to join the Nazi party eventually (8).
This book is divided into three parts. In the first part, Scheuerman shows that Schmitt’s early writings on judicial issues, the decisionist approach of sovereignty, the critique of liberal parliamentarianism, as well as the concrete order doctrine of international law, these stages consistently shed light on the lack of legal determinacy. To re-establish the ground of determinacy, Schmitt demands homogeneity of ethnic community (21), with which, for Scheuerman, Nazi offers a plausible solution for the Weimar Republic. Hence, Schmitt’s legal philosophy inevitably drives him to the Nazi. The next part compares Schmitt with two contemporaries, namely Joseph Schumpeter and Friedrich Hayek. Following Between the Norm and the Exception, Scheuerman continues to shed light on the impact of Schmitt’s thought in the transatlantic world. In this book, he rather focuses on the influence of Schmitt’s legal theory in the post-war America. Comparatively, there are very few studies examine this period of intellectual history. Scheuerman substantially contributes to the intellectual history by revealing the theoretical relationship between these pivotal post-war scholars. In the last part, Scheuerman borrows Schmitt’s idea of political emergency and engages with the contemporary political and legal issue concerning global emergency in the era of terrorism. In this way, Scheuerman offers a timely reading of Schmitt and reveals the fundamental weakness and insights inherent in his legal political view.
As a work that is largely devoted to legal philosophy, not a political debate of sovereignty, Scheuerman comprehends Schmitt’s thoughts in the context of contemporary critique of liberal rule of law. In the American context, there are two inter-related statements that generalize the challenges of the rule of law. First, the expansion of state interventions to different fields of capitalist economy and social welfare brings the judges and administrators with a vast amount of power. Second, the proliferation of powerful constitutional courts, endowed with generous powers of judicial review over legislation, has arguably accelerated trends toward discretionary government. To put it in a nutshell, the overwhelmingly centralized power of executive and judicial power that accumulated over the past century culminated in the asymmetrical relationship between the branch of legislative and judicial. The latter could now outweigh the power of the former by means of large numbers of judicial reviews and the obscurity of legal interpretations. The democracy and the rule of law are under severe threat from within. This current crisis of the rule of law is, for Scheuerman, best depicted by Schmitt’s legal diagnosis. Despite the flawed political solution Schmitt offered, the accurate analysis against liberal parliamentarianism is worthy of scrutiny.
In the first part, Scheuerman studies carefully the works of Schmitt over his long academic lifespan. He realizes that the legal philosophy of Carl Schmitt was devoted largely to the critique of legal indeterminacy that happened in the liberal Weimar constitutional order. Eventually, this judgment results in consenting the Nazi’s reign and even the idea of Großraum in the realm of international law. Hence in Scheuerman’s claim, joining the Nazi is to a large extent consistent with Schmitt’s early legal and political thoughts. In the 1920s, for instance, Schmitt argued for the centrality of the ‘exception’ of law in the Political Theology. “In its very essence, all legal experience is permeated by indeterminacy, by the ever-changing dictates of the concrete exception.” (35) The sovereign that is endowed with ultimate power to decide the exception represents the ambiguity of the law. All laws are then normatively justified not by the abstract moral reasons, but the absolute decision of the sovereign in concrete circumstances.
This issue of legal indeterminacy that largely embodied in the liberal political and legal order is caused by the crisis of parliamentary democracy. The basic incompatibility between liberalism and democracy that posited by Schmitt seems to show the doomed failure of liberal parliamentarism in the age of mass democracy, given that only democracy could provide a substantial homogeneity between the rulers and the ruled. This homogeneity determines the legal meaning of all laws (50). Nevertheless, Scheuerman is aware that liberal parliamentarism does not necessarily lead to legal indeterminacy in Schmitt’s account. At least in the 19th century, the homogeneity was to a certain degree maintained by means of Besitz und Bildung (property and education) (47). In other words, before the age of mass democracy, the minority of the aristocrats who were qualified to engage deliberation and debate in the parliament would somehow realize the ideal of free discussion and promote social interest for all. Yet, mass democracy fundamentally changed the game that the parliament deteriorated to vales of endless interest-based claims that lead to nowhere. “The people itself cannot discuss…and it can only engage in acts of acclamation, voting, and saying yes or no to questions posed to it”, as Schmitt famously put in the Constitutional Theory. As a result, the discursive characteristic of the parliament in the age of mass democracy turns anti-political in terms of paralyzing the political order and provoking legal indeterminacy.
In Scheuerman’s original interpretation, this argument “depicts twentieth-century mass-based authoritarianism as a fulfillment of the democratic project.” (49) Thus, Nazi would be a plausible solution of legal indeterminacy for Schmitt. Hence, since 1933, Schmitt wrote a vale of article to affirm the Nazi quest of ethnic and racial homogeneity. Unlike many scholars who conceive 1933 as the watershed of Schmitt’s academic life that shifts from the stage of decisionism to the stage of concrete-order approach, Scheuerman rather sheds light on the theoretical consistencies of Schmitt’s legal thought before and after 1933. “Essential to Schmitt’s idiosyncratic quest to reconceive the possibility of legal determinacy is an open endorsement of dystopian National Socialist visions of a racially and ethnically homogeneous ‘folk community’.” (135) Hence, to a certain extend, the Nazi realized the idea of sovereign dictatorship that Schmitt suggested in the early 1920s. The quest of homogeneous racial community and the emphasis of executive power of the party “re-politicize” Weimar’s state government through the friend-enemy distinction and dissolve the problem of legal indeterminacy. Scheuerman critically comments Schmitt over-emphasize the importance of the political, which would romanticize the use of violence. Also, the legal predictability and regularity are almost impossible to attain by the branch of legislative in mass democracy. Consequently, dictatorship seems to be the natural result.
