Bennington, Geoffrey - Ex Lex

Ex Lex
Author(s): Geoffrey Bennington

Source: Oxford Literary Review, Vol. 35, No. 2, Death Sentences (2013), pp. 143-163
Published by: Edinburgh University Press
Stable URL: https://www.jstor.org/stable/43974610
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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 (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: 1 0.3366/olr.20 13.0067
© Edinburgh University Press
www.euppublishing.com/ olr
144 Oxford Literary Review
or pardon in death penalty cases). There is

the case of the death penalty, which Derrida
in contemporaneous discussions with Elisa
What Tomorrow . . . where he claims that no
ever offered a philosophical argument against
startling claim gives some urgency to the sem
all kinds of problems in the types of argume
brought forth to contest the death penalty,
thinks of as the most rigorous philosophical ar
death penalty (i.e. Kant's argument in the Met
attempts to outline what a philosophical resp
might be. Derrida is certainly in favour of t
penalty, but is concerned that most abolition
they invoke issues of efficiency, deterrence,
however effective they may be in practice, fail t
Kantian argument, and are often in fact comp
with discourses that defend the death penalty.
what a 'properly philosophical' abolitionist
look like, Derrida puts a good deal of deconst
philosophical justifications for penal law i
the concept of law as such. In what follows
general schemes of argument that Derrida de
are consistent with his earlier thinking, and n
the transcendental in general.
***
In the discussion included in For What Tomorrow , Der

exceptional position of the death penalty, initially in th
reactionary Spanish nineteenth-century Catholic phil
Cortés (much admired by Carl Schmitt), but then also
Kant, and in passing he confirms that this special
the focus for any true philosophical discussion of the
Derrida refers to 'a universal abolition of the death p
[Donoso Cortés] sees, like Kant in fact (and this is the
philosophical discussion) the very elimination of all cri
goes on:
Geoffrey Bennington 145
[On this view] there would be no longer

no longer any criminal law, without the
penalty, which is thus its condition of poss
you like (at once internal , included: the dea
criminal law, one punishment among others
sure, and external , excluded: a foundation,
an origin, an example outside the series, hy
and other than a penalty).3
This 'transcendental' position of the de

center or perhaps at the summit of c
some sense exemplary of punishment i
lift it above all other punishments, to re
punishments of which it is after all only one
from the realm of that of which it is non
condition of possibility. Criminal law o
its rationale or its exemplary instance in
penalty, just because of this special or exce
from the sphere of the law, to become
something outside the law, a law outsid
lex that is ex lex . This paradoxical status
general, a crux of Derrida's thinking fro
understanding at least) can take on two
valences. One of these, which Derrida som
contraband', involves illegitimately smug
into a discourse that claims to be reducing
(and thereby reducing philosophy as su
conditions - 1 believe that this is exemplar
of all sorts, which surreptitiously rely o
history while claiming to historicise, and t
concepts. Transcendental contraband in
some degree of failure or refusal to think
the discourse in question, some avoidance
and I believe it provides the key to Derri
sciences' more generally, especially in h
This identification of a conceptual weaknes
exploit this structure of transcendental co
that deconstruction is still somewhat philoso

ambitions, and that it insists on at least enter
question.
The other valence of this strange position
which Derrida sometimes (though probably n
commentators, including Rodolphe Gasché
transcendental (he uses the term both in Of
the seminars), exploits the ambiguity of the
itself to complicate the status of the term o
a special or exceptional position (here the
doing questions the coherence of the whol
difference between transcendental contraband
quasi-transcendental on the other must itsel
deconstructive grounds, be thought of in te
than opposition, as in fact itself an effect of
and the space this opens up is the space of
just or not simply theoretical philosophy. Th
philosophy' opens deconstruction onto other
of the literary and the ethico-political. By ide
as having just this kind of complicated 'tran
Derrida suggests, at least implicitly, that we
an appropriate effort of reading, allow for
conceptual scaffolding of criminal law in ge
will mean on the one hand that Derrida's
death penalty, however philosophical he w
be conducted simply within the terms of th
opened up by that same transcendental positi
it will also inevitably call into question more
itself. This is why his seminars on the death p
to be only ambiguously supportive of the
currently configured in the US, and why we mi
his deconstruction of the whole 'scaffold' and
the death penalty should also have some impa
US law (saliently perhaps on the logic of inca
but also on thinking about the supposed right
in the Second Amendment to the constitutio
understood by the Supreme Court and the C
It is no accident that Derrida should i

