Derrida’s Death Penalty Lectures (Week Two)
This will no doubt be a tough week for us: six weeks of readings on death and time, as we make up for a time we could not be together while discussing our finitude and, well, the eventuality of a time we will not have been together, going through the Death Penalty lectures today and then “Ousia and Grammê” on Wednesday. As I was about to type this out, I came across the fact that Amy Krouse Rosenthal died today. I was not a reader of her children’s books, but I was a reader of remarkable essay published in The New York Times last month. Of course it might seem I begin each of our seminars on death and the death penalty with some article in the Times, which is perhaps all the less remarkable given how timely the question of death is, how it is always a spectacle and spectacular way the sovereign sees itself making itself, and thus is always making news of itself. I can’t visit that essay at great or really any length but it touches on an original mourning that Derrida often speaks of that comes from the very beginning of a love and of a friendship, a mourning that would always have the risk and the chance of betrayal, and her essay is no less aporetic. Given a sentence of death, Krouse-Rosenthal gives into the inexorable phantasm of being there after her death, of sur-viving, of living-on through a prosthesis or mechanism whose application is known for anything but what is heart warming and loving—as perhaps no machine ever is; indeed we define the machinic precisely as that without a heart or a beating heart, as that which is not alive. I don’t wish to take away the life of this article, to put it to death, through the machine of philosophical theory, though it does survive its author, as every writing does, allowing the author to live on and live through a writing now shared virtually across the world when it was published.
Making autobiography and biography inseparable she mourns her life and the love of her husband, Jason, mourning one and the other in the same article. She mourns the life she would have had with him if was not giving a deadline of death, a death sentence of cancer to man to whom she had been married for some 26 years. There is something of a genre, indeed perhaps makes a secret archive all its own, namely unpublished (but how can one ever protect against publication and publicity, even of one’s most closely held secrets?) letters one writes to one’s love in case of one’s death. You perhaps provide directions for the care or property or children, or perhaps confess to events you couldn’t bring yourself to confess during your life, but there on the page, can do. These letters are something of a suicide note, putting yourself to death on the page, phantasmatically depicting it as well as the survival of your writing, your words, and the bios to which it gave rise. She thus puts together something of a “Tinder, Bumble, or eHarmony” profile for Jason upon her death, a profile that is quotidian (one testifies to the other always by betraying their alterity, by making them ordinary and common) and singular, but one that seeks to provide for Jason beyond her death, and thus to survive to give more love to him in an economy that one could not begin to calculate. Indeed it’s an act that is meant to beat calculability of any economy of love, of any contract of love, by testifying to Jason and thus living on and staying with him in a way, since if one were to date Jason after the moment of his death based on such a profile, she will live on through that love, too.
She will have beaten calculability by giving Jason over to what is beyond any contract of one-to-one love (and I’ll not presume for a second that there are not other types of economies of love, beyond the one-to-one form), to have given him, through that love, a relation to the singular Other whom neither she or Jason can see arriving, beyond the living present of her love, a true future worthy of the name that will have arrived only—and this both the joy and melancholia of this article—upon her death. She will thus have given herself over to a certain phantasm of mastering that moment of death, of living beyond it, and thus betraying the gift to Jason that she would have performed. There is no way out of this aporia, or these host of aporias: writing all too commonly about what is to be singular (he dresses nicely, he is good around the house, and so on), since of course, the effort would fail if one appears all-too-singular and unique on a dating website. That is why they are so banal: everyone works out, everyone likes to hike, everyone loves to travel—one wants to stand out by not standing out. Das Man, it seems, is the author of each of those “auto-biographies.” Thus she must betray his singularity even as she testifies to it. She must die to survive. She must mourn him by mourning the life that they will have had together in order to, from that present-future, deliver him over, as if one could ever foreseeably do so, to a future Other who will then have mourned her through that partner’s love and mourning for that future Jason, who will have never finished the work of mourning for the author. And all while betraying the secrecy of their life together through a publication that will have, as all publications do, secrets left unsaid and indeed unsayable. If our discussions of the aporias of mourning, of the gift, of death, and so on, have the appearance of abstraction (one mourns by betraying, one forgives the unforgiveable, and so on) then Krouse Rosenthal’s essay—the proper name of a singular being that has already died, of a couple (Krouse and Rosenthal) that, through this act of publicity, we can all mourn—shows that one should not for all that, lose sight of the passion, of the love, that is enacted in coming to terms with these aporias. We cannot wish them away, and they are the very “stuff” of life. We can’t help but pass through these passions, or rather these passions that pass through us as the other in me, the one that says I and the one that I follow. And living that out, surviving that way, is not a morbid curiosity with death, as I was saying last week, whether we are dying or perishing all the time, but an affirmation and love for that life, for living as such.
