olr.2013.0067.pdf | Deconstruction | Immanuel Kant

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 (1991–2), testimony (1992–5), hospitality (1995–7), perjury and pardon (1997–9), arriving at the death penalty in 1999, and going on in what were to be the last two years of seminars before his death (2001–3) 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 reflection on pardon or forgiveness (in which Derrida’s guiding thread is that one can forgive only the unforgivable, only pardon the unpardonable) and the immediately following more direct focus on the figure of the sovereign (the sovereign being in part defined 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): 143–163 DOI: 10.3366/olr.2013.0067 © Edinburgh University Press www.euppublishing.com/olr


Oxford Literary Review

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 finds 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. Kant’s argument in the Metaphysics of Morals), and attempts to outline what a philosophical response to Kant’s 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 efficiency, 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 justifications 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 Cortés (much admired by Carl Schmitt), but then also in Immanuel Kant, and in passing he confirms 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 Cortés] 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:

which Derrida sometimes calls ‘transcendental contraband’. makes of it in some sense exemplary of punishment in general.Geoffrey Bennington 145 [On this view] there would be no longer any law. one punishment among others. Criminal law on this view finds its truth. something more and other than a penalty). hyperbolic. a lex that is ex lex. a condition of possibility. its rationale or its exemplary instance in the death penalty. its transcendental if you like (at once internal. some avoidance of that question at any rate. This identification of a conceptual weakness or failure in discourses that exploit this structure of transcendental contraband justifies the thought . but that penalty. excluded: a foundation. and thus reduce. a law outside the law. in general. to become separate from it. without the mechanism of the death penalty. but also tends to lift it above all other punishments. especially in his work of the 60s and 70s. tends to depart from the sphere of the law. One of these. to exclude it in some sense from the realm of that of which it is nonetheless the transcendental condition of possibility. an outlaw law. a crux of Derrida’s thinking from early to late. just because of this special or exceptional status. This paradoxical status of the transcendental is. and external. to become something outside the law. and I believe it provides the key to Derrida’s reading of the ‘human sciences’ more generally. all transcendental concepts. a bit more severe to be sure. Transcendental contraband in this sense always involves some degree of failure or refusal to think the condition of possibility of the discourse in question. to remove it from the series of punishments of which it is after all only one. and (in my understanding at least) can take on two apparently quite different valences.3 This ‘transcendental’ position of the death penalty places it at the center or perhaps at the summit of criminal law. an origin. which surreptitiously rely on a transcendental concept of history while claiming to historicise. an example outside the series. included: the death penalty is an element of criminal law. and above all no longer any criminal law. 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 is thus its condition of possibility.

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. and on good deconstructive grounds. including Rodolphe Gasché and me) calls the quasitranscendental (he uses the term both in Of What Tomorrow and in the seminars). notably the fields of the literary and the ethico-political. . cannot be conducted simply within the terms of the philosophical discourse opened up by that same transcendental position. and the space this opens up is the space of deconstruction as never just or not simply theoretical philosophy. then. as in fact itself an effect of the quasi-transcendental. and that it insists on at least entertaining the transcendental question. which Derrida sometimes (though probably not as often as some of his commentators. By identifying the death penalty as having just this kind of complicated ‘transcendental’ status. Derrida suggests. that we can predict it will. allow for a deconstruction of the conceptual scaffolding of criminal law in general.146 Oxford Literary Review that deconstruction is still somewhat philosophical in its manner and ambitions. This status as ‘not simply philosophy’ opens deconstruction onto other fields. at least implicitly. 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 configured in the US. And this in turn will mean on the one hand that Derrida’s arguments against the death penalty. and on the other that it will also inevitably call into question more than the death penalty itself. and in so doing questions the coherence of the whole conceptual set-up. 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 why we might want to suggest that his deconstruction of the whole ‘scaffold’ and ‘scaffolding’ (DP I. however. be thought of in terms of differance rather than opposition. given an appropriate effort of reading. The difference between transcendental contraband on the one hand and the quasi-transcendental on the other must itself.’ but also on thinking about the supposed right to bear arms as embodied in the Second Amendment to the constitution. The other valence of this strange position of the transcendental. especially as currently understood by the Supreme Court and the Congress). however philosophical he wants them to be.

