The Death Penalty, Volume II 9780226410968

Citation preview

t h e d e at h p e na lt y

t h e s e m i na r s of jac qu e s de r r i da Edited by Geoffrey Bennington and Peggy Kamuf

The Death Penalty volume ii

h

Jacques Derrida Edited by Geoffrey Bennington and Marc Crépon Translated by Elizabeth Rottenberg

The University of Chicago Press ‡ c h i c a g o a n d l o n d o n

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2017 by The University of Chicago All rights reserved. Published 2017. Printed in the United States of America 26  25  24  23  22  21  20  19  18  17   1  2  3  4  5

isbn -­13: 978-­0-­226-­41082-­1 (cloth) isbn -­13: 978-­0-­226-­41096-­8 (e-­book) doi : 10.7208/chicago/9780226410968.001.0001 Originally published as Séminaire: La peine de mort, Volume II ­(2000–­2001) © 2015 Éditions Galilée. Cet ouvrage a bénéficié du soutien des programmes d’aide à la publication de l’Institut français. This work, published as part of a program of aid for publication, received support from the Institut Français. Library of Congress Cataloging-­in-­Publication Data Derrida, Jacques, author. [Séminaire La peine de mort. Selections. English] The death penalty. Volume I / Jacques Derrida ; edited by Geoffrey Bennington, Marc Crépon, and Thomas Dutoit ; translated by Peggy Kamuf. pages cm — (The seminars of Jacques Derrida) “Originally published as Séminaire: La peine de mort, vol. 1 (1999–2000). © 2012 Éditions Galilée” — Title page verso. Includes bibliographical references and index. isbn 978-­0-­226-­14432-­0 (cloth : alkaline paper)— isbn 978-­0-­ 226-­09068-­9 (e-­book)  1. Capital punishment—Philosophy. I. Bennington, Geoffrey, editor. II. Crépon, M. (Marc), 1962– editor. III. Dutoit, Thomas, editor. IV. Kamuf, Peggy, 1947– translator. V. Title. VI. Series: Derrida, Jacques. Works. Selections. English. 2009. hv 8698.d 4713 2014 364.6601—dc23 2013016561 ♾ This paper meets the requirements of ansi /niso z 39.48-­1992 (Permanence of Paper).

contents

Foreword to the English Edition : vii General Introduction to the French Edition : ix Editorial Note : xiii Translator’s Acknowledgments : xvii

first session December 6, 2000 : 1 second session December 13, 2000 : 29 third session January 10, 2001 : 56 fourth session January 31, 2001 : 83 fifth session February 7, 2001 : 108 sixth session February 21, 2001 : 136 s eventh session February 28, 2001 : 161 eighth session March 7, 2001 : 186 ninth session March 21, 2001 : 214 tenth session March 28, 2001 : 244 Index of Names : 267

foreword to the english edition

When the decision was made to edit and publish Jacques Derrida’s teaching lectures, there was little question that they would and should be translated into English. From early in his career, in 1968, and annually thereafter until 2003, Derrida regularly taught at US universities. It was his custom to repeat for his American audience the lectures delivered to his students in France the same year. Teaching first at Johns Hopkins and then at Yale, he read the lectures in French as they had been written. But from 1987, when he began teaching at the University of California, Irvine, Derrida undertook to lecture in English, improvising on-the-spot translations of his lectures. Recognizing that the greater part of his audience outside of France depended on translation was easier, however, than providing an ad libitum English version of his own elegant, complex, and idiomatic writing. In the circumstance, to his evident joy in teaching was often added a measure of suffering and regret for all that remained behind in the French original. It is to the memory of Derrida the teacher as well as to all his students past and still to come that we offer these English translations of “The Seminars of Jacques Derrida.” The volumes in this series are translations of the original French editions published by Éditions Galilée, Paris, and will in each case follow shortly the publication of the corresponding French volume. The scope of the project, and the basic editorial principles followed in establishing the text, are outlined in the “General Introduction to the French Edition,” translated here. Editorial issues and decisions relating more specifically to this volume are addressed in an “Editorial Note.” Editors’ footnotes and other editorial interventions are all translated without modification, except in the case of footnoted citations of quoted material, which refer to extant English translations of the source as necessary. Additional translators’ notes have been kept to a minimum. To facilitate scholarly reference, the page numbers of

viii ‡ for ewor d t o t h e engl ish e dit ion

the French edition are printed in the margin on the line at which the new page begins. Translating Derrida is a notoriously difficult enterprise, and while the translator of each volume assumes full responsibility for the integrity of the translation, as series editors we have also reviewed the translations and sought to ensure a standard of accuracy and consistency across the volumes. Toward this end, in the first phase of work on the series, we have called upon the advice of other experienced translators of Derrida’s work into English and wish to thank them here: Pascale-Anne Brault, Michael Naas, Elizabeth Rottenberg, and David Wills, as well as all the other participants in the Derrida Seminars Translation Project workshops. Geoffrey Bennington Peggy Kamuf December 2012

general introduction to the french edition

The complete edition of Jacques Derrida’s seminars and lectures will give the reader the chance of an unprecedented contact with the philosopher’s teaching voice. This edition will constitute a new part of his oeuvre, to be distinguished from the books and other texts published during his lifetime or revised by him before his death, and with a clearly different status. It is not certain that Jacques Derrida would have published the seminars as they stand: probably he would have reorganized or rewritten them. Taken as a whole, but also in their relation to Derrida’s philosophical oeuvre, these lectures and seminars will constitute an incomparable research tool and will, we believe, give a different experience of his thinking, here linked to his teaching, which was always, both in France and abroad, a truly vital resource of his writing. The corpus we are preparing for publication is vast. From the beginning of his teaching career, Derrida was in the habit of completely writing out almost all his lectures and seminars. This means that we have at our disposal the equivalent of some fourteen thousand printed pages, or fortythree volumes, on the basis of one volume per academic year. This material can be classified according to a variety of criteria. First, according to the place where the teaching took place: the Sorbonne from 1960 to 1964; the École normale supérieure in the rue d’Ulm, from 1964 to 1984; the École des hautes études en sciences sociales (EHESS) from 1984 to 2003.1 Then 1. We need to add the American places as well: from fall 1968 to 1974 at the Johns Hopkins University, then as visiting professor in the humanities from 1975 to 1986 at Yale University, where he gave each year, in the fall or spring semester, a regular seminar. From 1987 to 2003, Derrida taught regularly at the University of California, Irvine, and at the New School for Social Research, the Cardozo Law School, and New York University (1992– 2003). This American teaching (which, with a few exceptions, repeated the EHESS seminar) was given at first in French, but after 1987 most often

x ‡ gen e r a l in t roduc t ion t o t h e fr ench e dit ion

10

11

according to the type of teaching: classes with a very variable number of sessions (from one to fifteen) up until 1964; what he always called “seminars” thereafter. Finally — and no doubt most relevantly for the editorial work — according to the tools used: we have handwritten sessions from 1960 to 1970; typescripts, with manuscript annotations and corrections, from 1970 to 1988; electronic files and printouts from 1988 to 2003. Derrida’s seminars, which already had their own style and already attracted a broad and numerous following at the rue d’Ulm (where the choice of subjects and authors, if not the way they were treated, was constrained by the program of the Agrégation),2 take on their definitive character at the EHESS where, on Wednesdays from 5 p.m. to 7 p.m., a dozen times a year, Jacques Derrida, sometimes improvising a little, would read before a large audience the text of his seminar, entirely written out for each session as the year proceeded. (Add to that a few improvised sessions, sometimes around a reading, and a few discussion sessions.) Henceforth free in his choice of subjects, Derrida launched research projects over periods of several years, which link together in explicit, coherent, and gripping fashion. The great question of philosophical nationality and nationalism (1984– 88) leads to that of the “Politics of Friendship” (1988– 91), and then to the long series of “Questions of Responsibility” (1991– 2003), focusing successively on the Secret (1991– 92), Testimony (1992– 95), Hostility and Hospitality (1995– 97), Perjury and Pardon (1997– 99) and the Death Penalty (1999– 2001), with the final two years devoted to “The Beast and the Sovereign” (2001– 3). Derrida was in the habit of drawing on the abundant material of these seminars for the very numerous lectures he gave every year throughout the world, and often, via this route, parts of the seminars were reworked and published. Several of his books also find their point of departure in the work of the seminar: Of Grammatology (1967), for example, in large part develops sessions of the 1965– 66 seminar on “Nature, Culture, Writing”; the seminar on “Hegel’s Family” (1971– 72) is picked up in Glas (1974). Politics of Friendship (1994) is explicitly presented as the expansion of the first session of the 1988– 89 seminar, and there are traces in it of other sessions too. But in spite of these partial convergences and correspondences, the vast majority of the pages written from week to week for the seminar remain unpublished and in English: Derrida would improvise during the session an English version of his text, which he had previously annotated for this purpose. 2. [Translator’s Note]: The Agrégation is the notoriously competitive qualifying examination taken by prospective higher-level teachers in the secondary and university systems.

gen e r a l in t roduc t ion t o t h e fr ench e dit ion ‡ xi

will incomparably complement the work already published. Whenever a session was later published by Jacques Derrida, in modified form or not, we will give the reference. We do not consider it appropriate for the edition of the seminars themselves, as original material, to offer a comparative reading of those versions. As we have already pointed out, the editorial work varies considerably according to the mode of production of the text. For the typewriter period, many handwritten amendments and annotations require a considerable effort of decipherment; the more so for the seminars entirely written in Derrida’s handsome but difficult handwriting, which require laborious transcription. So we shall commence by publishing the seminars of the last twenty years, while beginning preparation of the rest. In all cases, our primary goal is to present the text of the seminar, as written by Derrida, with a view to speech, to reading aloud, and thus with some marks of anticipated orality and some familiar turns of phrase. It is not certain that Derrida would have published these seminars, although he occasionally expressed his intention of doing so,3 but if he had taken up these texts for publication, he would probably have reworked them, as he always did, in the direction of a more written text. Obviously we have not taken it upon ourselves to do that work in his place. As we mentioned above, the reader may wish to compare the original version presented here with the few sessions published separately by Jacques Derrida himself. Geoffrey Bennington Marc Crépon Marguerite Derrida Thomas Dutoit Peggy Kamuf Michel Lisse Marie-Louise Mallet Ginette Michaud

3. See, for example, the foreword to Politiques de l’amitié (Paris: Galilée, 1994), p. 11; Politics of Friendship, trans. George Collins (New York and London: Verso Books, 1997), p. vii.

12

editorial note

The seminar that Jacques Derrida devoted to the death penalty took place over two academic years (1999– 2000 and 2000– 2001). In the present volume, we publish the ten sessions that made up the second year of the seminar. Like the seminar of the preceding year,1 this seminar was first presented in French at the École des hautes études en sciences sociales, and then delivered in English in the United States at the University of California, Irvine, and at the New School for Social Research in New York. The first nine sessions were, as always, entirely written out. For the present edition, we worked from the typescript used in class by Jacques Derrida and archived at the Institut mémoires de l’édition contemporaine (IMEC, Caen), as well as from the corresponding electronic files and accompanying documents (newspaper clippings, photocopies of texts cited). There exist two copies of the typescript, one of which, used in the United States, includes a number of handwritten annotations. Where these annotations were not simply intended for the translation of the French text that Derrida improvised for his American audience, we have taken them into account. We have also made use of an audio recording of all the sessions. The tenth and final session (which left ample time for audience discussion) was improvised. For this session, we worked from the audio recording that, except in two or three places, signaled in the footnotes, could be transcribed without any uncertainty. When it came to quotations, we were able to refer to the volumes used by 1. Jacques Derrida, Séminaire La peine de mort, vol. 1 (1999– 2000), ed. Geoffrey Bennington, Marc Crépon, and Thomas Dutoit (Paris: Galilée, 2012); The Death Penalty, vol. 1 (1999– 2000), trans. Peggy Kamuf (Chicago: University of Chicago Press, 2014). We would refer the reader to the “Editorial Note,” pp. xiii– xviii, in this volume for further information on the seminar.

14

xiv ‡ e dit or i a l no t e

Jacques Derrida himself, which we consulted in his personal library at RisOrangis before it was moved to Princeton University in the winter of 2014. Concerned to preserve the spoken quality of this writing, we have also reproduced all the didascalia that figure in the typescript, as well as the reminders he addressed to himself such as “read and comment on” that precede a quotation and often an improvised development during the session. Taken from audio recordings, these improvised comments have been integrated into the footnotes whenever possible. As with the preceding volumes of the seminar, we have kept our editorial interventions in the typescript to a minimum. When they were necessary for reasons of clarity, we have systematically marked them as additions or modifications. Where there is a missing word, we have inserted it in angle brackets (< >) in the body of the text. The best presentation of this seminar is the one that Derrida himself gave of it, in two very different forms: first in the EHESS directory and then in his words of introduction at the New School in New York several days after the events of September 11, 2001. We reproduce them here:

15

In continuing last year’s work, we began by asking the same questions (centering around three concepts: exception, sovereignty, cruelty) and following the same guiding threads. First, that of the onto-theologico-political filiation that, in spite of important differences but without exception, has dominated all philosophical discourses as such on the death penalty, that is to say, in favor of the death penalty: from Plato to Rousseau, Kant, Hegel and beyond, all the way up to the most recent modernity. We thus tried to analyze the reasons and the reasoning (whether it was a matter of thinking “life,” “human life,” “sovereignty,” or the “state,” the “political” in general) that assure such a deep and unwavering permanence, such a remarkable and, until now, little remarked upon, unanimity. The Kantian and Hegelian discourses were, from this perspective, at the heart of our research, whether we were looking at the debates with Beccaria or around the French Revolution, regicide, the Terror or the great tradition of talionic law. Concerning the latter, we reread several biblical texts and examined the efforts to justify this law and even to see in it, against a certain traditional doxa, the very principle or origin of justice, from Kant or Hegel up to (and including) Lévinas. This talionic law is also a fundamental reference in the debate between psychoanalysis and penal law. We explored, from this point of view, the psychoanalytic project to transform criminal law (especially in Reik’s writing and the declarations he made in the name of Freud, in 1926, against the death penalty, in The Compulsion to Confess).

e dit or i a l no t e ‡ xv

Through these many readings, we tried not to lose sight of the presentday reality of the problem and, in particular, of what was really taking place in the United States both during and after the presidential election. The figure of the “president,” that is, of a sovereignty subject to a democratic election, called for special attention. Thus, we also looked at what was said about the “president,” among other things, and about the recent history of the death penalty in France in Robert Badinter’s most recent book, L’Abolition. Where our analyses of the United States crossed a certain psychoanalytic problematic, and while following a certain “history of blood” (the visibility or non-visibility of the execution, the move to lethal injection, modes of visibility, publicity, theatricality, sacrificial rituality — the reading of Foucault and discussion of his thesis on the progressive de-spectacularization of punishment; the reading also of Donoso Cortés on bloody sacrifice and the death penalty [1859]), we also let ourselves be guided by the three following questions, to which we tried to give both a new meaning and also one specifically related to the history of “crime and punishment”: 1. What is an act? 2. What is an age? 3. What is a desire?2

Here finally are the few lines, written in English,3 that Derrida addressed to his audience at the New School, as an introduction to his seminar: “September the 11th” (9/11) becomes now a name — it’s not simply a date, but the name, the ineffaceable name of an event for which — and this is not only, I would argue, a matter of economy in the designation, nor a matter of rhetoric — an event for which no other name, no other concept seems to be appropriate, adequate, reliable. As if the usual terms for this unspeakable experience — such as tragedy, terrible event, act of war, and even, act of terrorism, were at least implicitly or unconsciously considered inadequate — we’ll come back to these concepts of war and terrorism, I hope, within the seminar or in the discussions. I was watching on TV, the debates at the UN the other day and although many declarations, many previous and unanimous agreements, official conventions had in the past and do again today condemn what is called international terrorism, the Secretary General alluded to some discussions going on, in the wings, as to the concept of terrorism. Of course this difficult problem is indissociable from the problem of such classical concepts such as “war,” “state sovereignty,” etc. which should be at the center of our seminar on capital punishment. I was in Shanghai on September the 11th, the day of the unspeakable 2. Annuaire de l’EHESS (2000– 2001). Comptes-rendus des cours et conférences [EHESS Annual Report 2000– 2001: Reports on Courses and Lectures] (Paris: Éditions de l’EHESS, 2001), pp. 595– 97. 3. [Translator’s Note]: Reproduced here is Derrida’s original English.

16

xvi ‡ e dit or i a l no t e

17

event, and I was not sure I would be able to come back to Europe and to the USA. As soon as I was back to Paris, I called Richard Bernstein and told him that, if it was technically possible (in terms of flight, etc.) my desire was to come back here, as if I were coming back home, to share with my friends and colleagues in NY, especially at the New School, with you, the sorrow, the mourning, but also the reflections required by what we so call, for lack of a better description, September the 11th. I hope that the topic of the seminar will refer to it constantly, even if the reference remains indirect or implicit.

We would like to thank Marguerite Derrida, Thomas Dutoit for his participation in the original preparation of the typescript, Jean-Luc Nancy, and Cécile Bourguignon, as well as Michael Naas, Elizabeth Rottenberg, and Pascale-Anne Brault for their help in establishing a final version of the last session. Geoffrey Bennington Marc Crépon

t r a n s l at o r’s a c k n o w l e d g m e n t s

For whatever merits this translation may possess, it is indebted to many people. Let me therefore take the opportunity to acknowledge those who helped bring it to fruition, beginning with the participants of the 2012 and 2013 workshops of the Derrida Seminars Translation Project (DSTP)* at IMEC: Geoffrey Bennington, Kristen Besinque, Pascale-Anne Brault, Ellen Burt, Katie Chenoweth, Natalie Diebschlag, Tristan Fischl, Timothy Holland, Anna Johnson, Peggy Kamuf, Kir Kuiken, Michael Naas, Osman Nemli, Daniel Palumbo, David Reese, Kas Saghafi, Maria Salvador, Sarah Stein, Rodrigo Therezo, Samuel Timme, David Wills, and Perry Zurn. I am especially grateful to the DePaul students — Robbie Dunevant, Tristan Fischl, Daniel Palumbo, Michael Peterson, and Perry Zurn — for their work both before and after the DSTP workshops. Graham Paul, Consul General of France in Chicago, and Jean-François Rochard, Deputy Cultural Attaché, generously supported our work on The Death Penalty, Volume II. Finally, I would like to thank Michael Naas for his unerring ear and his willingness to discuss comma placement with me until the bitter, bitter end. Elizabeth Rottenberg

* See http://derridaseminars.org.

first session

December 6, 2000 h

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.1 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,2 those of four Protestant men, men who were in their own way presidents: Hegel, Mandela, Tutu, and Clinton — the three living ones3 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 Arc4 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 1. This bibliography was not included with Derrida’s typescript. However, the year before, he had recommended a list of readings. See Jacques Derrida, The Death Penalty, vol. 1, p. 46, n. 20. 2. See Jacques Derrida, Seminar “Perjury and Pardon” (second year, 1998– 99), unpublished (forthcoming). 3. Nelson Mandela died on December 5, 2013. 4. See Jacques Derrida, The Death Penalty, vol. 1, “First Session, December 8, 1999” and passim.

20

2 ‡ fir st se s sion

21

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?).5 5. The closing parenthesis has been added by the editors.

de ce m be r 6 , 2 0 0 0 ‡ 3

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”6 (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).7 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? 6. [Translator’s Note]: Here and throughout, the phrase “cruel and unusual punishment” is in English in the original. 7. The closing parenthesis has been added by the editors.

22

4 ‡ fir st se s sion

23

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]8 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?9 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 8. [Translator’s Note]: In French, the word “cerf-volant” literally means flying-stag or stag beetle. 9. [Translator’s Note]: In French, the expressions “cerf-volant” (kite) and “cerveaulent” (slow-brain) are homonyms.

de ce m be r 6 , 2 0 0 0 ‡ 5

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 pseudoequivalent, 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 im-possible 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 three10 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 injec10. In the typescript: “two.”

24

25

6 ‡ fir st se s sion

26

tion, 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

de ce m be r 6 , 2 0 0 0 ‡ 7

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,11 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? In these two cases, then, what does it mean to act, to act on? And what can law, state-sanctioned law, for example, make of this difference between desire and act? between a desire and a symptom? What can a nationally or transnationally sanctioned law do with the subtle and cunning economy that regulates these relations between, on the one hand, the unconscious and consciousness, between an act that is inhibited, suspended, prohibited, turned into a symptom (which can also be, in its own way, a barely disguised murder) and what is called, on the other hand, an act, a manifest, visible, publicly attested act — for the limit gets complicated here: it is no longer only the limit between the real act and the possible act, between the act and the desire, which can also be actual, consciously or unconsciously; this limit is also the limit between public and nonpublic, between the publicity of the public space and another space that may be private but also more than private, before the distinction between public and private, secret in another 11. See Jacques Derrida, The Death Penalty, vol. 1, “First Session, December 8, 1999,” pp. 10 ff.

27

8 ‡ fir st se s sion

28

sense, a conscious or unconscious secret (I am using the opposition conscious/unconscious in a non-dogmatic way, without being sure that what I am pointing to here are determinable realities or clear concepts; rather they are provisional and recognizable hypotheses that have, at the very least, the right to be posed as hypotheses, and that, moreover, do not arise here as useful hypotheses simply by chance; for I maintain, and this is no doubt not very original, that the idea of the unconscious, for example, far from helping us orient ourselves in the realm of crime and punishment, of penal logic, of guilt, of the death penalty, the idea of the unconscious, as hypothesis of the unconscious, arises, on the contrary, from the experience of wrongdoing, of crime, of guilt, of punishment, etc., in short from the experience of law and legislation).12 Must one reinvent, rethink the concept of act in order to allow for [ faire droit à] this new problematic and finally to take seriously the problem of the death penalty? I will leave these questions suspended for the moment until we take up a particular text of the psychoanalytic kind on the death penalty. I am deliberately saying a particular psychoanalytic text because it is, without being , a text of Freud’s, a text written in his name, three pages drafted by Reik in response to a survey.13 When I cautiously suggested, during a conference at the Estates General of Psychoanalysis (see “Psychoanalysis Searches the States of Its Soul”14), that there was not, to my knowledge, a text by Freud expressly devoted to the death penalty, this did not exclude the possibility that Freud, without himself writing on this subject, might have charged someone else to do so in his name and in his place, thereby giving rise to a text whose status, language, logic, or rhetoric, whose signature in truth, in short whose gesture, act, pragmatics must be analyzed with great care, as we will try to do here shortly. Moreover, I would like to quote, by way of anticipation, the last lines of this text that I intend to return to at length. Here is what Freud says, or rather what Reik says in Freud’s name but with his authorization; thus what I am citing is a sentence authorized by Freud that comes, like a leap, like a decision after a leap, at the end of a long and awkward response. Reik, 12. The closing parenthesis has been added by the editors. 13. See Theodor Reik, Le Besoin d’avouer. Psychanalyse du crime et du châtiment, trans. S. Laroche and M. Giacometti (Paris: Payot, 1973), pp. 399– 401; The Compulsion to Confess, trans. Norbert Rie (New York: John Wiley & Sons, 1966), pp. 471– 74. 14. See Jacques Derrida, États d’âme de la psychanalyse: L’impossible au-delà d’une souveraine cruauté (Paris: Galilée, 2000), p. 56; “Psychoanalysis Searches the States of Its Soul: The Impossible Beyond of a Sovereign Cruelty,” trans. Peggy Kamuf, in Without Alibi, ed. Peggy Kamuf (Stanford, CA: Stanford University Press, 2002), p. 262.

de ce m be r 6 , 2 0 0 0 ‡ 9

in Freud’s name, says the following, in response to a survey comprised of three questions including one on punishment in general and two on capital punishment: If permitted to take the liberty of modifying somewhat your main question, I should, in concluding, answer it thus: “I profess to be an opponent of murder, whether committed by the individual as a crime or by the state in its retaliation.” (474)

This desire to kill (on the part of the potential or would-be murderer) or this desire to maintain or reinstate the death penalty — which is also a desire to kill — in both cases we have a desire to kill that, as desire, is both younger and older than the act of killing. It can precede the act of killing without the latter taking place as act (I can desire to kill someone without ever killing him or without ever killing him according to what is called and recognized as murder in actuality, as public assassination, or as an actual, real, concrete execution, etc.). The desire to kill can also be older than the act and survive the act, even if the act, in the usual sense of the word, did not take place. I am well aware and you will quickly remind me that the law sometimes takes into account intention and desire when, for example, it distinguishes between first-degree murder [homicide volontaire] and second-degree murder [homicide involontaire] (that is to say, without intention, thus without desire to kill: this is the concept of actual bodily harm leading to death without any intention of killing). But this taking into account of intention and desire, of the desire to kill or not to kill, this legal accounting is limited in two ways, on two borders, as it were. On the one hand, law demands that there be actual signs, factual evidence, or indications of this intention or this desire, indeed of this intentional nondesire or desire not to (kill [donner la mort]): actions taken or actions avoided. It is thus very much a matter of acts, of manifestation by means of acts. On the other hand, the desire or the nondesire or the desire-not-to in question must come under the category of what we call consciousness, conscious perception. Up until now, the law has forbidden itself or has been unable to integrate into its essential axiomatic a logic of the unconscious or the symptom: above all, another thinking of the act (that is, of the relation between an act and its supposed others, the possible, the impossible, desire, thought, language); another thinking of age (that is, of the time of life and the multiplicity of heterogeneous measures, orders, or ways of counting)15; law has not reckoned with this other thinking of age even though, as you know, and this is an interesting symptom, penal 15. The closing parenthesis has been added by the editors.

29

30

10 ‡ fir st se s sion

31

discourse has been obsessed, especially when it comes to the death penalty, with the question of legal age, of the age at which it is legal to condemn someone to death or execution. This was and remains the object of interminable, casuistic, and jurisprudential debates in a society that maintains the death penalty and where the most puritanical legalism exists side by side with the most barbarous cruelty and with the greatest hairsplitting on the very criterion of cruelty. Indeed in the United States the question of penal age, so to speak, has received various answers that we must ponder today. For example, when in 1987, the federal Supreme Court (an authority whose role and significance we will have to return to patiently, and I will do this) went back on its 1972 decision (in Furman v. Georgia), which had judged the death penalty unconstitutional, and then agreed to revise its views in 1976 (Gregg v. Georgia decision), well, in 1987, then, the Supreme Court reaffirmed the legitimacy, the constitutional legality, of the death penalty in the case of a black man who had killed a police officer, and then radicalized its position by declaring, on June 26, 1989, in a 5– 4 vote (just like in 1972 but in reverse) that nothing prohibited the execution of people sentenced to death who were 16– 18 years old, that is, who were minors at the time of their crimes, nor did anything prohibit the putting to death of individuals who were considered to be “mentally retarded,”16 mentally handicapped. Two years before, in 1985, Virginia had sent a black, thirty-seven-year-old farmhand to the electric chair even though his mental age, according to the experts who had evaluated him, was eight. If you read the book edited by Austin Sarat, The Killing State, you will find a great number of similar cases.17 For example, to cite just one, the case of Penry v. Lynaugh in June 1989. Penry was convicted of rape murder and sentenced to death. He was twenty-two years old at the time of the crime but, according to the experts, had the mental age of a six-and-a-half-year-old boy, that is, I am quoting more or less, that he had the learning ability and the knowledge of an average six-and-a-half-year-old. That’s the “mental,” the so-called mental age, that is to say, intellectual age, on the order of knowledge, acquisition, learning, and understanding. The “theoretical” age, if you like. From the social point of view, on the other hand, that is to say, from the point of view of his social maturity, that is, his ability to “function in the world,”18 to act or operate in society, to be socialized, capable of integration, as they say, or of social 16. [Translator’s Note]: In English in the original. 17. Austin Sarat, ed., The Killing State: Capital Punishment in Law, Politics, and Culture (New York and Oxford: Oxford University Press, 1999). 18. [Translator’s Note]: In English in the original.

de ce m be r 6 , 2 0 0 0 ‡ 11

rehabilitation, from the social point of view, thus, he was three or four years older, that is, nine or ten years old. Here, then, is an accused man, a man sentenced to death who has at least three ages: six-and-a-half (mental age), nine or ten (social age), and twenty-two (legal age). The defense pleaded mitigating circumstances and claimed that it was unconstitutional, contrary to the Eighth Amendment rule on “cruel and unusual punishment,” to condemn and above all to execute a person whose abilities were so unequal. The Penry case split the court into three camps. Four justices rejected both the need for a claim and for an additional instruction. Four other justices held that the execution of someone as “retarded” as Penry would violate the Eighth Amendment. Justice O’Connor accepted the constitutional need for an additional instruction to establish mitigating circumstances but rejected the Eighth Amendment claim. We are not going to retry this case but we must keep in mind that such cases were legion. What I want to retain from this is not only the unfathomable difficulty of defining one or especially several ages, not only the weakness — not to say the essential idiocy of the language of the experts on this subject, the cerveau-lent of the experts, on the subject of this alleged maturity or immaturity of the subject who is being judged — but also the link between the question of maturity in general and the responsibility of the legal subject in general, the one, for example, to which the most rigorous discourses in favor of the inscription of the death penalty within the law refer (such as Kant’s). What is an age and at what age is a subject legally responsible? What is the age of the responsible legal subject? This question — enormous and classical — which we will find19 again at every step and which is the very question of the responsibility of what is known as a conscious, legal subject before the law, this question is not only unsettled, exposed to the winds by the multiplicity of mental and social ages in each of us, but also the more serious of the difference between the age of so-called mental, social consciousnesses, etc., and the age, if there is one, of the unconscious. Is there a history, a time, and an age of the unconscious? How would a judge respond if told by an expert “the accused is as ageless and timeless as the unconscious, which, according to Freud, knows no time, or else he has the unconscious age of a six-month-old and it is he, this neonatal nitwit [cet inconscient de nouveau-né], who killed?” And whatever the answer to these questions, would there be a translation, or any kind of passage, a minimal homogeneity between the ages of the 19. In the typescript: “which we would find.” 20. In the typescript: “but also that, more serious.”

32

12 ‡ fir st se s sion

33

unconscious and the ages of consciousness, not to mention legal age? If the desire or the act of a murderer (and we already have to distinguish the two, which is not always easy) are always, in reference to a logic of the unconscious, older, more archaic, or, what amounts to the same, younger, more puerile, even babyish, than those dictated by one’s legal age, if what one says then about the unconscious age of criminal desire or act can also be said of the unconscious age of the desire or the act of the judges or the society that sentences to death and executes, then this vertiginous question of age, of speed, of speed differential, of the difference between the slow and the fast is inseparable from the question of law and rights in general, and of criminology in particular, of the relations between the history of criminal law or criminology and psychoanalysis. We will reengage some of the most enigmatic, aporetic premises of these relations when we read Reik’s texts on the compulsion to confess (see bibliography21) and those texts I was speaking of a moment ago, texts that were written and signed by Reik in Freud’s name on the death penalty — and a kind of guilt that, far from succeeding the crime, precedes it and precedes it from the most archaic formation of the unconscious. Things are all the more complicated, unsettling, disconcerting, difficult to grasp given that the multiplicity of ages, our ages, of the heterogeneous ages that divide up our lives as mortals, and divide them up simultaneously (synchronically we have more than one age), this dischrony or essential anachrony that divides us, multiplies us, splits us, devours us while leaving remains, leads us to death while leaving vast zones of youthfulness or even embryonic and not yet “born” virtualities intact in us, [things are all the more complicated, unsettling, disconcerting, difficult to grasp given that the multiplicity of ages, our ages] is not only the ontogenetic multiplicity of ages of an individual, of a conscious or unconscious subject, or even a conscious or unconscious ego; it is not only the multiplicity of ages of each of the agencies of the psychical economy or system (the id, if you like, the ego, the superego, the ego ideal, the ideal ego, etc., and we could multiply these agencies) but also the irreducible multiplicity, in each of us, of the ages of humanity, of anthropological culture, indeed of the ages of (human or animal) life in general. Suppose that I kill: at what age will I have killed, or will I have been killed? At my legal age or at some archaic age in my history, when I was six months old, two years old, when I did not even know how to read or write, or when I was fifteen? Or already 100? Who will have killed whom, at what age? There is in us simultaneously, in our consciousness and our unconscious, something of the old man and of 21. See above, p. 1, n. 1.

de ce m be r 6 , 2 0 0 0 ‡ 13

the child but also of the man of the twenty-first century, of the fifth century BCE, of Cro-Magnon man and the Neanderthal, of the great ape, the tiger, and the squirrel. Who are you? How old are you at the moment you kill, or even at the moment you are killed?: these are the questions of age that can be asked of the defendant, the criminal, but also of the judge and the executioner, without ever being able to expect a satisfactory answer, for lack of knowledge, the knowledge first of all of what the question means. These ages will not be translated into one another; they cohabit with each other in a thousand ways; they make war or love according to a sociality for which the law of the human person has no model. Who is judged? Which age is judged? Where are the experts who can evaluate these “mental” or “social” ages that are no longer even ages of humanity? Without getting too far into the “age question,” let me briefly recall two other exemplary dimensions: 1. On the one hand, that of abortion and the right to terminate the life of an embryo by means of a calculable decision. Under what conditions, on what condition, at how many weeks must one consider the embryo to be a human person, a virtual legal subject whose life must be respected, etc.? The right to voluntary termination of pregnancy has just been extended, as you know, from ten weeks to twelve weeks22; another recent decision — another embryo problem — has authorized research and genetic experimentation on embryos that have been abandoned (abandoned thus to death) by their virtual parents. This authorization extends as far as possible but stops short of what is called “reproductive cloning” (research and experimentation can thus be conducted as long as they never reach or exceed the limit of what is called “reproductive cloning”) as if anyone, let alone any ethics committee, had ever been able to produce the least embryo of a concept worthy of the name on this subject, including a concept of cloning, not to mention the concept of “re-productive” . . . You know that from one country to the next, from one scientific culture to the next, the answers to this battery of questions are highly diverse, highly mobile, and are never, absolutely never founded upon even the most minimal of concepts or rigorous principles, rigorously rigorous, whatever side one takes, whether one is for or against; this reveals the essential fragility of the current concept of “person,” of “legal person,” or subject of rights. And you also know that the — at least rhetorical — reference to murder and to the death penalty is at the heart of arguments against abortion, which some 22. Derrida is alluding here to a law passed on July 4, 2011, that revised the Veil Law of January 17, 1975.

34

14 ‡ fir st se s sion

35

36

consider to be a crime or an execution, even a mass murder on the same demographic scale as the worst crimes against humanity of this century, a supplemental and highly significant sociological oddity being that the most militant opponents of abortion are most often (not always but most often, especially in the United States) advocates of the death penalty. In his last book L’Abolition,23 in the part titled “From One President to Another,” to which we will return from another perspective when we broach the question of the president (what is a president? What is the figure of the president in this history of the death penalty?), Badinter recalls the moment, at the beginning of Giscard d’Estaing’s presidency, when, following Pompidou (a president who proved to be rather harsh and refused to pardon Buffet and Bontems,24 remember our discussions of L’Exécution25 last year), Giscard declared “in private his profound aversion to capital punishment” (30). That gave rise to many hopes among the abolitionists, hopes that were dashed until the next presidency, that of Mitterrand in 1981. But under Giscard, and this is the only sign I would point to for now, besides a constitutional reform that transformed the Conseil Constitutionnel (an institution that is different from, but somewhat comparable to, the American Supreme Court of which we will speak again), two laws were passed, both of which in fact touched on the “age question.” The age of legal majority was lowered to eighteen and the law legalizing abortion was passed, following what Badinter refers to as a “distressing debate” (31) (it was in the course of this debate that Simone Veil, who put forward the law, was insulted and compared to a Nazi criminal), the law legalizing voluntary termination of pregnancy was thus passed by a vote of 284 to 189 thanks to the massive support of the left.26 Now, in the course of the debates, Badinter reminds us, some declared that one couldn’t at the same time be an abolitionist, that is, an advocate of the absolute respect for life (presuming, then, which I don’t believe, that one cannot oppose the death penalty without positing an unconditional right to the ownership of one’s own life, but let’s leave that aside), [some declared then that one could not be both an abolitionist, that is, an advocate of the absolute respect for life], and in favor of a liberalization of the abortion laws. This is the link that a particular rhetoric uses and 23. Robert Badinter, L’Abolition (Paris: Fayard, 2000); Abolition: One Man’s Battle Against the Death Penalty (Boston: Northeastern University Press, 2008). 24. In the typescript: “Bontemps.” 25. See Robert Badinter, L’Exécution (Grasset: Paris, 1973) and J. Derrida, The Death Penalty, vol. 1, pp. 66– 68. 26. That is, the law of January 17, 1975, legalizing the voluntary termination of pregnancy, also called the Veil Law.

de ce m be r 6 , 2 0 0 0 ‡ 15

abuses and that I wanted to recall here. To which, immediately afterward, Badinter rejoins as follows, which seems a little hasty to me: “But the death penalty was a torture [supplice] imposed on the convict by society, whereas the choice of an abortion was a woman’s decision. Freedom was on her side. No such thing for capital punishment” (31). To that, the opponents of abortion and the advocates of the death penalty might immediately have responded that the freedom of decision left to the mother (who is not, here, the subject condemned to death — that subject is the child to be born) cannot be symmetrically opposed to the freedom of decision that is denied the person condemned to death. The parallel, specious in itself, such as it is invoked by the opponents of the death penalty, is not between someone condemned to death and the mother but between the condemned one and the child to be born. 2. On the other hand, without getting too far into this “age question,” this question of childhood, the other exemplary dimension I wanted to recall briefly, concerns this time not the age of the child to be born or whose birth in some sense interrupted or forbidden, what I wanted to recall is not the right to be born, and thus the right not to die, but rather the right not to be born that has recently come under discussion in France, regarding Nicolas, the young man so severely handicapped whose parents have sued the medical establishment for its diagnostic failure and for not having informed them or advised them in due time of the possibility or necessity of preventing the impending birth.27 Regardless of the side one took in a trial that has now been decided by a judgment indemnifying life itself, the discussion involved the being alive of someone whose parents thought that it would have been better for him not to live; it involved not the unconditional right to life but a potential right not to be born. Not the right to die or to make die but the right not to be born. Who or what can be the subject of this right? To be born or not to be born, as people were wont to say, about the most radical decision there is, and about which it is clearer than ever that it is and remains, for every self there is, the decision of the other. In the case of the suicide of an adult, we do not know if it is the free and autonomous decision of the suicidal subject; it is clear that in the case of the embryo, the decision to be and to be born [la décision d’être et de naître] or not to be (born) [ou de n’être pas] remains that of the other, the father or mother who have, 27. On November 17, 2000, the Perruche judgment — named for Nicolas Perruche, a disabled young man born in 1983 — was delivered by the Court of Cassation [the French court of final appeal for civil and criminal matters]. The judgment clearly established the right of a disabled child to seek damages for his or her birth.

37

16 ‡ fir st se s sion

38

henceforth, the right to indict a medical body for not having informed their decision with its knowledge. And the right to indict for having indemnified the life of the survivor whose interests they represent. Who or what is the subject of this potential right? Who can claim such a right? Who is accountable for it and for whom, and before whom? What is the offending act? The act of letting live, of giving life, a life that would be worse than death, and thus a letting-live worse than giving-death? The formula, which I concede is a bit abstract, of “letting-live worse than giving-death,” might also, without there being the least symmetry here, open onto the problem of euthanasia that is going through a new period of turbulence today, as you know, or, as journalists sometimes say, gaining new currency, in the United States and in Europe. Last year we often used this word “euthanasia,” at times coupled with “anesthesia,” to designate all of those discourses or allegations concerned with softening or attenuating cruelty and humanizing execution, with the modes of putting to death in the implementation of capital punishment: lethal injection instead of the electric chair or hanging, and, before that, the guillotine presented by Dr. Guillotin as painless and as giving rise to a slight, almost pleasurable coolness on the neck. Today, in a narrower sense, the juridical question of euthanasia involves the right to kill, to accelerate death (but any murder involves the acceleration of a death that is inevitable in any case for those who, like all of us, are condemned to death), the right to kill, thus, by accelerating the death of patients presumed to be incurable and whose suffering demands, as the patients themselves sometimes demand, that this suffering come to an end. Euthanasia, whose act, agent, and moment are themselves difficult to define in a strict sense along the line of an indivisible limit (the imperceptible increase of a dose of morphine at the request of the patient, or in the absence of an explicit request, may exceed this limit without anyone having to assume any properly murderous responsibility); euthanasia that is in fact practiced, as we know, more often than is acknowledged in hospitals and elsewhere; euthanasia that contradicts in principle both the duty prescribed the doctor by the Hippocratic oath (to heal, to save, to restore to health, to put oneself in the service of life and not death) and the commandments of the Abrahamic religions; euthanasia that is easier for families to accept in the case of the elderly than in the case of children, adolescents, or young adults; euthanasia, the concept of which, once again, would have trouble standing up to certain fundamental questions, particularly those of a psychoana-

de ce m be r 6 , 2 0 0 0 ‡ 17

lytic nature (helping the other to die well, helping oneself to die one’s own death well, where does it begin? where does it end?); euthanasia, finally, which gives rise to vicious debates in the United States, in particular in the case of a doctor who confesses to and defends the practice of euthanasia and wants to take responsibility for it again in the future; euthanasia that, just last week, was legalized under certain conditions in Holland.28 So many questions that belong to this same problematic of act, age, and desire.

H

These three kites [cerfs-volants] or these three questions inscribed on the wings of a kite — a kite that is more or less in flight and more or less slow29 — will remain in the air above our heads. We are holding the string [ fil], but we will not pull on this thread [ fil] any more today. (Stop here?30) We are going to try something else, today and subsequently, the same thing but another thing or the same thing otherwise. We are going to try to offer a new perspective on what is called the death penalty. Coming back to earth, 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. Expect therefore a series of multilateral advances, on the wings, as if different armies, under a more or less unified command, were advancing according to discrete itineraries and locations, along the wings and close to the alleged decision-making center, following different strategies so as to besiege, in the properly strategic sense of the term, the fortress of the enemy, assuming that there is in fact such a center, and assuming too that we are designating the death penalty here as the enemy to be neutralized, analyzed, paralyzed, disarmed, put to rout. Why, in describing all of these advances, 28. The Netherlands was the first European country to pass a law legalizing active euthanasia and assisted suicide under certain conditions. 29. [Translator’s Note]: See above, p. 4, n. 9 on cerveau lent. 30. As such in the typescript. In fact, the session continued to the end of the written text.

39

18 ‡ fir st se s sion

40

compare them to wings, the wings of a flying machine or the wings of a sports team or above all the wings of an army marching in on an enemy position? Why this technical rhetoric of warcraft and these strategist figures? I will get to this in a moment. For it is by no means certain that there is a problem of the death penalty, a single and same problem identifiable under this name. Perhaps this name, this title, the death penalty, hides a nonunifiable multiplicity of concepts and questions. We should never exclude this possibility. There have even been powerful attempts (for example, those of Marx, Nietzsche, and perhaps Freud), which will continue to occupy us and to which we will return, [powerful attempts] to derive the properly judicial, legal, penal, and national dimension of the death penalty, thus its specificity, to derive it, thus, and deduce it from forces, drives (psychical, economic, political, etc.), that are at least more archaic, more profound, more general, more ancient, in any case more decisive, for whose benefit the legal apparatus and the judicial — or jurisprudential [étatico-juridique], even ethical — problematic of the said death penalty would function. One would then have to go back to the roots of what had been derived, one would have to bring the so-called penal and judiciary question of the death penalty, its legal and national dimension, back to more fundamental and decisive processes (psychical, politicoeconomic, social, etc.). All in all a very classical gesture to denounce the alleged autonomy of the juridical and a fortiori of the judiciary. We had begun to take this logic into consideration last year through the readings of Marx, Nietzsche, and others; we will do so again this year. Let me note for the moment, and just to begin, that the first effect of this logic may be to contest the existence of a unity, of an irreducible specificity of the death penalty, the existence of a problem or a single rigorously identifiable problematic of the death penalty. Taking into account this possible objection, 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. How might a collective experience of putting to death have only an appearance of specificity, an effect of unity? We will thus carry out and follow these different movements of encirclement and siege from the wings, in a discontinuous way, interrupting one advance here, along one wing, prolonging another, so as to carry out and observe yet another, flying out along another wing, and then returning to the first, etc., up until the moment when the armies, the regiments, the companies, the cavalry, the foot soldiers and the armored divisions will have

de ce m be r 6 , 2 0 0 0 ‡ 19

come together, the question of military rhetoric itself indicating a sensitive, even decisive, spot in the debate. Indeed last year we had already marked this sensitive line, this front as forefront of the question, namely, the fact that abolitionism has never approached the front, has never infringed on the right to kill, as the right of the state, on the front line, in wartime. One can abolish the death penalty within a society or nation-state without in the least infringing on the right to kill an enemy at the front in wartime. What, then, is an enemy of the nation? What is a state of war? Such terms (“wartime” or “peacetime”) make their appearance, as we will see, in many legal texts. And what about civil war? And what about what Schmitt calls “partisan war,” this form of modern warfare that nonetheless goes back to Napoleon, in which the distinction between civil war and national war is blurred? These distinctions, which were always problematic but are more so now than ever, would be enough to remind us that the question of the death penalty is not a question of life or death, of the difference between living and dying, or even between killing and not killing; rather it is a question of the different ways the state has of affirming its sovereignty by disposing of the life of certain subjects, foreign subjects (the enemy soldier, sometimes the enemy civilian) but also its own soldiers sent to the front or even condemned to death in wartime for treason or desertion. You may have seen two recent, remarkable, archival documents, two television documentaries (last year we raised the question of television and the way it decisively changes the horizon of the death penalty, the way it changes the horizon, i.e., that which allows one to see but also limits — the horizon is a limit — the death penalty, which is itself a horizon insofar as it is the calculable limit from which one sees a death coming, the date of a death, whereas death in general is not a horizon31). The two documents to which I am alluding involve, in the one case, the terrifying episode of the Chemin des Dames during Word War I,32 an episode whose existence was well known but whose scope and whose cruelty can be measured and perceived more clearly now in these newly released archives: the episode is about a real revolutionary movement or at least a revolt of rather massive proportions against the war in progress, a movement that spread through the country (particularly among women in factories) and entire regiments. Following the suicidal offensives that ev31. See Jacques Derrida, The Death Penalty, vol. 1, “Eighth Session, February 23, 2000,” p. 217. 32. Robert Mugnerot and Pierre Miquel, Première guerre mondiale: la tragique offensive du Chemin des Dames [World War I: The Tragic Offensive of the Chemin des Dames], 1997.

41

42

20 ‡ fir st se s sion

43

eryone today thinks were ridiculous, as they do the general who launched them, well, the summary judgments, the military tribunals that functioned like special tribunals, the many death sentences and executions made visible, even underscored, the difference between wartime and peacetime that has always marked the history of the death penalty and its possible or actual abolition. On the one hand, one can abolish the death penalty (even in wartime) without prohibiting the killing of an enemy — so long as one can or thinks one can identify the enemy as such. This is the case in every state that has abolished the death penalty. Not one of them has prohibited the killing of an enemy in war if the enemy can be identified as a public enemy (cf. Rousseau and the notion of public enemy33). On the other hand, many states that have abolished the death penalty maintain it in wartime in order to use it on their own citizens, their own fellow citizens who commit treason or desert or behave like — or in any case are judged to be — enemies. The death penalty can then be applied in a legal manner, or in any case with the appearance of legality (special tribunals, military tribunals, emergency tribunals, etc.), or in a way that is less legal, as in the example of those who did not move to the front quickly enough during a WWI offensive; they were told they would be shot if they were overtaken by a squadron of their own army moving at the desired speed, and some of them were. The other documentary involved conscientious objectors during the Algerian War and in Israel.34 Without being condemned to death themselves, these conscientious objectors were often regarded as enemies; and above all they testified to terrifying war crimes (torture and summary executions) that basically consisted not in killing an enemy in combat but in condemning him to death and executing him without judgment when he was already a prisoner. It is by no means certain, we were saying a moment ago, that there is a problem of the death penalty, a single and same problem identifiable under this name. This name may in fact hide a nonunifiable multiplicity of concepts and questions. Even if we want to respect the possibility of this 33. During the session, Derrida adds: “You will also remember Rousseau’s strained argument about the public enemy in the Social Contract: one has the right to condemn a citizen to death because he has become a public enemy; he has behaved as if he were an enemy of the social body or of the nation.” The rest is inaudible. 34. The reference is to two documentaries that were broadcast consecutively on Arte on November 9, 2000 in its Thema series Nous n’irons pas la faire! [We Won’t Go Fight!]: the first is by Alain Taieb and Virginie Adoutte, Monsieur le Président, je vous fais une lettre [Mister President, Let Me Write You a Letter], Riff Production, 2000; the second is by David Benchetrit, On tire et on pleure: objecteurs de conscience en Israël [We Shoot and We Cry: Conscientious Objectors in Israel], Riff Production, 2000.

de ce m be r 6 , 2 0 0 0 ‡ 21

multiplicity, indeed of this hidden and irreducible dissemination behind the apparent identity of the problem of the death penalty, and of what is called the death penalty, we must nonetheless recognize an identity effect, a simulacrum of identity, a simulacrum stable and consensual enough that we think we know what we’re saying and identifying and isolating when we refer to the death penalty, the legal phenomenon, distinct from simple murder in principle, intention, and spirit, distinct from vengeance and sacrifice, inscribed in a law applied35 by a state, etc. Here, now, another advance, along another wing. Let us call it the “presidential,” the “West-wing [ présidentiaile].”36 It is on the subject of the death penalty provisionally identified in this way that we can raise, for example, the following questions, which will guide us for a time. Is the abolition of the death penalty that has made spectacular progress in the world over the last decade, as we discussed at great length last year — is the abolition of the death penalty, will it be, will it have been an event in history, in history as the history of humanity? Does this event mark, would it mark, will it have marked a moment of progress, and what is progress, then? Irreversible progress? And at what cost? Must this abolition be considered historical (connected to experience as history) or is it the response to a question of principle that is ahistorical in a certain sense, such that an apparently historical, empirico-historical response would be marked in its structure by the profound ahistoricity of the principle that regulates it? You know that for Kant, for example, Kant as critic of Beccaria, the death penalty had to be justified independently of any consideration of utility, of setting an example, of deterrence, that is, any consideration that tended to make the legal or moral subject, the human person, a means toward an end; and thus the death penalty had to be, in its essence and its dignity, alien to all historicity (political, sociological, psychological, etc.). Well then, this is where we will begin. What does Badinter say at the beginning of the first chapter of his latest book, in the part titled “From One President to Another,” where he examines what changes, in terms of the death penalty, when we pass from Pompidou to Giscard and then to Mitterrand? The question of the presidency as a figure of sovereignty will also interest us from the perspective of the United States where an interminable presidential campaign avoided the theme of the death penalty like the plague and pitted against each other 35. In the typescript: “and applied.” 36. [Translator’s Note]: In American English, the West Wing designates that part of the White House that contains the US president’s office.

44

22 ‡ fir st se s sion

45

two candidates both of whom were advocates of the death penalty, as of course they must be and will continue to be in that country for a long time to come; one of the two candidates, the governor of Texas, was also famous for being the uncontested champion in the category or in every category of the un-pardonable un-pardoning [dis-gracieux dis-graciant], of those who systematically refuse to save any person condemned to death.37 What, then, does Badinter say at the beginning of the first chapter of his latest book, in the part titled “From One President to Another”? He uses a sentence of Beccaria’s as an epigraph; he is, as you know, a great admirer of Beccaria, on whom he has written and for whose major work in French translation he has provided a preface. Badinter firmly inscribes himself in the great tradition of Beccaria, and he marks this by inscribing the following as the epigraph to his latest book, a book that is dedicated to — and is today a courageous endorsement and attestation of fidelity to — François Mitterrand, the president of abolition. Beccaria, cited in the epigraph, says the following, which Badinter ostensibly endorses and applauds: “If I can prove that this penalty is neither useful nor necessary, I shall have made the cause of humanity triumphant.”38 I would like to ask myself, along with you, if this sentence, even taken out of context, as one always does with an epigraph, and however clear and noble, is not problematic, even for a staunch abolitionist, even for a radical abolitionist. And wondering this, I will examine with you the tradition and the assumptions of the most committed, the most respectable, the most courageously militant abolitionist discourse, and thus the weakness or vulnerability that its very strength may conceal. (Stop here?39) This sentence of Beccaria’s (and I would ask you to read and reread his great little book On Crimes and Punishments) is excerpted from a chapter titled “The Death Penalty” (§XXVIII). This chapter, which is very long and detailed, begins with a question that seems to associate or link, in a problematic way, the concepts of the useful and the just. The useful and the just are not the same thing. As Beccaria writes, and I quote: This futile excess of punishments, which have never made men better, has impelled me to consider whether the death penalty is really useful and just 37. That is, the Republican George W. Bush, who was governor of Texas from 1994– 2000 before being elected president of the United States in December 2000. His opponent was the Democrat Al Gore. 38. Cesare Beccaria, On Crimes and Punishments, quoted by Robert Badinter, Abolition, vii. 39. As such in the typescript. See. p. 17, n. 30.

de ce m be r 6 , 2 0 0 0 ‡ 23

in a well-organized state. By what right can men presume to slaughter their fellows?40

And immediately after having posed this question, which associates the just and the useful in its formulation (whereas the useful and the just are not the same thing, and Kant will in fact seek to justify the death penalty as a just act that is just precisely on principle, on pure principle, because it must not be justified by any kind of utility, exemplarity, or deterrence, whereas Beccaria will for his part disqualify, discredit the death penalty because it is not useful or dissuasive enough, but we will come back to this). [Thus, immediately after having posed this question, which associates the just and the useful in its formulation], Beccaria dissociates — and his gesture is rather interesting and paradoxical — the right to kill, the death penalty, from the sovereignty of law. He does this in order to save sovereignty, of course, and to show that, precisely, because the death penalty is not a right, it does not belong to sovereignty and law; one can abolish it without threatening sovereignty and law; or, conversely, because it does not belong to sovereignty and law, it is not a right: “By what right can men presume to slaughter their fellows? Certainly not by the authority from which sovereignty and law derive” (51). We will return later to this strange movement, at once Rousseauian and anti-Rousseauian, that follows this passage in Beccaria, and we will see how the strange use he makes of Rousseau’s concept of the general will leads him to an opposite conclusion from that of Rousseau on the death penalty in the Social Contract (we read this passage last year).41 And it is after this demonstration that Beccaria concludes with the phrase that Badinter puts in epigraph but not without dropping the word “just,” which Beccaria replaces with “right” (what cannot be a right cannot be just, this is the premise), this time associating the useful with the necessary:

46

Thus, as I have just shown, the death penalty is not a right, but the war of a nation against a citizen, which has deemed the destruction of his being to be necessary or useful. But if I can demonstrate that the death penalty is neither useful nor necessary, I will have won the cause of humanity. (52)

47

We will reconstitute the fabric, woven both loose and tight, of this argument. And of this utilitarian abolitionism — a utilitarian abolitionism that is 40. Cesare Beccaria, Des délits et des peines, with preface by Robert Badinter (Paris: Flammarion, 1991), p. 126; On Crimes and Punishments and Other Writings, ed. Aaron Thomas, trans. Aaron Thomas and Jeremy Parzen (Toronto: University of Toronto Press, 2008), p. 51. 41. Jacques Derrida, The Death Penalty, vol. 1, pp. 14– 17.