This brings us to today’s class. What Derrida is critiquing in these pages is a certain knowledge or calculability of the moment of death, and he argues that far from questioning any presuppositions on the matter, Heidegger must presuppose a certain definition in order for his phenomenology of death to get underway. For Heidegger, death, as we recall, is the “possibility of the impossibility of existence in general.” For Derrida, Heidegger will always have given death a certain meaning, a certain possibility for Dasein. As Heidegger puts it, “The full existential-ontological conception of death may now be defined as follows: death, as the end of Dasein, is Dasein’s ownmost possibility—non-relational [unbezügliche], certain and as such indefinite, not to be outstripped” (SZ, 258-9). Yet both Derrida and Levinas before him find in Heidegger a certain propriety at the heart of his thinking. Heidegger writes, “Death is a possibility-of-Being which Dasein has to take over in every case. With death, Dasein stands before itself in its ownmost potentiality-for-Being…Its death is the possibility of no-long-being-able-to-be-there [Nicht-mehr-dasein-könnens]” (SZ, 250). This “ownmost” or “most proper possibility [die eigenste Möglichkeit],” as death, would seem to bring this impossibility within circumspective concern, within the possible, even if it is indeed the possibility of impossibility. For Derrida, “death is always the name of a secret” (A, 74). And thus he will argue in The Death Penalty lectures, as we saw last week:
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. (DP, 323/237)
In the second year of his Beast and the Sovereign seminar, Derrida argued for a thinking of “survivance,” a living-on, that would be a “groundless ground from which are detached, identified, and opposed to what we think we can identify under name of death or dying (Tod, Sterben),” and thus can think a living-on that would not be opposed to what we think about when we think we are thinknig death. The “scandal” of the death penalty, Derrida argues, is that it relies on a “phantasm” that this death can be known—and thus by its negation know what living beyond or within life means. In the tenth session of the Death Penalty lectures, Derrida offers the following aside that is not just any aside:
[W]hat we are talking about, the death penalty, it is a matter of an excessiveness [démesure], a penalty without proportion, without commensurability, without any possible relation that is proportional with the crime. With the death penalty, we touch on an alleged calculation that dares or alleges to incorporate the beyond-measure and the infinite and the incalculable into its calculation. If there is a scandal in all these penalties, in all these punishments, the unheard-of, unique scandal of the death penalty is precisely this excessiveness, the fact that it cannot be measured, ‘commensured,’ so to speak, with any crime. The death penalty dares to claim to measure the beyond-measure in some way.(DP, 248 n.11/338 n. 3).