is able to come up with something like that counter-argument. First. you strike yourself. that you inflict upon yourself. they cannot ever be simply or ‘properly’ philosophical. and then extrapolating from it to the justification of the death-penalty more specifically: 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). I want to put a little more pressure on a reflexive motif in Kant’s thinking in this respect. though I shall suggest that. whatever undeserved evil you inflict upon another within the people.Geoffrey Bennington 147 It is no accident that Derrida should invoke Kant in the passage from For What Tomorrow from which I began. if you steal from him. if you strike him. Kant’s 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. If you insult him. Derrida. 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. which could also be translated as ‘rigorous’] justice because extraneous considerations are mixed into them [alle andere sind hin und her schwankend . if you kill him. as I have discussed elsewhere. you insult yourself.4 Derrida repeatedly suggests that Kant provides the ‘most rigorous’ philosophical defense of the death penalty. or that Kant should appear whenever these general questions of the transcendental show up in Derrida (which is just about everywhere). because of the logic I have tried to lay out. you kill yourself. But only the law of retribution [das Wiedervergeltungsrecht] (ius talionis) — it being understood. to incline no more to one side than to the other. that this is applied by a court (not by your private judgment) — can specify definitively the quality and the quantity of punishment. all other principles are fluctuating and unsuited for a sentence of pure and strict [‘strict’ here translates the adjective streng. Derrida’s seminars suggest that he. and I will mention his suggestions in that regard in due course. of course. In the seminars. however. you steal from yourself. Accordingly.

and this is now possible only if others provide for him. everyone would laugh in his face if he said this’. but he still wants to live. ) must suffer death. There is no similarity between life. the death penalty. – If.148 Oxford Literary Review und können anderer sich einmischenden Rücksichten wegen keine Angemessenheit mit dem Spruch der reinen und strengen Gerechtigkeit enthalten]. (MM. however. 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. According to this logic. or permanently if the state sees fit. ‘If you steal from someone. just a little later: But what does it mean to say. so muß er sterben. 106) Just because there is no substitute or surrogate in this case. he has committed murder he must die.5 And. hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer. and goes on ‘Accordingly. every murderer (. at least when imposed for murder. 107). 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. one has never heard of anyone who was sentenced to death for murder complaining that he was dealt with too severely and therefore wronged. as the idea of judicial authority. 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). this is what justice. He has nothing and can also acquire nothing. however wretched it may be. wills in accordance with universal laws that are grounded a priori’ (MM. Here there is no substitute that will satisfy justice [Hat er aber gemordet. it would seem that this is where the principle of the ius talionis is most purely embodied. Es giebt hier kein Surrogat zur Befriedigung der Gerechtigkeit ]. and death. 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. . Kant adds: ‘Moreover. . But since the state will not provide for him free of charge. but because it is the one and only .

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.6 The clarity of the argument in this salient case. Derrida. he wants to show (§101) . As I mentioned in a passing reference to this brief discussion in an earlier essay on the place of Kant in Derrida’s thinking about the death penalty. Derrida mentions Hegel’s thinking in this regard only a couple of times in the seminars: once in the context of Theodor Reik’s ironic but completely unargued dismissal of Hegel’s 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 so Kant’s entire thinking about penal law comes under the sway of this perfect example. on the other hand. Here is what Derrida says: A little later we will look at Hegel’s philosophy of right. so it is not without interest that Derrida alludes to ‘a subtle but perhaps decisive frontier’ between them in this regard. also seems to be in play in Hegel’s discussion in the Philosophy of Right. In this case there is an apparently perfect instantiation of the talionic principle. more rationally satisfying. Given the strong reflexive principle as Kant states it. the equivalence appears to be direct and. 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). at least when imposed for murder.8 Hegel’s position can look really quite close to Kant’s (the one Derrida systematically describes as ‘the most rigorous’). and once in a late session where Derrida announces proleptically that he will later return to a more detailed discussion of Hegel’s critique of Beccaria’s abolitionism and his more general account of the logic of punishment in §§100 and 101 of the Philosophy of Right. the only equivalence to one putting to death is another putting to death. that of the death penalty.Geoffrey Bennington 149 place where the punishment really does fit the crime. so one might think (so Kant appears to think). appears never to return to this question as he suggests he will. his complicated critique of Beccaria (§100) and his interpretation of talionic law (Wiedervergeltung der Strafe). even though he.