24 ‡ fir st se s sion

48

in sum at the (in my view problematic) foundation of most of the abolitionist discourses of our time, including the one used to argue for the abolition of the death penalty before the French Parliament and, more broadly, the discourse, highly respectable moreover, of him who puts this sentence of Beccaria’s in epigraph to his latest book. In order to approach this book by Badinter, its first part titled thus “From One President to Another,” through the question of the president, of presidential sovereignty, in order to approach it from another wing of our advance, but always from the “West-wing [ présidentiaile],” I would also like to call our attention to the Latin word “president” (pronounce the word in French and in English or in German or in Italian, Spanish42). What is a president? And what is the relation between presidentiality and the death penalty? How to speak today of French and American presidencies, or even presidential campaigns, in their relation to the death penalty? What is a president? Praesidere is to be seated before, in front of, it is to chair, as from a throne marking the authority from which one faces out. As a result, placed in front, in this way, like a shield but also like a problem ( proble¯ma also means shield), the president is responsible for protecting, for “watching over”; he is invested with a duty and a right: to watch over, to keep watch in order to protect (common liberty, the nation, the community, etc.). As a result, the presidency is a precedence, a primacy, a principality, a commandment, and a direction. In Tacitus and Sallust it could also have a military sense. Moreover a president, as head of state, is also commander in chief of the army, and he has the right and duty to assume, sovereignly, the national defense, to declare war; and naturally to exercise the right to grant clemency [droit de grâce]. It is on this basis that one would have to put in perspective the two presidential campaigns, the one that ended in France with the abolition of the death penalty in 1981, and the one that is coming to a close in the United States, twenty later, with the confirmation, the consolidation, if not the intensification of the death penalty. We will have more to say about this. If I now had the time to open a front along another wing, I would speak, before death, before “my death,” before the “my death” of each person, before the death penalty, I would speak of punishment itself, in general. Is the death penalty a punishment, one punishment among others? Or is it an exception to what is generically called “punishment” or “penalty”? Is it 42. During the session, Derrida did in fact pronounce the word in several languages: “président, Präsident, presidente.”

de ce m be r 6 , 2 0 0 0 ‡ 25

enough to add a complement here, a noun in the genitive (penalty of death, la peine de mort) to complete the subject “peine [penalty]” with a complement, a case, an example, an attribute? Is the death penalty a penalty? Is it compatible with the concept of penalty that serves as its subject here? Although we may have discussed many things last year, I have the feeling that, in spite of everything, we hardly [à peine], hardly broached the question of the death penalty [ peine de mort]. On my computer, in order to begin as high up and as visibly as possible, that is, to begin with the letter A and to find my document quickly, I titled the document for this seminar “À peine de mort,” which doesn’t mean “under penalty of death” (a seminar on the death penalty under penalty of death, as if a seminar on the death penalty were doomed to the death penalty or threatened with death as a form of punishment) — which thus doesn’t mean “under penalty of death,” but rather, in a way that is completely untranslatable, that vacillates between the penalty ( poena in Latin, from the Greek poine¯) meaning punishment, the price to be paid, retribution, the ransom to be paid to atone for a murder, etc. (I’ll get to this) and the two French meanings of “à peine”: on the one hand, that which “painfully [ péniblement]” “causes us to struggle [qui fait peiner],” that which causes pain, suffering, possibly in the repayment of a debt or a fault, and on the other hand, the “almost,” the “not yet,” what in Latin is paene or pene,43 which has no relation either to the “peine” in “à peine” or to the Latin poena or to the Greek poine¯, means punishment. Even before being conjugated with death, the word “peine” — penalty, poine¯, poena, meaning punishment or painful retribution, sanction, or ransom implying suffering, expiation — [the word “peine”] raises vertiginous problems of semantics and history. You’ll get some idea of this by reading Benveniste.44 I will say a word about this, all too briefly, and recommend that you read the entire chapter. I will say a word about this for reasons that will become clear later on, concerning the relationship that some wanted to recognize, as Kant did, between punishment, especially capital punishment, and the dignity of man, the honor of man, man, the rational or reasonable being, the living being endowed with reason, who is capable of raising himself above pathological incentives and above life, man being the only being to deserve the honor of having a right (the right of the person to be an end in 43. As such in the typescript. 44. Émile Benveniste, Vocabulaire des institutions indo-européennes (Paris: Éditions de Minuit, 1969), vol. II, chapter 5, “L’honneur et les honneurs,” pp. 50 and 55; IndoEuropean Language and Society, trans. Elizabeth Palmer (London: Faber and Faber, 1973), chapter 5, “Honor and Honors,” p. 334.

49

26 ‡ fir st se s sion

50

himself and not a means) and thus the honor of inscribing in his law a death penalty that would raise the legal subject above life itself. We discussed this logic last year and we will return to it again this year, soon, always along the lines of an inquiry inspired by our first astonishment: how is it that no philosopher as such, no philosophical system as such has ever been able rationally to oppose the death penalty or philosophically to justify an abolitionist discourse, a discourse that is abolitionist on principle (yes, on principle, and I insist on this once again, as a matter of principle and not utility, on principle, for there are many ways and reasons to oppose the death penalty, but as long as one does not do it on principle, and by clarifying what “on principle” means, abolitionism will be problematic, limited, and precarious, and subject to reversibility, which it remains to this day).45 We will thus have to ask ourselves what this means, both for the history of philosophy, the history of the philosophical, and for the history of punishment as capital punishment: the fact that there has never been an abolitionist philosophy to this day, and that, to this day, no philosopher, no philosophical system, as such, has been able or has been obliged to exclude or condemn the death penalty. In a word, what has sentenced philosophy as such, to this day, to remain in principle on the side of the death sentence? This is one of the stakes of what is called “deconstruction” (last year46 we came up with the following formulation: the deconstruction of the phallogocentric scaffolding, that is, both the speculation and the architectonic, the makeshift supplement of construction [de construction] necessary to repair an edifice, the carno-phallogocentric scaffolding that will have constructed all the scaffolds and propped up all the figures of machines for killing legally, sovereignly, nationally in the history of humanity). A brief and elliptical excursion, then, in the direction of Benveniste who, in his chapter on “Honor and Honors,” raises a question about Greek word ποινή, poine¯, the debt that must be paid to atone for a crime, and the Latin words poena, punire. It’s when it comes to the Greek word time¯ that Benveniste raises this question. I have already discussed this word in a text called “Title to Be Specified.”47 Time¯, which means “honor, dignity,” from which timao¯ is derived, comes from the old verb τίω, tio¯, which means “to 45. The closing parenthesis has been added by the editors. 46. See Jacques Derrida, The Death Penalty, vol. 1, “First Session, December 8, 1999,” p. 23. 47. See Jacques Derrida, “Titre — à préciser,” in Parages (Paris: Galilée, 1986), p. 245; “Title to Be Specified,” in Parages, trans. Tom Conley, James Hulbert, John P. Leavey, and Avital Ronell (Stanford, CA: Stanford University Press, 2011), p. 193.

de ce m be r 6 , 2 0 0 0 ‡ 27

honor.” In the full etymological group of this family, we find τίνω, tino¯, which means pay, tínumai (τίνυμαι): make pay, cause to expiate, tísis (τίσις), punishment, vengeance. All of these terms, notes Benveniste, touch upon the “payment of a debt, the compensation for some misdeed.” To which the Greek poine¯ (ποινή), the debt meant to atone for a crime, and therefore the Latin poena and punire are related, Benveniste adds. Having noted the Sanskrit and Avetic filiations (ca¯yate: pay, make pay, punish, kay, cˇikay (punish), kae¯θa¯, kae¯na¯: vengeance, hatred, this last word corresponding to the Greek poine¯),48 Benveniste concludes that there exists a set of forms in Indo-Iranian and in Greek that “can all be derived from a root *kwei- ” (340). Thus there would be only a single root for all these meanings and especially the two predominant meanings, honor and punish. Before following Benveniste any further, before hearing the question he raises with a view to dissociating these two meanings (honor and punish), one must either dream about or watch over the unheimlich, uncanny, strangely familiar alliance, which has not failed to haunt the relation between these two apparently contradictory or incompatible meanings (honor and punish, glorify and vilify, save and kill, etc.), and this in a tradition that is just as much Greek (like that of pharmakos: excluded and exceptionally celebrated, ritually chosen or preferred), as it is Latin (the sacred and cursed, venerated and loathsome sacer), and indeed Christian, directly or indirectly, generously or perversely (Kant, for example, for whom the possibility of a death sentence is what is proper to man and the very dignity of man, or Genet who, as we read last year, so often sings the glory of the scaffold [“death on the scaffold which is our glory,” in Miracle of the Rose, right at the beginning, with so many other glorifications that put to work a Christian rhetoric, all the while perverting it] ).49 Hence the relevance that Benveniste’s question still has for us, his question more than his answer, on the subject of this multiplicity, indeed this disparity, in truth this seeming antinomy of meanings gathered in the same root. Benveniste asks himself the following: But the disparity of meanings creates a difficulty; which is predominant, the sense “punish” or the sense “honor”? Is it possible to begin with the sense “obtain punishment, take vengeance” and derive from this the idea “honor, 48. The parenthesis that opened at “ca¯yate” has been closed by the editors. 49. See Jean Genet, Miracle de la rose, in Œuvres complètes (Paris: Gallimard, 1951), vol. II, pp. 223– 24; Miracle of the Rose, trans. Bernard Frechtman (New York: Grove Press, 1966), p. 2, and the discussion in The Death Penalty, vol. 1, “First Session, December 8, 1999,” pp.38– 39.

51

52

28 ‡ fir st se s sion

pay honor to”? It is only by positing a somewhat vague link [liaison] that we can unify the two meanings.50

What does he mean when he says a “somewhat vague link” . . . ? Would there be a somewhat vague link between punish and honor? Or a somewhat vague link between what is called “punish,” punishment, a penalty on the one hand, and death, the death penalty in particular?

50. Émile Benveniste, Indo-European Language and Society, p. 340 [translation modified; hereafter, modifications to the published translation will not be signaled].

second session

December 13, 2000 h

When I declare, if I come to you and say, without declaiming, “I’m in pain [ je souffre],” “I am suffering [ je souffre]” in my soul or in my body, in particular when I murmur “I am suffering” in my psyche, without so-called physical distress, assuming this is possible, a purely psychical distress, well then, what is it I am saying to you in the same breath? Do you understand me? What do you understand? You hear what I am saying, of course, but do you understand me? Do you understand the meaning of these words “I am suffering”? Perhaps, then, I should clarify and sharpen the meaning of my question and change my vocabulary a little in order to make you understand where I’m going, in order to entrust you with my strategy when I declare without declaiming that “I am suffering.” It is certainly not in order to awaken your compassion, this you have surely understood, but, as a teacher, to lead you, pedagogically, to the question that I want you to hear [entendre]. If I tell you or if I think “I am suffering” in my soul and cruelly so, then it is because I have what is called peine [pain, penalty]. There it is, there’s the word: it has been let loose, and it remains loose. Je peine [I’m at pains] and j’ai de la peine [I’m in pain]; je suis peiné [I’m pained]. What peine are we talking about? What does peine mean? This peine [pain, penalty], does it come from me or from the other, ultimately? What is its cause? And who is its cause? Does it ever come only from me, this so-called peine? Does it always come from the other, and from the outside? Or are things more convoluted, and precisely painful ( pénibles, peinlich), because of this? I pass from one language to another in order to problematize, in order to draw your attention to the semantic problem that opens up between the painful [pénible] of the peine and the penal [pénal] of the peine, between the painful of the pain and the painful of the penalty.1 Ev1. [Translator’s Note]: These four words are in English in the original.

54

30 ‡ se c on d se s sion

55

ery time I suffer or struggle or am in pain, whenever pain takes hold of me, am I being punished? Do I endure a pain that already resembles a penalty? Does every pain mean that I am or am found to be guilty? The hypothesis is both tempting and, in any case, meaningful. If I were certain that this pain came only from me, if I were certain that it depended only on me, would I suffer? No, I don’t think so. If, on the contrary, I were certain that it came from the other, only from the other and from the outside, that it was external to me in its origin and first source, in its cause and its provenance, would I suffer? No, I don’t think so. For me to suffer, for psychical suffering to be possible, therefore, the pain must come from the inside outside, the outside inside. It must come to me from the outside inside or from the inside outside and, in a certain way, it must remain there, on this improbable boundary of the inside outside, of the outside inside. And if one hastily translated peine ( poena2) as punishment, one would already have to conclude that there is no such thing as pure self-punishment or pure hetero-punishment. Where does this lead us? One must wait and remain for a time locked in this anticipation — as if in a prison, before seeing the exit, the way out of this aporia. The aporia to which we attach such great importance here (some might, moreover, compare it to a prison, to a house of detention). The aporia is what stops or arrests, often in the form of a judgment or verdict. The aporia is what paralyzes, what blocks the exit, closes the doors and seems to doom us to an impasse — to death, a dead end, a deadlock.3 Any impasse is a prison, and if one is doomed to aporia for life, and if one holds such a view of the aporetic experience (which is not exactly my case, since I always insist, agonizingly [douloureusement], it is true, with difficulty [ peine], painfully [ péniblement], on the necessity and the chance that this passage gives thinking, indeed decision and the responsible response, the passage, if I can say this, and even the endless passage through the aporia, if one can say “through the aporia,” “across the aporia.”4 Can one say this? Barely [à peine] say this? What one can barely [à peine] say, this is fundamentally what one should say, what one should be able to say: this would perhaps be the categorical imperative of deconstruction, if there is one: to say and to think what can barely [à peine] be said and thought. Barely, with 2. Here and elsewhere Derrida writes paena instead of poena. We have corrected this spelling throughout. 3. [Translator’s Note]: “Dead end” and “deadlock” are in English in the original. 4. This parenthesis, which opens at “which,” does not close in the typescript; the sentence remains suspended.

de ce m be r 13 , 2 0 0 0 ‡ 31

great difficulty [à peine]. Without turning the aporia into a salvation, or the prison into a paradise, one must know, one must know that the very path is what one does not leave, until death, and that the path itself is an aporia that changes places, as if walking a path or traveling, taking a step, consisted not in leaving prison behind and putting an end to the aporia but in changing prisons, in managing one’s time between houses of detention. What is a punishment? Is it worth the trouble of asking this question? And what happens when one can hardly [à peine] distinguish between punishment [ peine] and nonpunishment, penal and nonpenal, penal law and nonpenal law, or among several heterogeneous sorts of punishment [ peines], some of which would be natural and others nonnatural, or even, against nature, whereas, in spite of this absolute heterogeneity, what they have in common is that they are all called peines, and deserve the same name, whether this is justified or not. Is there a unifiable concept of peine? Hardly [à peine], one would have to say. The pain of death [la peine de mort], as they also say. And the death penalty [la peine de mort] as they then say? What is this thing, la peine de mort? Is it a peine? Is there something that actually answers to this name? This name, these nouns ( peine and mort), this noun phrase, la peine-de-mort [the death-penalty] or la peine-capitale [capital-punishment], is it a conceivable whole or else a phrase articulated to the point of possible disarticulation? And what if the death penalty were an untenable artifact, a pseudoconcept, such that its two terms, death and penalty, capital and punishment, never allowed themselves to be joined up, like a phrase out of joint,5 and such that one would have to choose between death and penalty without ever being able to justify their logical grammar, except as an unjustifiable violence, such that one would have to choose between death and penalty where the two never fit together very well? And how is the triple, nodal question (“What is an act? What is an age? What is a desire?”) destined to create an implosive break in the assumed unity of the so-called death penalty or the so-called capital punishment? Let that suffice to give the key or set the tone. Without going back over what has already been said, in order to save time, let me immediately pick up where we left off last week, namely the relevance that Benveniste’s question still has for us, his question more than 5. [Translator’s Note]: “Out of joint” is in English in the original.

56

32 ‡ se c on d se s sion

his answer, on the subject of this multiplicity, indeed this disparity, in truth this seeming antinomy of meanings gathered in the same root. Benveniste asks himself the following: But the disparity of meanings creates a difficulty; which is predominant, the sense “punish” or the sense “honor”? Is it possible to begin with the sense “obtain punishment, take vengeance” and derive from this the idea “honor, pay honor to”? It is only by positing a somewhat vague link that we can unify the two meanings. (340)

57

What does he mean when he says a “somewhat vague link” . . . ? Would there be a somewhat vague transition between punish and honor? Or a somewhat vague transition between what is called “punish,” punishment, a penalty, on the one hand, and death, the death penalty in particular? These are two different questions, of course. According to the first, what is at issue is a distinction or a dissociation, even an opposition, whether legitimate or not, or conversely, a link, an association, whether legitimate or not, between punish and honor, punishment and dignity, honor, or glory. According to the second, what is at issue is a conceptual link, whether legitimate or not, between penalty in general and the death penalty in particular (blackboard: punishment/honor, punishment/death penalty6). Some may be tempted to think that a death sentence is the ultimate punishment, a capital punishment, thus the punishment par excellence; others, on the contrary, may think that it is not a punishment, that it is not an example of punishment, even one par excellence, and that it is an illegitimate abuse of language or conception, a rhetorical or conceptual violence, a perversion of meaning to regard a death sentence or an execution as a punishment, as a species of the genus punishment: punishment, penalty, payment, retribution, sanction for wrongdoing. The dead man by definition cannot pay off anything and especially the dead man who is executed, it’s too late for him to pay; he disappears as a subject of rights or commerce; he disappears as debtor. One can imagine, moreover, the legitimate protest of a person who is condemned to death, or of whoever might speak in his name, saying more or less the following: “I’m willing to confess that I committed an abominable crime, the most serious of crimes, a capital crime; I admit it and I am ready not only to repent but also to pay most dearly for it, thus to accept the worst, the most painful penalty, but for this you have to let me live, you have to give me time to pay, and the means with which to pay, you have to let the guilty live so 6. With this note, Derrida is reminding himself in his typescript to put certain terms on the blackboard.

de ce m be r 13 , 2 0 0 0 ‡ 33

that he can expiate, pay, be punished. By killing him, by killing me, the condemned man might say, not only do you not give me the time to repent and to reform myself, not only do you create the irreversible, the unforgivable, but you also do not even give me the time to pay for my crime, to suffer any punishment at all. You cancel out the punishment itself. Above all, you prevent me from being there to testify to what happens, to what comes, to the fact that the punishment takes place, has taken place, that the expiation is taking its course, that it achieves its end. The counteraccusation against the judges, the state, the executioner on the part of the condemned man when his execution is imminent might go something like this: “You are about to put an end to my days, thus you are already putting an end to the very process of expiation by hastening it to its end. You are exonerating me by making me bear a burden whose weight is infinite, hyperonerous, incommensurate with my capacities. When all is said and done, whether you like it or not, you are cancelling out the punishment; you are imposing on me a harm that no longer even deserves the name of punishment, a harm that becomes heterogeneous to the very concept of punishment, indeed of expiation, heterogeneous or transcendent to punishment, thus to the right to punish.” For there to be punishment, this punishment must supervene upon the punishable subject, and it must be finite, or at least commensurate with life. However great it may be, a punishment worthy of the name must be commensurate not only with the crime but also with the capacity that a punishable and finite subject has of undergoing, of suffering, of living through the punishment. By eliminating the subject of the punishment, you eliminate the punishment and the right to punish. Capital punishment is thus a non-right. If we wanted to translate this argument into quantitative values, we would have to say that a punishment, in order to be a punishment, however great it may be, must be limited, finite, commensurate with the life or the mortal existence of the subject being punished. For the legal subject being punished, the punishment must be something to which he or she can be subject, subjected; it must be something he or she can suffer or bear. Once it is no longer a finite punishment, once it exceeds the limit, and precisely exceeds the finite life of the subject being punished, then the punishment, the death penalty, becomes infinite and thereby loses its essence as punishment, its punitive value. Is an infinite punishment still a punishment? Is it a human punishment? It is perhaps a divine punishment, or a punishment commensurate with an infinite being, but is it a finite punishment, a punishment commensurate with a finite being, be it a rational one? At the instant of death, if there is one, for everything is played out there, between

58

34 ‡ se c on d se s sion

59

the moment when the condemned man is still alive and thus not yet punished and the moment when he is punished and no longer alive but already dead (such that no one will ever have been punished by the death penalty), [at the instant of death, if there is one], as soon as death supervenes, life can no longer be, outside of a sacrificial logic, outside of a scene of vengeance or revenge that the law seeks precisely to escape, [life can no longer be] a currency of exchange, a payment, a retribution. We will see the consequences of this, some of its consequences, later on, in the wake of Kant. The immediate passage from retribution (as harm) to compensation (as good) is already the passage between punish and honor. The shared idea behind compensation, retribution as compensation, price, what is paid or given as a price to be paid, indeed as bonus, as recompense, ensures the link between the punishment that recompenses, settles, reimburses, or sanctions an offense and the honor, the glory, the dignity that recompenses or sanctions a good deed or exploit. In both cases, what is at issue is an exploit, an extraordinary act, whether this exploit, this exceptional act, is a lofty deed to be honored and rewarded with glory and honor, or a crime to be rewarded with visible, public, spectacular punishment. Recalling Kant and Genet last time, I gave the reasons why we should be interested in this dignity that elevates both the crime and the death sentence to the heights of glory. In the same spirit, I might have — in fact I should have — cited Benjamin. I didn’t because I already devoted a little book, “Force of Law,”7 to the essay in which Benjamin has something interesting to say to us on this subject, on the subject of the inevitable glorification of the criminal, namely “Zur Kritik der Gewalt,” translated by de Gandillac as “Pour une critique de la violence [Toward a Critique of Violence].”8 I am not going to lay out again the reading of that entire essay here; moreover I would have to articulate what I said about the deconstruction of a particular logic in this essay, a deconstruction that I sug7. See Jacques Derrida, Force de loi: le “fondement mystique de l’autorité” (Paris: Galilée, 1994); “The ‘Mystical Foundation of Authority,’” trans. Mary Quaintance, in Acts of Religion, ed. and introd. Gil Anidjar (New York: Routledge, 2002), pp. 230– 98. 8. Walter Benjamin, “Zur Kritik der Gewalt,” in Gesammelte Schriften (Frankfurt am Main: Suhrkamp, 1991), vol. II, 1, pp. 179– 203; Mythe et violence, trans. M. de Gandillac (Paris: Denoël, 1971), pp. 121– 48 [though Derrida seems to be quoting from L’homme, le langage et la culture (Denoel/Gonthier: Paris, 1974, pp. 23– 55); “Critique of Violence,” in Walter Benjamin: Selected Writings, ed. Marcus Bullock and Michael W. Jennings (Cambridge, MA: Harvard University Press, 1996–), vol. 1, pp. 236– 52. [Hereafter, page numbers will refer first to the German and then to the English edition; modifications to the published translation will not be signaled.]

de ce m be r 13 , 2 0 0 0 ‡ 35

gested at the time9 was not imposed from the outside upon this text — a text that is both Schmittian and Heideggerian in certain ways and according to certain historico-political features — [of a deconstruction, thus, that would not be imposed from the outside on “Zur Kritik der Gewalt” any more than it is on any other text for that matter but which is at work there, in a sense, right on the work, like an auto-hetero-deconstruction, right on or in the operation or the thinking writing of the text itself ]; I would articulate that previous reading otherwise today around the death penalty and sovereignty, all the more so since the theme of punishment is at the heart of the text, which is first and foremost a text about law and justice. I will extract only two themes from it today. 1. First theme: “the great criminal and the monopolization of violence.” Benjamin insists on what he calls “the law’s interest [das Interesse des Rechts]” (183, 239). Law is interested. Law’s interest is not purely and simply in prohibiting or repressing violence but on the contrary in monopolizing violence, that is, in fact, in accumulating it in its entirety, in capitalizing on it on behalf of the state that preserves it, that preserves its monopoly of violence against individuals. This monopolization of virtual or actual force or violence, of what under the word Gewalt (Monopolisierung der Gewalt, says Benjamin10) designates both violence (this is how Gewalt is usually translated, even if this translation for the word that Walter Benjamin is using here remains inadequate), [designates both violence, then], and authorized force, a power considered to be legitimate, the force of law, authority, this monopolization of violence by the state, by legislation, by the constitutional state that a state represents, this monopolization of Gewalt obeys what Benjamin calls a maxim. This maxim is presented as a maxim of European law. Benjamin behaves here as both a disciple and admirer of Schmitt, to whom he sends this essay and from whom he receives a letter of congratulations upon the publication of “Zur Kritik der Gewalt” (there was also an important correspondence between them). As a Schmittian, in this regard at least, Benjamin is interested in European legislation, in what makes European legislation different, in the difference between European legislation in its Greek or Roman tradition and Jewish justice. Thus when Benjamin says law, he implies or says explicitly European law. The maxim in question, then, the maxim of gegen9. See Derrida, “Force of Law,” p. 264. 10. Most often in the pages that follow, Derrida simply writes “B” for Benjamin. We have corrected this abbreviation throughout.

60

61

36 ‡ se c on d se s sion

62

wärtiger europäischer Gesetzgebung, the maxim of “present-day European legislation” (182, 238), is that when natural ends, natural finalities, natural goals (Naturzwecke: let us translate this as needs, desires, passions, interests of all kinds, and Benjamin does not distinguish here between what is conscious or unconscious, conscious desire or unconscious desire, etc.), when all these spontaneous movements reach their term, when all of these natural tendencies are followed, accomplished with violence, they can collide with Rechtszwecken, with legal ends. Why? And here Benjamin opens a parenthesis that is brief but in which our entire problematic could be swallowed up, and he knows this, and he says so in a certain way, when he raises the question of self-defense [légitime défense], Recht auf Notwehr (182, 238). Benjamin notes in this parenthesis that the contradiction between natural ends (hence needs, desires, drives of the living being, in its consciousness and its unconscious) and legal ends is indeed the contradiction that is represented by the concept of self-defense and that this question of self-defense will find its elucidation (Erklärung) in what follows: which means that even when he is not speaking directly about the problem of self-defense, Benjamin will nonetheless be treating it, as he says in the parenthesis, throughout the essay. What is self-defense? Indeed the whole problem of law, of legislation, and let us just say in particular of the death penalty, is often interpreted as a question of self-defense, of the legitimate self-defense of society against the criminal or the danger that threatens its life. We are dealing here with an always open interpretation of self-defense: in principle, stricto sensu, the self-defense of a citizen, even if it can be authorized or tolerated by certain rights, is not equivalent, stricto sensu, then, to a death penalty exercised by an individual who takes justice into his own hands in a situation in which his own life is threatened or in danger. But in an extended, or even figural, metaphorical manner, the death penalty has been presented as a reflex of self-defense, on the part of the society, nation, or state, against what threatens it or gravely injures its life or security. A little later, we will see what content can be given to that which thus finds itself threatened in its life, in its survival, in its existence, or its security (the concept of security to which one can give changing contents, and extensible limits, subject to infinite interpretation). Once again, it is the question of utility, of a useful, ends-oriented justice, in opposition to a justice of principle, to a pure justice that is distinct from the logic of the useful, of ends and means. The Kantian argument to which I always return consists above all in not justifying the death penalty by recourse to utility, thus by recourse to a kind of dissuasive utility that a de-

de ce m be r 13 , 2 0 0 0 ‡ 37

fensive reaction may be: above all the death penalty must not be justified or legitimated as defensive and thus as legitimate self-defense. At this point, I think it would be good to clarify the letter of the Kantian argument according to which the right to punish cannot be justified, cannot be just, cannot be just as law, justifiable by any argument of utility. This is the root of Kant’s opposition to Beccaria, although he develops other objections against him. To justify, to claim to justify punishment in general (and not only the death penalty) by means of utility, is to take the legal person, the culpable subject of rights and the punishment imposed on him as the means toward an end and not as an end in itself. One must remember that Kant begins, in all rigor, and in order to know what is at issue (this is why one must read Kant and always begin by rereading Kant), [Kant begins, strictly speaking, and in order to know what we are talking about] by distinguishing the punishment by a court, which he calls poena forensis (blackboard), the punishment inflicted by the other, by law, society, or the state, the punishment that comes from the outside ( forensis), the punishment that comes from without [du for extérieur], from the public space, public punishment, which alone deserves the name of legal punishment (richterliche Strafe), he distinguishes this from natural punishment (natürliche: poena naturalis) which is of no interest to the legislator and has nothing to do with law. When, for example, vice punishes itself, when the criminal, the culpable one, spontaneously pays for his offense, suffers, even suffers a great deal without passing before a tribunal, then it is a matter of natural and not legal punishment.11 This distinction of principle between the two concepts of punishment (between, on the one hand, a punishment that is, in a way, prelegal, a natural and inner punishment, and, on the other hand, a legal punishment, a punishment according to the penal code, the code that is at issue whenever we speak of the death penalty, a punishment that is not natural but artificial, institutional, historical, external and public, the legal apparatus, the juridical machine), this distinction of principle is both indispensable, if we want to know what we are talking about, and seemingly obvious at first glance. The distinction reminds us in particular that the law and specifically its penal 11. Immanuel Kant, Die Metaphysik der Sitten, in Kants gesammelte Schriften (Ak), ed. Königliche Preussische (later Deutsche) Akademie der Wissenschaften, 29 vols. (Berlin and Leipzig: Walter de Gruyer, 1902), vol. 6, pp. 331 ff; “The Metaphysics of Morals,” in Practical Philosophy, ed. and trans. Mary J. Gregor, The Cambridge Edition of the Works of Immanuel Kant (Cambridge: Cambridge University Press, 1996), pp. 353– 603. Derrida seems to be translating Kant directly from the German. [Hereafter, all references to Kant’s texts will be abbreviated Ak and followed by page numbers (first to the German and then to the English edition).]

63

38 ‡ se c on d se s sion

64

code, and a fortiori the death penalty, do not belong to the natural order of things: we do not find the death penalty in nature; the death penalty is not a natural normality; and from there it is only one step to think of this mechanicity as antinatural, even abnormal and monstrous, and this of course is a step that Kant does not take; on the contrary, he tries to show that this nonnaturality is pure rationality itself. But you can already see that this distinction, which seems so obvious, between poena forensis and poena naturalis, however speculative and axiomatic and reasoned it may appear, also points to a place of formidable problems, which are also those of age, act, and desire. How do we take into account, and must we take into account, the articulation between these two regimes of punishment, natural and internal punishment, on the one hand, legal and external or public punishment, on the other? For in the regime of so-called natural, personal, private punishment, in the regime of the (conscious or unconscious) psychical economy according to which a crime or a vice sanctions itself (dadurch das Laster sich selbst bestraft, says Kant, vice punishes itself, takes care of itself [Ak 6: 331, 473]), some punishments may at times be more onerous than any legal or public punishment would be, accompanying it either to add to it or to precede it. All questions of a psychoanalytic kind, concerning age (the maturity, the history, the ages of the onto- or phylogenetic unconscious or consciousness), concerning desire and acting or not acting, all of these formidable questions are raised at the point of articulation between these two regimes of punishment. And imagine a criminal, as Freud and Reik suggest (and we will soon be reading them), who is in fact guilty, overcome by guilt even before he has acted, and so acts, desires to act, because he feels guilty and wants to give his guilt an existence, an external reality, precisely in order to free himself from the intolerable suffering of a feeling of guilt, of an internal debt from which he cannot free himself, and not the reverse, namely, being guilty because he has committed a crime; or imagine a criminal who, after his act, punishes himself even more severely than any external court of law or hetero-punishment would do, which in the end would always come to attenuate the internal punishment or the so-called natural punishment (to such an extent that the guilty party may seek out judgment and punishment by the law in order to escape the natural punishment that is far more implacable and lasting, which he seems to inflict on himself from the inside or that someone else, from the inside this time, inflicts on him in a way that is quasi-natural). What account must we take of this natural punishment, this self-punishment, which is in fact the punishment that Kant calls natural? Is there ever pure self-punishment? Is such a punishment — and even the punishment Kant

de ce m be r 13 , 2 0 0 0 ‡ 39

claims is natural and thus internal — not always already forensis, external, public, insofar as it comes from the other in me, from the outside inside me? We will see this question reverberate, return, regularly, in different guises and at different levels. If there is never any pure self-punishment, or any pure hetero-punishment, the distinction, however necessary it may appear, however classical, however preliminary to an understanding of what law and criminal law mean, this distinction no longer holds; it does not hold for long, and not only because of what a theoretical and speculative, semantic analysis, a conceptual analysis tells us about it, but also because of terrible concrete problems, of situations in which it is difficult, actually impossible, to disentangle the poena naturalis from the poena forensis, the natural punishment from the juridical, forensis, conventional, institutional, or even machinal punishment, etc. Every question of, let’s say, a psychoanalytic kind, and all the deconstructions concerning age, act, desire, are lodged in the wedge [coin] between these two punishments. But let’s pretend for the time being that this distinction is itself legitimate, well founded, accredited. Let’s pretend, at least for the time it will take us to understand Kant’s concern and to follow out with him the concern insofar as it is sound and legitimate. Once he has posited or recalled this distinction, Kant, still in the same text (The Doctrine of Right, and more precisely the Metaphysical First Principles of the Doctrine of Right, in The Metaphysics of Morals, Part II, §5012), Kant thus posits that the punishment by a court ( forensis), the only punishment that interests the legislator (Gesetzgeber), can never be decreed simply as a means to promote an end (niemals bloss als Mittel ein anderes Gute), whether for the good of the criminal or for the good of civil society; but one should only ever inflict it (the punishment) on him (the criminal) because he has made himself guilty of a crime (weil er verbrochen hat, underlined). Thus the criminal must be punished because he has transgressed, because he is guilty; he must be punished because of his offense and not with the intention of producing some effect, of benefiting either the criminal himself or someone in the society, the nation, or even humanity. In other words, the penalty, like its subject, like the subject being punished, must be an end in itself, and never a means. The punishment must not serve any purpose, and it must take place even if it serves no purpose. Kant continues: For a human being can never be treated merely as a means to the purposes of another [nie bloss als Mittel zu den Absichten eines Anderen]. . . . He must 12. Derrida is referring here to “Remark E” in §49 not §50 (Ak 6: 331, 472).

65

66

40 ‡ se c on d se s sion

previously have been found punishable [worthy of punishment, deserving of punishment, (strafbar is underlined)] before any thought can be given to drawing from his punishment something of use [einigen Nutzen] for himself or his fellow citizens. (Ak 6: 331, 473)

67

To respect a man who has been judged by punishing him for his transgression, and not because his punishment would serve some purpose, is to respect his dignity as an end and not as a means. To punish someone because he is punishable and not because the punishment will repair a harm or serve as a deterrent or an example or will ensure the security, the happiness, and the well-being of a society is to honor the dignity of the human person, of man as rational being. In other words, let me repeat it, one must punish someone because he deserves to be punished and not because this punishment will serve something or someone, whether himself or others. Not even if some good or happiness can be expected from this punishment: “The law of punishment is,” as Kant literally says, “a categorical imperative [das Strafgesetz ist ein kategorischer Imperativ]” (Ak 6: 331, 473). In the pure interpretation of this categorical imperative, one must not introduce any idea of progress, of well-being, of happiness, of utility in view of happiness. The doctrine of penal law must remain alien to any theory of happiness, to any Glückseligkeitslehre. Those who claim to uphold the legitimacy of the punishment, the right to punish, on the basis of a theory of the good as happiness, as well-being, as societal end, those who see in the law of punishment a useful and necessary instrument, one that is in the service of the good and well-being, not only do these people understand nothing of the specificity of law but they basically despise law and the subjects of law; they have no respect for what constitutes the dignity and value of human life, namely to be considered an end and not a means and in this way to rise above life. The value of human life, by definition, that which gives value to human life, is worth more than life: what gives value to life is what in life is worth more than life. In short, Kant opposes those who say that the law of punishment, and in particular the death penalty, is useful or necessary. But from this premise, which he shares with Beccaria, he concludes the opposite: not, that is, with Beccaria, that if the death penalty is useless, it must be abolished but rather, on the contrary, that because it must be, essentially, useless, beyond utility, unuseful, it must be maintained and respected as the dignity or the honor of man. To punish and to honor are here indissociable (to recall Benveniste’s question). Their link is not vague but founded in reason. And those who refer to utility degrade and dishonor both law and humanity. They malign both law and hu-

de ce m be r 13 , 2 0 0 0 ‡ 41

manity. Kant uses, in the context of this discourse on the useful, the terribly charged term of Pharisaism. The discourse of the man who claims to justify the death penalty on the basis of a community’s interest, on the basis of the vital utility of a people’s survival, is a Pharisaical discourse: [W]oe to him [wehe dem, says Kant, to the one who adopts the “Pharisaical saying”]: “It is better for one man to die than for an entire people to perish.” For if justice goes, there is no longer any value in human beings’ living on the earth [denn wenn die Gerechtigkeit untergeht, so hat es keinen Werth mehr, das Menschen auf Erden leben]. (Ak 6: 331– 32, 473)

In other words, the value of life is worth more than and is better than life, by definition; what gives life its value is above life — and this has to do with justice, with a justice that is worth more than life. For the whole questionable tradition that goes up through Kant and beyond, Pharisaism is the culture of merchants who prefer the letter and the body to the spirit, who prefer life to the dignity of life, and who thus calculate, turn justice into a utilitarian calculation, justify the death penalty, and make the death of a man into an investment, a trade, a useful transaction, an exchange: a man’s death for the price of security or well-being or the survival of society. These Pharisees (and there is always the silhouette of a hypocritical, literalist, ritualistic, calculating Jew behind the word Pharisee) are contemptuous and contemptible. They disdain that principle of pure justice that concerns the spirit of humanity, humanity as an end in itself and not a means; they do not respect the one who has been accused or condemned. They do not honor him. As a result, they dishonor themselves; they are themselves unworthy of human dignity and are as despicable as that which they despise. Kant continues, still railing against those who treat the life and the body of the one condemned as something useful to society or even to humanity, which disposes of it as it pleases (since for Kant to execute a man is not to dispose of him; it is not to do with him as one pleases and to affirm one’s power over him by instrumentalizing him; it is to respect in him, to honor in him a man worthy of being punished because his act is punishable), Kant continues, thus, by imagining the fiction (not so very fictional, as it happens) of a terrible exchange that would offer life to the one who is condemned to death, thus clemency, in exchange for a contract, which would put his body at the disposal of science: What, therefore, should one think of the proposal to preserve the life of a criminal sentenced to death if he agrees to let dangerous experiments be made on him and is lucky enough to survive them, so that in this way physicians learn something new of benefit to the commonwealth? A court would

68

42 ‡ se c on d se s sion

reject with contempt such a proposal from a medical college, for justice ceases to be justice if it can be bought for any price whatsoever [denn die Gerechtigkeit hört auf eine zu sein, wenn sie sich für irgend einen Preis weggiebt: for justice ceases to be one, to be justice, if it gives itself or abandons itself for a price, if it is given a price, as soon as it enters into a transaction, a commercial exchange]. (Ak 6: 332, 473)

69

70

As always, Kant distinguishes between, on the one hand, dignity (Würde, value as dignity, a value that is priceless, above all price, like justice), and, on the other hand, value (as Marktpreis), a comparative, calculable market value, a price, which is not dignity, which is unworthy of dignity — and thus unworthy of the law of man as rational being or as pure practical reason. We can clearly see that Kant wants this logic and this remark on the unacceptable transaction with the body of the one condemned or the legal subject to be beyond everything that is today called — in an often confused way — bio-power, a state sovereignty that would assume the right of life and death over the body of its citizen subjects. Although the penal law and the death penalty in the Kantian sense may be in the service of this theory and concept of bio-power, in a certain way, something in this same Kantian logic firmly resists this, indeed even organizes resistance against it. To put to death a guilty citizen according to law and justice is in no way, according to Kant, to dispose sovereignly of his body. Later we will examine the consequences that Kant draws from all of this in his critique of Beccaria and in his interpretation of the jus talionis as categorical imperative. We must see here how the force of the Kantian argument is at work on two fronts, along two wings. It is as much opposed to the proponent as it is to the opponent of the death penalty. It is opposed to the typical proponent of the death penalty and penal law, insofar as this proponent of the death penalty and of punishment in general most often invokes utility, exemplarity, a force of deterrence: the good of society, or even humanity. But Kant also opposes, along another wing, the abolitionist who comes to the opposite conclusion on the basis of the same utilitarian — and finally eudemonic and vitalist — axiomatic; the classical abolitionist concludes that the death penalty is useless, without any value as an example, without any force of deterrence — or else places natural life, biological life above everything else by conferring on it an unconditional right. All of this confirms that if there is to be an abolitionist discourse in the future, it is the Kantian argument — the argument that places criminal law and the death penalty at a level of principle and of the categorical imperative — that will have to be refuted. This argument at the level of pure principle and dignity, of the

de ce m be r 13 , 2 0 0 0 ‡ 43

rights of humanity, is more difficult to refute than one might imagine; it is more difficult to refute than the utilitarian discourse of those who advocate a death penalty that is useful, necessary, exemplary, a deterrent, etc. Thus, Kant would not accept a justice of self-defense, an argument invoking self-defense in order to justify putting anyone to death. But the recourse to the logic of self-defense is at work almost everywhere, in this literal form or in a more or less indirect or figurative form, almost everywhere that one tries to justify the death penalty. When self-defense is not the spontaneous response of an armed, individual citizen (thus never completely spontaneous, always already somewhat organized), of a citizen or a militia that takes justice into its own hands, without waiting for the enlightened and disinterested judgment of a court of justice, well then, there is law, as they say, wherever the state, as dispenser of justice, assumes the function of the selfdefense of individuals and of the collective — and we will see in a moment what Benjamin does with this undertaking, how he interprets this taking charge of self-defense by the state and by law, how he in sum interprets this self-defense, as defense not of this or that but of the law itself by itself, where violence is monopolized, capitalized by the state itself. In the American case, I mean in the case of the United States, which, since the beginning of this seminar, is not to be taken as simply one case among others but as an exceptional case, unique within a certain group, and thus all the more revelatory and occupying the predominant place on the worldwide stage with which you are familiar, well then, in the United States, there is, as a result of history, notably the history of the conquest of the West, an obsessional attachment to the logic of self-defense, that of individuals and of families who, because of their circumstances, learn not to trust the police, the police of the state and a fortiori the federal police but also the logic of the state itself, I mean of each of the states in the union, of each of the states that holds to its autonomy with regard to federal law. And if you take into account the exceptional proliferation of individual gun ownership, the greatest in the world, the easy access to the gun market (current debate — develop?13), always justified by the allegation of the right to self-defense, if you take into account, according to the same logic, the traditional claim for independence of the states with regard to the government and federal law, you will have 13. During the session, Derrida adds the following commentary: “This is a current debate, as you know. Clinton tried to put a limit on firearms, but the argument is always the same: ‘If you take away our guns — it’s a question of knowing which guns, it’s an interminable debate, it’s complicated — if you take away our guns, well, the gangsters will keep theirs, and we won’t be able to defend ourselves anymore.’”

71

44 ‡ se c on d se s sion

72

a few clues (they are not the only ones) to the question of the death penalty in the United States. Having closed this parenthesis on Benjamin’s parenthesis concerning self-defense, a parenthesis that he closes without closing since he says that the right to self-defense will be elucidated throughout the essay, I return to the maxim of the gegenwärtiger europäischer Gesetzgebung, the maxim of present-day European legislation, namely, that when natural ends, natural purposes, natural aims (Naturzwecke: needs, desires, passions, impulses, interests of every kind, conscious or the unconscious, 14 etc.), when all of these natural movements pursue their ends with violence, they can collide with Rechtszwecken, with legal ends. Thus, we were asking ourselves: why? From this maxim, it follows in fact, says Benjamin (Aus dieser Maxime folgt), that, for law, violence in the hands of individuals is not just one danger among others but rather a danger that risks “undermining the legal system [die Rechtsordnung zu untergraben]” (183, 238), a danger that risks sapping, ruining the juridical itself. And we are going to see how this text, so unKantian in other respects, meets up again with a Kantian logic on the question of the death penalty. Indeed, Benjamin evokes what he calls a “surprising possibility [überraschende Möglichkeit]” (183, 239). Which one? Well, the one that concerns law’s interest, das Interesse des Rechts, and an interest of the law that is not interested in protecting this or that from individual subjects or the violence of individuals, in protecting some general interest, this or that determinate interest, some legal apparatus, a particular legal end, no, the law has a completely tautological interest in protecting itself, and thus in monopolizing violence by dispossessing the individual of it. This is why Benjamin speaks of a “monopolization of violence [Monopolisierung der Gewalt]” by law. Law is force, law is the absolute capitalization, the hyperbolic appropriation of violence. Violence by individuals, consequently, does not threaten this or that interest outside the law, this or that out-law interest, it is threatening simply for law, for the interest of law itself, because it holds itself, because it has its very existence (blosses Dasein), outside the law. What is punished and sanctioned then is not this or that offense, the harm it caused, the damage it entailed, the transgression of this or that prohibition. What is punished is the act of defiance of the monopoly of violence that the law constitutes (in fact the sovereign state, though Benjamin says law rather than sovereign state). And then comes the remark that I would like to connect with Benveniste’s question concerning the “somewhat vague link” between punish and honor. We pass from Ben14. As such in the typescript.

de ce m be r 13 , 2 0 0 0 ‡ 45

veniste to Benjamin, or rather we may think we hear Benjamin’s response to Benveniste when the latter asks himself, without much conviction, about the vague link between glorifying and chastising, honoring and punishing. Right after he has defined this hypothesis of a monopolization of violence by law, Benjamin finds the most striking confirmation of this hypothesis in the public’s secret admiration (die heimliche Bewunderung des Volkes) for the “figure of the ‘great’ criminal [die Gestalt des ‘grossen’ Verbrechers]” (183, 239). The great criminal is the sovereign exception of one who has been able either to defy and contest the monopolization of violence by law (thus by the state, which is this very monopolization — and right after, Benjamin takes up the question of state violence concerning the right to strike and war, but I will not return to this since I already discussed it in “Force of Law”15) [the great criminal, then, is the sovereign exception of one who has been able either to defy and contest the monopolization of violence by law] or else to reappropriate for himself, as an individual, the violence that the law has taken out of the hands of individuals. The public thus secretly honors the “great criminal,” even as it applauds the punishment that is inflicted on him; moreover (again the question of spectacle and visibility, of the voyeurism that we raised last year with and against Foucault, while also reading Hugo and Camus16), when the fascinated public wants to be present at tortures or executions, in joy and jubilation, it is because its hatred and fear toward the condemned one is mingled with a sacred horror composed of admiration, wonder, envy before the one who, in a kind of duel with the state or with the law, with the monopoly of violence, has almost succeeded in reappropriating for himself the greatest force and in defying the state. Even when it demands a death sentence, the people recognizes in the criminal, in the “great” criminal, in the one who has been condemned to death, an absolute, almost sovereign power. In the end, the “great” criminal becomes in his person (Gestalt, says Benjamin) something like the representative of the people in its latent protest against the law or against the sovereign state that has deprived the people of its violence, that has dispossessed the people of its violence, that has violated the public in order to have a monopoly on violence. The admiration for the criminal, however secret or unconscious it may be, however unavowed it remains, looks like the revenge of the people against the law or against the sovereign state that did it violence in order to gain a 15. See Jacques Derrida, “First Name of Benjamin [Prénom de Benjamin],” in “Force of Law,” pp. 258 ff. 16. See Jacques Derrida, The Death Penalty, vol. 1, “First Session, December 8, 1999,” pp. 42– 46.

73

46 ‡ se c on d se s sion

74

75

monopoly on violence, even if this act of state or legal violence against the people is done in the interest and with the agreement of the people. I think this is what Benjamin means when he talks about the “sympathy of the masses against the law [die Sympathie der Menge gegen das Recht]” (183, 239). Law, “present-day law [das heutige Recht]” (183, 239), says Benjamin, which implies that things might have been or could be otherwise, is experienced as a threat by the people because it does the public violence with a view to monopolizing that violence; and the admiration that glorifies the criminal testifies to this situation. But since the same people can both demand a condemnation and admire the one who is condemned — and the people is only the people to the extent that it is capable of this contradiction — according to a sacrificial logic in which one could find not only the logic of the pharmakos (the excluded and celebrated, excluded and chosen) but also that of the sacer (a sacrality that is both blessed and cursed), the concept of the people (Volk) or the masses (Menge) cannot belong to a logic of a representative and objective consciousness but already to that of some unconscious affect that must be taken into account at the heart of this problematic. The people is and has an unconscious in its relation to legal violence, to the monopolization of violence by the law. When Benjamin speaks of a secret admiration (die heimliche Bewunderung) of the people for the great criminal, this secret, this intimately hidden, private, domestic (heimliche) dimension, what is unavowable in this admiration proceeds from the night of the unconscious, from an unconscious negotiation between the (all in all legitimate but unavowable) desire to protest against the monopolization of violence by the law and the apparently more avowable but just as legitimate desire to approve the law and thus to condemn the criminal. And all this perhaps happens between the two orders that Kant distinguishes, the poena naturalis and the poena forensis (Ak 6: 331, 473). Without Benjamin putting it in this way, we can already conclude that the great criminal who is condemned to death is always17 feared but secretly, unconsciously admired as a revolutionary, as a political prisoner. Even if his crime does not appear to be political, even if it is a common law crime, the fact that he has, by his crime, defied the political violence of the law, the state monopoly on violence, any great crime is a political crime and/or exploit. One could give many examples of this often-undecidable and porous boundary between a common law crime and a political crime. And not only in every case in which the state judges it advisable, for different reasons and in different situations, to transform a charge and dissimulate a political charge under a common law charge 17. In the typescript: “is always, and is always.”

de ce m be r 13 , 2 0 0 0 ‡ 47

(Mumia Abu Jamal: comment on18). But we might also take the view that a Rousseauian-type logic of the “public enemy,” which consists in justifying the death penalty by defining the criminal in general as a public enemy who denounces the contract and defies the law, consists in making every crime a political crime. 2. Second theme. There is another theme that I announced very briefly and that I wanted to situate in Benjamin’s text, which I leave you to reread. Let us call it “the foundational exception or the included-excluded transcendental.” It is in fact the consequence of what we have just analyzed. But it touches directly on the death penalty, whereas up until now Benjamin was talking only about the monopolization of violence by the law and the secret admiration for the great criminal. When, four or five pages later, he does name the death penalty, he19 does so along the lines of a reasoning that both recalls Kant (who justifies the death penalty as the origin and the very possibility of law) and inscribes the necessity of this Kantian logic in a history that one must perhaps put back into question (on the basis of the Benjaminian schemas that oppose the mythic violence of Greek law to a divine violence of a Judaic-type and that distinguish between the violence that founds and the violence that preserves, see “Force of Law”). And indeed Benjamin notes, law-preserving violence is felt to be a threat, and it is in the face of this threat that one protests against the death penalty. Ever since positive law has been called into question, the death penalty has provoked the most criticism. The arguments of this criticism, notes Benjamin, did not get to the bottom of things; they were not very grundsätzlich in most cases; criticism of the death 18. During the session, Derrida adds the following commentary: “The case that we are most familiar with, the case that I am most familiar with, is that of Mumia Abu Jamal, who was condemned in 1982, I think, for what is called a common law crime; he was charged with the murder of a police officer, and he has been fighting these charges for close to twenty years now; we know that he was sentenced because he was — had been — a member of the Black Panthers and a political journalist. Thus, he protests by presenting himself as a political prisoner even though he was sentenced under common law, not only because he was a Black Panther and a politically engaged journalist but also because, from his prison cell, he has continued to contest the legality, the legitimacy [of his sentence], in political terms. So this is a concrete example of a political crime, of political charges made to look like common law charges. It is one case — and there are many — but beyond such cases, in a general way, according to the logic I am trying to explain here, every crime, no matter what it is, even if it is assumed to be a common law crime, is in fact a political crime. 19. In the typescript: “and he.”

76

48 ‡ se c on d se s sion

77

penalty has always been superficial. On the other hand, however, although the arguments did not get to the bottom of things, they were aiming at the right issue, an issue rooted in principle. Namely, that those who went after the death penalty felt, without being able to formulate fundamental arguments for it, that by attacking the death penalty they were not attacking just one punishment or one law among others but legislation itself in its origin (das Recht selbst in seinem Ursprung). This origin is a violence (Gewalt), a violence crowned by fate (schicksalhaft gekrönte Gewalt). One may thus rightly suppose that in the supreme violence (in der höchsten Gewalt), which consists in disposing, within the order of law, of the life and death of the legal subject, well then, the origins of this order are made manifest in a present and terrible way (188, 242). In other words, the death penalty is, par excellence, if we can say this, what reveals the origin and the essence of law, namely violence. When one condemns to death, one is not sanctioning this or that offense, one is reaffirming, in a disproportionate way, the necessity of law and its violence. To condemn to death is not to punish this or that transgression, it is to posit the right to law [le droit au droit], the right to the violence of law. For example, Benjamin notes, in primitive legal systems, the death penalty was imposed even for minor offenses against property in a way that was completely out of proportion (completely without relation, ganz ausser Verhältnis); and this clearly demonstrated that it was not a matter of sanctioning or punishing this or that particular violation of the law but of reaffirming or reestablishing the law anew, as though establishing a new law. One reinvents the law every time one condemns to death. In the exercise of violence over life and death, law consolidates itself, it fortifies itself (bekräftigt das Recht sich selbst) more than in any other legal process (188, 242). 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. For it suggests that if the death penalty is the punishment par excellence, at the same time, insofar as it is intended less to punish this or that infringement, this or that infraction of this or that law, than to reaffirm the absolute right to absolute law, to the absolute violence of the sovereign law, this maximum punishment is not really a punishment at all; it is not just one punishment among others, that is to say, proportionate, as in distributive or deterrent justice, commensurate with the offense. Its disproportion, its “without relation” ( ganz ausser Verhältnis), makes it an exception to the realm of punishment. Before taking this argument to its extreme conclusion, which would consist in saying that capital punishment, the death penalty, is not a punishment, is not a species of the genus punishment or a case of punishment, let us first say this: the absolute criminal,

de ce m be r 13 , 2 0 0 0 ‡ 49

the great or the very great criminal, he whom one claims to punish with capital punishment, he did not commit this or that crime, for example this or that murder. He committed the ultimate crime of transgressing absolutely, perhaps still sovereignly, the sovereignty of the law: not this or that law but the law of laws, namely, the very principle of law that gives law the right to monopolize violence. Whence the fascination for the great criminal who does not transgress this or that law but the very principle of law — and at bottom, the state and politics, the political itself. For this reason also, any great so-called common law criminal is first of all a political prisoner, more political than any other since what he has attacked is the possibility, the safeguard, the very authority of the political, of the social bond (which secret lovers also do and who are, for this reason at least, comparable to the grosse Verbrecher, the great criminals). Now, let us be clear about the reason why, from this point of view, the death penalty might not be considered a penalty, a punishment, that it is by an abuse of language that one puts it in the category of punishment and thus of criminal law. The argumentation here would include three arguments whose logics are different but that would all converge on the same conclusion: the death penalty is not one punishment among others; it does not belong to criminal law even if it founds it. And thus, to return to last week’s theme, there is perhaps no unity, no irreducible specificity, no indivisibility for the death penalty; there is not one problematic or a single problematic, a single problematic site of the death penalty. What would these three arguments be?

