The Death Penalty
“I insist on this because
I will be speaking above all of political theology
and of the religion always present at the death penalty,
of the death penalty as religion” – J. Derrida
The book The Death Penalty (Volume I) offers the first of two years of seminars Jacques Derrida devoted to the subject of the death penalty. The volume shows Derrida interrogating the Western philosophical tradition about its treatment of the death penalty, paying special attention to how literature compares to philosophy on this count. Ranging from themes such as sovereignty and political theology to cruelty and anesthetics, the seminars demonstrate once more Derrida’s unique place in the history of philosophy, and provide a new perspective on the inconvenient, seemingly intractable debates that surround capital punishment in the days where 48 of 49 European nations abolished the death penalty (which remains) legal in 32 US states). Originally offered at the École des hautes études en sciences sociales (EHESS) in Paris, within the frame of its “Philosophy and Epistemology” program, the first sessions collected in Volume 1were also the basis of teaching Derrida did at the University of California, Irvine throughout a five-week span in the spring of 2000 and again in 2001, as well as New York University during the fall 2000 and fall 2001. Derrida addresses the subject of the death penalty as rooted in religion, punishment, sin, sacrifice, redemption, blood, passion, agony, fascination, anesthesia, the cross, the theatrical, the guillotine, and cruelty among others, topics that a reader of Derrida should have no surprise about. From his first words, Derrida confesses having “doubts on this subject” ... “[because] the death penalty, as the sovereign decision of a power, reminds us perhaps, before anything else, that a sovereign decision is always the other’s. Come from the other” (Derrida, 2). In Derrida scholarship, the Death Penalty Seminars refers to both Volumes One and Two. Derrida’s purpose in the Death Penalty Seminars, crafted in this volume, is to deconstruct the various discourses for and against the death penalty, to uncover why there has been no proper philosophical argument against capital punishment, and ultimately, perhaps, to construct such an argument himself. To use my own words, the question remains: why no text in the Western tradition has managed to philosophically critique the death penalty? .
The book he book e book book book ook ok k is article looks at The Death Penalty (Volume I) in order to summarize each of Derrida’s 11 sessions printed in the book, including an analysis of their central points. Alongside this examination, I intend to focus on two particular subjects that caught my attention from this volume. The first matter is associated with the political power of the sovereign state presenting itself as the one to decree and to execute; I find Derrida’s narrative of the theological-political concept of the sovereign privilege over life and death (in view of abolishing capital punishment) one that should be understood in terms of the unconditional renunciation of that sovereignty. The second subject relates to the modern discourse of human rights, which sets itself up explicitly in opposition to the death penalty on the grounds of its excessive cruelty, albeit that argument disappears when the cruelty of the execution also disappears from the scene. Derrida defines this incongruous discourse as “the anesthesial argument” (49). By the end of this essay, there will be closing remarks in response to Derrida’s thesis as well as what personally interested me in the book.
During the First Session of the first year of his Death Penalty Seminars, December 8, 1999, Jacques Derrida introduces the subject with a question: what do you respond to someone who might come to you and say: “the death penalty is what is proper to man”? (1) and insisting that he will be speaking, above all, of political theology and of the religion of the death penalty, of “the religion always present at the death penalty, of the death penalty as religion” (2). Furthermore, in the book it is highlighted in a footnote that Derrida clarified the direction of his sessions by clarifying that “it is obvious that in [his] my argumentation and in the pathos, you will hear, [his] my discourse is going to be abolitionist” (5). To deeply examine the role of the state (the power) associated with the clerical or religious authority to condemn and execute, Derrida proposes an exegetical analysis of four historical accounts portrayed in literature: the Apology with the accusation lodged against Socrates; the Jesus case and the question of a judicial dispute, of a trial, and of penal law; the Joan of Arc execution; and the fourth example arrives historically between the last two with Hallaj, whom Derrida calls “my Muslim, if one may say that” (22). Brilliantly analysed by Derrida, he wishes to extrapolate these cases to evoke trials with thematic religious content and execution, specifically being put to death by a state-political agency or the law itself, starting with the judgement inherited from the code of Exodus 20:1-17 (“Thou shalt not kill”), an ethical law, the same law “that commands the juridical, or penal, law, the death penalty for the criminal who transgresses the ethical law” (19). In historical order, Derrida calls for Socrates, Jesus, Hallaj (922 CE), and Joan of Arc (1431 CE) to underline the complaint, accusation, a religious incrimination aimed at a blasphemous offense against some sacredness put into effect by the one in power, “which thereby signals its sovereignty and its sovereign right over souls and bodies” (22). In other words, the essence of sovereign power presents and represents itself as the right to decree and to execute a death penalty.