the death penalty to which I implicitly consent if I commit murder thus confirms my rationality (and this is why it must not be carried out in a way that would demean . as we just saw. if we think value as the inner equivalence of things (das innere Gleiche von Sachen). I rise above my merely phenomenal or animal life by rationally consenting. on the other hand. reason and thinking — traces a subtle but perhaps decisive boundary between the two. 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.) that follows from it. For Kant.150 Oxford Literary Review that. even and indeed especially if that punishment is my death. Kant’s version of the talionic principle. (DP II. Kant and Hegel. has a reflexive quality such that if I commit a crime. equivalence (and thus talionic law) in conformity with the concept and with reason. Hegel’s general understanding of punishment is indeed still based on the talionic principle. not to the image of the punishment. that of the understanding. I supposedly commit it in a certain sense against myself. to my punishment. then we must think equality. was der Verbrecher verdient hat ) and not to the external form. which we might be tempted to think is in fact even more rigorous than that of Kant. intellectual equality or equivalence. on the one hand. if we go to the essence of what the criminal deserves (das Wesentliche. Session 18) I want to pursue a little this Hegelian analysis. and just this confirms my status as a rational being: according to another motif that is repeatedly brought out in the seminars. rational equivalence on the order of the concept. We would also have to take into account the Hegelian discourse on sovereignty (§279) and on the right to pardon (Begnadigungsrecht §282 sq. abstract. Both are its advocates. in principle if not in fact. but the Hegelian distinction — between. even if he thinks he is purifying that principle beyond what happens in Kant. and. tooth for tooth (images that represent the criminal as oneeyed and toothless) — on the other hand. though it is easy to represent (darzustellen) the absurdity (Absurdität ) of talionic law — as when one says theft for theft. It follows that in an important sense I am the agent of my own punishment. eye for eye. as does their evaluation of the relation between penal law and the state. Derrida’s constant reference point for rigor.

as in fact should be the case with this most extreme punishment. some mediating equivalence has to be found . must not be ‘cruel and unusual’ as Kant all but says in the Metaphysics of Morals).Geoffrey Bennington 151 my status in this regard. if not to its widespread use. for example. For Kant. Hegel does not disagree with this. Hegel’s disagreement with Kant. Even if neither Joseph II nor the French ever succeeded in entirely abolishing it. Beccaria’s endeavour to have capital punishment abolished has had beneficial effects. saying for example that ‘insofar as the punishment (. . Capital punishment has in consequence become rarer. but the criminal gives his consent already by his very act.’ because it means that Hegel (1) agrees with Beccaria that in general ‘the people should give their consent to being punished’ (Addition to §100). as part of the logic of crime itself. yet (3) concedes that Beccaria’s abolitionism has had positive results: However that may be. but (2) disagrees with Beccaria that such agreement cannot reasonably be secured in the case of the death penalty (the contractarian aspect of Beccaria’s 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 ). ‘Beccaria’s requirement that people should give their consent to being punished is right enough. for Hegel. still we have begun to see which crimes deserve the death penalty and which do not. where. ) is seen as embodying the criminal ’s own right.9 Perhaps this is what Derrida has in mind when he describes Hegel’s critique of Beccaria as ‘complicated. . as we noted. The nature of the crime. insofar as he has one. there is (as there so often is in Kant’s discussion of actual cases) a palpable sense of casuistry. In such cases. and also locates that consent to punishment as it were right in or on the crime itself. but in his understanding of how the talionic principle applies to other cases. strict equivalence is hard to find: in Kant’s example of theft being punished by imprisonment and forced labor. seems to come not in his understanding of that paradigmatic case. the criminal is honoured as a rational being’ (§100). requires that the injury initiated by the criminal should be annulled’. no less than the criminal’s own will. the paradigmatic case of punishment is the death penalty inflicted for murder. (Addition to §100) Hegel nevertheless is absolutely committed to the principle of the death penalty.