Furthermore, Scheuerman believes the framework of the legal indeterminacy is embodied in Schmitt’s discussion of international law as well. Similar to the critique of liberal parliamentarism, liberal international law fails to represent a uniform will of a homogeneous group of people. Hence, the boundless extension of the liberal international law deprives the legality of it, insomuch as the legality should be grounded on the identity between the ruled and the ruler. Scheuerman argues that, in order to criticize the liberal international law, Schmitt endorsed the experience of American imperialism to support the National Socialist imperialism in the 30s and 40s before the war (165). Schwab first proposed the similarity between Schmitt’s concept of Großraum and Hitler’s concept of Lebensraum. Unlike the original international law that posits a groundless, anti-political notion of universality, imperial rule constitutes Großraum that is a grand political entity encountering others. In contrast to the globality of liberal international law, Großraum, illustrated by the US imperialism, has a hegemonic power to form the relations of domination. In the case of US, for instance, the nonintervention treaty between the US and the Latin American is made for the sake of protecting American property, though the US constantly used the exceptional clauses for various political purposes.
Scheuerman doubts if Schmitt could justify the German’s imperial expansion on the basis of the US imperialism. “In Schmitt’s legal theory, international law is systematically reduced to a direct and unmediated plaything of Nazi Realpolitik.” (190) Regardless of any traditional virtue of international law, Schmitt’s idea of Großraum is merely a veil for racial imperialism, as Scheuerman condemns. Accordingly, Schmitt fails to provide any alternative concept of international law to replace the liberal one.
The next part is to establish to linkage between the thought of Schmitt and two renowned American thinkers that are also Schmitt’s contemporaries, Schumpeter and Hayek. This contextual reading is inspiring and original, given that the majority of scholars shed light only on the Continental impact of Schmitt’s thought, such as the critical reception of Schmitt in the Frankfurt School or the Post-structuralism. On the other side of the transatlantic world, the influence of Carl Schmitt is largely ignored until the translation projects of George Schwab. By engaging with these thinkers, Scheuerman believes his studies could fill in this blank of intellectual history about the reception of Schmitt in the post-war American academia.
Concerning Schumpeter, his classic work Capitalism, Socialism and Democracy is for Scheuerman a response to Schmitt’s diagnosis of the crisis of liberal parliamentarism (217). Alike Schmitt, Schumpeter acknowledged Max Weber’s argument that modernization is the process of rationalism in which instrumental rationality, mechanization and bureaucratization dominate the modern logic of the world. The source of legitimacy, thus, is changed from charismatic leaders to rational legal authorities. What he disagreed with Weber is the annihilation of the heroic element in the discourse of iron cage. Schumpeter sheds light on the conception of the capitalist entrepreneur. Regarding the entrepreneurship, it allows the capitalist to be a heroic figure that pursue economic innovations and introduce new forms of economic activity to reform the current commercial routines. As a will to conquer, it appeals to the consumers. The boost of consumerism is a positive reinforcement from the market that manifests its support. His emphasis of will and heroic figure is akin to Schmitt’s notion of sovereignty.
More importantly, for Schumpeter, the rise of mass democracy, in the 20th century undermined the parliamentary democracy. In an essay, “Socialist Possibilities for Today” (1920), Schumpeter argued that liberal parliamentarism was genuinely functioned in the past due to the limit participation of the poor and working classes. The elites or the representatives that worked in the parliament – either from the bourgeoisie, the aristocracy or the state bureaucracy- they shared a similar view of social interests. This is the only way that “government by discussion” could work (227). This analysis clearly echoed with Schmitt’s diagnosis of the crisis of parliamentarism in the early 1920s. Through the archival study, Scheuerman finds out that in this period, Schumpeter did exchange his view with Schmitt on this topic. He even encouraged Schmitt to work on his famous writing, Concept of the Political, and had a high opinion of it. In the meantime, Schmitt quoted occasionally Schumpeter’s claims about imperialism in his works. For Scheuerman, their disagreement on the solution of the crisis of parliamentarism is clear but not too far. While Schumpeter endorsed liberal elitism; Schmitt rather opt for a mass-based authoritarian plebiscitarianism. To put it in a nutshell, for both of them, homogeneity that dissolved the problem of legal indeterminacy is the prerequisite of a functional parliamentary democracy. Mass democracy leads only to a dead end.
