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

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

Reviewed by: Aaron Aquilina (Lancaster University)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reviewed by: Jack Robert Coopey (University of St Andrews)

 

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.

[vi]             Ibid.

[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.