the purely external specific character disappears all the more obviously. In crime. for which indeed the introduction of this specific equality is solely to blame. but at the wrong level. It is this inner identity whose reflection in external existence appears to the understanding as ‘equality’. as the will which is null in itself. to see this equality of value as a claim to empirical or psychological equality.152 Oxford Literary Review for the talionic principle to function. It would be a mistake. But the concept has nothing to do with this absurdity. 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.’ 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. robbery for robbery. and yet why the principle functions nevertheless: crime and punishment are equivalent in what Hegel calls their ‘value. whose basic determination is the infinite aspect of the deed. eo ipso contains its negation in itself and this negation is manifested as punishment. and equality remains the basic rule determining what the criminal essentially deserves. allowing us to see why there might always be something unsatisfactory in actual punishments. It is only in respect of that form that there is a plain inequality between theft and robbery on the one hand. an eye for an eye. 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. Hegel thinks he has a way of explaining how this happens. however. and . as the inner equality of things which in their outward existence are specifically different from one another in every way. Value. is a category which has appeared already in connection with contracts (see § 77). a tooth for a tooth — and then you can go on to suppose that the criminal has only one eye or no teeth). Seeing it that way (Hegel’s implication is that Kant has not sufficiently clarified this matter) means we can always make fun of the talionic principle. though not the specific external form that it should take.

so that the ‘beyond value’ . for none is great enough. etc. on the other. the reason is that since life is the full compass of [a human being’s] existence. In both Kant and Hegel. But this incomparability of (human) life then. 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. and to avoid to some extent Kant’s casuistry. the case is otherwise with murder. then it may become possible to see in a punishment proper only an arbitrary connection of an evil with an unlawful action. in respect of their universal property of being injuries. In respect of their value.e. i. rather curiously. Hegel’s general understanding of the talionic principle differs from Kant’s in that the mediating concept of ‘value’ is supposed to account for the difficulty in finding actual equivalents with which to punish many crimes. which is of necessity liable to the death penalty. (§101) So the difference between Kant and Hegel here appears to come down to Hegel’s 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. Thus. motivates in both Kant and Hegel a kind of short-circuiting of any calculus of punishment whatsoever. its Würde). they are comparable. as was said above. the punishment here cannot simply consist in a value. imprisonment. and if also the thought of value and the comparability of crime and punishment in respect of their value are not apprehended. the case of the death penalty (at least as punishing murder) appears to enjoy special status. it in a sense escapes comparison or equivalence. however. and that of reason (where in principle the equivalence is rationally secured by the concept of value). however.Geoffrey Bennington 153 fines.. Because life (at least human life) is beyond value (this being the basis for its immeasurable dignity. So Hegel can be taken to be in a sense more rigorous than the rigorous Kant in this respect. law of retribution or lex talionis as we saw Kant gloss it] cannot simply be made specifically equal to the crime. but can consist only in taking away a second life’ (Remark to §101). If the intrinsic interconnection of crime and its negation. even though they will always remain provisional and approximate in fact ). it is a matter for the understanding to look for something approximately equal to their value in this sense.

