In the first volume of his extraordinary analysis of the death penalty, Jacques Derrida began a journey toward an ambitious end: the first truly philosophical argument against the death penalty. Exploring an impressive breadth of thought, he traced a deeply entrenched logic throughout the whole of Western philosophy that has justified the state’s right to take a life. He also marked literature as a crucial place where this logic has been most effectively challenged. In this second and final volume, Derrida builds on these analyses toward a definitive argument against capital punishment. Of central importance in this second volume is Kant’s explicit justification of the death penalty in the Metaphysics of Morals. Thoroughly deconstructing Kant’s position—which holds the death penalty as exemplary of the eye-for-an-eye Talionic law—Derrida exposes numerous damning contradictions and exceptions. Keeping the current death penalty in the United States in view, he further explores the “anesthesial logic” he analyzed in volume one, addressing the themes of cruelty and pain through texts by Robespierre and Freud, reading Heidegger, and—in a fascinating, improvised final session—the nineteenth-century Spanish Catholic thinker Donoso Cortés. Ultimately, Derrida shows that the rationality of the death penalty as represented by Kant involves an imposition of knowledge and calculability on a fundamental condition of non-knowledge—that we don’t otherwise know what or when our deaths will be. In this way, the death penalty acts out a phantasm of mastery over one’s own death. Derrida’s thoughts arrive at a particular moment in history: when the death penalty in the United States is the closest it has ever been to abolition, and yet when the arguments on all sides are as confused as ever. His powerful analysis will prove to be a paramount contribution to this debate as well as a lasting entry in his celebrated oeuvre.
About the Author
Jacques Derrida (1930–2004) was director of studies at the école des hautes études en sciences sociales, Paris, and professor of humanities at the University of California, Irvine. He is the author of many books published by the University of Chicago Press. Elizabeth Rottenberg teaches philosophy and comparative literature at DePaul University. She is the editor or translator of numerous works by Derrida, Jean-François Lyotard, and Maurice Blanchot, as well as the author of Inheriting the Future and For the Love of Psychoanalysis.
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The Death Penalty Volume II
By Jacques Derrida, Geoffrey Bennington, Marc Crépon, Elizabeth Rottenberg
The University of Chicago PressCopyright © 2017 The University of Chicago
All rights reserved.
December 6, 2000
Allow me once again not to go too far back over what has been said and not to reconstitute the trajectory followed last year, or even the premises of that trajectory, in previous years. This time I found it convenient to put at your disposal a short bibliography. It should allow those of you who did not attend last year's seminar to follow at least some of the steps and understand some of the basic references, for example in the initial staging, the reminder and even the analysis of four great paradigmatic figures (who were not, as in the previous year, when the topic was pardon and perjury, those of four Protestant men, men who were in their own way presidents: Hegel, Mandela, Tutu, and Clinton — the three living ones literally presidents, one of them, the president of the Truth and Reconciliation Commission, and we will quickly return this year, starting today, to this figure and to this character of the "President," indeed of the presidential or presidentable, of the sovereign known as "President": what is a president? will therefore be one of the questions we will take up starting today). Last year these paradigmatic figures were  not, then, four Protestant males but rather three men and a woman (Socrates, Jesus, Hallaj, Joan of Arc who had nothing Protestant about them and who were condemned to death by a religious power typically assisted or even inspired by a state apparatus in carrying out the verdict and the execution: whence the framing of the important problematic of the theologico-political and the death penalty, of, in fact, the founding of the onto-theologico-political on the right to the death penalty, all of this passing by way of the important question of a sovereignty in deconstruction, deconstruction becoming or revealing itself finally as that which finds itself grappling, in order to deconstruct it, with the scaffolding — not to say the phallogocentric scaffold of onto-theologico-political sovereignty — the strange and stupefying and shocking fact that never, but never, it turns out, has any philosophical discourse as such, in the system of its properly philosophical argument, opposed the principle, I repeat, the principle, of the death penalty, which indicates, as shocked as we are by this fact, the magnitude of the difficulty or the task: is it possible to oppose the principle of the death penalty or to oppose it with something that is called an unconditional principle, something that is not a consideration of empirical timeliness, of relative usefulness or of probable practical necessity?).