Derrida returns to two key questions: “what is the death penalty?” and “what is the essence and the meaning of the death penalty?” (22-23). To respond to these inquiries, he proposes to reconstitute this history and this horizon of sovereignty as the hyphen in the theologico-political. However, he has his doubts to whether the whole history and its concept, as well as the concept of horizon, would resist a deconstruction. To the long and continuously open list of historical events that legitimized the death penalty, Derrida offers a few more, from the French Revolution to the U.S. in the 1980s, that points only to provide a first small idea of “the torturous complexity of this history, but especially in order to follow the inheritance or the tradition of the logic of the “judgements.” Socrates is accused of having introduced new gods into the polis, breaking the established order; the Jesus case (case implies a question of a judicial dispute, of a trial, and of penal low) with the religious accusation taken up by a sovereign (clerical) and executed under the power of the sovereign; Hallaj, called “the perfect lover of God,” condemned and executed “for cried out ‘I am the truth,’ literally Christlike words, words of a Christ who is not content to say, as Socrates did, that he is merely seeking truth” (22); similarly with Joan of Arc and the religious incrimination aimed at a blasphemous offence against some divine sacredness. The analogical comparison between the four examples comes together under the scope of denunciation of a cult of false gods. The four condemnations are issued both in the name of transcendence and against transcendence, and all four have a theological and political message across a whole cultural, political, juridical, and religious history of the death penalty. All four of these figures, Derrida underscores, were condemned by the state not because they challenged the state and its sovereignty from some areligious or atheological position, but because they had an explicitly religious or theological message, a kind of counter-theological or theologico-political message that threatened the power and authority of the state. For that matter, Derrida stresses that these examples are not meant to simplify readings, “our interpretations, [and] our work ... [because] we are not here to simplify,” (27) as if he would imply the simplifications found within courtrooms. Derrida wants us to remember where we are coming from, to keep in mind that it is the case of our first condemned one, the Greek, Socrates, that led us here.
“Deconstruction, what is called by that name,
is perhaps the deconstruction of the death penalty, of the
logocentric, logonomocentric scaffolding in which
The death penalty is inscribed or prescribed.” –J. Derrida
Derrida’s opening remarks for the Second Session on December 15, 1999 also poses a question: what is an exception? He addresses the collective references people normally use when speaking of the exception/s to the rule/s by suggesting that his problematic “of the exception will no doubt be the most reliable articulation between the questions of pardon, perjury, and the death penalty;” (47) that is, the exception of types of execution and the motif of cruelty. Derrida finds that the argument or the logic of cruelty from abolitionist discourses is concerning because of the general philosophical problem of the relations between sensibility and reason. On the one hand, all discourses that legitimize the death penalty are, first of all, discourses of state rationality using a universal claim and structure. In other words, the claim of a structure to follow that the state has the monopoly of right, of the machine of state. On the other hand, the abolitionist argument, “in its logic and its rhetoric, to the point that if one could find a means of attenuating or even of causing cruelty to disappear [...] as if one could make the death penalty to disappear, could be maintained” (48). In short, the discourse does not state the abolition of the death penalty, it simply focuses on a theory of pure sensibility. Derrida calls it “the anesthesial argument,” (49-50) which merely pleads for a less cruel and less painful application of the state rationality.
What is clear for Derrida is that the current abolitionist discourse based on this motif of cruelty does in fact enter into the axiomatics of the right to the death penalty instead of contesting it. What’s more, this kind of logic is what allows people (i.e., U.S. citizens) to vastly be in favour of the death penalty “on the condition that it be administered by lethal injection and not by gas chamber, hanging, firing squad, or electric chair, as if presented on a theater of cruelty. However, this whole theater of cruelty, says Derrida, is put under the sign of fascination, that is, “what is going to tie voyeurism, [or] the desire of drama to the charm, [...] what links the voyeur-spectator to the fascinum” (58). This voyeuristic fascination and theatre, historically inherited from medieval accounts of community experiences of religious theatre of execution (Derrida recommends reading Badinter’s The Execution), can be seen today re-enacted in movies where the audience expects the spectacle, the cruelty, as in the community experience of religious theatre of the Christian Passion or Incarnation (the Jesus Case). Cruelty and exception, after questioning each one, and with respect to them, Derrida reflects on the ties between both; two guiding threads that “knot together to interweave around the immense corpus and through the dense history of the death penalty as theatre of cruelty,” (69) the precise words Derrida emphasizes at the end of this session and reiterates at the beginning of the next one.
By the beginning of the Third Session, on January 12, 2000, Derrida takes up his previous analysis of the question of cruelty and exception around the death penalty. The deconstruction and analysis of the subject, though motivated by an enduring impulse in putting an end to the ongoing practice of capital punishment not only in the U.S. but around the globe, still scrutinizes the discourse of the death penalty held from both sides. With that said, it is highly emphasized that ultimately, one of the most fragile arguments remains within the question of cruelty, raised within the modern discourse of human rights, which sets up explicitly in opposition to the death penalty under the argumentative logic of a preferred humane death without cruelty and with a minimum of bloodshed, an argument that Derrida calls “an anesthesial logic” (49). In sum, Derrida claims that the classical argument against the cruelty of the death penalty essentially leaves untouched the unconditional principle of the death penalty and its application. Under these opening remarks, we see a perplexed Derrida stressing the irony of presenting a seminar on the death penalty on the year of the jubilee, “the second millennium of the Christian era, where will have been the year in which the number of executions reached its highest record in the United States since 1976” (73) when it was reinstated; a sinister record that makes him to question the concept of “States of the Union” (ibid.). When Derrida underlines a long list of southern states, with a large black population, holding up a shocking number of executions (i.e., Florida, Missouri, Texas, Virginia, Louisiana), statistics back him up. At the same time, he finds that this data is:
... enough to remind us that one can understand nothing about the situation of the United States faced with the death penalty without taking into account a great number of historical factors, the history of the federal state, the history of racism, the history of slavery, and the long, interminable struggle for civil rights and the equality of backs, the Civil War, the still critical relation of the states to the central government and federal authority, the ethics of so-called self-defence that over arms the population to a degree unknown in any other country in the world, a feeling of explosive insecurity unknown in Europe, against the background of social and racial inequality ... (74)
Derrida is not even mentioning here the enormous historical weight religion has in this account, and the tremendous question of Christianity and its substantial influence within those historical reports. Nonetheless, Derrida does this deliberately. He leaves this subject aside to later question the growing force of the abolitionist movement in Christian countries where perhaps, by supporting the death penalty, would betray both the abolitionist cause and the spirit of Christianity. Or, on the contrary “is the force of the abolitionist movement linked to the growing of an atheist humanism or of a secularization that no longer wants to accept the death penalty that trusts in the justice of heaven after death?” (75). Here we can see Derrida’s point on the resistance to abolitionism in the United States. The past and its historical accounts must be considered when deconstructing those events that may explain such a reticent resistance to abolitionism, invincible in a country strongly marked at the heart of its culture and its political institutions by religion, the Christian religion; he stresses how crucial it is to keep in mind the relation between religion and the death penalty as “this conflict has two interpretations and two instances of the Christian Passion, the Gospels, and the church” (ibid.). In short, Derrida sees the U.S. as a Christianised political order.