78

1. First argument. The transcendental included as excluded. If, as Benjamin claims, the death penalty is intended to found the law in its origin, as monopolization of violence, then the foundation or origin of law, and of criminal law in particular, does not belong to criminal law, does not belong to the series labeled “punishment,” penalty, or retribution, still less deterrence. It is, if you want to use this language in an at least formal20 way, the transcendental of the law. And the transcendental is here excluded from what it makes possible; if it is included, it is as an exemplary exception to the series. In any case, the death penalty is not a comparable, homogenous punishment, one that would simply be quantitatively different from others. It is not one of the punishments provided for in criminal law. 2. Second argument. A question of time, if you like. Whether one thinks of it from the perspective of the economy of distributive justice or the supposed 20. In the typescript: “formally.”

79

50 ‡ se c on d se s sion

80

utility of deterrent exemplarity, the death penalty is not a punishment; it does not belong to criminal law because, on the one hand, the subject on which it is inflicted is no longer there; he will no longer be there, he will no longer have been there to pay for or to suffer or to fulfill the punishment, a fortiori to be dissuaded from doing it again. The subject who is punished, executed, removed, is removed as subject of punishment; there is therefore no punishment for him. He is not the subject, he has not yet been and will not have been the present subject of the punishment to which he is supposedly subjected. All of this obviously implies a demanding and unorthodox, uncommon interpretation of the temporalization of time. Almost as if the phenomenological or existential analysis of temporalization, far from being simply applied to the case of the death penalty, found in the experience (precisely without experience, perhaps, and what is at issue is the very experience of the death penalty: who experiences the death penalty, the one who dies or those who see him or put him to death? Neither the former nor the latter, perhaps), almost as if, as I was saying, the phenomenological or existential analysis of temporalization, far from being simply applied in the case of the death penalty, found in the experience (without experience) of the death penalty its test case, its touchstone, or its stumbling block, its skandalon. This scandal is the subject of this seminar, the supposed but perhaps unlocatable subject of this seminar. One might often be tempted to say, without reducing or de-dramatizing in the least this terrible thing that preoccupies us: the death penalty doesn’t exist, no one is ever really subjected to it, no one can measure up to it as a subject; there is no subject, that is to say, no subject who is present to or at the death penalty. No one suffers the death penalty. The condemned one, once executed, disappears before even being able to pay any penalty whatsoever. The legal subject, the subject of the penalty, is cancelled out and not sublated [relevé]. And far from consoling or reconciling anyone with this effect named or surnamed the death penalty, this evasion, this becoming-ungraspable or insensible of the moment or the instant of execution, which resembles a magic trick (suddenly no one is suffering the death penalty, no one can suffer it), far from attenuating or tempering things, this intensifies on the contrary the urgency or the monstrosity of the Thing. According to this hypothesis, the death penalty does not exist; no one has encountered it — it itself — or lived it. It is abolished by itself even before any abolition or any abolitionism. The problem of the death penalty has no unity or consistency. Which is why, furthermore, it is the object of such a powerful, insistent, tenacious distraction, but a distraction that does let us go, like death itself — if one can say death itself. Perhaps this is why one must speak of the execution, of the efficacy of

de ce m be r 13 , 2 0 0 0 ‡ 51

implementation, rather than of the condemnation or the principle according to which the punishment would be inscribed in the law (as Kant does, and of whom one could show, as with Rousseau, that he holds to the inscription of the principle in law itself even if one can demonstrate — as I think one can and will try to do later — that, according to good Kantian logic, this absolute and irreducible right remains inapplicable in a phenomenal way, for the homo phenomenon: not executable, and thus in a certain way inexistent). There is perhaps no death penalty, no one has ever encountered it, but there are executions. 3. Third argument. The anomie of the death penalty. From a very different point of view, but for the same reasons, we find, in spite of the distance, or even the reversed logic (I say reversed logic because Beccaria — it will be about him now — will also, like Benjamin, exclude the death penalty from the immanence of law, but not because it is at the foundation of the law, but because it is not a law at all; it is alien to law in another way. For there are two ways of being heterogeneous to law and not being part of it: by being at the foundation of the law, as a transcendental or as a foundation excluded from what it makes possible, as we have just seen, or by not belonging to the set of “rights,” by being a non-right), Beccaria’s thesis, then, according to which “the death penalty is not a right” (52) and cannot be one but is rather an act of war, a war of the nation against a citizen whose destruction the nation has judged necessary or useful. Following which, Beccaria will show or intends to show that this suppression of the citizen is neither useful nor necessary. Except, it is true — and we spoke of this exception last year — in the exceptional cases where precisely the nation does not yet exist or no longer exists, where there is not yet or no longer any law, and therefore no law. We should recall here Beccaria’s demonstration. He does not say, he does not believe, that the death of a citizen might be necessary, useful, or just, but he describes situations in which it may seem to be so, in which such a death is held to be useful, necessary, or just. These cases are limit-cases and the limit is precisely that of the nation or of law, or of sovereignty, when these do not yet exist or no longer exist or especially when they are threatened with no longer existing. “The death of a citizen,” he says “cannot be deemed necessary, except on two grounds” (52). The first is the case where a citizen, even though he is in prison, still retains, from his prison, such connections and such power that he can endanger the security of the nation or provoke a dangerous revolution in the established form of government. At that moment, the destruction of a citizen becomes necessary when the nation is in the process of recovering or losing its liberty

81

52 ‡ se c on d se s sion

82

(periods of anarchy, of quasi-civil war, when precisely there is no law, there is no longer any law or there is not yet law: disorder, then, is the law). One may deem it useful at such moments to destroy such a dangerous citizen, but you see that it is by taking him to be a “public enemy” and not only a political enemy, a political prisoner, but also a threat to politics or the political itself, to the political order, even the order of the political. However, as Beccaria makes clear, when the calm rule of law prevails, when the government has the full support of the nation and is well fortified both externally and internally by both force [ . . . ]21 and especially by public opinion, which is more effective than force, where the power to rule is vested only in the true sovereign, where wealth can buy only pleasures not authority, there is no need to destroy a citizen. You will notice in passing that, far from associating the exercise of sovereignty with the death penalty, Beccaria opposes them. Where there is true sovereignty, there is no need for the death penalty (in opposition to Kant, Schmitt, or Benjamin). And earlier he said, in much the same vein, that this right (to slaughter one’s fellows) was “[c]ertainly not that . . . from which sovereignty and the laws derive” (51). This is thus the opposite of Benjamin’s thesis on law, but one which here arrives by way of the opposite path at the same affirmation: the death penalty is not a right (one among others). You will also have noticed, besides these normal conditions stipulated for the exclusion of the death penalty (order, a solidly established sovereignty, the force of public opinion more than that of authority, and especially riches weighing more heavily than authority in the purchase of pleasure) that the model is indeed one of a liberal democracy, a political order with an openmarket economy, etc. that allows one to be done with the death penalty. All of this is thought provoking, but let us leave it at that for the moment. The second reason for believing that the death penalty could be just and necessary, a second reason, here again, which Beccaria does not accept but that he knows is common, is deterrence. He says “to dissuade others” — others, because the one condemned and executed, this time, cannot be the subject of this deterrent punishment. As for this argument of deterrence, of dissuasive utility, of the death penalty as a means of deterrence, about which Kant also said, then, from another point of view, that it could not justify the principle of the death penalty, Beccaria is going to set about refuting it but all the while maintaining its idea (which Kant does not do). Beccaria will hold on to the idea but will claim that life in prison and forced labor in perpetuity are more cruel and thus more of a deterrent — thus ulti21. As such in the typescript. This is a quasi-quotation of Beccaria’s text.

de ce m be r 13 , 2 0 0 0 ‡ 53

mately more useful when it comes to a potential criminal — than the death penalty. This whole detour was intended to clarify the ambiguity or the “vague link” between honor and punish that Benveniste mentions. We have seen down which paths we have been led by the example of the “secret admiration” of the public or the masses for the great criminal who is thus at once abhorred, punished, and honored. Let us return now for a moment to Benveniste. Having spoken of a somewhat vague link between the two meanings, punish and honor, Benveniste makes it clear that “the question is to decide whether the sense of time¯ [honor, dignity] and the words related to it support or exclude a connection with the family of poine¯ [punishment]. It will not be sufficient to translate time¯ as ‘honor, esteem.’ We must give precision to the definition by reference to terms of similar sense” (340– 41). This is what Benveniste then sets about to do with a number of examples taken from the Iliad, from the Homeric Hymn to Hermes. I cannot follow these analyses in detail here; I must refer you to them. But you will see that they all tend radically to dissociate the two values, time¯ and poine¯, both from the point of view of an indirect or hypothetical etymology and especially from the point of view of their semantic functioning in the texts. Even in a text where this dissociation seems difficult, Benveniste makes it a point of honor, as it were, to mark how risky and exceptional this association is. In question is the passage where the Trojans commit themselves to returning Helen and all the treasures if Menelaus wins. They also commit themselves in addition to paying a time¯ to Agamemnon and the Argives. One might have thought then that the time¯, the honor, was a kind of penalty, a payment in return. Which in fact it also was, in this case, at any rate. But Benveniste does not want to end with this example and he writes: It is only by chance and in this single example that time¯ comes to be associated with the verb “pay in return [apotino¯].” It follows that the poet did not conceive of time¯ as a morphological correlative of apotino¯. On the contrary this text clearly brings out the gap separating time¯ and poine¯. If the Trojans refuse the time¯, then Agamemnon will have the right to fight to obtain a poine¯. That is quite a different matter: poine¯ is the punishment and the reparation due for violation of an oath. (344)

To support his demonstration, Benveniste also firmly recalls that in Latin poena, a term of criminal law and an old borrowing from the Greek poine¯, has nothing in common with the idea of honos, any more than punire does.

83

84

54 ‡ se c on d se s sion

85

I will not challenge the competence or lucidity of Benveniste here. What exactly is the question? Is it a matter of knowing whether time¯ (honor, dignity) means the same thing as poine¯, or if we can replace one with the other, or again put them in constant interaction with each other, in a strict and automatic “connection [rapprochement]” (this is Benveniste’s word)? No, of course not, and from this perspective, Benveniste’s answer is perfectly convincing. This is just good common sense. But is it a question of that? Are there not other logical or symbolic ways of accounting for the configuration, even the co-implication of these two distinctions that are, on the one hand, honor or dignity, and on the other, payment, penalty, punishment? Even if one were wrong to have sought them out in language, where would this search, this impulse to find a privileged relation between the two come from? For if there is error or projection, one must still account for it. And one must also account for the fact that — apart from what Benveniste calls “chance” (“It is only by chance and in this single example that time¯ comes to be associated with the verb ‘pay in return’”) — one must recognize, as Benveniste does, and I quote him, that “[t]here are . . . secondary contacts in Greek between the two families; as a result of this we have notably timo¯rein ‘bring aid, help, chastise,’ timo¯ros ‘protector, avenger’; literally he who watches over the time¯ (tima-oros). This is a mixture of the two notions [says Benveniste]. Similarly, the most ancient forms tino¯, tinuo¯, seem to have borrowed their vowel i from time¯, as is shown by the alternation between i and ei attested in the dialects” (344– 45). We would still have the right to ask the linguist to account for all of these phenomena that he insists are accidents, chance, impurities, “secondary contacts.” One gets the impression that he wants to keep the lineage pure, away from pollutions, unscathed, intact, free of (I am citing his words) “chance,” “secondary contacts,” “mixture[s] of the two notions.” What must be avoided is precisely the unavoidable, genetic chance, secondary contact, genealogical mixture, in short, the contamination of the purity of clear and distinct conceptions, that is, what simply happens and for which one must answer. Certainly Benveniste does not want to be accused of failing to mention phenomena that any scholar like himself must acknowledge. But at the same time, in his interpretation, and in a language whose connotations of genealogical purification are very loaded, he secondarizes, he evaluates as secondary or fortuitous, as mixture and irrational impurity, the very thing that has to be thought so as to answer for it. Why are there these apparently fortuitous, secondary phenomena, these mixtures of two notions? Why do they get mixed, and who mixes them? We will constantly be attentive to these mixtures of concepts that one seeks to distinguish (useful and just,

de ce m be r 13 , 2 0 0 0 ‡ 55

natural punishment and poena forensis, auto- and hetero-punishment, etc., the list would be interminable). For as long as I have been reading Benveniste, I have noticed, in other contexts and on different themes (I could give many examples, published or not, from the “Supplement of the Copula” to “Faith and Knowledge”22), I must always pay homage to Benveniste’s knowledge, thus honoring the scholar, and yet, at the same time, on the other hand [en revanche], I must suspect him, I won’t go so far as to say accuse him, of not knowing how to think what he knows how to know.

22. See Jacques Derrida, “Le supplément de copule,” in Marges de la philosophie (Paris: Minuit, 1972), pp. 209– 46; “Foi et savoir: les deux sources de la religion et de la morale,” in La religion, ed. Jacques Derrida and Gianni Vattimo (Paris: Le Seuil, 1996), pp. 9– 86; “The Supplement of Copula: Philosophy before Linguistics,” in Margins of Philosophy, trans. Alan Bass (Chicago: University of Chicago Press, 1982), pp. 175– 205; “Faith and Knowledge: The Two Sources of ‘Religion’ at the Limits of Reason Alone,” trans. Samuel Weber, in Acts of Religion, ed. Gil Anidjar (New York: Routledge, 2002), pp. 40– 101.

third session

January 10, 2001 h

88

The session continues, so does the scene, we are still at the theater: condemned to the theater.1 What is a president? we asked ourselves last year, and we are far from being done with this question, which is also theatrical, the question of the theater. Our path will be tortuous today. In addition to what we have already said, a president is often a sovereign, and when he is a president and head of state, the figure par excellence of the president in modernity, he finds himself, as sovereign, endowed in particular with the right to pardon and the right to declare war. These are two absolute decisions and two exceptional decisions, in regard to the exception to the law and the right to suspend the law, to cite Schmitt again. That being the case, it seems unnecessary to underscore the importance of the question “what is a president?” for anyone who wants to deal with the death penalty in modernity. Whether it is a matter of the right to pardon or the right to declare war, or even to launch a war without declaring it, we sufficiently stressed both the question of pardon or clemency and the question of war (the obscure concept of war, the undecidable boundary between civil and international war, or even partisan war), we stressed this sufficiently to realize that the question of the president was indeed our question. We are far from finished with this question, but in order to point to one of its supplementary features today — situated as we are between the presidential elections that have just taken place in the United States and those that are approaching in France2 — let us note, so as to refine the question 1. In a handwritten annotation: “Again this year, in this millennium. Always the theater.” 2. In the United States, the November 7, 2000, presidential election resulted in the victory of the Republican George W. Bush over the Democrat Al Gore; in France,

ja n ua ry 10 , 2 0 01 ‡ 57

of the president, as the question of a particular kind of sovereignty, namely, modern sovereignty, that if the president is a figure of sovereignty, his sovereignty is not only limited in time (which is not, in principle, the case in absolute monarchies or in Nazi or fascist dictatorships; the Führer and the Duce are not presidents: their end, unlike that of an elected president, coincides in principle with their deaths, that is, with the incalculable of the calendar: kings and dictators are in it, in principle, for life) but presidential sovereignty, fixed by term limits as set by the calendar, is above all constrained by time and by an electoral process that risks conditioning and thus restricting to conditionality the supposed unconditional power of clemency or war. A given elected president or a given presidential candidate can choose whether or not to make use of his sovereignty by taking into account a real or potential electorate, indeed by taking into account public opinion, of which he is merely the mouthpiece, instrument, client, the client of an electoral clientele. The paradox, let’s call it the “democratico-demagogic paradox,” is that wherever there is an election, i.e., the election of a sovereign decision maker (the president of a state, a governor, but also the president of a jury or a tribunal, a sheriff, an attorney,3 etc.), sovereignty is subject to transaction and thus to the interest of the one who is elected or electable. There is, in the concept and figure of the president, something like a contradiction internal to sovereignty: unconditional sovereignty is conditioned. In the United States, where people sometimes boast of being able to elect their judges and sheriffs, etc., we find millions of examples of legal decisions, or even a politics of law (including the death penalty, including the plea for clemency, etc.), that are dictated by the course, interests, and maneuvers of an electoral campaign. In his book L’Abolition, in the first part titled “From One President to Another,” Badinter recounts how, in 1974, upon the death of President Pompidou, a president who rarely pardoned and not always for good reason (we have already discussed this), “[a]t no point during the campaign,” writes Badinter, “did the question of the death penalty come up in debates — despite the fact that it was the election of the president, the only person with the right to grant clemency” (15), Badinter remarks with some surprise. I remind you of this episode because in the American election that just took place, the question of the death penalty — as present, pressing, urgent, dramatic, and tragic as it is in that country — was scrupulously avoided by the election took place in May 2002 and resulted in the reelection of the RPR [Rassemblement pour la République] president Jacques Chirac. 3. [Translator’s Note]: “Attorney” is in English in the original.

89

58 ‡ t hir d se s sion

90

the two major candidates, actually by all three candidates.4 The two major candidates knew that to raise the question would be to risk losing voters; moreover, their position was the same in principle: keeping the death penalty. The case of France in 1974 was both similar (silence with respect to the death penalty) and different (insofar as it seems that both candidates, Mitterrand and Giscard d’Estaing, were in their hearts, though in different ways, against the death penalty). And when I say “in their hearts,” I must add two further points of clarification. One is very general and concerns the metaphor of the heart, as well as an opposition between heart and reason, reason in general, and political reason or reasons of state in particular. Should we resolve — and what would this mean? — to base abolitionist discourse solely on the heart, on affect, on pathos, on feeling, on horror and compassion? Why not? But in this case one would have to rethink the heart, the thinking of the heart. I remember how, a few months ago, when I was giving a lecture on the death penalty5 in Chicago, and because I was describing the difficulty, as I often do here, of grounding an abolitionist discourse in philosophical reason, an abolitionist discourse for which all the same my sympathy was declared, a law professor thought he could raise the following objection, which he did with some irritation: “So you are against the death penalty without being able to give a rational, philosophical justification for it, and you even say that philosophy as such has always legitimized the death penalty. And yet since you still declare yourself an advocate of abolition, you do it on the basis of your heart. Do you think your heart is better than other people’s, better, for example, than that of the majority of men and women in this country who are for the death penalty?” I took this objection seriously and while I played at answering “yes,” no doubt, my heart was better than his, and that one then had to ask oneself what this meant, I was better able to appreciate the need to rethink the distinction between heart and reason, affect and rationality, passion and discourse, pathos and logos, and other analogous distinctions, including the Jewish, Christian, or Abrahamic tradition of “mercy [miséricorde].” And I was better able to understand the need to do this not in order to apply the general rule to the case here, to the particular question of the death penalty, 4. Besides George W. Bush (Republican Party) and Al Gore (Democratic Party), Ralph Nader (Green Party) was also a candidate in the 2000 American election. 5. This was, in all likelihood, a private seminar given by Derrida on October 24, 2000; the seminar was organized by the journal Critical Inquiry at the University of Chicago.

ja n ua ry 10 , 2 0 01 ‡ 59

not in order to apply the result of this re-elaboration, this deconstructive reflection on the word and the concept of “heart” (a deconstruction that could only be a huge adventure), to the singular question of the death penalty, but on the contrary to make the question of the death penalty the test case, the absolute and irreplaceable site for this renewed challenge to the distinction between heart and reason. This challenge would also, but would not only, go by way of the Pascalian or Heideggerian meditations on the heart and truth. Heidegger reproached Pascal for having too quickly reinscribed the justification of the heart in a methodological procedure intended to ground knowledge, in particular the knowledge of geometrical truths. Pascal said not only “Two excesses: to exclude reason, to admit nothing but reason,”6 but also “The heart has its reasons of which reason knows nothing: we know this in countless ways. I say that it is natural for the heart to love the universal being or itself, according to its allegiance”7 or “The heart has its order; the intellect has its own, which uses principles and demonstrations. The heart has a different one. We do not prove that we ought to be setting out in order the causes of love; that would be absurd.”8 [There is a whole textual tradition behind these words. First Saint Jerome’s amor ordinem nescit in his letter to Chromaticus, which Montaigne cites at the end of the important Chapter 4 of Book III, “Of Diversion” (in which Montaigne writes, among things, this sublimely elliptical maxim: “Our thoughts are always elsewhere”9), and then the Discours de l’esprit by the Chevalier de Méré, who, when summarizing his thoughts on love and its proofs, says the following: “Someone said to a woman: ‘What must I do to convince you that I love you?’ ‘You must love me,’ she said, ‘and I will not doubt it.’”10] Pascal is also the one who said: We know the truth not only through our reason but also through our heart. It is through the latter that we know first principles, and reason, which has nothing to do with it, tries in vain to refute them. . . . and it is on such 6. Blaise Pascal, Pensées et opuscules, ed. Leon Brunschvicg (Paris: Hachette, 1909), no. 253, p. 447; Pensées, trans. A. J. Krailsheimer (London and New York: Penguin, 1995), p. 55. 7. Pascal, no. 277, p. 458; Krailsheimer trans., p. 127. 8. Pascal, no. 283, p. 460; Krailsheimer trans., p. 94. 9. Michel de Montaigne, Essais, ed. Albert Thibaudet (Paris: Gallimard/Pléiade, 1950), p. 932; The Complete Essays of Montaigne, trans. Donald M. Frame (Stanford, CA: Stanford University Press, 1958), p. 633. 10. Pascal, Pensées et opuscules, quoted by Brunschvicg in a note, p. 460, n. 3.

91

60 ‡ t hir d se s sion

92

93

knowledge, coming from the heart and instinct, that reason has to depend and base all its arguments. The heart feels that there are three spatial dimensions and that there is an infinite series of numbers, and reason goes on to demonstrate that there are no two square numbers one of which one is double the other. Principles are felt, propositions proved, and both with certainty though by different means.11

If I recall these brief passages it is merely to measure the difficulty — and the necessity — there can be in thinking what we are saying when we say “the heart” and oppose it to reason. Do affect, passion, and compassion have a place, a rightful place, in the problematic of the death penalty, and should or shouldn’t they ground an abolitionist position? Or can we hope to ground an abolitionist discourse and politics on reason, indeed on pure reason, by finding the right objection to the pure rationality, in the name of which, you will remember, Kant justifies the principle of the death penalty? This is a problematic that we broached last time. The other point of clarification to which I referred earlier when speaking of the heart concerns the private/public distinction. What does it mean for the history of the public/private divide to say that the two candidates to the presidency of France in 1974 were opposed deep down to the death penalty without daring to declare their feeling or their conviction, even when this conviction was rational, reasonable, reasoned? What is the res publica? This question is all the more difficult here in that the feeling or conviction, thus confined within the limits of the private, concerns the least private thing there is. Nothing is less private, more publicly theatrical or theatrically public, than a penalty, a punishment administered by the state; nothing is less private — not even falling under private law — nothing is less private than common law, public law or political law, the criminal law in the name of which one condemns to death. Recall what Kant says when he characterizes the properly juridical punishment as poena forensis, as outside punishment, external punishment, thus as public punishment, in opposition to poena naturalis, which is both an internal and private punishment that does not proceed by way of the judicial apparatus of the state. Recall too that it is along this porous boundary, a boundary as porous as that between a common law crime and a political crime, a death sentence for a common law crime and one for a political crime, that we were preparing to address the question of psychoanalysis, of the relations between psychoanalysis and ethics or law, psychoanalysis and criminology. To return to the presidential campaign of 1974, the abolitionist position, 11. Pascal, no. 282, p. 459; Krailsheimer trans., p. 28.

ja n ua ry 10 , 2 0 01 ‡ 61

which Mitterrand did not think needed to be made public, was not simply a private and personal position, a deeply inner conviction. It was already part of the left’s electoral platform. And yet both presidential candidates judged it inadvisable to make it a campaign theme given the state of public opinion. After noting that the question of the death penalty remained secondary as compared to other “major” issues of the election, Badinter continues: In any case, to examine the question more closely, it appeared the issue didn’t help either of the two principal candidates. For François Mitterrand, abolition was part of the Left’s political platform, but he knew it wasn’t popular. As for Valéry Giscard d’Estaing, the leading candidate on the Right, if he freely let it be known, when in private, that he was hostile to the death penalty, to publicly pronounce himself in favor of abolition would risk disenfranchising a large part of his electorate. (15)

(Comment: limit on unconditional sovereignty: electoral opinion.)12 What gave Badinter hope was the fact that Giscard had declared not only his love of literature but had also “privately declared his profound aversion to capital punishment,” a private statement that was reported by the press, and which thus became, as a result, somewhat public. Giscard, having declared that he dreamed of writing, I quote Badinter, “in a few months or a few years, the equivalent of a work by de Maupassant or Flaubert,” Badinter told himself, and he changes the names of the writers in a meaningful way, I quote: “Any man sensitive to literature, to Voltaire, Hugo, or Camus, could only, or so I thought, be deeply revolted by the guillotine” (16). Badinter intentionally chooses, obviously, those French writers who had fought publicly and energetically against the death penalty over the past three centuries. The way in which the exercise of sovereignty is limited, in the case of the presidency, by electoral conditionality, is demonstrated by everything that followed in Giscard’s presidency, Giscard who was nicknamed “the Pharaoh” and who, when it came to the question of the death penalty, became more and more of a Sphinx, according to Badinter (19). Against the background of his prolonged silence, his Minister of the Interior and friend Poniatowski declared the following year (in 1975) that the death penalty had to be maintained in three cases: the kidnapping and death of hostages, the kidnapping and death of children, the killing of police officers. These three cases are typical of all the arguments in favor of the death penalty in every country, and one must consider their significance (the death 12. During the session, Derrida adds: “So you see here, in a very concrete, recent example, how unconditional sovereignty can be conditioned by popular demand, by an electoral power. By the image or statistics of public opinion, actual or virtual.”

94

62 ‡ t hir d se s sion

95

of a hostage, of a child, of a police officer). Even Chirac, who was Minister of the Interior13 at the time and about whom one knew, as it was later confirmed, that he was for abolition in his heart of hearts, even Chirac, then, declared himself in favor of the death penalty in the case of hostage taking. During this same sequence of presidents, we rediscover the question of age. In 1975, after a seventeen-year-old minor, Bruno T., is condemned to death for killing an elderly woman, having forced open her door with three accomplices, the attorney general at the time, Jean Lecanuet, whose wellknown European and Christian convictions did not in the least prevent him from supporting the death penalty in the typical cases just mentioned, Jean Lecanuet is not moved by the age of the condemned. Considering the decision of the jury that condemns Bruno T. to death, Lecanuet declares that one must be sensitive above all to the sentiment of public opinion: It is a response to a very serious event and it proves public opinion [I underline this reference to public opinion] is increasingly severe when it comes to acts of violence, no matter the age of the offender. (21)

A few days later he declared that the death penalty had to be maintained in very rare cases, for odious crimes, in particular the taking of hostages and the kidnapping of children. He also spoke of its exemplary role, thus of its usefulness as a deterrent: I believe in the liberty of man. I believe in the responsibility of men unless, of course, they are suffering from a dementia. As a consequence, the criminal must also assume his responsibilities and, in very rare cases, it is helpful to have a deterrent tool: the death penalty. (22– 23)

As for the weight of public opinion, it should be said that a survey, conducted after the sentencing of the adolescent Bruno T., revealed that, for the majority of French people (58 percent), a minor deserved the death penalty if he had committed a particularly odious act. It is also true that Giscard, who would later refuse to grant clemency to others, pardoned Bruno T., notably because France had signed the UN Covenant on civil and political rights, a 1966 covenant that prohibited sentencing defendants to death who had committed their crime before they were eighteen years old. You see in this example that the supposed unconditional sovereignty of the president, and thus the exercise of the right to pardon, is doubly limited, doubly conditioned: internally by public opinion and thus by an electoral potential, 13. In 1975, Jacques Chirac was in fact prime minister. As Derrida says above, Michel Poniatowski was Minister of the Interior.

ja n ua ry 10 , 2 0 01 ‡ 63

externally by commitments to international law that also serve to constrain sovereignty. It is between these two limitations, which are occasionally, even often, in contradiction with each other, that the presidential decision must operate and negotiate. On this principle, Giscard d’Estaing, in the face of this contradiction, deferred the decision until later without ultimately saying what his position was. On two occasions, he used the expression “le moment venu [when the time comes, when the time is right]” to conclude that, precisely, the right time had not yet come. And his argument engages two equally problematic themes: on the one hand, the reference to public opinion or what he calls the sensitivity of French society, and on the other, the usefulness, in certain contexts, of a death penalty that, in other contexts, might prove useless. In 1976 he says that “the legislature,” I quote, “when the time was right, would address the problem” (39). But obviously, for him, and for France at the time, the right time seemed not to have come:

96

It is not advisable to do it now at a moment when the atmosphere of violence, particularly certain types of unacceptable violence, has left French society extraordinarily sensitive. . . . When this wave of criminality and violence recedes, it will be possible, even necessary, for the national collective to pose the question of the death penalty, and when that time comes, where it concerns me, I will give my answer. (39)

Among these would be “certain types of unacceptable violence” (an expression that might lead one to infer that certain types of violence are acceptable), are to be found, and Giscard specifies, “those involving the premeditated abductions of children that entailed the quasi-certitude of their death, and this being done for calculated profit” and the case of “those who, with relentless inhumanity, attack elderly people who live alone, and who have prepared these aggressions to abscond with their pitiful savings” (39– 40). I quote and underscore these details for two reasons. First of all, because I would not want some abolitionist fervor to make us overly scornful of these discourses, and I would not want it to attenuate in us, or in what we say, our horror of such crimes or our compassion for the victims of these crimes. No honest abolitionist discourse should become complacent about these crimes or lessen our compassion for the victims. Though the law consists in judging without putting oneself in the other’s place and without identifying oneself with the other, a discourse on the law must, on the contrary, put itself to the test of all identifications. Second, it so happens that, in the years following Giscard’s election to the presidency, the last presidency before abolition, France was troubled by the rise of terrorism in Europe (IRA in Northern Ireland, ETA in Spain, Red Brigades in Italy, Red Army Faction in Ger-

97

64 ‡ t hir d se s sion

98

many), and there were also several nationalist attacks in France (Corsican, Breton, Basque, and Guadeloupean). Now terrorism is situated precisely at the unstable, uncertain, permeable, undecidable boundary between common law crime and political crime, just as it is situated between civil war and national war. And partisan war (Schmitt). It would not be completely mistaken to conclude from all of these signs, from all of these conditions imposed on the unconditionality of the sovereign, that the modern figure of the president represents an empty space, a space without real sovereignty, a simulacrum of sovereignty, like a vacant seat, a deserted place, the memory of a divine or absolute, monarchical sovereignty, a sort of shadow theater, a postcard theater. And it’s not what’s happening with American presidents today that would take us away from this postcard theater. Before leaving the presidential chair or box (and I would remind you that a president is someone who, as his name indicates, presides, seated, in a place from which he dominates), I would like to return to America. But before doing so, let me remind you of this passage at the end of Amerika that an American friend reminded me of last week. At the end of Amerika, Kafka stages what he calls the Theater of Oklahoma (this is the title of the last chapter14) and at a certain moment during a final banquet of sorts, in the middle of a general conversation, it is said that those who wanted “could look at postcards of the Theater of Oklahoma which lay in a pile at one end of the table and were supposed to pass from hand to hand.”15 Karl, who is the last in the row, sees only one, which depicts the box reserved for the president of the United States, but it’s an empty box. At first glance one might have thought that it was not a stage box but the stage itself, so far-flung was the sweep of its breastwork. This breastwork was made entirely of gold, to the smallest detail. Between its slender columns, as delicately carved as if cut out by a fine pair of scissors, medallions of former Presidents were arrayed side by side. (293– 94).

There follows the description of one of these medallions, the image of one of them, but what is remarkable is the narrator’s (or Kafka’s) insistence on the fact that the box is empty, completely deserted, that the only thing one could see in it were depictions of presidents, portraits, simula14. The exact title of the last chapter of Amerika is “The Great Theater of Oklahoma.” 15. Franz Kafka, Amerika, trans. Willa and Edwin Muir (New York: Shocken, 1963), p. 293 [translation modified; hereafter, modifications to the published translation will not be signaled].

ja n ua ry 10 , 2 0 01 ‡ 65

cra, or characters, rather than people and that, I quote, “One could scarcely imagine human figures in that box, so much did it look like an end in itself” (294). In other words, a presidency without a president, the function as an end in itself. I said characters rather than people, and yet these theater characters, these depictions are not those of actors, but — in the empty box — of spectators. Not to mention the fact that for an American an empty theater and presidential box cannot help but make one think of the assassination of Lincoln and the Civil War. Along with everything that followed from it for the history of the death penalty in that country. And the extraordinary lucidity, the clairvoyance, not to mention the historical and political vision [voyance], the premonitory genius of Kafka goes so far as to describe the final scene of Amerika and of the Theater of Oklahoma (I refer you to it) as a kind of departure of an entire population, in columns, without suitcases, from a train station resembling the one that some twenty years later dispatched convoys of deportees to the death camps, deportees who were “almost carefree, ignorant of their final destination.”16 This ending has given rise to many interpretations. But there is little doubt about the sinister and tragic note that is struck there since we find in a note from Kafka’s Diaries, dated September 30, 1915: “Rossman and K., the innocent and the guilty, both executed without distinction in the end, the innocent one with a gentler hand, more pushed aside than struck down.”17 Rossman is the Karl Rossman of Amerika, and K. is the Joseph K. of The Trial. They are punished with death without distinction, says Kafka, the innocent and the guilty, both of them suffering the same fate before the death penalty. No difference between the guilty and the innocent before the death penalty. This is as good as saying that it is radically unjust, unequal and disproportionate, in judicial error a priori. Judicial error is its element (comment on today18 in the United States).19 If you reread the final scene of K.’s execution in The Trial, what you will see reappear, among other things, is the apparatus of visibility proper to the theater, the hallucinatory unreality of the simulacrum, of a pure, theatrical representationality, of a kind of play, played out by professional actors, a 16. We were unable to track down the source of this quotation. 17. Franz Kafka, Diaries 1914– 1923, ed. Max Brod, trans. Martin Geenberg with Hannah Arendt (New York: Shocken Books, 1965), p. 132. 18. [Translator’s Note]: “Today” is in English in the original. 19. During the session, Derrida adds: “Let me remind you that today in the United States the debates on the death penalty, the most animated debates, and those that carry the greatest weight, are not concerned with the principle of the death penalty but with the risk of judicial error.” The rest is inaudible.

99

66 ‡ t hir d se s sion

theatrical performance that is also named by K. when he says of the two men in black, the executioners who pay him a visit:

100

101

“Tenth-rate old actors they send for me,” said K. to himself, glancing round again to confirm the impression. “They want to finish me off cheaply.” He turned abruptly toward the men and asked: “What theater are you playing at?” “Theater?” said one . . . as he looked for advice to the other.20

And in the final scene, the execution, the death that resembles a suicide, as always in Kafka, as others have noted (the character in The Judgment throws himself in the water, those in The Metamorphosis and “A Hunger Artist” starve themselves to death), here a virtual suicide since Joseph K. tells himself, as the two men in black frock coats and top hats exchange a long and thin butcher’s knife above his head, that “he was supposed to seize the knife himself, as it traveled from hand to hand above him, and plunge it into his own breast” (228). But he doesn’t do it, and he is overcome with shame, a shame he feels may survive him. In fact, when one of the two gentlemen seizes him by the throat while the other thrusts the knife into his heart (again the heart) and turns it twice, “[w]ith failing eyes, K. could still see the two of them immediately before him, cheek leaning against cheek, watching the final act. ‘Like a dog!’ he said; it was as if the shame of it must outlive him” (229). What shame? All sorts of readings are possible. Shame for having been put to death like a beast, like a dog, insofar as the putting to death in the form of an execution is always a return of man to bestiality; unless he feels like a dog for not having asserted his freedom by killing himself and taking the long, thin knife into his own hands. Suicide alone could have given meaning and justification to the freedom implied by criminal law: if the guilty party is responsible for an act committed with intent, then he must rationally approve his punishment and thus, in fact, impose it on himself: if there is a rationality of the death penalty for a being who is free (as Kant maintained), then the guilty party must not only understand but also approve and demand his death sentence (as sometimes happens) and thus, at least symbolically, participate in his own execution, lend a hand with what is, in truth, the truth of a suicide. Basically the Kantian logic of the universal, absolute and a priori rationality of the categorical imperative of the death penalty requires, from the logical point of view, that the execution be a suicide. 20. Franz Kafka, The Trial, trans. Willa and Edwin Muir (New York: Shocken, 1976), p. 224.

ja n ua ry 10 , 2 0 01 ‡ 67

And he who does not commit suicide should be ashamed. Shame for himself, K., who will not have committed suicide, or shame for the two executioners who were also ashamed of being so docile, docile even with K., as he had already pointed out on two occasions. The dominant and general feeling is thus one of shame, a shame that survives the dead man, an indelible shame that survives the death of the innocent as well as the guilty, a shame that is incommensurate with good and evil, with human law and justice, a shame that attaches itself to the humanity of man and to the theater of his law. This logic of suicidal execution, of the truth of execution as suicide, as suicide even if the executioners lend a hand in this suicide, this suicidal truth of the death penalty is unavoidable, even if the one condemned does not believe it or does not resign himself to it; it is structurally implied by the logic of the verdict. Insofar as the latter claims to be grounded in law, in reason, in a juridical rationality that is supposed to be universally shared, the guilty one — the one who is found guilty — must acknowledge his judges and thus his executioners to be in the right [donner raison], and from the moment that he acknowledges law to be in the right, from the moment that he acknowledges the rationality of the law to be right, from the moment that he proves the judges, the executioner, and finally the president who refuses him clemency to be in the right, from the moment that reason gets the better of him [que la raison a raison de lui], it is as if he were committing suicide, as if he were executing himself. He approves the sentence; he acknowledges the rationality of the sentence [il donne raison à la sentence], and thus he condemns himself to death, and in order to follow this to its logical conclusion, he himself executes the sentence by which he condemns himself. Execution is sui-cide. For the autonomy of juridical reason there is only auto-execution. But from the moment that he acknowledges his judges and his executioners to be in the right and symbolically transforms hetero-punishment into auto-punishment, hetero-execution into auto-execution, the one suicided by society [le suicidé de la société] ends up no longer really believing in the reality of the death of which he remains the master, a death that he gives himself instead of having it inflicted on him. He believes it without believing it, whence the feeling of fictional or theatrical unreality, whence the essential literariness attached to these scenes of executioners in frock coats and top hats. Last time, we came up against the ungraspability of the death penalty, of the unreality, the unpresentability, the unlocatability of the death penalty — that, depriving it of any sense of taking place by which it would finally

102

68 ‡ t hir d se s sion

103

happen to someone, did not render it any less cruel or terrifying. Well then, from the moment that any execution can symbolically become a suicide, or can at least be internalized [inculquée] as suicide by the supposed rationality or logicality of criminal law, we end up, despite the terrifying and indisputable reality of the death that is thus given, received, authorized and autoaffected, we end up finding the execution a little unreal, incredible, sublime, glorious; what is more, it is this terrifying quasi-unreality, this “as if,” that gives rise to the elevations or glorifications of the “great criminal” (Genet or Benjamin, etc.). But this is also what happens or doesn’t happen in the case of death in general insofar as we never know in the end whether we are radically hetero-affected or auto-affected by it, and whether every death is not a suicide, every suicide a murder or a condemnation. Given this, it is the belief in death, like belief in general, which we have often said has no contrary, that believing and not believing are not incompatible opposites, it is this belief in death that is equivalent, in its very essence, to a nonbelief. Believing or not believing, suicide or murder, natural death or condemnation, it’s all the same. I no longer know where Montaigne said the following or what it concerned, but I know it by heart: “We are, I know not how, double within ourselves, with the result that we do not believe what we believe” (469). This fleeting dimension of what we so casually call believing or not believing is thus, in its very enigma and internal contradiction, at the heart of all of our questions. What is it to believe? To believe in something? To believe the other? To believe in the other, etc.? We know that this question becomes more pointed when we ask it as spectators, as auditors or as readers, when we attend a spectacle, a play or a film, when we read a novel, a poem, or when we listen to music. We believe without believing. What relation might this have to the death penalty? For this question of belief applies to death first and foremost, to a death that is always so unnatural given that we are always “condemned” to it, and the word “condemned,” connoting here a nonnatural death, applies equally well in all three of its senses: in the broad sense of the term (1) of being “condemned to die,” as any finite living being; as well as in the sense of (2) being “condemned to die” as the result of an illness diagnosed by a doctor; or (3) “condemned to death” as the result of a judgment, of a verdict or a death sentence. Notice, finally, that if an execution is a quasi-suicide, if a hetero-punishment is always internalized [inculquée] as self-punishment, this indeed amounts to a hyperconfirmation of the Kantian logic (the condemnation to death as the categorical imperative of pure reason must be

ja n ua ry 10 , 2 0 01 ‡ 69

universally accepted, approved, assumed by every rational being, including therefore the one who is condemned to death and who thus takes it upon himself to condemn and punish himself, etc.), but to a hyperconfirmation of Kantian rationality that self-destructs or self-deconstructs. For once hetero-punishment is revealed or turns out to be auto-punishment, one can no longer distinguish between the strict law of poena forensis (the historical, artificial punishment administered from outside by the judicial apparatus) and poena naturalis that the guilty party inflicts on himself outside of any juridical institution. In other words, the entire Kantian discourse begins to crack: what grounds the law in reason, here the death penalty, is also what deprives it of all juridical rationality. The boundary between poena forensis and poena naturalis is no longer at all rigorous or pertinent despite its “common sense”; there is only contraband between the two, and it is of this contraband that we are speaking here. And of which we will continue to speak. I don’t know if what I’m saying is clear enough but you can already sense that there is a real self-exploding bomb here, an implosive power of deconstruction at the very center of law’s rationality, at the center of the right to punish, and at the center or at the summit of the right to punish, of the death penalty. Once again, Kafka will have helped us — more powerfully than so many others — to follow the thread of what is to be thought here, from the place that we call, without any hesitation, literature. Or theater. Since we are already in this empire of Austro-Hungarian sovereignty, starting with Kafka, with his Amerika, and we are slowly approaching Freud’s texts (Freud who also had his America21), I will again take up this question of death, of the unreality or unrepresentability of death, which, being unrepresentable in its reality, can only thus be represented by a fiction whether in literature, painting, or theater; I will take it up again by reminding you of this well-known text of Freud’s, “Thoughts for the Times on War and Death” (1915, in the middle of the war).22 At the beginning of the second chapter, “Our Attitude Toward Death,” it is in theatrical rhetoric, in overt or hidden references to the theater, in fact to Shakespeare, that Freud — I don’t think it has been adequately noted, I am even quite certain 21. [Translator’s Note]: “America” is in English in the original. 22. Sigmund Freud, “Thoughts for the Times on War and Death,” in The Standard Edition of the Complete Psychological Works of Sigmund Freud, trans. James Strachey in collaboration with Anna Freud, assisted by Alix Strachey and Alan Tyson, 24 vols. (London: The Hogarth Press, 1953– 1974), vol. 14, pp. 275– 300. [Hereafter, all references to Freud’s works will be abbreviated SE followed by volume and page number.]

104

70 ‡ t hir d se s sion

105

that I have never seen it taken into account — couches everything he says about our disbelief in our own death (“in the unconscious every one of us is convinced of his own immortality”) (SE 14: 289). Freud’s discourse, then, is theatrological, I would say, in two ways. Freud begins by recalling that we all feel like strangers in this world (a remark that could be corroborated by a thousand literary or poetic references). And he attributes this feeling, this feeling of being a stranger just passing through, a stranger in exile or in transit in this world, to our attitude toward death and toward what, in this attitude, has been disturbed by the war. What is more, this attitude toward death, this knowledge of mortality, is not sincere or straightforward, says Freud (SE 14: 289). We speak as if — and here is the first elliptical reference to Shakespeare — as if death were the necessary outcome of life, as if we had to die because we had a debt to pay. Death is not natural; it’s a debt, the price to be paid for a debt incurred, in a history, thus, in a trial, in the course of a symbolic transaction. The barely veiled reference here is to Shakespeare’s Henry IV (Act V, scene 1): the Prince says to Falstaff “Why, thou owest God a death.”23 And he exits. To which Falstaff replies by treating God like a debt collector or creditor that one must know how to keep waiting, or even how to deceive, like Shylock essentially: “’Tis not due yet, I would be loath to pay him / before his day.”24 The language of debt is explicit in Freud, but it is displaced in an interesting way. Where there is debt, there is the symbolic, the institution, nomos, thesis and no longer physis (nature). Now, Freud uses the word “debt” or “indebtedness” by displacing Shakespeare’s sentence and speaking of a debt owed to nature rather than to God or to someone: owed to something rather than to someone. The fact remains that to speak of debt is already to prepare the interpretation according to which the fear or the certainty of death is not natural but in fact dissembles, like an alibi or a symptom, a debt or a guilt, a debt of something else, even of oneself, to someone or to something else. Freud writes: This attitude [toward death] was far from straightforward. To anyone who listened to us we were of course prepared to maintain that death was the necessary outcome of life, that everyone owes nature a death [einen Tod schulde] and must expect to pay the debt — in short, that death was natural, undeniable and unavoidable. (SE 14: 289) 23. William Shakespeare, The First Part of Henry the Fourth, in The Riverside Shakespeare, ed. G. Blakemore Evans and J. J. M. Tobin, 2nd ed. (New York and London: Houghton Mifflin, 1996), p. 876. [Translator’s Note]: In English in the original. 24. [Translator’s Note]: In English in the original.

ja n ua ry 10 , 2 0 01 ‡ 71

By turning nature not God (as in Shakespeare) into the figure of the creditor, Freud introduces the idea of a death assumed to be natural, when it is not natural, a death in which, moreover, we don’t believe; we do not believe in its inevitability, its natural ineluctability. This slippage from God to nature, in the implicit citation of Shakespeare, had already occurred more than fifteen years earlier in a letter to Fliess, dated February 6, 1899, in which he alters the sentence from Henry IV. This letter is worth reading, at least this paragraph:

106

The art of deceiving a patient is certainly not very necessary. But what has the individual come to, how negligible must be the influence of the religion of science, which is supposed to have taken the place of the old religion, if one no longer dares to disclose that it is this or that man’s turn to die? . . . . The Christian at least has the last sacrament administered a few hours beforehand. And Shakespeare says, “Thou owest Nature a death.” I hope that when my time comes, I shall find someone who will treat me with greater respect and tell me when to be ready. My father was fully aware of it, did not talk about it, and retained his beautiful composure to the end.26

Once death, our death, corresponds to the payment of a debt (and it doesn’t matter whether the debt is to God or to Nature, to what or to whom), we die indebted, because we are indebted and therefore guilty, and every death, then, is like a retribution, a sanction, the execution of a verdict, the effect of a condemnation, compensation for damages (damnum), that is, a debt. There is only indemnification and there is only condemnation to death. The idea of condemnation is analytically contained or included in the idea of death. But as far as our attitude toward death is concerned, the theatricalization of Freud’s discourse has a more profound source than these coded, hidden, or distorted references to Shakespeare. The very structure of Freud’s argument leads to this theatricalization. And once again, as in Kafka’s Amerika, it is not from the perspective of the stage, the characters, actors or people, but from the perspective of the hall and the spectators. When it comes to death, we can only be at the theater. Insofar as we can never live it, death is but a theater; we are always there for the spectacle, as spectators. From this point of view, from the point of view of the point of view, from the point of view of the spectacle and the spectator, one could say, but Freud does 25. In the typescript: “not.” 26. Sigmund Freud, The Complete Letters of Sigmund Freud to Wilhelm Fliess 1887– 1904, ed. and trans. Jeffrey Moussaieff Masson (Cambridge and London: Harvard University Press, 1985), pp. 343– 44.

107

72 ‡ t hir d se s sion

not say it here, that the death penalty is organized and arranged to seal this theatrical fate, this fatality of the experience of death as nonexperience, that is, as fictional and theatrical experience. And while we’re at it, if it must be a theater, an organized representation, what better way to do so than by killing, staging, calculating death, in war or, in a way that is still more localized, calculable, orchestrated, in a single act, in an execution. Once again, Freud does not say this, but I wonder whether we can’t infer it from what he says about the “spectator” in the passage I’m about to read. This is how the passage continues, and it even speaks of killing death as long as we believe or want to believe in it — without believing in it:

108

In reality, however, we were accustomed to behave as if it were otherwise [as if we didn’t have to die, as if we didn’t have this debt to pay]. We showed an unmistakable tendency to put death on one side, to eliminate it from life. We tried to kill it with our silence; indeed we even have a saying: “to think of something as though it were death.” That is, as though it were our own death, of course. It is impossible to imagine our own death [one’s own death, precisely, the one at which one can’t be a spectator]; and whenever we attempt to do so we can perceive that we are in fact still present as spectators [my emphasis. Comment 27]. Hence the psychoanalytic school could venture the assertion that at bottom no one believes in his own death, or, to put the same thing in another way, that in the unconscious every one of us is convinced of his own immortality. (SE 14: 289, modified)

We will return to the context of this passage very shortly. As a postscript to the year 2000, still on the subject of the presidency, in order to be done with it, before beginning again, along with everything we saw coming at the end of the millennium, we now know not only that the country considered to be the most powerful in the world elected as its president the least gracious governor of all times, the champion of the death penalty in every category in the history of his country, the governor of a state which again this year has executed more death row inmates than the rest of the United States combined, but also that the said president (what is a president? we were asking ourselves and will continue to ask ourselves) named as his attorney general (a kind of American “garde des sceaux [keeper of the seals]” or Minister of Justice) a certain John Ashcroft, the former senator from Missouri who has made it clear that he is just as fierce an advocate 27. During the session, Derrida adds: “Because it is irrepresentable, we can only see it as spectators, from the outside.”

ja n ua ry 10 , 2 0 01 ‡ 73

of the death penalty as he is an enemy of abortion (a combination we have often called attention to, and to which this character adds, for good measure, his hostility to homosexuality and to the recruitment of gays as school teachers. Every time he takes an oath of office, as senator or governor, the aforementioned John Ashcroft has himself anointed. No need to point out that blacks, who have every reason to fear such a warmonger, immediately organized against this nomination, which they took to be “scandalous” [this was the word used by the NAACP, that is, the National Association for the Advancement of Colored People]).28 Still, as postscript to the millennium, or as preface to a third millennium that may be that of the total abolition of the death penalty (pure and simple, as Hugo said), here are a few numbers. To date, seventy-three countries have completely abolished the death penalty; thirteen have abolished it for common law crimes (not for so-called political crimes, which reawakens our old question: are not all crimes, and especially the “great crimes” of “great criminals,” those who are punished with death, political crimes, etc.?); twenty-two have abolished it in practice though not by law (no executions for the past ten years). In total, a majority of countries (108) have abolished the death penalty legally or de facto, against eighty-seven countries . Since 1979, every year, two or three countries a year have abolished the death penalty. In 1999, East Timor, the Ukraine, and Turkmenistan abolished it for all crimes, and Latvia for common law crimes. In 1999, more than 1,813 people were executed in thirty-one countries and close to 4,000 were sentenced to death in sixty-three countries (Amnesty International releases these statistics while specifying — and this specification is more important to us than any other from a political or geopolitical point of view, for the quantitative here is more than simply quantitative or at least it is quantitative in more than a mathematical way, it is quantitative in a dynamical way, if I can transpose, in this way, the distinction proposed by Kant with respect to the “sublime” — and the question of the death penalty is certainly not altogether alien, heterogeneous to that of the sublime and of sublimation, but let’s leave this aside for now — Amnesty International releases these statistics while specifying, then, that 85 percent of all executions are concentrated in four countries: China, which comes out far ahead of any other country in sheer numbers [at least 1,077], then Iran [at least 165], then Saudi Arabia [103] and finally 28. The closing parenthesis has been added by the editors.

109

74 ‡ t hir d se s sion

110

111

the United States [ninety-eight], and then come the Democratic Republic of the Congo [a hundred or so] and Iraq [hundreds but sometimes without trial].)29 And, then, still before beginning again, I would like to read a document, a letter I received from an American professor of political philosophy in Madison, New Jersey, who has devoted his teaching for the past ten years, so he tells me, to the death penalty.30 This professor, Johannes Morsink, attended a seminar session that I gave on the death penalty, this time at a law school in New York (as you see I speak a lot about the death penalty while in America, where this barbarity of another era survives and is becoming more severe). This professor writes me the following in particular, which he summarizes and which I will summarize in turn in the form of two observations. First observation: When class begins, he asks his students to sit on one side or the other of a large table according to whether they are for or against the death penalty (we should do the same here). I am the judge, says the professor, and the class is the jury (as well as the defense and the prosecutor). The professor announces that he will try to bring them all to an agreement on the subject of the death penalty (for or against). At the beginning, at the beginning of an intensive six-week class, the great majority is always in favor of the death penalty, against a small minority. And then they begin to study Kant, Nozick, Bedau, Beccaria, reports from different countries, etc., to argue, to quarrel. I make sure, says the professor, that everyone remains honest or in any case appears to be so. At the end of six weeks of intensive study and debate, there is another vote. The vote always turns out, says the professor, to be a majority, this time against the death penalty in our system (the American system). Thus, at the end of six weeks of work, there is an inversion of the majority, reversal of the majority. “Conclusion!” he says, “education/information makes a difference!31 You were wondering about what goes on in America? Well, in part people are not very well informed and the DP32 has become, as you know, a political football.” 29. The closing parenthesis has been added by the editors. 30. A copy of this letter, written in English, dated October 16, 2000, is attached to the typescript along with supporting documentation. According to this letter, Derrida’s seminar session in New York took place on October 15, 2000. In his text, Derrida summarizes and translates directly from the English. 31. [Translator’s Note]: “Education/information makes a difference” is in English in the original. 32. This is the abbreviation used by Professor Morsink for the death penalty.

ja n ua ry 10 , 2 0 01 ‡ 75

Second observation: Among those who vote for the DP (always a minority), no one ever gives religious reasons for his or her vote. They have all studied the statistics and agree that the death penalty is not a deterrent. They are also aware of judicial error, and this makes many of them go from pro to con. They are aware of the racism in the system and this makes many of them go from pro to con. What argument remains, then? Well, the argument of retribution, an eye for an eye. “Last night [he is alluding to my seminar] you said that no punishment is equivalent to the crime committed, thereby suggesting that the DP could not be the greatest punishment for the worst crime. You said that no such line could be drawn. Well, the students think they can draw such a line and in this regard they are like many if not all American juries. What should be of interest to you, I think, is that religion does not count much for those who remain in favor of the DP, etc.” Let us consider this remark, which is not without value. I never said that fundamentalism (moreover a rather confused and loose term with which to designate a complex and differentiated phenomenon, especially in the United States) was decisive in the majority opinion favorable to the death penalty (as it was and no doubt remains in France). It remains to be seen whether religion in general plays a role here and whether the students in question at this university in New Jersey represent American society in a way that is scientifically and statistically accurate. Finally, reading this professor’s CV (since he sent it to me in the same letter), I am not sure that he himself does not have — let us just say to be safe — a strongly religious, even Calvinist background, since he was educated at least in part in a Calvinist theological seminary. But let’s leave it at that. As for religion, and in order not to risk simplifying things, I will only point out that, even if, as I mentioned last year,33 the pope and the Vatican as such have neither officially disavowed the traditional position of the Church on the death penalty nor produced a text having papal authority on this topic, it is nonetheless true that voices — and not the least important of voices — have been raised in the Church, and particularly in the Church of France, against the death penalty, even before it was abolished. Thus, in 1978, on January 25, as Badinter mentions on pp. 107– 08 of his book, the Social Commission of the Episcopacy, of which Monseigneur Etchegaray was in fact the president, published a document titled “Elements of Reflection on the Death Penalty,” wherein the 33. See Jacques Derrida, The Death Penalty, vol. 1, “First Session, December 8, 1999,” p. 26, and “Tenth Session, March 15, 2000,” p. 246.

