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Ex Lex

Geoffrey Bennington

It can seem surprising that Derrida should have devoted two whole years of his seminar to discussion of the death penalty. In the long sequence begun in 1991 under the general title Questions of Responsibility, he moves through discussion of the secret (19912), testimony (19925), hospitality (19957), perjury and pardon (19979), arriving at the death penalty in 1999, and going on in what were to be the last two years of seminars before his death (20013) to the Beast and Sovereign sessions, which have now been available for some time.1 Although one might be forgiven for thinking that the death penalty was hardly a burning issue in Europe in 1999 (it having been abolished in France in 1981 and in Italy as early as 1948, for example), Derrida pursues its history and more especially its philosophy particularly in European texts, while constantly referring to the case of the United States, where the death penalty was then (and is of course now) still practised. But if one reads the summaries of his teaching that Derrida provided each year for the Ecole des Hautes Etudes en Sciences Sociales in Paris, where his seminar was held, it seems clear that the philosophical question of the death penalty does not appear in the Questions of Responsibility sequence by accident, and indeed that it provides a logical transition between the immediately preceding reection on pardon or forgiveness (in which Derridas guiding thread is that one can forgive only the unforgivable, only pardon the unpardonable) and the immediately following more direct focus on the gure of the sovereign (the sovereign being in part dened as he who can impose the death penalty, and also he who can also exercise a power of grace
The Oxford Literary Review 35.2 (2013): 143163 DOI: 10.3366/olr.2013.0067 Edinburgh University Press


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or pardon in death penalty cases). There is a further challenge in the case of the death penalty, which Derrida formulates most clearly in contemporaneous discussions with Elisabeth Roudinesco in For What Tomorrow . . . where he claims that no philosopher, as such, has ever offered a philosophical argument against the death penalty.2 This startling claim gives some urgency to the seminars, as Derrida nds all kinds of problems in the types of arguments that are habitually brought forth to contest the death penalty, and confronts what he thinks of as the most rigorous philosophical argument in favour of the death penalty (i.e. Kants argument in the Metaphysics of Morals), and attempts to outline what a philosophical response to Kants arguments might be. Derrida is certainly in favour of the abolition of the death penalty, but is concerned that most abolitionist discourses (whether they invoke issues of efciency, deterrence, cruelty or inhumanity), however effective they may be in practice, fail to rise to the height of the Kantian argument, and are often in fact complicit in their assumptions with discourses that defend the death penalty. In the attempt to clarify what a properly philosophical abolitionist argument would need to look like, Derrida puts a good deal of deconstructive pressure on the philosophical justications for penal law in general, and indeed of the concept of law as such. In what follows, I try to show that the general schemes of argument that Derrida deploys in these seminars are consistent with his earlier thinking, and notably his thinking about the transcendental in general. *** In the discussion included in For What Tomorrow, Derrida points to an exceptional position of the death penalty, initially in the thought of the reactionary Spanish nineteenth-century Catholic philosopher Donoso Corts (much admired by Carl Schmitt), but then also in Immanuel Kant, and in passing he conrms that this special position will be the focus for any true philosophical discussion of the death penalty. Derrida refers to a universal abolition of the death penalty, in which [Donoso Corts] sees, like Kant in fact (and this is the real site of the philosophical discussion) the very elimination of all criminal law. And goes on:

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[On this view] there would be no longer any law, and above all no longer any criminal law, without the mechanism of the death penalty, which is thus its condition of possibility, its transcendental if you like (at once internal, included: the death penalty is an element of criminal law, one punishment among others, a bit more severe to be sure, and external, excluded: a foundation, a condition of possibility, an origin, an example outside the series, hyperbolic, something more and other than a penalty).3

This transcendental position of the death penalty places it at the center or perhaps at the summit of criminal law, makes of it in some sense exemplary of punishment in general, but also tends to lift it above all other punishments, to remove it from the series of punishments of which it is after all only one, to exclude it in some sense from the realm of that of which it is nonetheless the transcendental condition of possibility. Criminal law on this view nds its truth, its rationale or its exemplary instance in the death penalty, but that penalty, just because of this special or exceptional status, tends to depart from the sphere of the law, to become separate from it, to become something outside the law, a law outside the law, an outlaw law, a lex that is ex lex. This paradoxical status of the transcendental is, in general, a crux of Derridas thinking from early to late, and (in my understanding at least) can take on two apparently quite different valences. One of these, which Derrida sometimes calls transcendental contraband, involves illegitimately smuggling a transcendental term into a discourse that claims to be reducing the transcendental in general (and thereby reducing philosophy as such) to a variety of positive conditions I believe that this is exemplarily the case with historicisms of all sorts, which surreptitiously rely on a transcendental concept of history while claiming to historicise, and thus reduce, all transcendental concepts. Transcendental contraband in this sense always involves some degree of failure or refusal to think the condition of possibility of the discourse in question, some avoidance of that question at any rate, and I believe it provides the key to Derridas reading of the human sciences more generally, especially in his work of the 60s and 70s. This identication of a conceptual weakness or failure in discourses that exploit this structure of transcendental contraband justies the thought


