Death and Derrida
“Une exécution par l’électricité à New-York”, from Le Petit Parisien, 17 August 1890
by Peter Gratton
The Death Penalty, Volume I,
by Jacques Derrida,
Edited by Geoffrey Bennington, Marc Crépon, and Thomas Dutoit
Translated by Peggy Kamuf
Chicago, IL: University of Chicago Press, 312 pp.
It is no doubt a macabre spectacle. In recent years, while some U.S. states have done away with the death penalty after the exonerations of dozens of prisoners, others have worked assiduously to track down the necessary drugs from questionable compounding pharmacies, all to perform executions by lethal injection. As such drugs from Europe, including Phenobarbital, have become harder to procure, given the low profit margin and outsized controversy for pharmaceutical companies, various states from South Dakota to Pennsylvania down to Georgia, have taxed their department of corrections bureaucrats with countless hours of tracking down the anesthetics said to keep the practice of lethal injection from being “cruel and unusual,” while keeping secret the very pharmacies they are using.
In 1972, Furman v. Georgia suspended the death penalty for violating the eighth amendment’s bar on “cruel and unusual punishments” and the fourteenth amendment’s ban on the discriminatory application of the law. This set up a deadly race, as numerous states worked to make their death penalty provisions less “cruel and unusual” — or at least, just not too cruel and unusual so their methods of execution could pass constitutional muster. In 1976, Gregg vs. Georgia reinstated the death penalty, with appellate courts since adjudicating which laws and regulatory practices adhere to the 1976 ruling. It is within this context that various states have worked to find the proper drug combinations to make the practice less cruel, if not less unusual, given the increasing isolation of the U.S. as one of the few Western democracies to still put its citizens to death.
Beginning fifteen years ago, Jacques Derrida’s Death Penalty seminars in the 1999-2000 and 2000-2001 academic years at the École des haute etudes en sciences sociales in Paris have much of this context in mind. Though dedicated to close readings of such abolitionist writers as the French writer Victor Hugo, Derrida continuously returns to the example of the U.S., which he dubs the “most Christian” Western democracy, as well as its predominant use of lethal injection. In 1997, Derrida had given the title of “Perjury and Pardon” to his annual lecture series, and these were themselves a subset of a larger theme on “Questions of Responsibility” that began in 1989 and ended in 2003 with the last of his lectures before his death in 2004. Already published are the two years of Derrida’s seminars on the Beast and the Sovereign (2001-2002; 2002-2003), and the current lectures come from different printed versions and electronic files available at the Institut Mémoires de l’Édition Contemporaine (IMEC, Caen), along with handwritten editions Derrida made to those copies as well as audio recordings for comments he made extemporaneously.
As with the previously published lecture courses — they are appearing about one per year — the translation is excellent, with helpful contextual notes and the French page numbers in the margins for reference to the original text. Very little of these seminars has previously been published, though Derrida gave an extensive interview with Elisabeth Roudinesco in For What Tomorrow…(2004) concerning the death penalty (it is also a great summary of the full two years of seminars) and also provided a preface to Live from Death Row by Mumia Abu-Jamal, the famed activist and death row inmate who became a cause célèbre for those who found him both the voice for and a symptom of a racialized criminal justice system. (Abu-Jamal has since been moved off of death row.)
Nevertheless the reader might wonder why Derrida turns to the issue of the death penalty. Hamida Djandoubi was the last citizen executed by the French state in 1977 and the death penalty was abolished there four years later. The European Union had made abolishing the death penalty a prerequisite for nations, such as Turkey, wishing to join, and all but a few biens pensants in France, it would seem, would call for the death penalty’s return. Where is the supposed radicalism of this famed “deconstructionist” — will his next published lectures come out in favor of vaccinating for polio?
Previous seminars had taken up pressing political concerns, such as the right to pardon and political forgiveness (1996-1998), or questions of immigration and hospitality (1995-1997), and the death penalty would seem a settled issue, at least in France. But Derrida’s argument throughout the lectures is that far from an accidental feature of Western politics, the death penalty derives from a political theology that both sides of the death penalty have as the hidden premise of their arguments. This is because it is inscribed in the Judeo-Christian tradition going back to the prohibition of homicide in the Decalogue, though the Bible also calls for the death of those guilty of not adhering to it. This political theology, he argues, has not been superseded by any supposed secularism or Enlightenment process over the past several centuries in Europe, which can best be seen in the implacable place of sovereignty in our politics — the exceptional and God-like power that decides over life and death both within and beyond death penalty statutes, such as the killing of supposed enemies of the state in both foreign and domestic “police” actions.