112

76 ‡ t hir d se s sion

organization recalled the positions and attitudes of Saint Thomas and the Inquisition while denouncing them, and then pronounced itself explicitly for the abolition of the death penalty. (Read Badinter, pp.107– 8 [underlined passages34]).

113

[The Commission] reminded readers that a man is both body and soul and that “it is as a man, both body and soul, that man must be returned to God.” A Christian could not accept that a human being “could, in cold blood, interrupt this mysterious dialogue between a person and God. . . . To condemn a man to death is to deny him the possibility of improving himself. For a Christian, it is to put in doubt the power of divine mercy, the universality of redemption, and the possibility of conversion.” It added: “Society, even after a fair trial, cannot dispose of a man’s life under the guise of his culpability. The right to life is an absolute and the death penalty is a form of contempt for human life” . . . One year earlier, the official organ of the Vatican, the Osservatore Romano, had come out in favor of abolition. Now the French bishops had reached this same conclusion: “After profound reflection, the signatories deem that in France the death penalty must be abolished.” (107– 08)

Before beginning again, I would now like to consider with you “several phenomena” (let us call them “phenomena,” things that appear, that appear to appear, and you will see moreover that what is at stake is perhaps a phenomenology of the death penalty, its possibility or its impossibility). Let us consider, for example, the apparent difference between making and letting die, not making and/or not letting die, then between making and/or letting die (which is not always killing) and not making and/or letting die, namely, killing. You will have recognized, between making and letting die, the question of the act that we outlined at the beginning. What is an act, we tried to ask ourselves in this new context. To begin modestly with a “telling” example and so as to link it up with the questions, the problems, and the problematic concepts of self-defense and nonassistance to a person in danger: is it an act, is it to act or not to act to let millions of people die of hunger or disease (AIDS, for example) simply because they do not belong to my family, or to my nation, or to my race, or to my continent, or to a particular culture, to my culture in general or to my religious culture, or my linguistic culture, 34. There are no underlined passages on the two photocopied pages that accompany the text. We have established the beginning and the end of the quotation read during the session from the audio recording.

ja n ua ry 10 , 2 0 01 ‡ 77

so many criteria of membership and proximity about which the least one can say is that they do not correspond to any rigorous or reliable criteria of ethics, of law, of pathos, or logos. Do I make die wherever I let die? There are specific laws that punish nonassistance to a person in danger. But, on the one hand, their range of application is very strictly limited, such that I will never be accused of not assisting this living being, this human person (for, to my knowledge, the law does not protect all living beings, those that are called endangered animals — a very real problem, nonetheless; in fact, I could and should assist the sick, the poor, the starving, etc.). Above all, on the other hand, even in its limited range of application, the law, criminal law will never recommend the death penalty for someone who lets die another person or a thousand other people in danger. The law punishes — perhaps with death — only the act that consists in making and not in letting die. What the law disregards is the act that consists in not acting, in letting (an enormous zone of existence) but also the act that consists in not acting with full consciousness, in the public and phenomenal space of perception, of acting in an unconscious — real but unconscious — way. Is not the perfect crime (but also the perfect execution or the perfect putting to death) the crime or murder that is more than secret, that is unconscious, unconscious and unapparent, non-phenomenal for everyone, so to speak? Who can know how many people or living beings he or she will have killed without knowing it in the course of a lifetime? Without knowing it at all or without knowing it consciously, all the while knowing it unconsciously? Before going any further in this direction, where we will soon meet up with Freud once more, I recall that the same Freud, in the same text, said that in the unconscious we are all convinced of our own immortality, and thus that the unconscious is unaware of death, our own death, which implied that our attitude toward death, our fear before the death to be paid, like a debt, was a matter of debt, of guilt, of a definite Schuldigkeit (a debt of something or someone to something or someone), the same Freud, then, in the same text, after having said a few pages later that the “fear of death, which dominates us oftener than we know, is on the other hand something secondary, and is usually the outcome of a sense of guilt” (SE 14: 297),35 Freud adds this, and it’s a story by Balzac, unless it comes from Rousseau or 35. In the typescript, Derrida adds in parentheses: “(p. 252, t. XIII of PUF, p. 260 old Jankélévitch translation, Payot, p. 351, Gesammelte Werke),” but he quotes Freud from another French translation: Sigmund Freud, Actuelles sur la guerre et la mort, trans. J. Altounian et al., in Œuvres complètes, ed. J. Laplanche (Paris: PUF, 1988), vol. 13, p. 152.

114

115

78 ‡ t hir d se s sion

Chateaubriand, the story of “killing one’s mandarin,” which has often been commented on and has delighted a few of my friends who have written on it, in particular Sam Weber.36

116

On the other hand, for strangers and for enemies we do acknowledge death, and consign them to it quite as readily and unhesitatingly as did primeval man. There is, it is true, a distinction here which will be pronounced decisive so far as real life is concerned. Our unconscious does not carry out the killing; it merely thinks it and wishes it. But it would be wrong so completely to undervalue this psychical reality as compared with factual reality. It is significant and momentous enough. In our unconscious impulses we daily and hourly get rid of anyone who stands in our way, of anyone who has offended or injured us. The expression “Devil take him!,” which so often comes to people’s lips in joking anger and which really means “Death take him!,” is in our unconscious a serious and powerful death wish. Indeed, our unconscious will murder even for trifles; like the ancient Athenian code of Draco, it knows no other punishment for crime than death. And this has a certain consistency, for every injury to our almighty and autocratic ego is at bottom a crime of lèse-majesté. And so, if we are to be judged by our unconscious wishful impulses, we ourselves are, like primeval man, a gang of murderers. It is fortunate that all these wishes do not possess the potency that was attributed to them in primeval times; in the cross-fire of mutual curses mankind would long since have perished, the best and wisest of men and the loveliest and fairest of women with the rest. Psychoanalysis finds as a rule no credence among laymen for assertions such as these. They reject them as calumnies which are confuted by conscious experience, and they adroitly overlook the faint indications by which even the unconscious is apt to betray itself to consciousness. It is therefore relevant to point out that many thinkers who could not have been influenced by psychoanalysis have quite definitely accused our unspoken thoughts of being ready, heedless of the prohibition against murder, to get rid of anything which stands in our way. From many examples of this I will choose one that has become famous: In Le Père Goriot, Balzac alludes to a passage in the works of J. J. Rousseau where that author asks the reader what he would do if — without leaving Paris and of course without being discovered — he could kill, with great profit to himself, an old mandarin in Peking by a mere act of will. Rousseau 36. See Samuel Weber, “Wartime,” in Violence, Identity, and Self-Determination, ed. Hent de Vries and Samuel Weber (Stanford, CA: Stanford University Press, 1997), pp. 80– 105 [here the typescript includes in bold the note “Read and comment on PUF XIII (Laplanche), p. 152– 54, Standard Edition (vol. XIV 297– 99)”].

ja n ua ry 10 , 2 0 01 ‡ 79

implies that he would not give much for the life of that dignitary. “Tuer son mandarin” has become a proverbial phrase for this secret readiness, present even in modern man. There are also a whole number of cynical jokes and anecdotes which reveal the same tendency — such, for instance, as the words attributed to a husband: “If one of us two dies, I shall move to Paris.” Such cynical jokes would not be possible unless they contained an unacknowledged truth which could not be admitted if it were expressed seriously and without disguise. In jest — it is well known — one may even tell the truth. [...] To sum up: our unconscious is just as inaccessible to the idea of our own death, just as murderously inclined toward strangers, just as divided (that is, ambivalent) toward those we love, as was primeval man. But how far we have moved from this primal state in our conventional and cultural attitude toward death! (SE 14: 297– 99)

What consequences are to be drawn from these two logics, these two ways of thinking about the act, that is, the conscious, actual, intentional act, which can be taken into account by ethical or juridical reason, as well as by the axiomatics of responsibility that follows from it, and the unconscious act, which, though it remains unconscious, is no less real, sometimes actual, murderous, effective, but does not belong to the ethical, juridical, judicial reason of poena forensis or of penal responsibility? Three remarks here. 1. I say the thinking of the act, two ways of thinking the act, but you understand perfectly well that, in both cases, it is also a question of the link between thought and action, and in the logic of the unconscious, of letting or making die someone unconsciously, it is thought itself, the so-called “omnipotence of thoughts” that acts or is presumed to act. There are not, therefore, just ways of thinking the act: there are thoughts in action, acting thoughts, acts that consist in thinking. (On this question of the omnipotence of thoughts and its Freudian interpretation, though I don’t have time to go into it here, let me refer you to a text of mine that discusses Freud, one which I have just published on the work of Hélène Cixous in the volume Hélène Cixous, croisées d’une œuvre, proceedings from the Cerisy conference devoted to Hélène Cixous and which has just has come out with Galilée.)37 37. Jacques Derrida, “H. C. pour la vie, c’est-à-dire . . . ,” in Hélène Cixous, croisées d’une œuvre, ed. Mireille Calle-Gruber (Paris: Galilée, 2000), pp. 12– 140; republished separately under the same title (Paris: Galilée, 2002); H. C. for Life, That Is to Say. . . . , trans. Laurent Milesi and Stefan Herbrechter (Stanford, CA: Stanford University Press, 2006).

117

80 ‡ t hir d se s sion

118

2. The difficulty of the task that takes shape here concerns not only the effects of a logic of the unconscious on law, notably on ethical and juridical reason, on criminal law (the problems of intention, of responsibility, etc.) but also the effects of this logic on ethics and law in psychoanalysis, in the very discourse of the analyst and the one who speaks from the place of psychoanalysis. Beginning with Freud, of course. 3. How to reconcile, consequently, how to articulate, in any case, what Freud says of the unconscious desire to kill or the unconscious (but also real) act of murder, which he describes as originary and universal, with what he seems to approve and wish for in culture, civilization, ethics, etc., which demand that one not kill in action, in the usual sense of the word, that one repress or suspend the murderous desire or act? This question of the ethical or juridical articulation of psychoanalysis will lead us to turn to psychoanalytic texts on criminology (Reik’s, which I have already mentioned) and above all to a text that is signed by Freud but is not written by Freud in which Freud takes sides against the death penalty though after having recognized that the desire to murder is universal and irrepressible, etc. We will broach these problems and these texts next time. But to conclude today, I would like to go in a single stroke [trait], in a single shot [ flèche], to what, perhaps, before anything else, before any law, before any right, before any prohibition, before the Ten Commandments and “thou shalt not kill” about which we have already spoken and of which we will speak again, before criminal law, before the distinction between murder, suicide, and capital punishment, before all the meanings, the three meanings of “condemnation” (the two meanings of being-condemned to die and the one of being-condemned to death), before what distinguishes fact from law, before what distinguishes the act of giving death in general (to a living being in general, from homicide to zoo- or biocide in general, to giving death to the other or to oneself, in the alleged suicide of the living being called animal or called human), before what distinguishes the act of giving or provoking death in general from punishment in general, before all of this, even before a right to life, a right to dispose of one’s own life, etc., before all of this, I would like to go with you in a single stroke [trait], step [ pas], or shot [ flèche] toward what it is that makes putting to death, the will or the desire to kill, the death drive intolerable. I choose the word “intolerable” so as not to have to choose yet between the impossible (in fact) and the unacceptable or unjustifiable (by right, according to law, the ethical, the juridical or the political).

ja n ua ry 10 , 2 0 01 ‡ 81

It’s because the death that one makes or that one lets come, thus, is not the end of this or that, of this being or that being, of someone or something in the world. Every time it dies [ça meurt], it’s the end of the world. Not of a world but of the world, of the whole of the world, of the infinite opening of the world. And this is the case for every living being: from the tree to the protozoa, from the mosquito to the human, death is infinite; it is the end of the infinite [la fin de l’inifini]. The finite of the infinite [le fini de l’infini]. Even before discussing Heidegger’s affirmations (I have done so elsewhere)38 concerning things (stones, for example) that are he claims weltlos, animals that are weltarm and humans or Dasein that is weltbildend, wherever there is death, the world closes itself. The infinite makes itself finite, it comes to an end [l’infini se finit]. It’s an end of the world that is without equivalent, that has so little equivalent that, with regard to the death of the least living being, the absolute end of the world or, if you prefer, the singular destruction of the earth and of earthly humanity, changes nothing, makes not the least bit of difference, remains in any case incommensurable. The end of the world that is sealed by death as my death remains incommensurable. And I wonder if it is not in relation to this incommensurability, to this scale without scale, to the measure without measure of this incommensurability, that one must undergo the test of thinking, of thinking what both death and the death penalty mean. With regard to this end of the world, which is always close, always as close as death as my death, the conceptual oppositions that we have been scanning from the beginning (the three senses of being-condemned, poena naturalis and poena forensis, act and nonact, making and letting, consciousness and unconsciousness, the distinctions between willing and nonwilling, of thought and act, of intention and the unintentional, and especially, espe38. See Jacques Derrida, Apories. Mourir — s’attendre aux “limites de la vérité” (Paris: Galilée, 1996); Aporias: Dying — Awaiting (one another) at the “limits of truth,” trans. Thomas Dutoit (Stanford, CA: Stanford University Press, 1993); L’animal que donc je suis (Paris: Galilée, 2006); The Animal That Therefore I Am, trans. David Wills (New York: Fordham University Press, 2008). [Derrida will return to Heidegger’s texts (Die Grundbegriffe der Metaphysik. Welt — Endlichkeit — Einsamkeit) (Frankfurt am Main: Vittorio Klostermann, 1983); The Fundamental Concepts of Metaphysics: World, Finitude, Solitude, trans. William McNeil and Nicholas Walker (Bloomington, IN: Indiana University Press, 1995) once again two years later in his final seminar, La bête et le souverain, vol. 2 (2002– 2003) (Paris: Galilée, 2009); The Beast and the Sovereign, vol. 2 (2002– 2003), trans. Geoffrey Bennington (Chicago: University of Chicago Press, 2010).]

119

82 ‡ t hir d se s sion

120

cially the differences in age and the differences in the measure of ages, etc.), all of this founders and is engulfed in the most infinitesimal, serious thinking of death. Who will ever dare compare and mark a preference among several deaths, among several modalities, several ages for dying, given that with every dying comes the end of the world? What is intolerable, unthinkable, and thus the only thing worthy of being thought, the only thing that always remains to be thought, is not death, murder, or the death penalty but the end of the world and the fact that this end always remains imminent.

fourth session

January 31, 2001 h

Loving-living. Loving: living. When we say that a living being loves life, this statement is not the same as saying X loves something called “life,” a thing, a thing other than X that is called life. When we say “a living being loves life” (and only a living being can in fact love life, it seems; a dead being cannot), we are saying that this living being loves its life, its “being-in-life” or even “life loves the life-of-life.” Life loves itself in the living being, life loves itself, period, it loves to live, it loves itself in living for life [elle s’aime à vivre]. This love is its relation to itself, its self-intimacy, its ineluctable selfintimacy, before any other supposed interiority. The “I wish I had never been born” (a curse for which we have many examples and to which we have already referred) either makes no sense or has only a secondary or a second, belated, derived sense with regard to this intimate love of life that is attached to itself for itself. Like the radical impossibility of suicide if not of the suicide effect. When one loves intimately, if one loves life (but can one love in general without loving life?), for whoever loves life, life is worth the trouble [ peine] of being lived. What does “the trouble of being lived” mean here? What is the trouble [ peine] in question here? If there is a penalty [ peine] to pay1 to live life, it is because life is worth something, has something like a price. What price? Is it a price that is comparable to some other price in a scale of prices? Or is it another kind of price? What then is the price of life? What gives life value? It is harder than ever to avoid these questions when speaking of the death penalty, that is, when one must, as they say, “pay with one’s life” or “make someone pay with his life.” Is there a price of life that would not be above life itself — and which would not be other than life itself, of another order? But is there a price or a value of life that would be outside of life, that 1. As such in the typescript. During the session, Derrida corrects himself: “a price to pay.”

122

84 ‡ fou rt h se s sion

would not be, in another way, still in life, of life, that would not still and always be of the living? Let’s keep these questions waiting. Besides, there is every reason to think that they will never be done waiting and they lose nothing by waiting, just wait and see. The order has been intimated that we wait. There is here a strange intimation. Intimations.

123

Before we finally take up the texts by Reik and Freud that I announced some time ago, I would like to go back over the stakes of what I will call — forcing or straining the meaning of the word a little — an “intimation.” Intimation, in this context, would be the injunction that transforms, translates, transmutes the outside into the inside, the other into the same, hetero-punishment into auto-punishment. And hence the execution of the one condemned to death into a suicide. Despite appearances, and despite the etymology (intimare) that does indeed lead to intimus, inmost, “to intimate” does not mean to lead inside directly or to what is inmost, but I would like to make it mean this in a way that is not, I hope, too artificial. To intimate is to bring before the law, to summon, to give an order, to enjoin, to call before a higher jurisdiction; the word, in its legal use, comes from intimo, intimare, which in Latin means “to bring into” but also “to publish, to make known, to announce.” The intimation I am talking about would be the juridical act, the order, the summons, the injunction, the verdict that, in the name of the law or the alleged universal rationality of the law, not only condemns to death but also condemns the condemned to approve, as a rational being, what is supposed to emanate from the universal rationality in him (in a way that is autonomous, like a law he gives himself ), and thus to condemn himself, or even symbolically to execute himself, to put himself to death, to give himself the death that is imposed on him. We sketched out this demonstration last time through a reading of Kafka, and I would like to take it up again this time and pursue it a little further, given its stakes, especially with regard to a certain Kantian logic. Last time we were saying that only suicide can give a meaning and a justification to this freedom, to this autonomy entailed by criminal law: if the guilty party is responsible for an intentionally committed act — assuming one can prove that he committed it freely, intentionally, in a responsible way — then he must rationally approve the punishment and thus, in truth, impose it on himself. If there is a rationality to the death penalty for a free being (as Kant maintained), then the guilty party must not only understand but also approve and demand his death sentence (as sometimes happens) and thus,

ja n ua ry 31, 2 0 01 ‡ 85

symbolically at least, participate in his execution, lend a hand with what is, in truth, the truth of a suicide. The Kantian logic of the universal, absolute and a priori rationality of the categorical imperative of the death penalty basically requires that, from a logical point of view, the execution be a suicide. And he who does not commit suicide in this case should be ashamed. In Kafka’s text, it was a matter of this shame for K., who did not commit suicide, and for the two executioners, who were ashamed of being so docile, even in relation to K., as he had already pointed out on two occasions. This logic of suicidal execution, this suicidal truth of the death penalty, is structurally implied by the logic of the verdict even if the one condemned does not believe it or does not accept it. Since as the verdict claims to be grounded in law, in reason, in a legal rationality that is assumed to be universally shared, the guilty one — the one who is found guilty — must acknowledge his judges and thus his executioners to be in the right, and from the moment that he acknowledges law to be in the right [donne raison au droit], from the moment that he acknowledges the rationality of law to be in the right [qu’il donne raison à la raison du droit], from the moment that he proves the judges, the executioner, and ultimately the president who refuses him clemency to be right, from the moment that reason gets the better of him [que la raison a raison de lui], it is as if he were judging himself, condemning himself, committing suicide, as if he were executing himself. He approves the sentence; he acknowledges the rationality of the sentence [il donne raison à la sentence], and thus he condemns himself to death, and, to follow this to its logical conclusion, he himself executes the sentence by which he condemns himself. The execution is a sui-cide. For the autonomy of juridical reason, there is only auto-execution. Note that I am saying “as if he were committing suicide.” I never say — and this is important — that an execution is a suicide, which would be patently absurd, just as absurd as it would be to say that an execution is purely and simply a murder. The end or function of all of these sketches, hypotheses, aporias, paradoxes is not to overturn oppositions or to replace them with others but rather to suspend, to mark, or to recall the necessity of suspending our naïve confidence, that of common sense and conscious belief in distinctions or oppositions such as inside/outside, natural and internal/nonnatural and external ( poena naturalis/poena forensis), auto- and hereto-, auto-punishment and hetero-punishment, execution and murder or suicide. What matters to me here is the trembling of these boundaries, as well as their permeability, their undecidability; the point is not to reestablish other reassuring, oppositional distinctions that would allow one to say: yes, that right there is suicide, that right there is execution

124

86 ‡ fou rt h se s sion

125

and/or murder. Or else, that this was execution or murder and not suicide, that this was suicide and not the contrary. Having drawn some preliminary consequences from these paradoxes, consequences to which I will not return, especially with regard to the belief in the reality of execution and death in general, we said that if heteropunishment is always internalized [inculqué] as self-punishment, this does indeed amount to a hyperconfirmation of the Kantian logic (the condemnation to death as the categorical imperative of pure reason must be universally accepted, approved, adopted by every rational being, including therefore the one who condemns and punishes himself, etc.), but to a hyperconfirmation of Kantian rationality that self-destructs or self-deconstructs. For once hetero-punishment is revealed or turns out to be self-punishment, one can no longer distinguish between the strict law of poena forensis (the historical, artificial punishment administered from outside by the legal apparatus of state) and the poena naturalis that the guilty party imposes on himself outside of any legal institution. In other words, what grounds the law (and here the death penalty) in reason is also what deprives it of all juridical rationality. I suggested that there was here a real autoexplosive bomb, an implosive power of deconstruction at the very center of the rationality of law, of the right to punish, and at the center or at the summit of the right to punish, of the death penalty. I wanted to return to Kant’s text at this point in order to make things a little clearer. In particular to the second part of “The Doctrine of Right,” which is in the first part of The Metaphysics of Morals, and more precisely to Remark E (“On the right to punish and to grant clemency”), where Kant specifically proposes this indispensable distinction between poena forensis and poena naturalis (redefine)2 — an indispensable and common sense distinction but oh so problematic. Incidentally, it is as the wedge [coin] between these two modes of punishment that a certain problematic, indeed a problematization of psychoanalysis, will be able and will have to be inserted, driven in. This is also why we are going back over it. This Remark E, “On the right to punish and to grant clemency [Vom Straf- und Begnadigungsrecht],” opens with the following definitional declaration: 2. During the session, Derrida specifies: “Poena forensis is what is called juridical, judiciary, punishment, administered by a jury, a tribunal; poena naturalis is what I can impose on myself, all alone, without having recourse to any law.”

ja n ua ry 31, 2 0 01 ‡ 87

The right to punish is the right a ruler [des Befehlshabers: this word is translated {in French} as “souverain {sovereign}”; it means the leader in general, the one who commands, the one has the right to give orders, to intimate orders] has against a subject [ gegen den Unterwürfigen: the subjected ones, the subjugated subjects, those who are thrown under: Gegenwurf; object: Gegenstand, and Unterwürfigen: sub-jects] to inflict pain [ peine in French: TN] upon him because of his having committed a crime. (Ak 6: 331, 472)

And peine here is not Straf (penalty, punishment, sanction) but Schmerz, pain, suffering, peine as pain and not first of all as penalty. In other words, according to what is a tautology but which, like every tautology, is thought provoking, Kant defines the right to punish as a sovereign right, but he defines the sovereign by the force or the position that, putting him hierarchically above those who are below, allows him to inflict suffering, peine (Straf and Schmerz). The sovereign has the right to punish because he has the means, the power, or the force, because he is above his subjects (den Unterwürfigen) in an asymmetrical way. He has the right to punish because he is the head, the ruler, but he is the ruler because he has the right and the means to punish. It is by this right, which is a force, that we recognize or identify a Befehlshaber, a ruler, a sovereign, someone who can give orders. Someone who is able, as a result of a de facto or a de jure situation or convention, to utter a felicitous, successful performative, the “I can” of an intimated order: punishment, penalty, the imposition of suffering. The asymmetry that confirms this collusion, this de facto and de jure alliance between fact and law, means that, in the very definition of the right to punish as right and as power of the sovereign, the sovereign, for his part, cannot be punished. It is not a matter of saying or of positing this: the sovereign cannot be punished; but something different: sovereign is the one who cannot be punished. The right to punish and not to be punished is the essential definition of the sovereign. Notice that this definition, the letter of which I will read out without delay in its literality, word for word, is not incompatible, in spite of many other differences that might lead us to find it incompatible either with the Schmittian definition of the sovereign as the one who decides exceptionally on the exception and can (has the right to) suspend law or rights, or with Benjamin’s definition of the right of the state as the capitalization or monopoly of violence. Kant for his part says this: “The head of state [Der Oberste im Staate kann also nicht bestraft werden] can therefore [also] not be punished” (Ak 6: 331, 472). The also bears all the logical weight of the thing here: because the sovereign is the one who has the right to punish, who can and must be able to punish, there can be no reci-

126

127

88 ‡ fou rt h se s sion

procity or symmetry. The right to punish cannot and must not be punishable; he who holds this right and this power must be above the law, or criminal law in any case. One can, of course, remove oneself from his sovereignty, from his authority, from his dominion (Herrschaft): sondern man kann sich nur seiner Herrschaft entziehen (Ak 6: 331, 472): but one can only withdraw from his hegemony. Thus, one cannot by right punish a sovereign (who is therefore covered by penal immunity). If one can nonetheless remove oneself from his authority, from his force, from his force of law, this does not mean that one judges or punishes him but that one in fact overthrows him, by a de facto revolution, which is not a juridical act, a legal act: it’s an illegal or a-legal overthrowing of sovereign power, even if it replaces — still illegally or a-legally — one sovereign with another.

128

There is no point in stressing the lasting impact and the ongoing evolution of this structure and of the situation described by Kant (but also by Schmitt or Benjamin, in spite of all their well-known differences). What is at issue here is the impunity or the immunity of heads of state or sovereigns, which remains without limits, except for those limits that some people have tried to assign to it, to impute to it, in at least two ways in the most recent modernity: Either 1. On the one hand, by inventing, in a highly contested, controversial way, special jurisdictions for incumbent heads of state who are guilty of one thing or another, for example treason, either during their terms of office or outside of their official functions (Chirac, Clinton . . .), exceptional procedures of dismissal or impeachment4 (Nixon actually — resignation, Clinton virtually . . . explain5) but in these cases, as you can see, we are talking about sovereigns-presidents who have been elected (with term limits, remember what we were talking about last time when it came to the particular figure of the president). Or 2. On the other hand, by judging the head of state outside the exercise of his functions in a “foreign” country (where he is not sovereign — the example of Pinochet . . .) or before a new international criminal court (the example of Miloš evic´ . . .). We are thus, humanity is thus, at a rhythm and according to modalities that are still unforeseeable, we are in the process of changing — or at least of considering, potentially changing — this seem3. In the typescript: “either.” 4. [Translator’s Note]: “Impeachment” is in English in the original. 5. During the session, Derrida adds: “They tried to impeach Clinton; it didn’t work; you are familiar with all of these problems.”

ja n ua ry 31, 2 0 01 ‡ 89

ingly unshakeable axiomatics of sovereignty. Even if this hasn’t happened yet, even if it never happens in a radical way, the fact that the possibility of doing so emerges concretely, really, actually, whether as possible act or as failed act, is not nothing. And if we retranslated this sign into Kantian terms, by reproducing what Kant said of the event of the French Revolution — an event which, he said in sum, even if it had not really taken place, even if it had failed, still constituted, in its possibility, a signum rememorativum, demonstrativum, prognostikon of the possibility of human progress (Ak 7: 84, 301).6 Kant would certainly not have viewed the crises or the relinquishing of sovereignty (whether forced or not) as progress in the history of humanity, any more than he would have viewed the abolition of the death penalty in an increasing number of countries as progress. But the fact is — and the fact is neither insignificant nor fortuitous — that everything that limits sovereignty today, and thus the immunity, the impunity of heads of state, is more than synchronous with, it forms a system with, the limitation of the death penalty in the world. At the same time that it becomes at least conceivable — not excluded, in any case — to bring heads of state or former heads of state or of government or of the army before national or international courts, it is at the same time understood that these heads of state, and all of these leaders, all of these men of power, if they come to be judged, and even for the worst war crimes or crimes against humanity, will not be condemned to death, as they might still have been in 1945. Let us return to Kant once again. You will remember that his discourse marked a break — one I take to be decisive and radical — with all of the discourses, all of the traditional arguments in favor of or against the death penalty that tried to justify the death penalty or its abolition through extrinsic claims (whether or not it was useful, whether or not it was a dissuasive example, whether or not it served societal ends, etc.). The punishment must be, as it were, analytically, intrinsically, internally linked to the offense. Justice and law demand that the crime be punished because it was committed and not with a view to anything else. If one punished the criminal with a view to and in view of something other than his crime, with other goals in mind (security, exemplarity, the greater well-being of society, etc.), one would be treating the criminal, and law, and justice as means with a view to an end, and this would constitute a double error: one would be misrecognizing the essence, in truth the dignity, of the human person, and one would be 6. Immanuel Kant, “The Conflict of the Faculties,” in Religion and Rational Theology, ed. Allen W. Wood, trans. Mary J. Gregor and Robert Anchor, The Cambridge Edition of the Works of Immanuel Kant (Cambridge: Cambridge University Press, 1996), pp. 233– 327.

129

90 ‡ fou rt h se s sion

130

conflating a right to a person with the right to things, a so-called real right (Sachenrecht). Kant distinguishes here — and it is important to mark this distinction, because it is essential to his reasoning — between two levels of personality (Persönlichkeit). There is the innate personality (angeborne Persönlichkeit) that no one can lose (Ak 6: 331, 473). We are all human persons no matter what happens and whatever our wrongdoings or our crimes. The worst criminal is and must remain a person; he must retain the dignity of his innate human person, even if and even when he is condemned, be it to death. What he can lose, however, and this is the other level of personality, is his civil personality (bürgerliche Persönlichkeit). And one must rigorously ensure that any punishment that affects the civil personality of the citizen leaves intact and respects the innate personality, which is and always will be worthy of respect. Indeed it is this innate personality that makes every human being what he or she is, human, and thus a rational subject of law. It is in the name of this innate personality that Kant asserts that the law of punishment (das Strafgesetz) is ein kategorischer Imperativ, a categorical imperative — and not, therefore, a hypothetical imperative that would be subject to the calculations of ends and means, of pathological interest or utility. Although he makes explicit use only of the term “categorical” in this context, we can say, without risk of error, that the other concept that is usually opposed to it elsewhere when it is a matter of the imperative, namely the pathological, is absolutely excluded from penal law. Along with the pathological, in the Kantian sense, are excluded all considerations of conditionality, interests, passions, drives, sensuous affects, feelings, everything that does not belong to pure, rational autonomy. This “pathological” is what Kant calls Pharisaical, you will remember, when it intervenes in the calculation of punishment: [W]oe to him who crawls through the windings [die Schlangenwindungen] of eudaimonism [the search for happiness or well-being] in order to discover something that releases the criminal from punishment or even reduces its amount by the advantage it promises, in accordance with the Pharisaical saying, “It is better for one man to die than for an entire people to perish.” For if justice goes, there is no longer any value in human beings’ living on the earth. (Ak 6: 331– 32, 473)

In other words, life on earth would not be worth the trouble of living if justice disappeared. Justice gives life its price, its value, and thus cannot be reduced to life. You see how this argument not only refutes those who want to oppose a supposedly useless death penalty but also and primarily those who want to justify the death penalty, if only for a single man, in the name

ja n ua ry 31, 2 0 01 ‡ 91

of society’s interests. Kant breaks with the two opposing consequences that might be drawn from the pathological or the extrinsic calculation of interest, that is, from the side of the proponents of the death penalty as well as from the side of its opponents. We saw this. Let us come now to the invocation of talionic law in the service of this categorical imperative. This reference to jus talionis may have seemed shocking to many. It might be shocking indeed if its connotation were that of passionate and thus pathological vengeance or revenge, which is almost always what one associates with it. But, on the contrary, it is in order to avoid this connotation that Kant introduces it, and in this he is faithful to many interpreters of Jewish law who see in talionic law a principle of calculation that avoids escalating vengeance [surenchère]. No more than an eye for an eye, no more than a tooth for a tooth, this is the principle of equity instead of an uncontrolled unleashing of vengeance. There is here a rational calculation made by a third party and not the vengeful rage of a victim who takes the law into his or her own hands in a fit of passion. What does Kant actually say? This is where a hetero-punishment must at least resemble an auto-punishment freely assumed by a rational being, by a human personality worthy of the name. Kant wonders about the modality (Art) and degree (Grad) of punishment that public justice should take as its principle. The answer: equality (Gleichheit), equality such as it is figured, like equity, like equilibrium, by the position of the needle on the scale of justice. But it’s a figure of the unfigurable, just as it’s a calculation of the incalculable. Thus, and I’m quoting here: “whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself [was für unverschuldetes Übel du einem Anderen im Volk zufügst, das thust du dir selbst an]” (Ak 6: 332, 473). Thus two equivalences (these supposed equivalences that Nietzsche, you will remember, found impossible, absurd, scandalous — these supposed equivalences between incomparable things, the crime inflicted and the punishment suffered). In any case, the principle of equality in justice, for Kant, is this double equivalence: On the one hand, between the evil done to the other and therefore felt in oneself, and on the other hand, the equivalence between self and other, between two human persons of equal dignity. On both sides [de part et d’autre], on one side and the other [d’une part et d’autre part], there is a division [ partage] of two indivisible [impartageables] or at least incalculable Xs. This double equivalence that might appear to be calculable and might resemble a vengeance, be it, in fact, a vengeance inflicted upon oneself, in Kant’s mind and in the text, [this double equivalence] actually escapes calculation on two counts: first, it is not the calculation of degrees by an empirical subject, since

131

92 ‡ fou rt h se s sion

132

the equivalence is absolute and without any approximation; on the other hand, because it is rational and pure, anyone, a virtual third between the two parties, could and should be able to determine it; and above all each of the two, both of them, the victim and the guilty party, two human persons are equivalent insofar as they are equally worthy, endowed with human dignity, human personality, that is to say, invested with absolute dignity (Würde) without possible comparison. Dignity (Würde) is not a value or a price that is calculable and open to comparison: more or less costly, more or less valuable. No, the dignity of a person, as end and never as means, is an incomparable absolute. One person is worth another, one person is as worthy as any other. The equivalence between these dignities is not an equality of value (thus, of a comparative or differential, purely quantitative order) but an equality in dignity. The equivalence that grounds this “equality” is thus not on the order of comparable or comparative magnitudes. It’s an equality that all in all remains incalculable in spite of appearances: not quantitative even if, as we will see, quality can be figured as quantity. Or rather this equality is calculable as the equality between two absolute ends, two ends in themselves, two absolutes, each of which exceeds the order of calculation. An incalculable equality between two incalculables. Which means that reciprocity is not the empirical “tit for tat” of vengeance, of the vendetta, of retaliation, but an immediate symmetry between two “without measures,” two measureless or immeasurable dignities. Whence, on the side of the guilty party, the immediate, rational interiorization of the suffering or the evil inflicted upon the victim. This is what makes equality in punishment, in hetero-punishment, resemble an auto-punishment. Kant’s very formulations lend themselves to this: If you insult him, you insult yourself [Beschimpfst du ihn, so beschimpfst du dich selbst; bestiehlst du ihn, so bestiehlst du dich selbst]; if you steal from him, you steal from yourself; if you strike him, you strike yourself [schlägst du ihn, so schlägst du dich selbst]; if you kill him, you kill yourself [tödtest du ihn, so tödtest du dich selbst]. (Ak 6: 332, 473)

133

And after having given these examples, Kant gives their formula, their formalization as talionic law. But he immediately explains it as a qualitative as much as a quantitative law, a qualitative law that lays down the law and imposes it on quantity: But only the law of retribution [Nur das Wiedervergeltungsrecht] (ius talionis) — it being understood, of course, that this is applied by a court (not by your private judgment [thus not by pathological vengeance]) — can specify defi-

ja n ua ry 31, 2 0 01 ‡ 93

nitely [in a definite way, bestimmt] the quality and the quantity of punishment [die Qualität und die Quantität der Strafe]. (Ak 6: 332, 473)

But you are going to see, and as always one must examine (examine means, moreover, to feel the weight of [soupeser], to weigh precisely [ peser], to think [ penser], if you like, which also means to weigh [ peser]: in Latin, the examen is the needle of a scale), one must examine the text very closely, in its letter, in the very place where the question of the letter is posed and where Kant opposes the letter to the spirit. Before getting to this, I think one must make clear that this reference to the categorical imperative and to the innate personality explicitly places the juridical, judicial, and penal dimension of the problem under the authority of pure practical reason, and it makes law a realm that is dependent, in its foundation and in its principle, on ethics. Which thus turns every punishment, and in particular the death penalty, into a juridical obligation because it is first an ethical obligation. This would still have to be confirmed by the meaning, also to be examined, therefore, of reciprocal retribution, of talionic law (“if you kill him, you kill yourself [tödtest du ihn, so tödtest du dich selbst]”). This does not mean, it seems to me, a simple identification between the criminal and the victim; this does not mean that I die when I kill the other through some sort of compassion or pathological fusion (even if this can occur and thus belong to poena naturalis: the suicide I decide for myself or with which I affect myself psychopathologically in order to punish myself, by putting an end to my days in one way or another, literally or not, without going through the courts — as if I alone could decide to commit suicide; to decide and to suicide both call up, moreover, the scission of a cut). No, I think that reciprocal retribution (das Wiedervergeltungsrecht), the right to reciprocal retribution, means that the two — that the victim and murderer couple inasmuch as it forms a couple of persons who are ends in themselves or moral persons — what the one does to the other he does to himself out of respect for the other, according to a logic of substitution that is not empiricopathological. Although he does not speak explicitly of respect in this text, we can and should evoke this problem of respect. In the Critique of Practical Reason, it is inseparable from the categorical imperative, which is also in question here. The concept of respect is a very enigmatic concept in Kant (cf. Critique of Practical Reason, Book One, Chapter III, “On the Incentives of Pure Practical Reason”). Sticking to one minimal feature, let me recall a few paradoxes that are well known but that shouldn’t be forgotten: respect is the effect of

134

94 ‡ fou rt h se s sion

135

the moral law. The law is the cause of respect. Thus, respect (Acht) is first produced by the law; it is produced only by the person indirectly. Of course respect is a feeling (Gefühl) but it is a feeling, says Kant in the Critique of Practical Reason,7 that cannot be compared to any pathological feeling because it is a feeling that is exclusively at the disposal of pure practical reason. And though this feeling is produced by the law (which is its cause) it is directed only to persons, never to things, or to animals, even if we can feel inclination (Neigung) for things or even love (Liebe) for animals (for example, dogs or horses, says Kant); we can also feel fear before the sea or volcanoes or savage beasts, but these feelings (love, inclination, fear), which are close to respect, are not respect, even if we also experience them (inclination, love, fear) with regard to men. Admiration (Bewunderung) is what comes closest to respect, insofar as it too presupposes a rupture of identification and distance. If we read The Critique of Practical Reason very closely on the topic of respect (which one would have to do especially from the point of view of the sacrificial logic that is at work in it, but we don’t have time to go into this here), we would see that, though it is always directed at persons and not at things or animals, respect is directed at persons only indirectly, insofar as they are the example of the moral law. “Therefore respect for the moral law [which is its cause] must be regarded as also a positive though indirect effect of the moral law on feeling . . . as the incentive to compliance with the law” (Ak 5: 79, 204).8 There is a moral interest here, a disinterested interest, as it were, an interest that is pure and independent of the senses, a nonpathological interest, an interest that comes from pure and simple practical reason. Everything we said last year about the interest taken in the death penalty (Marx, Baudelaire, Nietzsche, etc.) should lead back, according to Kant, to this disinterested interest, to this pure interest of practical reason, which is embodied in this strange feeling, this pure moral feeling that is called respect. If one wanted to connect this chapter of the Critique of Practical Reason with what we are talking about, one would have to look, for example, at what Kant says of the boundless esteem for the pure moral law stripped of all advantage, of all empirical or pathological interest, for the pure, practi7. Here and later in the typescript, Derrida uses the abbreviation “CRPr” to refer to the Critique of Practical Reason. We have corrected this abbreviation throughout. 8. Immanuel Kant, Critique of Practical Reason, in Practical Philosophy, ed. and trans. Mary J. Gregor, The Cambridge Edition of the Works of Immanuel Kant (Cambridge: Cambridge University Press, 1996), pp. 133– 271.

ja n ua ry 31, 2 0 01 ‡ 95

cal, and rational interest in moral law whose “voice,” he says, “makes even the boldest evildoer tremble and forces him to hide from its sight [deren Stimme auch den kühnsten Frevler zittern macht und ihn nötigt, sich vor seinem Anblicke zu verbergen]” (Ak 5: 79– 80, 204). It is the idea of personality (as an end in itself ) that awakens respect in us, recalls, or shows us the sublimity (Erhabenheit) of our nature as rational beings, our dignity (Würde). Thus, following the thread of this logic, the death penalty, which is its consequence, becomes inseparable from this sublimity of our nature. This is due to the fact that man belongs to two worlds, and that the personality in us — humans — is freedom with regard to the world of nature and its mechanism. And it is because man belongs to two worlds that he feels within himself respect and reverence (Acht and Verehrung) for what comes from his higher determination, from the most elevated part of himself, the moral law that addresses the freedom within him. Keep in mind the word Verehrung, which means reverence, because in it we find this value of honor, the experience of “honoring” or the gesture of honoring that we will come to again later. Everything is played out around the question of dignity and honor. To give up the death penalty, as we will see, is to give up what constitutes the honor as well as the dignity of man. Notice too that, in the Critique of Practical Reason, Kant alludes to situations in which the man who is ashamed, who blushes before his own conscience, who has not honored the dignity of the human person in himself, well, that man no longer wants to live, he loses the taste for life; it’s as if he were condemning himself to death; he will perhaps no longer wish, says Kant, for “a life in such circumstances [auch vielleicht nicht einmal ein Leben in solchen Umständen wünschen]” (Ak 5: 88, 211). Kant also speaks of the effects of a respect for “something quite different from life [die Wirkung von einer Achtung für etwas ganz anderes als das Leben]” (Ak 5: 88, 211). One has to understand that for Kant, life, the right to life, cannot be an absolute principle. To place life above everything else, to speak of an unconditional right to life, to the ownership of one’s own life, is, in the eyes of Kant, a breach of morality, of personality, of the dignity of moral law and the human person. It is to dishonor life itself because to honor life one must refer it to what, in it, is above it and not to some biological life that would turn the human personality into an animal, a pathological living being that might perhaps deserve to be loved or feared but not respected. Respect for human life is respect for dignity, which is worth more — incomparably, sublimely more — than life itself. In this same chapter of the Critique of Practical Reason, which I would urge you to reread, the figure and the scene of the court emerge in a way that is not fortuitous,

136

137

96 ‡ fou rt h se s sion

138

like the figure of the criminal earlier. To prefer life, the enjoyment of life, at all costs, to put life above everything else, is to taint, to make impure, to contaminate the moral disposition at its source (die moralische Gesinnung in ihrer Quelle verunreinigen) (Ak 5: 88– 89, 211). We asked ourselves at the outset: What then is the price of life? The value of life? It is harder than ever to avoid these questions, as we were saying, when speaking of the death penalty, when it is a matter, as they say, of “paying with one’s life” or “making someone pay with his life.” Is there a price of life that would not be above life itself — and that would not be other than life itself, of another order? But is there a price or a value of life that would be outside of life, that would not be, in another way, still in life, that would not be of the living? Well, Kant’s answer to these questions is that what gives life a price is worth more than life, by definition, and remains alien to life, at least to literal and biological life. What Kant thus calls the majesty of duty (and the word that gets translated a little quickly as majesty, a word that we might also translate as venerability or respectability, is interesting because it joins, it brings together in a single word, honor and dignity, this word is Ehrwürdigkeit), the Ehrwürdigkeit of duty, “has nothing to do with the enjoyment of life [Die Ehrwürdigkeit der Pflicht hat nichts mit Lebensgenuss zu schaffen]; it has its own law and also its own court [sie hat auch ihr eigenthümliches Gericht]” (Ak 5: 89, 211). The well-known frequency with which Kant makes use of the judicial figure of the court has often drawn the accusation from both sides that he confuses law and ethics, some accusing him of reducing law to morality, of ignoring the specificity and autonomy of the juridical; others accusing him, on the contrary, of reducing morality to juridical law out of a kind of legalism (Heidegger and the figure of optics9). Let me now reread the formula about the quality and quantity of punishment in this nonquantitative, nonpathological, and nonvengeful concern for the equality between persons, as well as for that between the crime and the punishment: “But only the law of retribution [Nur das Wiedervergel9. During the session, Derrida adds: “Remember the Heidegger text that we read here on the figure of the court of justice.” This reading, which likely took place during one of the discussion sections, does not appear in the typescript. The Heidegger text to which Derrida refers may be Sein und Zeit: “We take calling as a mode of discourse. Discourse articulates intelligibility. Characterizing conscience as a call is not just giving a ‘picture,’ like the Kantian representation of the conscience as a court of justice.” See Martin Heidegger, Being and Time, trans. John Macquarrie and Edward Robinson (New York: Harper and Row, 1962), ¶ 55, p. 216.

ja n ua ry 31, 2 0 01 ‡ 97

tungsrecht] (ius talionis) — it being understood, of course, that this is applied by a court (not by your private judgment [thus not by pathological vengeance]) — can specify definitely [in a definite way, bestimmt] the quality and the quantity of punishment [die Qualität und die Quantität der Strafe]” (Ak 6: 332, 473). I was saying that we had to examine this text very closely, in its letter, in the very place where the question of the letter is posed and where Kant opposes the letter to the spirit. The examination of the text shows that quality dominates and determines quantity, just as the spirit dominates the letter, and that this domination is ultimately what justifies or even prescribes the death penalty in the name of what is elevated and must be elevated above life. And here again the value of honor plays a crucial role. If, for example, the application of talionic law (of like for like) is not objectively possible, in terms of the letter (nach dem Buchstaben), between people of different social rank (and Kant is always attentive to this contextuality), one can always carry out or apply this law if one takes account of the sensibilities (internal, thus, qualitative) of the privileged classes. Thus, a fine for a verbal injury is in no way equal to the offense itself for a wealthy man (no equivalence, thus) but if one were to impugn his subjective honor, his love of honor (Ehrliebe), if one made the wealthy, privileged, upper-class man apologize publicly or even kiss the hand of the inferior he has insulted, one would find an equivalence of another order, a qualitative equivalence, not a literal equivalence but an equivalence in spirit, an intentional equivalence, if you like. Equivalence, that is, equality, equity is here symbolic, spiritual, internal. What needs to be repaired is honor. Kant puts forward another type of argument to explain both this symbolic, spiritual, qualitative, internal equivalence and the logic of immediate reciprocity, which ensures that, by killing, you kill yourself, or that, by stealing, you steal from yourself: “if you steal from someone, you steal from yourself.” How can one steal from oneself? How can one be unjust toward oneself? If one cannot find an answer to this question, I maintain that one will never understand anything about Kant. I would be tempted to bring this argument, or at least its logical turn, together with that of “On a Supposed Right to Lie from Philanthropy,” which we read closely here a few years back.10 There, Kant shows that the lie ruins the possibility of language itself, and thus of sociality, of the social 10. See Jacques Derrida, Seminar “Perjury and Pardon” (second year, 1998– 99), “Fifth Session, January 27, 1999,” unpublished (forthcoming).

139

98 ‡ fou rt h se s sion

140

contract — and therefore that one cannot find any defensible and coherent maxim for it. If I lie, I ruin, I destroy the possibility of my own language, essentially I no longer speak. I can always lie, but in that case I am not speaking, not to the other. This is not the place to discuss this point. Here, the argument consists in saying that the one who steals puts property in danger, everyone else’s property: therefore his own. He deprives himself of security in any possible property. He therefore applies talionic law to himself, the Wiedervergeltung. He immediately applies it to himself a priori, without even waiting for judgment. I steal from the other, therefore I steal from myself, I steal from myself by that very act. It is always from myself that I steal and it is always myself that I expropriate. This is the economy of autonomy. By stealing, I threaten the property of others, thus I threaten my own property. This substitution is without appeal and without delay. (I add this question in parentheses at some slight distance from Kant’s text: what if, by killing, one were taking from the other the property of his life, one were robbing him of life, of his life, would we say then that one was stealing from oneself by killing oneself? Can we consider life a property? Is one the owner [ propriétaire] of one’s own [ propre] life, as some modern law texts seem to imply when they speak of the right to life or the right to one’s own life, as if it were an inalienable right? What would it mean, outside of murder pure and simple, outside of the giving-death that puts an end to someone’s life, what would it mean “to rob someone of his life”? We can imagine the reproach of one living being to another, in this or that situation, and there would be many, from private situations between two parties, to situations of slavery or socio-political mass exploitation, we can imagine the following accusation: “you are robbing me of my life, you robbed me of my life.” Would this be only a manner of speaking, a figure, a metaphor? This might also come down to saying: you robbed me, period, given that one never robs something, some property without also robbing someone. One always robs someone, thus a living being and thus something like life, or some life [de la vie]. I close this parenthesis.) Kant is pushing it a bit, as it were, in this argument, for he continues and says: the thief no longer has anything since he has attacked universal property. But because he still wants to live, because he still attaches a price to life, well then, others have to feed him. Since the state won’t do it for free, well then, the state will make the thief pay for it (prison, hard labor, slavery). And then comes the leap in Kant’s text, between, on the one hand, all the problems of equality, literal or spiritual, quantitative or qualitative, external

ja n ua ry 31, 2 0 01 ‡ 99

or internal among all sorts of crimes and sanctions in life, where the guilty and their victims are and remain alive, free or in prison, and, on the other hand — here’s the leap — the beyond, the crime that consists in committing murder. In this case, all of the displacements from literal to symbolic (the public apology or the act of kissing the hand of one’s inferior), sentences involving prison or hard labor, which leave the guilty party alive, are no longer possible equivalents for murder. Here’s the leap: If, however, [the criminal] has committed murder he must die [Hat er aber gemordet, so muss er sterben]. Here there is no substitute [Surrogat] that will satisfy justice. There is no common measure [this is the translation of Gleichartigkeit: no equality, no commonality of essence, no analogy, no homogeneity] between life, however wretched it may be [prison, hard labor, etc. see Beccaria11. . .], and death, hence no likeness between the crime and the retribution [reparation: Wiedervergeltung] unless death is judicially carried out upon the wrongdoer, although it must still be freed from any mistreatment [Misshandlung] that could make the humanity [die Menschheit] in the person suffering it [in der leidenden Person] into something abominable. (Ak 6: 333, 474)

You will already notice the rigor of this limit concerning the degradation of humanity: it would be enough to demonstrate that this or any execution degraded the humanity of the person suffering it (the one condemned to death) for Kant, in the logic he puts forward, to rule the execution illegitimate in its very principle. And thus to exclude it. One could thus, while still remaining Kantian, oppose, in fact, every execution by claiming, with good reason, that any execution infringes on the dignity of the human person, and thus on the humanity in the person of the condemned. The passage I just read leads, by way of a development about which I will say a few words, to a reiteration of sorts, which, this time, in a kind of provisional conclusion following several probing examples, links the principle of the death penalty to what Kant calls the very idea of judicial authority according to universal laws grounded a priori. In other words, even if no death sentence were ever handed down or carried out — for example, because it would always involve a degradation, a disrespectful mistreatment of the human person and of humanity — well, one would still have to maintain the principle of the death penalty out of respect for the very idea of a judicial authority that is grounded in a priori universal laws: 11. During the session, Derrida remarks: “Beccaria is in the background here, Beccaria who said that it was necessary to replace the death penalty with hard labor.”

141

100 ‡ fou rt h se s sion

142

143

Accordingly, every murderer — anyone who commits murder, orders it, or is an accomplice in it [this is extraordinary and could lead very far: one would never know where to stop] — must suffer death [so viele müssen auch den Tod leiden]; this is what justice, as the idea of judicial authority, wills in accordance with universal laws that are grounded a priori [so will es die Gerechtigkeit als Idee der richterlichen Gewalt nach allgemeinen, a priori begründeten Gesetzen]. (Ak 6: 334, 475).

