Jump to ContentJump to Main Navigation
Deconstructing the Death PenaltyDerrida's Seminars and the New Abolitionism$

Kelly Oliver and Stephanie Straub

Print publication date: 2018

Print ISBN-13: 9780823280100

Published to Fordham Scholarship Online: January 2019

DOI: 10.5422/fordham/9780823280100.001.0001

Show Summary Details
Page of

PRINTED FROM FORDHAM SCHOLARSHIP ONLINE (www.fordham.universitypressscholarship.com). (c) Copyright Fordham University Press, 2019. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in FSO for personal use (for details see www.fordham.universitypressscholarship.com/page/privacy-policy). Subscriber: null; date: 18 April 2019

“Bidding Up” on the Question of Sovereignty

“Bidding Up” on the Question of Sovereignty

Derrida between Kant and Benjamin

Chapter:
(p.119) Chapter 6“Bidding Up” on the Question of Sovereignty
Source:
Deconstructing the Death Penalty
Author(s):

Kir Kuiken

Publisher:
Fordham University Press
DOI:10.5422/fordham/9780823280100.003.0007

Abstract and Keywords

This chapter interrogates the logic that Derrida identifies in the Death Penalty seminars and elsewhere as a logic of “surenchère” or “bidding-up.” This logic characterizes the development of the death penalty out of its relation to the unconditional ground of sovereignty. Focusing on Derrida’s strategy of multiplying and interrogating figures of hyperbolic sovereignty, including the death penalty itself, this essay explores how the logic of “bidding up” governs both Kant and Benjamin’s very different understanding of the relation between the self-founding of law, and the death penalty’s application. Turning towards Derrida’s earlier reading of Benjamin, this chapter goes on to articulate how the motif of “divine violence” becomes a figure without figure for a different form of “bidding up” that introduces an alternative logic of the unconditional. It also introduces the possibility of a genuine philosophical opposition to the death penalty as the imbrication of law making and law-preserving violence.

Keywords:   Capital Punishment, Death Penalty, Deconstruction, Exception, Immanuel Kant, Jacques Derrida, Sovereignty, Walter Benjamin

Derrida’s seminar on the death penalty proceeds from what might appear as a conflicting set of circumstances. Focusing on a phenomenon—the death penalty—that had been abolished in France since 1977, Derrida builds an argument against a practice the political significance of which depends on two very different national contexts, French and American (these were the two main audiences for Derrida’s seminars). In the French context, the concerns of the seminar more than likely appeared at the outset to be primarily historical, as they deal with a set of concerns no longer pertinent to the juridical-political system of the present. When applied to the United States, however, Derrida’s seminar addresses an audience for whom the death penalty is a firmly established juridical-political principle, one that is indeed sacrosanct. Even today, no candidate for political office in the United States dares to oppose the death penalty, since opposing it means almost certain electoral defeat. In fact, as Derrida demonstrates, popular support has by and large kept the death penalty out of party politics, since it functions only as a “wedge issue” that the Right uses for political purposes. It is worth recalling that at the time the seminars were delivered in 1999/2000, then–presidential candidate George W. Bush had presided (p.120) over more executions as governor of Texas than any other governor in history; today, that mantle has been passed to Bush’s successor, Rick Perry.

Although these two different contexts might appear to be essentially incommensurate, Derrida’s seminars on the death penalty are, in fact, much more global in scope, in both senses of the word, than these two national contexts. For, even in the American context, as Derrida insists, the death penalty is beginning to disappear in its present form, becoming less and less visible, outlawed in more states today than ever before. The disappearance of the death penalty in the United States is being accelerated not by moral or political interests but by commercial ones. Pharmaceutical companies, for whom maintaining a certain public perception is more profitable than producing the relatively small quantities of the substances required to administer lethal injections, no longer manufacture them, making the practice of the death penalty in the United States more difficult. As recent cases have shown, the practice of the death penalty and the Eighth Amendment of the Constitution, which rules out cruel and unusual punishment, are becoming increasingly harder to reconcile.1 In fact, it appears that the inability to administer lethal injection may actually threaten the very existence of the death penalty as a constitutionally sanctioned form of punishment or, at the very least, may force states to return to older forms of the death penalty, such as the firing squad.2

While cognizant of the political and historical contexts that separate France and the United States, Derrida’s abolitionist argument in the seminars actually begins an analysis of the condition of the death penalty’s (gradual) global disappearance. There is, in other words, a subterranean dimension of Derrida’s seminar that goes beyond simply generating a philosophical argument in favor of the abolition of the death penalty. What actually interests Derrida far more is separating out the various conditions that produce the death penalty’s disappearance, since certain aspects of its withdrawal from the global scene nonetheless threaten to keep it intact in forms that are no longer part of the legal apparatus of the state. Derrida, avowedly abolitionist, is well aware that the disappearance of the death penalty in France, and even its possible eventual disappearance in the United States and across the globe, might in the end entail nothing more than a case of bad faith or a sleight of hand. If what disappears is simply the state-sanctioned version of the death penalty, this does not necessarily mean that what Derrida defines as the legal, state, or metaphysical “scaffolding” that legitimizes it has been undermined as well. One might even go so far as to say that one of Derrida’s main points of interrogation concerns the way in which even abolitionist discourses, sometimes unwittingly, (p.121) reaffirm this underlying scaffolding. This is why his argument in the seminar tends to address the death penalty as something more akin to a symptom, a place of excess within the legal system that must be interrogated precisely before it disappears entirely. For, as Derrida insists, the death penalty is not just one punishment among others: It is a site, a point of tension within the juridical-political order that makes visible a set of relays, an entire structure, which Derrida calls its “onto-theological scaffolding.”3 As an excess internal to the legal system, the death penalty is also a place within that system that reveals its profound connection with the structure of political sovereignty in general, as well as its ontotheological foundation.