In a move that might strike readers as odd, Derrida spends most of these lectures not on the case made by death penalty proponents, with whom he clearly disagrees, but on demonstrating that abolitionists borrow from the same language and historical sources as their avowed enemies. One need not study deconstruction or his philosophical sources from Plato to Kant to Nietzsche to Blanchot to get the point. Opponents and proponents share the language of measuring “cruelty,” of who is adhering most to Christian doctrine and other traditional notions of justice, of making sure only the guilty face the penalty, of the back and forth over utilitarian measures of its effect on crime, and so on. As Derrida puts it, for example, the argument against cruelty rather than against the principle of the death penalty is both strong and weak, strong because it moves and thus motivates, provides a good psychological motivation for the abolition of the death penalty; but it is weak because it concerns only the modality of application, not the principle of the death penalty, and it becomes impotent in the face of what claims to be an incremental softening, an anesthesia that tends toward the general, or even a humanization of the death penalty that would spare the cruelty to both the condemned one and the witnesses, all the while maintaining the principle of capital punishment. (50)
He notes that all “progressive steps” in the application of the death penalty, from the guillotine to lethal injection purport to end the cruelty and lessen the pain of the punishment — for both the watchers and the watched. As in all his work, Derrida is less interested in entering the back and forth of a given binary opposition than in showing how this opposition is both informed by a long tradition and is implacably found in disparate voices adhering to its metaphysics. To put it in the now-old language of deconstruction, the point is to displace the opposition, not merely to favor one side of it, which would leave the opposition in place. Derrida’s central thesis in the lectures — that there has never been a truly philosophical critique of the death penalty — does not concern a prosaic claim about which philosophers have indeed opposed the death penalty, though it should be underlined that none had done so prior to the Enlightenment era of the eighteenth century. Rather the point is to show the death penalty is borne out of a perennial logic structuring the philosophy of the West, evidenced by a political theology very much with us, one that has to be isolated and put into question, that is, deconstructed. In other words, as those to be executed climb the scaffolds to their doom, what led them there was not just a particular crime or country-specific laws, but rather the scaffold of a Western political theology that puts a sacrificial politics at its core — the executed is the one who must be killed for the sake of the many, a transubstantiation in line with Christ’s sacrifice of his body for the salvation of his followers.
For most of the sessions of the lecture course, Derrida begins with a question that will guide that day’s readings. In the very first session, Derrida asks, “What do you respond to someone who might come to you, at dawn, and say: ‘You know, the death penalty is what is proper to man?’” (1). The question hints not only at the traditional time of the imposition of the penalty of death, or a certain literariness to Derrida’s lecture style, but also his linking of the essence of man to the death penalty. Derrida’s lectures then take us through four cases: Socrates, Jesus, Joan of Arc, and Mansur Hallaj. As Derrida notes — no doubt this was his reason for choosing them — each of these figures was put to death in the name of a certain religion, since they testified to a counter-transcendence, and thus were a threat politically and theologically. These condemnations were “issued, then, both in the name of transcendence and against transcendence” (26). His choice of cases are obvious and will strike some readers as too historical to be relevant, but Derrida carefully reads the pertinent texts to show how point by point a similar logic is used in more recent figures such as Immanuel Kant — for Derrida, the most “rigorous” proponent of the death penalty — and opponents such as Cesare Beccaria, Victor Hugo, and Albert Camus. These thinkers, broadly put, support the belief that what is human is what allows man to transcend his animal, all-too-bodily existence. Derrida’s reading of Kant, in particular, is a tour de force: anyone who knows a bit about Kant’s ethics may presume, as my students often do, that Kant would be an opponent of state executions, since any such killing would seem to go against the categorical imperative. Yet just as a long tradition had talked about the sanctity of life and also called for the death penalty, Kant argues that if one wishes civically to demonstrate one’s transcendence over one’s phenomenal existence, “one must raise oneself by means of law above life and thus inscribe from the height of noumenal man [that is, man proper] the death penalty in the law” (124). Thus for Kant, “to make life for life’s sake an inviolable principle, to fail to inscribe death in the law is unworthy of human dignity; it is a return to the state of nature and animality” (130). The categorical imperative of the law, Kant argues, is the lex talionis: if you kill, you should be killed. (He goes so far as to claim that even if a civil society is dissolved, it must kill its last murderers remaining in prison, lest the people become collaborators in the original crime .) Derrida’s attention to the marginal places in a philosopher’s texts comes through well in these lectures, noting Kant’s arguments against administering the penalty for maternal infanticide of children born out of wedlock as well as winners of duels, demonstrating how Kant’s logic is both “rigorous and absurd” (128). The child of unmarried parents, for example, is not a citizen and has, in Kant’s words, “stolen into the republic,” so the state can ignore its “annihilation,” thus separating out a life that has meaning through the law from those that do not—and thus can be killed with impunity.