[.154 Oxford Literary Review of human life seems to collapse into some kind of direct or unmediated equivalence or identity which is. a penalty without proportion. 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. On this view. Although I do not think that Derrida ever quite presents the matter this way in his seminars. both savage in its immediacy and pure in what Hegel calls its ‘specific equality’ with the crime. and more to do with this peculiarly satisfying but curiously paradoxical embodiment of the talionic principle. ‘it is a matter of an excessiveness [démesure]. 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. ] The death penalty dares to claim to measure the beyond-measure [démesuré ] in some way’ (DP I. and the paradoxical consequences that seem to ensue (such that the death penalty is simultaneously the most and the least spiritual punishment. 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. less to do with any particular prerogative of the sovereign. 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. this strange status of the death penalty (for murder) seems then to confirm Derrida’s diagnosis of its quasi-transcendental status. then. . . as I suggested. as it were. the specificity of the death penalty (for murder) has. without commensurability. 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 first year of the seminars. 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). ripe for deconstructive analysis. then. n11). as it were. 248. without any possible relation that is proportional to the crime. and a rigorous formal reading as in Kant’s canonical formulations. That specificity has to do with the way it concentrates a paradoxical property of the question as pointed out by Derrida in the very first session of the .

i. as Joyce says and as Derrida is fond of recalling. in spite of some appearances. 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 inflicted in a duel between military officers. 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. cases of treason. Ex lex. Kant clearly did not. but he believes the death penalty is indeed appropriate in cases not literally involving murder. 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.11 The way in which the talionic principle . I do not know if Hegel thought that the death penalty should only and always be applied in the case of murder. its exceptional standing: not the exception that supposedly ‘proves’ the rule so much as the exception that founds or institutes the rule. to the very rigor of its rigor. Hegel concedes something to Beccaria’s abolitionism in recognising that it led to a welcome reduction in the use of the death penalty to punish crimes other than murder. Kant in fact uses a case of treason to illustrate — with the slightly. in the context of the ten commandments. if blackly. where the relation between the ‘Thou shalt not kill’ commandment and the ‘or else you’ll be put to death’ follow-up already concentrates our problems here.e. at the origin.Geoffrey Bennington 155 seminar. the founding exception whereby the law is. ‘written in the language of the outlaw’. the death penalty still embodies the talionic principle even when not applied to cases of murder. a kind of contradiction that also bespeaks a curious kind of barbarism intrinsic to rationalism itself. hilarious casuistry that characterises some of his doctrinal statements about ethical and political matters — the way in which. cases that lead Derrida to reflect on the ‘stupid uselessness’ and ‘rigorous absurdity’ of Kant’s arguments the first time he entertains them at any length in these seminars) – not only that. And we might want to speculate that the figure 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.

and if the state still does not want to dissolve. in this case of necessity (casus necessitatis).12 and towards the depths of barbarity on the other. 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 field of right. the number of accomplices (correi) to such a deed is so great that the state. can always be exercised only in individual cases. to assume the role of judge (to represent him) and pronounce a judgment that decrees for the criminals a sentence other than capital punishment. it would not be excessive to claim that the death penalty. as I have discussed at length elsewhere. the best equalizer before public justice is death. ) Accordingly. as it were. orders it. that is. could soon find itself without subjects. . rational and reflexive logic of the lex talionis and yet as simultaneously quite the other thing too. but it can be done by an executive decree. as clemency. wills in accordance with universal laws that are grounded a priori. as exemplary of the purely formal. Here too the solidarity between transcendental purity and blatant casuistry is quite striking: And so here too.156 Oxford Literary Review can go both ways.’ whereas. then. itself generates the figure of the sovereign as a non-rational and non-dialectical answer to a certain impasse of rationalism itself. which still preserves the population. . The highly paradoxical and even . is further evident in Kant when he discusses possible cases of conspiracy involving many accomplices. no accident that Kant here recognises the claim of a ‘case of necessity. that is. simultaneously towards the heights of reason. every murderer — anyone who commits murder. such as deportation. by an act of the right of majesty which. 107–8) On this reading. I believe. This cannot be done in accordance with public law. this is what justice. (. honor and dignity on the one hand. If. It is. to pass over into the state of nature. in order to have no such criminals in it. however. which is far worse because there is no external justice at all in it (and if it especially does not want to dull the people’s feeling by the spectacle of a slaughterhouse). (MM. when sentence is pronounced on a number of criminals united in a plot. as the Idea of judicial authority. or is an accomplice in it — must suffer death. then the sovereign must also have it in his power.