from For What Tomorrow from which I
appear whenever these general questions o
in Derrida (which is just about everywher
discussed elsewhere,4 Derrida repeatedly
the 'most rigorous' philosophical defens
that any attempt to produce a properly p
abolition (which Derrida famously suggest
philosopher qua philosopher) will have to
that rigor. Derrida's seminars suggest that
up with something like that counter-argu
suggestions in that regard in due course,
because of the logic I have tried to lay out
or 'properly' philosophical.
First, however, I want to put a little mo
motif in Kant's thinking in this respect.
penalty rests on a rigorously formal read
principle: here he is stating it in the Met
extrapolating from it to the justification
specifically:
But what kind and what amount of pun

justice makes its principle and measur
principle of equality (in the position of
of justice), to incline no more to one
Accordingly, whatever undeserved evil y
within the people, that you inflict upon yo
you insult yourself; if you steal from him,
you strike him, you strike yourself; if you k
But only the law of retribution [das Wie
talionis) - it being understood, of course
a court (not by your private judgment) -
the quality and the quantity of punishm
are fluctuating and unsuited for a sen
['strict' here translates the adjective str
translated as 'rigorous'] justice because e
are mixed into them [alle andere sind
und können anderer sich einmischenden Rüc

Angemessenheit mit dem Spruch der reinen und
enthalten ] .5
And, just a little later:
But what does it mean to say, 'If you steal

steal from yourself?' Whoever steals makes the
else insecure and therefore deprives himself
retribution) of security in any possible propert
can also acquire nothing; but he still wants to
possible only if others provide for him. But sin
provide for him free of charge, he must let it h
kind of work it pleases (in convict or prison lab
the status of a slave for a certain time, or perma
fit. - If, however, he has committed murder he
is no substitute that will satisfy justice [Hat er abe
sterben. Es giebt hier kein Surrogat zur Befriedigu
There is no similarity between life, however wr
death, hence no likeness between the crime and
death is judicially carried out upon the wron
Just because there is no substitute or surrog

seem that this is where the principle of the i
embodied. And after a curious and awkwar
show that the death penalty imposed in cases
in fact obeys the principle of the ius talionis
one has never heard of anyone who was s
murder complaining that he was dealt with to
wronged; everyone would laugh in his face if
on 'Accordingly, every murderer (...) must su
justice, as the idea of judicial authority, w
universal laws that are grounded a prion (MM
According to this logic, the death penalty,
for murder, comes to have a special place in
in philosophical thinking about criminal law)
exemplary instance or prerogative of soverei
other authors in the tradition), but becaus
place where the punishment really does fit

reflexive principle as Kant states it, it is
stealing does not in fact provide a rigorous
and penalty, but some kind of calculated o
might certainly be suspected of a degree o
of the death penalty for murder, on the o
appears to be direct and, so one might
think), more rationally satisfying. Just bec
or 'likeness' between life and death (and
between crime and punishment if that pun
the only equivalence to one putting to death
In this case there is an apparently perfect i
principle, and so Kant's entire thinking ab
the sway of this perfect example.6
The clarity of the argument in this salien
penalty, at least when imposed for murder
in Hegel's discussion in the Philosophy o
Hegel's thinking in this regard only a coupl
once in the context of Theodor Reik's iron
dismissal of Hegel's understanding of crimi
is enough just to quote Hegelian formulas s
the negation of the negation7 to get rid of t
and once in a late session where Derrida an
he will later return to a more detailed disc
of Beccaria's abolitionism and his more g
of punishment in §§100 and 101 of the P
mentioned in a passing reference to this b
essay on the place of Kant in Derrida's
penalty,8 Hegel's position can look really
one Derrida systematically describes as 'the
without interest that Derrida alludes to 'a
frontier' between them in this regard, even
never to return to this question as he sugg
Derrida says:
A little later we will look at Hegel's ph

complicated critique of Beccaria (§100) and
talionic law ( Wiedervergeltung der Strafe ); h
that, though it is easy to represent (i darzus