After which, after reading texts involving these figures, we read Exodus on the question of the commandment "Thou shalt not kill," followed by the judgments dictated by God and prescribing the death penalty for those who infringe this or that commandment. I cannot of course reconstitute here the analyses devoted to all of these texts (from Beccaria to Camus, via Kant, Hugo, Genet, and a few others), to the texts of modern law and to the international declarations since World War II, to the changing situation of the death penalty in the United States (we looked at newspaper articles in particular, the United States being today the only great, Western so-called democracy  with a European-Judeo-Christian culture that maintains and applies in a massive and escalating way a death penalty whose legal application, at least, was suspended from 1972 to 1977 by a decision of the Supreme Court). [I cannot reconstitute all of these analyses] nor the general framing of the problematic of sovereignty around the two concepts that served as our guiding threads throughout:
1. The exception (an enigmatic notion that can be found at the heart of Schmitt's texts on sovereignty as well as in many texts of modern law and especially international law, texts we studied and that proscribe torture and cruel treatments but allow for exceptions, exceptions that always take us back to sovereignty. What is an exception and what is sovereignty? These were our questions last year, and they were bound up with this one: who decides sovereignly as to what is the exception? In short, in a monarchy: who rules and who holds, along with the right to pardon, the right to life and legal death? In a democracy, who presides and who holds, along with the right to pardon, the right to life and legal death?).
2. Cruelty, precisely, a very obscure notion whose use is highly dogmatic. We analyzed its generalization (it has no limit and no term but only an internal and qualitative differentiation) in Nietzsche's texts that heralded moreover a certain Freud about whom we also spoke on the topic of sadism (when we evoked the filiation of Sade in Lacan's "Kant with Sade" and Blanchot's ambiguous "Literature and the Right to Death" on the subject of revolutionary Terror), a certain Freud, then, to whom I would like to return at another pace, perhaps even starting today; and then this cruelty to which so many texts of constitutional law, of national and international law, refer obscurely and dogmatically, beginning with the Eighth Amendment to the Bill of Rights of the American Constitution banning "cruel and unusual punishment" (an amendment invoked by the Supreme Court in 1972 to prohibit the application of the death penalty, a situation that lasted only four or five years, between the famous  case of Furman v. Georgia, in 1972, in which it was decided that the application of the death penalty was unconstitutional, and the no less famous case of Gregg v. Georgia, which, in 1976, reinstated de facto the death penalty in the United States, after the federal Supreme Court upheld the judgment of the state of Georgia). The Universal Declaration of Human Rights (1948) also banned "torture and other cruel, inhuman or degrading punishment" without having the coercive force of law, without the sovereignty of nation-states being thereby obligated, and above all without the death penalty being condemned as such (precisely in order not to encroach on the sovereign decision of states, to which the choice of deciding on exceptionality must be left). What is cruelty? And how to weave this question into the double question concerning the exception, concerning sovereignty and thus the sovereign determination of what is an exception, of what is and what is not cruel?
Here, following this reminder that barely outlines the nervure of a phantom, the nervous system of a specter, namely the nodal unity, the knot, the syllogism, the system, or if you prefer, the synapse or the syntax of this triple question: exception, sovereignty, cruelty — following this reminder, then, we begin, we begin again, and we set off again in search of another problematic unity, of the other ternary figure of a knot of questions.
What is an act?
What is an age?
What is a desire?
