My lecture tonight on Derrida and the Death Penalty (another to follow next week to finish out the book)

Derrida and the Death Penalty

8 March 2017

We are each of us assigned a death, we are sentenced to it even before we can form a single sentence, and we live always already dying or perishing (sterben oder verenden), a distinction at the heart of Derrida’s deconstructive analysis of Heidegger’s thinking of death in Aporias that we explored at some length last week, not least since this distinction makes the cut between the human and the animal, between that which can transcend its animality (this will have great import in these lectures) and have a certain dignity (Würde) worthy of the name, and that which is just living (nur-leben). Thus we give to ourselves the power or possibility, the can-be (Seinskönnen) of death that belongs to us like no other possibility; it is for Heidegger, our “ownmost possibility…not to be outstripped.” We saw that Derrida argued in Aporias that we can’t conceptually, logically, which is to say, phenomenologically have death with or at hand; it may be a matter of grave concern, but it cannot fall within the circuit of our circumspective concern (whether as Care [Sorge] in general or as Besorge or even Fürsorge, since in solicitude one mourns to the being-there that is no longer there). Derrida’s thesis then in Aporias is that Heidegger’s distinction between the human and the animal is precisely where a deconstruction of Being and Time must begin, and this follows his dictum in TATTIA that if one wishes to deconstruct a thinker, one should always begin precisely where they place, or try to place, the difference between the human and the animal. Perhaps for this reason, you’ll allow me to begin with a bit of a deviation, as if I wanted to stave off death and the death penalty a bit longer, as if I’m filing an appeal with you for a bit more time to make the case, to provide a defense, and thus have death as still “not yet” today.

Yesterday, “The Stone,” The New York Times’ section written mostly by those who call themselves philosophers, published “If We Are Not Just Animals, What Are We?” by Roger Scuton. He doesn’t use the German “nur-leben” of Heidegger, but I invite you to read and then unread this relatively short article, because it credits a belief, or is rather indebted to a belief that is scarcely believable (or at least to the animal that therefore je suis):

Do any other beings, animal or otherwise, belong to [the kind of thing we are]? And what follows? These questions lie at the center of philosophical inquiry today, as they have since the ancient Greeks. In a thousand ways we distinguish people from the rest of nature, and build our life accordingly. We believe that people have rights, that they are sovereign over their lives, and that those who live by enslaving or abusing others are denying their own humanity. Surely there is a foundation for those beliefs, just as there is a foundation for all the moral, legal, artistic and spiritual traditions that take the distinctiveness of human life as their starting point.

I am willing to credit all of this, to take it on faith that this is true: indeed the human-animal distinction provides for a whole thinking of rights, sovereignty, and for all manner of Western “moral, legal, artistic, and spiritual traditions.” This is undeniable, but everything happens in the form of a kind of plaintive whine, of a cry that it’s necessarily the case that this is the case, though I can provide no evidence ultimately for the claim, and thus my claim must be nothing other than the fiat that can only say “Surely there is a foundation for those beliefs.” Nothing is less sure, as we’ve seen in recent weeks. Let’s look to see what the l’animal que donc je suis (I use the French for the obvious reasons of its ambiguity between “I am” and “I follow” we discussed some weeks ago). Scruton writes:

We human beings do not see one another as animals see one another, as fellow members of a species. We relate to one another not as objects but as subjects, as creatures who address one another “I” to “you” — a point made central to the human condition by Martin Buber, in his celebrated mystical meditation “I and Thou.” We understand ourselves in the first person, and because of this we address our remarks, actions and emotions not to the bodies of other people but to the words and looks that originate on the subjective horizon where they alone can stand.