( Absurdität ) of talionic law - as when one says
for eye, tooth for tooth (images that represent
eyed and toothless) - on the other hand, if
inner equivalence of things {das innere Gleich
go to the essence of what the criminal deser
was der Verbrecher verdient hat) and not to the
to the image of the punishment, then we m
equivalence (and thus talionic law) in conform
and with reason. We will no doubt have the o
both the continuity and the discontinuity be
on the death penalty and the talion. Both ar
the Hegelian distinction - between, on the
intellectual equality or equivalence, that of th
on the other hand, rational equivalence on the o
reason and thinking - traces a subtle but perh
between the two, Kant and Hegel, as does th
relation between penal law and the state. We wo
into account the Hegelian discourse on sover
the right to pardon {Begnadigungsrecht §282
it. (DP II, Session 18)
I want to pursue a little this Hegelian ana

be tempted to think is in fact even more
Kant, Derrida' s constant reference point f
understanding of punishment is indeed st
principle, even if he thinks he is purifyin
what happens in Kant. Kant's version of th
we just saw, has a reflexive quality such that
supposedly commit it in a certain sense agains
in an important sense I am the agent of m
just this confirms my status as a rational bei
motif that is repeatedly brought out in the se
merely phenomenal or animal life by rationall
if not in fact, to my punishment, even and
punishment is my death. For Kant, the de
implicitly consent if I commit murder thus
(and this is why it must not be carried out in
my status in this regard, must not be 'cr

but says in the Metaphysics of Morals), H
this, and also locates that consent to punis
on the crime itself, as part of the logic of cr
that 'insofar as the punishment (...) is seen
own right, the criminal is honoured as a ra
this is what Derrida has in mind when he
Beccaria as 'complicated,' because it means
Beccaria that in general 'the people should
punished' (Addition to §100); but (2) disag
agreement cannot reasonably be secured in
(the contractarian aspect of Beccaria's argu
that it is unreasonable for a party to a co
execution as part of that contract10); for
that people should give their consent to be
but the criminal gives his consent already
of the crime, no less than the criminal's
injury initiated by the criminal should be
that Beccaria's abolitionism has had positi
However that may be, Beccaria's ende

punishment abolished has had beneficial
Joseph II nor the French ever succeeded in e
we have begun to see which crimes deser
which do not. Capital punishment has in c
as in fact should be the case with this m
(Addition to §100)
Hegel nevertheless is absolutely commit

death penalty, if not to its widespread use
case of punishment is the death penalty i
disagreement with Kant, insofar as he has
understanding of that paradigmatic case,
how the talionic principle applies to other
strict equivalence is hard to find: in Ka
punished by imprisonment and forced lab
there so often is in Kant's discussion of a
of casuistry. In such cases, some mediating
for the talionic principle to function. Hege

explaining how this happens, allowing us to see
be something unsatisfactory in actual punish
principle functions nevertheless: crime and pu
in what Hegel calls their Value,' which is exp
in the Remark to §101:
the determinate character given by the concept

that necessary connection between crime and
mentioned: crime, as the will which is null in it
its negation in itself and this negation is manif
It is this inner identity whose reflection in ext
to the understanding as 'equality'.
It would be a mistake, however, to see th

claim to empirical or psychological equality. Se
implication is that Kant has not sufficiently clar
we can always make fun of the talionic principle,
as it were:
It is easy enough from this point of view to exh

character of punishment as an absurdity (the
for robbery, an eye for an eye, a tooth for a
can go on to suppose that the criminal ha
teeth). But the concept has nothing to do wit
which indeed the introduction of this specifi
blame. Value, as the inner equality of things wh
existence are specifically different from one an
a category which has appeared already in conn
(see § 77), and also in connection with injurie
of civil suits (see Remark to § 98); and by m
a thing is raised above its immediate charact
In crime, whose basic determination is the
deed, the purely external specific character d
obviously, and equality remains the basic rule d
criminal essentially deserves, though not the sp
that it should take. It is only in respect of that
plain inequality between theft and robbery o
fines, imprisonment, etc., on the other.