the execution of a monarch seems . so that violence is elevated above the most sacred rights brazenly and in accordance with principle. and indeed as abolishing the entire legal constitution. and least of all is there a right against the head of a state as an individual person (the monarch). 96–7) This. makes itself his master).13 The question of the death penalty as punishment for treason is something Derrida discusses much later. a well-known moment in Kant’s political thinking. Any attempt whatsoever at this is high treason (proditio eminens). — 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. 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. almost at the end of the second year of the death penalty seminars. where he compares and contrasts Kant and Robespierre. to attack his person or even his life (monarchomachismus sub specie tyrannicidii) on the pretext that he has abused his authority (tyrannis). which owes its existence only to the sovereign’s legislation. no right to sedition (seditio). and whoever commits such treason must be punished by nothing less than death for attempting to destroy his fatherland (parricida). therefore. something abominable is lurking in the rational principle from the start and this ‘something abominable’ will go on to affect or infect Kant’s political and ethical thinking more generally. (MM. Here is how Kant puts it somewhat earlier in the Metaphysics of Morals than the discussion of criminal law per se: There is. On our reading. Like a chasm that irretrievably swallows everything. still less to rebellion (rebellio). 106).Geoffrey Bennington 157 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.

a kind of ‘cannot compute’ that leads to self-destruction and the abyss. this assimilation perhaps confirming the phallogocentric quality of rationalism itself. or with the wife of the heir to the throne’. almost the time of Derrida’s deathpenalty seminars. and even beyond the tendential. is the convergence of the exceptional status of the death penalty (its [quasi-]transcendental status. 97–8n) In other words. (In the UK. which results in a kind of short-circuit of reason itself. with the sovereign’s eldest unmarried daughter. except when an attempt is made to apply it to the sovereign. be it in Hugo or in Genet. ‘committing adultery with the sovereign’s consort. its definition still includes. What I am interested in here. where the death penalty is applied in a case that is only analogically (and according to a shaky analogy at that) that of murder. but remained in place for so-called ‘high treason’ until 1998. We might also. the sovereign sacrifice – and so the paradigmatic moment of sovereignty is . alongside plotting the murder of the sovereign. point to Bataille’s insight that the putting to death of the sovereign is in a sense the paradigmatic case of sacrifice. 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. in the UK. which he attempts rather desperately to assimilate to the case of murder (or at least attempted murder) by identifying it as a ‘parricide’.158 Oxford Literary Review to be a crime from which the people cannot be absolved. 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. This threat to reason itself is so serious that it motivates Kant’s demand that the death penalty be applied to ‘any attempt’ whatsoever at attacking the sovereign. Kant is an unconditional partisan of the death penalty. Following this example of treason. the sacrifice of what is most high. for example. sometimes perverse identification of the executed with Christ crucified. for it is as if the state commits suicide. the death penalty for murder was suspended in 1965 and abolished in 1969. however. would rapidly lead us into deep and dark waters. for example. (MM. 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. when high treason is no longer punishable by death.