Thus, Derrida’s target in the seminars is not merely the death penalty itself but also the apparatuses and constructs that subtend it, justify it, and that, in many cases, form the basis of a number of abolitionist arguments. This is why Derrida’s major contribution to an abolitionist discourse on the death penalty is marked both by an insistence on philosophical rigor and on the question of strategy. The strategy at stake is not quite one that a political activist might resort to, for example, to organize a campaign to target pharmaceutical firms that manufacture the drugs and anesthetics used in the administration of the death penalty possible in the United States. While these are important strategic campaigns, the strategy in Derrida’s case involves an attempt to dismantle the underlying ontotheological background that makes the death penalty possible and that might, in the end, allow it to continue to exist in other forms. This particular strategy speaks to Derrida’s remarkable claim that no philosopher in the history of philosophy has stood in principle against the death penalty.4 In fact, as Derrida makes clear in the first volume of The Death Penalty, abolitionist arguments have tended generally to be the domain of writers considered to be “literary,” such as Victor Hugo.5 Such claims introduce the rather daunting task Derrida sets for himself: an attempt to think, with the help of a philosophical tradition that offers no obvious precursors, a principled opposition to the death penalty that goes straight to its heart, as it were, rather than by attempting to moderate the implementation of the death penalty through questions of utility. Arguments that claim, for example, that the death penalty is too expensive, or that it is not sufficiently a deterrent against crime, miss the point insofar as they leave intact the principle of the death penalty itself, a principle that will always remain waiting in the wings, given the right conditions. Just as the prohibition against cruel and unusual punishment can be circumvented by the anesthesio-logic that made lethal injection in the United States the preferred means of the (p.122) administration of the death penalty, allowing it to persist on the basis that, though perhaps “unusual,” it was no longer cruel, so do abolitionist arguments that proceed from questions of utility provide a potential alibi for the death penalty, allowing it to return to the juridical-political sphere under the right conditions. An attempt to oppose the death penalty in principle is the crucial and unique dimension of Derrida’s project. While others have and continue to oppose it, they tend to do so, Derrida claims, without directing their abolitionism to the crucial principles, or philosophical scaffolding, that subtends it.

A precise account of Derrida’s strategy is therefore required in order to understand the nature and scope of his abolitionist critique. One of the cornerstones of this strategy is to take up the texts of a philosophical tradition and to address what I will call multiple “figures of excess” in the texts of his interlocutors. These figures of excess then become points wherein a particular principle or commitment takes shape within the juridicalpolitical order, even as it simultaneously exceeds that order in specific ways. The death penalty itself would be an example of one such figure: A penalty like no other, it takes to the limit, and appears to even exceed, a variety of legal and juridical principles such as jus talionis, the notion that the punishment should fit the crime. Though it might seem as though the death penalty, usually reserved for capital cases, reaffirms the biblical “eye for an eye” principle of strict equivalence between crime and punishment, this principle is, in fact, pushed to its limit in the case of the death penalty, since the one punished is no longer present once the punishment is enacted. The death penalty becomes a site, therefore, where a different kind of principle enters the juridical-political sphere, one that disarticulates the relation between law and what is in excess of the law.

Derrida’s seminar is striking, however, for the way that these figures of excess proliferate. (Though the death penalty is the main figure of excess that Derrida interrogates, it is by no means the only one.) It is precisely this proliferation, I will argue, that challenges the centrality of the death penalty itself, as if part of Derrida’s strategy in the seminar is to position the death penalty as a figure of excessive punishment in relation to other possible figures of excess that emerge from the same logic. What is generally conceived of as the exceptionality of the death penalty as a unique form of punishment emerges, in fact, out of the logic of sovereignty itself—its need to ground itself, as Schmitt argues, on the exception. When Schmitt famously defines the sovereign in his 1922 book Political Theology as “he who decides the exception,” the relation between the sovereign and (p.123) the exception on which his authority is grounded must be understood in a precise sense.6 That is, the sovereign and the exception must be understood as co-originary. The sovereign does not decide when to introduce exceptional powers, for example in a state of emergency in light of an extraordinary situation that precedes his or her decision. Rather the sovereign decides on the exception in the sense that he decides on the very difference between exception and norm, determining when a state of exception is in place by suspending the law, and thereby producing the exceptional situation. As Schmitt insists, “The decision on the exception is a decision in the true sense of the word. Because a general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm.”7 The sovereign’s authority emerges in and through the decision on the exception that, because it is not grounded in an existing legal norm, places the sovereign in a kind of liminal space. In the moment of decision, the sovereign is both inside and outside the legal system, at once the very ground of the legal system’s authority and of its overturning. The sovereign is thus already the first figure of excess within the juridical-political order, since the decision on the exception by which the sovereign emerges cannot be grounded in the legal order itself. This is precisely why the co-origination of the sovereign and the exception introduces a series of effects that are felt even in the “normal” functioning of the juridical-political sphere. In the case of the death penalty, for example, it is the sovereign who gives himself the sole right of pardon. The structure of sovereignty and the institution of the death penalty, therefore, emerge over the same ground, through an analogical relation to the exception. The exceptionality of the sovereign produces and defines the exceptionality of the death penalty; they are coimplicated as places where the sovereign is grounded on a relation to the exception and where this relation is made visible or is given shape.