The death penalty, Derrida argues, is the phantasm of the calculability of the moment of death, by the machines that are not just the instruments of the penalty but the penal code, the calendar, and so on. The “madness” of the death penalty—what he earlier dubbed its “excessiveness”—is to claim to deprive the condemned not of immortality but of his or her finitude: “It is to some finitude that this madness of the death penalty claims to put to an end, by putting an end, in a calculable fashion, to some life. Whence [its] seduction” (DP 256/349). He argues:
[W]hat we rebel against when we rebel against the death penalty is not death [even “our own,” even if we are simply against the death penalty because, as Baudelaire suggested, we fear for our punishment] or even the fact of killing, of taking a life; it is against the calculating decision,…it is [the] interruption of the principle of indetermnation, the end imposed on the opening of the incalculable chance whereby a living being has a relation to what comes, to the to-come and thus to some other as event. (DP, 257/347)
In what will connect well to Wednesday evening’s reading of “Ousia and Grammē,” Derrida argues that the the death penalty relies on a certain thinking of time, that it can master the instant (stigmē) of death. It would thus form an absolute knowledge (he references the suppression [Tilgen] of time at the end of Hegel’s phenomenology), since any mastery of the instant, of the living present, is itself the eternal, the eternal now, from the time beyond time that is always modeled on the point of the instant that has not future or indeed a past. Outside or beyond history, the eternal speaks, discourses, and such while betraying itself. I would wish to think this more, but I would argue that Derrida’s discussions of the instant is, as Aristotle recognized long ago, unthinkable, because between each point of time would be a passage that would be abyssal (in order for it to be a point) and thus could not form a line. Indeed, thinking time was for Aristotle a veritable aporia, as he puts in the Physics. But Derrida aligns the instant with auto-affection and self-presence or presence to the self, to the masterful “instant” of sovereignty that autoimmunizes itself through speech, as we saw in Voyous, and here to a certain mastery of the point of death. Indeed, he thinks that we must think all supposed “pre-comprehensions” of death must begin with a thinking of the death penalty. He writes:
[Various philosophies] rely on so-called common sense, on the alleged objective and familiar knowledge, judged to be indubitable, of what separates a state of life from a state of death—a separation that is determined or registered or calculated by the other, by a third party — that is, of the supposed existence of an objectifiable instant that separates the living from the dying, be it of an ungraspable instant that is reduced to the blade of a knife or to the stigmē of a point. (238/324)
Let’s pause momentarily that Derrida will deny any ability to calculate any instant, let alone the instant of my death: time is not on the model of the point or the line; it is the unrepresentable itself, and thus any discourse given over to time would begin by critiquing the logic of representation. Let’s continue the same passage:
Without the supposed or supposedly possible knowledge of this clear-cut, sharp limit, there would be no philosophy or thinking of death that could claim to know what it is talking about and proceed “methodically,” as once again Heidegger wishes to do (see Aporias). Now the alleged access to this knowledge that is everywhere presupposed,at the very point where one claims to deconstruct every presupposition, organizes every calculation (I will call this calculation), everything that is calculable, in language, in the organization of the society of the living and the dead, and especially in the possibility of murder and the death penalty, of some taking of life or “giving death” that is distributed among crime, suicide, and execution, at that point of originarity where it is still difficult to discern them, to distinguish among them…
What Derrida will say in these pages is that Derrida does not deny the originarity of the death penalty, of its singularity, but he also sees a certain logic in murder, suicide, and the death penalty. In each, there is a judgment, one that can be universalizable, that one deserves a death; one acts as a judge, he puts it at one point, in defending oneself from murder (the reason for the crime is the reason it’s not, according to the defendant, a crime), in giving reasons for killing oneself, and for the death penalty, one is judging a certain guilt, or at the least judging that one can master the instant of death, and this is the pathology of every murder, suicide, or sentencing of death. Let’s pause with something he says later, then come back to the above passage:
In other words, the criminal, even though one often speaks, I said so the last time, of a vengeance irreducible to law, the criminal as speaking or reasoning being, the criminal has always at least the idea of doing justice and of referring to a universalizable law, and thus, he feels innocent, like a judge. The criminal operates like a judge. And thus he acquits himself. In what is called premeditated crime. In unpremeditated crime, there is no crime. When crime falls like rain on one’s head, it is not crime. Premeditated crime, crime properly speaking, obviously, justifies itself. It bears within it a justification that acquits the criminal before the verdict. (248/238 n. 12)
[Discuss if needed.] Let’s continue:
This is to suggest that every imagined mastery of the sense of the word “death” in language, every calculation on this subject (and we are calculating all the time
in order to speak and to count on some meaning- to- say, some intelligibility some translatability, some communication), every calculation on the subject, around or as a function of the word “death,” every calculation of this type supposes the possibility of calculating and mastering the instant of death, and this calculating mastery can only be that of a subject presumed capable of giving death: in murder, suicide, or capital punishment, all three arising here from the same possibility. This is another way of saying — and ultimately it is rather simple — that the calculable credit we grant to the word “death” is indexed to a set of presuppositions, a network of presuppositions in which “capital punishment,” the calculation of capital punishment, finds its place of inscription where it is indissociable from both murder and suicide. Wherever at least the presumption of knowledge is lacking on the subject of this so- called objective limit, this end of life (which Heidegger would make us believe is not the dying proper to Dasein), wherever this mastering calculation would no longer be presumed accessible, possible, in our power, well then, one could no longer either speak of murder, suicide, and death penalty, or organize anything of the sort whatsoever in the law, in the legal code, in the social order, in its procedures and its techniques, and so forth. (328-9/324-5)
This is not to say the one should not calculate: the aporias with which we started operate precisely by calculating the incalculable. There is much that is going on in the latter part of this paragraph, and here should pause, since Derrida is not suggesting that the law or any legal code should not deal with murder, for example, and thus at least the logic of the death penalty would be inscribed wherever there is the law, since the first law is always the law against murder, and therefore the inscription within legal codes of what counts as a life and living means defining implicitly those lives that can be taken. We know all too well the stakes of this for the political, today and everyday.