Before leaving this text behind, at least provisionally — and we will take up this thread again one day when we closely examine Kant’s critique of Beccaria — I would like merely to highlight two themes that have in common an excess, a distance, or a transcendence, namely the excess, the distance, or the transcendence of the idea of judicial authority (as founded on a priori universal laws and inseparable from at least the possibility of the death penalty) in relation to life, to the life of the community or to individual life. That justice gives life its value [le prix], its incommensurable dignity, that it is thus worth more than life, and that this is indeed marked by the possibility of the death penalty as what belongs to the honor of life, this is what we are given to read — if we read over Kant’s shoulder — in the examples of social community, of collective life, or in the examples of individuals, of an individual life. 1. In the first place, then, social or collective life. Kant imagines the following hypothesis: it’s a slightly loony fiction but, much like the example of the “right to lie” (where one must decide whether to hand over one’s guest to the bandits in order not to lie), it has a revelatory function, like an experimental touchstone. The fiction is the following. A civil society must dissolve itself with the consent of all of its members, for example, an island whose inhabitants have decided to separate and disperse throughout the world. This community would then have no interest in protecting itself or calculating for its future, since — for it — it would be the end of history and the end of its life as a society. Well, in spite of this, Kant dares to say, at the last moment, before dispersing, the inhabitants must decide that the last murderer remaining in prison on the island must first be executed12 (a decision thus with no empirical or practical purpose, no utility for the future, no exemplary, dissuasive, or reparative function for the social body). The last murderer remaining in prison would have to be executed so that the blood shed by this murderer would not cling to the people for having failed to impose this punishment and having thus made itself the accomplice to a violation of public justice. In this case, public justice — by means of the final 12. In the typescript, “will be first to be executed.”

ja n ua ry 31, 2 0 01 ‡ 101

execution — will have been rendered with no goal other than itself, with no aim other than its conformity to this idea of justice, this idea of judicial authority in accordance with universal laws that are grounded a priori: justice for justice’s sake. This is the social, collective example of a justice that rises above the interest of life. 2. Second example, at the level of the individual. Since talionic law does not involve a quantitative and objective equality but rather a correspondence or qualitative proportion with regard to the inner wickedness of criminals (mit der inneren Bösartigkeit der Verbrecher) (even in cases where the crime is not a murder but a crime against the state that can be erased only by death), Kant chooses the following example. In the uprising that took place in Scotland in 1745– 46, some believed they were fulfilling their duty to the House of Stuart, while others were driven by private interest. Suppose, Kant says — and this is another somewhat extravagant fiction — that the court had given the accused the choice between death and forced labor. Well, says Kant, I say (so sage ich): the man of honor chooses death (der ehrliche Mann wählt den Tod), whereas the scoundrel (der Schelm) chooses forced labor in the mines. [F]or the former [the man of honor] is acquainted with something that he values even more highly than life, namely honor [Denn der erstere kennt etwas, was er noch höher schätzt, als selbst das Leben: nämlich die Ehre], while the second considers it better to live covered in shame than not to live at all [nicht zu sein]. (Ak 6: 334, 475, modified)

The scoundrel prefers to be rather than not to be, to live rather than not to live. The man of honor prefers not to be rather than to be in dishonor. And so, Kant infers, the first, the man of honor, is less deserving of punishment (weniger strafbar) than the second. And Kant then makes the extraordinary calculation that follows: if both are sentenced to death, both will be punished proportionately, for the man of honor (less deserving of punishment) will be punished more leniently given his sensibilities, namely, his preference for death (he will thus be punished less than the other who will be punished more, which he deserves, since he is more deserving of punishment and has less honor and is more afraid of death). Thus the death penalty will be just and proportionate in both cases. On the other hand, if both are sentenced to forced labor, it will be the opposite; things would no longer be well proportioned. Indeed the man of honor, who is less deserving of punishment, would be punished more severely, since he didn’t want forced labor; and the other, who wanted

144

102 ‡ fou rt h se s sion

forced labor, would be less severely punished though he is more deserving of punishment!

145

So everything seems to be organized and disorganized, oriented and disoriented, around the interpretation of talionic law, of what in English is called “retaliation” (we don’t have an analogous word in French, and the English word is most often, like talionic law in general, interpreted in the sense of vengeance, revenge, or reprisal, which is exactly what Kant does not do when he speaks of Gleichheit, of Wiedervergeltung, or even of ius talionis). Everything is played out in the half-light of the relation between the quantitative and the qualitative, the calculable and the incalculable. And what Kant seems to prescribe, or what Kant seems to describe as to what rights, justice, and law should prescribe, is like a calculation of the incalculable, a rational and impersonal calculation of what eludes calculation, namely, the qualitative, the spiritual, the symbolic, everything that makes the human person an end and not a means: dignity (Würde) or honor (Ehre) or respect (Acht) that have no price. One would have to write a history of talionic law, of what in it is a cross between the Roman and the Latin and the biblical. The Roman or the Latin — since the word talio, which means talion, a punishment of like for like [la peine du talion] (Cicero refers to it in De legibus), comes from talis (tel [such]), a demonstrative of quality (from tel [such] one moves to quel [which]: he has committed such a crime, he will be punished in such a way or in an equal way), that the enigmatic passage from quality to quantity under the schema of equality or equity is already inscribed in the word. But in general, despite the Latin or Roman origin of the expression, one usually refers to the biblical example (“an eye for an eye, a tooth for a tooth”) in order to give concrete content to, and a philosophical interpretation of, talionic law. The main passage in the Bible on this subject can be found, as you know, in Leviticus 24:15– 22 but it’s already in the passage from Exodus that we analyzed last year (Exodus 21:23– 25) and in a more condensed formulation in Deuteronomy 19:21 the last lines of which I will read: [S]o shalt thou put the evil away from among you. And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you. And thine eye shall not pity; but life shall go for life [Âme pour âme], eye for eye, tooth for tooth, hand for hand, foot for foot. (19:19– 21)13 13. [Translator’s Note]: The King James Version has been substituted here for the French translation in Dhorme. For the French translation, see La Bible. Ancien Testament, trans. Édouard Dhorme (Paris: Gallimard, Bibliothèque de la Pléiade, 1956).

ja n ua ry 31, 2 0 01 ‡ 103

(Comment: deterrent exemplarity.)14 “Âme pour âme [soul for soul]” doubtless does not mean something spiritual (in opposition to bodily) and qualitative instead of somatic and physical, but “life for life,” the soul being the psychical or pneumatic principle of life. Moreover, Chouraqui translates this as “being for being [être pour être].” So it is indeed about killing the murderer: a life for a life, an existence for an existence. “Âme [soul]” means “life” since in the most elaborate text on this subject in Leviticus 24:15– 25, one even speaks of the âme of the beast that must be restored if one strikes a beast to death.15 (Read and Comment Leviticus 24:15– 25): Whosoever curseth his God shall bear his sin. 16 And he that blasphemeth the name of the LORD, he shall surely be put to death, and all the congregation shall certainly stone him: as well the stranger, as he that is born in the land, when he blasphemeth the name of the LORD, shall be put to death. 17 And he that killeth any man shall surely be put to death. 18 And he that killeth a beast shall make it good; beast for beast [âme pour âme]. 19 And if a man cause a blemish in his neighbor; as he hath done, so shall it be done to him; 20 Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again. 21 And he that killeth a beast, he shall restore it: and he that killeth a man, he shall be put to death. 22 Ye shall have one manner of law, as well for the stranger, as for one of your own country: for I am the LORD your God. 23 And Moses spake to the children of Israel, that they should bring forth him that had cursed out of the camp, and stone him with stones. And the children of Israel did as the LORD commanded Moses.16

Like more than one Jewish thinker, interpreter, or theologian, Lévinas tries, in a short text (three pages) titled “An Eye for an Eye” (in Difficult Freedom17), to dissociate these passages from their usual interpretation (ven14. Leviticus 24: 15– 25, in Ibid. During the session, Derrida adds the following remark: “So you see, the argument is still one of deterrence: the others shall fear and shall not commit any more such acts. It’s a logic of deterrence.” 15. La Bible, trans. André Chouraqui (Paris: Desclée de Brouwer, 1985). 16. During the session, Derrida makes no further comment and interrupts himself after verse 22. 17. Emmanuel Lévinas, “La loi du talion,” Difficile liberté (Paris: Albin Michel, 1963), pp. 177– 79; “An Eye for an Eye,” Difficult Freedom, trans. Sean Hand (Baltimore: Athlone Press, 1990), pp. 146– 48.

146

104 ‡ fou rt h se s sion

147

geance, hatred, retaliation, etc.). He sees in them, on the contrary, the emergence of “one law for all,” a “message of universalism” (146) and not a celebration of a vengeful cruelty of non-Jewish or pagan origin, one that would also come from Machiavelli or Nietzsche. Lévinas reminds us that the rabbis and the Talmud have never interpreted these texts according to their vengeful letter but always in the spirit of the Bible, “a spirit of gentleness” (148, modified), he says of the Bible (without this being a critique, it has never struck me that the Bible’s spirit of gentleness is its more striking feature,18 but let’s leave it at that). The reference to the spirit (as opposed to the letter) comes up again and again in this text in a way that is a little surprising but rather Kantian in the end; perhaps a bit Christian, as always in Kant, and often in Lévinas. But there is also the axiomatic, less Kantian this time, of a practical and thus useful wisdom in Lévinas’s argument: talionic law would enable us to stop the violence and put an end to the escalation of what Lévinas calls a “chain reaction” (147). In whatever way one interprets it, this Judaic law of the talion was passed on, so it seems, to Islam. And, in a certain way, the Qur’an literally attests to it. For example in sura 2 (The Cow) on line 178, one reads the following, the name for talion, qiçaç (I don’t know how to pronounce this word I found in a note in one of my editions of the Qur’an,19 which says that the word occurs three times in the Qur’an (2:178 and 2:194, 5:45) but that the idea of it is expressed five other times): 2:178: O believers, ordained for you is retribution [la loi du talion] for the murdered, (whether) a free man (is guilty) of (the muder of ) a free man, or a slave of a slave, or a woman of a woman. 2:179: In retribution [le talion] there is life (and preservation). O men of sense, you may haply take heed for yourselves. 2:194: (Fighting during) the holy month (if the sanctity) of the holy month (is violated) is (just) retribution [la loi du talion].

But sura 5:45 (The Feast) is even more interesting, for two reasons. On the one hand, it refers to the Torah: 18. In the typescript: “as by its feature.” 19. Jacques Berque, Le Coran, Essai de traduction (Paris: Albin Michel, 1995), note, p. 51; Al-Qur’an, trans. Ahmed Ali (Princeton, NJ: Princeton University Press, 2001).

ja n ua ry 31, 2 0 01 ‡ 105

5:45 And there (in the Torah) We had ordained for them a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds retribution [la loi du talion], though he who forgoes [abandonnera] it out of charity, atones for his sins.

Thus on the other hand, this last verse seems to suggest that talion is not the last word and seems to issue a higher command. To rise above talion, to forgo one’s right (of reprisal) is to be forgiven. To forgo [abandonner] is to be forgiven [ pardonner]. Now this seems to incorporate the Christian moment into Qur’anic law, a Christian moment that is characterized, if we believe Matthew, by the critique and rejection of talion. Things are equally complicated in all three religions: in the Jewish, because talion in Leviticus is presented as a just interruption of personal vengeance, and because, in spite of what Matthew says, which I will read, Jesus does not condemn talion, any more than he does the other prescriptions of the law. He asks that we rise above the law and the courts. Here in any case is what Matthew says in 5:38– 43: 38 Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: 39 But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. 43 Ye have heard that it hath been said, Thou shalt love thy neighbor, and hate thine enemy. 44 But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you. [Hegel, Schmitt,20 etc.]

Well, it’s to this talionic law that Freud, through Reik’s pen, also seems to refer when he responds, for the only time in his life, and indirectly at that, to a question on the death penalty. And he responds by connecting the death penalty to the oldest origins of humanity, before the Bible and before Rome. Before taking up this singular text, singular in its circumstance, singular in its delegation of signature, I will read this passage from Reik who is writing in the name of Freud and who begins by responding to the third of three questions addressed in 1926 to well-known personalities including Thomas Mann and Freud by Emile Desenheimer, judge of a German Superior Pro20. During the session. Derrida adds: “There is where I would have turned to Hegel, Schmitt, to comment on these texts.”

148

106 ‡ fou rt h se s sion

149

vincial Court. The first question concerned punishment in general; the second asked whether they had already taken a public stance on the death penalty; and the third, a more elaborate question, is formulated in this way: As you know, capital punishment can be evaluated from the points of view of law, ethics, religion, politics, sociology, medicine, and economics. Would you be kind enough to express yourself concerning capital punishment from these points of view or from one of them and then to state by way of résumé whether you are an adherent or an opponent of capital punishment? (471)

We will look at the context of the response later, the status of the text and its signature, its strange argumentative logic — which in fact hesitates between a perspective that is descriptive and pathological (in the Kantian and in the most general sense) and a point of view that is ethical or prescriptive or normative, the point of view of responsibility, which is harder to reduce to the order of the pathological, in both senses of the term, to the order of the constative or the descriptive. For the moment I will jump somewhat precipitately into the first paragraph of the Freud-Reik response to this third question, precisely because it makes reference to talionic law. The beginning, the premise of the response, is already very strange in its letter. One doesn’t know: 1. Whether the reference to the Bible and “thou shalt not kill” is historical or not, therefore universal (Reik speaks of the “universal human prohibition: Thou shalt not kill” — what does he mean by universal?) and (one doesn’t know): 2. Whether from this “thou shalt not kill” one should infer the prohibition of murder in general (the prohibition of crime that should perhaps be suppressed or avenged by a lawful death penalty) or whether from this “thou shalt not kill” one should infer the prohibition of the death penalty, and not only of murder. A question that is all the more urgent since the preceding response, from which I will read, clearly lets it be understood that the death penalty is a disavowed murder. Here is the paragraph: 150

Crime was originally violation of a taboo. The law of taboo, the oldest of the world, was based upon the principle of the talion: an eye for an eye, a tooth for a tooth. He who kills shall be killed, or in the version of paragraph 21 of the official outline of a general German criminal code of 1925 [this is the context of the survey]: he who kills another person will be punished by death. Very intensive and untamed impulses of mankind, vengefulness and demand for retaliation, have found their expression and their instinctual gratification in that primitive law. As Freud remarks, punishment not infrequently offers, to those who execute it and who represent the commu-

ja n ua ry 31, 2 0 01 ‡ 107

nity, the opportunity to commit, on their part, the same crime or evil deed under the justification of exacting penance. Only the fact that mankind shrinks from facing facts, from acknowledging the facts of unconscious emotional life, delays the victory of the concept of capital punishment as murder sanctioned by law. My attitude concerning the problem of capital punishment originates, therefore, not in humanitarian reasons, but in the appreciation of the psychological necessity of the universal human prohibition: thou shalt not kill. (473)

(Comment in conclusion [context, postwar Germany, Benjamin and the monopoly of violence, etc.])21

21. During the session, Derrida adds the following comment in conclusion: “We will analyze this strange argument next time. Obviously one must take into account the context of postwar Germany; this is the context in which Benjamin, in 1921, writes his ‘Kritik der Gewalt,’ and in which Schmitt elaborates the texts he elaborated [sic], texts on the monopolization of violence, all of this must be put in the context of the period.” Attached to the typescript used to teach the seminar in the United States are several newspaper clippings: Sara Rimer, “Sounds of the Georgia Death Will Be Heard on Public Radio,” New York Times, May 2, 2001; Frank Rich, “It’s Closure Mongering Time,” New York Times, April 28, 2001; Sara Rimer, “A Father Feels the Weight of His Son’s Sins,” New York Times, April 29, 2001. One also finds the English translation of a Russian website (http://mignews.ru /news/analitic /cis/soljen3004.html): “Russian writer Alexander Solzhenitsyn reanimated the discussion about the necessity to return to the death penalty in Russia.”

fifth session

February 7, 2001 h

152

Of course we are not going to talk about something like “The Sex Life of Immanuel Kant.” Rather we are going to talk about what Botul’s little book, titled “The Sex Life of Immanuel Kant,”1 doesn’t breathe a word about, it seems to me — and which also involves sexual life, sexual perversion according to Kant. This little book does not discuss Kant’s Doctrine of Right, nor does it discuss the relations between sexual perversion and criminal law. And we — we for our part — are going to speak of Kant’s remorse on this topic: rape, pederasty, homosexuality. What does talionic law, that is, the law of reciprocity, command us to do with perverse crimes, the perverse crimes of rape, bestiality, and pederasty, according to Kant? What is the retaliation in these cases? Should one rape the rapist? And even if one said “yes, one must rape the rapist,” it is hard to see what would correspond to such madness in the case of bestiality or pederasty. This is Kant’s remorse. What remorse? His remorse was not spontaneous. It was elicited by objections to his Doctrine of Right, in particular those published by a certain Bouterwek in the Göttingen Journal. Kant responds to these objections in the 1798 edition of the Doctrine of Right; and here is the expression of his remorse: he responds to them in an appendix. He responds in the form of an appendix, of a supplement that comes to extend the book in the form of an appendix. In this appendix, in this addition — which we will take up today in conclusion after a long detour that has already been initiated by way of Freud and Reik — Kant declares, without becoming disheartened and without holding back or averting his gaze [sans avoir froid aux yeux], that the punishment for rape and pederasty should be castration (Kas1. Jean-Baptiste Botul, La vie sexuelle d’Emmanuel Kant (Paris: Mille et Une Nuits, 2000). The book is in fact a hoax.

fe brua ry 7, 2 0 01 ‡ 109

tration) (like that, he says, of black or white eunuchs [Verschnittenen] in a seraglio — clean? without suffering? without degradation?), whereas the punishment for bestiality should be “expulsion from civil society [aus der bürgerlichen Gesellschaft, from bourgeois society]” (Ak 6: 363, 498). You will note that in both cases (the castration of rapists and pederasts, the expulsion of zoophiles), the prescribed punishment according to jus talionis as interpreted by Kant is a cutting [coupure], an incision, the cut [coupe] of a cutting [coupure]. It’s the same stroke [coup], a stroke that cuts [coupe] the criminal. It’s too obvious in castration, but expulsion, the exclusion from bourgeois society, is also a severing, an exclusion, an excision that cuts off [coupe] in one stroke [coup] the citizen from civil society. We will return to all of this and we will reconstitute after a long detour Kant’s interesting argumentation, but do not rush to find this cutting retaliation so barbaric or so archaic. Since we are preparing to talk about psychoanalysis, let us not forget that castration occupies a theoretical place of predilection, one that is, in its generality, almost uncircumventable, so to speak. And let us also not forget that in one form or another castration is still considered a current treatment in the punishment of sexual crimes (rapes, repeat pedophilia, etc.), and can take the form of chemical suppressants or permanent exclusion from civil society. As for homosexuality, which Freud also held to be a perversion, you know that it is still outlawed by certain psychoanalytic institutions where it is impossible to become an analyst if one is open about one’s homosexuality. We will come back to all of this. Last week, following our discussion of talionic law, we began to address, we had just begun to do so, in a few preliminary suggestions, at the end of the session, what one might call “the psychoanalytic question of the death penalty.” How might we attempt to justify the prudence of this expression, “the psychoanalytic question of the death penalty”? For it is not a matter of seeking the answer to the question of the death penalty in a doctrine or in a body of knowledge, or even in a corpus, called or named Psychoanalysis with a capital P [La psychanalyse],2 whether Freudian or post-Freudian, a theoretical, doctrinal, or dogmatic answer to the question of the death penalty that would already be contained in this corpus, this knowledge, or this doctrine. Rather it is a matter, as you have already guessed, of questioning psychoanalysis, or those texts that avail themselves of psychoanalysis, beginning of course with Freud, in order to put to them the question of the death 2. In the following passage, Derrida sometimes writes “la psychanalyse” and at other times “La psychanalyse,” sometimes in italics and sometimes not.

153

110 ‡ fif t h se s sion

154

penalty and to see in what way, through this test [épreuve], through the test of this question, the implicit or explicit precepts of psychoanalysis do or do not affect, are or are not affected, by what is called the “death penalty.” The hypothesis is that of a double problematization: a problematization of the traditional way of posing the question of The death penalty (if such a thing exists in the singular, and we have voiced our doubts about this more than once) and the problematization of Psychoanalysis itself (if such a thing exists in the singular, and we have voiced our doubts about this more than once). This hypothesis, this double problematization, obviously proceeds through the themes that have occupied us up to this point (the exception, sovereignty, cruelty, but also the questions “what is an act? what is an age? what is a desire?” so many questions at the center of which Psychoanalysis at least seems to have introduced some sort of mutation). All of these themes are constitutive — I think we have seen this confirmed — of law, of the discourse about law, of the legal discourse about law, and the philosophy of law that ground the death penalty, as much on the side of its proponents as on the side of its opponents. And at the heart of this law, in a constitutive and apparently irreducible, indestructible way, we find what gives meaning to the concepts of offense, crime, punishment, and in particular the death penalty, namely, responsibility, guilt, in other words the freedom and consciousness of the subject, of the subject as “I,” as a clear and unambiguous relation to its intention, to the intentionality of its acts, to its conscious will, to its power over itself, to the “I can,” to the interested or disinterested interest, to moral law, etc. It is not necessary to recall that Psychoanalysis with a capital P, and this is the least one can say, threatens the credit that we give, that everyday consciousness and philosophy grant, these concepts. That does not mean that we should, in turn, blindly accredit Psychoanalysis and accept with equal confidence the discourse — profoundly heterogeneous, moreover — that it substitutes for the previous one. But it is certain that the element of presumed self-evidence, the elementary axiomatic and semantics to which we entrust our discourse, receive from even the smallest recognition of what comes from Psychoanalysis a shock that immediately threatens to ruin or discredit it. For example, all the self-evidence in whose element I tried, last week, to situate the question of the love of life. Imagine what would happen to the statements, which I will repeat, if we no longer know who the subject is to which I am referring, whether it is a conscious or unconscious “I,” whether or not it is a divided subject, a free subject, whether or not it is subject to the law of a superego, vulnerable or not to a death drive, etc. When I said for example: “Loving-living. Loving: living. And [that] when we say that a living being loves life, this statement is not

fe brua ry 7, 2 0 01 ‡ 111

the same as saying X loves something called life, a thing, a thing other than itself that is called life.” Well then, Psychoanalysis can ask me: “But who or what are you talking about? What right do you have to assume a selfidentity for X? And what you call X’s love of life? And what if this love of life were also a hatred of life? Can it not at once love and not love what you call life? And what is life?” The same questions, the same radical doubts, may be inspired by what we think we know of Psychoanalysis when, as I was saying, we say “a living being loves life” (and only a living being can in fact love life, it seems; a dead being cannot), we are saying of this living being that it loves its life, its “being in life” or “life loves the life of life.” Life loves itself in the living being, life loves itself, period, it loves to live, it loves itself in living for life [elle s’aime à vivre]. This love is its relation to itself, its self-intimacy with itself, its inevitable self-intimacy with itself, before any other supposed interiority. The “I wish I hadn’t been born” (a curse for which we have many examples and to which we have already referred) either makes no sense, I was saying, or has only a secondary or a second, delayed, derived sense with regard to this intimate love of life that is attached to itself for itself. Like the radical impossibility of suicide if not the suicide effect. When one loves intimately, if one loves life (but can one love in general without loving life?), for whoever loves life, life is worth the peine [trouble, pain] of being lived. What does “the peine of being lived” mean here? What peine are we talking about here? If there is a peine to pay to live life, it is because life has something like a price. What price? Is it a price that is comparable to any other on a scale of prices? Or is it another kind of price? What then is the price of life? What gives life value? It is harder than ever to avoid these questions when speaking of the death penalty, that is, when one must, as they say, “pay with one’s life” or “make someone pay with his life.” Is there a price of life that would not be above life itself — and that therefore would not be other than life itself, of another order? All of these questions we asked last week seemed to assume a self-identity of life and a self-identity of the living being that Psychoanalysis can constantly challenge. But maybe psychoanalysis will have turned everything back on us, so that my open questions or my opening questions last week would already have been marked by psychoanalysis: is there a price or a value of life that is outside of life, that is not, in another way, still in life, some life, that is not still and always of the living? Let’s keep these questions waiting, we were saying. And when I added “Besides, there is every reason to think that they will never be done waiting and they lose nothing by waiting, just wait and

155

156

112 ‡ fif t h se s sion

see. The order has been intimated that we wait. There is here a strange intimation.” Well then, this question of intimation, which is not only the question of the law that charges, summons, convenes in public and outside, but also the question that interiorizes and introjects, this question of intimation implicitly calls for a psychoanalytic elaboration or re-elaboration. Let me stop my re-citation here in order to mark the fact that the very concept and word “intimation,” whose meaning I proposed both to restore and to strain, is exposed in its very depths to psychoanalytic radiation (even in a weakened form) from the moment that it signifies both the order given, the law, and the relation to the intimate, indeed to interiorization, introjection, incorporation. Of the law itself, of the law’s unconscious. With this reminder given and this momentum regained, I am not going to go back over what we already said of talionic law in Kant, in the Bible (Old and New Testaments) and the Koran, or in the Reik-Freud text. I’m going to pick up this latter exactly at the point where we left off last time. You will remember there were three questions in the survey I mentioned (these questions were addressed in 1926 to several well-known personalities, including Thomas Mann and Freud, by Emile Desenheimer, judge of a German Superior Provincial Court). The first of these questions concerned punishment in general; the second, an eventual public stance on the subject the death penalty; the third, more elaborate question was formulated in this way: As you know, capital punishment can be evaluated from the points of view of law, ethics, religion, politics, sociology, medicine, and economics. Would you be kind enough to express yourself concerning capital punishment from these points of view or from one of them and then to state by way of résumé whether you are an adherent or an opponent of capital punishment? (471)

157

Why didn’t Freud himself answer? I don’t know. We can take this fact as accidental and insignificant. Maybe Freud was just too busy, beleaguered by urgent matters and other such things. But whatever hypotheses we propose on this subject, it seems to me that, in our ignorance, and in spite of our ignorance of the facts and the circumstances, we can be assured, a priori in a certain way, of a few certainties. Which ones? 1. Freud did not judge the subject to be serious or difficult enough to answer in person. He thought that on the basis of what he had already written and which was known, in particular by Reik, the consequences could be drawn without risk of misunderstanding, consequences that anyone, beginning with him, could have drawn. 2. He thought that the “position” to take was a logical consequence of a

fe brua ry 7, 2 0 01 ‡ 113

body of knowledge, of psychoanalytic theses, of theoretical theses, of theorems whose expression was unambiguous and clear enough that the signature of the writing would not confuse the message. 3. He also trusted Reik to represent him without betraying him. That means that this substitution of signature already belongs to a very precise area of law. Reik is authorized by Freud to sign for Freud, and for a Freud who is himself the proper name of a subject who is recognized as having a very remarkable authority. Freud is not just anyone; he is the master or the father supposed to know what the Science [La science] he supposedly founded requires one to think on the subject of the death penalty. The representation of Freud by Reik, this delegation of power, is already legitimated by a complex set of symbolic and juridical processes that raise serious psychoanalytic questions. Not only questions of law, concerning law, but questions about the history of the psychoanalytic movement and about the respective roles played by Freud and his first disciples in it. 4. Reik, however, and Freud knew it, was not only a kind of secretary spokesperson, the transparent medium of the master’s thinking. Neither his delegate nor his proxy. For several reasons. Freud had long admired and liked Reik. He made sure he received an honorable distinction in the competition founded by Freud himself (this was awarded to Reik for nonmedical research, the prize for medical work having been awarded to Simmel and Abraham). Freud had also written a preface six years before to Reik’s book Probleme der Religionspsychologie (1919). And in the preface, which repeats arguments from Totem and Taboo, Freud put in place the fundamental scene of totemism to which Reik refers, in his very first line of the survey where, you will remember, Reik begins by saying, in response to the question on the death penalty: Crime was originally violation of a taboo. The law of taboo, the oldest of the world, was based upon the principle of the talion. (473)

Now, what did Freud say in his preface to Reik’s book seven years earlier? This, for example, which he calls an “unexpected conclusion”: God the Father once walked upon earth in bodily form and exercised his sovereignty as chieftain of the primal horde. (SE 17: 262)

[Before going any further in my quotation, I note the following, in brackets: so sovereignty is theological here but also a primitive, theo-anthropomorphic form of paternal power, the father being the primitive sovereign, the absolute primitive power, whether he is called God or, in the anthropomorphic figure that he gives himself, human father, the name father being in

158

114 ‡ fif t h se s sion

159

160

some way more primitive in this primal horde than any possible primitive distinction between man and God. Before man and God, before God and before man, there is, there will have been, there was the Father. It hardly matters, Father is God or Man, he is father before being God or Man (a secondary difference, in the end), and the sovereignty and the absolute power that the Father enjoys, that he is assumed to enjoy, a sovereignty without which we could understand nothing of the death penalty, of murder and the death penalty, of talionic law, this sovereignty implies not only that we go back to the Father, that is to say, earlier than and before the God/Man distinction but also to the Exception of the Father (a cruel exception since the father has all the powers of life and death, all the women, etc.) until the inevitable murder of the Father — by the Father, I would say, by a suicidal Father (Freud doesn’t say this, at least not like this, and this is an important difference that I connect with what we were saying of the becoming autopunishment or suicide of hetero-punishment), the murder of the Father by this multiple of the Father that this other virtual father is (what is an act? we were asking, what is a father in actuality {en acte}? or a son in actuality? or a virtual father? or a virtual son?), the murder of the Father, then, I was saying, by this multiple of the Father that this other virtual father is, who is a son who, as a multiple of the Father, a disseminated Father, can be, in actuality or virtually, only a multiple son, sons, thus brothers . . . But before closing this parenthesis or these brackets inside the interrupted Freud quote, let me ask you this: is sovereignty in general, the position of absolute power, as power over life and death, of the “I can watch over, give or suspend, give or take” the life of the other just as “I can with the law, that is, just as I can give, make or suspend the law,” is this form of exceptional sovereignty, which is a force of sovereignty, not an earlier form (older, as it were, more archaic, in fact the archaic itself, the arkhe¯, commencement and commandment), absolute anteriority, absolute antiquity, the absolute archaicity that precedes both life and death, and law, and above all the oppositional distinctions between legal and illegal, nature and law, nature and right, physis and nomos, thus also between poena naturalis and poena forensis, but also, like the Father himself, between God and man (we have just heard Freud on this subject3), and I would add between God, Man, and the Animal; and the place of the totem in the Freudian etiology of democratic morality, of equality or equity following from the murder of the primitive Father (Urvater) by the brothers, his sons, this place and this figure of the animal totem confirms that the primitive Father is at once, once and for all, and 3. The closing parenthesis has been added by the editors.

fe brua ry 7, 2 0 01 ‡ 115

is neither nor, neither God, nor Man, nor Beast {Bête}. The Father is at once and he is neither God-Man-Beast. The triple question of criminal perversions (rape, homosexuality, bestiality) is not far off. The Father is the Living Being in general (God-Man-Beast) but this Living Being in general, once it is above the Life/Death distinction, is doomed to death, to be killed by the very thing to which, to whom, it gives life; it is God-Man-Animal LivingDead. Good and Evil. Origin of Good and Evil, therefore before the opposition of Good and Evil. All of this, if I may venture, in one and the same stroke {coup}. Once and for all. One and the same stroke {coup}. For this entire seminar on the death penalty could come down to a single question, in one and the same stroke {coup}: what is a strike {coup} and what is one and the same stroke {coup}? One and the same stroke {coup} struck? Putting to death and execution, like murder, are strokes every time. And since the question of the stroke rejoins the matrix of the questions we were asking last time about interest in general and what is or is not worth the trouble { peine} of being lived, the question of the coup (c.o.u.p.) is also the question of price, of cost, of coût (c.o.û.t.), of the trouble { peine} it costs, the question of the cut {coup} that cuts {coupe}, just as it is — in the age of the scaffold, the ax, and the guillotine — the question of the neck {cou} that one cuts {coupe}. When the neck {cou} is cut {coupé}, culpability {coulpe} is never far away. Let me close these brackets and pick up my quotation of Freud’s preface to Reik’s book, Probleme der Religionspsychologie (1919), where I left off:] God the Father once walked upon earth in bodily form and exercised his sovereignty as chieftain of the primal horde until his sons united to slay him. It emerges further that this crime of liberation [thus a first revolution of subjects oppressed by the first tyrant, by the primitive Father or God who is, as almighty sovereign, both good and bad; a few years later, moreover, in 1923, in “A Seventeenth-Century Demonological Neurosis,” Freud will put forward what at least is a hypothesis that God and the Devil are but one, originally a single figure, and that the partition, the cut {coupure} between the two came only later to put an end to this ambivalence] and the reactions to it have as their result the appearance of the first social ties, the basic moral restrictions . . . [the first of the aforementioned “moral restrictions” indeed had to be the prohibition on murder, the “thou shalt not kill” about which one can then say that it prohibits one from repeating the origin of morality, namely, the putting to death of the sovereign, the murder of the Father by the sons-brothers; the origin of morality can only be immoral or rather amoral, just as the origin of law can only be a-legal, just as any grounding can only be “without ground,” that is to say, abyssal, unjustifiable, like paternity itself or like the murder of the father] . . . and the reactions to it have as their

161

116 ‡ fif t h se s sion

result the appearance of the first social ties, the basic moral restrictions and the oldest form of religion, totemism. But the later religions too have the same content, and on the one hand they are concerned with obliterating the traces of that crime or with expiating it by bringing forward other solutions of the struggle between the father and sons, while on the other hand they cannot avoid repeating once more the elimination of the father. (SE 17: 262)4

162

Let us examine this passage more closely, which summarizes a wellknown discourse that has been cited and commented on a thousand times. (I will not return to what I ventured to say about it, in particular in “Before the Law,”5 especially about the apparently sophistic logic and the apparently fictional status of the Freudian argument that assumes what it claims to deduce, namely the shame of the sons as the origin of morality and equity. Morality had to have been there already for the sons to feel shame after the murder of their father, a shame about which Freud nonetheless says that it engenders morality). What we have just read, if we listen to it carefully, can be heard according to more than one register. 1. By saying “totemism. But the later religions too have the same content, and on the one hand they are concerned with obliterating the traces of that crime or with expiating it by bringing forward other solutions of the struggle between the father and sons, while on the other hand they cannot avoid repeating once more the elimination of the father,” Freud is implying that every religion comes down to the same thing: every religion descends, like a single man, from the same monkey, as it were. They all have the same origin and the same basic content. And in a certain way, because the father is One, they are all structurally monotheistic. And when these religions kill each other off, whether or not the battle is between monotheisms, they are 4. Sigmund Freud, “‘Vorrede’ zu Probleme der Religionspsychologie von Dr. Theodor Reik,” in Gesammelte Werke (Frankfurt am Main: Fischer, 1947), vol. 12, pp. 325– 29. In Derrida’s library, there are two French translations of this text: Theodor Reik, Le rituel, psychanalyse des rites religieux, trans. M.-Fr. Demet (Paris: Denoël, 1974), pp. 21– 25; and S. Freud, Œuvres complètes, trans. M.-Fr. Demet (Paris: PUF, 1996), pp. 211– 15. Since the translation that Derrida gives does not correspond to either of these two versions, one must assume that the [French] translation of Freud’s text is Derrida’s own. 5. See Jacques Derrida, “Préjugés: devant la loi,” in La faculté de juger, ed. Vincent Descombes (Paris: Minuit, 1985), pp. 87– 139; “Before the Law,” trans. Avital Ronell and Christine Roulston, in Acts of Literature, ed. Derek Attridge (London: Routledge, 1992), pp. 181– 220.

fe brua ry 7, 2 0 01 ‡ 117

continuing the same murder between brothers because — and this is the argument’s other register: 2. “They cannot avoid repeating once more the elimination of the father,” the murder that takes place at a stroke, keeps repeating itself over and over again, extending itself by delivering-deferring the stroke [en re-portant le coup]. By dividing or multiplying it: always more than one stroke. The stroke is always delivered-deferred, both deferred and delivered once again, again and again, with an unremitting vehemence. What takes place once and for all is endlessly repeated and reproduced. The Father, the God, the Man, the Beast is singularly indestructible [increvable]. Here is an event that takes place once and for all, from the origin, from the arkhe¯, but the arkhe¯ (commencement-commandment) survives and what took place long ago is still taking place today and will continue to take place tomorrow. The father, at once survivor and revenant, as in Hamlet, disorganizes — just as his murder does, just as sovereignty itself does — the order of time as succession. It is sovereignty that puts time “out of joint”6 and compromises the very succession that it promises. In the word succession you should hear both the temporal and irreversible sequence of “present now’s” as well as the sense of inheritance, of the substitution of the father by his sons, of the testament between generations. 3. By saying “But the later religions too have the same content, and on the one hand they are concerned with obliterating the traces of that crime or with expiating it by bringing forward other solutions of the struggle between the father and sons, while on the other hand they cannot avoid repeating once more the elimination of the father,” Freud is suggesting with a certain firmness that all religions — far from being only sacrificial, which would not be very original — are also expiatory, thus religions where one asks for forgiveness. In general Christianity is presented (we discussed this at length7) as the religion of forgiveness par excellence, but Freud takes every religion to be an expiatory test of forgiveness. It remains to be seen why Christianity would represent par excellence a test that would be common to all religions; and why this “par excellence” would also make it an exception in the series of the three monotheisms, a series to which it nonetheless belongs. It is as if the Christian had to atone not only for the evil, sin, and murder that he (the Christian) harbors in his unconscious memory and for which he blames himself but also — painful privilege, par excellence — for 6. [Translator’s Note]: In English in the original. 7. See Jacques Derrida, Seminar “Perjury and Pardon” (first year, 1997– 99 and second year, 1998– 99), unpublished (forthcoming).

163

118 ‡ fif t h se s sion

164

all the other religions and all the other murderous memories that they harbor. We must also try to account for this exception as well as for this excellence (for this exceptional and excellent expiation, for this excess of Christian excepiation) where it is precisely a matter, in the case of expiation, of rendering accounts. Christianity is the only moral religion, said Kant (see “Faith and Knowledge”8), and in 1921 in “Group Psychology and the Analysis of the Ego,” Freud recognizes that Christianity “claim[s] to have reached a higher ethical level” (SE 18: 135). So we were trying to understand (this was my fourth point9) why Freud gave Reik the responsibility of answering the death penalty question for him. We had just been looking at a number of these reasons, four if I’m counting correctly. And there are others. 5. It so happened that Reik was having serious difficulties that year, and it was important, I imagine, for Freud to come to his aid by re-legitimating him in a gesture of symbolic support, making him his public spokesperson, his interpreter on a subject as serious and, at that time, as publicly debated, in Germany at least — I said a word about this last time — as the death penalty and its inclusion in the new Penal Code. What was Reik suffering from? Well, the worst possible thing for a pure psychoanalyst, that is, for a psychoanalyst who is neither a psychiatrist nor a medical doctor in general. He was accused by a patient of “charlatanism.” In Austria there was a law against charlatanism. The case did not go anywhere, but this was one of the first public accusations against psychoanalysis as practiced by a non physician. Freud reacts strongly to it and writes without delay “Die Frage der Leienanalyse” (“Analysis Practiced by Nonmedical Doctors”).10 This problem has continued to make waves. In France there was a similar trial in 1951, in Paris. And in 1955, in Brazil, the accused were even arrested; and the State of New York declared that analysis practiced by nonphysicians was illegal, a move that was endorsed for a long time by the American Medical Association, which recommended that its members not cooperate with nonphysician analysts. Well then, by supporting Reik in this difficult time, by appointing him that same year as his legitimate 8. See Jacques Derrida, “Foi et savoir: les deux sources de la religion et de la morale,” in La Religion, ed. Jacques Derrida and Gianni Vattimo (Paris: Le Seuil, 1996), pp. 9– 86; “Faith and Knowledge: The Two Sources of ‘Religion’ at the Limits of Reason Alone,” trans. Samuel Weber, in Acts of Religion, ed. Gil Anidjar (New York: Routledge, 2002), pp. 40– 101. 9. Derrida is referring to the list that began on p. 112. 10. [Translator’s Note]: Published in English as “The Question of Lay Analysis” (SE 20: 183– 258).

fe brua ry 7, 2 0 01 ‡ 119

spokesperson and public interpreter on the death penalty, Freud was behaving a little like a father or a patriarch who goes to the aid of his son so as to reinstitute, re-legitimize him as his son and authorized heir. Authorized by the Author of Psychoanalysis who, like any auctor, augments himself all by himself by authorizing himself all by himself, by aggrandizing himself in his son. To encourage him too, like a strong father who wants to help his weak and depressed son. Later, for example, four years later, in 1930, when things were going very badly in the world and the world was wondering what was going to be born of its convulsions and what more was going to happen to it, Freud writes Reik to thank him for his book Freud als Kulturkritiker:11 Though I agree with your judgment of the world and mankind as they are today, I cannot, as you know, regard your pessimistic dismissal of a better future as justified.12

I quote this seemingly banal and trivial statement for two reasons. On the one hand, Freud is not what you might call an optimistic or a progressivist thinker — not in general, and especially not when it comes to political or historical questions about the history of humanity. He is almost exactly the opposite (and I could give you a thousand signs of this), and we will come back to this, precisely with respect to the death penalty. But on the other hand, the main reason, no doubt, that Freud gave himself for instituting his son-disciple Reik as the founding father’s legitimate spokesperson on the death penalty was that Reik had just recently written on questions of punishment and on this point he seems to share both Freud’s pessimism and optimism about the future of humanity. What does this mean? Before I begin to answer this question on optimisticpessimism, or the reverse, pessimistic-optimism, let me recall in a word that, for Schmitt, pessimism is the causa sine qua non for thinking the essence of the political. To that extent, as pessimist, Freud would have been well prepared, better than most, for thinking the political, even if he was not an expert in this field. The great theorists of the political have always been, according to Schmitt, men who had no confidence in humanity or in love or in human progress (Hobbes, Machiavelli, Bossuet, de Maistre, Bonald, even Fichte, Donoso Cortés). Since the concept of the political is founded on 11. Theodor Reik, Freud als Kulturkritiker (Vienna: Max Präger Verlag, 1930). 12. Cited in SE 21: 196. [In reality, this letter, which dates back to 1929, is a response to Reik’s criticisms concerning Freud’s text on Dostoevsky: see Theodor Reik, Trente ans avec Freud, followed by Lettres inédites de Sigmund Freud à Theodor Reik, trans. E. Sznycer (Paris: Complexe, 1975).]

165

120 ‡ fif t h se s sion

166

the possibility of the enemy (hostis and not inimicus), on hostility, only those thinkers who are convinced of the irreducibility and the interminability of hostility (which is not hate or enmity) are prepared to think the political: Because the sphere of the political is in the final analysis determined by the real possibility of an enemy, political conceptions and ideas cannot very well start with a so-called anthropological optimism. This would dissolve the possibility of an enemy and, thereby, every specific political consequence.13

The hypothesis (difficult and always under threat in Schmitt, as I have explained elsewhere14) is that there exists, there must exist something “specific[ally] political,” which is, as it happens, not very Freudian. Schmitt had begun this same chapter by declaring: One could test all theories of state and political ideas according to their anthropology and thereby classify these according to whether they consciously or unconsciously presuppose man to be by nature evil or by nature good. The distinction is to be taken here in a rather summary fashion and not in any specifically moral or ethical sense. (58)

167

[In saying this, Schmitt does not want to discredit the distinction; on the contrary, he wants to recall that there is no need to find in it a moral or ethical significance in order for it to be meaningful as the anthropological foundation of the theory of the political, in particular of the state. In so doing, he does the same thing as Freud and Reik — we’ll get to that in a moment — when, speaking of murder, of man’s murderous drive, of the psychological motives for crime and punishment, they speak and are intent on speaking a neutral, scientific, descriptive, constative language, without preaching morality, law, or politics. We will see the problems this poses.] Schmitt concludes: The problematic or unproblematic conception of man is decisive for the presupposition of every further political consideration, the answer to the question whether man is a dangerous being or not, a risky or harmless creature. (58)

Before leaving this Schmittian digression behind, let me point and refer you to this passage in Section 5 of the Begriff des Politischen (p. 45 ff.) where 13. Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, 1996), p. 64, modified. 14. See Jacques Derrida, Politiques de l’amitié (Paris: Galilée, 1994), pp. 135 ff.; Politics of Friendship, trans. George Collins (New York and London: Verso, 1997), pp. 115 ff.

fe brua ry 7, 2 0 01 ‡ 121

Schmitt analyzes the task, which falls to the state, of establishing the peace and therefore of defining the internal enemy, the public enemy. And he introduces this important distinction, for what interests us here, namely that if the right to dispose of the life and death of a human being in the form of a legal sentence ( jus vitae et necis) [nex is violent death, murder or execution, in Roman law vitae necisque potestatem habere, as both Cicero and Caesar say, is to have the right of life and death over someone], if then the right to dispose of the life or death of a human being in the form of a legal sentence ( jus vitae et necis) can belong to another entity besides the state, for example, to the family or to the head of household (thus to the father), the right to designate the foreign enemy, on the other hand, the hostis, and thus the jus belli, this right can belong only to the state (develop: Father and State, Family (civil society) and State15). I refer you to this chapter and I return to the main reason, no doubt, that Freud gave himself for instituting his sondisciple Reik as the founding father’s legitimate spokesperson on the death penalty. Reik had, then, just recently written on questions of punishment and there, in this book, Compulsion to Confess, a title that corresponds to that of the first version published in Vienna in 1925, Geständniszwang und Strafbedürfnis (The Compulsion to Confess and the Need for Punishment),16 he seems to share both Freud’s pessimism and optimism about the future of humanity. What does this mean, we were asking ourselves? Well, in this book, the hope is formulated not only that the theses and hypotheses of psychoanalysis in matters of criminology will, in the end, impose themselves scientifically and overcome the resistances of ordinary consciousness and philosophy, including the philosophy of law, but also, in the long run, that this new psychoanalytic knowledge about the motives for crime, for the prohibition of killing, for punishment, etc., will influence law itself and transform criminal law. This set of statements both pessimistic and optimistic (pessimistic because they reassert the indestructibility of the murderous drives that lie at the origin of both crimes and punishments, of murder and the death penalty, but also because they take account of the resistances to psychoanalytic theses and knowledge; optimistic because, it is said that in the long run, not only will knowledge win out but criminal law will also 15. See Schmitt, p. 47. During the session, Derrida adds: “The father, the paterfamilias, the patriarch is a little bit sovereign; he can condemn the family to death; there are examples of death sentences in families . . . but the father is not the State . . . Only the State can declare the foreign enemy.” 16. Theodor Reik, Geständniszwang und Strafbedürfnis (Leipzig/Vienna/Zurich: Internationaler Psychoanalytischer Verlag, 1925 [published in English under the title The Compulsion to Confess]).

168

122 ‡ fif t h se s sion

progress), this set of pessimistic-optimistic statements interests us in the first place on two accounts, on account of a double ambiguity. The ambiguity of form and content, if you like. The ambiguity of form, namely of the signature or responsibility, the ambiguity of content, namely of the status of what is being stated. In other words, who speaks, who writes, and who says what and how?

169

A. First ambiguity: that of the signature and of responsibility. Reik puts everything he says under the sign, indeed the signature, of one of Freud’s discoveries, Freud who, having come before him, would have said it before him. He reminds us of this repeatedly, for example, in his answer to questions 1 and 2, and then in question 3 on the death penalty. In his answer to questions 1 and 2, he reminds us that Freud developed his “essential insights” on the subject in Totem and Taboo and in a little article titled “Criminals from a Sense of Guilt” (this will be the mainspring of the book: guilt, the unconscious feeling of guilt precedes and motivates the crime instead of following upon the crime as its consequence or as a feeling of remorse. One kills because one feels guilty, and not the reverse: remorse precedes, and this is true not only for criminals but also for those who support and apply the death penalty). Reik thus positions himself as the son or the disciple who applies himself, who applies and develops the theses of the father or patriarch. He writes, for example: [The] appreciation [of Freud’s insights] should, and thinking of a not-toodistant future, we may say, will, contribute decisively to a revision of our views about the nature of the criminal, as well as to important reforms in the administration of criminal law. [Neither he nor Freud will ever say which ones, besides the abolition of the death penalty; but even then their opposition to the death penalty — we will come to this — will never take a militant, committed, and expressly abolitionist form. Reik continues:] In a recently published, more comprehensive book, Compulsion to Confess and Need for Punishment, I attempted to apply [that is, I developed and extended and laboriously applied Freud’s short and brilliant essay Totem and Taboo, and his brief inaugural — in English one would say “seminal” — article on “Criminals from a Sense of Guilt”] . . . In a recently published, more comprehensive book, Compulsion to Confess and Need for Punishment, I attempted to apply the results of Freud’s research to the problems of criminology and of the theory of criminal law and to show the fruitfulness and significance of the analytical points of view in that field. (472– 73)

170

He says this in his response to the survey, which only confirms that Freud authorized him to speak in his name (in his name, Freud’s, and both in his

fe brua ry 7, 2 0 01 ‡ 123

name, Reik’s, and while speaking doubly in his name, Freud’s, he mentions in passing his own little efforts, the works of a son and dutiful disciple, which develop the brilliant insights and discoveries of the father, the first and final signatory). The scenario I have just described or observed was that of the answer to questions 1 and 2. It is repeated in the answer to question 3 on the death penalty. Reik writes the following: My attitude [concerning the problem of capital punishment] is, furthermore, determined by the new results of research, which psychoanalysis has offered concerning the psychogenesis of the criminal and the psychology of punishment. The surprise implied in those statements gives us reason to expect that society will resolve only slowly and hesitatingly to appreciate it according to its significance. However, even though those results may be delayed in prevailing, they cannot be prevented from doing so. Freud has shown that, in the criminals at whom criminal legislation is really directed, a powerful unconscious feeling of guilt exists even before the deed. Psychoanalysis finds this preexistent feeling of guilt in the repressed impulses of the Oedipus complex. It is hence not as a consequence of the deed, but its motive. (473– 74)

Thus Freud comes before but also after Reik since he will end by signing, at the bottom of the page, the declarations, which are grammatically in the first person and with which Reik states his opposition to the death penalty, his opposition, both his own, Reik’s, and at the same time, that of Freud, to the death penalty. Listen to the way the “I” of the “I profess” trembles. Is it the “I” of Freud or of Reik, of Oedipus or of his father? The results of psychoanalysis reveal possibilities of allaying, channeling, and often psychically overcoming the overpowering unconscious feeling of guilt, the real, the underground motor of crime. If permitted to take the liberty of modifying somewhat your main question, I should, in concluding, answer it thus: “I profess to be an opponent of murder, whether committed by the individual as a crime or by the state in its retaliation.” (474)

Ambiguity without apparent ambivalence on the part of the son who, in signing, countersigns the theses, the positions, the position of the father, of Oedipus’s father, of the Oedipal, of the father whose thesis on the Oedipal origin of crime committed out of guilt he has just recalled. This text is signed countersigned Oedipus. B. Second ambiguity: The answers to all the questions pass without warning, from one sentence to the next, from the descriptive to the prescriptive,

171

124 ‡ fif t h se s sion

172

from the fact to the norm, from the normative fact to the normative injunction. This ambiguity might be nothing but a theoretical or speculative confusion, a simple “question of language,” so to speak, were there not a kind of contradiction between the content of what is described or observed and the content of what is prescribed or required. On the one hand, Reik, in the name of Freud, multiplies the precautions, which are also pretenses; he marks out the modest limits, which are also claims to competence and which say in short: this belongs to knowledge, to the science of psychology; what we are putting forward here on the subject of crime and punishment is not inspired by humanitarian feeling, or by any desire to legislate ethics, law, or politics. But on the other hand, immediately afterward, as if he were inferring this from a body of knowledge, as if he were drawing the consequences of these constative or theoretical statements, he says, they say, in a single double voice: this is what we are for and this what we are against for the future. We are against murder and against the death penalty, which is murder. First, a few examples of the neutral, constative, or descriptive form of these statements: The answer to questions 1 and 2: According to its sphere of work, psychoanalysis can make statements about the nature of punishment only from psychological points of view. This limitation is, however, by no means meant to concede that the point of view of psychology is of lesser significance than that of law, sociology, religion, etc. We believe, moreover, that the purpose of punishment is mainly a psychological one, regardless of whether the punishment has an effect upon the criminal or the community, whether the purpose of punishment is to be sought in protection, determent, retaliation, or in some other manner. Psychoanalysis must, therefore, be heard as as a psychology in depth. Our science started from the psychology of neuroses and, only gradually and in continuous contact with experience, approached the task of finding satisfactory answers to more general questions. It has not yet been in a position to offer final judgments about the psychology of punishment. It could, however, offer new and significant points of view for the solution of these problems. [. . . .] Only the fact that mankind shrinks from facing facts, from acknowledging the facts of unconscious emotional life, delays the victory of the concept of capital punishment as murder sanctioned by law. My attitude concerning the problem of capital punishment originates, therefore, not in humanitarian reasons, but in the appreciation of the psychological necessity of the universal human prohibition: Thou shalt not kill.

fe brua ry 7, 2 0 01 ‡ 125

This attitude is, furthermore, determined by the new results of research which psychoanalysis has offered concerning the psychogenesis of the criminal and the psychology of punishment. (472– 73)

We have already read and discerned the transition, the mediation between the two questions. It is already contained in this little sentence, more precisely in this short paragraph, which I just read and which says: The results of psychoanalysis reveal possibilities of allaying, channeling and often psychically overcoming the overpowering unconscious feeling of guilt, the real, the underground motor of crime. (474)

In other words, in neutral knowledge, in the results of psychoanalytic research, there is something that is not neutral, something that at least might come “psychically” to affect and transform, to allay, channel, and master within us “the overpowering unconscious feeling of guilt.” That is possible only if the aforesaid psychoanalytic knowledge already contained in itself a force, a power of mastery that is far from simply neutral. It is as if this knowledge itself were obeying the drive for mastery about which Freud had spoken some six or seven years earlier in Beyond the Pleasure Principle. If this is indeed the case — and this hypothesis is in no way absurd — then we must ask ourselves, on the one hand, whether this knowledge can in fact be presented as neutral, objective, theoretical, disinterested. And, on the other hand, we must ask ourselves to explain how this force of power or of mastery, this channeling, puts itself in the service of life, and opposes murder as well as the death penalty. Is there not an unjustifiable leap between the description of this force of mastery that knowledge constitutes, and the cause, the supposed rightness of the cause, of the good, of justice, the cause in the service of which Freud and Reik mean to inscribe this knowledge and inscribe themselves when they say that they are just as resolutely against murder understood as an individual crime as they are against murder in the form of state-sanctioned retaliation? For in both cases, and this is what bears the greatest weight of this argument’s logic, it’s a matter of murder, and of murder in response to murder. And the final taking of sides, without being what it claims to be, that is, an ethical or juridical or political taking of sides, seems itself to obey what was being called a universal psychological necessity a little earlier, not the universal psychological necessity of murder but of the prohibition on murder, the universal prohibition “Thou shalt not kill.” So much so that, once guilt is posited as the origin or the cause and not the effect of crime, we don’t know which comes first: the possible crime or the prohibition of the possible crime. One has the sense that this is a bad

173

174

126 ‡ fif t h se s sion

175

way of posing the problem, of a vicious but unavoidable circle, analogous to the one in which one is both closed in and carried away by the fiction of the murder of the originary father. It could be the origin of ethics only because ethics was already there to make the sons or the brothers feel shame. Freud says that morality emerges from this shame and the need to expiate, but there was shame and expiation, conscious or unconscious avowal (we will talk about this again; it’s the theme of Reik’s book) only because, already at the time of the murder of the father and even before it, in the possibility of this murder, before the act, there was already something like ethics, namely some prohibition. The possibility of crime and the possibility of prohibition are inseparable and co-originary. Whence the difficulty of deciding between the descriptive and the prescriptive. This difficulty is true not only for psychoanalysis and for the serious question of an ethics of psychoanalysis, in the double sense of the word: a general ethics founded and inspired by psychoanalysis, and an ethics of psychoanalysis itself. This difficulty presents itself, beyond psychoanalysis and before it, every time we have trouble distinguishing between a prescription and the description of a prescription, between a norm and the knowledge of a norm. It is always possible to take or to pass off one necessity for the other. When I say “it is necessary [il faut]” or “it really is necessary [il faut bien],” I could just as easily be describing as prescribing, prescribing a duty (ethical, juridical, political) or describing a necessity, which may be that of a natural constraint or a law of nature, or an ontological, psychological, historical law, even if it is a de facto law that produces the law of duty. If I say, for example: I think it is necessary or it really will be necessary to abolish the death penalty, this may mean that I am “for” abolition, but it may also mean, in other words or simultaneously, that I think there is a necessary and inevitable process at work here, one that we cannot escape, regardless of whether it is good or bad. I may think, along these lines, that the abolition of the death penalty is necessary, that one must abolish it, that abolition is inevitable, whether I am for it or against it. Now, I may also be for this abolition because it is inevitable and because I am for this evolution’s taking place, or even accelerating. I emphasize the word “acceleration” because it is just as ambiguous as the psychoanalytic discourse on this subject. This discourse on the subject of the death penalty, that of Reik-Freud in any case, is precisely situated in the trembling turmoil of this decided indecision, of this ambiguity between the descriptive “it is necessary” and the normative “it is necessary.” (You will note that — and I note it in parentheses in order not to get too far off track here, but this is in my eyes a major question — elsewhere I

fe brua ry 7, 2 0 01 ‡ 127

have tried to show17 that the ethical and responsible decision implies not only a departure from the “it is necessary” of any natural necessity [of the “that’s just the way it is”] but also, which is more difficult to think, of the “it is necessary” of duty or debt, and even of the “it is necessary” of normative prescription. Wherever there is debt but also some norming or normed norm and consequently a determinative knowledge of the norm, there is no longer any decision; one returns to the ontological “it is necessary” and to first necessity. The same is true, moreover, every time there is a performative “I can” of decision, and even a sovereign “I” in general. An “I” itself never decides anything. Precisely because it can. The consequences of these statements are formidable; I expand on them elsewhere but I do not want to take them up again here. I will close the parenthesis in order to accelerate a little and get to the problem of acceleration more quickly.) In “The Psychoanalytical Theory of Criminal Law,” chapter 6 of this book, Reik adopts a historical perspective on the evolution of criminal law and its relation to psychoanalysis. And it is here that he will use this strange figure of acceleration, or of the effort to accelerate. You will note that acceleration is one thing, and the effort to accelerate is another, which assumes that one is certain that it is better to accelerate than decelerate: it would be better to go as quickly as possible than to go as slowly as possible. And this “it would be better,” this norm itself, does not belong to the fact of acceleration or deceleration, so that the problem remains intact when Reik writes: “Our psychoanalytic theory of penal law makes an effort to accelerate this psychological evolution.”18 Which evolution?19 Reik had already spoken of talionic law (to which I will also return in conclusion), and he had distinguished two types of penal law. 1. The first type of criminal law is inscribed in the tradition of talionic law and involves above all retribution, retaliation, reparative punishment, reprisal. All the theories of criminal law that are based on this type (on talionic law), Reik says, are deeply rooted in the instinctual life of the individual, in the unconscious. If there must be punishment, and if it really should have the value of punishment, it can be instinctually based only upon the principle of talion. The 17. See Jacques Derrida, Politics of Friendship, pp. 67 ff. 18. Reik, The Compulsion to Confess, p. 296 [translation modified; hereafter, modifications to the published translation will not be signaled]. 19. In the typescript: “of which evolution?”