He’ll end by saying that because of these facts, we philosophers, we who call ourselves philosophers—it’s what I say to you and how we address ourselves and each other in this seminar room—can have something left to do, which is to “make sense of the human condition.” There is no doubt that we address one another, that there is this this I that I follow after, but on the whole, all this comes down to whether we are, as this rejuvenated Cartesianistic subjectivism; though the subject is something like the Descartes-effect; he never uses the term but he is its starting point, no doubt despite all of the doubts he must overcome to say in the Second Meditation, “I think, I exist,” and it is true whenever I say it. Scruton makes no scrutiny of this fabulous claim that “we human beings” (who is this “we”?; we are said to be a “kind,” a genus, and hence we can do a genealogy of this thinking all the way back to Aristotle’s thinking of the human genus as the zoôn logon echon) “do not see one another as animals see one another,” since we see each other as one of a common species. If this is the test of our dignity, of not just an animal, then we must mark out every moment when we are less than human, when we don’t recognize others and ourselves as part of a common species: the human humanizes itself precisely in that moment when it says what is not human, and therefore not of its kind or kin, and thus we have never been less human than at that very moment when we dehumanize—on Scuton’s account—the Other, and even the Other that we are. Animals, he all but says, do not respond, but react, they do not recognize each other as such (recall that Heidegger said as much about the as such), as such and such a member of common project or species, even though, of course, we didn’t need the era of Trump to cash out that anything is less sure than humans seeing each other as part of a common species.

But what is common? That we say “I” to the other, and to the Other in me. What a power to grant oneself, to nominate oneself, to name and thus substantialize oneself as a subjective substance—over and against a “Thou” or you. All based on the idea of what we think the animal sees when it sees another, and thus our transcendence over nature, of animality, and the animal that therefore je suis, is based on nothing other than the phantasm of what this human, Scruton, thinks he sees when he sees one animal seeing another. “I am, I exist” is true every time I say it, according to Descartes, and thus those that cannot say it don’t exist, do not have substantiality or subjectivity, simply because they don’t say it. This is what we philosophers are assigned to do now, according to Scruton, less we deconstruct (but not destroy) the very traditions that rely on the sovereign fiat that “surely there must be a foundation” for our most common beliefs, for our common sense that tells us that we have something in common when we see each other seeing each other.

And because we can see each other seeing each other in a way that animals can’t, we can die and we can also be given the penalty of death. Every culture, Derrida writes, is ultimately sacrificial: it takes one as uncommon to the common of a given species and puts it to death in the name of that common. Today I’d like to focus on one major claim in Derrida, a claim that is, unlike the above, supported by ample textual, historical, and other evidence. He writes (and here I quote at some length):

If one wants to ask oneself “What is the death penalty?” or what is “the essence and the meaning of the death penalty” [Thus the death penalty would be a what, it would have an essence, it would answer to the first question of philosophy: ti esti? What is….x?] it will indeed be necessary to reconstitute this history  and this horizon of sovereignty as the hyphen in the theologico-political [that is, the sacrificial religiosity that links the political and the theological]…It is not even certain that the concept of history and the concept of horizon resist a deconstruction of these scaffolds. … History, the concept of history, is perhaps [I will highlight each of his uses of this term] linked, in its very possibility, in its scaffolding [he is clearly trading on the metaphor of the scaffold on which the death penalty takes place, a scaffold whose technics and techniques are intrinsic to the scaffold of philosophy, he ultimately says] to the Abrahamic and above all the Christian history of sovereignty, and thus of the possibility of the death penalty as theological-political violence. Deconstruction is perhaps always, ultimately, through the deconstruction of carno-phallogocentrism, the deconstruction of this historical scaffolding of the death penalty, of the history of this scaffold or of history as scaffolding of this scaffold. Deconstruction, what is called by that name is perhaps, perhaps [he himself repeats and emphasizes] the deconstruction of the death penalty.(23/50)

Derrida’s focus, even 18 years ago in the 1999-2000 and 2000-2001 academic years on the death penalty can seem even then anachronistic—the death penalty in France had for several decades been abolished, and certainly biopolitical modes of putting to death (poverty, lack of health care, but also the living death of solitary confinement in the U.S., Canada, and elsewhere) had come to the fore politically 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.  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.

