Perspectives in Continental Philosophy
Fordham University Press
Reviewed by: Samuel Lee (The New School for Social Research)
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).
Reviewed by: Mees van Hulzen (Leipzig University)
Sometimes we come across a book that makes us feel uneasy, causes a degree of uncertainty and poses more questions than it answers. This does not have to be a bad thing, and it certainly is not in the case of Michael Marder’s latest book: Political Categories, with the telling subtitle: Thinking Beyond Concepts. In it he unfolds an ambitious project of developing a theory of political categories, based on a phenomenological reading of Aristotle’s Categories and Kant’s Critique of Pure Reason. Not only does Marder wants to demonstrate how these classical categories can be translated to political philosophy, but he also aims to show that the constitution of the categories themselves is already political, as he elaborates in the two appendixes the book has. The boldness of this undertaking makes it an exciting book, filled with unexpected turns, and rich with various philosophical insights; only, one cannot help to feel a little lost at the end of it. In what follows I will give a commented summary of the book and a brief critical reflection at the end.
Marder has over the last years, in a rapid pace, published a great number of books. Not least of all on plants. Marder is probably one of the few experts on the planet when it comes to philosophy and plants. Most well-known is his book Plant-thinking: A Philosophy of Vegetal Life (2013). Clearly his interest in the being of plants resonates in his other philosophical work where he writes about phenomenology, ecology and politics, such as in his book on Heidegger: Heidegger: Phenomenology, Ecology and Politics (2017). In it he tries to demonstrate how some of Heidegger’s major ideas support an ecological and leftist politics; a conclusion that Heidegger infamously failed to draw. Another noteworthy book is that on Carl Schmitt’s idea of the political: Groundless Existence: The Political Ontology of Carl Schmitt (2010). Many of the themes Marder discusses in his previous work reoccur in Political Categories. However, it is not to be thought of as a synthesis of his previous work, but rather a continuation of Marder’s explorative thinking, devoted to the project of developing from a phenomenological methodology, a critical political theory, that is directed at the political things themselves (xi).
Marder begins chapter 1 of Political Categories by positioning himself in contrast to two extremes in the political landscape, who, according to him, both suffer from the same problem. The first extreme goes by many different names, such as ‘economicism’ (7), ‘neoliberalism’ (8), ‘progressivism’ (9) or ‘capitalism’ (1). The other extreme is that of ‘ultranationalism’ (98) or ‘reactionary modernism’ (7). Marder’s critique in the book is mainly directed at the former, partly because he holds the conviction that the latter is a consequence of the former. Hence, the predicate ‘reactionary’. The problem with both positions — that make up for the two evils that plague many societies today — is that they both represent a type of thinking that limits itself to one particular category, and reduces the whole of political reality to it. In the case of neoliberalism everything is reduced to that what is calculable and quantifiable. In the case of ultranationalism it is the exclusive and distorted application of the category of quality that poisons social relations by reducing social reality to different homogenous sorts.
By broadening the political categories, the theory of political categories provides, according to Marder, a solution to both extremes of the political spectrum. First of all, because the multiplicity of perspectives that the theory presents offers a better and more thorough understanding of political entities. Second, it would also lead to better politics, in so far as it would more adequately fit politics to the plurality of political reality (8). The idea that a theory of political categories can help to oppose neoliberalism and ultranationalism is promising, but how does Marder exactly substantiate this claim?
Key for understanding the theory of political categories is the Husserlian adage: ‘Zu den Sachen selbst!’ We should also in the case of political theory return to the things themselves, according to Marder, not merely by directing our attention to things that are political, but first of all by perceiving politics as a thing. Not only does politics revolves around a public thing (res publica) but the constitution of things in general is a public affair. (12). Things are not just simply there, but as Marder repeatedly phrases it: they ‘present’ themselves or ‘give’ themselves. He warns us not to think of things as objects. The thing does not stand in front of me as a complete alien entity, but rather I unfold myself in my perception of the thing: ‘The categories and self-consciousness do not lay siege of things, walling them behind freestanding conceptual structures. From the outset, they take the side of things, sometimes with such fanaticism that they do not longer recall who takes this side’ (15).
Categories are according to Marder crucial for the way in which a thing is interpreted by us. The role the categories play in our understanding of a thing should not be confused with classification. In classification a thing is ascribed certain fixed properties and is classified accordingly. Categories do not seek to do away with something but are directed at maintaining the borders of that which they categorize (21). They enable us to form judgments and help us to distinguish one from the other.
What does this have to do with politics? What makes the categories of quantity, relation, quality, substance etc. political? There is no political sphere for Marder per se, since he, on the one hand considers politics as a thing, and on the other hand thinks that the interpretation of things is political. However, for him this does not result in the meaningless expression: ‘everything is political’. Everything is only political in so far as everything is potentially political or ‘politicizable’ (24). That things are constantly politicized follows from the way in which Marder equates the ‘mobilization of the categories’ to politicization (22). ‘Political categories’ is in this sense a misnomer: there are no political categories but categories themselves are inherently political. They politicize the non-political by enabling the accusation of ‘this’ as ‘that’, without reducing the thing to one particular category. Categorization is not a static process, like classification, but rather it is the interplay of highlighting different modes of being of the thing that is given.
