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The Death Penalty VOLUME I

THE UNIVERSITY OF CHICAGO PRESS

CHAPTER 1

FIRST SESSION

December 8, 1999

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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"?

(Long silence)

As for me, I would first be tempted to answer him, too quickly: yes, you are right. Unless it is what is proper to God — or unless that comes down to the same thing. Then, resisting the temptation by virtue of another temptation — or in virtue of a counter-temptation — I would be tempted, upon reflection, not to respond too quickly and to let him wait — for many days and many nights. Until dawn.

(Long silence)

It is dawn, now, we are at dawn. In the first light of dawn. In the whiteness of dawn (alba). Before beginning, let us begin. We would begin.

We would begin by pretending to begin before the beginning.

As if, already, we wanted to delay the end, because this year, with the death penalty, it is indeed of the end that we are going to speak. It is indeed of an end, but of an end decided, by a verdict, of an end decreed by a judicial decree [arrêtée par un arrêt de justice], it is of a decided end that decidedly we are going to talk endlessly, but of an end decided by the other, which is not necessarily, a priori, the case of every end and every death, assuming at least, as concerns the decision this time, as concerns the essence of the decision, that it is ever decided otherwise than by the other. And assuming that the decision of which we are getting ready to speak, the death penalty, is not the very archetype of decision. Assuming, then, that anyone ever makes a decision that is his or hers, for himself or herself, his or her own proper decision. I have often expressed my doubts on this subject. 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.

So we would pretend to begin not after the end, after the end of the death penalty, which is abolished today in only a limited number of nation-states in the world, a growing number but still limited (ten years ago, it was a minority — fifty-eight; today it is a small majority), but to begin before the beginning, on the eve of the beginning, at dawn, in the early morning, as if I wanted to begin in a somewhat pathos-laden fashion (but who would dare conduct without pathos a seminar on the death penalty?) [as if I would prefer to begin, in a deliberately pathos-laden fashion] by leading you or keeping you with me, before beginning, at dawn, in this early morning of prisons, of all the places of detention in the world where those condemned to death are waiting for someone to come either to announce to them a sovereign pardon (that pardon [grâce] we often spoke of last year around the subject of forgiveness) or else to lead them away, a priest almost always being there (and I insist on this because today I 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) [or else to lead them away, then,] toward one of those very numerous apparatuses for legally putting to death that men have ingeniously invented, throughout the history of humanity as history of techniques, techniques for policing and making war, military techniques but also medical, surgical, anesthesial techniques for administering so-called capital punishment. Along with the cruelty of which you are aware, and a cruelty, always the same, which you nevertheless know can range from the greatest brutality of slaughter to the most perverse refinement, from the most bloody or burning torture to the most denied, the most concealed, the most invisible, the most sublimely mechanized torture, invisibility and denial being never, and in no case, anything other than a piece of theatrical, spectacular, or even voyeuristic machinery. By definition, in essence, by vocation, there will never have been any invisibility for a legal putting to death, for an application of the death penalty; there has never been, on principle, a secret or invisible execution for this verdict. The spectacle and the spectator are required. The state, the polis, the whole of politics, the co-citizenry — itself or mediated through representation — must attend and attest, it must testify publicly that death was dealt or inflicted, it must see die the condemned one.

The state must and wants to see die the condemned one.

And moreover it is at that moment, in the instant at which the people having become the state or the nation-state sees die the condemned one that it best sees itself. It best sees itself, that is, it acknowledges and becomes aware of its absolute sovereignty and that it sees itself in the sense in French where "il se voit" can mean "it lets itself be seen" or "it gives itself to be seen."

Never 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 it makes itself into the seer and the voyeur [voyante et voyeuse] of the execution of an irrevocable and unpardoned verdict, of an execution. For this act of witnessing — the state as witness of the execution and witness of itself, of its own sovereignty, of its own almightiness — this act of witnessing must be visual: an eye witness. It thus never happens without a stage and lighting, that of the natural light of day or artificial lighting. In the course of history, the light of fire might have been added to it. Not always or only that of gunfire, of the condemned shot by a firing squad or by a single bullet to the base of the skull, but also sometimes the fire of the stake.

We have not yet begun, nothing has yet begun. We are in the early morning. It is dawn, the dawning of one knows not what, life or death, pardon or execution, the abolition or perpetuation of the death penalty, also the perpetration of the death penalty. Whatever we may think or say during this seminar, we have to think, we will have to think ceaselessly, taking ourselves there by way of the heart and the imagination, by the body as well, of the early morning of what is called an execution. At the dawn of the last day.

It is dawn, then. Early light, earliest light. Before the end, before even beginning, before the three blows are struck, the actors and the places are ready, they are waiting for us in order to begin.

Just as, last year, we played without playing at the theater, we pretended to play at staging, as theatrically but also as nontheatrically as possible, [at staging] four men, statesmen or thinkers of the state, statesmen or churchmen, thinkers of the state or of the church or both (Hegel, Mandela, Tutu, Clinton: four Protestants of modern times — not one woman, no Catholic, no Orthodox, no Jew or Muslim), well, this year, before beginning, and because the question of the theater will have to keep our attention even more and otherwise than in the scene without scene or stage without stage of forgiveness (the history of the relations between the death penalty and spectacle, the mise en scène, the essential voyeurism that attaches to a putting to death that must be public because legal, this history of the theater of capital punishment would in itself deserve a whole seminar and it will interest us a lot, even if never enough), well, this year again I will begin, before beginning, by evoking, by convoking or resuscitating a few figures, great personalities, great characters4 who will accompany us incessantly — whether or not we name them or see them. Once again they will be four; this time there will be no Protestant among them; they, masculine and feminine, will once again be four, but this time a woman will come to remind us of one of the sexual differences in this truth of the death penalty. (Recall the question that we were asking or quoting last year, from out of the South Africa of Antjie Krog, author of Country of My Skull, and of the women victims who testify or cannot testify before the Truth and Reconciliation Commission: "Does truth have a gender?" or else, and it is the title of a chapter: "Truth Is a Woman.")