With this in mind, how does he see the death penalty embedded in the theologico-political? He brings up earlier the “cases” of the condemned ones (Socrates, Jesus, Hallaj, and Joan of Arc) with “the religion incrimination carried out by the political sovereignty that is capable of carrying out the execution” (21) and the power over life and death embodied in the death penalty must be understood as “the essence of sovereign power, as the political but first of all theologico-political power” (22). One wonders how an unprecedented majority of nations in the world adhered to the abolition of the death penalty, some of them with European and Romano-Christian roots. Moreover, how can a minority of the countries resisting or will likely resist abolitionism pressures happen to be most powerful states (i.e., U.S.) On the last remark, I find his use of the word pressure very important and crucial for Derrida’s next analysis. The United States is standing against an international background, says Derrida, “to which we should pay the closest attention [...] as in the near future all the states that maintain and apply the death penalty are going to find themselves accused more and more by international law that put an increasing pressure” (79). He does admit that any pressure first might come as symbolic, either internal or external, but perhaps juridically mandated later. Although I respect and have a high regard for Derrida’s optimistic reasoning on this pressure for change, I hesitate to admit any positive outcomes due to the U.S.’s incontestable hegemonic control over the global economy; I doubt that any economic partner will dare to raise an eyebrow against this sovereign power when there is a profit sealed between parties.
“I vote for the pure, simple, and definitive
Abolition of the death penalty” –V. Hugo
Derrida begins the Fourth Session, January 19, 2000 with Victor Hugo’s proclamation from 1848, spoken from the podium of the Constituent Assembly. It is no coincidence, states Derrida, that “this proclamation precedes by one century a new Declaration of Human Rights (1948) where in its Article 3 asserts the right to life and the security of the person” (99); in both cases, there is a direct and loud voice called “proclamation.” Derrida wishes to underline the question of the “right to life” as a human right and of this single living being that is called human, or the inviolability of the human life as Hugo highlights. He cleverly uses Hugo’s writings and his philosophical and religious inferences, especially underlining the word “person.” Before returning to the subject of the death penalty, Derrida wants to take the measure of Hugo’s words at the time, including the “inviolability of human life” (101), which proposes a revolutionary change that goes against the original Revolution of 1789 and the theater of the guillotine that is the whole of the French history of the death penalty. Derrida examines under a close lens, “the right of the writer to write and speak publicly against what is still the law and thus to act against the law” (105); as he traces the European abolitionist tradition and literature from the 18th-century writers such as Cesare Beccaria to Victor Hugo and Albert Camus, he expresses concern that the arguments mobilized against capital punishment rely on many of the same Christian doctrines invoked by its proponents.
One of the key remarks of this session by Derrida is that literary discourse has been able to spread abolitionist sentiment ever since at least Victor Hugo’s early 1820’s novels. By “literary discourse” he means literature in the modern sense, and in the sense, we still use it, which is a mode of writing that sets apart and protected by law as literature; he calls this the “right to literature” (117), a right that, in principle, must be granted in a democracy. As such, it is sustained that the inviolability of human life is not only linked to the death penalty but also brings complications in the name of the same principle. Derrida refers to the Christian principle of the sanctity of life and the “almost violent campaigns against the voluntary interruption of pregnancy and abortions in general” (121) and the “right-to-life” movements that come to be unleashed. The arguments held by militants in the name of the right to life of the human person (from conception and gestation) moves Derrida to insist that “the right to life is always specified in law as right to human life” (ibid.). Furthermore, and to tackle another complication of the right-to-life statement, he offers a side note to point out that most of these militants, ironically, commit violent acts (killing) against doctors who either perform or assist interruption of pregnancies in clinics, ironically, they are in favour of the death penalty in addition to holding the no-intervention when it comes to the right to euthanasia, the suffering, compassion, and/or “the cruelty of the relation to the dying and around the determination of the state of death” (121). Again, the theological-political apparatus in which the death penalty is inscribed, the condemnation of the death penalty cannot be condemned philosophically without challenging the way theological discourses help underwrite it. In other words, theological issues are at the center of Derrida’s analysis.