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that deconstruction is still somewhat philosophical in its manner and ambitions, and that it insists on at least entertaining the transcendental question. The other valence of this strange position of the transcendental, which Derrida sometimes (though probably not as often as some of his commentators, including Rodolphe Gasch and me) calls the quasitranscendental (he uses the term both in Of What Tomorrow and in the seminars), exploits the ambiguity of the transcendental position itself to complicate the status of the term or concept thus placed in a special or exceptional position (here the death penalty), and in so doing questions the coherence of the whole conceptual set-up. The difference between transcendental contraband on the one hand and the quasi-transcendental on the other must itself, however, and on good deconstructive grounds, be thought of in terms of differance rather than opposition, as in fact itself an effect of the quasi-transcendental, and the space this opens up is the space of deconstruction as never just or not simply theoretical philosophy. This status as not simply philosophy opens deconstruction onto other elds, notably the elds of the literary and the ethico-political. By identifying the death penalty as having just this kind of complicated transcendental status, then, Derrida suggests, at least implicitly, that we can predict it will, given an appropriate effort of reading, allow for a deconstruction of the conceptual scaffolding of criminal law in general. And this in turn will mean on the one hand that Derridas arguments against the death penalty, however philosophical he wants them to be, cannot be conducted simply within the terms of the philosophical discourse opened up by that same transcendental position, and on the other that it will also inevitably call into question more than the death penalty itself. This is why his seminars on the death penalty might always seem to be only ambiguously supportive of the abolitionist cause as it is currently congured in the US, and why we might want to suggest that his deconstruction of the whole scaffold and scaffolding (DP I, 23) of the death penalty should also have some impact on other aspects of the US law (saliently perhaps on the logic of incarceration and correction, but also on thinking about the supposed right to bear arms as embodied in the Second Amendment to the constitution, especially as currently understood by the Supreme Court and the Congress).

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It is no accident that Derrida should invoke Kant in the passage from For What Tomorrow from which I began, or that Kant should appear whenever these general questions of the transcendental show up in Derrida (which is just about everywhere). In the seminars, as I have discussed elsewhere,4 Derrida repeatedly suggests that Kant provides the most rigorous philosophical defense of the death penalty, and that any attempt to produce a properly philosophical argument for its abolition (which Derrida famously suggests has never been done by any philosopher qua philosopher) will have to confront that defense and that rigor. Derridas seminars suggest that he, Derrida, is able to come up with something like that counter-argument, and I will mention his suggestions in that regard in due course, though I shall suggest that, because of the logic I have tried to lay out, they cannot ever be simply or properly philosophical. First, however, I want to put a little more pressure on a reexive motif in Kants thinking in this respect. Kants defense of the death penalty rests on a rigorously formal reading of the so-called talionic principle: here he is stating it in the Metaphysics of Morals, and then extrapolating from it to the justication of the death-penalty more specically:
But what kind and what amount of punishment is it that public justice makes its principle and measure? None other than the principle of equality (in the position of the needle on the scale of justice), to incline no more to one side than to the other. Accordingly, whatever undeserved evil you inict upon another within the people, that you inict upon yourself. If you insult him, you insult yourself; if you steal from him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you kill yourself. But only the law of retribution [das Wiedervergeltungsrecht] (ius talionis) it being understood, of course, that this is applied by a court (not by your private judgment) can specify denitively the quality and the quantity of punishment; all other principles are uctuating and unsuited for a sentence of pure and strict [strict here translates the adjective streng, which could also be translated as rigorous] justice because extraneous considerations are mixed into them [alle andere sind hin und her schwankend


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und knnen anderer sich einmischenden Rcksichten wegen keine Angemessenheit mit dem Spruch der reinen und strengen Gerechtigkeit enthalten].5

And, just a little later:

But what does it mean to say, If you steal from someone, you steal from yourself? Whoever steals makes the property of everyone else insecure and therefore deprives himself (by the principle of retribution) of security in any possible property. He has nothing and can also acquire nothing; but he still wants to live, and this is now possible only if others provide for him. But since the state will not provide for him free of charge, he must let it have his powers for any kind of work it pleases (in convict or prison labor) and is reduced to the status of a slave for a certain time, or permanently if the state sees t. If, however, he has committed murder he must die. Here there is no substitute that will satisfy justice [Hat er aber gemordet, so mu er sterben. Es giebt hier kein Surrogat zur Befriedigung der Gerechtigkeit ]. There is no similarity between life, however wretched it may be, and death, hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer. (MM, 106)