however, i.e. in respect of their universal p
they are comparable. Thus, as was said ab
understanding to look for something app
value in this sense. If the intrinsic intercon
negation, and if also the thought of value
crime and punishment in respect of their v
then it may become possible to see in a pu
arbitrary connection of an evil with an u
So the difference between Kant and Hege

to Hegel's sharper use of what is still a K
a realm of the understanding (for which
crime and punishment in most cases d
to be sought, even though they will alw
approximate in fact), and that of reas
equivalence is rationally secured by the
can be taken to be in a sense more rigo
in this respect, and to avoid to some exte
Kant and Hegel, however, the case of t
punishing murder) appears to enjoy sp
understanding of the talionic principle dif
mediating concept of Value' is supposed t
in finding actual equivalents with which
the death penalty (for murder) itself in p
appeal to a mediating value: Hegel says, 'alt
the root of the word Wiedervergeltungsre
talionis as we saw Kant gloss it] cannot
equal to the crime, the case is otherwis
necessity liable to the death penalty; th
the full compass of [a human being's] exi
cannot simply consist in a value, for no
consist only in taking away a second lif
life (at least human life) is beyond value
immeasurable dignity, its Würde), it in
or equivalence. But this incomparability o
curiously, motivates in both Kant and Heg
of any calculus of punishment whatsoeve
of human life seems to collapse into some kind

equivalence or identity which is, then, both t
the lex talionis (and thus the most rational an
example imaginable) and a situation where
even get started, as it were, because the equiv
punishment is supposedly immediate (and ther
an equivalence ). This curious status could then
more 'Nietzschean' position Derrida takes in
the salience of the death penalty example w
not being able to be entered into any such
where the supposed immediacy or unmediate
law in the case of the death penalty for mur
that there is no possible equivalence to be fou
in an improvised remark reported in Session
the seminars, 'it is a matter of an excessiven
without proportion, without commensurabili
relation that is proportional to the crime.
dares to claim to measure the beyond-measure
(DP I, 248, nil). Although I do not think t
presents the matter this way in his seminars,
death penalty (for murder) seems then to con
of its quasi-transcendental status, and the
that seem to ensue (such that the death pena
most and the least spiritual punishment, both
and pure in what Hegel calls its 'specific equal
the originary blind spot and the quasi-teleolo
the talionic principle) - these paradoxical c
encourage the thought that it is, as it were,
analysis. And this would also explain why the
itself to both a 'primitivist' reading as a mark
by Christianity at least according to Matth
formal reading as in Kant's canonical formulat
On this view, then, the specificity of the dea
has, as I suggested, less to do with any partic
sovereign, and more to do with this peculiarly
paradoxical embodiment of the talionic princ
to do with the way it concentrates a parad
question as pointed out by Derrida in the v
seminar, in the context of the ten comma
between the 'Thou shalt not kill' commandment and the 'or else
you'll 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 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, 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 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. 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 inflicted in a duel between
military officers, 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,
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
can go both ways, as it were, simultaneously

reason, honor and dignity on the one hand,1
of barbarity on the other, is further evident
possible cases of conspiracy involving many a
solidarity between transcendental purity and
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 find 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 people's feeling by the spectacle of a slaughterhouse), then
the sovereign must also have it in his power, in this case of necessity
( casus necessitatis) y 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, 107-8)
On this reading, then, it would not be excessive to claim that the

death penalty, as exemplary of the purely formal, rational and reflexive
logic of the lex talionis and yet as simultaneously quite the other thing
too, itself generates the figure 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 field of right. The highly paradoxical and even
Geojfrey Bennington 157
aporetical quality of the death penalty in

much deeper than could ever be handled
must be carried out without 'any mistre
humanity in the person suffering it into
106). On our reading, something abomin
principle from the start and this 'someth
affect or infect Kant's political and ethica
The question of the death penalty as
something Derrida discusses much late
second year of the death penalty semi
contrasts Kant and Robespierre. Here is
earlier in the Metaphysics of Morals than
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)y 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, 96-7)
This, a well-known moment in Kant's 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 sovereign's 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
1 58 Oxford Literary Review
to be a crime from which the people cannot be ab

if the state commits suicide. (MM, 97-8n)
In other words, Kant is an unconditional partis

except when an attempt is made to apply it to
results in a kind of short-circuit of reason its
compute' that leads to self-destruction and the
reason itself is so serious that it motivates Kant's demand that the
death penalty be applied to ťany 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 confirming 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 Derrida' s death-
penalty 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 definition still includes, alongside plotting the murder of the
sovereign, 'committing adultery with the sovereign's consort, with the
sovereign's 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 identification of the executed with Christ crucified,
be it in Hugo or in Genet. We might also, for example, point to
Bataille's insight that the putting to death of the sovereign is in a sense
the paradigmatic case of sacrifice, the sacrifice of what is most high, the
sovereign sacrifice - and so the paradigmatic moment of sovereignty is
to be sought paradoxically in the putting t