We consistently see in the seminars that Beccaria and Kant are invoked as examples of thinkers within the classical discourse around the death penalty. In the Fifth Session, held on January 26, 2000, Derrida references Kant as the source of the most rigorous argument in favour of capital punishment and as “the purest ethico-juridico-rational formulation of the necessity of the death penalty” (124). In other words, what Kant intends to demonstrate is the categorical imperative of penal justice where according to justalionis, homicide must be punished by death. On the other side of Kant’s “categorical imperative of penal justice” (125) where homicide must be punished by death, Derrida extrapolates the Kantian rhetoric by offering Beccaria’s attacks of the death penalty on the grounds that it does not prevent or decrease crime. I must confess that Derrida’s analysis of Kant’s logic behind the categorical imperative, that is, a pure imperative and its pure calculation that removes any interest, empirical, or sociopolitical end, is the most intriguing aspect of this session, as is the most striking philosophical readings of this section on Derrida’s discussion of Kant as the most rigorous defender of the death penalty. The absolute law, the principle that must remain and remain intact, as Kant addresses, says Derrida, ignores factual times when legislation (civil constitution) remains barbaric and underdeveloped. Or in Derrida’s words, “there are times (and these times are empirical situations even if they endure and are found everywhere) where the people abbey subjective motives that are in disagreement with the objective rules” (127) and these two juxtapositions stands between the state of nature of the citizens and the law. His analysis is intricate but toward its conclusion Derrida is led to remark:
Hence the extraordinary rationality but also the stupid uselessness of this Kantian logic [...] as if the categorical imperative, which in any case remains, is one day to be in agreement with customs, the culture, non-barbarity, and civilization, are necessary, which is to say: it would be necessary for women no longer to have children out of wedlock and for there to be no more cause of duelling, for the sense of honour to be respected in fact by morality, then the knot will be untied. (127) Derrida, in other words, shows the extraordinary paradox of this Kantian position, which seems absurd when the history of morality as well as of civil society will come to a point where there is no discord between the subjective motives and the objective rules. In the end, “the categorical imperative presides over the death penalty will be fully coherent, with neither cruelty nor indulgence” (ibid.) but of course, the sentences to death will continue. The categorical imperative, the pure talionic law (jus talionis) of a life for a life and a death for a death, is inscribing the death penalty under the law, “the possibility of the death penalty, that is, of the law as what raise homo noumenon (thing-in-itself) above homo phaenomenon (above the empirical life), belongs to the structure of the law” (127). For Kant, no law can be founded on the absolute value of phenomenal life, that is, of empirical, subjective, contingent life. He insisted that beyond the value of this life, yours or mine, there is, there must be priceless law and reason. According to Derrida, this logic implies that to seek the abolition of the death penalty is to understand nothing about the law and to understand nothing about what transcends the value of life where the categorical imperative is elevated above all exchange; “no law will be founded on an unconditional love of life for its own sake, on the absolute refusal of any sacrifice of life” (128). Kant also defends the death penalty against those who advocated abolition in the name of the sanctity of life, in particular Cesare Beccaria, whose 1764 treatise Of Crimes and Punishments had significant influence throughout Europe and beyond. What is intriguing is that Derrida too critiques the sanctity-of-life or right-to-life argument of the abolitionists, but from an altogether different angle than Kant’s. Rather than the right to or sanctity of a phenomenal life that is always someone’s, yours, or mine, he proposes us to acknowledge how every “my-life” is conditioned by the other and the life of the other and how that affects or should affect any response to the death penalty.
If the previous session showed an astounding analysis of Kant, “the greatest thinker of the purest morality in the history of humanity” (158), Derrida’s Sixth Session held on February 2, 2000, goes the extra mile by including Frederick Nietzsche to further examine the Kantian morality and the categorical imperative. I cannot deny the subjective affiliation with Nietzsche’s Genealogy of Morals and the tremendous impact it had on me as an undergraduate student so, this session was a real treat. Throughout the seminar, Derrida dwells on the term interest to show that there is no philosophical, literary, religious, or even legal position in relation to the death penalty that is immune from the question of interest. One can notice that Derrida’s interpretation of Nietzsche’s texts does not directly address the subject of the death penalty, but he exceptionally offers quotes where lines unmask an “all-powerful interest hidden behind the discourse of disinterest of the Kantian type conditions the legal doctrine of the death penalty” (144). Bringing Nietzsche into the conversation allows Derrida to set his audience into two directions, yet within the spectrum of The Genealogy of Morals. The first one relates to the subject of interest and the second to the subject of cruelty. Better yet, the interest of cruelty and the interest in cruelty. What I find crucial in this section regarding the question of interest is that it can be found in the two cases, the two parties (abolitionist and anti-abolitionist); this is what seems to drive the two discourses. However, Derrida questions the secret interest that drives the two sides of “absolute disinterest” (141). The alleged disinterest and/or the so-called pure interest of pure reason; this is a Nietzschean type of query. The Kantian interest on one side of this equation lies in pure reason, no arguments here. But that is precisely the point for Nietzsche when he attacks Kant, the “Kantian-type gesture alleging the disinterest that supposedly raises itself above life, that supposedly sacrifices the living,” (ibid.) whereas, according to the Kantian logic, what motivates abolitionists of the death penalty concerns with the inviolability of life and of the right to human life. What we see within this rationale is how “the law produces a hostility to life, hostility to life inherent to life itself, “to the itself of life it is found right on life and disinterest is still the symptom of a repressed interest” (142). In other words, we find the same argument and the same objection (either disinterest, ethics interest, or what moves you) from Hugo’s abolitionist discourse as well as from the proponents of the death penalty as categorical imperative. Simply put, Nietzsche reverses this approach by claiming, in Derrida’s words, that the motivation hidden behind the motifs of disinterest go well beyond the concerns, “just as much as the abolitionist and anti-abolitionists are afraid for themselves; they seek to gain release from a sentencing or a threat of a verdict-and from the torture that this threat constitutes” (145). As a result, Derrida, interpreting Nietzsche, stresses that in this logic of “the differential of cruelty rather than of the opposition between cruelty and non-cruelty, there is no true, original place for a debate for or against the death penalty [...] and both postulations can find inspiration in Nietzsche’s discourse” (148).