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 you 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 [272].) 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.

Life then, 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).

I will leave aside what this would look like for next week, but let us return to the question of “what is the death penalty?” The problem is clear from last week. Recall that for Derrida, For Derrida, “death is always the name of a secret” (A, 74). And thus he will argue in The Death Penalty lectures:

I believe on the subject of death, the question, what is death?—which is perhaps preliminary to the question of death given or life taken [donner la mort] (by suicide: to take one’s own life; by murder, to take someone else’s life; or by capital punishment, a singular form of putting to death)—I believe on the subject of death, the question, what is death? Cannot let its vertigo make the head spin in a simple hermeneutic circle that would give us some pre-comprehension of the meaning of the word “death,” a supposed pre-comprehension on the basis of which the question and its elucidation would develop. (323/237)

The questioning of death leads into others as well. Can one “purely, simply, and definitely,” as Victor Hugo stated in the 18th century, take a stand against the death penalty? For readers of Derrida, the ultimate thinker of contamination, there will be a skepticism, however much he merits Hugo and his stance against the death penalty, that one can purely take a stand—this goes back to the rhetoric of the passive decision we discussed last week and the fact that Derrida is an heir—in however complicated a fashion—of Freud and the discovery of the unconscious. The self’s lack of transparency to itself (here I would also recall Derrida’s invocation of the indecidability in the moment of decision between the hypothetical and categorical imperatives in Kant) would obviate any such purity of heart, as we would say, however much we would support Hugo and want to believe in such a purity of heart, in such a sovereign and masterful purity to vote purely, simply, and definitively. And perhaps this should also lead us to critique Roger Scruton’s view that I can ever “purely, simply, and definitively,” speak of the I that I am.

Derrida’s premise, as we’ve seen, throughout is that the death penalty is inscribed in the theological-political traditions of the West: it speaks us, not the other way around. Thus he will be looking for those places where Hugo and others he reads—standing valiantly no doubt against a certain death penalty—inscribes the very language that has always stood for the death penalty. But one also would need to think what would need to be “destroyed” to “destroy” the death penalty once and for all:

[I]t is a question of attacking the foundations or the presuppositions alleged by the law or by public opinion wherever the bases of this law or the underpinnings of this public opinion, this doxa [opinion or custom], or this orthodoxy uphold the death penalty; it is a question of destroying the discursive and other mechanisms, the supports [les étayages], the phantasms, and opinions, the drives, the conscious or semi-conscious or unconscious representations, that work to legitimate the death penalty. (153/102)

That is, there is no chance of destroying by sovereign fiat all that produced the death penalty, all that produces its considerations within and beyond us, involving as it does a whole network of discursive and other mechanisms that are its “supports.” In this way, too, this is a good place to note, too, that deconstruction could never be a simple rejection of the Western tradition; it could never destroy all that remains of it within and beyond ourselves when it speaks through us, through our words, through our conscious, semi-conscious, or unconscious “decisions.” We belong, we take on (in the double sense, to use Michael Naas’s apt formulation) this tradition, even if we reject it, and perhaps all the more so when we do so: revolution, “the new,” and so on are particularly Western notions as well. We will see this in Hugo’s own use of Christian language, and in this way, the tradition acts on us like a particularly tough bear trap: it tightens on us all the more we try to break free. This is, I think, a central dictum of much of Derrida’s writing.  As Derrida puts it a bit later, “We will verify this repeatedly: Hugo’s abolitionism is profoundly Christian, Christlike, evangelical” (156/104).  In short, Hugo will argue that the death penalty is the human law; its abolition is “divine.”