Now, if there never be an “objective knowledge as to the delimitation of death” (239/325), then the death penalty will always be scandalous and a scandal to thought. Thus deconstruction, is far from being disinterested. This is what the categorical imperative and the imposition of the death penalty must be in Kant, though of course, there is always de facto the problem that one can never judge that cruelty, that Kantian cruelty that Nietzsche (and Adorno, in a different way later, regarding animals and animal cruelty) identified, is not the drive or interest behind this supposed “disinterest.” Indeed, there is no Marxian, Foucaultian, Nietzschean, Freudian, or, I think, Derridean discourse without identifying precisely those interests hiding beneath the procedures and mechanisms of power and death, that is to say, the disinterested law that puts to death, makes us pay the penalty in a supposed disinterested calculation between the trauma or pain (la peine) and punishment, especially the punishment of death (la peine de mort). And thus deconstruction has an interest; it is not a third party on the scene stepping outside its place in its milieu, judging from on high. It does not judge itself innocent, as even the criminal might do, but indeed begins by noting its implacatedness in that milieu, that is to say, the heritage that it must take on. Let me quote at length here (254-6), pausing at certain moments:
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. And when I say “I,” of course, I mean “I,” me, but also the “I,” the “me,” whoever says “I” in its place or in mine. That is my interest, the ultimate resource of my interest as of any possible interest in the end of the death penalty, every interest having finally to be a “my interest,” we are going to see why, an interest so originary, so primordial that it risks being shared, in truth, by the supporters of the death penalty — and who will always tell you, moreover, that they are not for death, that they do not love death, or killing, that like us they are for life…The abolitionist struggle, in my view, must still be driven; it cannot not be driven, motivated, justified by an interest, but by another interest, by another figure of interest that remains to be defined. …But that is not enough. It is still necessary to go from this originary and general preference of life by itself, for itself, from this self- preference of the living to the opposition to the death penalty; it is necessary to go from this quasi- tautological opposition of life to death to a more specific opposition: no longer simply to the opposition to death but to the opposition to the death penalty.
We thus must move from something like an a priori affirmation of life that deconstruction, he claims, is, to an opposition to the specific taking of a life, whether in murder or the death penalty. (I don’t know what this would mean for suicide, and it’s something for us to discuss, since the “right to suicide” is not one, I think, Derrida would abandon, though the question of the cut between the cutting of the sui in suicide and that of murder, of the murder of the other in me, is one that Derrida has questioned elsewhere.) Now to the major passage:
The point is that it belongs to life not necessarily to be immortal but to have a future, thus some life before it, some event to come only where death, the instant of death, is not calculable, is not the object of a calculable decision. Where the anticipation of my death becomes the anticipation of a calculable instant, there is no longer any future, there is thus no longer any event to come, nothing to come, no longer any other, even no more heart of the other, and so forth. So that where “my life,” be it originarily granted by the heart of the other, is “my life,” it must keep this relation to the coming of the other as coming of the to-come [venue de l’à- venir] in the opening of the incalculable and the undecidable.