A hyperbolic punishment within the juridical system, which it nonetheless fundamentally exceeds, the death penalty is a figure of excess, a site within the juridical-political order that follows out the logic of the relation between sovereign and exception. That is, the death penalty points toward the alegal origin of that system, a place “before the law” that gives shape to a punishment “after the law,” which maintains a relation to the exception by becoming a hyperbolic case of punishment. The question, then, is why Derrida’s strategy is to proliferate these figures of excess, and play them off against each other, in what he himself defines as a necessary gesture of (p.124) hyperbolization or “surenchère”—a “bidding up” or outbidding toward something that is more than, over and above, a particular conception of sovereignty.8 This gesture, Derrida keeps insisting, is a necessary one and is found both among supporters and opponents of the death penalty. It also constitutes the core of Derrida’s philosophical abolitionism. If, for example, the principle of the dignity of Man, that which is proper to Man, provides a surreptitious sanctioning of the death penalty pointing as it does, for philosophers like Kant, toward something within Man that transcends his “mere life,” Derrida locates a similar gesture or appeal in the other camp. Hugo’s abolitionist discourse, for example, invokes a law above and beyond the state, a moral or theological law over and above the right and power of the sovereign as death-dealer.9 As I will argue in what follows, Derrida’s strategy is not merely to multiply these figures of excess but rather to attempt to think, through a repetition of the gesture of surenchère or “bidding up” in both pro–death penalty discourses and in abolitionist ones, another relation between the unconditional and its figuration, another relation between the sovereign and the exception on which it is grounded. Derrida does this by staging an encounter between two thinkers in order to have their texts solicit each other. Without making him choose one argument or text over the other, this strategy allows him to witness the ways in which a certain logic of the exception produces very different figures of the unconditional, different “figures of excess” in these texts. By focusing on how Derrida enacts his own gesture of “bidding up” through a reading of Benjamin’s and Kant’s similar gestures with regard to the death penalty, what begins to emerge is a reading strategy that does not simply pit one argument against another but instead attempts to disrupt the apparent isomorphism between a particular figure of excess and the underlying philosophical scaffolding that makes it possible. By engaging in this sort of reading, Derrida attempts to short-circuit the logic of the example, of exemplarity, that both arguments are predicated on, and by doing so opens each thinker up to ways in which the unconditionality of his argument might take another shape or form. Derrida does this by attempting to open a given “figure of excess” up to a different relation to the unconditionality or the exceptionality that underpins it. Derrida does more than add one more figure of excess to the tradition; he attempts to pursue other stakes, other forms of “bidding up” or surenchère that radically solicit, and thus destabilize, the sovereign logic of the exception, as well as the means by which the exception becomes manifested in the juridical-political sphere to begin with.

(p.125) More Than One Surenchère: Between Kant and Benjamin

From the outset, Derrida suggests that the notion of a “principled” opposition to the death penalty, the very task of his seminar, encounters a specific limit: the assumed unity of the death penalty as a principle, in the singular, that one could oppose. To articulate a principled opposition to the death penalty is to seemingly take for granted the idea that there is only one logic of the unconditional, only one relation between norm and exception. Derrida poses this question most emphatically at the start of the second year of the seminar: Is it possible to take a principled stance against something that might not, in the final analysis, have an identifiable center? In Session Twelve Derrida addresses this possibility directly by insisting that the strategy he employs to map out the metaphysical scaffolding of the death penalty will necessarily entail several different itineraries, without assuming anything about the purported unity of the death penalty as a “principle”: “We are going to try to multiply our points of departure and our approaches, as if, by dissociating and diversifying more than ever our angles of attack, we were still hoping to surround some vital center of the question.”10 The military metaphor of encirclement around a center will, Derrida claims, necessitate multiple threads and points of departure for the argument because it is not entirely clear where the “vital center” of the question of the death penalty might be located and because it is not entirely clear whether one even exists. Derrida thus raises the specter that the death penalty is itself always already multiple, that underneath its name lies not a unique reference but a series of further relays, from the question of the proper of Man, to the question of cruelty, to the logic of anesthesiology that governs the death penalty’s existence. In Session Twelve Derrida links the apparent unity of the question of the death penalty with the dream or the desire to locate it in a single site: “Our only or in any case our primary concern will be to take seriously this apparent specificity, this appearance, this effect of specificity, the manner in which, under this name, the death penalty is constituted as a specificity-effect and continues to torment us today as such, under conditions that are more and more pressing, dramatic, urgent, at times unbearable.”11 One could, then, potentially be launching a principled opposition to something that would be nothing but a “specificityeffect,” or what Derrida will later call an “identity effect,” linking it with the simulacrum: “a simulacrum of identity.”12 The simulacrum of the death penalty’s unity, or its very lack of one, would be its greatest form of self-defense, deflecting any principled stance in advance, since it is not, strictly (p.126) speaking, a concept or a principle that one can identify in order to stand against it.

The first strategic move in Derrida’s argument, therefore, is to insist that a principled opposition to the death penalty cannot be formulated head-on: The death penalty always takes more than one shape, even if its name refers predominantly to its juridical form. In a series of close readings, Derrida shows how the logic of the unconditional and the exception underpin a variety of different “figures of excess”—some opposed to the death penalty, others reinforcing its apparent necessity. To that end, in the first year of the seminar Derrida positions Kant as one of the most rigorous defenders of the death penalty in the Western philosophical canon. Kant reappears throughout the second year of the seminar because he links the logic of the unconditional, the conception of the “proper of Man,” and the death penalty into a single nexus. For Kant, the death penalty is a punishment that testifies to the dignity of Man as destined for an end beyond mere life. For Kant, as Derrida insists, the death penalty is fundamentally “disinterested”; it is not bound by any pathology of power. Its necessity emerges out of Man’s super-sensuous vocation. It is therefore radically unconditional as a form of punishment; it is external to any question of utility or vengeance. In the first year of the seminar, Derrida focuses on what in Kant results from the imbrication of the proper of Man (Reason) and jus talionis, where the main counterpoint to this argument is found primarily in Nietzsche’s critique of the notion of Kantian disinterestedness.13 In the second year of the seminar Benjamin’s argument in “Critique of Violence” becomes the counterpoint to Kant. For there Benjamin makes precisely the opposite claim: that the death penalty is the ultimate example of “law-preserving violence” and that the death penalty’s fundamental interest is in preserving the law’s monopoly over violence.

