Derrida and the Death Penalty


Jan Mieszkowski reviews Jacques Derrida's The Death Penalty, Volume I in the LA Review of Books:

[T]he driving concern of the seminar is as clear as it is provocative. “Never to my knowledge,” Derrida declared in a contemporaneous conversation with French historian Élisabeth Roudinesco, “has any philosopher as a philosopher, in his or her own strictly and systematically philosophical discourse, never has any philosophy as suchcontested the legitimacy of the death penalty.” As an experiment, I shared this claim with a number of academic philosophers. Their initial skepticism quickly turned to surprise as they realized that, as Derrida observes, virtually all of the major philosophers were either ardent advocates of capital punishment, reluctant apologists for it, or markedly silent on the topic. Even those, Derrida adds, “who maintained a public discourse against the death penalty never did so, to my knowledge — and this is my provisional hypothesis — in a strictly philosophical way.”

One may raise an eyebrow at the formulation “in a strictly philosophical way,” if only because one can’t help imagining how Derrida himself, in another mood, might have pounced on it: can philosophy ever be strictlyphilosophical? Doesn’t philosophy come into its own precisely by losing itself when it seeks a way of its own? Yet these are precisely Derrida’s concerns, for at issue is not just what certain philosophers have said about the death penalty, but whether Western philosophy is in some way organized by its investment in this particular doctrine of punishment. Derrida’s suggestion is that the death penalty is both one penalty among others and the penalty of penalties, a transcendental condition of possibility of justice and punishment. Criminal law as we know it, if not law in general, would be inconceivable in its absence. The death penalty, he writes, “has always been the effect of an alliance between a religious message and the sovereignty of the state,” state sovereignty, first and foremost, being the power over the life and death of subjects. It is therefore not simply a question of maintaining that we can only understand the death penalty by explaining the relations between traditional theological, juridical, and political discourses. The reigning theological-juridico-political constellation can be approached and understood only through a study of capital punishment.

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