Just because there is no substitute or surrogate in this case, it would seem that this is where the principle of the ius talionis is most purely embodied. And after a curious and awkward excursus designed to show that the death penalty imposed in cases other than murder still in fact obeys the principle of the ius talionis, Kant adds: Moreover, one has never heard of anyone who was sentenced to death for murder complaining that he was dealt with too severely and therefore wronged; everyone would laugh in his face if he said this, and goes on Accordingly, every murderer (. . . ) must suffer death; this is what justice, as the idea of judicial authority, wills in accordance with universal laws that are grounded a priori (MM, 107). According to this logic, the death penalty, at least when imposed for murder, comes to have a special place in criminal law (or at least in philosophical thinking about criminal law) not immediately as an exemplary instance or prerogative of sovereign power (as it does in other authors in the tradition), but because it is the one and only

Geoffrey Bennington


place where the punishment really does t the crime. Given the strong reexive principle as Kant states it, it is clear that the example of stealing does not in fact provide a rigorous equivalence between crime and penalty, but some kind of calculated or mediated equivalence that might certainly be suspected of a degree of arbitrariness: in the case of the death penalty for murder, on the other hand, the equivalence appears to be direct and, so one might think (so Kant appears to think), more rationally satisfying. Just because there is no similarity or likeness between life and death (and so no possible equivalence between crime and punishment if that punishment still involve life), the only equivalence to one putting to death is another putting to death. In this case there is an apparently perfect instantiation of the talionic principle, and so Kants entire thinking about penal law comes under the sway of this perfect example.6 The clarity of the argument in this salient case, that of the death penalty, at least when imposed for murder, also seems to be in play in Hegels discussion in the Philosophy of Right. Derrida mentions Hegels thinking in this regard only a couple of times in the seminars: once in the context of Theodor Reiks ironic but completely unargued dismissal of Hegels understanding of criminal law (Reik thinks that it is enough just to quote Hegelian formulas such as that punishment is the negation of the negation7 to get rid of them by immediate ridicule), and once in a late session where Derrida announces proleptically that he will later return to a more detailed discussion of Hegels critique of Beccarias abolitionism and his more general account of the logic of punishment in 100 and 101 of the Philosophy of Right. As I mentioned in a passing reference to this brief discussion in an earlier essay on the place of Kant in Derridas thinking about the death penalty,8 Hegels position can look really quite close to Kants (the one Derrida systematically describes as the most rigorous), so it is not without interest that Derrida alludes to a subtle but perhaps decisive frontier between them in this regard, even though he, Derrida, appears never to return to this question as he suggests he will. Here is what Derrida says:
A little later we will look at Hegels philosophy of right, his complicated critique of Beccaria (100) and his interpretation of talionic law (Wiedervergeltung der Strafe); he wants to show (101)


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that, though it is easy to represent (darzustellen) the absurdity (Absurditt ) of talionic law as when one says theft for theft, eye for eye, tooth for tooth (images that represent the criminal as oneeyed and toothless) on the other hand, if we think value as the inner equivalence of things (das innere Gleiche von Sachen), if we go to the essence of what the criminal deserves (das Wesentliche, was der Verbrecher verdient hat ) and not to the external form, not to the image of the punishment, then we must think equality, equivalence (and thus talionic law) in conformity with the concept and with reason. We will no doubt have the opportunity to situate both the continuity and the discontinuity between Kant and Hegel on the death penalty and the talion. Both are its advocates, but the Hegelian distinction between, on the one hand, abstract, intellectual equality or equivalence, that of the understanding, and, on the other hand, rational equivalence on the order of the concept, reason and thinking traces a subtle but perhaps decisive boundary between the two, Kant and Hegel, as does their evaluation of the relation between penal law and the state. We would also have to take into account the Hegelian discourse on sovereignty (279) and on the right to pardon (Begnadigungsrecht 282 sq.) that follows from it. (DP II, Session 18)

I want to pursue a little this Hegelian analysis, which we might be tempted to think is in fact even more rigorous than that of Kant, Derridas constant reference point for rigor. Hegels general understanding of punishment is indeed still based on the talionic principle, even if he thinks he is purifying that principle beyond what happens in Kant. Kants version of the talionic principle, as we just saw, has a reexive quality such that if I commit a crime, I supposedly commit it in a certain sense against myself. It follows that in an important sense I am the agent of my own punishment, and just this conrms my status as a rational being: according to another motif that is repeatedly brought out in the seminars, I rise above my merely phenomenal or animal life by rationally consenting, in principle if not in fact, to my punishment, even and indeed especially if that punishment is my death. For Kant, the death penalty to which I implicitly consent if I commit murder thus conrms my rationality (and this is why it must not be carried out in a way that would demean