Derrida focuses on how Kant and Benjamin manage to generate two diametrically opposed conceptions of the death penalty, while drawing on a logic of the unconditional in what appears to be the same structure or “onto-theological scaffolding” that determines both. Since throughout the seminar Kant remains the most potent example of a philosophical argument in favor of the death penalty, it is worth recalling how the moral law, the unconditional, and the categorical imperative combine to justify his conception of a “disinterested” death penalty. While Derrida concentrates on Kant’s arguments about the applicability of the death penalty in the “Doctrine of Right,” I would argue that the logic of the unconditional can be found at work already in the more abstract preoccupations of the Critique of Practical Reason.14 If in the “Doctrine of Right,” the death penalty is (p.127) linked to the proper of Man as destined for an end beyond mere life, in the Critique of Practical Reason this argument is derived from the very unconditionality of the moral law itself. Kant insists that the categorical imperative must divest itself of any and all “pathological” interests in carrying out what it demands—any interest, that is, aside from what the moral law dictates. The unconditionality inherent to the moral law underpins Kant’s argument in the “Doctrine of Right” that a punishment such as the death penalty can be determined only in relation to the law itself and not in terms of the effect the punishment will have (on society, on the guilty party, and so on). In the case of the death penalty specifically, Kant effectively eliminates the means/ends structure that governs standard juridical logic, paving the way for a hyperbolic punishment—the death penalty—that takes place inside the juridical order, but that insistently exceeds all questions of utility. One of the fundamental justifications for the necessity of the death penalty, according to Kant, is not that it acts as a deterrent but that it goes beyond the question of efficacy or interest, directed purely by the purpose of the moral law itself.

What emerges from this disinterestedness is a connection between the death penalty and the moral law: The death penalty comes to be articulated as the presentation of the unconditional ground of the moral law, its very “facticity” within the juridical. For Kant, the moral law is famously self-authorized and self-authorizing, a figure of the unconditional itself. In lieu of a logical “deduction” of the kind one finds in the Critique of Pure Reason,15 the “deduction” of the moral law in the Critique of Practical Reason follows immediately from its unconditionality and from the presupposition of the law itself:

But something different and quite paradoxical takes the place of the vainly sought deduction of the moral principle, namely that the moral principle, conversely itself serves as the principle of the deduction of an inscrutable faculty which no experience could prove but which speculative reason had to assume as at least possible (in order to find among its cosmological ideas what is unconditioned in its causality, so as not to contradict itself), namely the faculty of freedom, of which the moral law, which itself has no need of justifying grounds, proves not only the possibility but the reality in beings who cognize this law as binding upon them.16

A nexus of principles emerges, each of which contains the other. Like freedom or autonomy for Kant, the death penalty is grounded on the logic of the unconditional. Man’s “freedom” as rational being, understood as the (p.128) principle of something higher than life in Man, countersigns another figure of the unconditional in a sort of diabolical analogy: From Man’s unconditional autonomy comes his subjection to the moral law, out of which emerges the unconditional figure of the death penalty as the sign of his rational destination—in other words, of his very freedom.

Having established this relation between the unconditionality of the moral law and the death penalty in Kant’s argumentation, Derrida turns in Session Thirteen to Benjamin’s exploration of the death penalty in the context of his “Critique of Violence.” Reading Benjamin “with” Kant, Derrida demonstrates how the Kantian nexus of principles, clustered around a logic of the unconditional that legitimizes the death penalty as a “disinterested” sign of Man’s super-sensuous vocation, is repeated with a difference in Benjamin. However, Derrida’s turn to Benjamin via Kant does more than simply relate two thinkers, who would appear to be opposed, by demonstrating that they share a similar logic. Instead, Derrida places them into contact with one another without staking out a middle ground between them. To stake such a ground would be to immediately fall prey to a “simulacrum of identity”—the notion that there is one logic of the unconditional “shared” by two thinkers of different stripes. The result is a strangely passive gesture on the part of Derrida’s commentary: By simply placing one alongside the other, Derrida allows their texts to resonate, to solicit each other. Both of them, as Derrida demonstrates, will introduce their own strategy of “surenchère,” or “bidding up,” with regard to the logic of the unconditional. Yet this staging of multiple gestures of “bidding up” begins, in Derrida’s argument, to fragment the “simulacrum of identity” that engenders a specific relation to the unconditional ground that underpins the existence of the death penalty. Through a doubled reading of Kant and Benjamin, Derrida’s seminar gestures toward a structure that makes both Kant’s and Benjamin’s respective arguments possible but that also might not yet be finished with making something else possible.

Focusing on a “figure of excess” in Benjamin’s text, and on the unconditional scaffolding that makes it possible, Derrida’s reading of “Critique of Violence” proceeds from the fascination the masses have for what Benjamin calls the “great criminal”: a lawbreaker who fundamentally and radically contests the law’s monopoly over violence. Benjamin’s emphasis on the masses’ fascination concerns two different components that make the “great criminal” such a focus of attention. The first is a fascination with the great criminal’s act and the specific manner in which it exceeds the law. The second (which is Benjamin’s primary focus) involves a fascination with the law’s self-interest in its own defense by punishing the “great criminal” (p.129) with death. This second component is, in fact, a fascination with the death penalty. For Derrida, Benjamin’s argument “links up” with the Kantian logic of the death penalty as a hyperbolic reaction to a hyperbolic crime, while grounding itself in a law that at the same time is paradoxically fully self-interested. That is, in applying the death penalty to the case of the “great criminal,” the law, for Benjamin, reveals that it is interested primarily in its own self-preservation. Since, for Benjamin, law is the appropriation of violence, its monopolization, individual acts of violence threaten the law simply by challenging this monopoly, along with the means/ends structure that governs the juridical. As Benjamin puts it: “One might perhaps consider the surprising possibility that the law’s interest in a monopoly of violence vis-à-vis individuals is explained not by the intention of preserving legal ends, but, rather, by the intention of preserving the law itself; that violence, when not in the hands of the law, threatens it not by ends that it may pursue, but by its mere existence outside the law.”17 Thus, Benjamin and Kant meet in Derrida’s text at the apex of an outbidding that either condones the death penalty in in its pure disinterestedness (for Kant) or does the same in its pure self-interest (for Benjamin): “If violence, violence crowned by fate, is the origin of law, then it may be readily supposed that where the highest violence, that over life and death, occurs in the legal system, the origins of law jut manifestly and fearsomely into existence.”18 The death penalty’s exercise over life and death, the most extreme and hyperbolic punishment the law can enact, is also where it comes into contact with its own violent, alegal, unconditional ground. The application of the death penalty, in Benjamin’s argument, thereby crosses the border between the foundation of law and its most extreme application. In other words, the death penalty, for Benjamin, is a site that reveals the total imbrication of law-making and law-preserving violence.