Derrida finds that the question of the death penalty does not have an original place, no originality, which requires to interpret it in a non-juridical fashion; “the cruelty of putting to death is not a matter for law” (ibid.) and Nietzsche accuses Kant and the categorical imperative of cruelty, a hypocritical cruelty that gives itself airs of keeping its hands clean, says Derrida, a cruelty that has “the odour of blood and torture, and Nietzsche is going to name the pleasure taken from causing that suffering” (149). Religion played a big role in these festivals of cruelty, “cultivating ritual sanction and holy fervor, thus sustaining the belief, making cred(it)-able this equivalence at the heart of punishment” (152), and Derrida finally asks, in analyzing The Genealogy of Morals, why would inflicted pain, a compensatory cruelty, be a recompense for suffering injurious wrong? Derrida tails Nietzsche into the history of Western commercial exchange and into the history of debt and repayment, discerning a crucial belief that invents the otherwise unbelievable / incredible equivalence of crime and compensatory cruelty. It is on this last statement where we find what Derrida questions regarding economy: “might there be an economy of the death penalty?” (166) He does not make religion the sole agent in this history, as both religion and theology gave credibility to the idea that an imposed injury could be equivalent to, and so recompense for, crime suffered or debt unpaid. Reinforced by religious belief, cruelty thus runs deep, says Derrida, in social exchange, indeed in all life (154). Going back to The Genealogy of Morals, Nietzsche does not read crucifixion as a simple sentencing to death or by a theological-political power. His interpretation links the theologico-political origin as an extraordinary ruse of cruelty in the logic of debt and payment or redemption of the debt: “God sacrifices himself to death in the person of his son to redeem man, to pay the debt or the guilt of man and the sinner” (156), and what accompanies this law of cruelty, for a finite debt, “the compensation in psychic cruelty responds to it by a pleasure of cruelty that becomes infinite” (163). Hence, the enigma of Christianity and of the infinite counter-pleasure in cruelty, “the counter-pleasure that goes to the limit of itself [...] the spectacle, the jubilation motivated by a counter-pleasure” (163). In the end, and I cannot agree more with Derrida on this point, what makes Nietzsche important is that whether one agrees with what he writes or not, what is significant remains in what he suspects in those who advocate interest and those who allege disinterest. Now, and going back to the question of economy and the death penalty, Derrida will address it while pinning Marx in the following session.
The Seventh Session of the seminar was held on February 9, 2000 with the opening question of economic motifs behind the death penalty. It also discusses the possible interest within the social or national state body, or even global state in maintaining, or in suspending capital punishment. Derrida reminds us about the “penalty as a payment” and that “no one can dispute that the concept of penalty, penalty as cruel suffering, has an economic sense of buying back or redemption in a market” (166). This is the subject I found the most interesting from the session. The interest plus the socio-political motifs for upholding or contesting the death penalty where those interests come from class; Derrida brings up Marx’s logic to this examination, including a critical analysis. Let us get straight to the Marxist logic where, whether the death penalty is maintained or abolished, “one can always decipher in these two policies a class reflex or interest, the calculation of an economy and an economy that always puts in play the proper of property, capital, and labour” (175). Even if one despises Marxism, there is an undeniable fact of the aggravation of the death penalty in the United States where we see:
... the indisputable fact that those sentences to death are in a disproportionate manner, in a very large majority, black and unemployed, poor proletarians, who can deny that what we have here is a political justice as class justice, even if one includes in it many other overdetermining factors, such as the history of slavery and racism (175). As for Marx, Derrida stresses, at the time he is writing about the Revolution of 1848, is equally the abolition of the death penalty that extrapolates a calculating interest of the bourgeoisie. As per the facts highlighted above, most Americans are familiar with how much capital punishment and incarcerations at large affect the poor proletarians (using Marx’s words) as well as a variety of arguments against capital punishment. Those include that it fails to deter crime, it is disproportionately directed against minorities, it violates the constitutional prohibition on cruel and unusual punishment, it contributes to the glorification of violence and revenge as the essence of justice, among many more. The question remains in whether these ethical positions at a level of sociological, cultural, or psychological argument actually touch the more foundational principles of the doctrines that inform, and are informed by, philosophical defenses of the death penalty. Derrida warns that one is not obliged to agree with Marx, but after a closer look, the death penalty “must also answer to a certain interest, to a socio-political situation, to a relation of forces, and to a relation between the state and civil society that holds power in the state” (176). Of all of Marx’s texts Derrida brings into this session, there are two statements to keep in mind. The first has to do with the interpretation of the legal, juridical, legislative phenomenon of the abolition of the death penalty “on the basis of an analysis of the socio-political situation [and/or] the social antagonisms that determine conditions of security or insecurity for life of the citizens who hold power” (178); the second is the critical analysis from Derrida on that Marx’s idea appears to quickly reduce juridical or judicial phenomena to a mere ideological effects of the class struggle. More so, he does not consider “the relative autonomy of the juridical that includes parliament” (179). Derrida supplements his comments by citing the example of France in 1981, where, in order to deal with both the European movement under way and certain conservative members, the death penalty was abolished. This was done at a time when a general referendum among citizens would have given a resounding no to the abolition of penalty in the country. If the theologico-political is the first subject Derrida is deeply immersed in throughout this book, the Christian church and the death penalty is the second; he effectively traces the struggles and contradictions with two fields in Christianity, which entails “divine law of abolitionism against divine law of the death penalty” (182).