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my status in this regard, must not be cruel and unusual as Kant all but says in the Metaphysics of Morals). Hegel does not disagree with this, and also locates that consent to punishment as it were right in or on the crime itself, as part of the logic of crime itself, saying for example that insofar as the punishment (. . . ) is seen as embodying the criminal s own right, the criminal is honoured as a rational being (100).9 Perhaps this is what Derrida has in mind when he describes Hegels critique of Beccaria as complicated, because it means that Hegel (1) agrees with Beccaria that in general the people should give their consent to being punished (Addition to 100); but (2) disagrees with Beccaria that such agreement cannot reasonably be secured in the case of the death penalty (the contractarian aspect of Beccarias argument resting on the thought that it is unreasonable for a party to a contract to agree to his own execution as part of that contract10 ); for Hegel, Beccarias requirement that people should give their consent to being punished is right enough, but the criminal gives his consent already by his very act. The nature of the crime, no less than the criminals own will, requires that the injury initiated by the criminal should be annulled; yet (3) concedes that Beccarias abolitionism has had positive results:
However that may be, Beccarias endeavour to have capital punishment abolished has had benecial effects. Even if neither Joseph II nor the French ever succeeded in entirely abolishing it, still we have begun to see which crimes deserve the death penalty and which do not. Capital punishment has in consequence become rarer, as in fact should be the case with this most extreme punishment. (Addition to 100)

Hegel nevertheless is absolutely committed to the principle of the death penalty, if not to its widespread use. For Kant, the paradigmatic case of punishment is the death penalty inicted for murder. Hegels disagreement with Kant, insofar as he has one, seems to come not in his understanding of that paradigmatic case, but in his understanding of how the talionic principle applies to other cases, where, as we noted, strict equivalence is hard to nd: in Kants example of theft being punished by imprisonment and forced labor, for example, there is (as there so often is in Kants discussion of actual cases) a palpable sense of casuistry. In such cases, some mediating equivalence has to be found


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for the talionic principle to function. Hegel thinks he has a way of explaining how this happens, allowing us to see why there might always be something unsatisfactory in actual punishments, and yet why the principle functions nevertheless: crime and punishment are equivalent in what Hegel calls their value, which is explained a little more fully in the Remark to 101:
the determinate character given by the concept to punishment is just that necessary connection between crime and punishment already mentioned: crime, as the will which is null in itself, eo ipso contains its negation in itself and this negation is manifested as punishment. It is this inner identity whose reection in external existence appears to the understanding as equality.

It would be a mistake, however, to see this equality of value as a claim to empirical or psychological equality. Seeing it that way (Hegels implication is that Kant has not sufciently claried this matter) means we can always make fun of the talionic principle, but at the wrong level, as it were:
It is easy enough from this point of view to exhibit the retributive character of punishment as an absurdity (theft for theft, robbery for robbery, an eye for an eye, a tooth for a tooth and then you can go on to suppose that the criminal has only one eye or no teeth). But the concept has nothing to do with this absurdity, for which indeed the introduction of this specic equality is solely to blame. Value, as the inner equality of things which in their outward existence are specically different from one another in every way, is a category which has appeared already in connection with contracts (see 77), and also in connection with injuries that are the subject of civil suits (see Remark to 98); and by means of it our idea of a thing is raised above its immediate character to its universality. In crime, whose basic determination is the innite aspect of the deed, the purely external specic character disappears all the more obviously, and equality remains the basic rule determining what the criminal essentially deserves, though not the specic external form that it should take. It is only in respect of that form that there is a plain inequality between theft and robbery on the one hand, and

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nes, imprisonment, etc., on the other. In respect of their value, however, i.e. in respect of their universal property of being injuries, they are comparable. Thus, as was said above, it is a matter for the understanding to look for something approximately equal to their value in this sense. If the intrinsic interconnection of crime and its negation, and if also the thought of value and the comparability of crime and punishment in respect of their value are not apprehended, then it may become possible to see in a punishment proper only an arbitrary connection of an evil with an unlawful action. (101)

So the difference between Kant and Hegel here appears to come down to Hegels sharper use of what is still a Kantian distinction between a realm of the understanding (for which actual equivalences between crime and punishment in most cases do indeed need continually to be sought, even though they will always remain provisional and approximate in fact ), and that of reason (where in principle the equivalence is rationally secured by the concept of value). So Hegel can be taken to be in a sense more rigorous than the rigorous Kant in this respect, and to avoid to some extent Kants casuistry. In both Kant and Hegel, however, the case of the death penalty (at least as punishing murder) appears to enjoy special status. Hegels general understanding of the talionic principle differs from Kants in that the mediating concept of value is supposed to account for the difculty in nding actual equivalents with which to punish many crimes. But the death penalty (for murder) itself in principle escapes this need to appeal to a mediating value: Hegel says, although requital [Vergeltung : the root of the word Wiedervergeltungsrecht, law of retribution or lex talionis as we saw Kant gloss it] cannot simply be made specically equal to the crime, the case is otherwise with murder, which is of necessity liable to the death penalty; the reason is that since life is the full compass of [a human beings] existence, the punishment here cannot simply consist in a value, for none is great enough, but can consist only in taking away a second life (Remark to 101). Because life (at least human life) is beyond value (this being the basis for its immeasurable dignity, its Wrde), it in a sense escapes comparison or equivalence. But this incomparability of (human) life then, rather curiously, motivates in both Kant and Hegel a kind of short-circuiting of any calculus of punishment whatsoever, so that the beyond value