After having introduced the political dimension of his theory, Marder gives in chapter 2, on the basis of Aristotle’s table of categories, a first description of the political workings of various categories. Aristotle distinguishes 10 categories, Marder however limits his discussion to 6 of them: ousia (beingness), quantity, space, relation, positionality and quality. He distances his own phenomenological position from that of Aristotle, by siding with Husserl. For Aristotle the categories belong to the things themselves, they are always of something. However, from the perspective of phenomenology the categories are always to something, according to the axiom of intentionality. Marder’s phenomenological critique of Aristotle remains unfortunately only limited to a few comments.
The most significant paragraph of this chapter is the first one: ‘Ousia-beingness-presence’ which can be read as the blueprint of Marder’s project. In it he discusses the first category of Aristotle’s table of categories, that of ousia, beingness or substance (44). It is a special category and is different from the others, since in it the passage from the non-political to the political takes place. Marder describes the way in which a thing presents itself to us as the passage of ‘this’ singular being that presents itself ‘as that’. This passage he defines as the passage of the first to the second ousia. The undifferentiated singular being that presents itself as ‘this’ has to be interpreted ‘as that’, for example: this singular being presents itself to me as human. And it is in this passage from the first to the second ousia, that the other categories play a crucial role: ‘Other categories must be in place for us to make a hermeneutical leap bridging the divide between this and that, which is why, by itself, ousia eludes identification and is a category on the verge of the uncategorizable.’ (46). Because ousia is primary to interpretation, the possibility of various interpretations is inherent to it. The other categories are an actualization of the possibility to interpret this singular being in a particular way.
The passage from the first ousia to the second is primarily how Marder understands politics. This means that he primarily understands politics as politicization (122). But politicization can also be hindered or obstructed. He gives the example of someone who is denied interpretation as a human being based on her racial, ethnic, religious, sexual or gender identity (45).
Marder further argues that the passage from the first to the second ousia can help us to confront some of the most fundamental social problems of modernity. First of all, he argues that ousia holds the possibility of peace, in so far as it ensures the ‘equality of the incommensurables’, by which he means that no thing ‘is’ more than another thing, and also in the access they provide to political presence they are equal (51). Second, the category of ousia does not merely reveal the sameness between things, but in the transition from the first to second ousia also their differences. This corresponds to the idea that in this transition the gap between the singular to the universal is bridged, without reducing the one to the other. Something that is a necessary condition for the creation of political solidarity according to Marder (78).
The rest of the chapter consists of a discussion of other Aristotelian categories: how they help us to understand politics as a thing, how they complement each other, and how they become destructive when taken in isolation from each other. The tension between the category of quantity and quality is most noteworthy. In line with his general critique of the technocratic way in which neoliberalism reduces everything to quantifiable entities he points us to the inherent lack of meaning in the category of quantity. Like the category of ousia, the category of quantity does not have contraries (a square is for example not the contrary of a triangle, nor is 1 the contrary of 0), but whereas ousia, in the transition from the first to the second ousia, allows for differences, quantity remains on the level of a limitless sameness: unable to recognize real differences. This is why the reduction of political reality to the category of quantity proves to be most disastrous for politics. The focus on numbers in the census of representative democracies, for example, tends to neutralize and depoliticize the whole political spectrum to a form of ‘procedurally democratic bookkeeping’ (60).
The category of quality, in contrast to that of quantity, brings forward the differences within politics by asking: ‘what sort?’. The contrast with the category of quantity is that the category of quality reveals the differences of particular political orders and enables us to think of them as alternatives to each other. The quality, the sort, of one thing determines its limits in respect to the limits of others. This is why Marder emphasizes repeatedly that categories constitute the boundaries between things. The quality of a political order is reenacted and repeated in certain habits, such as democratic practices, but also the spatial embeddedness of a political order in a particular climate determines its quality. The reason why he probably wants to think of the spatiality of a political order as quality, is that it enables him to link it to his philosophy of ecology. However, it is also a dangerous move to take up the category of quality and spatial embeddedness within political theory, since it runs the risk of getting dangerously close the regressive parochial politics of ‘belonging to’ (82). Marder seeks to avoid this risk, by emphasizing that the categories form together one whole which forms a synthesis between the particular and the universal, as mentioned before in reference to the category of ousia. It is however questionable and in need of a more elaborate argument, if and in how far, the universality of being can form a counterbalance to nationalistic concepts of belonging.
The third chapter on Kant, undoubtedly presents the biggest challenge to the reader who cannot directly reproduce the ins and outs of Kant’s Critique of Pure Reason. However, it never becomes a real Kant exegesis, and the parts that deal with the details of the Kantian categories are clearly subordinate to Marder’s attempt of developing a theory of political categories. One might wonder why it is at all necessary for Marder to invoke the Kantian apparatus after having developed a first understanding of political categories on the basis of the Aristotelian framework. The reason for this can be found in the different orientations of both chapters. In the second chapter he discusses the Aristotelian categories in relation to politics as a thing. However, in the third chapter he redirects his attention from politics as a thing to the experience of politics, using thereby Kant’s framework of the categories. Where one might have the impression at the end of the second chapter that Marder fails to stay loyal to his phenomenological method, this is adequately reestablished when he shifts his focus to political experience.