On February 23, 2000, Derrida opens the Eighth Session by stressing that “no history of the economy of the death penalty will be possible without a history of blood.” (191) The blood, from the sacrificial of Christ’s blood in the experience of the Eucharist and the transubstantiation, to the disappearance of the blood within the rhetoric toward abolition attached to the image of the disappearance of la guillotine, have inexhaustible symbolism. Derrida analyses the logic, the rhetoric, the philosophical, and the religious semantics of the subject of blood and furthermore, the writings of Hugo regarding the inevitable (but slow) triumph of abolitionism of the death penalty by the removal of the guillotine. What I find fascinating about the subject of blood and la guillotine is how their interpretations, arguments, and images have evolved. On the former, Hugo’s proposal of the purification of the blood; on the latter, from its original progressive view to execute in a humane way, to its later image of a cruel-bloody, or as Hugo called it, “infamous machine” (205). Regarding its original meaning/interpretation/purpose, Derrida puts forward the question: what must man be (the humanity of man have been), to have embraced, inscribed, incorporated the guillotine, and interpreted it as a machine that serves the dignity of man? A comment made by Derrida reveals that the inventor of this machine, Doctor Guillotine (considered the hero of euthanasia), was ironically a former Jesuit and member of the Society of Jesus before studying medicine. Derrida tries to find the sense behind the history of this doctor and fellow of a medical corporation, also a member of the Society of Jesus, and the origin of the “humanitarian machine, who nicknamed it in the feminine, la guillotine” (193).
In order to understand the guillotine, Derrida offers a good grasp of its historical frame when it was proposed and approved from the Constituent Assembly. In other words, approved by law and under a proposed reformation of the monarchical penal system. The project was considered progressive in spirit, “therefore inspired in a certain way by the Enlightenment, which as it is not in contradiction with Christianity, with a certain Christian humanism, leads one to think about the complexity of relations among Enlightenment and Christianity” (195). As a side note, we can tighten this rationale to Kant, the Enlightenment man who was a deeply devout Christian but also a rigorous proponent of the death penalty (as highlighted earlier) in the name of ethical purity and human dignity, “the same ethics of which the Christian religion alone is in an essential way the religious representation” (ibid.). It is intriguing how Derrida suggests an analogy of the figure of the death penalty to a medical diagnosis or prognosis in its medical figure that causes one to see that the death sentence is sentenced to death. Simply put, the death of the death penalty seems to bring “and end of the end, after a process of senescence, senility, debility [...] this agony of la guillotine may go on, but in the end, it will go to term, like an organism justly condemned” (202). Additionally, the analogy of the guillotine as an instrument that ends cruelty and the blood, although “this humane machine allows one to avoid soaking one’s hands in the blood of one’s fellow men and brothers” (199). The guillotine’s speech has been lost, says Derrida, and all that remains is the proposed legislation:
We can recognize in the logico-teleological structure of these argumentations a false debate between those who, like Hugo on one side, see in the death penalty a phenomenon that cannot be abolished except in the name of Christ, and, on the side, those who like Camus think that abolitionist horizon is a horizon of atheistic humanism-given that one can accept the death penalty only by believing in divine justice in the beyond (208-209).
These two positions on abolitionism appear incompatible to Derrida. Nowadays, the abolitionist discourse, even if it claims to ahistorical principles (such as the right to life or human rights), has remains from history, “of European history, of Christian Europe, that gets itself constructed by mean of the Enlightenment, revolutions, declaration of the rights of man [human], and so forth” (212).
Two themes grabbed my attention from Derrida’s Ninth Session (beginning of March 2000). The first, when Derrida ponders the questions of the “how” (the modality) or the “when” (time length) of one’s death; the unknown, the uncertainty, the questions that hold or are granted a privilege Derrida thinks must be analysed. The second subject analyses how the condemned to death see time and its uncertainty in the character of Meursault, Albert Camus’s book L’étranger (translated in English as The Stranger or The Outsider), which, as a side note, is one of my favourites. In both of the selected topics, time is present.
There is another component to the subject of time, and it is linked to cruelty, because “one cannot think cruelty without time, the time given or the time taken, time that becomes the calculation of the other” (220), the one who becomes a subject and a calculating decision. The question of time remains in the unknown of when death will come upon an individual. He brings back, as in the previous session, the redness of the image of blood linked to the present time in the following words used by no other than Doctor Guillotine when presenting the invention of his daughter la guillotine to the Constituent Assembly:
“The mechanism falls like a bold of lightning,
the head flies off, blood spurts out, the man in no more.” –Dr. Guillotine
As a careful reader, Derrida highlights the time, or the tense of its verbs, in the present, a present instance that does not last. This is intriguing as he finds the lightning, not only as the times that does not last but also, like the bold of lightning “gathers a flash without duration of God’s sentence, the Last Judgement, and the act of punishment striking down on the sinner” (222). Derrida finds two features that matter to him; the two intersect since they associate the instance of death of the other, the stranger, the outsider. The above passage shows “an alleged indubitability of death, a certainty without appeal, and of an efficacy that the machine does not need to start over a second time” (224). Again, the theatrical metaphor, the theatrical scene that includes the spectators represented by this machine also incorporates a stage director “praising his spectacle from the head stagehand” (ibid.). It is worth noting a footnote from the translator highlighting that Derrida ironically reminds his audience that “it’s a doctor who is speaking, don’t forget that” (224.5).