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of human life seems to collapse into some kind of direct or unmediated equivalence or identity which is, then, both the purest embodiment of the lex talionis (and thus the most rational and even the most spiritual example imaginable) and a situation where the lex talionis does not even get started, as it were, because the equivalence between crime and punishment is supposedly immediate (and therefore in a sense not even an equivalence ). This curious status could then be used to motivate the more Nietzschean position Derrida takes in the seminars, whereby the salience of the death penalty example would lie precisely in its not being able to be entered into any such calculus of equivalence, where the supposed immediacy or unmediated nature of the talionic law in the case of the death penalty for murder opens the thought that there is no possible equivalence to be found here: as Derrida says in an improvised remark reported in Session 10 of the rst year of the seminars, it is a matter of an excessiveness [dmesure], a penalty without proportion, without commensurability, without any possible relation that is proportional to the crime. [. . . ] The death penalty dares to claim to measure the beyond-measure [dmesur ] in some way (DP I, 248, n11). Although I do not think that Derrida ever quite presents the matter this way in his seminars, this strange status of the death penalty (for murder) seems then to conrm Derridas diagnosis of its quasi-transcendental status, and the paradoxical consequences that seem to ensue (such that the death penalty is simultaneously the most and the least spiritual punishment, both savage in its immediacy and pure in what Hegel calls its specic equality with the crime, both the originary blind spot and the quasi-teleological vanishing point of the talionic principle) these paradoxical consequences would also encourage the thought that it is, as it were, ripe for deconstructive analysis. And this would also explain why the talionic principle lends itself to both a primitivist reading as a mark of barbarism (eschewed by Christianity at least according to Matthew 5:38), and a rigorous formal reading as in Kants canonical formulations. On this view, then, the specicity of the death penalty (for murder) has, as I suggested, less to do with any particular prerogative of the sovereign, and more to do with this peculiarly satisfying but curiously paradoxical embodiment of the talionic principle. That specicity has to do with the way it concentrates a paradoxical property of the question as pointed out by Derrida in the very rst session of the

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seminar, in the context of the ten commandments, where the relation between the Thou shalt not kill commandment and the or else youll be put to death follow-up already concentrates our problems here. The way in which the question of the death penalty nonetheless does clearly converge with the question of sovereignty is in its special and ambiguous transcendental status, its exceptional standing: not the exception that supposedly proves the rule so much as the exception that founds or institutes the rule, the founding exception whereby the law is, at the origin, as Joyce says and as Derrida is fond of recalling, written in the language of the outlaw. Ex lex. And we might want to speculate that the gure of the sovereign is produced or fantasised as a kind of magical solution to what I think is the undialectisable contradiction between the supposedly rational and the unavoidably barbaric aspects of the death penalty in this logic, a kind of contradiction that also bespeaks a curious kind of barbarism intrinsic to rationalism itself, to the very rigor of its rigor. The rational satisfaction apparently to be had from the supposedly direct and unmediated equivalence of crime and punishment in the case of the death penalty exacted as punishment for murder implicitly leads us to think about cases where the death penalty is not the punishment for that particular crime. Hegel concedes something to Beccarias abolitionism in recognising that it led to a welcome reduction in the use of the death penalty to punish crimes other than murder. I do not know if Hegel thought that the death penalty should only and always be applied in the case of murder. Kant clearly did not. Not only does he concede that there are cases of voluntary homicide that should not be punished in this way (the cases of maternal infanticide and of death inicted in a duel between military ofcers, cases that lead Derrida to reect on the stupid uselessness and rigorous absurdity of Kants arguments the rst time he entertains them at any length in these seminars) not only that, but he believes the death penalty is indeed appropriate in cases not literally involving murder, i.e. cases of treason. Kant in fact uses a case of treason to illustrate with the slightly, if blackly, hilarious casuistry that characterises some of his doctrinal statements about ethical and political matters the way in which, in spite of some appearances, the death penalty still embodies the talionic principle even when not applied to cases of murder.11 The way in which the talionic principle