When life is calculated down to the instant, it is robbed of a future, it is the phantasm of a robbing of that future:
“My life,” and especially my life insofar as it depends on the [tient au] heart of the other, cannot affirm itself and affirm its preference except over against this, which is not so much death as calculation and decision, the calculable decidability of what puts an end to it. At bottom, I would say by way of perhaps an excessive shortcut, that what we rebel against when we rebel against the death penalty is not death, or even the fact of killing, of taking a life; it is against the calculating decision, not so much the “you will die”….The insult, the injury, the fundamental injustice done to the life in me, to the principle of life in me, is not death itself, from this point of view; it is rather the interruption of the principle of indetermination, the ending imposed on the opening of the incalculable chance whereby a living being has a relation to what comes, to the to- come and thus to some other as event, as guest, as arrivant. And the supreme form of the paradox, its philosophical form, is that what is ended by the possibility of the death penalty is not the infinity of life or immortality, but on the contrary, the finitude of “my life.” It is because my life is finite, “ended” in a certain sense, that I keep this relation to incalculability and undecidability as to the instant of my death. …Only a living being as finite being can have a future, can be exposed to a future, to an incalculable and undecidable future that s / he does not have at his / her disposal like a master and that comes to him or to her from some other, from the heart of the other. So much so that when I say “my life,” or even my “living present,” here, I have already named the other in me, the other greater, younger, or older than me, the other of my sex or not, the other who nonetheless lets me be me, the other whose heart is more interior to my heart than my heart itself [and hence there is no pure “living present,” or presence to the self, and I would put all the weight on the temporal meaning of these terms].
And hence by testifying to the finite being that I am, I would only affirm life. In this way, the death penalty, not simply for the everyday ways in which it is understood, is on the side of death, of the infinite beyond this finite life, of the transcendental cut between this life and another, or at least the phantasmatic power that it can give meaning to death and thus to the supreme power, the God-like power to which the death penalty has alway been referred over life and death, to rob one of one’s finitude. Derrida writes:
Given this, however paradoxical it may seem, the death penalty, as the only example of a death whose instant is calculable by a machine, by machines (not by someone, finally, as in a murder, but by all sorts of machines: the law, the penal code, the anonymous third party, the calendar, the clock, the guillotine or another apparatus), the machine of the death penalty deprives me of my own finitude; it exonerates me, even, of my experience of finitude. It is to some finitude that this madness of the death penalty claims to put an end by putting an end, in a calculable fashion, to some life. Whence the seduction that it can exert over fascinated subjects.Fascinated by the power and by the calculation, fascinated by the end of finitude, in sum, by the end of this anxiety before the future that the calculating machine procures. The calculating decision, by putting an end to life, seems, paradoxically, to put an end to finitude; it affirms its power over time; it masters the future; it protects against the irruption of the other. In any case, it seems to do that, I say; it only seems to do that, for this calculation, this mastery, this decidability, remain phantasms. It would no doubt be possible to show that this is even the origin of phantasm in general. And perhaps of what is called religion.
I would go on, but this will require a fascinating discussion of this originary fascination. And here would we would need to attend to the two angels or daemoi of Derrida (pp. 240-1), which at once wants to deconstruct death, to be done with it, to call it to an end in the name of survival, and yet survives and lives only in the face of its finitude and our affirmation of it. Each death, Derrida would write later, is a singular, unique, and indeed, the end of the world. It is always the “not yet” in the face of which, as Derrida affirms by following Heidegger, there is anxiety (Angst), but also what Heidegger calls in Being and Time, an “unshakeable joy” (SZ, 310). In the face of the mourning of the Other, and the other in me, there is the awaiting without awaiting of death: we are always out ahead towards “it” even as there is no death that is not singular and unique, and thus we can never have a proper name for death, even as we banalize and use the term all the time—along with the assumption of its common sense meanings. What is scandalous about the death penalty is that it would want to rob one of this temporal finitude, one that marks each of our days, whether we are condemned to death or condemned to die. About this, deconstruction has much to say, though Derrida is right to say that deconstruction, as he puts in the second year of the seminar, has a categorical imperative, particularly when it comes to the death penalty (la peine de mort): “to say and to think what one can barely [à peine] think and say,” even as we must protest endlessly and from the heart of ourselves and not just barely for an abolitionism worthy of the name.
 Martin Heidegger, Being and Time, trans. J. Macquarrie and E. Robinson (New York: Harper and Row, 1962), 262. Henceforth cited as SZ, with the German pagination to follow.
 See, for example, Emmanuel Levinas, God, Death, and Time, trans. Bettina Bergo (Stanford, CA: Stanford University Press, 2000), 11-20.
 BS 2, 131/194.