Echoing without citing Hannah Arendt’s striking formulations in Origins of Totalitarianism, Derrida argues the child is stateless with the consequence, to use a phrase from earlier in the lectures while discussing the death penalty in Plato’s Laws, “that even if the one condemned to death is deprived of life or of the right to life, he or she has the right to [have] rights,” that is, only those with a status within the state can be given the penalty of death (8). Thus Derrida links what Foucault called biopolitics, a politics of what counts as living, to a political theology where through the law one can transcend life, a life that the state can take away. As Rousseau put in the Social Contract, life proper is thus a “conditional gift of the state,” and only then, as Kant’s political writings on the death penalty make clear, does it have what the latter calls the “dignity (Würde)” of the human. In this way, the inscription of the death penalty within the law is a “sign of access to the dignity of man, something that is proper to man,” an answer to Derrida’s question in the first lecture (9). Another way to put this is that what is taken to be a mark of the sovereignty of “man” (the patriarchal language is purposeful, as Derrida makes clear) leads right to the state’s sovereign claim to decide over life and death. Derrida thus joins these lectures to a critique of sovereignty that informs all of his later works, such as Rogues (2003). “Never,” he writes, “is the state or the people or the community or the nation in its statist figure, never is the sovereignty of the state more visible in the gathering that founds it than when itself in to the seer and voyeur of the execution of an irrevocable and unpardonable verdict” (3).
To state what should be clear by now, Derrida will find wanting critiques of the death penalty that rely on notions of dignity, of Christian transcendence, and the supposed inviolability of life, which merely extend the life of the logic of the death penalty — that this life can be sacrificed for the sake of an other, whether the lives of fellow citizens, or the transcendental life of the accused (147). This is why Derrida, towards the end of the seminar, is unconvinced by those who believe in the march of progress towards a day when all countries do away with the death penalty. His first reason is geo-political. As Kant himself noted, there “is no justice in the strict sense, in the legal sense, in the juridical sense, as long as there is no binding force, as long as commitments are not duties to which subjects of the law are held on pain of punishment [sous peine de peine] (80); as any parent knows, there is no law without the threat of punishment behind it. Can we at this point imagine the dissolution of state sovereignties in the face of some supra-sovereign or global entity having the force of law? Derrida is doubtful. Derrida’s second reason for pessimism on this front can be demonstrated by extending this example: any supra-entity would itself have the extra-legal force (police, military, etc.) to enforce the law, to put people under the pain of punishment, and kill if necessary, in order to protect its citizenry. His third reason for pessimism is that there still has yet to be carried out a “non-Christian deconstruction” of the death penalty, one he is obviously seeking to begin in these lectures (11).
This brings us to the most obvious question of the lectures: if Derrida thinks current opponents and proponents of the death penalty share a common sacrificial logic, then how does he come to his own clearly abolitionist views? Throughout his 1990s lectures and writings, Derrida clearly sides with left political views on immigration, feminism, and the rise of libertarian economic ideologies, but all of these positions, he believes, are informed, like the death penalty, by discourses that are deconstructible. As such, Derrida would seem to be taking his positions and then undercutting himself, like finding a place to sit then cutting off the legs of the chair. This is a common question put to proponents of deconstruction: how does one form norms if one says all such norms come from a tradition that is to be put in question?
In several all-too-short pages, Derrida gives something of an answer, at least as regards the death penalty. The premise of deconstruction is that each ultimately finite power that that claims to be infinite — including the infinite power of sovereignty — is a “phantasm.” In short, we are temporal beings trying to make claims even as they are ungrounded by the movement of time and historical change. As Derrida notes in his second to last session of the year, never has the divide between life and death been more up for debate or historically deconstructed than at the time of writing. The daily newspaper reveals this and our growing biomedical ethics industry provides less in answers on this front than a disavowal of a deep uncomfortability over these questions. Obviously, the very nature of the death penalty — the marking of the time of death and so on — presumes mastery over this question (230). Speaking extemporaneously during his tenth session, Derrida says, “with the death penalty, we touch on an alleged calculation that dares or alleges” to take that which is beyond measure — this singular life and its death — and the “scandal” of the death penalty, as he calls it, is that it “dares to claim to measure the beyond-measure in some way” (248). Several pages later, he writes:
The point is that it belongs to life not necessarily to be immortal but to have a future, that some life before it, some event to come only where death, the instant of my death, is not the object of a calculable decision…. The insult, injury, the fundamental injustice done to the principle of life in me, is not death itself, from this point of view; it is rather the interruption of the principle of indetermination, the ending imposed on the opening of the incalculable chance where a living being has a relation to what comes. (256)
For Derrida, the scandal of the death penalty is that it “deprives me of my finitude…of my experience of finitude,” as a living being open to the indetermination of the future. In this way, this calculating decision of the death penalty “seems,” he says, to master the future, to master death, and to put an end to finitude itself. But this is all a “phantasm,” he declares, since of course only a finite being can be put to death. But this phantasm of an infinite power has very real affects, as the technical apparatus that is the death penalty continues on, in the U.S. and elsewhere, while the work of putting into question a whole scaffolding of thought remains to be done to give it its last rites.
About the Author:
Peter Gratton is assistant professor of Philosophy at the Memorial University of Newfoundland.