Critical Inquiry Critical Inquiry

Peter Goodrich reviews The Death Penalty

Jacques Derrida. The Death Penalty: Volume 1. Trans. Peggy Kamuf. Chicago: University of Chicago Press, 2015. 287 pp.

Review by Peter Goodrich

28 July 2016

The death penalty exists in the West primarily as a phantasm. Abolished throughout Europe—as also in Australia, New Zealand, and Canada by the mid-1980s—it is retained in a small majority of states in the US. In the predominantly southern states that hold on to the judicially imposed death sentence, the practice, actual execution, is the exception rather than the rule. You are more likely to be killed by lightning than officially mandated, properly anaesthetized, “humane and usual,” lethal injection. As one critic formulates it, the death penalty, in its surviving form in the West, is a peculiarly American institution whose contours by and large follow the historical demographics and racial patterns of lynching. Race is the phantasmatic and specular dynamic, the scopic drive of the practice of the death penalty in the United States, and it is this spectral quality, the memory as well as the madness of judicially determining the time and manner of death, that haunts Derrida’s text.

The translation of the seminars, appositely enough, is itself the product, we are informed, of the “Derrida Seminars Translation project workshops,” and it is both elegant and, insofar as its subject’s allusive and associative style permits, remarkably unequivocal. I say that precisely because it is a seminar, seminarium, a seminary endeavor and so a pedagogy, a training, a somewhat French explication des textes which does not pursue any singular line of analysis but rather picks up, drops, returns to themes, to favorite words and familiar concepts, for example, to blood, the telephone, forgiveness, Doctor Guillotin, to Christ, to Immanuel Kant, to specters and their refusal to die. The seminar opens up themes, exposes the pedagogue, refuses secrets, resists the temptation to hide anything because “a seminar is obliged, as if by oath, to try to speak truly, to speak the true, to speak all possible truth” (p. 252). This enthusiastically fictive, repetitive and somewhat playful invocation of the context of the text briefly but emblematically hints at both the divagatory style, the semantic drift, employed by the seminarius, and at the substantive passion that drives the relentless two year interrogation of the specter of death as a legal penalty. It is an impossible endeavor, again in the spirit of the scopic drive of this work, because in deconstructing death Derrida invokes the specter of the heavenly aviary, as well as its methodological division, the undecideability of all projections, stating strangely that “the problem of deconstruction is that it has more than one angel and that it is this knowledge of the multiplicity of angels” (p. 241) that constantly dissolves both the unity of death and the identity of the text.

Growing up in Algeria with the death penalty present as a symbol of colonialism and as the literary and political cause of abolitionism, Derrida’s “oath,” his “truth,” the said of the unsaid that he laboriously and circuitously tracks is the political theology, the necessary and impossible theism of capital punishment. The key paradox—the claves regni caelorum, as it were—that the seminar pursues is that of killing so as to save the soul, the death penalty as a sacrificial act in honor of a higher cause. We thus start with the death of Socrates and the role of the night council, the citizens who visit the condemned to admonish and to save their soul. Platonism, of course, provides the structure of early Christian thought and specifically the trajectory from the cave, the state of fallen being, to the ideal, the heaven of forms. Thence to the sacrifice of Christ, as also of Hallaj of Bhagdad of the Abassid Caliphate, and a brief mention of Joan of Arc. These figures offer the path to the ideal of a single God, that of one sovereign, truth and law. And because it is the West, because it is Occidental political theology that is being tracked, the pivotal figure is Christ, the redeemer, the resurrected, who, in mimicry of the second Commandment, famously if immodestly says, “I am the way, the truth and the life: no man commeth unto the Father, but by me”, which is to say by way of sacrifice, crucifixion, and death.