176

128 ‡ fif t h se s sion

reprisal theory has, therefore, the advantage of compactness and psychological consistency, but it contradicts all progress of culture and humaneness [in other words, Reik refers to the fact of cultural and humanitarian progress without our knowing, at least at this moment, if he is for or against it, it’s always the same ambiguity]. Reprisal as the purpose of punishment is simply the representation of a powerful drive as a theory. (290)

177

This is as good as saying that the Kantian discourse, which is certainly the purest and most rigorous theoretical and philosophical discourse, the most noble too, in the service of talionic law, that this Kantian discourse would be, according to Reik, the noble — but at bottom hypocritical — form of obedience to an overpowering and fundamentally cruel drive. We come across again here the paths we have already traveled: Kant’s bloody cruelty according to Nietzsche, Kant with Sade according to Lacan, the old Auseinandersetzung between Freud and Kant on so many themes, and more generally, this hypothesis from Totem and Taboo, precisely (end of chapter 11), according to which if hysteria is a caricature of the work of art, and obsessional neurosis a caricature of religion, then paranoia would be the caricature of a philosophical system. There is always thus, haunting it, lying in wait for it like its shadow or its double, a pathology, or even a perversion corresponding to the systemic exigency of philosophy. To want to maintain the pure necessity of the death penalty, as jus talionis and as pure reason, even if it is in fact useless and inapplicable, is very close, Reik-Freud would undoubtedly say, to a paranoid symptom. But we will return to this path in a moment. 2. The second type of criminal law, according to Reik’s distinction, no longer sees punishment as “retaliation” but as prevention or deterrence. Whereas retaliation is turned toward the past and really concerns only the criminal, theories of deterrence concern society and are turned toward the future. They are thus, I would say, “progressivist” in their very structure. Even as he wonders if punishment does not lose something of its originary character by becoming a preventative measure, Reik sees progress in this evolution. What progress? The progress that is based on the fact that, in order to believe in the need to discourage or deter, we must believe, at least preconsciously, says Reik, that every man is virtually a criminal and that “we all carry in us latently all the germs of the crime” (291). And thus, that we all, at least virtually, unconsciously, share the responsibility, that is, the guilt of the criminal. In other words, the progress of a criminal law based on deterrence over a criminal law based on retaliation is also that it takes into account a certain unconsciousness of legal subjects. To the ob-

fe brua ry 7, 2 0 01 ‡ 129

jection that deterrence does not work so long as the criminal is prudent, that he always hopes he won’t get caught and will enjoy impunity, Reik responds that this argument has no value for the unconscious. The unconscious knows no caution [ prudence], he says, in what I consider to be a very beautiful formulation. The unconscious knows no caution. We all know, and the most cautious among us know better than anyone, that the unconscious is another name for our very lack of caution, and if there is a lack of caution against which no resolution can protect us, it is certainly what we call, without knowing it or ever having encountered it, our unconscious. The source of all our lack of caution is our unconscious. The unconscious is the cautionlessness [l’imprudent] in us, in other words, the opposite of providence, of prudentia, of wisdom. Now, given that things are never so simple, this cautionlessness is not necessarily the ally of the worst; it can also be providential. The unconscious is the chance that causes things to befall, to fall at the wrong moment or to fall at the right moment, as the case may be. Always the enigma of the calculation of the incalculable. This is why Reik finds that preventative, dissuasive, protectionist theories of criminal law seduce us (this is his word20) all the more. But he goes even further: not only does he link the idea of a potential guilt shared by all with the idea, championed by Freud, of a guilt that precedes the crime, he also adds — always with theoretical caution, a caution of the theoretical, which informs us that psychoanalysis does not take a position, that it just describes and analyzes. He adds then:

178

Let [me] start by pointing out that the theory I presented to you is not expected to treat of the permanent or even only of the temporary necessity of punishment, nor of its justification as institution. There is no doubt as to the existence of the need for punishment, but it cannot be proved that legal punishment is the only or even an adequate means for gratification. (293)

This argument, which asserts the existence of the need for punishment and thus for suffering (whether inflicted on the other or on oneself ), but not the need for the permanent existence of legal punishment, or even its utility, we can interpret this argument — turning to a Kantian language — as a door open to poena naturalis and the abandonning of poena forensis. After the waning or even the disappearance of a legal, juridical penalty, indeed with a view to this disappearance, one might cultivate — so as to satisfy an irreducible and psychical need for some peine (for punishment) — all different kinds of a-legal treatment: remorse, avowal, confession, auto-punishment, 20. [Translator’s Note]: The English translation has “appealing.”

179

130 ‡ fif t h se s sion

even psychoanalysis; for psychoanalysis, as a space alien to justice or the police or public health, to the space of the state or the public space in general, might become the privileged place of this modern day poena naturalis and might even work, politically, toward the interpretation and extinction of legal punishment. Indeed — and I refer you to the very next page — Reik envisions, in the long term, the complete elimination of punishment (punishment that is legal, public, external, forensis). He writes: The similarity of the forbidden impulses of the criminal and of the punishing community is clearly the basis of the hypothesis of determent [comment].21 This observation points to the direction in which criminal law must evolve — that of the eventual and complete elimination of punishment. (296)

180

It is this tendency, this “progress” underway, this orientation, this dynamic, this teleology that goes in the direction of the end of public punishment that psychoanalysis should, as its vocation, not produce, not provoke (it is not needed for this), and still less, of course, prohibit or slow down or contest, but simply “accelerate”; all of the difficulty is focused on this confused notion of acceleration, on the “effort to accelerate,” which consists merely, incidentally, supplementarily, in exerting an influence on a rhythm one did not produce by encouraging or accentuating rather than thwarting it. Whence all the questions you can imagine: Why is this progress? Why can psychoanalysis do something but only something inessential and external, why only a change of rhythm? Why is it not at the origin of this progress? Why does it approve it and not disapprove it? In the name of what must analysts campaign to accelerate this progress? No knowledge as such, no descriptive or constative analysis can provide even the slightest hint of an answer to these questions. To return, finally, to Kant’s text and to his appendix on a talionic law that, for those who are found guilty of rape, homosexuality, and bestiality, demands castration and expulsion, and thus demands, as punishment, that which signifies (I repeat signifies, at least symbolically), intimates death (since castration signifies, symbolically, the interruption that cuts off the principle of life at its source, and expulsion outside society signifies, beyond any prison sentence, even a life sentence, the death of the citizen and his excision from social life). I note, then, taking what will be my last cue from 21. Due to the poor quality of the recording, we were unable to reconstitute the comment here.

fe brua ry 7, 2 0 01 ‡ 131

Reik, two highly significant and decisive gestures in Reik’s argument, a Reik who, moreover cites Kant and his discourse on talionic law and criminal law as a categorical imperative, so many things that Freud’s disciple judges to be psychologically interesting but obsolete. Judging Kant to be more interesting and more resistant than Hegel in the end, he writes the following: Please do not consider this advice out of order. May I mention to you, as a horrible example, a famous theory of penal law that is still rather popular with some scholars? According to Hegel, punishment is the dialectic realization of the concept of law. Crime is in contradiction with itself and therefore naught. It is semblance, and it is in the nature of this semblance that it cancels itself out. Punishment is the revelation of the nullity of crime, the statement of its imaginary existence. The essence of Hegel’s theory of penal law is summarized clearly and perceptibly in this sentence: “Punishment is negation of the negation of law, hence positing, restoration of the law.” Not one of us will dare to deny the dialectic ability of the followers of Hegel among the teachers of penal law. Turning to theories that should be taken more seriously, the older and now obsolete theory of legal reprisal will still attract the attention of the psychologist. According to it, reprisal is the paramount principle of criminal law. In the opinion of Kant, the most famous advocate of the reprisal theory, penal law is a categorical imperative. He who kills, kills himself. Hence, the principle underlying the determination of the extent of punishment in penal law is the talion. (289– 90)

The two arguments I mentioned are roughly the following. First argument. In the future, the transition to the disappearance of punishment (which is as good as saying the disappearance of the state) would be ensured not only by a confessional culture or society (we understand what this means better than ever today, and our seminars over the past few years have basically been devoted to this). Everyone would confess everything to everyone. You can imagine the scene. But we should be even more precise: the disappearance of punishment would not only give rise to confession in all directions and to a culture of generalized confession and repentance, it would also accompany a mutation in the very status of confession. Confession would be less and less compelled, extracted, or forced by means of torture. It would be more and more free, more and more spontaneous, consenting, recognized in its dignity. And this tendency is not only one that psychoanalysis will make an effort to accelerate, it is also one that will acquire more and more of a prophylactic dignity in society. This is still utopian no

181

132 ‡ fif t h se s sion

doubt, as Reik acknowledges, but utopia describes the direction that the possibility of progress will take and what is, as Kant might say, its signum demonstrativum, rememorativum, prognostikon.

182

183

In the process of transition from one punishment to another social institution, confession also will have an important function. We recognize this when we are tracing its growing significance within the criminal procedure. Replacement of the old by the new usually takes place in the following manner: the new first is leaning upon something established, appears to be welded to it, and then detaches itself in order to continue its existence independently and eventually replace the old. We can reconstruct a primitive legal procedure in which there was no place for confession at all, where punishment hit the criminal with the edge of the sword before he had any opportunity to confess. When confession was taken into consideration later on, it was still most closely connected with punishment, as we see it in the external compulsion to confess, the medieval torture. The moderation of judgment through confession and the special position of confession within the criminal lawsuit will lead into a period of development in which confession will perhaps keep itself isolated and eventually be able to take the place of punishment. Confession would, of course, gain significance, especially as a most effective prophylaxis against crime, since it is the mildest kind of gratification of the need for punishment, while at the same time it grants the suppressed impulses a possibility of expressing themselves. We see that the unconscious compulsion to confess can still find important psychological utilization in the realm of criminology, too. These are, of course, all dreams of the future, “Zukunftsmusik,” as the German would say. It is merely a question of optimism or pessimism whether you can lend yourself to the belief that, at some very distant period, which will look back indulgently to our day, punishment will be abolished. (297– 98)

Second argument. What justifies the return to Kant more than ever, even to a Kant who seems the most obsolete and the most paleophilosophical, is that Reik, seemingly without being conscious of it and above all without an acute philosophical consciousness of it (a failure of philosophical culture or vigilance that characterizes, as you know, certain analysts and sometimes the most remarkable and the most reliable among Freud’s disciples), Reik, then, must account for the fact that, even in self-punishment, even in the sphere of this poena naturalis that he is basically proposing to substitute for judicial punishment ( poena forensis), and ultimately when it comes to the self-punishment that would consist in the psychoanalytic treatment of soci-

fe brua ry 7, 2 0 01 ‡ 133

ety as a whole, thus in a worldwide autoanalytic treatment (because if everyone goes into analysis, everyone will have to join in, and there will have to be enough analysts to accommodate the totality of analysands, including Bové and Chevènement,22 on this enormous worldwide [mondialisé] couch) — in the sphere of self-punishment, then, before judicial hetero-punishment and poena forensis, well, talionic law already dominates, still dominates, and goes as far as castration and capital punishment. It cannot be without significance for the theory of penal law that the unconscious self-punishment of neurotics is based entirely upon the principle of talion, on the law “eye for eye, tooth for tooth.” That part of submerged psychic life, which in the emotional processes of neurotics astonishes the observer time and again, can also be shown in the need for punishment. In surveying some of the unconscious self-punishments of neurotics, we find such strange kinds of imagined punishment not known to modern penal legislation as castration, burial alive, immurement, suffocation, being put in irons, and various other excruciating kinds of capital punishment. Physical sensations often represent various imagined tortures. A patient spontaneously compared his condition, which had become continuous, to the situation of the regicide Ravaillac who was torn apart by horses. The patient’s father was actually connected with horse breeding and, as a little boy, he had often visited his father’s stables. It was certainly not accidental that the patient likened his symptoms to the sensations François Ravaillac might have felt when he was torn to pieces by horses after he had murdered King Henri IV of France in 1610. The punishment for unconscious murderous wishes against the father had taken that medieval form of which the patient had read when he studied history in high school. We see that the unconscious, having its own laws, is also in control of punishments that date from the childhood of mankind. At this point, it should be remembered that punishment is not a primary social institution and that its origin is seen in the more primitive vengeance. It should also be mentioned that the neurotic’s fantasies of vengeance clearly exhibit an archaic character, as shown by the indeterminate nature of objects against which, according to Otto Rank, the actions of vengeance are directed. We cannot be expected to prove to what extent these views still influence the penal law of our time and how many legal principles can be traced back to the principle of talion. That remains as a rewarding task for jurists who 22. Jean-Pierre Chevènement, who was the French Minister of the Interior from 1997 to 2000 and president of Movement des citoyens (Citizens’ Movement), and José Bové, the figure of the alter-globalization movement, had both just participated in the first World Social Forum in Porto Alegre, Brazil.

184

134 ‡ fif t h se s sion

would do best to start by investigating the principle, “Fiat justitia, pereat mundus.” (288– 89)

185

Now I think we are ready to hear something of what, in the beginning, I referred to as Kant’s remorse in the form he gives to this deferred appendix titled “Further Discussion on the Concept of the Right to Punish” (Zusatz zur Erörterung der Begriffe des Strafrechts). The considerable import of this appendix, which must be examined very closely, in its letter, seems to me to have less to do with the theatrical and unforgettable nature of the examples of crimes (rape, pederasty, bestiality) or the examples of punishments (castration, ostracism) than with something more historical, and little noted until now, to my knowledge, namely the premises of something that has been named and inscribed in international law only since 1945 (Nuremberg Trials), namely the concept of a crime against humanity. There is, in Kant’s appendix, as we will see, something like the idea of a concept of a “crime against humanity.” That being said, I would not want my irony on the subject of the worldwide-ization of psychoanalysis to lead to misunderstanding. We must believe in and hope for the worldwide-ization of psychoanalysis, however uncertain, obscure, and indirect its paths. Beyond all possible or real caricature, it is certain that if a transformation (already underway, in fact, and in any case so necessary) of international law and of the very axiomatics of law, ethics, and politics is to come to pass, right down to their most fundamental concepts and principles (and the question of the death penalty is, in this regard, only an example and a guiding thread, but also a very privileged symptom), well then, this transformation passes and must pass through a consideration, direct or indirect, explicit or implicit, by conscious or unconscious contagion, of something like the psychoanalytic revolution. (If time, read closely and comment on the whole appendix, otherwise leave for next time.) The mere idea of a civil constitution among human beings carries with it the concept of punitive justice belonging to the supreme authority. The only question is whether it is a matter of indifference to the legislator what kinds of punishment are adopted, as long as they are effective measures for eradicating crime (which violates the security a state gives each in his possession of what is his), or whether the legislator must also take into account respect for the humanity in the person of the wrongdoer (i.e., respect for the species) simply on grounds of right. I said that the ius talionis is by its form always the principle for the right to punish since it alone is the principle determining this idea a priori (not derived from experience of which measures would

fe brua ry 7, 2 0 01 ‡ 135

be most effective for eradicating crime).* — But what is to be done in the case of crimes that cannot be punished by a return for them because this would either be impossible or itself a punishable crime against humanity as such, for example, rape as well as pederasty or bestiality? The punishment for rape and pederasty is castration (like that of a white or black eunuch in a seraglio), that for bestiality, permanent expulsion from civil society, since the criminal has made himself unworthy of human society. — Per quod quis peccat, per idem punitur et idem. — The crimes mentioned are called unnatural because they are perpetrated against humanity itself. To inflict whatever punishment one chooses for these crimes would be literally contrary to the concept of punitive justice. For the only time a criminal cannot complain that a wrong is done him is when he brings his misdeed back upon himself, and what is done to him in accordance with penal law is what he has perpetrated on others, if not in terms of its letter at least in terms of its spirit. * In every punishment there is something that (rightly) offends the accused’s feeling of honor, since it involves coercion that is unilateral only, so that his dignity as a citizen is suspended, at least in this particular case; for he is subjected to an external duty to which he, for his part, may offer no resistance. A man of nobility or wealth who has to pay a fine feels the loss of his money less than the humiliation of having to submit to the will of an inferior. Punitive justice (iustitia punitiva) must be distinguished from punitive prudence, since the argument for the former is moral in terms of being punishable (quia peccatum est) while that for the latter is merely pragmatic (ne peccetur) and based on experience of what is most effective in eradicating crime; and punitive justice has an entirely different place in the topic of concepts of right, locus iusti; its place is not that of the conducibilis, of what is useful for a certain purpose, nor that of the mere honesti, which must be sought in ethics. (Ak 6: 362– 63, 497– 98)23

23. The note, signaled by the asterisk, is in Kant’s text, which Derrida read, without commenting on it, at the end of the session.

186

sixth session

February 21, 2001 h

188

So what is at stake [enjeu]? What is at stake or in play [en jeu] here — in play with death, with death in the places of the death penalty? Are there rules to this game [ jeu]? And what is a game [ jeu]? What could a game possibly have to do with the death penalty (not to mention the experience of gambling and the challenge that some, remember Genet and the texts we read last year, the experience of gambling, of the challenge, and the words of abuse that certain “great criminals” (as Benjamin calls them) hurl at the court, at the police and the executioner, thus provoking, taking every risk of being condemned to death, every risk of exposing themselves to the death penalty? To risk one’s neck [ jouer sa tête], to risk one’s life [ jouer sa vie], this is what is often said about murderers or defendants who risk the death penalty.1 These rules, the rules of these games, are they rules of calculation? Is every game played according to rules and are the rules of the game rules of calculation? Think, for example, of the game of Russian roulette, where someone — who seems prepared, if not for premeditated suicide, at least to gamble and put his own life at risk, of his own accord, autonomously — takes the risk of condemning himself to death by entrusting himself to the rules of the game but also to an incalculable ludic exercise according to which it is precisely a matter of playing with one’s life [ jouer sa vie]; for, just as every member in a firing squad can hope or wager that he will not have been the perpetrator of the execution, by virtue of the deliberate but random distribution of a blank, so that the execution will be an act of justice and not an act of personal vengeance, not a crime, likewise a rule of calculation can give way to the contingency [aléa] of some incalculable — a rule of calculation 1. See Jacques Derrida, The Death Penalty, vol. 1, pp. 28 ff. and passim.

fe brua ry 21, 2 0 01 ‡ 137

can way to play [au jeu]. The calculable is not incompatible with the incalculable, I will return to this in a moment. Now remember: remember that, among the three common expressions that we have twice distinguished, in two series, where they are at once close to one another and heterogeneous, irreducible to one another, well then, each time only one of the three claimed to give rise to calculation and to the calculable. Thus, when I say: 1. “condemned to die” in general (as we all believe we are); or else 2. “condemned to die” in the short term (from illness, the prognosis of death having been established by medical knowledge but without any verdict in the strict sense); or else 3. “condemned to death” by a verdict in a criminal case, well then, only this third and last expression (“condemned to death”) seems to include in itself the project of a calculation, a will to mastery over time, an arrangement of the calendar, of the date, an appointment at a specified time. Only this expression includes in itself the idea of a decision. To be condemned to die, in the first two senses (of old age, of natural causes or illness), does not put into play any calculating decision. However, to be “condemned to death” implies a calculating decision as decision of the other: you will die and you will die in such a way and you will die on this day, at this hour. We see likewise the same thing if we follow the difference that exists between three other expressions, very close to one another but just as irreducible to each other — let me recall them here: 1. “I am thinking of death [à la mort],” 2. “I am thinking about dying [au mourir],” of the experience of dying, whether possible or not, and 3. “I am thinking of dying [à mourir],” only this last one, of a suicidal type or form, seems to combine in itself a calculating project, a decision, a logic of the calendar, a power over time, a possible decision as to the given moment, a program. A programmable if not a programmed decision. I will die, I am thinking of killing myself in this way, on this day, at this time, etc. Thus, in these series of six locutions, of two times three idiomatic and barely translatable locutions, it’s only two times out of six, two times one time out of six, that something like a decision intervenes and a decision indissociable from a calculation. Two times, two times one time, a calculating and calculable calculation is taken into account. From the moment there is calculation, there is formalization, abstraction, objectivation, exchange.

189

138 ‡ si xt h se s sion

And from the moment there is calculation for abstract terms, for objects that can be exchanged, like money, in a way, some talionic law comes into view. X for X, X against X. However, we can never rule out, let it be said in passing, that if the reference to the talion seems all too obvious when one is “condemned to death” in the sense of criminal law, [however, we can never rule out, let it be said in passing] that in the suicidal “I am thinking of dying,” some talionic law is not still at work, some complaint, vengeance, punishment or aggression of X against X, in compensation for a supposed wrong, mine or that of the other, two wrongs that, in the logic of heteropunishment becoming auto-punishment, perhaps amount to the same.

190

So jus talionis, then, again. We will never see the end of it. Like the very circularity of a circle, of a vicious circle. Between the Bible, Kant, Reik, and Freud, the talionic law, about which we have already spoken at length, thus comes forward, so it seems, as what we might call a rule of calculation. And of automatic calculation. Seemingly as the automatic calculation of a mechanism, of some calculating machine. And last time (when I said a few words to introduce the discussion2), we explored and formalized, under the sign of the autos, of the auto, of the same or the selfsame, this terrifying logic, this cruel and fearsome logic that made contagion inevitable between the autos of the automotive machine, the automobile, autonomy (in the Kantian sense, giving-to-oneself the universal law of practical reason and respect for the categorical imperative, the end in itself as dignity of the human person) [the contagion between the autos of autonomy (in the Kantian sense)], and the inevitable necessity of the becoming auto-punishment of heteropunishment, being the executioner of oneself (Heautontimoroumenos, as Baudelaire says in the poem we read: “I am the wound and the blade!/I am the slap and the cheek!/I am the limbs and the wheel,/The victim and the executioner!” and in his preface to New Extraordinary Tales: “natural Perversity, which makes man constantly and simultaneously a murderer and a suicide, an assassin and a hangman”)3 and so, I repeat, the theatrical mekhane¯ 2. This was an oral intervention and not a part of the typescript. 3. Charles Baudelaire, “L’Heautontimoroumenos,” in Œuvres complètes, ed. Claude Pichois (Paris: Gallimard, Bibliothèque de la Pléiade, 1975), vol. 1, pp. 78– 79; “Heautontimoroumenos,” in Flowers of Evil, trans. Wallace Fowlie (New York: Bantam, 1964), p. 71; and “Notes nouvelles sur Edgar Poe,” in Œuvres complètes, ed. Claude Pichois (Paris: Gallimard, Bibliothèque de la Pléiade, 1976), vol. 2, p. 323; “New Notes on Edgar Poe,” in Baudelaire as a Literary Critic, trans. Lois B. Hyslop and Francis E. Hyslop Jr. (University Park, PA: The Pennsylvania State University Press, 1964), p. 121.

fe brua ry 21, 2 0 01 ‡ 139

of the ruse as well as the machination of the automatic machine, the automobile machine that is unconscious, blind, unintentional, dumber than the animal, the machine of a mechanization, of a technological history of machines that also produced the mechanized instruments of execution (the rifle, the guillotine, the electric chair, lethal injection, so many killing machines that are contemporaneous with a history of technological inventions and their patenting) just as much as the machines, then, that also produce and guarantee some anonymity, some impersonality in the cause and status of the executioner about whom we have also spoken, of an executioner who doesn’t himself kill, not in his own name, who functions like a functionary or like an automatic machine without name and without vengeful initiative. All of this, all of these laws of the autos (autonomy, auto-punishment, automobile automatism) amount to the blinding or blind calculating drive of a calculation that passes itself off as reason itself, that imperturbably acknowledges its own rationality in the imperturbable auto-justification of its precision, its justness [ justesse], as much as its justice. Now what is a calculation? Before presuming we understand, as something perfectly obvious, that the talionic law prescribes calculation, the calculable equivalence, the calculable substitution (X for X, eye for eye, tooth for tooth, life for life), either a proper substitution properly speaking (eye for eye), or a metonymic, figural, symbolic one, a substitution that substitutes itself for itself in the figure, an exchange and substitution of substitution (castration for rape or pederasty, in exchange for rape or pederasty, for all of this is language as exchange, as trade, according to the Kantian text we are reading, or else exclusion, exile, expulsion outside the polis for bestiality, in exchange for bestiality), before presuming we understand what we mean by equivalence, exchange or calculable substitution, we must not calmly assume that we know what “calculation” means. Or the relation between the calculable and the incalculable. This relation between calculation and noncalculation, between the calculable and the incalculable, is not necessarily a relation of exteriority, exclusion, contradiction, or opposition. Moreover, I have just said “incalculable” a little hastily, where one should perhaps already distinguish between two ways of exceeding calculation or resisting it. The in-calculable is perhaps not, strictly speaking, the noncalculable. One often says “incalculable” when speaking of large numbers or quantities that exceed in fact — and I mean in fact — our finite means of counting, of computing; but this does not mean that what is in-calculable for a finite power of counting remains in essence foreign to calculation, heterogeneous to the calculable. Something calculable can remain, for a

191

140 ‡ si xt h se s sion

192

193

contingent reason, be it only because of my finitude, temporarily or definitively incalculable for me, without, for all that, ceasing to be calculable in itself or for God. What remains incalculable for me, for my feeble ability to count, can still remain calculable and belong to the homogeneous realm of the calculable. The in-calculable can remain homogeneous with the calculable. It is still calculable even if I, finite or weak being that I am, incapable of counting beyond the fingers of one hand or the end of my nose, even if I cannot calculate, cannot do the numbers [ faire le compte], give an account [rendre compte], or take account myself [me rendre compte]. This incalculable, which remains homogenous with the calculable, is not at all the non-calculable, which would be of another order. Unlike the in-calculable, the non-calculable would be of a nature and quality — of a quality that is precisely qualitative, purely qualitative, of a quality that consists in being qualitative — such that, for a being finite or infinite in its power [ puissance] to count, in its accounting power, this non-calculable removes or subtracts itself [se soustrait] from any calculability, any accounting or bookkeeping, any account [compte-rendu], or any rendering of accounts [compte à rendre]. This non-calculable removes or subtracts itself from both the calculable and the in-calculable. It is striking, moreover, that the Latin word talion, which comes from talis, tel [such], and thus seems to refer to a quality (telle quelle, such like, such a wrong, such a punishment, such a crime, such a payment in exchange, like eye like eye, or as one also says, in the so-called primitive horde, like father like son) [it is striking, then, that the Latin word talion, which comes from talis, tel [such], and thus seems to refer to a quality] should come to designate, in talionic law, jus talionis, the necessary, the ineluctable passage from quality to quantity, from the in-calculable or the non-calculable to the calculable. Which then opens onto the business of punishment, onto the commerce of compensation, retribution, sanction, expiation, thus onto the logic of buying back, precisely onto the economy of a buy-back that redeems, onto the economy, or even the mercantile speculation, of redemption. (4On this topic, let me open a — biblical and bibliographical — parenthesis to clarify a point that was already touched on briefly. I thank Petar Bojanic´5 for having given me an interesting article to read by Father Adrien Schenker (O. P.) of the Biblical Institute of Fribourg, Switzerland, an article pub4. This parenthesis does not close in the typescript. 5. Petar Bojanic´ is a Franco-Serbian philosopher who wrote a dissertation under the directorship of Étienne Balibar and Jacques Derrida. He is the director of the Institute for Philosophy and Social Theory in Belgrade.

fe brua ry 21, 2 0 01 ‡ 141

lished in Biblica 63 (1982) under the title “Ko¯per et expiation.”6 This article concerns in particular the passage in Exodus 21 we read together concerning talionic law (“He that smiteth a man, so that he die, shall be surely put to death,” one example followed by many others). Well, it so happens that in verses 28– 30, just a little further on, the word ko¯per appears in order to designate compensation, a price to be paid to avoid death or to appease the demand for punishment. So what we are dealing with, then, literally, is a purchase price, or more precisely still a buy-back price. The hypothesis is the following: if the horn of an ox stabs a man or a woman to death, if (extraordinary example) an ox gores a man or a woman, and if the owner of the ox is innocent, the animal with the horn, and the horned animal alone, will be stoned to death. But if the master, apprised of the risk, failed to do what he should have done to rein in the horn of his ox and prevent it from goring someone, if this horn is then a little bit his own, the owner of the ox will be considered guilty of the death of someone and, like the horned ox, he will be stoned to death. Save for this: he will be saved if a compensation7 is imposed on him. And he can be given the option of paying, even if it is not necessary to do so, even if it is not a duty to give him that option. Following which, says the text, if he is given the option of paying the “compensation,” the indemnity, the amends, “he shall give for the redemption of his soul whatsoever is laid upon him [il paiera le rachat de son âme d’après tout ce qui lui aura été imposé].”8 This is the translation of E. Dhorme in the Pléiade. Chouraqui says “ransom” instead of “compensation” (but it is still about a price to be paid in exchange, a calculable substitution, a transaction in return in order to buy back or redeem, remunerate, indemnify: there is a going rate, a marketplace of values, a price scale: this is worth that: you gore someone or you let someone be gored by your castrated but horned ox, that equals death, and death — or life — is worth just so much, in money), and Chouraqui says “redemption of his being [rachat de son être]” instead of “redemption of his soul [rachat de son âme],” être and âme meaning, clearly, “life,” “the principle of life,” the essence of the living-being. What follows 6. Adrien Schenker, “Ko¯per et expiation,” Biblica 63 (1982), pp. 32– 46. Reprinted in A. Schenker, Text und Sinn im Alten Testament: Textgeschichtliche und bibeltheologische Studien (Freiburg/Göttingen: Universitätsverlag Freiburg, Vandenhoeck und Ruprecht, 1991), pp. 120– 34. In the typescript, Jacques Derrida systematically writes “köper”: we have corrected this. 7. [Translator’s Note]: The King James Version has “ransom.” 8. La Bible. Ancien Testament, vol. 1, p. 237. [Translator’s Note]: The King James Version has “he shall give for the ransom of his life whatsoever is laid upon him” (Exodus 21:30).

194

142 ‡ si xt h se s sion

195

in the text is a series of indemnities that are carefully calculated, calculable, a price scale — which the author extends into a wide-ranging interpretation of the logics of expiation and the sovereign grace of God. Now the word for “compensation” or “ransom” is, it seems, ko¯per, and the entire article — to which I gave you the reference — is devoted to the use and biblical occurrences of this word. I must give up pursuing the details here; this would require an entire year. It would require, among other things, that we connect this study with the Greek lexicon, both that of Greek culture and anthropology in general and that of the Septuagint translation. The Greek word for ko¯per is lutron, lutra, which, following the same filiation as the word “analysis” (lysis, the action of unbinding, the absolution of a wrong, ransom, expiation) signifies, then, a means of deliverance, a ransom, the price of a ransom, compensation, recompense. Lutron is buying back, ransom, redemption. The verb lutroo¯ means to release from a debt, to deliver in return for a ransom (khre¯mato¯n tina: to deliver someone in exchange for a sum of money). The lutro¯te¯s is the deliverer, the liberator, but also the redeemer. Basically, and it is hardly a stretch, he would be the one who loosens [délie] tongues and releases [délie] from debt, the confessor and the one who absolves, or even gives absolution. The semantics of lusis, of lyse and luein, of unbinding, or even absolution by analysis would put us back on the path of an analysis, of a psycho-analysis bound to unbinding, bound, in its history, to a culture of unbinding, the debt to be expiated, at bottom to a talionic law of the depths, the work of negotiating the best price in order to acquit oneself of an unpayable debt. Let us call this the cost [coût] or the accomplishment [coup] of absolution. No history of psychoanalysis without the history of talionic law and its substitutes; no transference, no price to be paid, and in particular, no monetary price to be paid, in coin of the realm, to the one who stands for, to whom the status of creditor is accredited, the psychoanalyst; no psychoanalysis without one having to pay in the coin of some talionic law. All of this must be taken into account in what we said last time, cautiously, of course, about the visible or invisible worldwide-ization of the analyst’s couch, of the becoming worldwide of the parapsychoanalytic scene of expiatory confession that is underway, and without a doubt this must be connected, analytically, to the analysis of the globalization of the market. In fact, to put it bluntly, the confessions of the powerful of this world are often destined to serve or to save, in the most cynical way possible, some market (cf. Japan and Korea), and even to save their necks. And since I have just evoked, in passing, a few specific situations (seemingly archaic, those of the society and the culture of biblical times) where it was a question of paying a ransom to save one’s life when talionic law

fe brua ry 21, 2 0 01 ‡ 143

prescribed death, a death warranted, according to the terms of talionic law, well then, it is a matter of decency to recall that the price of life, the market of life-death has remained, remains today, an essential and permanent fact in human social life. Here are two or three points that are well known but always good to recall when speaking of the price of life, and of what is worth the trouble [ peine] of being lived, as we were saying. You know perfectly well that, in terms of the news or impact on the worldwide social affect, all lives are not worth the same; a single death by car accident or murder or terrorism in our part of the world often has as much or even more of an impact than the death of thousands or even hundreds of thousands in an earthquake or a war in a poor country. We also know that the difference in average life expectancy is very directly determined by average wealth: poor people die younger, they risk and lose their lives younger, they live less, they die more (this is a social and economic sanction, and also the price of a certain kind of work), for these poor working people with difficult jobs literally cannot treat themselves to that span of life, between fifty and eighty-plus years, which the average wealthy person or bourgeois in general has the luxury to afford. In other words, if all men are condemned to die (in the first of the three senses that we identified), then the poor are more condemned to die (in the second sense, that of the scientific prognosis and not in the third sense of the condemnation to death). But above all, to move toward the more specific problem of criminal law, and even of the death penalty, of the condemnation to death (third sense), it is well known that everywhere, and in particular in the United States, a rich man has a better chance than a poor man of securing his defense in conditions where he can avoid the death penalty, avoid being, precisely, condemned to death; we also know that the majority of those condemned to death are blacks and poor blacks (the typical and frequently cited illustration in the United States is the case of O. J. Simpson,9 a black man who was also a popular sports and movie star, an immensely rich man who was able to spend millions and millions of dollars on his defense and who, many observers said, would have risked his neck otherwise). In other words, the social machine continues to work not only according to talionic law but also according to a talionic law that works as a calculating machine of a properly financial market where the substitute “money” continues, according to subtle and changing paths, to provide absolution by 9. In the typescript: “Joe Simpson.” Accused of murdering his ex-wife and her companion in 1994, Simpson was acquitted in 1995 following a trial that received a lot of media coverage.

196

144 ‡ si xt h se s sion

saving heads, to play a role analogous to the one described in the Bible, even if this market, even if the stratagems of this mercantilization are deferred, mediated, taken over by complex machineries, even if this tactical apparatus is sometimes unrecognizable and always denied.

197

Thus calculation is always busy, preoccupied, interested, provoked, put in motion by what remains properly incalculable. If that which is subject to calculation were calculable, if calculation were not always dealing with the incalculable, there would never be any problem. There would never be any problem of criminal law or of the death penalty if calculation calculated what is calculable, calculated with what is calculable. There is calculation and a problem of calculation, a crisis of calculation, indecision or undecidability of calculation, thus the responsibility of a decision, only where — insofar as calculation is always calculating with what is in-calculable as well as what is non-calculable (in the same way, in fact, that an incalculable and noncalculable forgiveness must forgive only the unforgiveable) — we no longer know, we do not yet know what “calculation” means, no more than we know what “to decide” means, and we must not pretend to know. What is calculation, in a word, if it must always calculate with what is incalculable or non-calculable, where a decision to calculate, a calculating decision, claims to take into account these others of the calculable itself? Account, ratio, calculation. In short, wherever it is a matter of “risking one’s neck,” as they say, of “saving one’s neck,” or yet again of “losing one’s head,” and even when the execution is not a beheading, even when it does not proceed to what is called a decollation, even when it does not leave behind it the nakedness of an acephalous cadaver and a severed neck, well, let’s not conceal it from ourselves, the question of capital punishment is the heading, it comes ahead of all questions but only as the capital question of reason. Of reason as force of calculation: ratio, if not logos. Criminal law is always the ratio, the accounting and countable distribution of rations to citizens, to rights-bearing subjects who are obliged to render public accounts. The question of the death penalty, I’m going to try to explain why, or to make the reason or reasons more explicit, the question of the death penalty is thus also the question of reason, of reason in general, of pure practical and theoretical reason, of logos, of “giving reason” or of “rendering reason,” of “giving an account” (logon didonai, reddere rationem), or even, and this is something else, of being-right [avoir-raison] or being-wrong. Even though Heidegger tried very hard in Der Satz vom Grund (The Principle of Reason) to show that the Latin rationem reddere differs from the Greek logon didonai.

fe brua ry 21, 2 0 01 ‡ 145

One can certainly, without inaccuracy, he says, translate the Greek phrase logon didonai into “giving an account,” “to specify the reason” (Rechenschaft ablegen, den Grund angeben) but one is not thereby properly thinking like a Greek. For a Greek, logon didonai meant, Heidegger wants to say: to offer something present in this or that present (etwas Anwesendes in seinem so und so Anwesen) to an assembling perception (dem versammelnden Vernehmen). The value of assembling, of gathering together (versammeln) is brought back again and again to legen, legein from logos, which also means to assemble, to collect.10 I must leave this hanging and especially not get into the history of the two accentuations of the principle of reason that punctuate, in a way that is at once very subtle, very unstable, and decisive, this entire process as interpreted by Heidegger. More precisely, the question of the death penalty is the question of reason as principle of reason. In passing, here is a question about the question: why does Heidegger, when he meditates so forcefully and in so singular a way on the Principle of reason, der Satz vom Grund, why does he never ask, never ask himself, neither here nor elsewhere as far as I know, the question of the death penalty, or even the question of criminal law? It is true that Heidegger reminds us that the calculating project, the principle of calculation, is, as it were, the principle of the principle of reason, it is the principle of reason itself (11which is not reason itself but one of its dominant figures since Leibniz’s formulation of it (Nihil sine ratione, Nichts ist ohne Grund or principium reddendae rationis sufficientis, which Leibniz also formulates differently: “quod dicere soleo nihil existere nisi cuius reddi potest ratio existentiae sufficiens. The principle of reason ‘that I usually say (in the form): nothing exists for which the sufficient reason for its existence cannot be rendered,’” which Heidegger then translates by introducing the principle of calculation; “every thing counts as existing when and only when it has been securely established as a calculable object for cognition [nur . . . wenn es für das Vorstellen als ein berechenbarer Gegenstand sichergestellt ist]”) (196, 120). Let me underscore “object” here; I will return to it shortly. And to show this, Heidegger must speak Latin, he has reason to recall reason to its Latin lexicon, the lexicon of reason as ratio that signifies (as logos sometimes 10. See Martin Heidegger, Der Satz vom Grund (Pfüllingen: Neske, 1958), p. 181; The Principle of Reason, trans. Reginald Lilly (Bloomington, IN: Indiana University Press, 1996), pp. 108– 9. [Hereafter, page numbers will refer first to the German and then to the English edition.] 11. This parenthesis does not close in the typescript.

198

146 ‡ si xt h se s sion

does, for that matter) an account, a calculation, the account to be given or the account that has been given. Heidegger writes for example (but I invite you to reread everything): 199

For from time immemorial ratio has meant not only “account [Rechenschaft]” in the sense of that which stands to account for something else, that is, founds it [im Sinne dessen, was anderes rechtfertigt, d.h. begründet]. Ratio also means “account for” in the sense of “vindicating,” of confirming something as being in the right, of correctly figuring something out and securing something through such a reckoning [Ratio bedeutet zugleich Rechenschaft im Sinne von rechtfertigen, etwas zu Recht bestehend, als richtig errechnen und durch solche Rechnung sichern]. (196, 120)

To translate the meaning of ratio, the German language brings together here in a striking way the language of calculation or reckoning (Rechnen) and the language of law or justification (Recht, richtig, rechtfertigen) suggesting a kind of essential affinity between law and calculation, between law and accounting, being-guilty or being-responsible according to law, before the law, as being-countable. Everything comes down here, in the rationality of ratio, to some accountability of the countable, to some reckoning, compteà-rendre (to account, to render account, to account for, to be accountable).12 Heidegger immediately continues, but we would need to cite everything and analyze everything: Reckoning in this broad sense [Dieses weit gedachte Rechnen] is the way man takes up something [aufnimmt, takes], undertakes something, and takes it on [aufnimmt, vornimmt und annimt], which means, in general, apprehends, takes in [d.h. überhaupt etwas ver-nimmt: takes-in in two words with a hyphen, which means both to learn and to perceive].13

And Heidegger moves, as if naturally, rightfully, from this family of verbs in nehmen (to take: aufnehmen, vornehmen, annehmen, and above all vernehmen) to reason, to ratio as Vernunft, what is proper to the animal rationale being precisely the determination of reason as calculation: 200

Ratio is a manner of apprehending, which means, it is Reason [Ratio ist die Weise des Vernehmens, d.h. die Vernunft]. Rational cognition follows the principium rationis [Here, Heidegger speaks both languages: Das vernünftige, rationale Vorstellen folgt dem principium rationis]. The principle of reason [Der Satz vom Grund] is the supreme fundamental principle of Reason 12. [Translator’s Note]: The four phrases in parentheses are in English in the original. 13. Heidegger, The Principle of Reason, pp. 197, 120 [translation modified; hereafter, modifications to the published translation will not be signaled].

fe brua ry 21, 2 0 01 ‡ 147

[ist insofern der oberste Grundsatz der Vernunft] insofar as Reason first fully develops its essence as Reason through the principle of reason [zur vollen Entfaltung ihres Wesens gelangt]. (197, 120)

Of course, and I cannot follow out the movement here, Heidegger himself follows this interpretation of reason as an objectifying representation of man, of the animal rationale who is subject to the principle of calculating and insuring or reassuring reason, all the way up to what is at stake in the technocentered rationality of modern times, in information theories, in military strategy and atomic weapons. Heidegger writes the following to characterize the modern situation (I’m reading directly from the translation): [B]eing is experienced as ground/reason [Grund]. Ground/reason [Grund] is interpreted as ratio, as an account [als Rechenschaft gedeutet]. Accordingly humans are the animal rationale, the creature [das Lebewesen] that requires accounts [das Rechenschaft verlangt] and gives accounts [und Rechenschaft gibt]. According to this determination, humans are the reckoning creature, reckoning [rechnen] understood in the broad sense of the word ratio — originally a word in Roman commercial language [ein Wort der römischen Kaufmannssprache] — as already taken over by Cicero at the time that Greek thinking was converted into Roman cognition [into representations: hence Greek thinking, which is thus thinking {Denken}, is translated into representations {das griechische Denken in das römische Vorstellen umgesetzt wird}, translated but also umgesetzt, converted, transformed, changed, and not for the better, thinking having become representation]. (210, 129)

Heidegger sees in this calculating becoming-representation of thinking the meaning of the modern becoming of Europe (“As modern European thinking, this thinking brought the world into the contemporary era, the atomic age”). And if Heidegger judges this situation to be unheimlich, uncanny, it is because what is at stake is the essence of humanity: the being of humanity as animale rationale; does this determination exhaust the essence or even the rational essence of humanity? Is there not an essence of humanity or even a rational essence, a rationality of humanity, that does not end with the authority and the figure of a “principle of reason”? In addition, the allusion to Roman commercial use, to the commercial meaning (Kaufmannssprache) of the word (ratio) leads one to think that calculating reason as juridical reason (for example, insofar as it is dominated by the law of exchange and the law of the talion) is a mercantile reason and that the relation between juridical calculation and market calculation are homogeneous with one another, as if commercial law were not one law among others but the quasi transcendental essence of law. Before being

201

148 ‡ si xt h se s sion

commercial law, before being one law among others, a specialized law as a circumscribed area of the law, alongside private law, civil law, criminal law, all law would be commercial law, all law would be in essence commercial or commercializing, mercantile. (Shylock?14)

202

Though Heidegger does not do so directly in this way, I nonetheless note, given our interests here, particularly those based on the passages I have just cited, that the essentially calculating function (calculation, Rechnen, Rechenschaft) of this reason as principle of reason is constantly associated with the justificatory function of law (Recht, rechtfertigen, richtig), with the rectitude, the exactitude or the correctness of the law, as if there were (and how not to find this hypothesis convincing and reasonable?) a congenitality, a common filiation and foundation, a common justification of law and calculation. Law, which is not the whole of justice, would be calculability. One might be surprised by an omission: when Heidegger thinks the principle of reason as calculation, and finally as principle of law, how can he avoid speaking of the calculation of punishments and the calculation concerning life and death? In the same way, we have been and might still be surprised (once again drawing significant consequences from this symptom, as is the case with every philosopher), surprised, therefore, to discover that this thinker of responsibility or originary guilt (ursprüngliche Verschuldigkeit) never speaks of punishment or pardon, and to discover that this great thinker of being-toward-death never shows any interest in the death penalty. No doubt he would say that this juridical problem is secondary and derivative with respect to an originary being-toward-death: only a being toward death can pose the problem of the death penalty, as a very particular situation; it would be necessary, in an existential analysis, to think what the Sein zum Tode is of a Dasein in order then to pose, as a very circumscribed and very regional, very dependent, and not very fundamental problem, the juridical problem of the right to punish and the death penalty. Had Heidegger treated that in passing, we can imagine that — without for that mat14. During the session, Derrida adds: “We spoke of Shylock last time; one might spend an entire year rereading The Merchant of Venice in light of this hypothesis. I will not do so here.” See Jacques Derrida, Seminar “Perjury and Pardon” (first year, 1997– 98), Session of November 26, 1997, unpublished (forthcoming); J. Derrida, The Death Penalty, vol. 1, “Second Session, December 15, 1999,” p. 66; and J. Derrida, “Qu’est-ce qu’une traduction ‘relevante’?,” in Cahier de l’Herne: Jacques Derrida, ed. Marie-Louise Mallet and Ginette Michaud (Paris: L’Herne, 2004), pp. 561– 76; “What is a ‘Relevant’ Translation?,” trans. Lawrence Venuti, in Critical Inquiry, Volume 27, no. 2 (Winter 2001): pp. 174– 200.

fe brua ry 21, 2 0 01 ‡ 149

ter condemning them or even evaluating them — he would quickly have classified the death penalty and execution as inauthentic ways of putting to death, implicating some machine or some tool (the use of tools, a Zuhandenheit) that would have come to tear Dasein away from its own proper and authentic death; but he would undoubtedly have stressed that this improper and inauthentic death could happen only to a human Dasein, that it remained foreign to the animal about which he never stopped saying that it did not die, in the strict sense of the term, only coming to an end or expiring, and that therefore the death penalty, as derivative and inauthentic as it is, remains what is proper to man as Dasein, namely as a being who is not indifferent to his being. As for the objective calculation of the punishment, it introduces an objective logic of Vorhandenheit when it is a question of Dasein, or even of putting an end to Dasein, and that would mean a fall into the uneigentlich (but Heidegger does not say this, I am presuming it, all the while telling myself that this analysis that I am here attributing to Heidegger following his logic would not signify, would not entail, any necessary condemnation of the condemnation to death. Moreover, it would simply find its place in the nevertheless negative connotation of calculation and more precisely of law, above all of the law of the Roman State, of which we have so many recurring examples in Heidegger. Whether we inherit it from biblical texts or Roman law, the law of the talion would stand little chance of being taken into consideration — if only to be called into question — in this context of the allegedly originary questioning that Heidegger is always calling for. We can nonetheless be surprised and take it as something symptomatic that a thinker of being-toward-death as the essence of Dasein speaks neither of murder nor of the death penalty.)15 As for the calculation of reason, ratio as calculation, the counting machine that manages or treats life and death, we might all the same be tempted to find a quick reference to it in Der Satz vom Grund. It’s at the moment that Heidegger reminds us that there is nothing fortuitous about the fact that the inventor of the formula of the principle of reason, nihil sine ratione (this principle of reason that, following a long period of latency or incubation in Western philosophy, in the history of philosophical reason, had finally found its explicit and systematic formulation, its most emphatic determination, had finally determined reason in the figure of the principle of reason, nihil sine ratione), well, the inventor of this formalizing formulation, Leibniz, was also the inventor of life insurance (Lebensversicherung). Heidegger notes this in passing and in parentheses in a passage where, in 15. The closing parenthesis has been added by the editors.

203

150 ‡ si xt h se s sion

204

a discussion of the atom bomb (1955– 56), he wants to define scientific calculation, inasmuch as it puts the principle of reason to work, as a system of insurances, an insurance-generating machine. By freeing new sources of energy (atomic sources, precisely), science must provide the assurance16 (sicherstellen Sicherstellung) that atomic energy can be used and above all calculated with a view to new insurances. Today we would no doubt speak of a precautionary principle called for by the implementation of new and still unprecedented possibilities. There is the force (Gewalt) of a demand (Anspruch) that a principle of sufficient reason always be provided. “Unter dieser Gewalt des Anspruches festigt sich der Grundzug des heutigen menschlichen Daseins, das überall auf Sicherheit arbeitet”: The fundamental character of contemporary human existence [Dasein] that everywhere looks for security [assurance] is consolidated under the force of this demand. . . . Yet, the work of safeguarding life [Die Arbeit an der Sicherstellung des Lebens] must itself constantly be secured anew. The keyword [Leitwort] for this fundamental demeanor of contemporary existence is: “information.” We must hear this word with an American-English pronunciation [in der amerikanisch-englischen Aussprache]. (202, 124)

205

What follows then is an analysis of the interpretation of language as information that alone has provided the sufficient grounds for the construction of thinking machines (Denkmaschinen) and large calculating machines (Grossrechenanlagen). It is a matter of information as in information technology as well as of information as production and transmission of news. Law, including the death penalty (whether one is for it or against it), could be interpreted (Heidegger does not do so) as one of the modalities of these life insurances and of information put at the service of life insurance, whether one is inspired by the inalienable right to life to condemn the death penalty, or whether, on the contrary, one puts the death penalty (in its supposedly deterrent and defensive function) at the service of security, of life insurance and the survival of the social body. One can interpret the entire history and especially the modern history (I mean the last three centuries) of the death penalty, of the criminal law that includes the death penalty, of the discourses justifying or debating the death penalty, as a history of insurances, social insurances, or even social security. It’s always a matter — read Beccaria as well as Rousseau — of knowing if the best social contract, guaranteeing the security of its citizens, especially when it comes to their life, must or must 16. [Translator’s Note]: In French, the word assurance means both insurance and assurance. Derrida is playing on this double meaning of assurance throughout this passage.

fe brua ry 21, 2 0 01 ‡ 151

not rationally inscribe the death penalty. Which is the best social contract, the best mutual insurance coverage, the best social life insurance? Is it the one that prescribes or the one that proscribes the death penalty? With the exception of Kant’s discourse, for the reasons I’ve given, all the arguments for or against the death penalty are constituted against this horizon of insurance, of this calculation of probabilities without which an insurance, in particular a life insurance, has no chance of being instituted. When it is a matter of insurance, one must also take into account precisely the fact that this modern principle of reason, this interpretation, this accentuation of the principle of reason (one of the tonal accentuations that bears on beings — everything that is [a being] has a reason — and not on sameness, the Same, as in the second accentuation, the Same as Being and Grund), this first accentuation (Tonart) consists, in the era of representation (Vorstellen, Vorstellung), of interpreting beings as objects. What lends itself to calculation is the object, that which is in the figure of the object. What enters into a quantifiable calculation [calcul comptable] is first objectivated. What cannot be entered into a quantifiable calculation is what does not let itself be objectivated, objectified. Not necessarily the subject (for the subject can also be an objectifiable being) or else, yes, a subjectivity of the subject that, like the subjectivity defined by Kierkegaard, is the absolute singular of an existence that does not let itself be represented, objectivated, or dialectized. This absolute subjectivity cannot become a rights-bearing subject or a calculable subject-object; it radically and forever escapes law, penal calculation, ethics, the ethical stage as stage of generality, the equivalences and different figures of talionic law. And yet, according to Heidegger, and no doubt this is why his existential analytic as well as his meditation on the Principle of reason have nothing to do with law or criminal law, the modern era has determined being, in the transcendental sense, as Gegenständigkeit, as objectity, and the latter as condition of possibility of the object (Bedingung der Möglichkeit des Gegenstandes). Once again, if we were not obliged to calculate the economy of our time (and incidentally all calculation has in the end to do with the spacing of time, the economy of time, even and above all when it is a question of life death: what am I going to do, what must I do to optimize or maximize or intensify the time I have left to live, that is the question of every mortal), well, if we were not obliged to calculate the economy of our time, I think we would have to read Der Satz vom Grund very closely. But we cannot do this together; do it on your own. It is a book, a lecture course in fact, of great richness. I will have to limit myself to two clarifications.