What interests Derrida in this reading of Benjamin is not just the fact that a logic entirely opposed to Kant’s grounds the “justification” of the death penalty in the “fact” of the law or in the defense of its monopoly on violence. Derrida is also interested in the multiple figures of fascination that result from this symmetrical counter-logic to Kant’s notion of a disinterested death penalty. There is, first of all, a fascination with the death penalty itself, which in primitive societies, Benjamin claims, was explicitly disproportionate, violating jus talionis not in order to authorize a particular law but in order to reinvent the foundation of law itself. For Benjamin, the death penalty thus reveals that the monopolization of violence by the law in fact points to the law’s origin as external to the juridical order it establishes. The very reason the law takes an interest in itself, in its own (p.130) self-preservation, is that it must continuously refer to the alegal, violent origin that first instituted it. As a result, it must defend itself against other claimants, such as the “great criminal,” who would inaugurate, outside the juridical system that the law has set into place, other founding laws, other claims to a monopoly over the law’s violent origin. In Benjamin’s argument, the “great criminal” does more than transgress a specific law: He transgresses the principle of law itself, its very “right” to a singular, exceptional relation to its own violent act of foundation. The fascination of the masses with both the “great criminal” and the death penalty stems from the way these two entail a contestation over the alegal origin of the law.

Rather than side with, or join in, a contestation over the alegal foundation of law, Derrida focuses on how a variety of “figures of excess” begin to proliferate in and around the various forms of relation to this extralegal foundation Benjamin examines. Without privileging a specific relation to this alegal space, Derrida allows the proliferation of figures to disperse the purported unity of the unconditional ground they appear to encircle. At stake in Derrida’s argument appears to be an attempt to solicit both thinkers—Kant and Benjamin—in an effort to think at once the condition of a relation to the unconditional and the contestation that results when this ground can no longer be identified as a unique or singular “vital center.” Or it is as if, in Derrida’s reading “between” Kant and Benjamin, any contestation over the law had to first of all challenge whether the basis of the dispute was not already exposed to a logic of iterability at the heart of the founding of the law itself. This iterability would entail both a radical inauguration, such as the self-grounding of the moral law in Kant or the violent imposition of the law in Benjamin, and a reference to a prior occurrence that always already deracinates the sovereignty, the unique singularity, of the founding act from its very inception. In Benjamin’s text, this iterability induces a hyperbolic desire: the need to preserve a right to the law’s unique or privileged relation to its own ground. This right also signifies the law’s right to a monopoly over lawmaking violence, a monopoly that in turn engenders a properly hyperbolic figure within the juridical-political system it inaugurates: the death penalty. It is as though Derrida were engaged in a long detour, passing by way of the many “identity-effects” invoked by a fascination—whether Kant’s, Benjamin’s, the masses’, or his own—with the logic of the unconditional, of which the “great criminal” and the death penalty would only be examples among others. As if the logic of surenchère or “bidding up” were itself being subject to a proliferation that multiplies the effects of this logic, without any assurances or guarantees of what will emerge out of this repetition. This is why Derrida spends so long in Session (p.131) Thirteen commenting on the multiplication of the “more than” (“mehr als”) formulations in Benjamin’s essay. Derrida professes his own kind of interest in the proliferation of these formulations throughout Benjamin’s text, as if the proliferation itself, rather than the figures, were what was important: “More than, mehr als: this ‘more than’ this ‘more [le plus],’ this hyperbole, this summit of the comparative or this superlative is interesting in Benjamin’s argument.”19 In Kant’s and Benjamin’s texts there are always at least two figures of radical sovereignty, always more than one, both seemingly grounded in the same logic of surenchère. While restaging the aporia of a relation to the unconditional that authorizes two very different notions of the death penalty, Derrida will go on to gesture, through this restaging, toward something that in the repetition allows the aporia to present itself anew. Whether this restaging adds yet another “figure of excess” to a proliferating array of figures or instead permits the glimpse of something other, an entirely different relation between figure and unconditional ground, remains initially deferred.

This deferral ends, however, by being confronted with one of the most hyperbolic moments in Benjamin’s “Critique of Violence”: his enigmatic reference at its conclusion to the notion of “divine violence.” The aporia of a relation to the unconditional in Benjamin’s essay takes the form of a need to articulate more precisely the distinction between law-preserving and law-making violence. Alluding to his own discussion in the second half of “Force of Law,” Derrida suggests in the Death Penalty Seminars that Benjamin’s reference to divine violence is the site where this aporia is articulated. However, I would argue that the notion of “divine violence” cannot be understood in the same way as other “figures of excess” such as the death penalty or the “great criminal,” both of which are legible and are, for Benjamin, clear instances of the imbrication of law-making and lawpreserving violence. In fact, Benjamin openly ponders whether one will ever be able to identify the precise form or figure divine violence takes: “For only mythic violence, not divine, will be recognizable as such with certainty, unless it be in incomparable effects, because the expiatory power of violence is invisible to men.”20 For Benjamin, mythic violence is the only recognizable violence because it enshrines violence into law. Divine violence, however, takes many forms, some of which make it appear as if it were its contrary: “Once again all the eternal forms are open to pure divine violence, which myth bastardized into law. Divine violence may manifest itself in a true war exactly as it does in the crowd’s divine judgment on a criminal.”21 Insisting that all law-making and all law-preserving violence is “pernicious,” Benjamin ends his text with a famously enigmatic claim that (p.132) points toward a doubling back of the logic of surenchère upon itself. Irreducible to both law-making and law-preserving violence, divine violence is exterior to both, unrecognizable in itself, yet still part of the hyperbolic “more than” structure that allows it to emerge. It is, in other words, still a feature of the relation between law and its alegal foundation. As the conclusion of Benjamin’s essay insists: “Divine violence, which is the sign and seal but never the means of sacred dispatch, may be called ‘sovereign’ violence.”22