Apart from Schumpeter, Scheuerman also examine the intellectual inheritance between Schmitt and Hayek. The critique of the modern interventionist state by Schmitt in the 1920s and 30s had a great impact on Hayek, which resulted in his magnum opus, The Road to Serfdom (1944). Hayek posited a dichotomy between general law and individual commands that the former should not refer to “the wants and needs of particular people”. It determines his understanding of the rule of law. To put it in another way, the society and the state should be clearly separated. The former is diversified and heterogeneous while the latter is not. The interventionist state they witnessed in the first half of the 20th century was, as Hayek adopted Schmitt’s thought, the phenomenon of the total state. It is different from the neutral state that liberal thinkers endorsed in the 19th century, insomuch as the state and society were now fused with each other in the age of mass democracy (254). It resulted in the establishment of welfare state and lawmaking for the sake of a particular group of people. It is not hard to find the affinity between Hayek and Schmitt’s critique of interventionist development that contributes to the decay of liberal parliamentarism. In fact, as late as 1976, when Hayek wrote a new Preface to The Road to Serfdom, he still admitted he was not free from the “interventionist superstition” and this tone of anti-welfare state polemics was indebted to Schmitt’s decisionist approach (256). Despite several differences between Schmitt and Hayek in terms of the endorsement of the pluralist party state as well as the epistemological skepticism that the rule of law is grounded on, Scheuerman reveals the uncanny intimacy between their thought. For him, it could somehow explain the marriage between authoritarian plebiscitary and neoliberal capitalism in the 20th century, particularly the myth of Chinese capitalism.
In the last part, Schmitt’s legal and political thoughts are engaged with the contemporary political issues. In particular, the renaissance of the Schmitt studies in America is caused by the warfare in the name of anti-terrorism. When we take the global scale of the state of emergency into account, the explanatory power of Schmitt’s theory seems to outweigh the mainstream liberal political thought or legal thought. Scheuerman endeavors to scrutinize the relevance of Schmitt’s view and see if his understanding and ideas could shed some new lights to our current plights. The white house gradually centralized its power in the past century. After the cold war, the US government has a new way to strengthen its power-counter-terrorism. The terrorist attack in 2001 marked a watershed of US history in the sense that the USA Patriot Act was passed spontaneously. The bill endowed the executive government with unprecedented great power to fight the enemies by all costs, including regularization of emergency authority, such as a suspension of human rights of suspects during anti-terrorist interrogation.
Apparently, in Schmitt’s doctrine of sovereignty, the emergency power fundamentally constitutes the idea of sovereignty. “The sovereign is he who decides on the exception”, he eloquently wrote at the beginning of Political Theology. Provided that the emergency power is triggered in face of crisis, Schmitt’s notion of sovereignty argued for the “unavoidability and ubiquity of dire crisis” and it leads to his fundamental belief of legal skepticism (269). The latter is comparatively far-reaching in the field of legal theory. Scheuerman is not going to challenge these conventional views of Schmitt. Rather, his writing shows that Schmitt’s views about emergency power originated in his early academic writings and he maintained these thoughts for several decades. In this case, Schmitt’s intimacy with National Socialism before and during the WWII is closely related to his own intellectual reflection of sovereignty.
More importantly, many accept Schmitt’s idea that authoritarian rule and even inhumane measures maybe necessary for some exceptional circumstance lest the state would collapse in the crisis, even though the debate concerning counter-terrorism seldom embraces Schmitt’s theory (292). Hence, Scheuerman finds it essential to revisit Schmitt’s idea of international politics critically and presents different ways to engage with it. Schmitt’s emphasis of crisis in the notion of sovereignty denotes that “crisis management would constitute a paramount activity for contemporary government.” (289) To encounter the unpredictable crisis ahead, Schmitt inevitably favors the centralized power of the unified executive government, which would at least potentially undermine the rule of law. Moreover, in the light that the law fails to anticipate all sorts of emergent circumstances, the sovereign power of the executive branch of government should have the absolute power and limit not by the ‘situational laws’. In other words, the sovereign power must be lawless, for the sake of dealing with unprecedented crisis and saving the normalcy of legal order. For
Scheuerman, the extremely skeptical view of norms of Schmitt, which demands the laws to be able to predict all sorts of circumstance, is problematic. More precisely speaking, it is assaulting a straw man. To endorse Andrew Arato’s claim, there is a spectrum between a purely formalistic legal order and the lawless, absolute sovereign power. A reasonable degree of legal constraint by means of a set of constitutional procedure should be plausible to contain the emergency power of the government (291) and make it consistent with the rule of law.
Scheuerman’s interpretation of Schmitt is well grounded, systemic and timely. His historical configuration contributes both to the Schmitt studies as well as the studies on intellectual history in America. Unlike a mere historical inquiry, Scheuerman endeavors to engage Schmitt with the contemporary debate in the field of legal theory, in order to find out how Schmitt’s legal thought would help articulate the legal problems we have, aka legal indeterminacy in the age of mass democracy. Yet, there are a few questions that this brilliant work should have addressed.