What is it that this tradition shares? After a long discursus on Blanchot and his non-explicit favoring of the logic of the death penalty, Derrida lays out, in a long paragraph one might easily miss, the logic of the death penalty in the West. Let’s walk through step by step here:

[Blanchot] reproduces the argumentative core, the classic philosopheme of all the great right-wing [why only right wing?] philosophies that have favored the death penalty, such as the logical core of Kant’s philosophy of right and of Hegelian philosophy. The dignity of man [l’homme], his sovereignty, the sign that he accedes to universal right and rises above [s’éleve au-dessus] animality is that he rises above biological life, put his life in play [il met sa vie joue; at play as in “at stake”] in the law, risks his life and thus affirms his sovereignty as subject or consciousness. (170/116)

We should pause to discuss this: clearly the notion of the “dignity of man” is Kantian, and all of Derrida’s later work will be a contesting of sovereignty, of thinking the difference, as we saw in the Rogues, between the unconditional and sovereignty. Let’s continue with this paragraph:

A code of law that would refrain from inscribing the death penalty within it would not be a code of law [perhaps quickly here we should mention that the archaic Roman 12 tables as well as the Decalogue provide for the death penalty from the moment there is law, from once we have left Eden as it were, which is precisely repeated in the social contract theories from Hobbes to Locke to Rousseau, that is, where we have entered the political, once the Fall has occurred, there is the death penalty]; it would not be a human law, it would not be a law worthy of human dignity. It would not be a law. The very idea of law [note well the scope of the claim, though he seems to have Kant in mind (since Kant will say precisely this)] implies that something is worth more than life and that therefore life must not be sacred as such; it must be liable to be sacrificed for there to be law. (170/116)

Breaking off again, for those interested, Derrida here, I think, is turning back on an earlier view of his in the 1990s. In the Gift of Death, Derrida had claimed that “sacrifice”—he was giving a reading of Kierkegaard’s Fear and Trembling—is our everyday relation to the ethical. (This is something I had critiqued in Derrida in fact, well before seeing he had done so in these more recently published lectures.) As we have seen in our readings thus far, Derrida believes we are faced with multiple unconditional demands and simply put, to choose one over another is to “sacrifice” one unconditional for the other [discuss if needed]. Yet six years later, he identifies sacrifice with the structure of the death penalty, with the very logic of sovereignty, one that links, he says here, Kant, Hegel, Bataille, and Blanchot:

Sacrifice is what raises, what raises itself above the egoism and the anxiety of the individual. [Again, this must be understood as a self-sacrifice, or a sacrifice of one for the other; thus sacrifice is what raises one above egoism, such as sacrificing oneself for the other.] Between law and death, between penal law and [the] death penalty, there is a structural indissociability, a mutual, a priori dependence, that is inscribed in the concept of law or right [droit], human rights or law [droit de l’homme; trans. mod.], as much as in the concept of death, of non-natural death, thus of death as decided by a universal reason [the law is universal or it is not law], a death that is given or that one gives oneself sovereignly. …It is the right to kill oneself, to be killed, or to kill: to accede to death by exceeding natural life, biological or so-called animal life. Death is not natural. (170-1/116-7) [Discuss the last claim.]

Allow me some further time as we touch upon Derrida’s reading of Kant on the death penalty; I will try to do so in quick order, though I think those who think Derrida has a certain flair, a certain way of reading would do well to visit these pages, where Derrida’s gift for looking to those supposedly marginal parts of a corpus really brings out important points. For Kant—and I am summarizing a bit violently here—the categorical imperative of the penal law is the talionic law, the “equivalence of the crime and the punishment, thus of murder and the death penalty” (182/125).  There is thus in Kant a precise economy (this economy, give and take, will be a theme in next week’s readings) in Kant between death and death, between one and the other, a law of equivalence that of course is also Mosaic and is perhaps the oldest law of the West. (Thus Nietzsche’s point in the Genealogy of Morals that the talionic law has its basis in early trading rituals.) Indeed, it may be the law of laws. In any event Kant argues that homicide contrary to the law must be punished by death, and just as interestingly, it is when one proves oneself worthy of life, since when put to death, one puts the interests of one’s homo noumenon above the homo phaenomenon, that is, empirical life of the condemned who calculates his/her extrinsic or hypothetical interests. Let me pause on Nietzsche, since his thinking of punishment and crime—how did we ever link in the West one to the other?—is in the background throughout here.