I will begin with these three questions. I will state them slowly and will leave them suspended. I will formulate them simply to give the key, as if I were trying to tune an instrument before beginning to play. Or again, another figure, as if we were trying to pull the string of this coleopteran or this artifact known as a kite [cerf-volant] on whose canvas or wings one might perceive, from afar, and from below, a still unreadable inscription. Of  which "cerf-volant" will we be speaking? How to hear, in its French signifier, the word, the syllables cerf-volant, cerveau-lent? Who has a cerveau lent in this tragedy of the punishment called capital? Three questions, therefore, on the wings of this cerf-volant:
What is an act?
What is an age?
What is a desire?
These three "what is?" questions, suspended on the wings, or on the tail, or at the head of a kite [cerf-volant], are related, let us say, to "my death," or more precisely to what one might call the "given moment" of death — I mean the given moment of my death, of the "my death" of each one of us, of what each one of us may want or mean to say when saying "my death," at the "given moment" of my-death. Not only the moment of giving death or the appointed and desired moment [moment voulu] of death but a given moment of my death, and more precisely the designated and still suspended place [lieu dit] of this given moment.
If there is one thing that it is not given to us to know, and thus to calculate with absolute precision, it is the given moment of my death. Except perhaps in the case of the death penalty, which implies, in principle, that one knows, that the other knows, and sometimes that I know, to the second, to the moment, in a way that is therefore calculable, the moment of "my death." I can, in a murder or in a suicide, claim to calculate, according to the objective time of the clock, the very second of the given death. But where death comes to me from the other, the death penalty is the only experience that, in principle, allows the very moment of death, the given moment of death to be a moment that is both desired [voulu] and publicly dated.
1. The first of these three questions ("What is an act?") reverberates like a great and precisely ageless question, a question in the great ontological tradition. What is an act, in the sense of action (with everything that can be opposed to it: passion — action/passion — theory or thought, speculation, language, acting instead of theorizing, of thinking, speculating, or even speaking, etc.), but also what is an act in the sense of act  understood as energeia ("in actuality," with its Latin pseudo-equivalent, its problematic translation as actus, which one blithely opposes to dynamis, power or potential being, or even matter, possibilitas, virtuality, etc.)? An enormous problem that touches not only on the difference between agent and patient, act and passion, act and potential or possibility, form and matter, in particular and par excellence in the discourse of Aristotle, with its entire filiation (which is enormous), but also at the same time on everything that we are meditating upon or have been premeditating here for years regarding the thinking of the possible and the impossible, of an im-possible that would not be negative, of an impossible that would escape the alternative between the possible and the actual, or even the active, etc. It is usually thought, according to good, common sense, that the death penalty is an act, a real, concrete [effectif], irreversible act, one that seals the irreversible, the irrevisable, precisely because it is an act, because it is supposed to be the most active and the most actual, the most concrete, the most real of acts, the most undeniable of acts, an acting out that also claims to penalize an actual, concrete, real act, one or more real and concrete murders, for example, and not only intentions or desires that would not have been acted upon and which basically do not belong to the time or age of the act (of the act that consists in the death penalty or in the criminal act that it claims to sanction). The death penalty would thus be an act that claims to sanction what is only an act, a concrete, real act, in actuality, and not simply what is possible, an intention, a virtuality, a desire (conscious or unconscious).
2. The second of these three questions, which comes together in "what is an age?" or "what is the right age to die, if there is one?," specifies the "given moment" or the "designated place [lieu dit] of the given moment" of "my death" in general. I posed this question very quickly in passing last year, I think. If, given that I am in any case, like every living being, condemned to die, if not condemned to death, if, condemned to dying sooner or later, like everyone else, I had the choice between, on the one hand, dying at such and such an age, tomorrow or later today, of natural causes, as the result of an automobile accident  or an illness (like almost everyone, in fact), and, on the other hand, of dying at another age, later, the day after tomorrow, in a year, ten years, twenty years, in a prison, because I will have been sentenced to death by capital punishment (the guillotine, the electric chair, lethal injection, hanging, the gas chamber), what would I choose, what age would I choose for my death?