To begin with, Scheuerman strongly believes that there is a strong affinity between Schmitt’s theoretical reflection and his political decision of joining the Nazi party in 1933. Hence, he reconstructs a coherent theoretical view of Schmitt on legal indeterminacy by widely examining his works from the 1910s to the post-war period. It is, however, a bit surprise to find that in this book, Scheuerman seldom pays attention to the counter-side of the debate. Since George Schwab introduced Schmitt to the American intellectual circle by a series of English translation in the 1980s, a decade long debate emerged concerning whether Schmitt’s alliance with Nazi is motivated by his legal and political thought or not. American scholars like George Schwab and Joseph Bendersky strongly defended the ‘early Schmitt’ that Schmitt showed no sign of anti-Semitism or the empathy of National Socialism before 1933. On the contrary, Carl Schmitt was once a Kantian and then a conservative Catholic who devoted to be the guardian of the republican constitution. For the leftist side of interpretation, Schmitt’s legal and political thought before 1933 is far from legal Fascism. In contrast, he defended the newly born republican state of Weimar against the threat of populist movements and the formalistic positivism by developing a cutting edge doctrine of popular sovereignty. Scheuerman was apparently aware of their arguments and his article written in 1993 was an attempt to respond to these critiques. However, his response is far from satisfactory. He does not consider elaborating his counterarguments in his latest work, which, to a certain degree, undermines the validity of his approach.
The defense against the Fascist reading of Schmitt before 1933 is mainly twofold: historical and theoretical. Historically speaking, the anti-Semitic charge of Schmitt is questionable in a few ways. Many of Schmitt’s friends were Jews, like Leo Strauss, Walter Benjamin, Jacob Taubes, Franz Neumann, Otto Kirchheimer, and Waldemar Gurian. When he moved to Berlin to teach in 1927, the school he chose was Handelshochschulen, a new established school that had a reputation of being an institution with many Jews. He published nothing openly against the Jews before 1933. Most importantly, according to Gopal Balakrishnan, the honeymoon between Schmitt and the Nazi party is much shorter than he anticipated. Schutzstaffel commenced to investigate Schmitt’s opportunistic tendency towards anti-Semitism. It didn’t result in a catastrophic retribution by SS is thanks to the protection from Goering. In a letter to the editorial board of the SS paper, Goering urged the SS to stop further attacks on Schmitt.
With regard to the theoretically concern, Schmitt’s concept of the political and the emphasis of the social homogeneity aim not at promoting the purity of nation, don’t mentions the exclusion of the Jews. In the Concept of the Political, for instance, he clearly stated that the friend/enemy distinction is dispensable from the personal hostility or profitability. In contrast, it is about an existential relationship between political entities. He specifically traced the idea of public enemy back to Plato’s The Republic in order to distant from the idea of private enemy. The eternal existence of the enemy also constitutes to Schmitt’s political metaphysics of pluriverse. In short, identity coexists as diversity. It could also echo Schmitt’s early Catholic view that the Catholic Church is a complexio oppositorum that contains a wide spectrum of contradictory schools and thoughts without dismantling the papacy. Unless the Jewish group is existentially threatened the unity and order of the absolute constitution, it is hard to find a legitimate reason to annihilate the Jews in early Schmitt’s doctrine of popular sovereignty.
Another question is posed with respect to Schmitt’s preference of authoritarian plebiscite. Scheuerman repeatedly argues that Schmitt’s critique of normativism and formalistic liberalism is to justify his preference on sovereign dictatorship or authoritarian plebiscite, which paves his way to the Nazi party (109; 165; 218). He, however, does not respond to the republican interpretation of Schmitt. For the counter-argument, some argue that Schmitt had no intention to reject liberal parliamentarism entirely. Nevertheless, encountering the vulnerable political order of Weimar republic, Schmitt was rather devoted to save democracy by separating it from liberalism. Liberalism that appeals to universalism and deliberation fails to embody the social homogeneity that democracy presumes at the first place. In light of solving the problem of legal indeterminacy, Schmitt revisited the tradition of pouvoir constituant and developed his own approach of popular sovereignty, aka decisionism. Andreas Kalyvas used three moments of democracy to conceive Schmitt’s democratic doctrine. Hence, the emphasis of level of dictatorship is to manifest the political will that forms the order of the political community, instead of replacing exception with normalcy. At the end, the exceptional measures of sovereign are employed to restore the order for the sake of returning the power back to the normal political and legal order. In the Constitutional Theory, Schmitt sheds much light on the two pillars of the constitution, identity and representation. After the constitutional order is formed, the representation of the public will then will be endowed with the political power to execute the will of the people. It defines the second level of constitution, the positive constitution. The appearance of the people in the public sphere is to assure the representational organ of the state will stay as close as the people’s will. If so, it is unclear how Schmitt would prefer authoritarianism or even totalitarianism before 1933 at the expense of the normal representational apparatus of parliament.
In short, Scheuerman delivers a fruitful, well-grounded study on Schmitt’s account of legal indeterminacy and its legal and political consequences. Also, his brilliant critique of the decay of liberal parliamentarism is influential among the American thinkers in the early 20th century. To a certain extend, Schmitt’s thought shaped the landscape of the post-war American academia, as well as the contemporary reaction of the controversial political issues, such as counter-terrorism and the global status of emergency. His political decision of joining the Nazi is undoubtedly unwise, but his diagnosis of the immanent problems of liberal parliamentarism is still full of insights. This remarkable work would surely contribute much to the Schmitt studies as much as the debate of legal theory.
Balakrishnan, Gopal. 2002. The Enemy: An Intellectual Portrait of Carl Schmitt. London: Verso.
Bendersky, Joseph. 2016. Carl Schmitt: Theorist for the Reich. New Jersey: Princeton University Press.
Kalyvas, Andreas. 1999-2000. “Carl Schmitt and the Three Moments of Democracy.” 21 Cardozo L. Rev. 1525.