A law that is so holy (inviolable) that it is already a crime even to call it in doubt in a practical way. or expelled (as an outlaw. it cannot and may not judge otherwise than as the present head of state (summus imperans) wills it to. This Bataillean logic. between Socrates’s 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. or even whether they should have followed in this order: For a people already subject to civil law these rationalisations are altogether pointless and. exlex. between the god and the wild beast with which Aristotle compares the apolitical man at the beginning of the Politics (1253a 29). with every right. he would be punished. as a right that can still be called into question (ius controversum) with regard to the obedience he owes it. that is. path.Geoffrey Bennington 159 to be sought paradoxically in the putting to death of the sovereign. and so to suspend . between sovereign and outlaw. exlex ) in accordance with the laws of this authority. guided by what I believe is Kant’s only explicit use of the Latin tag. or whether power came first and law arrived only afterward. If a subject. moreover. which Derrida mentions only in passing in his late work on sovereignty. got rid of. however. wanted to resist this authority. though related. a subject ought not to reason subtly for the sake of action [werktätig vernünfteln] about the origin of this authority.16 In conclusion. that is. threaten a state with danger.15 goes some considerable way towards clarifying the very possibility of any convergence between beast and sovereign. 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. 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). I want to pursue very briefly a slightly different. This occurs just before the remarks about treason and the footnote about the supposedly legal executions of Charles I and Louis XVI. that gives me my title. having pondered over the ultimate origin of the authority now ruling. Whether a state began with an actual contract of submission (pactum subiectionis civilis) as a fact.

even attempting to defend the sovereignty of sovereignty on rational grounds. and that is what the saying ‘All authority is from God’ means. between doubting and doubting-in-a-practical-way to see that what Kant himself is doing here. already taking a position somewhere outside the law even if only supposedly to justify it. in other words. 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. non-factual. whatever its origin. rationally necessary legitimacy of the principle of sovereignty. Deconstruction pursues . 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. Simply by arguing for a transcendental. because no actually existing sovereign is transcendentally sovereign. for. is itself as close as can be to treason. is on this logic already tendentially treasonable. an ‘ultra-transcendental’ thinking that does not collapse into ‘precritical naivety’. even as he affirms the transcendental privileges of sovereignty. Raising the question of sovereignty. This means that Kant’s defense of the death penalty is also the very place to look for the principle of resistance to it: as tendentially ex lex. as Derrida already had it in the Grammatology. it instead sets forth an Idea as a practical principle of reason: the principle that the presently existing legislative authority ought to be obeyed. No sovereign is really sovereign – that’s the transcendental as always only quasitranscendental. by confirming the sovereignty of sovereignty itself. as evidenced in the anxious italics he uses in his text. This saying is not an assertion about the historical basis of the civil constitution. flawless lawgiver. and in a sense cannot fail to be taken. just as in general the most rigorous thinking of the transcendental is the best place to seek for the principle of its deconstruction. Kant always might be taken. (MM. 95) One might sympathise with Kant’s difficulty here. to be arguing against the actual legitimacy of any particular sovereign power. is thought as if it must have arisen not from men but from some highest. Kant’s 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.160 Oxford Literary Review its effect for a moment.

thus opening onto another thinking entirely. Éditions Galilée. Notes 1 Derrida. This dream or phantasy of finishing finitude would then readily communicate with all manner of infinitising schemas that can allow for more or less secret complicities between arguments in favour and arguments against the death penalty. The Beast and the Sovereign. Volume I. or at least explains why that argument cannot in fact be philosophical through and through. to finish finitude. translated by Geoffrey Bennington (Chicago. insofar as it is showing this ultra-transcendental principle of ruination of the transcendental as such. is that the ‘madness’ of the death penalty is that it attempts to put an end to finitude. formulated most succinctly in Session 10 of the first year of the seminars. Volume II (Chicago. 2009). Séminaire La Bête et le souverain. but can be seen to survive in other forms. Volume I (2001–2002). University of Chicago Press. by giving itself the right to an essentially mechanical or machinic calculation and application of the moment of death. 2010). University of Chicago Press. neither affirms the infinite nor simply denies it in the name of the finite. Marie-Louise Mallet and Ginette Michaud (Paris. Volume II (2002–2003). edited by Michel Lisse. as Derrida points out with great sobriety. edited by Michel Lisse. famously. on the other hand. can never be considered truly to be abolished by its factual abolition. for which. Marie-Louise Mallet and Ginette Michaud (Paris. Éditions Galilée. Derrida’s thought. Deconstruction. I want to suggest that this logic (which is consistently present across Derrida’s thinking. . That thinking could not be content with an isolated argument against the death penalty (which. 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 finds its shockingly salient place. The Beast and the Sovereign. 2011).Geoffrey Bennington 161 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. so that any self-righteousness or bonne conscience in this regard would be misplaced). Séminaire La Bête et le souverain. infinite differance is finite. 2008). this logic that just is deconstruction) is what motivates Derrida’s ‘philosophical’ argument against the death penalty. the conceptuality of Western metaphysics itself.