Whatever the answer to this question — and right now, as I speak, I don't have an answer — the mere positing of the question, its mere possibility, precisely, shows that the alternative, when it is a question of the death penalty, and we demonstrated this a hundred times last year, with a hundred examples, I will not return to this, the alternative is not the alternative life/death, living or dying, nor is it even time, the given moment or the desired moment of death, the objective age of death, but rather a certain modality, a certain qualification of living and dying, a manner, an apparatus, a theater, a scene of giving-life and of giving-death, indeed of giving-oneself-death. The choice is not between life and death, nor even between two ages for dying, but between two modes and two times of an unavoidable and always imminent death.
3. The third question (what is a desire?) meets up with or crosses the first (what is an act?) at one point or at more than one point. It does not throw us into a scene that is all too familiar, into a grandiose and canonical way of asking ourselves "what is this thing that we call desire?," a word, desire, which I tend to use as little as possible, and a question to which so many discourses — classical and modern — have provided so many interesting answers. Access to this word and to this question — desire — would perhaps be different, this time. The point would not be to apply some concept, some notion or the word desire to the question of crime, murder, and the death penalty, as if we knew what it was or what it signified. On the contrary, one would have to try, if this were possible, to isolate the sphere and the time of desire on the basis of a certain way of thinking the death penalty, violent death, crime, penalty [peine], punishment, guilt and non-natural death.
 Schematically, the approach would be the following: what is called law, legality, legislation, and in particular the law that codifies punishment, the penal code in other words, such as it is exercised by the sovereignty of the state or the sovereign, by a king, a governor, or a president (and soon we will have the President come up on stage, we will give him his role, have him preside, which is the very position of the president), this law, in the form of a legal code, might make provision for the punishment of the criminal, of whoever has in fact and in actuality committed this act that is called a crime, for example, murder; this punishment can be the death penalty. Conversely, a legislative measure can abolish the death penalty, as has been the case, but only for the past ten years, in the majority of states in the world. But there are two things that no legislative measure, no law, until now, has been able to do or has claimed to do, and what is that? To prohibit the desire to kill, the mere desire, so to speak, before or without acting upon it, or at least before or without the carrying out of an act that would be identifiable according to certain problematic criteria, for there are ways of acting upon the desire to kill — that do indeed kill — without there being a crime identifiable according to the conventionally accepted signs of an act in human society such as it has conceived of itself until now. One can prohibit murder, but can one prohibit the desire for murder? To prohibit murder is to prescribe "Thou shalt not kill"; this was done. But as we read in Exodus last year, right after the Ten Commandments, God institutes a kind of death penalty for anyone who transgresses this or that commandment under this or that condition. One can institute the death penalty to prohibit murder, but can a death penalty prohibit the desire for murder? One can also prohibit the death penalty itself, one can abolish it. But can one prohibit the desire for "the death penalty" that may survive the legal abolition of the death penalty, as we know all too well is the case, even in France, among the majority of the French people, as the polls tell us? One can, then, of course wish to prohibit killing. Never kill! Never put  to death! Never put to death another living being, whether the other or yourself. But can one prohibit the conscious or unconscious desire to kill? What presides over this desire? What do to preside and president mean in this case?
One may want to prohibit killing to the point of abolishing the death penalty. But can one abolish the desire or the compulsion that drives the death penalty, and that presides over it sovereignly?
Excerpted from The Death Penalty Volume II by Jacques Derrida, Geoffrey Bennington, Marc Crépon, Elizabeth Rottenberg. Copyright © 2017 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Table of Contents
Foreword to the English Edition General Introduction to the French Edition Editorial Note Translator’s Acknowledgments First Session: December 6, 2000 Second Session: December 13, 2000 Third Session: January 10, 2001 Fourth Session: January 31, 2001 Fifth Session: February 7, 2001 Sixth Session: February 21, 2001 Seventh Session: February 28, 2001 Eighth Session: March 7, 2001 Ninth Session: March 21, 2001 Tenth Session: March 28, 2001
Index of Names