Algeria, the memory of Algeria, and the death penalty is addressed by Derrida in an attempt to support his examinations by quoting Camus’s Reflections on the Guillotine and the historical or philosophical interpretation he proposed. Camus’s analysis of the subject, mostly taken from the first passage by Derrida, reflects a “genealogical or to do with filiations,” (227) which Derrida cannot avoid due to his own connection with the place and the author. What makes Camus’s book L’étranger a classic is that no matter how many times one reads it, there will always be a new idea on which to focus. I found the symbolism of “the sun” that blinded Meursault a metaphor for his naïveté; Derrida highlights Meursault’s unintended killing of the Arab “because the beach was red” (230) as an exemplary representation of the red as a violent colour that recalls murder but most of all, blood. As we recall from Meursault, the main character in L’étranger, has neither an explanation nor a justification to give during trial for his act, which would clear him of guilt to some extent; he did not mean, he did not intend, to kill or to harm. On that thought, Derrida points “to think, a contrario, that whoever kills deliberately and while giving himself some reason, while giving meaning to his act, has already entered into a system of symbolic justification that appeal to a code of law, a universal law” (231). In other words, if I kill and I know why I kill, says Derrida, even if a court has not yet heard my case, I kill by condemning to death as regards universal law.
Going back to his introductory question, what is death? Derrida postulates that on the subject of death, the question cannot give us “some pre-comprehension of the meaning of the word death, a supposed pro-comprehension on the basis of which the question and its elucidation would develop” (237) and his hypothesis is that all the assumed pre-conception, including all refined semantic-ontological analyses of its meaning must rely on the so-called common sense. If the Tenth Session of the Seminars were titled, it would be “what is worth more than life, is human dignity.” Derrida consistently refers to the idea of life at the base of the death penalty as a fundamentally theological concept; not explicitly religious per se, but it is theological in its spirit as the dignity Derrida refers resembles a sort of infinite life of the spirit. So, the deconstruction of “the death penalty ultimately resides in demonstrating that this idea of life is a phantasm, a powerful idealization found on the rejection of mortality and finitude” (256-258). Derrida offers a persuasive rhetorical question regarding a radical approach toward deconstruction that involves a “self-deconstruction within the Catholic church and its self-proclaimed status as a religion of forgiveness” (244) and this entails the Pope, the Holy Father (by the time Derrida expresses these notes, March 15, 2000, it was John Paul II). Derrida uses John Paul II’s trembling voice, which, “in a Parkinsonian trembling, dares to commit the whole history of the Catholic church, two thousand years of Christianity, in an act of repentance [...] nine-four requests for forgiveness that included the Jews, the Crusades, the Inquisition, forced conversions, Galileo, and much more” (ibid.). This is the theologico-political gesture that Derrida highlights. The theologico is linked the Pope’s position as the Head of the Catholic Church, while the politico is aligned with the Pope as the Head of the State, the Vatican State. The self-deconstruction to which Derrida refers here is the subject of forgiveness: “to ask forgiveness or to pass through the ordeal of forgiveness” (245). Additionally, Derrida sees the gesture of this dying Pope asking forgiveness as a novel one, “so audacious, which perhaps only someone dying can permit itself” (246), like someone sentenced to death imploring mercy and forgiveness, this image of a dying church pleading forgiveness. Still, Derrida underscores, concerning the death penalty itself, that the Catholic church has not yet formally condemned its practice and “has never ceased to favour or approve throughout the same history of events to which is requesting forgiveness” (ibid.).
As per the forgiveness the Catholic church concerns, Derrida questions the strict sense of the death penalty, of the expression death penalty, and the condemnation beyond its strict juridico-legal sense. With that premise, he wonders what happens when one is guilty of a murder perpetrated against a culture (cultural genocide), a community. Can one condemn to death a community? “Can genocide be presented as a condemnation to death? For there to be condemnation to death [...] it is necessary, at least in principle, a system of justice, a code of law, a scene of judgement” (253). His point focuses on how genocide, or the putting to death an anonymous entity, such as language, culture, community, does not partake of this logical concept of condemnation to death. Derrida suggests that a certain mindset is the ultimate ground of the deconstructive critique of the death penalty, and he takes, as highlighted in almost all previous sessions, a clear argument in direct opposition to Kant. However, at this stage of the Seminar, Derrida confesses an even stronger position to a deep commitment to life:
I say straight on, yes, I am against the death penalty because I want to save my neck, to save the life I love, what I love to live, what I love living [...] That is my interest, the ultimate resource of my interest as of any possible interest in the end of the death penalty. It is to protect life [;] it is in the name of life. The abolitionist struggle, in my view, must still be driven; it can be driven, motivated, justifies by an interest but by another interest, by another figure of interest that remains to be defined (254-255).