The third chapter he begins with the dramatic statement: ‘We have forfeited, or perhaps never had access, to, the experience of politics’ (91). By this he does not mean that politics today takes place far removed from everyday life, but that we, in the first place, have lost the capacity for political experiences. The reason for this is that we have lost the form that provides the conditions for political experiences (92). Without form, the content of experiences, such as voting or resistance, becomes empty and meaningless. For Marder this is also the reason for the impossibility of the constitution of a political ‘we’ under the conditions of neoliberalism (97). This is one of the central claims of the book.
The way in which categories form the condition for political experience, should not be understood as taking up different categories at various occasions. Marder uses the Kantian conception of synthesis to explain the interplay between, and the mutual dependence of, various categories in experience. He uses the unity of the various categories and experience as an important normative benchmark: below the experiential threshold of the categories, things can no longer be interpreted, and all appear the same in their singularity. Above the experiential threshold we have the well-known problem of rigidity and abstract conceptualism (96 -97).
However, Kant does not hold all the answers Marder is looking for. The major problem of Kant’s epistemology for Marder is its hierarchical structure based on the divide between the transcendental and the empirical. Political categorial reason is according to Marder ‘transtranscendental’. He introduces this neologism to describe that political categories go beyond ‘the beyond’. They do this on the one hand by helping us to understand the political make-up of the categories (which is worked out in the two appendixes of the book), and on the other hand by going beyond the political themselves, like he shows in reference to the nonpolitical stage of first ousia. With the term transtranscendental he attempts to put Kant upside-down, denying the hierarchical order of the transcendental and the empirical. As exciting as his suggestions are for those who like to annul the subject-object divide, it is unlikely that it will convince devoted Kant scholars.
After having set up the theoretical framework in chapters 2 and 3, he puts it to full use in chapter 4, as the title of the chapter already indicates: ‘Categories at Work’. Here he discusses four political themes: state, revolution, power and sovereignty, thereby using and mixing up both the Aristotelian and the Kantian categories. In the case of the state for example he explains how people that view it merely from the perspective of its territorial boundaries, limit themselves to the Aristotelian category of quantity. This perspective is inherently imperialistic since the only way it can be improved is through expansion (148). Kant, however, points out that boundaries are not given by quantitative but by qualitative categories. Marder implies here that taking up the category of quality impedes imperialistic tendencies: ‘limits give the thing its particular qualities, and, in exchange for this service, it gives up its drive towards a potentially infinite expansion in a general atmosphere of indeterminacy’ (149). Not only in reference to the state, but limits and borders play overall a prominent role in this last chapter, and forms a welcome critique of meaningless popular expressions like ‘everything is political’ or ‘everything is connected’.
Take for example the section on power in which he develops a critique on Michel Foucault’s conception of power. Although his critique becomes at this point a bit repetitive, it is interesting that his theory of political categories is not only directed against the proponents of neoliberal politics, but also at various other continental (leftists) philosophers, such as Jacques Rancière, Alain Badiou, Michael Hardt and Antonio Negri et al. Like the other positions criticized in the book he also criticizes Foucault for reducing social reality to one particular category within his conception of power, namely that of relation. According to Marder power is not merely relational but simultaneously ‘substantive, (…) qualitative and quantitative, active and passive, (…) potential and actual’ (169). It is especially the category of substance, ousia, to which Marder pays most attention in relation to power. What Foucault fails to see is that in the interpretation of ‘this’ as ‘that’, there already is a pregiven, concrete subject (174). Marder’s claim here, in line with his interpretation of ousia, is that Foucault denies the non-political reality of being. This is of crucial importance for him since his whole theoretical framework rests on the non-political being of a thing, or its political potentiality, that offers the possibility of politicization and thereby of politics.
To conclude, Political Categories is undoubtedly one of the most interesting books today for a new phenomenological approach to political theory. The central theme of developing a theory of political categories is highly original and inventive, but also somewhat problematic. Especially when it comes to the normative horizon that Marder believes is offered by them. The difficulty for him is not to convince the reader that they offer an alternative to neoliberalism. The descriptions of the ways in which the political categories unfold the plurality and the singularity of particular beings, make up for to the most convincing parts of the book. More problematic, is the way in which he believes that a theory of political categories also gives an answer to regressive anti-modern nationalism. His answer that the political categories form a synthesis of sameness and difference, that includes the universality of the incommensurable sameness of the first being of things, seems to be too far removed from political experience, and needs at the very least extensive elaboration. This last point is a general structural weakness of the book: due to its programmatic character, it touches upon many different themes and authors, without discussing any of them at length. When he puts the categories ‘to work’ in the last chapter this is not any different. However, it sparks the curiosity of the reader to see what the political categories bring to the surface when they are really put to work, maybe, and hopefully, in a follow-up to this thought-provoking book.
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.
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.
[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.