We know well Nietzsche’s answer, when he seeks to do a genealogy of crime and punishment, of making an equivalence of the incommensurability of a wrong and a suffering (unto death). Here is Nietzsche:

And whence did this …idea [of crime and punishment] draw its power (Macht)—this idea of an equivalence between injury and pain (Shaden und Schmerz). I have already divulged it in the contractual relationship between creditor and debtor (Gläubiger und Schuldner), which is as old as the idea of legal subjects (Rechsubjekte) and in turn points back to the fundamental forms of buying, selling, barter, trade, and traffic.

Instead of this, we have instituted a long “right to cruelty,” for Nietzsche, weighing up the cruelties owed for this or that “wrong,” and Nietzsche goes so far as to discuss the Christian passion (Christ’s sacrifice for himself to become the indebted of the world) in terms of this economy of wrong for suffering, of an inventions of so-called wrongs to inflict suffering. For Nietzsche—and Derrida seems to follow him on this—there is no “opposite” to cruelty, only differential forms of cruelty, since cruelty is something like the will to power that is dissimulated through cultural forms. There is no one who is disinterested in such cruelty, and Nietzsche, famously, finds Kant the cruelest of them all, from the beginning of section 6 of Essay II in the Genealogy:

It was in this sphere then, the sphere of moral obligations that the moral conceptual word “guilt,” “conscience,” “duty,” “sacredness of duty,” had its origin (ihr Entstehungsherd): its beginnings were, like the beginning of everything great on earth, soaked in blood throughout (mit Blut begossen worden) and for a long time. And might one not add that, fundamentally, this world has never since lost a certain odor of blood and torture [einen gewissen Gerch vont Blut und Folter; note Nietzsche’s refutation of Hugo: there has been no end to torture]? (Not even in good old Kant: the categorical imperative smells of cruelty)… Asking once again: to what extent can suffering be a compensation for “debts”? To the extent that making-suffer felt good, and in the highest degree [that is, assymetrical to even the pleasure of the crime itself]; to the extent that the injured one exchanged for what was lost, including the displeasure of the loss, an extraordinary counter-pleasure: making-suffer, a true festival… Seeing-suffer [note where Derrida began, by noting that the death penalty must be seen; it is where the sovereign sees itself being seen] feels good, making-suffer even more so—that is a hard proposition, but a central one, an old human all-too-human proposition, to which, by the even, even the apes might subscribe: for it is said that in thinking up bizarre cruelties they already abundantly herald and, as it were, “prelude” man. Without cruelty, no festival: thus teaches the oldest, longest part of man’s history—and in punishment too there is so much that is festive (GM, II.6)

There is, then, from the opposite vantage point, then, what is proper to “man”—his cruelty, his dissimulation and repression of cruelty through the social contract, where cruelty continues at another level. And thus no “man” without the death penalty, without this sovereign, breathtaking cruelty. And no man without the production of those “wrongs” in order to allow this suffering in the first place. Perhaps this is what is left unseen when we see each other seeing each other, a point that does not for a moment enter Scruton’s mind when he blabs on about our righteous traditions of morality and politics. And if I make the sovereign claim I can know what is in Scruton’s mind, well, it’s par for the course given he knows precisely what an animal sees when it sees its others.