What Derrida suggests, at least what I can sense, could be understood in terms of another interest; a strong abolitionist position must have a fundamental stake, he insists. Under that premise, Derrida wishes to prove that, contrary to what abolitionists (such as Hugo) would have us believe, they fail to appreciably weigh the true value and inviolability of human life. We have seen throughout earlier sessions how Derrida notes what makes the arguments in favour of the death penalty impressive, and it is not about a devaluation of human life but rather a kind of hyper-valuation, a commitment to the absolute and transcendental value of the person's humanity, or what Derrida describes as a “kind of infinitization of human finitude” (258). This radical thinking of finitude is for the deconstructive critique of the death penalty, where Derrida argues that what the death penalty deprives one of is not simply life but finitude: “the supreme form of the paradox, its philosophical form, is that what is ended by the possibility of the death penalty in not the infinity of life by on the contrary, the finitude of my life” (256). In other words, that “infinite perversity of the death penalty is that it would seek to put an end to finitude” (257).
On the Eleventh Session, the last one of the first year of The Seminar on The Death Penalty, Derrida quotes long fragments: one passage from Kant’s the Doctrine of Right, regarding the legal execution of the guilty and the conditions and norms imposed; and a few passages from Montaigne’s On Age, from which he carefully underscores two concepts “that might risk not receiving all the emphasis [he] would like to give them” (278). First, is the concept of force (strong, powerful), the force of a strong opinion that is “strong enough to cause someone to espouse it at the cost of his or her life” (279); the second word and/or concept Derrida picks is that of religion. Both, “the essence of this force of opinion strong enough to cause someone to espouse it, to support it, at the cost of his or her life, is what is called religion, the religious of religiosity” (ibid.). According to Derrida, Montaigne is speaking of all religions, as they grant the surviving of survival. In other words, this discourse of strong opinions to rise above life, as in the condemnation to death, “this collection of opinions on the essence of opinion, is a thesis, or at least a hypothesis of Montagne’s on the essence of the religious, where the religious of the religion is always the acceptance of sacrificial death and the death of penalty” (ibid.). On the last remarks, Derrida moves his attention to the image projected by the “time of the agony of the Son of God and the absolute anesthetic; the system of Christian justification of the death penalty playing the role of anesthetic” (276) (i.e., the priests and the ritual of confession assigned to temporarily alleviate the suffering and to promise heaven and survival). He reveals that he had long meditated on this strange hypothesis of a compromise with the death penalty, the compromise that involves “the anesthetic meant to desensitize imperceptibly.” (281) Derrida is postulating about the discourse from abolitionists and anti-abolitionists on alleviating the cruelty of the death penalty and the more humane execution anesthetics bring with the “painkiller that would dispense death like sleep, that would let death surprise us in our sleep” (ibid.). However, Derrida adds that it would also be necessary to find an anesthetic that could spare some sensibility too. Among other things, he observed that even if capital punishment were abolished in every country on earth, this would by no means constitute an end to the unique dynamics of violence and subjugation with which such stories confront us: “even when the death penalty will have been abolished on earth, it will survive; there will still be some death penalty, other figures will be invented for it, other turns in the condemnation to death” (282).
“Anesthesia and religion, there is a program” –J. Derrida
This article aimed to summarize Derrida’s 11 sessions included in The Death Penalty (Volume I) that provided an analysis of the central points of each presentation. Now, and as a way to conclude the essay, I intend to underline two subjects I found that encapsulated Derrida’s powerful presentations. First, the political power of the sovereign (i.e., an institution or state) that self-presents as the one to decree and to execute; the second subject connects to human rights, setting at times in opposition to the death penalty on the grounds of its excessive cruelty. In matters of reflections or remarks in response to Derrida’s thesis, which have captivated me from these sessions, I would like to underline the concerns around the theologico-political, deeply rooted in the death penalty discourse. The death penalty is, in these traditions, a guarantee for the dominant religion and for the state. From his first session, Derrida states that if we want to ask what the death penalty is or what the death penalty means, we must reconstitute the history of sovereignty as the hyphen in the expression “theologico-political.” I stand behind his proposition that to understand the theologico-political we need to eliminate preconceptions and recognize that we do not really know what “theologico-political” means; the key to understand this hyphen, Derrida argues, is to analyse the historical frame from which the death penalty developed.
“All the philosophers I know are, or have been,
in favour of the death penalty.
Some of them are against it in their hearts
but not in their philosophical system” –J. Derrida
In these sessions Derrida works, as usual, on the history of the Western philosophical tradition and what I found fascinating is that he uncovers the remarkable fact that, throughout this tradition, no rigorously philosophical argument has been passed down against the death penalty. Derrida is asking what this absence or silence signifies but also seeking a principle for the necessary refusal of the death penalty. When Derrida offered an abolitionist view from literary writers, I question how the literature he presents that indorses (to a certain extent) his view of the death penalty, differs from philosophy or his philosophical view. Nonetheless, later one can understand that this distinction is not un-deconstructable, as Derrida might put it. One of the things Derrida is up to in these lectures is deconstructing both views and the affiliation toward the death penalty and how to respond to the question, what is the death penalty? Derrida’s choices include, on the anti-abolitionist side, the traditional philosophical discourse (i.e., Kant’s categorical imperative of penal law); but for abolitionist writers such as Hugo and Camus, the death penalty is an abominable, indefensible thing that must be refused, argued against, abolished. As I can read from Derrida’s words, he displays a great deal of admiration for this abolitionist discourse in its poetic or literary tradition and he reads it, in other words, also as a philosopher. Maybe I am not as hopeful as Derrida, but it remains to be seen whether the eradication of capital punishment would simply give birth to the emergence of a new, but no less strict, order of life and death.
Derrida, Jacques. The Death Penalty, Volume I. Translated by Peggy Kamuf, Edited by Geoffrey Bennington, Marc Crepon, and Thomas Dutoit. University of Chicago Press, 2014.