Derrida’s chiasmic theme, that of the impossibility and inevitability of abolition focuses upon the exemplary death sentence, that of Christ. It is because the US is the most Christian of the Western States, because sovereignty and faith remain linked at the level of the demos, that capital punishment, in this view, resists deconstruction—remains extant—and exemplary. It is the judicially imposed exception, the mark of legal sovereignty, in imitation of Christ, and plays a liturgical role as the Eucharistic moment of jurisdiction: this body is sacrificed, this blood is given, to you, to the sovereign, the people, as coming together in your name. Against this Fauvist version of the sacrament, Derrida marshals literature and affect. The inimitable litterateur Victor Hugo plays a persistent role and is lengthily quoted for his advocacy of the ‘inviolability’ of life and his castigation of the revolutionary terror of ’93. What he proffers, however, in making life inviolable, in this natural law, this sacred right, is also an appeal to the very concept of sanctity and redemption that the death penalty relies upon. When Derrida elaborates that “during revolution, literature becomes history” (p. 113) and that it is specifically the task of literature here to call people back to the inviolability of life (see p. 102), he is well aware of the potentially theological translation that such claims will provoke. The inviolability of life, the immunity upon which it depends, is based upon a guarantee, a third, the specter of the Christian sovereign, the tellurian manifestation of divinity and the author of the law that dictates the death penalty.

The other figure is Kant. The categorical imperative and specifically the principle of equivalence dictate the morality of the death penalty. Reason free of affect, the lex talionis, as the contractual determination of equality of value is the contractual principle that purports of ordain death where the crime is murder. Against this, Derrida juxtaposes the personal interest of the philosopher in an affective and interior release from the threat of sentence, the torture of supposing themselves convicted, as also their “counter-pleasure” in witnessing the theatre of cruelty in the sovereign infliction of death. Hidden affects, secret interests, covert pleasures, the desire for revenge, the lust for blood evidences a confusion of poena naturalis within poena forensis, an interior emotion hidden within, underpinning and propelling the supposedly disinterested and external rationality of the law. It is a theme taken up again and at greater length in the second year of the seminar and so here it is sufficient to observe that the root of this critique is Friedrich Nietzsche. The “fat worm of error” that Derrida is tracing is that of nihilism, of a morality that sacrifices life in the name of a transcendental principle, that of the illusion of the afterlife, rather than admitting and exposing the incarnadine desire that propels the gibbet, Old Sparky, lethal injection as the ever more whitewashed modes of performance of the categorical imperative.

It is Christian morality that is most Fauvist, that lusts after blood, that offers up the flesh so as to release the soul. In the most Christian of states, the trajectory of the death penalty has been away from the visual spectacle and visceral character of Roman Catholicism and ever further West, towards a Lutheran and then increasingly evangelical doctrinal context. At its bloody, vengeful worst, capital punishment is a thoroughly theatrical, transubstantial event, stating effectively, “here is the body, here is the blood, given for you.” The reformist doctrine by contrast is that of consubstantiation, of the figuration rather than the actuality of flesh and flow, veritas and vino. The declining practice of the death penalty is equally figurative, desiccated, and ex-sanguinated. As in Jorge Louis Borges’s story of the utopia of a tired man, it is perhaps most probable that over time it will not be principle or argument but rather this increasingly hollow and theatrically drained character of the ritual that will lead to actual disinterest and to a thankful whimper and to a fading away. Transubstantiation as ex-sanguination can maybe release the color in killing, and in doing so put the specter of the racial dynamic of the death penalty more directly into play in the theater of politics. In the meantime, as a European philosopher, Derrida returns insistently to Pope John Paul II’s dying declaration, which sought forgiveness for the history of the Catholic Church. The Holy Father, however, made no mention and offered no repentance for the death penalty, which the Church has always favored. Derrida opines that John Paul perhaps had too much on his plate to include legal execution on his list. That is now the task of his successors. As early as 2014, Pope Francis condemned the death penalty and has since repeated that view. Ironically, on 27 June 2016, it was reported that Pope Francis had requested forgiveness for the Church’s treatment of gays. He has not asked for forgiveness, however, for the death penalty. As Derrida might have said, it remains a forgiveness to come.