Scheuerman, Bill. 1993. «The Fascism of Carl Schmitt: A Reply to George Schwab.» German Politics and Society 29: 104. ProQuest.
Schmitt, Carl. 2011. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: University of Chicago Press.
Schwab, George. 1994. “Contextualising Carl Schmitts concept of Grossraum.” History of European Ideas, 19: 1-3, 185-190. http://doi.org/10.1016/0191-6599(94)90213-5.
Schwab, George. 1989. The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt Between 1921 and 1936. Westport: Greenwood Press.
 George Schwab, “Contextualising Carl Schmitts concept of Grossraum,” History of European Ideas, 19 (1994):1-3, 185-190, DOI: 10.1016/0191-6599(94)90213-5.
 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago: University of Chicago Press, 2011), 5.
 George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt Between 1921 and 1936 (Westport: Greenwood Press, 1989).
 Joseph Bendersky, Carl Schmitt: Theorist for the Reich (New Jersey: Princeton University Press, 2016).
 Bill Scheuerman, «The Fascism of Carl Schmitt: A Reply to George Schwab,» German Politics and Society 29 (1993): 104, ProQuest.
 Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt, (London: Verso, 2002), 207.
 Andreas Kalyvas, “Carl Schmitt and the Three Moments of Democracy,” 21 Cardozo L. Rev. 1525 (1999-2000).
The scope of James Mensch’s new book is truly impressive. On the one hand, Selfhood and Appearing: The Intertwining does not shy away from the rather unfashionable task of proposing a systemic account of human existence. In a manner reminiscent of some of the most exciting works in the history of philosophy, Selfhood and Appearing intervenes in an array of philosophical, political, and religious debates, which, in turn, allow it to propose a unified model of human reality: from subjectivity, through science and politics, to the divine. On the other hand, Mensch’s engagement with wide-ranging and diverse sources relies on insights afforded by one tradition of philosophy in particular – phenomenology. It is on the basis of his close reading of various phenomenologists (perhaps most importantly, Patočka and Merleau-Ponty), that Mensch is able to develop an interpretative key capable of unlocking hidden possibilities of diverse theoretical debates. In other words, the ‘macroscopic’ account of human existence proposed in Selfhood and Appearing presupposes a ‘microscopic’ argument grounded in phenomenological literature.
One of the undeniable achievements of Mensch’s book, therefore, is that it clearly demonstrates the continuous importance of phenomenology, not only for questions which remain unsolved (or, at least, remain solved insufficiently) in other traditions and disciplines, but also for a more consistent understanding of our multifaceted existence – on Mensch’s reading, phenomenology is a force to be reckoned with.
In consequence, Selfhood and Appearing can be read in three ways (simultaneously): as a comprehensive analysis of the various levels of human reality; as an interpretative intervention in contemporary phenomenological studies; and, finally, as a love letter to phenomenology.
Selfhood and Appearing is divided into four parts: Part One examines the role of intertwining in subjective experiences; Part Two deals with intertwining and intersubjectivity; Part Three continues the analysis of the previous sections by exploring intertwining in the context of political violence; and Part Four focuses on intertwining and religion.
Since it is the notion of intertwining which allows Mensch to successfully navigate through diverse theoretical landscapes, in this review I will focus primarily on the role intertwining plays in the main argument of the book. As I hope to show, although extracted from the works of other philosophers, intertwining is a specifically ‘Menschean’ notion, which in Selfhood and Appearing is endowed with a double function: firstly, intertwining characterises human experience as a whole, and as such, it is the unifying thread which weaves together the various levels of human reality, which from a traditional perspective are in opposition to one another. Secondly, intertwining enables Mensch to re-interpret and bring together otherwise dispersed philosophical arguments, debates, and traditions; the concept of intertwining is formed on the basis of a phenomenological analysis, and because of that it can be found (for the most part implicitly) in any philosophy attentive to this fundamental structure of human experience.
I will conclude this review by alluding to a tension between two effects of intertwining. Throughout Selfhood and Appearing, intertwining reveals human existence to be chiefly harmonious: the traditionally opposing terms—for instance, self and other, self and the world, the world and divinity—are shown to be intertwined and thus essentially compatible with one another. Likewise, the history of philosophy appears to be interwoven and unified due to a shared attentiveness to the concept of intertwining. In short, the main effect of intertwining is a reconciliatory vision of existence and philosophy, in which antagonisms between divergent elements are dissolved in a more fundamental interlacing. However, occasionally, Mensch allows us to glimpse a different effect of his concept: some phenomena and philosophies are excluded from the reconciliatory work of intertwining. In such cases, a phenomenon or a philosophy is so radically antagonistic that it becomes separated from the otherwise all-encompassing intertwining. As a result, Selfhood and Appearing—in addition to demonstrating the possibility of a harmonious existence and theory—invites us to think the irreducibility of antagonisms in both experience and philosophy, and with it, to conceptualise notions like separation and exclusion opposed to, yet effected by Mensch’s intertwining.