Bataillean logic, which Derrida mention
work on sovereignty,15 goes some conside
the very possibility of any convergence b
between sovereign and outlaw, between
with which Aristotle compares the apolit
the Politics (1253a 29), between Socrates's
of the philosopher-king in the Republic a
of the violent and perhaps murderous rea
likely provoke.16
In conclusion, however, I want to pur
different, though related, path, guided
only explicit use of the Latin tag, exlex,
occurs just before the remarks about tre
the supposedly legal executions of Charles
motivates the claims Kant there makes abo
of the sovereign:
A people should not inquire with any prac

origin of the supreme authority to which it
ought not to reason subtly for the sake of acti
about the origin of this authority, as a ri
into question {ius controversum ) with rega
it. For, since a people must be regarded
a general legislative will in order to j u d
about the supreme authority [ Staatsgewalt
cannot and may not judge otherwise tha
state {summus imperans) wills it to. Whet
actual contract of submission {pactum sub
or whether power came first and law arrive
whether they should have followed in this o
subject to civil law these rationalisations are
moreover, threaten a state with danger. If
over the ultimate origin of the authority n
this authority, he would be punished, got
outlaw, exlex ) in accordance with the laws
with every right. A law that is so holy (inv
crime even to call it in doubt in a practic
its effect for a moment, is thought as if it

from men but from some highest, flawless law
the saying 'All authority is from Goď means
assertion about the historical basis of the civil
sets forth an Idea as a practical principle of
that the presently existing legislative authority
whatever its origin. (MM, 95)
One might sympathise with Kant's diffi

in the anxious italics he uses in his tex
(or imagine the sovereign putting) the sl
distinction between reasoning and reasoning
action, between doubting and doubting-i
that what Kant himself is doing here,
transcendental privileges of sovereignty, is
treason. Simply by arguing for a transcenden
necessary legitimacy of the principle of sover
confirming the sovereignty of sovereignty it
taken, and in a sense cannot fail to be tak
the actual legitimacy of any particular sover
actually existing sovereign is transcendentally
is really sovereign - that's the transcenden
transcendental. Raising the question of sover
to defend the sovereignty of sovereignty on
this logic already tendentially treasonable, a
somewhere outside the law even if only supp
rigorous defense of the death penalty as root
so surprisingly the most promising place to l
its radical contestation, just as in general th
of the transcendental is the best place to see
deconstruction, for, as Derrida already had i
an 'ultra-transcendental' thinking that do
critical naivety'. This means that Kant's defe
is also the very place to look for the princip
tendentially ex lex , the philosopher-outlaw s
of the sovereign and also of the death pen
as he shows up the tendentially collapsing st
indeed of the transcendental position as such
and exacerbates this internal collapse and t

being brandished an outlaw and being at
banished from the city.
I want to suggest that this logic (whi
across Derrida s thinking, this logic that j
motivates Derrida's 'philosophical' argumen
or at least explains why that argument can
through and through, insofar as it is show
principle of ruination of the transcendent
formulated most succinctly in Session
seminars, is that the 'madness' of the death p
put an end to finitude, to finish finitude, by
essentially mechanical or machinic calcula
moment of death. This dream or phantasy
then readily communicate with all manner
can allow for more or less secret complic
favour and arguments against the death p
the other hand, for which, famously, infinit
affirms the infinite nor simply denies it in
opening onto another thinking entirely.
content with an isolated argument against
Derrida points out with great sobriety, c
to be abolished by its factual abolition,
in other forms, so that any self-righteou
this regard would be misplaced), just becau
death penalty (which is something other an
abolition) would entail the deconstruction
in which it finds its shockingly salient
Western metaphysics itself.
Notes
1 Derrida, Séminaire La Bête et le souverain, Volume I (2001-2002), edited by Michel