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can go both ways, as it were, simultaneously towards the heights of reason, honor and dignity on the one hand,12 and towards the depths of barbarity on the other, is further evident in Kant when he discusses possible cases of conspiracy involving many accomplices. Here too the solidarity between transcendental purity and blatant casuistry is quite striking:
And so here too, when sentence is pronounced on a number of criminals united in a plot, the best equalizer before public justice is death. (. . . ) Accordingly, every murderer anyone who commits murder, orders it, or is an accomplice in it must suffer death; this is what justice, as the Idea of judicial authority, wills in accordance with universal laws that are grounded a priori. If, however, the number of accomplices (correi) to such a deed is so great that the state, in order to have no such criminals in it, could soon nd itself without subjects; and if the state still does not want to dissolve, that is, to pass over into the state of nature, which is far worse because there is no external justice at all in it (and if it especially does not want to dull the peoples feeling by the spectacle of a slaughterhouse), then the sovereign must also have it in his power, in this case of necessity (casus necessitatis), to assume the role of judge (to represent him) and pronounce a judgment that decrees for the criminals a sentence other than capital punishment, such as deportation, which still preserves the population. This cannot be done in accordance with public law, but it can be done by an executive decree, that is, by an act of the right of majesty which, as clemency, can always be exercised only in individual cases. (MM, 1078)

On this reading, then, it would not be excessive to claim that the death penalty, as exemplary of the purely formal, rational and reexive logic of the lex talionis and yet as simultaneously quite the other thing too, itself generates the gure of the sovereign as a non-rational and non-dialectical answer to a certain impasse of rationalism itself. It is, I believe, no accident that Kant here recognises the claim of a case of necessity, whereas, as I have discussed at length elsewhere, he opens the entire Doctrine of Right part of the Metaphysics of Morals by arguing that the supposed law of necessity must be the object of a preliminary exclusion from the eld of right. The highly paradoxical and even

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aporetical quality of the death penalty in this argument seems to go much deeper than could ever be handled by the Kantian rider that it must be carried out without any mistreatment that could make the humanity in the person suffering it into something abominable (MM, 106). On our reading, something abominable is lurking in the rational principle from the start and this something abominable will go on to affect or infect Kants political and ethical thinking more generally.13 The question of the death penalty as punishment for treason is something Derrida discusses much later, almost at the end of the second year of the death penalty seminars, where he compares and contrasts Kant and Robespierre. Here is how Kant puts it somewhat earlier in the Metaphysics of Morals than the discussion of criminal law per se:
There is, therefore, no right to sedition (seditio), still less to rebellion (rebellio), and least of all is there a right against the head of a state as an individual person (the monarch), to attack his person or even his life (monarchomachismus sub specie tyrannicidii) on the pretext that he has abused his authority (tyrannis). Any attempt whatsoever at this is high treason (proditio eminens), and whoever commits such treason must be punished by nothing less than death for attempting to destroy his fatherland (parricida). The reason a people has a duty to put up with even what is held to be an unbearable abuse of supreme authority is that its resistance to the highest legislation can never be regarded as other than contrary to law, and indeed as abolishing the entire legal constitution. (MM, 967)

This, a well-known moment in Kants political thinking, leads in a famous footnote to the suggestion that the claim of revolutionaries in England and France to have legally executed the sovereign
must be regarded as a complete overturning of the principles of the relation between a sovereign and his people (in which the people, which owes its existence only to the sovereigns legislation, makes itself his master), so that violence is elevated above the most sacred rights brazenly and in accordance with principle. Like a chasm that irretrievably swallows everything, the execution of a monarch seems


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to be a crime from which the people cannot be absolved, for it is as if the state commits suicide. (MM, 978n)

In other words, Kant is an unconditional partisan of the death penalty, except when an attempt is made to apply it to the sovereign, which results in a kind of short-circuit of reason itself, a kind of cannot compute that leads to self-destruction and the abyss. This threat to reason itself is so serious that it motivates Kants demand that the death penalty be applied to any attempt whatsoever at attacking the sovereign, which he attempts rather desperately to assimilate to the case of murder (or at least attempted murder) by identifying it as a parricide, this assimilation perhaps conrming the phallogocentric quality of rationalism itself. Following this example of treason, where the death penalty is applied in a case that is only analogically (and according to a shaky analogy at that) that of murder, would rapidly lead us into deep and dark waters. (In the UK, for example, the death penalty for murder was suspended in 1965 and abolished in 1969, but remained in place for so-called high treason until 1998, almost the time of Derridas deathpenalty seminars, although never in fact applied.)14 The relation of high treason to parricide or at least to offences against the symbolic order of the father might be judged from the fact that even today, in the UK, when high treason is no longer punishable by death, its denition still includes, alongside plotting the murder of the sovereign, committing adultery with the sovereigns consort, with the sovereigns eldest unmarried daughter, or with the wife of the heir to the throne. What I am interested in here, however, is the convergence of the exceptional status of the death penalty (its [quasi-]transcendental status, as we saw Derrida describe it at the beginning of this essay) and the exceptional status of the sovereign or of the principle of sovereignty. Many reasons could make us want to emphasise that convergence, beyond that of the quasi-sovereign status of the great criminal that Derrida likes to quote from Benjamin, and even beyond the tendential, sometimes perverse identication of the executed with Christ crucied, be it in Hugo or in Genet. We might also, for example, point to Batailles insight that the putting to death of the sovereign is in a sense the paradigmatic case of sacrice, the sacrice of what is most high, the sovereign sacrice and so the paradigmatic moment of sovereignty is