The definition of the concept of intertwining finds its first expression in the Introduction. In the section devoted to Merleau-Ponty, Mensch discusses our natural belief that my perception of external objects is an internal process which takes place “in me,” and that I also count myself as one of the external objects, out there in the world. Our natural belief, therefore, is that ‘I am in the world and the world is in me’ – the “natural” person:
‘lives in a paradox, undisturbed by it. He thinks both that he grasps external objects and their apprehension is within him. The basic tenet of such belief is that our relation to world is that of a double being-in. We are inside that which is in us.’
The paradigmatic example of intertwining, therefore, is our double position as perceivers of objects and—by virtue of our embodiment—as objects to be perceived. These two perspectives, according to Mensch, reveal something ‘more than the fact that our embodiment places us in the world, which we internalize through perception. At issue here is the appearing of the world.’ In other words, the fact that my perception of objects is “in me,” while I am “out there” with the objects, is not an inconsequential paradox, which philosophers may try to resolve in their free time. On the contrary, the intertwining between the “inside” and the “outside” found in our embodied perception, is a condition of possibility for any manifestation: I reveal myself and the world which I inhabit thanks to the “double being-in” of the world in me and of me in the world as embodied. Intertwining, therefore, has a transcendental function of making possible the appearing of subjects and objects.
Mensch extends his definition of intertwining in the next section devoted to Patočka. Intertwining, and the manifestation it makes possible, should not be understood as an essentially subjectivity category; nor can it be reduced simply to an objective structure:
‘Appearing as such, however, can be derived neither from consciousness nor the realities that appear to it. Considered in itself, it is a “world-structure”… Prior to subjects and objects, it informs both.’
Whereas Merleau-Ponty enables Mensch to posit intertwining as a transcendental condition of appearance, Patočka helps Mensch to argue that intertwining cannot be categorised as simply subjective or objective. Since intertwining makes possible disclosure as such, it is the structure which underlies the manifestation of both subjectivity and objectivity.
Importantly, Patočka contributes a further insight: intertwining is not a static function of appearance. Rather, ‘appearing… is to be understood in terms of motion.’
‘As Patočka expresses this, “movement… first makes this or that being apparent, causes it to manifest itself in its own original manner.” The moving entity does this through affecting what surrounds it… Without this ability through motion to affect what surrounds it, an entity cannot distinguish itself from its environment. But without this, it has no presence either to inanimate or anime beings. In living sentient creatures, this manifests itself as experience. It forms the subjective component of appearing. The objective component is simply the physical presence that the entity has through its action. It is, for example, the depression on the pillow left by an object pressing on it.’
The engagement with Merleau-Ponty and Patočka in the Introduction provides the basic definition of intertwining: it is a transcendental condition of appearance, neither subjective nor objective, which enables manifestation through motion. In the remainder of the book, Mensch demonstrates the way in which intertwining is effective in various aspects of our existence. It is precisely here that the concept becomes ‘Menschean’: intertwining enables Mensch to offer a coherent re-interpretation of the writings of figures in the history of philosophy; these re-interpretations, in turn, allow him to propose a unified account of human existence in its various guises.
In the first part of the book, in addition to Merleau-Ponty, Patočka and other phenomenologists, Mensch engages at length with Aristotle, who helps him to conceptualise space and time in terms of intertwining. The discussion of Aristotle is exemplary since it illustrates well the trajectory of Mensch’s argument as a whole. Selfhood and Appearing takes up notions theorised by other thinkers and reframes them by demonstrating their reliance on intertwining. Aristotle offers resources which enable Mensch to identify the effects of intertwining on the appearance of subjects and objects in space and time.
According to Mensch, the notion of space described by Aristotle, is a space produced by the motion of entities. The particular movement of a subject, for instance, determines its “first unmoved boundary” and with it, the space it occupies and in which it moves. Furthermore, as Mensch points out, these Aristotelian conclusions can be applied beyond a simple physical presence – space can be constituted by a practical motion of a teacher who teaches, or a builder who builds. Importantly, on Mensch’s reading, space depends on embodied entities which produce it by their motion.  Furthermore, since motion is a structural feature of intertwining, it is, in fact, the latter which, indirectly, gives rise to space.
Likewise time can no longer be thought of as independent from the movements of embodied entities, and thus from intertwining. The constant presence of the body to itself (e.g. my continuous embodiment) constitutes the now: ‘This present “corresponds” to the body by virtue of being part of the body’s continuous self-manifestation.’ The flow of time, by contrast, ‘corresponds to the body’s movement insofar as it manifests the body’s shifting relation to its environment.’  Time, therefore, depends on the permanent yet moving body, producing a temporality responsive to the entity’s motion: the flow of time is effected by the body’s movement, whereas the persistence of the present (the fact that I am always in the now) results from the uninterrupted presence of the body to itself.
Both space and time, therefore, are the effects of embodied entities and their motions; as such, space and time presuppose intertwining as the structure which makes possible the appearance of embodied entities in motion.
A similar argument can be found in Part Two of Selfhood and Appearing. In this section of the book, Mensch re-examines Hannah Arendt’s discussion of public space, which, he says, ‘should be understood in terms of our embodied motion in the world… To think public space in terms of this embodiment is to understand how the intertwining of self and world shapes the public space we share.’ Interestingly, in his engagement with Arendt, Mensch makes more explicit the distinction between intertwining as a fundamental structure of appearance, and intertwining as an interpretative key useful for the re-reading of other philosophers. When Mensch takes up Arendt’s categories of labour, work, and action, in order to demonstrate their intertwining, he uses the latter primarily as a concept enabling him to bring together the otherwise separate aspects of human activity theorised by Arendt. Here, intertwining designates a conceptual structure in which category A manifests within itself external categories B and C, while itself remaining one of the external categories. ‘To claim in this context that labor, work, and action are intertwined is to claim that they achieve their presence through embodying one another. Doing so, they serve as a place of disclosure for each other’.