Cf. translated by Jeff Fort (Stanford. Spindel Supplement (2012). Iuvenal [Satires III. translated by T. A Dialogue. Since the man of honor is undeniably less deserving of punishment than the other. . Punishment and Freedom: a Liberal Theory of Penal Justice (Oxford. for the man of honor is acquainted with something that he values even more highly than life. Subsequent references will be to this translation and will be included in the text. while the scoundrel considers it better to live in shame than not to live at all (animam praeferre pudori. DP I. ‘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. both would be punished quite proportionately if all alike were sentenced to death. than life imprisonment. never has any philosophy as such contested the legitimacy of the death penalty. 54.’ Southern Journal of Philosophy. 1952). less rigorous. Hegel.M.’ See note 4 above. 8. Immanuel Kant.162 2 Oxford Literary Review 3 4 5 6 7 8 9 10 11 ‘[N]ever. which earns him Kant’s scorn. 2004). References to this volume will henceforth use the abbreviation ‘MM’ and be included in the text. . See my ‘Rigor: or. For What Tomorrow . ) is itself negative. 274. translated by Mary Gregor (Cambridge.’ Derrida and Roudinesco. the man of honor would . has any philosopher as a philosopher. Oxford University Press. Stupid Uselessness. Actual right is thus the Aufhebung of this infringement. too Alan Bruder. Cambridge University Press. while others on the contrary were out for their private interests. This comes along with the nature of the human mind. 50. namely honor.W. Stanford University Press. For What Tomorrow . and the scoundrel convict labor. G. 124 n3. 83]). §97: ‘The criminal act (. I say that in this case the man of honor would choose death.’ Philosophy of Right. . translation slightly modified. summarising the Kantian position: ‘Murder is an exception because it is the only crime for which there is a known and determinate equal punishment. 105–6.F. 2009). . . §100. so that the punishment is merely the negation of the negation. Oxford University Press. 1996). 20–38. in his or her own strictly and systematically philosophical discourse. The Metaphysics of Morals. Outlines of the Philosophy of Right. Knox (Oxford. see also. 142. is that the death penalty should be abolished because it is less dissuasive. Beccaria’s other main argument. italics in original. Vol. Kant is not alone in this thought: Derrida quotes Marat to the same effect in PM1. . . 146. 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. to my knowledge.

In the first session of the second year of the seminars. that the categorical imperative itself has the whiff of cruelty about it. Republic. In year two of the seminars. At PM1. Derrida comments on this passage in DP II. for example. Developing from Benveniste the notion of an excess involved in the repaying of debts in DP I. and the psychoanalytic thought that the unconscious espouses the talionic principle as a principle of revenge. except for treason. Derrida refers to the state of Michigan suspending the death penalty in 1846. as I point out in a forthcoming paper. Derrida makes a curious and apparently unmotivated detour through Bataille’s Le coupable without really linking it to this logic. commented on by Heidegger (especially in the Introduction to Metaphysics). 5:473c-474a. Derrida identifies a ‘spend[ing] for nothing’ (DP I. We might also bring into this zone the paradoxical figure of the hupsipolis apolis from the so-called ‘Ode to Man’ in Sophocles’s Antigone. This line of thought would then communicate quite readily with the Nietzschean suggestion. Derrida follows Benveniste into the complex and fascinating links between punishment and honor. 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).Geoffrey Bennington 163 12 13 14 15 16 be punished mildly in terms of his sensibilities and the scoundrel severely in terms of his. and rather surprisingly elided by Derrida in his own readings of Heidegger. Session 10. On the other hand. 261) that invites comparison with Bataille’s theory of the potlatch. 254. . sympathetically entertained by Derrida.

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