206

152 ‡ si xt h se s sion

207

1. The first touches on death in The Principle of Reason, not on the death penalty but, if I can say this, on what is at stake and in play [se joue] in death, what is involved in death, what is given in death, what is posed in death, between calculation and the incalculable, between the Game according to the rule of the game as rule of calculation, and another thinking of the Game without measure, without calculation and without rule of calculation. Since everything is played out here very close to the letter of the text, I am going to follow, translate, and comment on, as closely as possible, a passage that is at the end of the course, from the thirteenth and last session of the course titled Der Satz vom Grund (184– 87, 110– 13). It’s right before the address that bears the same title and synoptically summarizes the course. What will guide my reading and my frame of reference is the question of the death penalty (which is of course never mentioned, as I have stressed, nor is it even at a distance or indirectly situated on the horizon of Heidegger’s reflection), well then, the question of the death penalty that interests us, including its calculating principle of jus talionis, would have its place in this play between the calculable and the incalculable in the essence of reason for the mortals that we are. For though he does not take any interest at any moment in the death penalty, Heidegger names17 the calculable, the measurable, the nonmeasurable, and he does so when naming us, we mortals (wir Sterbliche), and in particular, we Europeans of modernity. In the second accentuation of Der Satz vom Grund, “nihil est sine ratione,” it would no longer be a matter of thinking being from beings, from that which is a being [de ce qui est étant], but rather as being, that is, as ground (Grund), and the whole book is a powerful meditation on the German word Grund, which can also be translated as foundation or principle or axiom (Grundsatz), whence the title of the work, Der Satz vom Grund, which allows for the translation The Principle of Reason, though it loses all the semantic play of Grund, which Heidegger will reconstitute by constantly juxtaposing it with the semantics of the Latin ratio. The title The Principle of Reason also loses all of Heidegger’s serious play with Satz, which, while it means many things including the proposition that is put forth, also means the being that is ventured [misé] ( gesetzt), the being that is posited, wagered [engagé], etc., and the leap, and the leap18 (Satz, also Sprung), discontinuity, the leap from the abyss or into the abyss (Abgrund), which will give this discourse one of its decisive resources. Heidegger, then, in the second accentuation of “nihil est sine ratione,” had determined being as ground (Sein as Grund) and not 17. In the typescript: “he names.” 18. As such in the typescript, referring to the two German terms Satz and Sprung.

fe brua ry 21, 2 0 01 ‡ 153

as ratio or cause (Ursache) or rational grounding (Vernunftgrund) or reason (Vernunft), but as a gathering that lets the things before us be (versammelndes Vorliegenlassen). This is put forward on the basis of a thinking of logos, of legein as gathering. Sein and Grund are not an empty uniformity but the hidden plenitude (die verborgene Fülle) of what, in the sending [envoi], in the dispensation of being as history (im Seinsgechick als Geschichte), first appears as the history of Western thinking (184, 110). In other words, the history of the West, of the West as thinking, is a history of reason, to be sure, but not that of Latin rationality, of calculation, of causality between beings, of objective sciences, etc.; rather it is a history of that which thinks being as ground, and a ground that is not a causal and objective grounding, a representable grounding, but a ground of the ground, thus a ground without ground, a Grund that is also an Ab-Grund. Whence the formula of this second accentuation: being (and not beings) is reason, of course, but if Being (Sein) is Reason (Grund and not ratio), well then, Being and Grund are the Same (das Selbe). This also means: Being = Ab-Grund, abyss, both reason and without reason. Reason without reason. One will never be able to justify the reason that justifies everything, as one might say following a common-sense line of argument that is not exactly Heideggerian in style. Reason is without reason. It rests only on itself, that is to say, on nothing, on nothing else, as being. Insofar as it grounds, being has no grounding, it is without ground, it is without reason, the without-reason, the without-ground (Abgrund), the fathomless (Bodenlose). This may appear to be both a provocative formulation and just common sense: that which grounds cannot be grounded. That which grounds, the grounding, is necessarily ungrounded, without ground. One could, as I for my part do all the time, draw countless consequences from this obvious fact: the grounding of anything whatsoever, for example, a state, a constitution, an institution, is never grounded, legitimate, legal, since it grounds. The founding of a state is always violent, as is the institution of a principle or a law. The positing of something, for example, a state — this is, of course, not one of Heidegger’s examples — or a law or a constitution, this “positing,” this position (Setzung, if you like) is a leap since it is a matter of positing what was not there, and this by means of a gesture that is necessarily inaugural, violent, without prior justification, whence the relation of affinity between the Setzen, positing, positioning, and proposition (Satz) but also the leap (Satz). This is what Heidegger calls the leap (Satz or Sprung). With this leap, he asks, do we not fall into the fathomless abyss (ins Bodenlose)? Yes and no, Ja und Nein, replies Heidegger. Yes, because it is impossible to bring

208

154 ‡ si xt h se s sion

209

210

being back to a basis (Boden) in the sense of beings, of what is as a reassuring, assured basis. No, insofar as, for the first time, being is finally thought as being — and not in terms of beings. Being then becomes, from out of its own truth — and here we must speak German — the Mass-Gebende, in two words with a hyphen, we will see why, le Déterminant [the Determining] says the French translation, literally that which gives the measure, the giving, the giver of measure, an expression in which the reference to the gift counts no less than the reference to the dimension of measure, of the measurable, of the calculable. Thus, the mode or way of thinking (die Weise des Denkens) has a duty; it must measure itself against, or take its measure from, this gift of the measure, this given measure (muss sich dieser Mass-Gabe anmessen). But it is not possible for us to take this measure for ourselves and give it to ourselves through any calculation (Errechnen), any account, any accounting, or any measurement (Ausmessen). We cannot give an account of it or take account of it. That’s where there is a leap (Sprung): we cannot measure, we ourselves cannot calculate the gift of this measure. We can neither count [compter avec] it nor count on [compter sur] it. We cannot measure this gift of the measure, which consequently becomes for us incommensurable, immeasurable, immense, measureless, incalculable, outside the range of any rational calculation. Translated in simple terms, one might say that the origin of calculating reason is a-rational and incalculable. Immense (186, 111). This is the place of the leap that brings thinking into the Play (Spiel) of that19 where being reposes (ruht) as being. But this repose of being as being is not exactly restful; it is not a repose that poses being on a foundation upon which it can rest (beruht). Being reposes without repose since it rests on nothing that is, on no being, since it is supported by no foundation, since it is a ground without ground (both Grund and Abgrund, Abgrund because Grund), indissociably: Grund as being is Ab-Grund, the ground is without ground. The foundation founds only by remaining, for its part, unfounded. The leap is what brings thinking into this Play, a Play in which the essence of man, the being of man, human being is gesetzt: not simply “played out,” “se joue,” as the French translation has it (Par un tel saut la pensée mesure toute la portée et la grandeur de ce jeu où se joue notre condition d’homme,20 for Das Denken gelangt durch diesen Sprung in die Weite jenes Spiels, auf das unser Menschenwesen gesetzt ist but more literally: “Thinking accedes, through such a leap, to the vast immensity of this play in which our being as humans, 19. As such in the typescript. 20. Martin Heidegger, Le Principe de raison, trans. A. Préau (Paris: Gallimard, 1962), p. 240.

fe brua ry 21, 2 0 01 ‡ 155

our essence of human being gesetzt ist: is posited, but also pledged [engagée], ventured [misée], played, risked” [186, 111]).21 This “gesetzt” is richly polysemic; it gestures toward the position, the leap, the risk, the wager of the engagement, it plays with the play but also with the position, and also with the proposition as leap (Satz). We are posited in this play, in this leap, we are played in it, ventured, wagered, pledged, we become human, and we say “we” humans, we become what we are as posited, wagered, pledged, played, sprung and springing into the leap of this play of reason, of this history of being as abyssal ground (Grund as Abgrund), incalculable calculability, measure without measure. Before thinking the essence of man as animal rationale, dignity of the human person, end in itself, etc. (so many things that justify the Kantian discourse, especially when it comes to the calculation of law and the death penalty), one must think the essence of man on the basis of this being wagered, posited, set in play, in the measureless gift of the measure, in the gift of the measure of the immense, etc. In this regard, had he spoken in this context of juridical rationality, of the death penalty, of criminal law and talionic law, Heidegger might have said that this calculating rationalization (in its Kantian form, for example) was an attempt to obscure this play, to evade and hide from oneself the abyss of the incalculable at the bottom of the calculable, a historical attempt to impose reason on [arraisonner] what remains unfathomable and incommensurable and incalculable in the origin of this measuring and measured reason. Heidegger, it is true, does not speak of law, of juridical rationality or of the death penalty, but he does speak of death and our mortality in this same passage. Asking himself about what the secret of this as yet unthought play (the Geheimnis des Spiels) is, he ends up replying that death, in whose proximity we mortals (wir Sterbliche) dwell (wir in der Nähe des Todes wohnen) — and to dwell is to live in proximity to death, as the most supreme possibility of Dasein — death is this as yet unthought gift of the measure of the unmeasurable, of the immense, that is, of the most elevated Play in which humans are engaged on their earthly path, and in which, once again, they are gesetzt, posited, played, risked, wagered [ gagé], at stake [engagé]. Death is a gift (death gives or is given), it is an as-yet unthought gift, but the gift of a measure of what cannot be measured (Der Tod ist die noch ungedachte Massgabe des Unermesslichen, d.h. des höchsten Spiels in das der Mensch irdisch gebracht, auf das er gesetzt ist) (186– 87, 112). Heidegger is still playing seriously, as he does elsewhere, on Gabe, on Massgabe, which in everyday German simply means: rule, measure, proportion, determining norm, etc. He adds a hyphen 21. The closing parenthesis has been added by the editors.

211

156 ‡ si xt h se s sion

212

to provoke us to think the gift, Gabe, as well as the measure. The measure is death. The first or the last measure. It is the measure because it gives the measure, and giving the measure, it is not measurable; thus it gives the measure of the unfathomable from the unfathomable. And this holds true for the thinking of the gift without ground and without exchange, without calculation, as well as for the thinking of the grounding without ground, of Grund as Abgrund or of the Measure and the Calculation of the noncalculable unfathomable. To give the measure. What does it mean “to give the measure”? This gift of measure, or this beat, which might make one think of musical harmony (which Heidegger does not mention in this passage), could lead us in the direction of another passage in the same text, in the same course,22 one that I also choose to mention because it involves Oedipus, about whom we have spoken at length in previous sessions, more specifically Hölderlin’s “Remarks” on his translations of Sophocles’s Oedipus Rex and Antigone. As he elaborates the relations between ratio, Grund, Vernunft, Heidegger recalls the origin of ratio, namely reor. Reor means to reckon, to calculate. Reor: I think in the sense of “I calculate,” “I reckon,” “I speculate.” This broad sense of the verb reckoning (Rechnen) also determines the sense of the word calculation (which Heidegger writes in Latin here Kalkül), of mathematical calculation. But, Heidegger notes, there is another sense, a nonmathematical sense, a nonmathematical sense of calculation. Hölderlin, in his “Remarks” on his translations . . . , uses the word “calculation” in a deeper sense, notes Heidegger (in einem tieferen Sinne). (Cite and comment here on Satz vom Grund trans. and original [H., pp. 172– 73 and 102– 3].) Broadly conceived, this reckoning also determines the sense of the word “calculation.” One speaks of mathematical calculation. But there is also another kind. Even Hölderlin used the word “calculation” in a deeper sense in his “Remarks” on his translations of Sophocles’s Oedipus Rex and Antigone.23 In the “Remarks on Oedipus” one reads: When being compared with those of the Greeks, other works of art, too, lack reliability; at least, they have been judged until today according to 22. See Heidegger, The Principle of Reason, pp.172, 103. 23. Friedrich Hölderlin, “Remarks on Oedipus” and “Remarks on Antigone,” in Friedrich Hölderlin: Essays and Letters on Theory, trans. Thomas Pfau (New York: SUNY Press, 1988), p. 101, p. 109.

fe brua ry 21, 2 0 01 ‡ 157

the impressions which they made rather than according to their lawful calculation and their other mode of operation through which the beautiful is engendered. And further: The law, the calculation, the way in which a sensuous system, man in his entirety develops as if under the influence of the element, and how representation, sensation and reason appear in different successions yet always according to a certain law, exists in tragedy more as a state of balance than as mere succession. And the “Remarks on Antigone” begin: The rule, the calculable law of Antigone compares to that of Oedipus like / to \ so that the balance inclines more from the beginning toward the end than from the end toward the beginning. Insofar as both sets of remarks speak of “balance,” the calculation named here also seems to be represented in a quantitative-mechanical, mathematical way. Yet the balance named by Hölderlin belongs to the balance of the artwork and to the way it finds its balance, that is, to tragic presentation in tragedy. (translation modified)24

What I want to emphasize here is that one can deduce no ethical or politico-juridical position on the death penalty from such a discourse, because of the very force of such a discourse. Or more precisely, from the very same premises, one can both justify and oppose the death penalty. This is no doubt one of the reasons among others for Heidegger’s silence on this topic. One can justify it by saying that we are all mortal in any case, that death gives the measure, and that one must not turn what is merely a derived, circumscribed, and inauthentic modality of dying, of death, into a fundamental problem, that, moreover, the insuring and calculating drive is irrepressible. But conversely, in the name of the incalculable, one can oppose this alleged calculation of juridical rationality that claims to find equivalences and justify a just calculability of putting to death, of giving death. In any case, that which death gives, the measure and the immensity, remains incommensurable with this giving of death, with this putting to death that is called the death penalty — which remains, like the jus talionis, both too Hebraic and too Roman (comment on Heidegger on jus and dike¯, cf. Specters of 24. After quoting this passage during the session, Derrida briefly adds the following commentary: “What I want to observe here is that Heidegger wants to speak of a calculation that is no longer mathematizable.”

213

158 ‡ si xt h se s sion

214

Marx25). Thus both positions or oppositions are possible. And yet, speaking for myself (and not Heidegger), I would say that it is precisely where they are equally possible and thus undecidable that a decision and a responsibility must be taken. This is what we are proposing to do here. Jumping back to Kant and to his difficulty with the calculation of juridical rationality and criminal law, to his hidden discomfort, to his remorse before the need to calculate, according to the law of the talion, as categorical imperative, a seemingly improbable and incalculable equivalence: examples of rape, homosexuality, or bestiality for which one must calculate equivalents as unconvincing as castration or exile from the city, which are themselves two figures, two figural substitutes, for capital punishment. How to keep one’s reason in the face of capital punishment? It is thus indeed a question of reason, of ratio, a faculty whose supposed seat is the head, the top [chef ], the chief [chef ], caput, being also what is supposed to command and control from the principium, the primacy of the principle or the prince, the commencement and the commandment (arkhe¯), and it is no coincidence that the question of capital punishment, as the question of reason, is also, in the last resort, the question of the sovereign or sovereignty. But as we have just seen, one can make it see reason, recall the question of capital punishment back to the question of reason, bring it back to the question of reason in its most ambitious philosophical form, by means of yet another path, one that is perhaps less easy and less obvious, a little more roundabout [détournée], if not disorienting [déroutante]. So, returning to my conclusion in the last session,26 let me reiterate, I think we are now ready to understand something about what I referred to at the outset as Kant’s remorse, in the form he gives this deferred appendix 25. During the session, Derrida adds: “Here, I would refer you to a passage in Specters of Marx, where I discuss what Heidegger says about jus and dike¯. He is against the Roman jus, against the Romans’ juridical representation of justice, if you like, and he also interprets dike¯ — this is one of the questions that I ask, I can’t go into it here, I refer you to Specters of Marx — he also interprets dike¯ as a Versammeln, as a harmony, hence the example of Gleichgewicht, of balance, of harmony, in the Hölderlin quotation, a calculable balance or harmony, but calculable in a nonmathematical way. And this is what seems questionable to me, but I cannot go into it here.” See Jacques Derrida, Spectres de Marx. L’État de la dette, le travail du deuil et la nouvelle Internationale (Paris: Galilée, 1993), pp. 49 ff.; Specters of Marx: The State of the Debt, the Work of Mourning, and the New International, trans. Peggy Kamuf (New York: Routledge, 1994), pp. 23 ff. 26. In the typescript: “in the last (before last) session.” See above, “Fifth Session, February 7, 2001,” p. 134.

fe brua ry 21, 2 0 01 ‡ 159

titled “Further Discussion of the Concept of the Right to Punish” (Zusatz zur Erörterung der Begriffe des Strafrechts). The considerable import of this appendix, which must be examined, as I was saying, in its literality, very closely, seems to me related less to the theatrical and upsetting nature of the examples of crime (rape, pederasty, bestiality) or peculiar examples of punishment (castration, ostracism) than to something more historical in the history of humanity, something that has gone largely unnoticed until now, as far as I know, namely the premises of what, since only 1945 (the Nuremberg Trials), has been identified and inscribed in international law, namely the concept of a crime against humanity. As we will see, there is, in Kant’s appendix, something like the idea of a concept of a crime against humanity. And by extension the reaffirmation of a certain essence of man, his “dignity,” which we would do well to consider from the perspective of what Heidegger says about it (hence my detour today) when, in order to think that in which man, the human being of man, the essence of the human, what is proper to the human, is gesetzt (posited, played, ventured, risked, wagered), he speaks of play, of death, of the incalculable gift of calculation, of the unfathomable gift of measure, of the gift without reason of reason, etc. My aim, then, as you have understood, is thus to reinscribe within a configuration that, up until now, has gone unnoticed or, in any case, is rarely touched upon, these three types of response to the question of the death penalty as calculation: the Kantian discourse on talionic law and calculation, the Heideggerian discourse on reason and the incalculable, the Freudian or Reikian discourse on talionic law, punishment, the death penalty and the historical passage from punishment to generalized confession. That being said, and again I reiterate to stress this point, I wouldn’t want my irony last time on the subject of the worldwide-ization of psychoanalysis to give rise — along with a smile — to any confusion. We must believe in and hope for the worldwide-ization of psychoanalysis, however uncertain, obscure, and indirect its paths. Beyond all possible or real caricature, it is certain, as I was saying, that if a transformation (already underway, in fact, and in any case so necessary) of international law and the very axiomatics of law, ethics, and politics is to come to pass, right down to their most fundamental concepts and principles (and the question of the death penalty is, in this regard, only an example and a guiding thread, but also a very privileged symptom), well then, this transformation passes and must pass through a consideration, direct or indirect, explicit or implicit, by conscious or unconscious contagion, of something like revolution, or even psychoanalytic reason, revolution as psychoanalytic reason. At issue here is a history of

215

216

160 ‡ si xt h se s sion

reason and the mutation that something like psychoanalysis might inscribe in it — which is not an irrationality but perhaps another reason, another putting into play [mise en jeu] of reason. Next time, before returning to Freud and Reik, when I read this little text of Kant’s with you, the two passages I will emphasize will be, then, the following. They speak, in the first instance, of the “respect for the humanity in the person of the wrongdoer (i.e., respect for the species) [Achtung für die Menschheit in der Person des Missethäters (d.i. für die Gattung)]” (6: 362– 63, 497), and in the second, of those “crimes . . . [that] are called unnatural because they are perpetrated against humanity itself [Die gedachten Verbrechen heissen darum unnatürlich, weil sie an der Menschheit selbst ausgeübt werden]” (6: 363, 498). (Kant, pp. 497– 98, German, pp. 362– 63) The mere idea of a civil constitution among human beings carries with it the concept of punitive justice belonging to the supreme authority. The only question is whether it is a matter of indifference to the legislator what kinds of punishment are adopted, as long as they are effective measures for eradicating crime (which violates the security a state gives each in his possession of what is his), or whether the legislator must also take into account respect for the humanity in the person of the wrongdoer (i.e., respect for the species) simply on grounds of right. I said that the ius talionis is by its form always the principle for the right to punish since it alone is the principle determining this idea a priori (not derived from experience of which measures would be most effective for eradicating crime).

217

And a little further: The crimes mentioned are called unnatural because they are perpetrated against humanity itself.

seventh session

February 28, 2001 h

What happens when a measure is given? Measure belongs to the order of the calculable, but remember that the gift of measure (Mass-Gabe) perhaps is not.1 Reason or the principle of reason can be given, but the gift that gives them might not belong to rational calculation. The gift of measure might therefore be, as gift, without measure. Let’s wait and see. Two words and two measures to begin with, exactly like two notes suspended — let them fly on their own, these two words, like kites held more or less loosely, waiting to see where the wind, the good wind or the ill, will take them, whether it makes them rise up or lets them fall back down. Two words, then: juré, “juror” and merci, “thanks,” the one who has sworn an oath [le juré] and the expression of thanks [le merci]. 1. The juré, adjective or noun, is the one in a profession who is bound by an oath, a sworn oath (the doctor, the immortal grammarian [ grammairien juré],2 and in an artisan’s guild, the sworn master) as well as the sworn member of a jury who judges. The juror has taken an oath; he has sworn, and he judges in a court of justice; he exercises the right to judge. A few years ago, when the question was testimony, we looked at the sworn oath [ foi jurée] and the pledge [serment],3 and we read together those texts of Benveniste that define the pledge as an ordeal [ordalie].4 An ordeal in one of two ways: either 1. as an actual ordeal (for example, swallowing 1. As such in the typescript. 2. [Translator’s Note]: According to the Littré, “Grammairiens jurés” was a nickname for the members of the Académie française. 3. See Jacques Derrida, Seminar “Testimony” (first year, 1992– 93), Session of November 4, 1992, unpublished (forthcoming), where the discussion of Benveniste does not however contain any explicit reference to the ordeal [ordalie]. 4. Émile Benveniste, Indo-European Language and Society, p. 393 and p. 433.

220

162 ‡ se v en t h se s sion

221

sulfur, which was supposed to attest to the sincerity of the one who was swearing an oath in Persian culture, where the word for swearing literally means to eat, to consume the sokand, the sulfur — and I mention this because the ordeal will come up later [ordalie, ordäl, and perhaps also Urtheil] as a certain experience of introjection) — or else [define the pledge] 2. as an anticipated ordeal: the one who takes an oath, Benveniste says, puts at risk for the future something that is vitally necessary to him, a material possession, his kin, even his own life, to guarantee the veracity of his affirmation, the sincerity of his engagement, of his pledge [ gage], of his sworn oath. What we find here is clearly a sacrificial practice, one that occasionally gave rise to animal sacrifices. I will give only one example of this, and I choose this example both because it concerns the death penalty as a decapitation that cuts the culpable one in two [qui coupe en deux le coupable] and because we were speaking and will continue to speak of the ox, namely the bull who is “cut,” the castrated bull. Well then, in more than one ancient civilization, Benveniste says, the taking of the oath, the oath sworn in the ordeal, gave rise to the sacrifice of an ox cut in two, divided in two, the object of a split and a splitting, of a division, and down the middle of which those who were taking the oath were obliged to pass. According to the terms of an oath that the Grand-Duke of Lithuania had to swear to the King of Hungary in 1351, he who was swearing had to pass between the two halves of the ox that had been cut in two, split, partitioned in two parts and to declare that such would be his fate if he didn’t keep his promise (sic sibi contingi si promissa non servaret). The word “ordeal,” which we will speak of again, a word that has come to designate, as you know, a medieval legal trial in the course of which the judgment of God was rendered, assumed to be rendered in the course of all sorts of probative rituals that we will discuss again, the word “ordeal,” whose analogous equivalents can be found in all cultures of the world, seems to come from the Low Latin ordalium, ordela, and in its German lineage, from the Anglo-Saxon ordâl (which gives us ordeal) but, in a much more interesting way, if we believe Littré, from the German Urthel, Urtheil, judgment, verdict, but as originary partition, Ur-teilen, and you know that Hegel speculated widely on the coincidence, precisely and felicitously speculative, that this word means judgment (Urteil) but also judgment as originary division, archi-dissociation. If then we were to ask ourselves, still in anticipation, so as to go straight to the most abstract concept, “What is an ordeal?” and “What could an ordeal possibly have to do with the death penalty?,” well then, we would have to say that the ordeal is a proof [preuve], a preliminary test, or rather a truth trial [épreuve de vérité], or more precisely the trial of veracity, that

fe brua ry 2 8 , 2 0 01 ‡ 163

is to say, of the sincerity of true-speaking [un dire-vrai]. It’s a matter of putting to the test the sincerity or the good faith of a testimony under oath. As this test of veracity, this test of true-speaking also comes down, if truth be told, like a judgment (Urteil), we would say that it’s a verdict (veridictum), a sentence. The sentence or the verdict comes to a stop [s’arrête]; it arrests [arrête], issues a sentence [ fait arrêt] (and sometimes a death sentence [arrêt de mort], hence the connection to the death penalty), and issues a sentence — and the proof or the trial consists in this — there where it [ça] does not lie, it [ça] lies no more; Nothing lies anymore; the Thing no longer lies; all bets are off for the lie [Rien ne va plus pour le mensonge]: neither God, nor consciousness, nor the body, nor the unconscious. Neither God, nor consciousness, nor the body, nor the unconscious can find refuge in any deception outside the veridictum of the verdict. The verdict of the ordeal is absolute because it leaves no alibi for the body, the unconscious, and even less consciousness. In the verdict, veracity is arrested [arrêtée] without alibi. So, judgment and ordeal. I refer you to §166 of the Encyclopedia of Philosophical Sciences. Hegel notes there that “the etymological meaning of Urteil in our language [in unserer Sprache] goes deeper [tiefer], as it were declaring the unity of the notion to be primary, and its distinction [dessen Unterscheidung {that cuts}] to be the original partition [als die ursprüngliche Teilung]. And that is what the Judgement really is [was das Urteil in Wahrheit ist].”5 Judgment is, in truth, a dissociation, an originary split; it begins by dividing in two (subject/predicate), as Hegel demonstrates throughout this entire chapter to which I refer you; just as I leave it to you to imagine the ordeal of the [French] translator, in this case Maurice de Gandillac, who confesses in a note: “Ur refers to the idea of originality, and Teil means part. By using the verb urteilen in this double sense in all that follows, Hegel once more creates a virtually insoluble problem for his translators.”6 A little later we will look at Hegel’s philosophy of right, his complicated critique of Beccaria (§100) and his interpretation of talionic law (Wiedervergeltung der Strafe); he wants to show (§101) that, though it is easy to represent (darzustellen) the absurdity (Absurdität) of talionic law — as when one 5. G. W. F. Hegel, Enzyklopädie der philosophischen Wissenschaften im Grundrisse (1830), in Werke in zwanzig Bänden (Frankfurt am Main: Suhrkamp, 1970), vol. 8, pp. 316– 17; Hegel’s Logic, trans. William Finlay (Oxford: Clarendon Press, 1975), p. 231. [Hereafter, page numbers will refer first to the German and then to the English edition; modifications to the published translation will not be signaled.] 6. Hegel, Encyclopédie des sciences philosophiques en abrégé, trans. Maurice de Gandillac (Paris: Gallimard, 1970), pp. 192– 93.

222

164 ‡ se v en t h se s sion

223

says theft for theft, eye for eye, tooth for tooth (images that represent the criminal as one-eyed and toothless) — on the other hand, if we think value as the inner equivalence of things (das innere Gleiche von Sachen), if we go to the essence of what the criminal deserves (das Wesentliche, was der Verbrecher verdient hat) and not to the external form, not to the image of the punishment, then we are thinking equality, equivalence (and thus a talionic law) in conformity with the concept and with reason. We will no doubt have the opportunity to situate both the continuity and the discontinuity between Kant and Hegel on the death penalty and the talion. Both are in favor of it, but the Hegelian distinction — between, on the one hand, abstract, intellectual equality or equivalence, that of the understanding, and, on the other hand, rational equivalence on the order of the concept, reason and thinking — traces a subtle but perhaps decisive boundary between the two, Kant and Hegel, between their evaluation of the relation between penal law and the state. We would also have to take into account the Hegelian discourse on sovereignty (§279) and on the right to pardon (Begnadigungsrecht, §282 sq.) that follows from it. This right to pardon that belongs to the sovereign monarch is one of the highest recognitions of the majesty of spirit (eine der höchsten Anerkennungen der Majestät des Geistes), namely the actualization, the becoming actual of the power of spirit (die Verwirklichung der Macht des Geistes), its power, the properly spiritual power to do this extraordinary thing, namely to make undone what has been done (das Geschehene ungeschehen zu machen), to make the event that has taken place not to have taken place [lieu], to make it such that what has happened has not happened as a result of this undoing [non-lieu]; and it is the highest power of spirit to be able to annihilate a crime by forgiving and forgetting, not only by forgiving but by forgiving and forgetting. Spirit, which is also interiorization and memory, then rises to the height of its sovereign majesty by forgiving and forgetting; it has the force to annihilate, to reduce to nothingness, a crime that has been committed by forgiving and forgetting (und im Vergeben und Vergessen das Verbrechen zu vernichten). Clearly this majesty of spirit, which is embodied only in the sovereignty of the monarch, rises above not only every judiciary judgment, every Urteil, every ordeal but also above talionic law (Wiedervergeltung der Strafe).7 7. Hegel, Grundlinien der Philosophie des Rechts, in Werke in zwanzig Bänden (Frankfurt am Main: Suhrkamp, 1970), vol. 7, p. 454; Hegel’s Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967), p. 186. [In his discussion of the Philosophy of Right, Derrida will himself translate the passages in question.]

fe brua ry 2 8 , 2 0 01 ‡ 165

This, then, is the first word or the first lexical family that we will let hover, suspended: sworn oath, judgment, Urteil, originary partition, ordeal. Next, merci: second word, second lexical family, merci. Can one say “merci” to the judge, to the executioner, to the one who punishes you? Can one say “merci” when facing the punishment, to the punishment, merci between crime and punishment, merci before the castigation or even before the castration that befalls you? And what does “merci” mean, then? In French or English, merci or mercy8? Gratitude or pardon? Pardon (mercy9), that is to say, Vergeben, as Hegel was just saying, or forgiveness.10 Would such a merci respond, and if so how, to a demand for punishment, to a desire to be punished? And we ought not to rule out the possibility that some obscure alliance is forged between these two families, between all the figures of “merci” and all the trials of the “ordeal.” (Begin by reading Kant’s text without commentary [“Further Discussion of the Concept of the Right to Punish”] [Ak 6: 362– 63, 497– 98]) The mere idea of a civil constitution among human beings carries with it the concept of punitive justice belonging to the supreme authority. The only question is whether it is a matter of indifference to the legislator what kinds of punishment are adopted, as long as they are effective measures for eradicating crime (which violates the security a state gives each in his possession of what is his), or whether the legislator must also take into account respect for the humanity in the person of the wrongdoer (i.e., respect for the species) simply on grounds of right. I say that the ius talionis is by its form always the principle for the right to punish since it alone is the principle determining this idea a priori (not derived from experience of which measures would be most effective for eradicating crime).* But what is to be done in the case of crimes that cannot be punished by a return for them because this would be either impossible or itself a punishable crime against humanity as such, for example, rape as well as pederasty or bestiality? The punishment for rape and pederasty is castration (like that of a white or black eunuch in a seraglio), that for bestiality, permanent expulsion from civil society, since the criminal has made himself unworthy of human society. — Per quod quis peccat, per idem punitur et idem. — The 8. [Translator’s Note]: “Mercy” is in English in the original. 9. [Translator’s Note]: In English in the original. 10. [Translator’s Note]: “Forgiveness” is in English in the original.

224

166 ‡ se v en t h se s sion

225

crimes mentioned are called unnatural because they are perpetrated against humanity itself. To inflict whatever punishment one chooses for these crimes would be literally contrary to the concept of punitive justice. For the only time a criminal cannot complain that a wrong is done to him is when he brings his misdeed back upon himself, and what is done to him in accordance with penal law is what he has perpetrated on others if not in terms of its letter at least in terms of its spirit. * In every punishment there is something that (rightly) offends the accused’s feeling of honor, since it involves coercion that is unilateral only, so that his dignity as a citizen is suspended, at least in this particular case; for he is subjected to an external duty to which he, for his own part, may offer no resistance. A man of nobility or wealth who has to pay a fine feels the loss of his money less than the humiliation of having to submit to the will of an inferior. Punitive justice (iustitia punitiva) must be distinguished from punitive prudence, since the argument for the former is moral, in terms of being punishable (quia peccatum est) while that for the latter is merely pragmatic (ne peccatur) and based on experience of what is most effective in eradicating crime; and punitive justice has an entirely different place in the topic of concepts of right, locus iusti; its place is not that of the conducibilis, of what is useful for a certain purpose, nor that of the mere honesti, which must be thought in ethics.

226

So what is at stake [enjeu]? What is at stake and in play [en jeu] here — in play with death, with death in the places of the death penalty? Are there rules to this game [ jeu]? These rules, we were wondering, are the rules of these games rules of calculation? Is every game played according to rules? And are the rules of the game rules of calculation? What does it mean to give or to give oneself the measure of a calculation? Until now jus talionis, talionic law, from the Bible to Roman law to Kant, seemed to be what determined the principle itself, the Grundsatz, the surest, the most reassuring rule, or if you prefer, the principle of reason of every possible calculation concerning punitive justice, whether hetero- or auto-punitive. And yet, as you will certainly have noticed, Kant, having turned the punishment of the punishable and talionic law into a categorical imperative, when he is challenged to justify or invent a rule of the talion for this or that particular crime, it turns out — and this could hardly be coincidental or insignificant — that the first three examples, in fact the only three examples that are given, are sexual crimes, acts regarded as crimes and that obviously involve what is called sexuality: rape, pederasty, bestiality (Notzüchtigung, Päderastie, Bestialität).

fe brua ry 2 8 , 2 0 01 ‡ 167

Assuming that we know what sexuality means, whether in the strict sense or in one or another of its figures, we are struck then by this undeniable fact: the only three examples of crimes, or of acts regarded as crimes, the only three acts for which one has trouble finding a penal equivalent of the “talionic” type — and for which Kant is so laboriously at pains [à grand peine] to invent a punishment [ peine], a penal equivalent, a chastisement, a way of chastising, of castigare, of making chaste [thus, a punishment or chastisement], which he calls castration or exclusion — 11 a set of three operations that belong to what we think we recognize by the common name “sexuality.” All three are what are called sexual crimes; it is for so-called sexual crimes that one has difficulty applying talionic law, that Kant is challenged to apply the law, and that he for better or worse accepts the challenge. What is a sexual crime? And what do chastisement or penalty, punishment, in particular the death penalty or capital chastisement, have to do with the sexual nature of a crime? Before going any further, let me offer two or three remarks: 1. I note, and I wonder if it is a simple and innocent question of semantics, that to chastise [châtier] and to punish [punir], verbs that are usually considered to be synonymous, have different etymologies and different connotations. If “penalty” and “punishment” ( poine¯, poena, punire) — and we reflected at length on this — refer to a complicated network in which we find the values of payment in exchange, suffering, honor and worth, etc., chastisement [châtiment], on the other hand, the act of chastising (castigare), which means “to impose a correction, to rebuke, to mortify, etc.,” maintains, unlike “penalty” or “punishment,” a kind of sexual family likeness, a sexual subconscious lodged in the word, given its reference to chastity or purity (castitas; castus is the pure, the untouched, the virtuous, the chaste, the pious, the religious, the saintly; one says in Latin, as one does in French, that a language and a manner of writing are “châtiées” (castae) [polished, refined]). The castigatio is punishment as reprimand, mortification, critique, rebuke; the castigator is the critic, the one who rebukes, etc. But the castigatio or the castigator have as their mission to restore a castitas, a virginal purity, a chastity that has been threatened, damaged, or corrupted. It is not necessary to emphasize that the idea of chastity, of purity, of an integrity that is safe or unscathed, or of an immaculate virginity, presents itself first of all as a figure of sexuality. I will not insist any further on what is at least an imaginary proximity between castigatio and castratio, as if castration had as its purpose to restore a lost chastity, as, for example, in the case of the 11. In the typescript: “be.”

227

168 ‡ se v en t h se s sion

228

black or white eunuchs (weissen oder schwarzen Verschnittenen im Serail) who, according to Kant, would be punished for their sexual crime — rape or pederasty — with castration (durch Castration). Chastisement, more than punishment, the word “chastisement,” more than the word “penalty” or “punishment,” awakens or alerts us to a sexual world in which all this penal law and talionic law take on meaning. 2. The three sexual crimes for which Kant is at pains to find but eventually does find the contrived equivalents, which are supposed to respond or correspond to these crimes according to talionic law, point by point, are, at least in the case of two of them, crimes that are widely discussed in France today as to how to punish and chastise them: rapes, of course, serial rapes, along with the hypotheses of a market that would not leave intact, whole or virgin, an entire society of political and municipal, and judiciary power; and, occasionally embroiled in these organized rapes, or sexual violence, the important question, awakened and overactivated, of pedophilia, with or without sexual tourism, its pedagogico-ecclesiastic and confessional overdetermination, etc. Now when Kant says “pederasty,” he no doubt means what psychoanalysts also call “homosexual perversion,” but the word “pederasty,” though it does not designate pedophilia in general, nonetheless designates, etymologically first of all, a sexual desire directed at children, young people, those who (and here again we find the old question of desire and age, and of acting out) have not reached adulthood. The question that troubles Kant, namely how to chastise justly, how to apply talionic law to such crimes, all three of which obey as if by accident a sexual drive deemed perverse, Kant’s question and his answer are not so far removed from us in time and space. 3. Considering that these three legal examples, which are the only ones that risk becoming stumbling blocks, but do not become so for Kant, and thus not for talionic law — the jus talionis, which Kant takes to be, and he repeats this in an added note to which we will return, “by its form always the right to punish since it is alone the principle determining this idea a priori” (Ak 6: 363, 497) — considering that only these three stumbling blocks or (a word that has the same meaning) these three scandals for talionic law are sexual matters, we are immediately led to wonder, reversing the direction of our question, whether talionic law in general is not, first of all, in its very paradigm, a law of sexual exchange and substitution. Properly or figuratively speaking. Is it an accident that the first examples one always cites from the Bible to illustrate talionic law even before, or besides life death, are “an eye for an eye” or “a tooth for a tooth,” i.e., examples of what any

fe brua ry 2 8 , 2 0 01 ‡ 169

well-schooled psychoanalyst will take to be phallic substitutes and that have inspired an enormous clinical literature? Another example, the one I cited last time when considering the word ko¯per, was that of an ox (a castrated bull) killing with its horn, goring a man or a woman, an ox that had to be chastised, either alone or with its master if the latter was found guilty of having foreseen the risky or threatening trajectory of the said horn of the horned beast. The man, the owner, the master must watch over and rein in the impulses of his horned beast. A hypothesis, then: these would not merely be examples of crimes regarded or interpreted as sexual crimes, which would — sometimes in aporetic conditions and with paradoxical difficulties — call for an application of the jus talionis. According to this hypothesis, the sexual crime would first be, in a manner at once paradigmatic and archaic, the very mainspring of talionic law, the essence or the element of every crime and every punishment, of every castigation, of every castigating exchange in general. This is because the essence of crime, its quasitranscendental mainspring or motivation, would be what is called — at any age, at the time of the desire or at the time of the act — sex. I say “at any age, at the time of the desire or at the time of the act” in order to link these remarks, as we have been doing regularly, to our three initial questions (What is an age? What is an act? What is a desire?). As long as we do not know exactly what these words mean — sex, act, desire, age — I do not think the hypothesis, according to which every crime is in its essence or in its motive force, in its main motivation, a sexual crime, is very original. Even if this hypothesis is here imposed on us, which is perhaps more peculiar, by this strange appendix, by this strange addition in the form of remorse from Kant. Let us return for a moment to Freud and to the Freudian discipline that the disciple Reik deploys in his book Le Besoin d’avouer, The Compulsion to Confess, Geständniszwang und Strafbedürfnis. And let us follow or cross two trajectories in order to do this. First and on the one hand, that of talionic law and, on the other, that of everything-issexual and the Oedipal. A. On the one hand, talionic law. We will devote a rather long development to this “on the one hand” which is the “on the one hand [ part]” of a division [ partage], for talionic law is a law of division, of splitting (Urteil, ordeal12), of distribution, of the distribution in equal parts (tooth for tooth). Reik refers to talionic law, in a sustained and fundamental way, not, like Kant, as an idea 12. [Translator’s Note]: “Ordeal” is in English in the original.

229

170 ‡ se v en t h se s sion

230

231

that is pure and a priori (“by its form . . . it alone is the principle determining this idea a priori”) but as pulsional law. Reik even intends to interpret the whole supposedly rational, rationalizing, intellectual discourse of law, the whole of pure juridical rationality that tries to justify talionic law, as a belated [tard-venue] rationalization, as an intellectual alibi, the intellectualized derivative of an unconscious drive that is itself governed by talionic law. Question: how does such a rationalization of the punitive drive as an effect of talionic law in the unconscious operate and what would such a rationalization mean? The unconscious does not forgive; the unconscious is inflexible in its desire to punish, to pay or make pay. There is an economism of the unconscious, at least insofar as it is interpreted by Freud and Reik — who may themselves sin out of economism. In any case, for them, and I will use a formula that is not theirs, the unconscious is without mercy. It never says thank you [remercie] and it never grants the mercy of a pardon, it never gives pardon (Vergeben, forgiveness13). Because it is completely immersed in the market, merces, in the exchange, in the tit for tat, in the “nothing is lost,” nothing is created (everything is preserved, and repression is but an economy of unconscious preservation, of reserve, of what is held in reserve), well then, the unconscious knows nothing of the merci that would escape this economy. It does not forgive. Reik literally writes: “To the unconscious, gratefulness is as foreign as is forgiveness” (425). In other words, you can excuse, pardon, erase, and even forget the other’s offense with great sincerity and in good conscience, but the unconscious always keeps track and keeps the archive up to date. There is an unconscious journal, a ledger of accounts and charges that keeps a rigorous record of all injuries received. And the unconscious takes revenge; it makes one pay, eye for eye, tooth for tooth. This is exactly what Reik says: “To the unconscious, gratefulness is as foreign as is forgiveness.” “To the unconscious, gratefulness is as foreign as is forgiveness.” (Let it be said in passing, and in parentheses, that when one says “the unconscious knows no gratitude or forgiveness” and one has some knowledge of, some acquaintance with, theoretical psychoanalytic texts, this formula awakens by contagion a series of others like it, which were in fact, always in a rather sententious way, forged by Freud or by others in his name. For example: “the unconscious knows no time,” or else “the unconscious knows no contradiction,” or else again “the unconscious knows no death.” The 13. [Translator’s Note]: “Forgiveness” is in English in the original.

fe brua ry 2 8 , 2 0 01 ‡ 171

unconscious knows no caution, Reik also says, you will remember — rather incautiously, in my opinion, for if the unconscious knows no time, and thus does not forget, if it remembers everything, thanks to repression, it cannot totally lack caution and cannot remain insensitive to the calculations inspired by earlier lessons, a sort of education. It is also true that the unconscious knows no education, perhaps, and that it remains uneducable or incorrigible. All of this is not only sententious in its form, and marked by the greatest spirit of seriousness, it is also in fact quite serious. But then we may wonder what this unconscious is not unaware of, this unconscious about which we are told both that nothing escapes it and that it knows everything. This is not contradictory if this lack of knowing (of death, of contradiction, of time, of gratitude and forgiveness, of caution, of culture, and thus of many other things that are indissociable from them) [this is not contradictory if this lack of knowing] is not a nonknowledge; it is not the symmetrical negation of a knowledge; it is not of the same order. But when the day comes on which we will have illuminated the stakes of these claims, my bet is — since the unconscious is not someone who is ignorant of this and knowledgeable about that — people will decide that it is better to give up the concept and above all the word “unconscious,” as laden as it is with authoritarian confusion. I predict that long after us, we who will not live to see it, the word “unconscious” will leave the public domain, it along with a few others: the word “consciousness,” for example. End of parenthesis.) “To the unconscious [then], gratefulness is as foreign as is forgiveness.” This might lead one to think, if indeed it leads one to think at all, that everything we have been analyzing and conceptualizing here for years, everything we have been trying to think under the names unconditionality, or even the im-possible (the gift, hospitality, forgiveness, etc.), namely what comes to exceed the economy of exchange, all of this would be nothing but an appearance or a ruse of consciousness, in the best case an illusion of a consciousness that believes, exceptionally, it is true, that it can do the im-possible (the pure gift, pure forgiveness, pure hospitality, etc.) while, at the same time, the unconscious keeps on counting, exchanging, reconstituting the economic calculation — and remaining as unkowing of the gift as it is of forgiveness. Though I never ruled out this possibility, or even this necessity, I thought I should specify three things in this regard — which I recall here in a short digression to remind us where we stand. I thought I should specify 1. that this necessity of the unconscious economy must, inevitably, remain in order for the im-possible to remain what it must be, im-possible, according to another regime of the possible and the im-possible.

232

172 ‡ se v en t h se s sion

233

2. I always stressed that this unconditional im-possible (the gift, forgiveness, hospitality, etc.) does not and must not belong to a consciousness or to a self-presence that is, on the contrary, the economic agency, the economistic phenomenology of egological not to say egocentered and egoistic consciousness, even if the ego is extended to the group, to the family, to the nation or to humanity, the consciousness of the egological subject that, by making the gift, forgiveness, or hospitality appear as such, would reinscribe them, by means of this as such itself, in the economic field of gratitude, recognition, recompense, thereby destroying what consciousness appeared to give in general or to give in the figure of forgiveness and of hospitality. 3. Finally, and for this very reason, speaking always of the unconscious in general, of a gift, of a forgiveness, of a hospitality that would belong to a kind of unconscious or to an order heterogeneous to consciousness and even to language, I always refer, when I speak of this aneconomy, to another concept of the unconscious, one that is precisely not determined through and through by self-preservation, conservation, memory, the calculation of a repression that never creates or loses anything (nothing is lost, nothing is created, such would be, on the contrary, the axiom of the Freudian logic of the unconscious that I was calling into question by speaking of the im-possible, the un-conditional, the gift, forgiveness or hospitality; in this way, I was calling into question the logic — one that is, for that matter, incontestable and very powerful (it is the very force and principle of reason, reason since Freud) — of a certain economistic concept of the Freudian unconscious that represses but forgets nothing; I was calling it into question in the name, not of a faithful memory, but of a certain radical forgetting that is no longer even repression.)14 Now that I’ve made this digression, let me return to Reik and his statement: “To the unconscious, gratefulness is as foreign as is forgiveness.” I invite you to reread everything Reik says and imparts in the form of examples supporting the thesis about what I was calling the unconscious without mercy, the unforgiving unconscious (as is sometimes said of an illness that it is unforgiving and thus condemns the patient to die at a calculable time). If, from this perspective, the unconscious does not forgive, if it is implacable, then what is called forgiveness, what has the form of forgiveness in everyday conscious life, the phenomenon of forgiveness, would be an attempt to annul, a disavowal, says Reik, a disavowal that, in the ether of consciousness, may be sincere, and which thus comes to disavow, deny, annul a painful event, a wound that continues to produce affective effects and therefore to call for 14. The closing parenthesis has been added by the editors.

fe brua ry 2 8 , 2 0 01 ‡ 173

vengeance, a retort, a reaction in the logic of the talion. Forgiveness comes to disavow in consciousness the talion, the harsh law of the talion, which continues to operate in the unconscious. In short this means that, according to Freud and Reik, talionic law never stops governing the unconscious. Forgiveness would be an illusion, a simulacrum, at most a reaction formation of consciousness that would merely confirm the violence of the unconscious talion. Not only, says Reik, does this “reaction formation” character not exclude the original drives (those that dictate revenge and the talion), but it confirms, on the contrary, their effectiveness and their indestructible permanence. In a style that is often close to that of Nietzsche, to whom, for that matter, he refers on more than one occasion, Reik interprets along these lines the Christian themes of forgiveness, of charity, of love for one’s neighbor, etc. Indeed, all of it, the entire book and what inspires it, is clearly a genealogical interpretation of Christianity not only in the Freudian tradition but also in the wake of other authors whom Reik cites, for example Feuerbach and Nietzsche. If, for example, one says that it is inhuman and unnatural to turn the other cheek when one is struck, it is because one understands nothing of this reactional (Nietzsche would say reactive) logic. The Christian precept, the one in Matthew that is precisely opposed to talionic law, is a reaction, says Reik, to the unconscious tendency to retaliate and be twice as violent in revenge, to strike both cheeks instead of one in response to a strike on just one cheek. We invert this thirst for vengeance by turning the other cheek, by asking for two strikes instead of one, precisely because our drive pushes us to return two strikes for one. “Christian teaching,” Reik writes, “teaches meekness as a reaction to a particularly strong fury and thirst for revenge” (428). End of quotation. To this sentence, Reik adds a footnote. For a reason that will perhaps become clearer later on or next time, I would like to evoke the strange personal example that Reik borrows from his clinical practice and that he cites in this footnote, or rather, as you will hear, in this “handnote.”15 He has just spoken about the hand with which one strikes or doesn’t strike, twice instead of once, and this reminds him of a patient who refused to shake his hand one morning. Why? Because she is, she says, furious with him, Reik. Why? Because she had to masturbate the night before. “It is as if,” Reik says, in a very elliptical way and without adding a word of explanation, “[i]t is as if her hand were taboo” (428). I am not sure I understand this very well; my hypothesis is that she feels guilty: auto-punishment for wrongful masturbatory auto-affection. But this wrong is one for which the psychoanalyst is held responsible as if it were his hand that had guided her hand, and she does not forgive him what she does not forgive herself (by 15. [Translator’s Note]: “Footnote” and “handnote” are in English in the original.

234

174 ‡ se v en t h se s sion

235

236

introjection); all of this presupposes of course that masturbation is regarded as a crime or a dangerous evil, a problem that I leave temporarily to one side while noting that in Kant’s appendix, despite all the prejudices of the period, masturbation is not cited as a crime against nature (and perhaps, first of all, because it supposedly harms no one but oneself ). Still on the subject of a genealogical and psychoanalytic interpretation of a Christianity that claims to rise above the talion, read p. 426 (among other pages) and what Reik diagnoses in Christianity, namely an escalation or a hyperbole of revenge, of the unleashing of the talionic law that has been denied, as it were, disavowed, avowed-disavowed. In general, an enemy is always filled with anxiety, a vague sense of anxiety, when he sees, and we have all had the experience, that the person or community he has attacked does not retaliate, does not defend itself, does not, in short, apply the law of the talion. So let me get this straight, I hit you and you don’t respond, you don’t retaliate, this makes me nervous, it’s not a good sign, what’s going on? You are taking some revenge in secret, aren’t you? Premeditating some dirty trick, some infinite vengeance, a revenge so forbidding, so secret in any case that I would be left without recourse? Well, according to Reik, this was the attitude of the Romans when confronted with the first Christian martyrs. The latter renounced revenge, and as a result the Romans, driven mad by this nonreprisal, overcome by hatred and vengeance, persecuted the Christians all the more, interpreting their nonviolence as a supplement of vengeful arrogance that does not speak its name. The fury of the Romans was aroused by the apparent passivity, the overt nonviolence of the Christians, which the Romans, accustomed as they were to reprisals and to the talion, interpreted as reprisals that were all the more dangerous because they threatened to make the Romans powerless. What does one do in the face of someone who does not defend himself? Anxiety for the Romans, a harrowing anxiety, says Reik. Who immediately adds: “Their anxiety was justified” (426), for in the end Christianity emerged victorious from this martyr circus, and its vengeance will have been the most resounding of all. Reik says: Today, Rome is Christian, the city of “senatus populusque Romanus” exists no more and that slender, despised Rabbi from Galilee has had his frightful and most sublime revenge. (426)

(Reread.) Sublime indeed this Christian victory, yet it will have been but the sublimation of vengeance into forgiveness; it will have been but a subtle revenge, all the more frightful because forgiveness was only a mask for the worst reprisals, for the most ruthless and the most exacting sanctions, a talionic

fe brua ry 2 8 , 2 0 01 ‡ 175

law that no longer speaks its name, a talionic law without mercy, that advances, masked in the figure of forgiveness and Christian charity. This is hatred without mercy, Roman hatred first of all, elicited by the nonviolent passivity of Christian forgiveness or mercy,16 suspected by the Roman unconscious of hiding an even more ruthless vengeance, it as well, it first of all, merciless and ultimately victorious, the victory of the weaker who is stronger than the strongest, a revenge, therefore, all the more ruthless and invincible, ultimately victorious, because it appeared unarmed and defenseless. One wonders whether this genealogy of Christianity, of the persecution of Christianity, would not hold true, mutatis mutandis, for the genealogy of anti-Semitism, whose unleashing is as powerful as it is powerless and insatiable. (Shylock again, comment if there’s time17). Reik knows, moreover, that he is following a Nietzschean model of interpretation here, but he claims, again in a note (p. 426), that he is deepening the psychological explanation Nietzsche gives of the origin of ressentiment by giving this explanation a psychoanalytic foundation and providing it with the psychoanalytic concept of the introjection of the object. This reference to the introjection of the object, to a certain consumption, then, seems to me to be the organizing center of the chapters that Reik devotes to the ordeal, at least the three chapters that I encourage you to read (chapter 16, “The Technique of Magic and of Criminology”; chapter 17, “Oracle and Ordeal”; chapter 18, “The Oral Ordeal”).18 All of this is placed under the sign of the Freudian interpretation of magic as the phantasm of the omnipotence of thought. Although it seems, in the case of the ordeal, to be God who, when asked about guilt, answers yes or no in the course of a ritual according to coded procedures, originally, Reik says, it was not God himself who was questioned but the dead; the dead, who were not quite dead but rather spectral, answered the question and revealed the name of the murderer. Judgment (ordalie, ordeal, Urteil) was rendered either by the dead man himself, thus, or, metonymically, by a part of the deceased’s body, or by objects that, having been in contact with him, represented him. In West Africa or in Australia, one reads on the body of the dead man the 16. [Translator’s Note]: “Mercy” is in English in the original. 17. During the session, Derrida adds: “If we had time, we would again reread The Merchant of Venice, and Shylock, which is also a play about mercy, the quality of mercy, between a Christian theocracy and a Jew, with all the paradoxes — but I don’t have time to go into this — that were just mentioned.” See above, “Sixth Session, February 21, 2001,” p. 148, n. 14. 18. Derrida is referring here to sections 16, 17, and 18 of the first part of Reik’s book, pp. 92– 105.