Naturally, the demonstration of the intertwining of different aspects of human activity – that is to say, intertwining as a theoretical tool – presupposes the intertwining of embodied entities in motion (i.e., the intertwining as the transcendental structure of appearance). The intertwined manifestation of labour, work, and action, ‘occurs in conjunction with our disclosure of the world… The public space we share is, in fact, the result of both forms of disclosure.’
Nevertheless, it is important to distinguish between intertwining as a conceptual tool and intertwining as the condition of experience – whereas the former is derived from the latter, the two notions are endowed with different functions. Intertwining as a transcendental structure allows for the manifestation of entities; intertwining as an interpretative key enables Mensch to re-read the writings of other philosophers.
This distinction between the two functions of intertwining was already operative in Mensch’s interpretation of Aristotle, however, it becomes more explicit when Mensch first presents Arendt’s categories as intertwined, and only then links them with intertwining as a transcendental condition of appearance. Of course, Mensch could not re-interpret Arendt without identifying intertwining as a fundamental structure of experience; however, the fact that he is then able to free intertwining from its original context in order to apply it to the discussion of other philosophers, makes intertwining an effective (and genuinely interesting) theoretical notion.
The efficacy of the concept of intertwining is explored further in Part Four of the book. There, intertwining is used to examine questions related to religious life, and, specifically, to unravel a paradox which, according to Mensch, lies at the heart of the Abrahamic religions:
‘Thus, on the one hand, we have the binding insistence on justice, on the punishment of the offender, on the payment of the transgressor’s debts to God and society. On the other hand, we have an equally insistent emphasis on the unbinding of mercy, on the forgiveness of all debts. How can these two perspectives be combined? How are we to grasp this binding that is also an unbinding?’
The problem which motivates Part Four echoes the paradox of our natural belief in Part One (that the world is both “in us” and we are “out there in the world”) with which Mensch introduces intertwining as transcendental structure of appearance. However, the respective questions of Part One and Part Four remain distinct – what interests Mensch towards the end of this book is not, for the most part, the intertwining between embodied perceiver and the world; rather, his focus turns to a theoretical problem inherent in the biblical concept of religion, which can be solved by means of intertwining.
Importantly, intertwining as the solution to the paradox of religion is only analogous to the intertwining found at the bottom of appearance: ‘For Merleau-Ponty, the intertwining concerns our relation to the world… The religious analogue of this intertwining places God and the world inside each other.’ In other words, in part four intertwining becomes a device used to solve theoretical problems, with only an analogical relationship to the intertwining of experience of oneself in the world.
Of course, this is not say that the two notions of intertwining—as a theoretical tool and as a foundational experience—are separate. On the contrary, the latter continues to inform the former. However, the fact that, despite the change of conceptuality (from phenomenological terms to religious vocabulary), intertwining remains effective, attests to the theoretical efficacy of intertwining outside of a strictly phenomenological analysis of experience. This flexibility of the concept of intertwining enables Mensch to solve the “religious paradox” of part four in a manner reminiscent of the book’s previous arguments – that is to say, by arguing for the religious structure of intertwining: ‘…in the Mosaic tradition, religious selfhood is constituted through intertwining of binding and unbinding. This selfhood is such that the binding and unbinding provide for each other a place of disclosure.’
I have attempted to decouple the two functions of intertwining (as a theoretical tool and as a fundamental structure of appearing) because it strikes me that they are able to generate distinct effects, which are in tension with one another.
This tension is most apparent in Part Three, where Mensch discusses the relationship between violence and politics. There, Mensch engages with the thoughts of Schmitt and Heidegger. Mensch does not attempt to hide his intentions – in contrast to Merleau-Ponty, Patočka, Aristotle, and even Arendt, all of whom contributed something positive to the argument of Selfhood and Appearing, the two Nazi-sympathisers are shown to be wrong, and only wrong (and rightly so, I should add).
From a perspective of the history of phenomenology, one of the ingenious aspects of Mensch’s reading of Heidegger is that he finds him “in” Schmitt. As a result he is able to disclose the Heideggerian basis of Schmitt’s theory of sovereignty, which invalidates Schmitt and Heidegger as appropriated by Schmitt. This way, Mensch is able to please both the anti-Heideggerian readers (who will be satisfied with the demonstration of the explicit relationship between Heidegger and Schmitt), and the pro-Heideggerian readers (who will point out that the relationship between Heidegger and Schmitt is possible on the basis of partial convergence of their respective thoughts). Take, for instance, these two passages, which follow one another in the text:
‘… we can say that Schmitt’s use of the “extreme situation” to define our collective identity is based on a specific notion of human existence, one that he shares with Heidegger… Given the essential lack of content of our existence, seriousness means taking responsibility or the decisions that shape it and, hence, affirming our identity through such responsibility. For Heidegger and Schmitt, what forces us to do this is the enemy that confronts us. For both, then seriousness involves a readiness for conflict, a need to seek out the enemy.’