Perhaps this further bidding up forces the term sovereign to undergo a mutation, allowing it to become as “unrecognizable” as the very divine violence Benjamin invokes in the last line of his essay. Yet since he defines divine violence as that which annihilates all law,23 Benjamin does not immediately introduce a figure for it.24 What emerges at the end of the essay instead of an example is an act of naming or designation. In “Force of Law,” Derrida links the enigmatic ending of the “Critique of Violence” with Benjamin’s earlier meditation on naming in his 1916 essay “On Language as Such and on the Language of Man.” There, Benjamin articulates a transition from God’s original creative speech act in Genesis to the bestowal upon Man of the capacity of naming (albeit without the capacity to create by naming): “God spoke—and there was. But this man, who is not created from the word, is now invested with the gift of language and is elevated above nature.”25 God’s originary speech act brings the world into being, but it also bestows upon Man the capacity of naming as the means by which the world becomes known or communicable: “The absolute relation of name to knowledge exists only in God; only there is name, because it is inwardly identical with the creative word, the pure medium of knowledge. This means that God made things knowable in their names. Man, however, names them according to knowledge.”26 In short, the only genuinely creative act of nomination belongs to God, whereas once the language of God is relieved of its actuality in the divine, it becomes a form of knowledge, something communicable.

Yet even in this earlier essay, the relation between God’s creative nomination and Man’s capacity to name passes by way of a relation between law and nomination. For Benjamin, the birth of human language marks Man’s capacity to name, only once the direct connection between name and thing has been sundered. That is, another dimension of Man’s capacity to name takes shape only after the Fall, once good and evil, the problem of judgment, and all the elements of human language Benjamin identifies with the beginning of abstraction have entered the scene. This “abstract” dimension of language is, for Benjamin, irreducible to knowledge: (p.133) “The Tree of Knowledge stood in the garden of God not in order to dispense information on good and evil, but as an emblem of judgment over the questioner. This immense irony marks the mythic origin of law.”27 The mythic origin of law, then, is conceived here as a passage between two different forms of nomination: the one that belongs to God (in which name and thing are one) and the one that belongs to Man (in which this immediacy is broken).

I would argue, however, that human language, in Benjamin, nevertheless bears a trace of divine nomination. Toward the end of “On Language as Such and the Language of Man,” Benjamin introduces a seemingly paradoxical claim that calls into question his focus on Man’s language as essentially communicative: “Language is in every case not only communication of the communicable but also, at the same time, a symbol of the non-communicable. This symbolic side of language is connected to its relation to signs, but extends widely—for example, in certain respects to name and judgment.”28 While I cannot develop all that is at stake in Benjamin’s insistence on the relation between naming and judgment here, it is clear that language, for Benjamin, maintains a relation to an exteriority that cannot be reduced to something already “there,” already given in and by God’s act of creation. This symbolic dimension of language offers something that cannot be mediated or imparted, which means that there is, in every act of naming, something that withdraws itself from enunciation. It is as if every name, insofar as it attempts to re-enact God’s original unconditional act of naming, kept a secret, a reference to an anteriority from which it derives its capacity to name.

In “Force of Law,” Derrida explicitly links this prior space of naming with Benjamin’s later concept of “divine violence”: “Is it not ‘divine violence’ that will always have come first but also given all the first names, by giving man the sole power of naming?”29 Divine violence thus occupies a strange liminal space: Exceeding both law-making and law-preserving violence, it gestures toward a scene of “violence” that would have come first, that would have been anterior to them both. In the context of Benjamin’s “Critique of Violence,” divine violence interrupts all established law, while not yet founding another law. It therefore acts otherwise than as the “great criminal” who challenges the monopoly of law’s mystic origin by staking a claim to that very source, becoming a pretender capable of speaking in its name. In short, divine violence acts differently than any other “figure of excess” in Benjamin’s text, since in each case what is at stake is a contestation over a particular unconditional ground. In contrast, divine violence constitutes a strange form of “bidding up” since, as Derrida puts (p.134) it in “Force of Law,” divine violence “never takes place in a presence. It is the moment in which the foundation of the law remains suspended in the void or over the abyss, suspended by a pure performative act that would not have to answer to or before anyone. The supposed subject of this pure performative would no longer be before the law [devant la loi], or rather he would be before a law [loi] still undetermined, before the law as before a law still nonexisting, a law still ahead, still having to and yet to come [une loi encore devant et devant venir].”30 What Derrida calls here an “absolute performative” (to distinguish it from Austin’s concept of the performative), would not yet have any conditions in place to ascertain its “felicity,” to indicate its having been carried out or established.31 Divine violence, thus, has the structure of the future anterior, suspended in a place where the absolute distinction between law-making and law-preserving violence no longer holds and where divine violence takes the form of an “absolute performative” whose presence has not yet arrived, much like the secret at the heart of every name.32