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to be sought paradoxically in the putting to death of the sovereign. This Bataillean logic, which Derrida mentions only in passing in his late work on sovereignty,15 goes some considerable way towards clarifying the very possibility of any convergence between beast and sovereign, between sovereign and outlaw, between the god and the wild beast with which Aristotle compares the apolitical man at the beginning of the Politics (1253a 29), between Socratess proposal of the possibility of the philosopher-king in the Republic and the immediate evocation of the violent and perhaps murderous reaction that that proposal will likely provoke.16 In conclusion, however, I want to pursue very briey a slightly different, though related, path, guided by what I believe is Kants only explicit use of the Latin tag, exlex, that gives me my title. This occurs just before the remarks about treason and the footnote about the supposedly legal executions of Charles I and Louis XVI, and in part motivates the claims Kant there makes about the necessary inviolability of the sovereign:
A people should not inquire with any practical aim in view into the origin of the supreme authority to which it is subject, that is, a subject ought not to reason subtly for the sake of action [werkttig vernnfteln] about the origin of this authority, as a right that can still be called into question (ius controversum) with regard to the obedience he owes it. For, since a people must be regarded as already united under a general legislative will in order to j u d g e with rightful force about the supreme authority [Staatsgewalt ] (summum imperium), it cannot and may not judge otherwise than as the present head of state (summus imperans) wills it to. Whether a state began with an actual contract of submission (pactum subiectionis civilis) as a fact, or whether power came rst and law arrived only afterward, or even whether they should have followed in this order: For a people already subject to civil law these rationalisations are altogether pointless and, moreover, threaten a state with danger. If a subject, having pondered over the ultimate origin of the authority now ruling, wanted to resist this authority, he would be punished, got rid of, or expelled (as an outlaw, exlex ) in accordance with the laws of this authority, that is, with every right. A law that is so holy (inviolable) that it is already a crime even to call it in doubt in a practical way, and so to suspend


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its effect for a moment, is thought as if it must have arisen not from men but from some highest, awless lawgiver; and that is what the saying All authority is from God means. This saying is not an assertion about the historical basis of the civil constitution; it instead sets forth an Idea as a practical principle of reason: the principle that the presently existing legislative authority ought to be obeyed, whatever its origin. (MM, 95)

One might sympathise with Kants difculty here, as evidenced in the anxious italics he uses in his text. We only have to put (or imagine the sovereign putting) the slightest pressure on the distinction between reasoning and reasoning-subtly-for-the-sake-ofaction, between doubting and doubting-in-a-practical-way to see that what Kant himself is doing here, even as he afrms the transcendental privileges of sovereignty, is itself as close as can be to treason. Simply by arguing for a transcendental, non-factual, rationally necessary legitimacy of the principle of sovereignty, in other words, by conrming the sovereignty of sovereignty itself, Kant always might be taken, and in a sense cannot fail to be taken, to be arguing against the actual legitimacy of any particular sovereign power, because no actually existing sovereign is transcendentally sovereign. No sovereign is really sovereign thats the transcendental as always only quasitranscendental. Raising the question of sovereignty, even attempting to defend the sovereignty of sovereignty on rational grounds, is on this logic already tendentially treasonable, already taking a position somewhere outside the law even if only supposedly to justify it. Kants rigorous defense of the death penalty as rooted in this logic is then not so surprisingly the most promising place to look for the possibility of its radical contestation, just as in general the most rigorous thinking of the transcendental is the best place to seek for the principle of its deconstruction, for, as Derrida already had it in the Grammatology, an ultra-transcendental thinking that does not collapse into precritical naivety. This means that Kants defense of the death penalty is also the very place to look for the principle of resistance to it: as tendentially ex lex, the philosopher-outlaw shows up the ex lex status of the sovereign and also of the death penalty in the same gesture as he shows up the tendentially collapsing status of sovereignty and indeed of the transcendental position as such. Deconstruction pursues