‘Heidegger takes our confrontation with death as primarily individual. For Schmitt, by contrast, both death and the enemy that threatens it are thought in terms of the collective.
Mensch then skillfully demonstrates how Schmitt’s understanding of the collective (that is to say, the point at which he differs from Heidegger) helps the jurist to elaborate his concept of sovereignty – thus creating a distance between Heideggerian ontology and Schmitt’s theory of the sovereign.
Almost immediately afterwards, Mensch returns to the similarities between Schmitt and Heidegger – the decision of Schmitt’s sovereign is ungrounded, and the ‘nothingness that is its source is, in fact, the political equivalent of the nothingness of death.’ Nevertheless, despite the equivalence of their concepts, the reader is reminded that is Schmitt who contributes the more explicitly problematic dimension to the discussion of decisionism.
The most interesting aspect of the discussion of Heidegger and Schmitt, in my opinion, is their uneasy position in relation to the concept of intertwining.
Schmitt’s (Heidegger-inspired) sovereign escapes the intertwining which constitutes legitimate politics, and in which the subject is free to act in the world while being limited by its norms and values. The sovereign does act in the world, however, he or she is not constrained by the world’s values. The sovereign constitutes a “liminal” figure: ‘this liminality signifies that the sovereign has complete authority with regard to the legal system, being himself unconstrained by it.’
Interestingly, the concept of liminality (embodied by the figure of the sovereign) is used by Mensch to identify phenomena which sit uncomfortably on the border of intertwining and its beyond. These phenomena are dangerous, because they act in the world from the position external to the world’s norms. This is why liminality should be eliminated by ‘the inclusion of the [liminal] agents into the world in which they act. It can only come through the reestablishment of the intertwining that joins the self and its Others in a world of shared senses.’
Intertwining, therefore, functions as a way to reintegrate liminal figures – such as the sovereign – back into the shared world of values and norms, and thus to eliminate the threat of senseless violence which liminality makes possible.
However, despite the call for the inclusion of liminal figures, the works of Schmitt (and to a lesser extent, Heidegger) are excluded from Mensch’s theoretical enterprise. After finishing Part Three of Selfhood and Appearing, the reader has no doubt that there is no place for Schmitt (and Schmitt’s Heidegger) amongst the thinkers of intertwining. This is a result which speaks favourably about Mensch’s project as a whole – we can safely assume that Mensch does not want to have Nazi-sympathisers on his side. However, this exclusion of Schmitt seems to be at odds with the inclusive work of intertwining attested to by Mensch in his demand for the reintegration of liminal figures.
My hypothesis is that the tension between, on the one hand, the exclusion of Schmitt, and, on the other hand, the inclusion of liminal figures, can be explained by the distinction between the two types of intertwining identified above.
As a transcendental condition of manifestation, intertwining aims to reconcile oppositional terms (e.g. subjectivity and objectivity, or the world and divnity). As a theoretical tool, however, intertwining can be used to separate and exclude philosophies which are irreconcilable with the ultimately harmonising and inclusive project of Selfhood and Appearing.
This suggests, in turn, that at least on the theoretical level antagonism is irreducible: philosophy attentive to intertwining cannot be reconciled with philosophies which pay no attention to this fundamental structure.
It remains an open question, however, if a similar antagonism can be located on the level of experience: is there anything which intertwining as a transcendental condition of manifestation is incompatible with?
Mensch’s discussion of liminality hints on such a possibility. The liminal figure is both within the structure of intertwining, and external to it. Furthermore, as the possibility of sovereign violence demonstrates, this sphere external to intertwining is an effective and dangerous dimension, with real consequences for the intertwined existence. Thus, ultimately, we might find an irreducible antagonism also in experience – the external dimension attested to by liminal figures is fundamentally opposed to the harmonising structure of intertwining and the manifestation it produces.
If we were to continue our hypothetical musings, we can ask: how is this dangerous dimension external to intertwining constituted?
Perhaps it is produced by intertwining itself, which separates and excludes elements which cannot be integrated in its structure. Intertwining is defined as a transcendental condition of appearance, neither subjective nor objective, which enables manifestation through motion. Does this definition not imply the separation and exclusion of elements which are static, purely subjective or purely objective, and as such invisible from the perspective of intertwining? Would these non-integrated elements, in turn, constitute the hostile dimension external to intertwining, threatening the harmonising work of its “enemy”?
In addition to all its other achievements, the fact that Selfhood and Appearing invites us to pose such questions, and to consider the irreducible antagonism between intertwining and the dimension external to it, shows clearly that Mensch’s new book truly has an impressive scope.
 J. Mensch, Selfhood and Appearing: The Intertwining, Brill 2018, p. 16
 Ibid., p. 16
 Ibid., p.19
 Ibid., p. 20
 Ibid., pp. 87-88
 Ibid., p. 89
 Ibid., p. 168
 Ibid., p. 171
 Ibid., p, 283
 Ibid., p. 288
 Ibid., p. 288
 Ibid., p. 265
 Ibid., p. 268
 Ibid., p. 253
 Ibid., p. 250
 Ibid., p. 254
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.