If there is time let’s move to 181/125 to the amazing passage from Kant on the two exceptions: infanticide of a child born outside of marriage and the duel. All revolves around the “shame” of the mother, the honor of the woman, as well as the honor of those in a duel. A remarkable passage. It is here that Kant makes a distinction between homicidium and homocidium dolosum, and the state will only have an interest in the death of a citizen, not the human being as such. Kant’s point—again quickly—is that it would be too cruel (grausam) [Derrida notes that this fits with a long line of linking cruelty to the death penalty] to punish the mother and the dueler, but it would also be “indulgent” (nachsichtig) to leave them alive. How to untie this knot? For Kant, there will be some who still are called by their subjective motives prior, say, to the kingdom of ends. Well, I can do no better than quote from Derrida:

Well this state of fact or this state of nature, this residue of the state of nature [that is, the remnant of those who do not accede to the law] translates a lack of culture or a barbarity…that should have been surpassed. Hence the extraordinary rationality but also the stupid uselessness [la stupide inutilité] of this Kantian logic. [It should be noted that Derrida is not ever this blunt, or hardly ever, though I do think this often is a good summation of much in Kantian ethics, which of course, aims to be completely useless, if not stupid.] If the categorical imperative—which in any case remains [bleibt]—is one day to be in agreement with customs, then 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 [I would note well, too, that this would be a fully bio-political logic, if there is such a thing, since of course, it is all to save the honor of the woman and polices the line between the proper and improper life, the one deserving of protection of the law and the one that is not] [etc.] then the knot will be untied [that is, the knot of this problem]. In other words—and this is one of the great paradoxically interesting things about this Kantian position, which is as rigorous as it is absurd [aussi rigoureuse qu’absurde]—when the history of morality and of civil society will have progressed to the point where there is no more discord between the subjective motives and the objective rules, then the categorical imperative that presides over the death penalty will be fully coherent, with neither cruelty nor indulgence, but of course there will be no need to sentence to death. (184/127)

In the meantime, while waiting for that kingdom of ends, one must have the death penalty, even if the regulative ideal is that there should be no death penalty at all, or rather, there will be inscribed a death penalty in the law that would, ideally, not have to be enforced. And as Kant notes in the Metaphysics of Morals—in lines Derrida does not pick up—“Even if a civil society were to be dissolved by the consent of all of its members…the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve and blood guilt [!] does not cling to the people [who are not, in fact, a people, given the dissolution of the social contract] for not having insisted upon this punishment” (6:333)

Why? Because without the death penalty, the law would have put an attachment to empirical or phenomenal life above homo noumenon, and thus “understand nothing about what surpasses the value of life, and surpasses all price…no law will ever be founded on an unconditional love of life for its own sake, on the absolute refusal of any sacrifice of life)” (185/128). Derrida thus finds in Kant a specifically Christian thinking of life, of a life denied for the sake of what is beyond life. In short, for Derrida—and in this seminar he will link Baudelaire and Hugo to this line of thinking—to be attached to life for life’s sake is animalistic; and we keep hearing from Plato to Scruton that we are not just that, even if we must do an injustice to logic to stick to these claims. Moreover, as Baudelaire suggests, perhaps those who oppose the death penalty are simply afraid for their own life. And Derrida agrees, in a sense, showing what links together the abolitionist discourses:

Who could deny that the fear of death or that the infinite protest against mortality and against one’s own mortality, especially against what is held to be an unnatural death, is the mechanism driving all the discourse on the right to life and the inviolable property of my life…How can one deny that the abolitionist discourse is rooted in the evil of finitude and of a fallible finitude? (187-8/130)

Derrida is nothing if not a thinker of finitude, a thinker of mortality and our mourning of this fact. Derrida notes about Hugo outloud during the session:

What comes back all the time is the inviolability of the life of the human person. Life is what is proper to me, inviolable by definition. If one extends this logic to its limit, then even if you kill me, you cannot violate the properness or property of my life. It is as if the abolitionists were people who basically dreamed of eternity, who dreamed of remaining eternally the proprietors of their lives (188 n. 1/130 n. 8)

In this way, they share with Kant the same belief in a life beyond life, in a propriety of life beyond this life. And it is this logic that can make sense of the dignity of life, of a right to life, in all the documents and declarations Derrida reviews, but not yet the end of the death penalty. Like the death that awaits us without awaiting in our being-towards-death, the death penalty lives on, and its end is always “not yet.”