What is significant in this gesture toward the “future anterior” of divine violence, however, is the way that the “bloodlessness” of divine violence (for Benjamin repeatedly insists on the fact that divine violence does not shed any blood) begins to once again mimic the logic that leads Kant to affirm the death penalty in the name of that which exceeds man’s natural life.33 If the mythological violence of the law is exercised against mere life, sacrificing it in the name of something that transcends life, divine violence, according to Benjamin, sacrifices life for the sake of the living, beyond both law and judgment: “Mythic violence is bloody power over mere life for its own sake; divine violence is pure power over all life for the sake of the living.”34 This is what distinguishes divine violence from mythic violence: Beyond mythic violence’s sacrifice of life for its own sake (i.e., for the sake of the power of mythic violence itself), divine violence values life for the sake of a different destination of what is “more than,” over and above, life. It values life, according to Benjamin, for the possibility of Man’s being-just, for the justice of his life and for the justice of life itself. This is why divine violence is always, according to Benjamin, the most just, the most historic, the most revolutionary, and as Derrida adds “the most decidable or the most deciding.”35 It is “the most deciding” because, paradoxically, divine violence “does not lend itself to any human determination, to any knowledge or decidable ‘certainty’ on our part. It is never known in itself, ‘as such,’ but only in its ‘effects’ and its effects are ‘incomparable.’ They do not lend themselves to any conceptual generalization.”36

(p.135) Thus, we are once again faced with two different surenchères, seemingly symmetrical, two different forms of “bidding up,” two different relations to the unconditional that gives these logics their force and efficacy. Yet what appears to desymmetricalize this relation is the even more audacious gesture at the end of Benjamin’s essay toward a form of violence that has no figure, no present name under which it falls. The line that concludes the “Critique of Violence,” cited above, and that I cite here again, moves from the juridical-political to the problem of nomination Benjamin addresses in “Language as Such and the Language of Man”: “Divine violence, which is the sign and seal but never the means of sacred dispatch, may be called ‘sovereign’ violence.”37 Commenting on this line in “Force of Law,” Derrida links this conception of “sovereignty” to the power of nomination itself: “It names itself. Sovereign is the violent power of this originary appellation. Absolute privilege, infinite prerogative. The prerogative gives the condition of all appellation. It says nothing else, it calls itself, therefore, in silence. Nothing resonates, then, but the name, the pure nomination of the name before the name. The pre-nomination of God—here is justice in its infinite power. It begins and ends in the signature.”38 In this ostensibly even more radical gesture of “surenchère,” we seem to have returned to something approximating the “originary” naming act of God in Benjamin’s “On Language as Such and the Language of Man.” Except that here the dividing line between nomination and “prenomination” no longer holds, nor does the division between law-making and law-preserving violence. Unconditional as it is (“it names itself”), this radical act of self-nomination cannot dispense with an opening at the same time to a pre-nomination, which would be both an opening toward justice and the threat of what Derrida in “Force of Law” and elsewhere calls “the worst”: the possibility of a “bidding up” toward an even more radical, more sovereign form of violence.

And yet, in the end, Benjamin’s purely nominal definition of divine violence that concludes the “Critique of Violence” (“it may be called ‘sovereign’ violence”) suggests something that does not yet have a name, something that has not yet been given its proper name, and would have to be called “sovereign” for lack of any other designation. By default, as it were. As if with sovereign or divine violence we had returned to a moment of creative nomination that sets in place what it names. Or, alternatively, it is as if the namelessness, the figurelessness of divine violence required a counter-signature, a kind of counter-nomination. It is perhaps the secret of this name that Derrida gestures toward in his reading of the various “figures of excess,” including the death penalty, and their relation to the (p.136) unconditional. Derrida’s reading takes place “between” Kant and Benjamin, without any assurance that the name “divine violence” is, in fact, a proper one. In any case, it remains something short of a premise or, for that matter, a “principle.” Nonetheless, it inaugurates a strategy that will have taken us through a long detour, if only in order to sign nothing but the unconditionality of a promise.

Notes

(1.) There have been several disturbing recent examples of “botched” executions due to a lack of supply of the drugs and toxins used to administer lethal injection. Recent victims include Dennis McGuire in Ohio, executed January 16, 2014, who took twenty-five minutes to die, and Clayton Lockett in Oklahoma, executed April 29, 2014, who, after an experimental solution was used in place of the standard drugs, took forty-three minutes to die. More information about these and similar cases can be found at the Death Penalty Information Center at deathpenaltyinfo.org.

(2.) On March 22, 2015, the governor of Utah, Gary Herbert, signed a bill making firing squads the means of execution in the event that the state is unable to obtain the drugs required to administer lethal injections.

(3.) Jacques Derrida, The Death Penalty, vol. 1, trans. Peggy Kamuf (Chicago: University of Chicago Press, 2014), 23.

(4.) to my knowledgeas a philosopher, in his or her own strictly and systematically philosophical discourseas suchJacques Derrida, For What Tomorrow …, trans. Jeff Fort (Stanford, Calif.: Stanford University Press, 2004), 146.

(5.) Derrida ventures the following “hypothesis” in the First Session of volume 1 of The Death Penalty: “If the history of the general possibility, of the largest territory of the general conditions of possibility of epic, poetic, or belle-lettristic productions (not of literature in the strict and modern sense) supposes or goes hand in hand with the legitimacy of the legality of the death penalty, well then, on the contrary, the short, strict and modern history of the institution named literature in Europe over the last three or four centuries is contemporary with and indissociable from a contestation of the death penalty, an abolitionist struggle.” See Derrida, Death Penalty, 1:30.

(6.) Carl Schmitt, Political Theology, trans. George Schwab (Chicago: University of Chicago Press, 1985), 5.

(p.137) (7.) Ibid., 6.

(8.) The Beast and the SovereignmajestysovereigntyJacques Derrida, “Majesties,” in Sovereignties in Question, trans. Thomas Dutoit and Outi Pasanen (New York: Fordham University Press, 2005), 117.

(9.) Derrida analyzes Hugo’s abolitionist argument throughout volume 1 of The Death Penalty. See especially Session Four, 97–122.

(10.) Jacques Derrida, The Death Penalty, vol. 2, trans. Elizabeth Rottenberg (Chicago: University of Chicago Press, 2017), 17.