Lisse, Marie- Louise Mallet and Ginette Michaud (Paris, Éditions Galilée, 2008);
Séminaire La Bête et le souverain , Volume II (2002- 2003) , edited by Michel Lisse,
Marie-Louise Mallet and Ginette Michaud (Paris, Éditions Galilée, 2010); The
Beast and the Sovereign , Volume /, translated by Geoffrey Bennington (Chicago,
University of Chicago Press, 2009); The Beast and the Sovereign , Volume II
(Chicago, University of Chicago Press, 201 1).
2 '[Nļever, to my knowledge , has any philosopher as a

strictly and systematically philosophical discourse , nev
contested the legitimacy of the death penalty.' Derri
Tomorrow ... A Dialogue , translated by Jeff Fort (St
Press, 2004), 146; italics in original.
3 For What Tomorrow . . . , 142; translation slightly m
4 See my 'Rigor: or, Stupid Uselessness,' Southern Jou
Spindel Supplement (2012), 20-38.
5 Immanuel Kant, The Metaphysics of Morals , tr
(Cambridge, Cambridge University Press, 1996), 105-
will henceforth use the abbreviation 'MM' and be includ
6 Kant is not alone in this thought: Derrida quotes Mara

274. Cf. too Alan Bruder, Punishment and Freedom: a L
(Oxford, Oxford University Press, 2009), 54, summa
'Murder is an exception because it is the only crime fo
determinate equal punishment.'
7 Philosophy of Right, §97: 'The criminal act (...) is
punishment is merely the negation of the negatio
Aufhebung of this infringement.'
8 See note 4 above.
9 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.
10 Beccaria's other main argument, which earns him Kant's scorn, is that the death
penalty should be abolished because it is less dissuasive, less rigorous, than life
imprisonment.
11 '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
be punished mildly in terms of his sensibilities an

of his. On the other hand, if both were sentenced
would be punished too severely and the other to
107). Derrida comments on this passage in DP II
12 In the first session of the second year of the sem
into the complex and fascinating links between pu
13 This line of thought would then communicate
suggestion, sympathetically entertained by Derrid
itself has the whiff of cruelty about it, and the
unconscious espouses the talionic principle as a pr
14 At PM1, 254, Derrida refers to the state of Mich
in 1846, except for treason.
15 Developing from Benveniste the notion of an e
debts in DP I, Session 10, for example, Derrida id
(DP I, 261) that invites comparison with Bataille'
two of the seminars, Derrida makes a curious an
through Bataille's Le coupable without really linki
16 Republic , 5:473c-474a. We might also bring in
of the hupsipolis apolis from the so-called 'Ode t
commented on by Heidegger (especially in the In
rather surprisingly elided by Derrida in his own
out in a forthcoming paper.

Bennington, Geoffrey - Ex Lex

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Ex Lex

Author(s): Geoffrey Bennington

It can seem surprising that Derrida should have devoted two

The Oxford Literary Review 35.2 (2013): 143-163

or pardon in death penalty cases). There is

In the discussion included in For What Tomorrow , Der

[On this view] there would be no longer

This 'transcendental' position of the de

that deconstruction is still somewhat philoso

It is no accident that Derrida should i

But what kind and what amount of pun

und können anderer sich einmischenden Rüc

And, just a little later:

But what does it mean to say, 'If you steal

Just because there is no substitute or surrog

place where the punishment really does fit

A little later we will look at Hegel's ph

that, though it is easy to represent (i darzus

I want to pursue a little this Hegelian ana

my status in this regard, must not be 'cr

However that may be, Beccaria's ende

Hegel nevertheless is absolutely commit

for the talionic principle to function. Hege

the determinate character given by the concept

It would be a mistake, however, to see th

It is easy enough from this point of view to exh

fines, imprisonment, etc., on the other.

So the difference between Kant and Hege

of human life seems to collapse into some kind

can go both ways, as it were, simultaneously

And so here too, when sentence is pronounced on a number of

On this reading, then, it would not be excessive to claim that the

aporetical quality of the death penalty in

There is, therefore, no right to sedition (. seditio ), still less to rebellion

This, a well-known moment in Kant's political thinking, leads in a

must be regarded as a complete overturning of the principles of the

to be a crime from which the people cannot be ab

In other words, Kant is an unconditional partis

to be sought paradoxically in the putting t

A people should not inquire with any prac

its effect for a moment, is thought as if it

One might sympathise with Kant's diffi

and exacerbates this internal collapse and t

1 Derrida, Séminaire La Bête et le souverain, Volume I (2001-2002), edited by Michel

2 '[Nļever, to my knowledge , has any philosopher as a

6 Kant is not alone in this thought: Derrida quotes Mara

9 G.W.F. Hegel, Outlines of the Philosophy of Right , translated by T.M. Knox

be punished mildly in terms of his sensibilities an

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