What will be, this year, who will be these masculine and / or feminine "characters"? Those condemned to death, to be sure, or those who accompany them, a chorus of great condemned ones from our history, from the history of the Graeco-Abrahamic West, condemned ones who have illustrated, or even founded, by means of the scene, by means of the visibility and the time, by means of the duration of their putting to death, [who have illustrated, then,] the properly theologico-political meaning of what is called the "death penalty."

Each time the state, associated with a clerical or religious power in ways that must be examined, will have pronounced these verdicts and executed these great condemned ones that were then (there are four of them, once again), who were then (I will name them only one after the other when the time comes) first of all Socrates, of course, the first of the four. Socrates who, as you know — but we will come back to this — was reproached with having corrupted the youth by not believing in the gods of the city and by substituting for them new gods, as if his aim had been to found another religion and to think a new man. Reread the Apology and the Crito, you will see there that an essentially religious accusation is taken up by a state power, a power of the polis, a politics, a juridico-political authority, what one might call with terrible ambiguity a sovereign power as executive power. The Apology says it explicitly (24b–c): the kategoria, the accusation lodged against Socrates, is to have done the wrong, to have been guilty, to have committed the injustice (adikein) of corrupting the youth and of (or for) having ceased to honor (nomizein) the gods (theous) of the city or the gods honored by the city — and especially of having substituted for them not simply new gods, as the translations often say, but new demons (hetera de daimonia kaina); and daimonia are doubtless often gods, divinities, but also sometimes, as in Homer, inferior gods or revenants, the souls of the dead; and the text does indeed make the distinction between gods and demons: Socrates did not honor the gods (theous) of the city and he introduced new demons (hetera de daimonia kaina). Thus, in its content the accusation is religious, properly theological, exegetical, even. Socrates is accused of heresy or blasphemy, of sacrilege or heterodoxy: he is misled about the gods; he is misled, or he misleads others, especially the youth, on the subject of the gods; he was mistaken about the gods or he has caused contempt and misunderstanding [le mépris et la méprise] concerning the gods of the city. But this accusation, this charge, this kategoria of an essentially religious nature is taken up, as always — and we will be interested consistently in this recurrent, always recurrent articulation — by a state power, as sovereign, a state power whose sovereignty is itself essentially phantasmatico-theological and, like all sovereignty, is marked by the right of life and death over the citizen, by the power of deciding, laying down the law, judging, and executing the order at the same time as the condemned one. Even in nation-states that have abolished the death penalty, an abolition of the death penalty that is in no way equivalent to the abolition of the right to kill, for example, in war, well, these several nation-states of democratic modernity that have abolished the death penalty keep a sovereign right over the life of citizens whom they can send to war to kill or be killed in a space that is radically foreign to the space of internal legality, of the civil law where the death penalty may be either maintained or abolished.

To return for a moment to Socrates and Plato and to the fundamentally religious character of the charge, the complaint, the incrimination, the criminalization, the inculpation taken up by the state, I refer you to Plato's Laws that justifies the death penalty in cases of impiety (asebeia), of stubborn impiety, of repeated offenses of impiety. I leave you to read closely these long and riveting pages in Laws (907d–909d). The city, the polis must proclaim to all that the impious must make amends and be converted to a pious life and that if they do not do so, if they show impiety (asebeia) in words or deeds, the first to witness this must denounce them to the magistrate who will call them before the appropriate tribunal. There follows the description of the types of impiety (including, and I note this because of the subject of our seminar, irreverence with regard to oaths [horkous]) and then the taxonomy of three types of prisons or houses of correction; I leave you to read this on your own, then. But in this long and rich passage, I note merely two or three indications.

1. First indication: To persist with this moment of dawn, I note that in the description of the punishments, it is said that the prisoner will receive no visit from citizens, with the exception of members of a certain nocturnal council. So, if you wish to know what this nocturnal council is (which I point to, then, because of dawn and religion, and soon the dawning of religions, if not the twilight of the gods), go to the place where the said nocturnal council is first defined by Plato, that is, not Laws (907–9), which I have just quoted and where the nocturnal council is certainly named, merely named, but further on, in Laws (951d–e), where the Athenian describes this nocturnal council, this nighttime syllogos as a place of gathering, an assembly where the young are mingled with the old but that, I quote, "shall be required to hold daily sessions from daybreak until after sunrise" (951d). This syllogos is neither a synagogue (explain) nor a sanhedrin. This supreme council of the nation that was also a high court of justice (the one that sentenced Jesus and that we will speak of again), but a syllogos (comment) will be comprised of priests and, among the priests (ton hiereon; this is literally a hierarchy, a sacred order or authority of priests who are in command), those who have received the highest distinctions and then, among the guardians of the law (ton nomophulakon), the ten oldest, then finally any minister of education, whoever has charge of the education of the youth (tes paideias pases epimeletes), whether he be currently in office or whether he has been in the past. (Imagine the equivalent of the nocturnal council in France today: Lustiger, the Head Rabbi, the Head Mufti, Allègre, his predecessors and company.) So, this great syllogos, this great pedagogico-confessional council meets at dawn. And it alone is entitled to visit the prisoner. First indication.
(Continues...)

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Excerpted from The Death Penalty VOLUME I by Jacques Derrida, Geoffrey Bennington, Marc Crépon, Thomas Dutoit, Peggy Kamuf. Copyright © 2014 The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS.
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