(11.) Ibid., 18.

(12.) Ibid., 21.

(13.) See especially Session Six of Derrida, Death Penalty, 1:138–65.

(14.) Immanuel Kant, “On the Right to Punish and to Grant Clemency,” in The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1996), 104–10.

(15.) Immanuel Kant, Critique of Pure Reason, trans. Paul Guyer and Allen W. Wood (Cambridge: Cambridge University Press, 2009), 245–66.

(16.) Immanuel Kant, Critique of Practical Reason, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), 42.

(17.) Walter Benjamin, “Critique of Violence,” in Selected Writings, vol. 1, ed. Marcus Bullock and Michael W. Jennings (Cambridge, Mass.: Harvard University Press, 1999), 239.

(18.) Ibid., 242.

(24.) (p.138) Slavoj Žižek, “Divine Violence,” in Violence (New York: Picador, 2008), 202.

(25.) Walter Benjamin, “On Language as Such and the Language of Man,” in Selected Writings, vol. 1, ed. Marcus Bullock and Michael W. Jennings (Cambridge, Mass.: Harvard University Press, 1999), 67–68.

(26.) Ibid., 68.

(27.) Ibid., 72.

(28.) Ibid., 74.

(29.) Jacques Derrida, “Force of Law,” in Acts of Religion, ed. Gil Anidjar (New York: Routledge, 2002), 262.

(30.) Ibid., 270.

(31.) J. L. Austin, How to Do Things with Words, ed. J. O. Urmison and Marina Sbisà (Cambridge, Mass.: Harvard University Press, 1962).

(32.) Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005).

(33.) Benjamin insists that divine violence is both “lethal without spilling blood” and expiatory without bloodshed, “for blood is the symbol of mere life.” See Benjamin, “Critique of Violence,” 249–50.

(34.) Ibid., 250.

Notes:

(1.) There have been several disturbing recent examples of “botched” executions due to a lack of supply of the drugs and toxins used to administer lethal injection. Recent victims include Dennis McGuire in Ohio, executed January 16, 2014, who took twenty-five minutes to die, and Clayton Lockett in Oklahoma, executed April 29, 2014, who, after an experimental solution was used in place of the standard drugs, took forty-three minutes to die. More information about these and similar cases can be found at the Death Penalty Information Center at deathpenaltyinfo.org.

(2.) On March 22, 2015, the governor of Utah, Gary Herbert, signed a bill making firing squads the means of execution in the event that the state is unable to obtain the drugs required to administer lethal injections.

(3.) Jacques Derrida, The Death Penalty, vol. 1, trans. Peggy Kamuf (Chicago: University of Chicago Press, 2014), 23.

(4.) to my knowledgeas a philosopher, in his or her own strictly and systematically philosophical discourseas suchJacques Derrida, For What Tomorrow …, trans. Jeff Fort (Stanford, Calif.: Stanford University Press, 2004), 146.

(5.) Derrida ventures the following “hypothesis” in the First Session of volume 1 of The Death Penalty: “If the history of the general possibility, of the largest territory of the general conditions of possibility of epic, poetic, or belle-lettristic productions (not of literature in the strict and modern sense) supposes or goes hand in hand with the legitimacy of the legality of the death penalty, well then, on the contrary, the short, strict and modern history of the institution named literature in Europe over the last three or four centuries is contemporary with and indissociable from a contestation of the death penalty, an abolitionist struggle.” See Derrida, Death Penalty, 1:30.

(6.) Carl Schmitt, Political Theology, trans. George Schwab (Chicago: University of Chicago Press, 1985), 5.

(p.137) (7.) Ibid., 6.

(8.) The Beast and the SovereignmajestysovereigntyJacques Derrida, “Majesties,” in Sovereignties in Question, trans. Thomas Dutoit and Outi Pasanen (New York: Fordham University Press, 2005), 117.

(9.) Derrida analyzes Hugo’s abolitionist argument throughout volume 1 of The Death Penalty. See especially Session Four, 97–122.

(10.) Jacques Derrida, The Death Penalty, vol. 2, trans. Elizabeth Rottenberg (Chicago: University of Chicago Press, 2017), 17.

(11.) Ibid., 18.

(12.) Ibid., 21.

(13.) See especially Session Six of Derrida, Death Penalty, 1:138–65.

(14.) Immanuel Kant, “On the Right to Punish and to Grant Clemency,” in The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1996), 104–10.

(15.) Immanuel Kant, Critique of Pure Reason, trans. Paul Guyer and Allen W. Wood (Cambridge: Cambridge University Press, 2009), 245–66.

(16.) Immanuel Kant, Critique of Practical Reason, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), 42.

(17.) Walter Benjamin, “Critique of Violence,” in Selected Writings, vol. 1, ed. Marcus Bullock and Michael W. Jennings (Cambridge, Mass.: Harvard University Press, 1999), 239.

(18.) Ibid., 242.

(24.) (p.138) Slavoj Žižek, “Divine Violence,” in Violence (New York: Picador, 2008), 202.

(25.) Walter Benjamin, “On Language as Such and the Language of Man,” in Selected Writings, vol. 1, ed. Marcus Bullock and Michael W. Jennings (Cambridge, Mass.: Harvard University Press, 1999), 67–68.

(26.) Ibid., 68.

(27.) Ibid., 72.

(28.) Ibid., 74.

(29.) Jacques Derrida, “Force of Law,” in Acts of Religion, ed. Gil Anidjar (New York: Routledge, 2002), 262.

(30.) Ibid., 270.

(31.) J. L. Austin, How to Do Things with Words, ed. J. O. Urmison and Marina Sbisà (Cambridge, Mass.: Harvard University Press, 1962).

(32.) Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005).

(33.) Benjamin insists that divine violence is both “lethal without spilling blood” and expiatory without bloodshed, “for blood is the symbol of mere life.” See Benjamin, “Critique of Violence,” 249–50.

(34.) Ibid., 250.