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and exacerbates this internal collapse and thus expects and even invites being brandished an outlaw and being at the very least ostracised or banished from the city. I want to suggest that this logic (which is consistently present across Derridas thinking, this logic that just is deconstruction) is what motivates Derridas philosophical argument against the death penalty, or at least explains why that argument cannot in fact be philosophical through and through, insofar as it is showing this ultra-transcendental principle of ruination of the transcendental as such. Derridas thought, formulated most succinctly in Session 10 of the rst year of the seminars, is that the madness of the death penalty is that it attempts to put an end to nitude, to nish nitude, by giving itself the right to an essentially mechanical or machinic calculation and application of the moment of death. This dream or phantasy of nishing nitude would then readily communicate with all manner of innitising schemas that can allow for more or less secret complicities between arguments in favour and arguments against the death penalty. Deconstruction, on the other hand, for which, famously, innite differance is nite, neither afrms the innite nor simply denies it in the name of the nite, thus opening onto another thinking entirely. That thinking could not be content with an isolated argument against the death penalty (which, as Derrida points out with great sobriety, can never be considered truly to be abolished by its factual abolition, but can be seen to survive in other forms, so that any self-righteousness or bonne conscience in this regard would be misplaced), just because the deconstruction of the death penalty (which is something other and more than its mere factual abolition) would entail the deconstruction of that whole conceptuality in which it nds its shockingly salient place, the conceptuality of Western metaphysics itself.
Notes 1 Derrida, Sminaire La Bte et le souverain, Volume I (20012002), edited by Michel Lisse, Marie-Louise Mallet and Ginette Michaud (Paris, ditions Galile, 2008); Sminaire La Bte et le souverain, Volume II (20022003), edited by Michel Lisse, Marie-Louise Mallet and Ginette Michaud (Paris, ditions Galile, 2010); The Beast and the Sovereign, Volume I, translated by Geoffrey Bennington (Chicago, University of Chicago Press, 2009); The Beast and the Sovereign, Volume II (Chicago, University of Chicago Press, 2011).


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3 4

8 9



[N]ever, to my knowledge, has any philosopher as a philosopher, in his or her own strictly and systematically philosophical discourse, never has any philosophy as such contested the legitimacy of the death penalty. Derrida and Roudinesco, For What Tomorrow . . . A Dialogue, translated by Jeff Fort (Stanford, Stanford University Press, 2004), 146; italics in original. For What Tomorrow . . . , 142; translation slightly modied; see also, DP I, 124 n3. See my Rigor: or, Stupid Uselessness, Southern Journal of Philosophy, Vol. 50, Spindel Supplement (2012), 2038. Immanuel Kant, The Metaphysics of Morals, translated by Mary Gregor (Cambridge, Cambridge University Press, 1996), 1056. References to this volume will henceforth use the abbreviation MM and be included in the text. Kant is not alone in this thought: Derrida quotes Marat to the same effect in PM1, 274. Cf. too Alan Bruder, Punishment and Freedom: a Liberal Theory of Penal Justice (Oxford, Oxford University Press, 2009), 54, summarising the Kantian position: Murder is an exception because it is the only crime for which there is a known and determinate equal punishment. Philosophy of Right, 97: The criminal act (. . . ) is itself negative, so that the punishment is merely the negation of the negation. Actual right is thus the Aufhebung of this infringement. See note 4 above. G.W.F. Hegel, Outlines of the Philosophy of Right, translated by T.M. Knox (Oxford, Oxford University Press, 1952), 100. Subsequent references will be to this translation and will be included in the text. Beccarias other main argument, which earns him Kants scorn, is that the death penalty should be abolished because it is less dissuasive, less rigorous, than life imprisonment. Suppose that some (such as Balmerino and others) who took part in the recent Scottish rebellion believed that by their uprising they were only performing a duty they owed the House of Stuart, while others on the contrary were out for their private interests; and suppose that the judgment pronounced by the highest court had been that each is free to make the choice between death and convict labor. I say that in this case the man of honor would choose death, and the scoundrel convict labor. This comes along with the nature of the human mind; for the man of honor is acquainted with something that he values even more highly than life, namely honor, while the scoundrel considers it better to live in shame than not to live at all (animam praeferre pudori; Iuvenal [Satires III, 8, 83]). Since the man of honor is undeniably less deserving of punishment than the other, both would be punished quite proportionately if all alike were sentenced to death; the man of honor would

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be punished mildly in terms of his sensibilities and the scoundrel severely in terms of his. On the other hand, if both were sentenced to convict labor the man of honor would be punished too severely and the other too mildly for his vile action (MM, 107). Derrida comments on this passage in DP II. In the rst session of the second year of the seminars, Derrida follows Benveniste into the complex and fascinating links between punishment and honor. This line of thought would then communicate quite readily with the Nietzschean suggestion, sympathetically entertained by Derrida, that the categorical imperative itself has the whiff of cruelty about it, and the psychoanalytic thought that the unconscious espouses the talionic principle as a principle of revenge. At PM1, 254, Derrida refers to the state of Michigan suspending the death penalty in 1846, except for treason. Developing from Benveniste the notion of an excess involved in the repaying of debts in DP I, Session 10, for example, Derrida identies a spend[ing] for nothing (DP I, 261) that invites comparison with Batailles theory of the potlatch. In year two of the seminars, Derrida makes a curious and apparently unmotivated detour through Batailles Le coupable without really linking it to this logic. Republic, 5:473c-474a. We might also bring into this zone the paradoxical gure of the hupsipolis apolis from the so-called Ode to Man in Sophocless Antigone, commented on by Heidegger (especially in the Introduction to Metaphysics), and rather surprisingly elided by Derrida in his own readings of Heidegger, as I point out in a forthcoming paper.