237

176 ‡ se v en t h se s sion

238

denunciatory signs that indicate the name of the murderous sorcerer or the place where the unknown murderer lives. Another aspect that is more relevant to us, from the point of view of introjection, is the ordeal by poison. The suspect had to take poison, and if he was made sick or died from it, this proved his guilt, whereas the innocent person vomited it up. And while we find no trace of these trials by poison in the Middle Ages, even though all other kinds of ordeals are practiced, we must not forget, Reik further notes — as he rants on about or against Christianity — that Christian Holy Communion replaced this type of ordeal. The sinner will die if he takes communion, while the pure or the innocent may swallow the host without harm. It is the same (pagan) ordeal practiced in “a different form” (100). This is why Reik prefers to speak of an oral ordeal instead of an ordeal by poison. In a long, well-documented note (p. 487), Reik cites a book by Benno Hilse, 1867, Das Gottes-Urteil der Abendmahlprobe, The Judgment of God According to the Proof (or Trial) of Communion, of Holy Communion, which says that whoever eats the body of Christ and drinks his blood in a state of sin calls down heavenly judgment upon himself.19 The accused received the host after uttering a phrase that means roughly this: if what I say and swear under oath is false, well, let it be that what I swallow choke and suffocate me, etc. I refer you here to Reik’s text, which is brimming with examples of oral ordeals, in many non-Christian cultures, as well as in Christian and even Jewish culture. In the Congo, any person taken to be guilty for the death of a man must undergo an oral ordeal, a trial that consists in ingesting a substance; this substance constitutes proof depending on whether or not it is vomited up, whether or not it has the effect of a purge. The Masai drink a mixture of blood and milk. In ancient Greece, the blood of a bull. The Israelites reduced the golden calf to dust and swallowed the dust with water in what Reik calls a “collective ordeal” (101). (No doubt Reik is alluding here to two passages in the Bible: the first is to Exodus 32:20 and Moses’s anger when he sees his people worshipping the calf and dancing around it; he then breaks the tablets of the law at the foot of the mountain, takes the calf and, as the text says, “burnt it in the fire, and ground it to powder, and strewed it upon the water, and made the children of Israel drink of it.” Deuteronomy 9:21 puts the account in the mouth, so to speak, of Moses who, speaking then in the first person, does not say, does not confess, we might say, to having made his people swallow the water; he says only: 19. Benno Hilse, Das Gottes-Urteil der Abendmahlprobe: ein Beitrag zur Rechts- und Kirchen-Geschichte, quoted by Reik, The Compulsion to Confess, in note 150, p. 487.

fe brua ry 2 8 , 2 0 01 ‡ 177

And I took your sin, the calf which ye had made, and burnt it with fire, and stamped it, and ground it very small, even until it was as small as dust: and I cast the dust thereof into the brook that descended out of the mount.

In Deuteronomy, then, Moses does not acknowledge having made them drink or consume the bestial sin, the body of the offense, the idol itself.) Reik might also have cited all of the so-called “guilty” or “expiatory” sacrificial rituals in Leviticus (7 ff.) where it is always a matter of discerning what must and must not be eaten. In India, a suspect must drink water in which the images of “terrible gods” have been soaked. While drinking, the suspect turns to the gods and says: “I have not done this deed.” When he wants to interpret what he calls “the hidden sense” (101) of the oral ordeal, Reik indeed puts to work the concept of the process of introjection, here articulated with the hypothesis of the cannibalistic origin of the ordeal. The “poison” or any analogous substance, any substance to be ingested, introjected, must have an unconscious relation to the crime. It’s not difficult to guess what this relation is, Reik says: in the case of murder, the poison or the magical substance comes from the victim; it’s a metonymy of the victim, a part of his or her body, for example his or her blood, but perhaps also milk or sperm, that begins to speak, to accuse or to acquit, sometimes to avenge, I would even say to settle a score [régler ses comptes] with the person subjected to the ordeal, an ordeal that is only an internal repetition, one might even say a reconstitution, of the murder. And yet, for the oral ordeal, the consumed, consuming ordeal to be a repetition of the murder, shouldn’t the crime itself — and this is Reik’s hypothesis — have consisted in eating the victim? Must not the crime originally, primitively, be cannibalistic in essence? This is the only hypothesis that Reik finds compatible with the premises of the archaic law of the talion. What is the special relation between the nature of the crime and the eating of a piece of the dead man? Our understanding of the unconscious principles of the mind carries us to a conclusion which alone will satisfy the archaic law of talion. If the suspect succumbs to the ordeal of eating a piece of the dead person his crime must have consisted in eating that person. This result seems less strange when we remember that for primitive man killing and eating was the same thing — that the murderer actually devoured20 his victim. Our conclusion is, therefore, that the oral ordeal referred originally to cannibalism. (102) 20. [Translator’s Note]: The English translation has “ate.”

239

178 ‡ se v en t h se s sion

240

241

The primitive murderer actually devoured his victim. This means that in the ordeal the literal “actually [ pour de bon],” the literal “in actual truth [ pour de vrai]” becomes a trope, a figure, a metonymic devouring: a part for the whole, a figural piece that one sinks one’s teeth into or swallows instead of taking in the whole body. Even if this hypothesis is not very original, especially after Freud, we must recognize that it is far-reaching and practically limitless in scope; it gnaws away at its own limit, so to speak; it consumes its limit, for this hypothesis extends to all religions, including the Abrahamic monotheisms, all of which would be steeped in this interiorized and denied cannibal origin, and all of which would participate in this terrible law of the talion of which cannibalism and the oral-ordeal, oralordealistic [oralo-ordaliques, oralordaliques] procedures that follow from it would be undeniable symptoms. Everything comes back to the law of the talion, and to the unconscious drive at the most inextinguishable psychical heart or hearth [ foyer] of the law of the talion. And this before all juridical rationality or all penal law. Juridical rationality, the judicial form of talionic law, the jus talionis, as reason, or even as principle of reason and reckoning, would be merely a secondary, or even a superstructural, derived, epiphenomenal rationalization, the phenomenal becoming-conscious of this ruthless, implacable, unconscious psychical drive. This rationalization translates the unconscious and floats at the surface of the unconscious, which knows no forgiveness. Reik says this expressly, and he says it following the passages we read in earlier sessions [p. 288 in the trans.]: “it cannot be without significance for the theory of penal law that the unconscious self-punishment of neurotics is based entirely upon the principle of talion, on the law ‘eye for eye, tooth for tooth’” (288).21 And you will also remember, in the same passage, the allusions to unconscious self-punishments that are the strange, fantastic, imagined tortures unknown to modern legislation, among which Reik cites castration, immurement, death by suffocation, shackling, and other variants of capital punishment, in short, all of this psychosomatization that applies, of itself, the law of the talion prior to the law, if not before the law. Now it so happens, on the following page, having just evoked the way Kant places the law of the talion at the pinnacle of the law, as a categorical imperative, Reik says “[h]e who kills, kills himself” (290), Reik describes this as a rationalizing translation. A law that is pure, one that is allegedly purely rational, is just translating the unconscious drive. Like a refined and intellectualized descendent, it proceeds, descends, and stems from its archaic 21. See above, “Fifth Session, February 7, 2001,” pp. 133–34.

fe brua ry 2 8 , 2 0 01 ‡ 179

ancestor, the talionic drive, all of whose family features it preserves. Reik describes the allegedly rational law, the juridical discourse on the law of the talion, as the intellectualized “outgrowth” of the archaic unconscious drive. We know what this opinion [of the law of the talion as categorical imperative] means psychologically. In the form of a penal theory, it translates [thus a question of translation, of passage from one code or language to another, but a language that changes nothing about the thing itself ] legislation of the unconscious [thus there is a law in the unconscious], which lies at the heart of every individual [the same language of the heart that Rousseau and Kant also use to speak of moral conscience]. All theories basing punishment upon an urge for revenge as an expression of the instinct of self-preservation belong here. The theories of indemnification and replacement that emphasize the effect of punishment as of a settlement, as well as theories of agreement, can easily be recognized as outgrowths of the old theory of reprisal, intellectualized — if you like, rationalized — or adjusted to cultural evolution. (290)

(It is precisely in this cultural evolution, it is in the element of this superstructural history of culture that Freud and Reik want to intervene in order to accelerate, you will remember, in order to make an effort to accelerate an evolution that is less cruel, more civilized, that would not only abolish the death penalty but also substitute confession for punishment; we will return to this.) Reik continues: We have seen that these theories [of juridical rationality] are deeply rooted in the instinctual, in the unconscious of man. If there must be punishment [Reik does not believe that there must be, in the end, not forever in any case] and if it should really have the character of punishment, it can be instinctually based only upon the principle of talion. The retaliation theory has, therefore, the advantage of compactness and psychological consistency [explain22], but it contradicts all progress of culture and humaneness [why? comment 23]. Retaliation as the purpose of punishment is simply the representation of a powerful drive as a theory. (290) 22. During the session, Derrida adds: “In other words, the theory of retaliation in law is coherent because it reflects the legislation of the unconscious, the law of the talion: so it’s coherent; he recognizes that the translation is coherent.” 23. During the session, Derrida adds the following comment: “How can he say that it is consistent [cohérent] with an unconscious talionic law that is indestructible, and also say that this consistency contradicts what we desire, namely the progress of culture and humaneness, the progress of civilization that would abolish talionic law and even abolish punishment, the culture of punishment?”

242

180 ‡ se v en t h se s sion

243

When he then adds that a fundamental difference exists between, on the one hand, these theories of the talion, in short, theories of retaliation in all of its forms, unconscious or rationalized, and on the other hand, the theories of deterrent prevention, Reik admits that he finds himself — that psychoanalysis finds itself — in what he calls a “peculiar situation.”24 For on one side, psychoanalysis is brought to recognize that the theory of the talion is more coherent, more consistent insofar as it reconciles the law with human drives, with what he then calls “the powerful unconscious ideas of man” (292). But on another side, the theory of protection or deterrent prevention, in spite of its lack of grounding in the psyche, which, you will remember, also knows no caution, this theory of deterrent protection opens us up to progress, to the future, and it is what — this is his word — seduces psychoanalysts more. It is precisely in the space of this progressivist logic of deterrence and protection that Reik sees in the offing a historical transition toward a more evolved phase in which, he says, punishment will be replaced “through other and better protective measures” (292) — including the worldwide confession that we were discussing a few weeks ago.25 Does Reik do justice to Kant? Is one justified in saying that the Kantian theory of law, its reference to talionic law as pure rational principle and categorical imperative, is but the noble, ennobling translation of a pulsional law, the translation of a psychical theater of ruthless and indestructible archaic drives? We must give a ruling in this trial. But before reopening this case, I would like to bring to light this question of everything-is-sexual. You will remember — just to keep things straight — that I announced earlier, so as to cross two trajectories, a “d’une part” and a “d’autre part” (on the one hand, on the other hand,26 as Reik’s patient would say the day after her nights of masturbation). There was talionic law, on the one hand, which we treated at greater length, and then the Oedipal everything-is-sexual, on the other hand. B. The Oedipal everything-is-sexual on the other hand. Since we were wondering how it happened that the three crimes, actually all of the crimes, 24. Reik actually writes the following: “When you consider this situation, you will find that we are in a peculiar position” (292). 25. See above, “Fifth Session, February 7, 2001,” pp. 131 ff., and “Sixth Session, February 21, 2001,” pp. 142 ff. 26. [Translator’s Note]: “On the one hand” and “on the other hand” are in English in the original.

fe brua ry 2 8 , 2 0 01 ‡ 181

that seemed to defy talionic law in Kant’s appendix were sexual (rape, pederasty, bestiality), and since we then wondered whether all crime was not at bottom sexually motivated, it seems, explicitly or implicitly, directly or indirectly, that Freud-Reik’s answer would be yes, indeed, every crime has a sexual origin since every crime has as its cause and not as its effect a feeling of unconscious guilt, and this guilt always refers back to an Oedipal situation. That the criminal kills because he feels guilty, and not the other way around: that this “truth” is the discovery of the father or the patriarch of psychoanalysis, this is the central proposition of the “compulsion to confess,” I mean of Reik’s book that goes by this title. You will find this central proposition on every page. I will cite only a single passage because in it we find an allusion to something to hang on to as one would hang on to insurance or reassurance, and because the principle of reason as insurance is one of our themes, a theme that we will soon come upon again. A crime is reassuring for the one who feels guilty. Reik has just said that we must find a new basis for punishment and that “[t]his theory has been prepared through Freud’s analytical discoveries.” The new psychological foundation of the purpose of punishment will originate in the analytical exploration of the preexistent feeling of guilt, an exploration for which we owe thanks to Freud [render unto Caesar . . .]. We no longer doubt that, in the criminals, for whom penal legislation is intended, a powerful unconscious feeling of guilt existed even before their deeds. This feeling of guilt is, therefore, not a consequence of the crime. It is, on the contrary, its motive. It is only its intensification that causes man to turn criminal. Crime is felt as an emotional relief because it can connect the unconscious feeling of guilt to something real, actual. The deed serves the accommodation of the feeling of guilt that has become overly great. In other words, crime is committed in order to grant the prescribed impulses a substitutive gratification and to give a cause and a relief to the unconscious feeling of guilt. It is, so to speak, the peg on which to hang that pressure. From those results of Freud’s research follows a new psychological basis of punishment, a psychoanalytical theory of criminal law. (292– 93)27

The peg [ piton] is thus very useful and reassuring — in two ways: firstly, primarily, for the criminal who thus finds an object with which to appease the diffuse but powerful feeling of unconscious guilt that supposedly precedes the crime and that the acting out will finally anchor, fasten, stabilize, reassure; thus the act comes belatedly, at a later age, continuing in the wake of a guilty desire that was both older and younger than the act, harkening 27. It is Derrida’s emphasis here.

244

245

182 ‡ se v en t h se s sion

back to an older and thus younger age of the guilty patient. And then secondly, the peg to hang on to is useful and reassuring for the one here speaking, in the name of his father, just as it is for the psychoanalyst who will be able to explain everything on the basis of a single principle. This image of the hook [crochet] reminds me of a passage from Bataille, from the text precisely titled Le coupable [Guilty] (vol. 2). (Read Guilty, p. 65)

246

I saw large and solid hooks on a roof, halfway up the slope. Suppose a man fell from there, by chance he might hook onto one of them with an arm or a leg. Falling from a house, I would crash to the ground. But if a hook were there, I could catch myself in flight! A little later, I might say: “One day an architect planned on this hook without which I would be dead. I should be dead. It is nothing, I’m alive because someone put the hook there.” My presence, my life would be ineluctable: but I don’t know how impossible, inconceivable the principle would be. Now, picturing the momentum of the fall, I see: nothing is in the world if not for having encountered a hook. Ordinarily we intentionally overlook the hook. We grant ourselves an aspect of necessity. We grant it to the world, the earth, to people. The hook arranges the universe; I fall into an infinite play of mirrors. This play has the same principle as the fall blocked by the hook.28

Now, that this feeling of preexisting guilt should refer to some Oedipal sexuality is also one of the leitmotifs, another hook in the same text between father and son, Freud and son, Freud and Reik. A single example of this: First, criminology should take cognizance of the existence of an inner court of this kind, enacting its own laws and inflicting punishment of a special kind. It may be foreseen that this court will some time in the distant future strongly compete against the external court, indeed, that it will perhaps be able to replace it. It may furthermore be a surprise to hear that analysis is regularly forced to trace back the punishment, in every case that it has the opportunity to investigate, to repressed wishes originated in the Oedipus complex. It is as if crimes originated only in that source. (285)

Elsewhere (p. 393, for example) the link between sexuality and the feeling of guilt is posited as a connection that is so universal and assured that 28. Georges Bataille, Somme athéologique II. Le coupable (Paris: Gallimard, 1961), pp. 98– 99; Guilty, trans. Stuart Kendall (Albany, NY: State University of New York Press, 2011), p. 65.

fe brua ry 2 8 , 2 0 01 ‡ 183

it has marked “the realm of sexuality” with a feeling of guilt such “that it cannot be imagined any longer without that feeling” (393). And Reik gives countless examples, all of which tend to demonstrate that when the feeling of guilt disappears, sexual desire is extinguished along with it. Let me restate the question then. Does this discourse about Kant do him justice? Is this discourse fair or just when it interprets pure juridical rationality, the jus talionis, which “is by its form always the principle for the right to punish since it . . . is the principle determining this idea a priori,” when it interprets, then, Kant’s statement as merely the ennobling rationalization, the intellectualizing translation of a pulsional talionic law governing the most archaic area of psychical life? I wouldn’t say either yes or no. What I would like now is to show that if this psychoanalytic interpretation contains a kernel of truth, if it is justifiable in a certain way, it nonetheless remains unjust, and above all it lacks a certain acuity in its reading of what it a little hastily calls a rationalization in the service of the interests of a drive. Let’s return to Kant’s text in order to conclude for today, I mean at least the appendix on rape, pederasty, bestiality, and the challenge they raise for talionic law. What does Kant say? Let’s reread the first §.

247

The mere idea of a civil constitution among human beings carries with it the concept of punitive justice belonging to the supreme authority. The only question is whether it is a matter of indifference to the legislator what kinds of punishment are adopted, as long as they are effective measures for eradicating crime (which violates the security a state gives each in his possession of what is his), or whether the legislator must also take into account respect for the humanity in the person of the wrongdoer (i.e., respect for the species) simply on grounds of right. I say that the ius talionis is by its form always the principle for the right to punish since it alone is the principle determining this idea a priori (not derived from experience of which measures would be most effective for eradicating crime). (Ak 6: 362– 63, 497– 98)

You will of course have noticed that Kant defines penal law, its justice, punitive justice (Strafgerechtigkeit), as that which is indifferent ( gleichgultig) for the Gesestzgeber (legislator) in terms of kinds of punishment, as long as they are “effective measures for eradicating crime (which violates the security a state gives each in his possession of what is his).” In other words, punitive justice must in no way concern itself with means toward an end; it has no vested interest, it must remain outside of any calculation of means toward an end, thus of any calculation of interest. If it just calculates in or-

248

184 ‡ se v en t h se s sion

249

der to apply the law of the talion, this calculation is in no way a calculation of interest in view of some enjoyment or some public security (Staatsicherheit). It is absolutely disinterested; it obeys no pathological motivation (in the Kantian sense), no psychological, passionate, or pulsional motivation. This is what distinguishes Kant’s pure reason from every other reason of penal law. The paradox is that Kant here, Kant’s powerful discourse resists both Heidegger and Freud-Reik. It resists Heidegger when the latter interprets the principle of reason as calculation (and I suggested that in certain ways Kantian reason obeys the principle of reason). (Note that Heidegger, in the second accentuation of the Principle of Reason, speaks of a measure given, as we do of a key given, a measure that is calculable, whereas the gift is not. To give — the gift of a measure or of a principle of calculation — is to give what is calculable, but the gift itself exceeds calculation. This may be what Kant too suggests when he speaks of an Idea of punitive justice or a pure talionic law that gives the idea of calculation but is not itself originarily calculable.) Pure penal reason, here, the Idea of a civil constitution among human beings, implicating as it does the concept of some punitive justice, is not a calculating reason that would seek to reassure, or would be in the service of an insurance project. Kant means that punitive justice goes beyond all calculation as relation between means and end. We could say, we must therefore say, that even capital punishment does not answer to calculation and hence serves no purpose, and must serve no purpose; it does not insure or reassure in the least; it is not reassuring, and in this it is worthy of man and the dignity of man; it even honors man (Hegel will say the same thing in §100 of the Philosophy of Right after he criticizes Beccaria29). At the same time, and the stakes are considerable here, with the peculiar example of the 29. There is a handwritten note written on the typescript: “Incalculable madness of Kant: killing for nothing, condemning to death + categorical imperative with a view to killing (island).” During the session, Derrida adds: “So there is an incalculable madness in Kant, isn’t there? He shows that the death penalty serves no purpose, that it must serve no purpose. It must not be in the service of public security, of course; nor is it in the service of unconscious drives, incentives, interests, passions — it serves no purpose. And it must serve no purpose. This is the madness of Kantian reason that must be taken into account, and which cannot easily be understood as the translation of a principle of reason according to Heidegger or of an archaic drive of talionic law according to Reik or Freud. The categorical imperative, the death penalty as categorical imperative, serves no purpose and is done with a view to nothing. Remember the example of the island: a society dissolves itself, no more problems of social organization, but one must execute the last prisoners condemned to die before leaving the island, remember? Madness. Incalculable. And that’s justice. There are no passions, no drives to be satisfied. Pure justice.”

fe brua ry 2 8 , 2 0 01 ‡ 185

death penalty, we are dealing with a pure reason that follows the principle of reason, certainly, but which turns it into something other than a principle of calculation in the service of a motivated interest that would be in the interest of insuring life and beings. And this risks disorganizing the whole epochal or historial schema that Heidegger lays out in Der Satz vom Grund (in the past I tried to find other fissures within other motifs in this epochal or historial schema, but let’s leave it at that). If punitive justice as pure Idea is not and must not be in the service of a calculation of insurances, it is also not in the service of a drive, of a pulsional, psychological and unconscious talionic law. It can be just only where it breaks — if this is possible — with the etiology and finalism described by psychoanalytic reason. And what counts here, what the psychoanalysts have not read with a keen enough or experienced enough eye, is that the jus talionis of justice that Kant is talking about is distinct from the jus talionis that Freud and Reik are talking about, in the way that pure form is distinguished from any content. (Reread around “in its form [der Form nach].”30) Therefore, we must, in order to do justice here, never lose sight of the two distinctions that Kant takes to be decisive, namely 1. the distinction between form and content as well as 2. the distinction between the noncalculation of interest by punitive justice (the noncalculable or incalculable of punitive justice, including the death penalty) and the pure calculation of talionic law. Is this to say that Freud and Reik are simply wrong, and that such distinctions are enough to shelter the Kantian discourse from any psychoanalytic suspicion? I don’t think so, but this is the question we should return to next time when we again discuss rape, pederasty, and bestiality, and especially castration and excision — or exclusion.

30. During the session, Derrida rereads Kant’s remark — “I say that the ius talionis is by its form always the principle for the right to punish since it alone is the principle determining this idea a priori (not derived from experience of which measures would be most effective for eradicating crime)” — and then adds: “‘By its form,’ what counts is not the equivalence of contents, it’s not the content of drives, the content of interests, it’s pure form. Kantian formalism here is precisely what is supposed to break with interest; it is through its formality. If one lets go of this formalism, one loses everything. One can challenge this formalism, challenge the distinction form/content, but for Kant, in any case, it’s the distinction form/content that makes the decision, and justice must be formalist.”

250

eighth session

March 7, 2001 h

Two questions, to begin again, two questions and two proper names.

252

Two proper names, first of all, the names of two men. These two men were fascinating, each in his own way. Two fascinating enigmas in the history of humanity. These two fascinating men may have fascinated each other reciprocally, but they never met each other in the space of a Europe whose project was in the process of being forged. For these two men were also strange contemporaries, at once contemporaneous and anachronistic, each for the other, and I will ask whether it is fitting to pair them up: Robespierre and Kant. Let us summon them, let us make them appear together. Summon them as peers [comme des pairs (p.a.i.r.s)], as if, as a couple, as a pair of peers, they were two of a kind [la paire]. Are these peers a pair, are they two of a kind? It will not be long before we see appear in the eyes of this pair [ paire] the spectral silhouette of the father [ père], in memory of a parricide that is in fact named, acknowledged, dreaded, denied, desired, committed, or only dreamed of, where the question of action remains both more troubled and more decisive, more incisive [tranchante], I would say, than ever. This pair of fathers [la paire de ces pères] would also be a pair of brothers or sons speaking in the name of their fellow men [compères]. Who will have been the crueler of the two, Kant or Robespierre? And what if each were crueler than the other? And reciprocally? Each less cruel than the other? And what, then, would “cruel” mean in this case? So we have returned to our old, abyssal and inexhaustible question of cruelty, which will persecute us cruelly until the very end, and this “question,” this torture, may perhaps be all the more persecutory and cruel in that it keeps silent, tells us nothing, means nothing that is certain in its truth and that does not allow for its substitution in a series of masks and substitutive figures, each more cruel than the next.

m a rch 7, 2 0 01 ‡ 187

What is cruelty? Why, when one refrains from cruelty, does it seem to make it worse, why is it all the more cruel (like the forgiving and reactive nonviolence of the Christian martyrs that we were talking about last week)?1 Why, when one refrains from all cruelty, does one always risk unleashing a supplement of cruelty? As if we were dealing only with a logic of escalation and hyperbole, of infinite capitalization or virtualization, as if there were always a little more cruelty hidden and denied behind the limit of cruelty, which as I suggested last year, perhaps has no contrary and no end, no termination or opposable term. So Kant and Robespierre. Kant or Robespierre? Kant and/or Robespierre. However we respond to a question named in this way [sur-nommée], it would force us to return once again to one of the figures of our initial and now standing questions: “What is an act?” Few people will actually contest the fact that, with regard to the death penalty, Robespierre, who was at first theoretically opposed to it and then became its advocate, resorted to action. Robespierre acted, massively, spectacularly, more, infinitely more than Kant did. Robespierre did not himself become an executioner, true; his hand was not on the guillotine, but he did take action when he made decisions (Kant, for his part, made no decision of this kind, as far as I know, and he did not take action). Robespierre resorted to action (but what is an act, we were asking ourselves; where does an act begin? Where does it end? I will return to these questions in a moment). According to our everyday language, then, Robespierre, unlike Kant, personally took action by taking part in collective decisions that resulted in the death of a great number of people, beginning with the king. The death of the king being, I will return to this in a moment, something which Kant, even in his defense of the principle of the death penalty, always strongly condemned: one must never execute the king, in the strict sense of execution. One must never kill the king, that is, and I will clarify this in a moment, the father. The absolute prohibition, in law, and even in Kantian law, that makes the death penalty its keystone, has to do with parricide: one must not execute the father as such, the father of the people or the father of the nation, the father of the fatherland ( patrie, Vaterland). See what Kant says in his General Remark (A) of the Doctrine of Right (Public Right).2 The people can put up no legal opposition, he tells us, to the supreme legislator of the state, to the sovereign as legislator. Nei1. See above, “Seventh Session, February 28, 2001,” pp. 174–75. 2. See Immanuel Kant, “General Remark on the Effects with Regard to Rights That Follow from the Nature of the Civil Union,” The Metaphysics of Morals, pp. 461– 66.

253

188 ‡ eigh t h se s sion

254

ther legal opposition nor sedition (seditio), and even less rebellion (rebellio) against the sovereign legislator as monarch, as the individual person of the monarch, even on the pretext that the monarch is a tyrant who abuses his power. Even in that case, one does not have the right to attack his person and his life (Vergreifung an seiner Person, ja an seinem Leben). Kant once again gives this crime a Latin name: monarchomachismus sub specie tyrannicidii. The slightest betrayal that would threaten the monarch in this way would be high treason (Hochverrath), a treason more treacherous, more unfaithful, more disloyal, more treasonous than any other treason, treason par excellence ( proditio eminens); and precisely the one who is guilty of such a thing deserves nothing less than the death penalty. Thus the king (as legislator in any case) can under no circumstances be condemned to death, but the one who transgresses this prohibition must be punished by death (Ak 6: 320, 463). A categorical imperative, as in the Ten Commandments: do not kill, but whoever kills shall be killed. I want to point out that this traitor, this traitor to his fatherland (Vaterland), the one who threatens the person of the king with death, is a traitor to his fatherland who, by attempting to destroy his fatherland (der sein Vaterland umzubringen versucht), must be called a parricide. And Kant uses the Latin word to qualify the crime in this way: parricida (Ak 6: 320, 463). He thus confirms that the supreme crime, the one that deserves death, is parricide: the putting to death of the sovereign is parricidal. This supreme crime is thus the crime par excellence: the parricidal crime as paradigmatic crime. One could easily link this statement to the Oedipalization of guilt and to the whole of Freudo-Reikian criminology that we discussed and will discuss further. I leave you to read these pages on your own, but let me emphasize a few points. First of all, there is one absolute exception; law allows for one absolute exception, and it is a remarkable one. The sovereign, the monarch, cannot be judged and executed under any circumstances. He is the only one. Why is he the only one? Because he is the absolute legislator, and thus the source and the foundation of law — of a law that, strictly speaking, as you know, implies the ability to coerce (zwingen) (see articles D and E in the “Introduction to the Doctrine of Right”), even if in the wide sense ( jus latum) or in the ambiguous sense ( jus equivocum), there can be a right without coercion or coercion without a right (“Appendix to the Introduction”) (Ak 6: 234, 390); with the result that the absolute legislator, that is, the source and foundation of law, the locus of the power to coerce as well as to institute the law, the supreme legislator cannot be subject to the law and thus be judged and executed. In still other words, in order for the law entailing the death

m a rch 7, 2 0 01 ‡ 189

penalty in its juridical corpus to be possible and valid, the sovereign, the legislator, and the power to coerce must escape the death penalty and execution. The condition of possibility incarnate of the death penalty cannot be judged and condemned to death. The condition of possibility of the death penalty cannot become the object of a death sentence. In a very long note to his “General Remark” (article A) (Ak 6: 320– 22, 464– 65), Kant does, it is true, find it acceptable that the monarch be deposed (dethronement, Enthronung). Then the monarch can also abdicate voluntarily and leave power, hand it over to the people without there being any violence. By forcing the monarch to abdicate in this way, the people certainly has the right to invoke a case of force majeure or a right of necessity (casus necessitatis), but it never has the right to punish the sovereign person because of his past action, for everything the sovereign did consisted in being the source of laws (Quell der Gesetze), and the source of laws can never be, as such, as the source of laws, unjust (unrecht). And here Kant’s juridicism or his legalism goes as far as it is possible to go. He allows for the assassination of a king (Ermordung, murder, even if one puts the king to death, since one does not have the right to judge him, it will be an assassination, a murder [Ermordung]). And yet murder is not the worst of all revolutionary atrocities: this is because one can still imagine, Kant says, that the people fear that if the monarch were left alive he would regain the upper hand and inflict on them the punishment they deserve; so that regicide would not be an enactment of punitive justice (Strafgerechtigkeit) but merely a reflex of self-preservation (Selbsterhaltung). Kant is not in favor of this; he is not justifying assassination, but he can understand it. And he does not think assassination is the worst thing. The worst, in his eyes, is to give the regicide the appearance of a trial; it is to claim to give the regicide the appearance of a formal execution (which is basically what happened in both the English and French revolutions). Nothing is more horrifying, Kant tells us, than a formal execution of the king (die formale Hinrichtung). And then, evoking the two examples of European kings who were beheaded, Charles I and Louis XVI, he invokes — as he will in the appendix we have been discussing for weeks now and to which I will again return shortly — he invokes a certain idea of human rights and thus of crimes against human rights, crimes against humanity. The “formal” execution of a king is a crime against humanity — and in a certain way the French Revolution was guilty of this crime against humanity: It is the formal execution [die formale Hinrichtung] of a monarch that strikes horror [mit einem Schaudern ergreift] in a soul filled with the ideas of human

255

256

190 ‡ eigh t h se s sion

rights [die mit Ideen des Menschenrechts erfüllte Seele], a horror that one feels repeatedly as soon as and as often as one thinks of such scenes as the fate of Charles I or Louis XVI. (Ak 6: 321, 464)

257

So the ideas of human rights are, according to Kant, inscribed in the soul. What is in the soul, inscribed right on the soul [à même l’âme] (right on the soul, that is, what makes a soul a soul and writes it as soul), is thus an affect, a feeling, since it can give rise to horror, and even to terror, when it is thwarted. But because the object of this affect, the referential pole of this singular feeling, is an idea of right, a set of ideas of human rights (Ideen des Menschenrechts) that fills the soul (the same way a feeling, Gefühl, can invade and fill, erfüllen), well then, this feeling for Ideas with which the soul is filled or infused is not an empirical or pathological feeling, no more than is respect (Achtung) for the law, which is also a sensible feeling, but a feeling apart, and one that does not belong to empirical or pathological sensibility as all other feelings do, like the enthusiasm or the sympathy for events like the French Revolution, which we will talk about later on, insofar as it tried to establish rights, or like what Kant calls the interest of reason that is not an interested interest, in the sense of a pathological or empirical motivation, and that is distinct from all other interests. In this case, the feeling of horror, the horror before the inexpiable crime of the formal execution of the monarch, is not a feeling of compassion or sympathy (Mitgefühl); it is not an aesthetic feeling connected to the imagination, as if one were identifying with the one who is suffering, in this case with the empirical person of the king, with the mortal body of the individual monarch. No, the horror here is a moral (moralisch) feeling, an ethical affect of the soul as soul, an affect born of the spectacle of the complete overturning (Umkehrung) of every concept of law. In other words, this crime, which is not the assassination of the king but the simulacrum of his trial and execution according to legal form, this crime, more serious than a savage assassination, is an absolute crime because it does not transgress this or that article of law, as an exception, this or that part of the law, but rather because it overturns the very order of law. It challenges the very concept of law, the founding possibility of law, the foundation or ground (Grund), the reason of law. It is a fundamental crime against the law itself, against the very foundation of law (remember what Benjamin said of the great criminals who attack the very order of law itself, the state and the law in person). Kant holds that this absolute crime against law itself, this “formal” execution ( formale Hinrichtung) of the sovereign, is both immortal (thus indelible) and inexpiable, unforgivable: crimen immortale, inexpiabile. This is what is unforgivable: not the worst murder, individual or collective, but

m a rch 7, 2 0 01 ‡ 191

worse than the worst, namely the execution of the sovereign as foundation of law, the execution of law incarnate, of fundamental law, of the very concept of law. And here we find the relation Grund/Abgrund that we were talking about from another point of view last time when we read Heidegger’s Der Satz vom Grund, to which we may return a little later. Kant does not hesitate, in this case, to speak of suicide, of a suicide of the state, a suicide that the state would commit against itself (ein vom Staate an ihm verübter Selbstmord). When, still in the same note, Kant asks himself about the basis, the reason (Grund) for this horror of horrors (der Grund des Schauderhaften), the basis for this peculiar affect of horrified revulsion that results from the “formal” execution of the monarch by the people, he gives the following answer: assassination, murder (and even the murder of the king) would be but an exception to the rule (Ausnahme von der Regel), to the rule that the people took as a maxim. One could say the same thing about the assassination of a president, for example of the president of the United States, from Lincoln to Kennedy. It is very serious but not absolutely serious; it is but an exception that leaves the maxim or the rule intact. Whereas the formal execution of the sovereign (with a tribunal, a verdict, and an appointed executioner), the formal execution of the monarch, an execution, which is not simply a murder (a distinction that is always problematic: example of formal pseudo trials and executions . . . Ceaucescu and so many others), claims to be not an exception but a complete overturning (eine völlige Umkehrung) of the principles that govern the relations between the sovereign and the people, the people constituting itself as sovereign in this overthrow even though it owes its existence as people to the legislation that it thereby overturns. This overturning allows, in this unprecedented situation, for violence to hold its head high; it exhibits itself brazenly and raises itself above the most sacred right (das heiligste Recht). It is “sacred” because clearly sovereignty, namely, the foundation of law, is sacred (heilig) or it is not. As in the Social Contract, the law is sacred or it is not. And sacred, heilig, safe, sound [sain], sacred [saint] and sound, unscathed, this also means immune, untouched, untouchable, enjoying absolute immunity. The formal execution touches upon immunity, upon what is immune. And because what then takes place, in Kant’s own words, is a suicide of the state, at its most immune, immunized in principle, one would have to speak, according to a logic that I tried to elaborate elsewhere, in “Faith and Knowledge,” of an autoimmune process that destroys the immune protection itself.3 What Kant denounces as horror itself would be like the autoimmune process 3. See Jacques Derrida, “Faith and Knowledge,” in Acts of Religion, especially note 27, pp. 72– 73.

258

192 ‡ eigh t h se s sion

259

that invades the political when one formally executes the monarch. This execution would be the phenomenon or at least the symptom of an autoimmune disaster: absolute desacralization, blasphemy that attacks the sacral body — sacral and sacramental (for we would have to read what Kant says about the oath [serment], about the sacramental, in the context of law, with the relation to the ordeal never very far away. When it comes to the oath and rituals and religious belief, Kant speaks of “spiritual coercion” [tortura spiritualis] as a “handy means, in keeping with the human propensity to superstition, for uncovering secrets.”) (“But the legislative authority acts in a way that is fundamentally wrong in conferring authorization to do this on the judicial authority, since even in the civil condition coercion to take oaths is contrary to human freedom, which must not be lost” [Ak 6: 304, 449].) So when violence gains the upper hand as a result of this overturning of the ground, the foundation founders [est abîmé]. It sinks into the abyss [abîme]. The Grund goes under (Abgrund). It is as if the state were committing suicide, as if it were drowning itself forever, irreversibly, once and for all, by throwing itself into the abyss. And Kant’s words themselves insist on the no-return (ohne Wiederkehr), the irreversible and hence inexpiable quality of this suicide that throws the state, henceforth without foundation, into the abyss: wie ein Alles ohne Wiederkehr verschlingender Abgrund, als ein vom Staate an ihm verübter Selbstmord: Like a chasm that irretrievably swallows everything, the execution of a monarch seems to be a crime from which the people cannot be absolved [ein keiner Entsündigung fähiges Verbrechen zu sein scheint], for it is as if the state commits suicide. (Ak 6: 322, 464)

260

In fact, if you read this note carefully, up to its final words, you will notice the following: everything that causes such horror in a soul filled with the idea of human rights, everything about this formal execution ( formale Hinrichtung) that amounts to a crime worse than all other crimes and a suicide of the state swallowed up into the abyss (Abgrund) of its ground (Grund), none of this ever happens either in fact or in principle. None of this can ever become an actual event. None of this takes place; it has no place taking place. None of this can actually happen. There can only be simulacra or phantasms of it, and here Kant becomes the psychoanalyst of those revolutionaries who believe they were able to judge the sovereign, subject him to judicial and criminal procedures in order formally to execute him in the end, whereas, in fact, behind or beneath these juridical simulacra, lie nothing but vengeful drives and self-protective reprisals. Here is Kant’s quasi-psychoanalytic diagnosis, here is how he analyzes

m a rch 7, 2 0 01 ‡ 193

the unconscious of the revolutionaries who, when executing the very principle and sovereign ground of law, claim to be acting according to the form of law and in the name of juridical reason, whereas they are moved by a drive for vengeance or anticipated countervengeance (in other words, Kant puts these revolutionary prosecutors and executioners through the same psychoanalytic X-ray machine that Reik or Freud put him through when they reduce or lead pure juridical reason back to a pulsional or phantasmatic, in short, an archaic and rather primitive logic — and this is the last line, the last word of the note)4: [T]he execution of a monarch seems to be a crime from which the people cannot be absolved, for it is as if the state commits suicide. There is, accordingly, reason for assuming that the agreement [Zustimmung, assent] to execute the monarch [thus the belief, the credulity, the naïve approbation that such trials of the sovereign elicit] actually originates not from what is supposed to be a rightful principle [nicht aus einem vermeint-rechtlichen Princip] but from fear of the state’s vengeance upon the people if it revives at some future time [wieder auflebenden Staats: explain the logic of the phantom, of the state resuscitated or returning as a revenant, of the restoration of the ghostly state and of the sovereign who would return, like Hamlet’s father, like spirit itself, crying out for vengeance5], and that these formalities [Förmlichkeit] are undertaken only to give that deed the appearance of punishment [Anstrich von Bestrafung], and so of a rightful procedure [eines rechtlichen Verfahrens, underlined] (such as murder would not be). But this disguising of the deed miscarries; such a presumption on the people’s part is still worse than murder [noch ärger ist, als selbst der Mord], since it involves a principle [Grundsatz] that would have to make it impossible to generate again a state that has been overthrown. (Ak 6: 322, 464– 65)

Kant is thus an unconditional supporter of the death penalty, except for the absolute exception of that which touches on the sovereign. If, however, we return to the couple, the odd couple6 Kant/Robespierre, we begin to see a real chiasmus take shape between them, or an almost symmetrical inversion of trajectories and logics. For we see that Robespierre, who, before the Revolution, was against the death penalty and, who, at the beginning of 4. The closing parenthesis has been added by the editors. 5. During the session, Derrida adds: “So it’s the logic of the phantom. One kills the king because one is afraid that the state or the king, resuscitated, or returning as a revenant, returns to punish. One is afraid of the restoration of the ghostly state, and of the sovereign who would return, like Hamlet’s father, like spirit itself, crying out for vengeance.” 6. [Translator’s Note]: “Odd couple” is in English in the original.

261

194 ‡ eigh t h se s sion

262

the Constituent Assembly, wrote publicly that he was hostile to the death penalty in general, was converted, so to speak, to the death penalty when he was condemning the sovereign, the monarch Louis XVI, and having him formally executed, and you know the rest: not only the Terror and the tumbrils, but the postponement of abolition, for two centuries, by the Convention, in 1795 (October 26, 4 Brumaire, Year IV): “Dating from the day of the general proclamation of peace, the death penalty will be abolished in the French Republic.”7 We have already discussed this here.8 But let me return briefly to the case of Robespierre, since we are summoning him to appear alongside Kant, on the other side of the chiasmus and as the other half of the pair, and since we are raising the question of cruelty in connection with both of them, the one and the other. At the beginning of the Constituent Assembly, as you know, everyone believed that abolition was going to triumph. It had the support of the majority in the Constitutional and Criminal Legislation Committees. The constituents were very familiar with the question; many were readers of Beccaria. Among them, Robespierre, who was an eloquent abolitionist. Indeed he declares that 1. The death penalty is essentially unjust; 2. it is not the most repressive of penalties and it multiplies crimes more than it prevents them.9 A logic and a lesson well learned from Beccaria. But I would like to cite another passage from the same Robespierre where there is a literal allusion to the cruelty of the death penalty. Having just evoked the judiciary errors that are, and I quote, “sad testimony to the barbaric temerity of your penal laws,” Robespierre the abolitionist adds: Do not confuse the effectiveness of a penalty with its excess of severity. . . . Everything argues in favor of moderate laws; everything conspires against cruel ones.10

And the death penalty is for him the cruelest penalty. Remember, and we will return to this: an “excess of severity” is “cruel.” Cruelty comes from an excess of severity. Cruelty is excessive severity. You know the rest. After a long discussion, the minutes of the Constit7. Quoted by Jean Imbert in La peine de mort (Paris: PUF, 1999), p. 61. 8. See Jacques Derrida, The Death Penalty, vol. 1, pp. 1– 96. 9. Quoted by Jean Imbert in La peine de mort, p. 56. 10. Quoted by Jean Imbert in La peine de mort, p. 56.

m a rch 7, 2 0 01 ‡ 195

uent Assembly record that the death penalty will be upheld — an almost unanimous decision: The main question is called; the Assembly decides almost unanimously that the death penalty shall not be rescinded.11

Following this, the number of crimes punishable by the death penalty in the Penal Code of 1791 is limited, if this is indeed a limitation, to thirty-two, grouped around two major types of offenses: offenses against the commonweal, and offenses against persons and private property; the progress here consists in condemning torture and limiting the death penalty to the mere privation of life, without cruel suffering. “Any person sentenced to death shall have his head cut off.”12 The day after the formal execution of the king, the very next day, Condorcet dares to propose once again that the death penalty be abolished; it is that true he proposes only a partial abolition, one that does not include political crimes — the very day after the execution of the king, as if, and here I will propose a double hypothesis: either the collective trauma or the unconscious remorse was intense enough, like that of the sons and brothers of the primitive horde after the murder of the father, still acute enough for Condorcet to expect to be heard, or else — but these two hypotheses are not contradictory — the death penalty was no longer needed because the death of the sovereign had accomplished the essential parricide. This is a profound and thought-provoking logic, for it is from this Revolution and from this Terror, which is shortly to follow, that we can date the first Declarations of the Rights of Man, and it is this Revolution that Kant — I will return to this in a moment — will celebrate precisely in the name of the idea of right and the ideas of human rights that fill the soul. The day after the execution of the king, Condorcet cautiously suggests: “Abolish the death penalty for all private offenses, and let us see whether it still needs to be maintained for offenses against the state.”13 This proposal is rejected along with many similar ones in each subsequent year, in 1793, in 1794, in 1795. What is more, the Revolutionary Tribunal of Paris and its special tribunals outside of Paris condemn to death and execute over 17,000 people. There were also “informal” executions, as Kant might say, executions without trial; 35,000 to 40,000 people are estimated to have been executed or assassinated without trial. 11. Quoted by Jean Imbert in La peine de mort, p. 57. 12. Quoted by Jean Imbert in La peine de mort, p. 58. 13. Quoted by Jean Imbert in La peine de mort, p. 59.

263

196 ‡ eigh t h se s sion

264

265

It is not a question here of rewriting [refaire] this well-known history, not in any sense of the expression “rewriting history,” whether by changing the narrative or by changing the course of events. I would only like to recall that after his conversion, Robespierre was among those who took action. Who acted on the death penalty. As for Kant, you will say, he was content to write about the death penalty, to write about it and to teach it. This may seem less cruel. And unlike action, or at least unlike a political or juridical form of action. Kant did not “decree” any law; he never voted on any laws; he never voted for any death sentences. He was not a sworn juror. But what he did is nonetheless not a non-act. Writing, speaking, teaching — not only but especially in public — is also an act. What are we to think then of the difference between this act and the acts of a politician, a sworn juror, a judge, or an executioner? In these two paradigmatic cases, Kant and Robespierre, there are certainly acts, public acts, but they are very different in nature and are mediated in structurally different ways. So let me repeat my question: if the death penalty is cruel, which of the two was more cruel, given that both were, each in his own way, supporters of the French Revolution and of the death penalty: the one, Robespierre, one type of actor, whose traits are recognizable as those of the actor, the man of action; the other, Kant, a thinker and thus an actor of another type? But does cruelty always pass by way of an act? And by what type of act? I don’t mean to insist heavily here on the formidable and shifting complexity of this question of action, of the qualitative diversity of acts and their differential relation to what is supposedly opposed to action or distinct from it (speech, thought, or theory, which are sometimes naively opposed to the act or to action or to praxis; desire as opposed to the act, before it is, as they say, acted on, the virtual as opposed the actual, the passive as opposed to the passive14). We will have to settle for two indicators among so many others. I select them because I have to limit myself, and I choose these two indicators or series of indicators because of their relation to the death penalty or more generally to the condemnation to die from the point of view of human rights and crimes against humanity. Once I have explained them briefly, I will then refer to them algebraically as Indicator 1 and Indicator 2. First indicator, Indicator 1: although the transformation (for example, the technological transformation) of public space, which gives speech and writ14. As such in the typescript.

m a rch 7, 2 0 01 ‡ 197

ing a kind of effectiveness, therefore a means of action, a mode of acting on or enacting, while it is not anything radically new, is experiencing today an extension in time and space, as well as an acceleration in rhythm equivalent to a mutation or a qualitative and structural change. Whence the surveillance, the repression, the persecution, even at times the condemnation to death, of people who go no further than writing and speech in their supposed transgression of the law. Not to mention the murders, outside the law, without “formal” procedure and without sentence [sans phrase] by fundamentalists of all kinds, of those who have put forth opinions in their speech or their writing (follow Amnesty International), let me cite here the more ambiguous case of “fatwas” (and not only the one unleashed on Rushdie but many others that were less well publicized), because they correspond to an original kind of death sentence for which the Kantian categories and oppositions seem inadequate: indeed, in these cases, there is neither a judicial apparatus that would correspond to state and public forms of law, nor an executioner who is named and appointed by the state in advance, nor a public enactment of the execution at a calculable date; and yet in these cases it is not simply murder since a decision is debated and made deliberately by a religious authority with reference, in principle, to a code and to a sacred text. The paradigm of the fatwa, wherever it can be virtually transposed, as the example of a death sentence for an act that consists in acting only through speech or writing, this paradigm of the fatwa complicates all the more the question of the act (what is an act?) in that the death sentence may be directed, from a cultural and religious space that lies outside of Europe, at speech or writing that, in the history of European institutions, has the status of a literary fiction, in a so-called space of literature or art, from the novel to painting, to photography or to cinema, a space in which, despite the irreducible specificity of the problems posed by each of these arts and their medium, it is understood that the author, the signatory of the work — and this is his/ her right, his/her freedom, his/her right to freedom, this is, the right, the right to literature and art, the right as foundation of these institutions — [it is understood that the author, the signatory of the work] is not identical to the voices or to the characters in the text that s/he signs or that s/he shows and represents, that the signatory may not be in the least represented in his/ her personal conviction, in his/her personal views, in his/her theses, by what s/he says or writes. An enormous problematic field (on which some preliminary work has been done, true, but not nearly enough), a problematic field that in any case seems inseparable to me, in its very historicity — for example, in the historicity of the technologies of communication and archivization, the historicity, thus, of the public space, and in the historicity

266

198 ‡ eigh t h se s sion

of what is called the (modern) institution of literature — inseparable, thus, from the history of the death penalty and the struggles that parse this history. From the moment that speech and writing no longer remain within the confines of lecture halls, salons, or libraries, their virtualization (technological and fictional), far from virtualizing them, is itself what converts them into action in a way that is completely different from the not so recent or even very recent past. Virtualization increases more than ever the chances of action and actualization. Relations between desire and act, and even relations between unconscious desire and its symptomatology, are turned upside down by these new machines. More than ever, more clearly than ever, the boundary between acting, not acting, letting act, doing and letting be done, and so on, seems uncertain. When is one a pedophile, for example, indeed guilty of pedophilia? Is one a pedophile, for example, because of what one says, publicly or in private, because of what one writes, or because of what one desires, or is it only because of what one does (because of one’s actions, as we naively say) with children? And with children up until what age, so as to bring together once again the questions of act and age? If I write or if I sign something, under certain conditions, in favor of a certain pedophilia, without being myself a pedophile, or again if I harbor pedophilic desires without acting on them, what will be the object of a law that condemns pedophilia? Or, as Kant says, pederasty? Etc.

267

Second indicator (I said I would give two), Indicator 2: The limit between condemning to death and condemning to die does not always seem airtight [étanche] (now étanche [impermeable, airtight], étancher [to staunch] is an interesting word from the perspective of pain and suffering, from the perspective of the pain endured in the form of a penalty, the death penalty, for example; the vocabulary of étanche, étancher, whose etymology is debatable, has come to signify what stops the flow of a liquid, for example, tears or blood, but also water in general; it’s a wound — and we will speak of other wounds later: castration, circumcision, excisions — [so it’s a wound] whose flow of blood one staunches or stops by closing the scar, with stitches, for example), if then the limit between condemning to death and condemning to die is not always airtight [étanche], the limit between making die and letting die is even less so, less airtight, between, on the one hand, the act intended to make die, actively, actually making die, putting to death, and, on the other hand, the act intended to do nothing and allowing something to happen, letting die this or that living being (animal or human), in the singular or plural, about which or about whom one knows, or at least can or could know, that,

m a rch 7, 2 0 01 ‡ 199

if left to itself, abandoned to himself or herself, in the singular or the plural, and the plural may add up to billions, he or she will die, they will die — more or less quickly, as quickly as possible: all over the world, close to us, far from us, human machines condemn to die, condemn to bringing life to an end, shorten life or cut it short, bring the age of death closer, machines that we allow to operate, machines that violate the right to life, the right to life of men and women, and that we allow to operate — where is the share of passivity and activity, the share that belongs to the act, the share that belongs to intentional activity, which, through some philosophical passivity in the service of an alibi or denegation, we alone associate with responsibility and guilt, and therefore crime? Where then does the crime of the failure to assist a person in danger begin and where does it end? When I say “a machine that kills or shortens life,” I mean just as well or just as poorly: 1. what in fact functions mechanically just as well — or just as poorly — as those things which we sometimes have an interest in treating as machines without intentional, active, actual, and voluntary conscience in order to justify our passivity, our laissez faire, just as well or just as poorly 2. the juridical and cultural machines (legislation, the death penalty, ethics, national, supranational, and military politics, or the religion that justifies and puts to work these machines, which massively implement the literal death penalty as well as the organized and ritualized violence that infringes on the right to life, on the right to the reproduction of life, on the right to the enjoyment of life, in the form of castrations that may or may not be symbolic, like circumcision, castrations that are symbolic and real, like the excision of millions of women who are deprived of a certain kind of explicitly sexual and clitoral pleasure, among other pleasures of which so many women in the world can be deprived as a result of phallocentric politics), as well as or as poorly as the economic and social machines (the market, the job market, impoverishment, international debt, etc.), so many techno-scientifico-capitalist mechanisms for distributing, in a terribly unequal way, the right to life, to longevity, and which therefore not only condemn to death a calculable number of individuals but also condemn to die prematurely an incalculable number of living beings, human and nonhuman; and since I have just alluded to capitalist violence, as if in passing — and I think it is indissociable from the techno-scientific (in its many reaches, especially biological, genetic, medical, pharmaceutical) which is why I mentioned it in the same breath — [since I have just alluded as if in passing to capitalist violence], is it not completely obvious that capital, the law and the respect for the law of capital, for capitalist property, is the very place where the distinction between the actual and the virtual, the

268

200 ‡ eigh t h se s sion

269

active and the passive, the intentional and the nonintentional, the act and its other, where this distinction becomes, in a word, blurry, where everything is done to blur this distinction, thereby providing conscience with the most effective and most reassuring of alibis, the insurance system itself, the system of the principle of reason as automatic calculation, as machine to calculate insurance, the calculating machine as insurance and reassurance itself? Where there is capital, the distinction between act and non-act, active and passive, actual and virtual, act and desire, activity and nonactivity, labor and nonlabor, etc., all of these distinctions between the act and its others lose all credibility. In the name of credit, they lose all credibility. So long as the discourse on human rights does not touch on or does not actually extend to all the forms of violence and all the crimes I just listed (Indicators 1 and 2), so long as it does not really, actually, actively, measure up to all of these “condemnations to die or to death,” such a discourse on human rights, on the ideas of human rights that fill our soul, on the right to life and against crimes against humanity, well then, this discourse, what is most respectable and respectful about it, is either feeble and enfeebled by bad faith, hypocrisy, alibis, and egoism in all of its forms or else — and these are not mutually exclusive — contaminated by an unacknowledged complicity with this national or worldwide criminality in its cruelest forms. Since at their most respectable and respectful, all these discourses on human rights or the right to life, or even against genocide and crimes against humanity, whether or not they are abolitionist when it comes to the death penalty, [these discourses] all maintain a certain relation of historical filiation to what one might a little hastily call the event of the French Revolution — I’m coming back to it — to the French Revolution, to the enigma of its event, and to the question of knowing whether this event has taken place, has already taken place, or has not yet taken place, hence, to the question of knowing what “taking place” means in this case. So many questions that will serve as backdrop, or as scenery, for this intriguing intrigue where what gets played out are the respective cruelties of Kant and Robespierre (which of the two was more cruel?) as well as the knots — by which the threads of Indicator 1 and Indicator 2 are tied together. I propose to call these knots, twice, by metonymy, “execution”: 1. Execution by capitalistic, fatwa machine (or the hyperactive virtualization of the act) and 2. Execution by excising machine (or castration without excuse). I should have mentioned — before saying anything about the respective cruelties of Kant and Robespierre at the time of the French Revolution, be-

m a rch 7, 2 0 01 ‡ 201

fore saying anything about the cruelty of these two supporters of the death penalty, the one, Kant, as impeccable theorist, the other, Robespierre as imperturbable practitioner — that Kant, and we must not forget this, while he disapproved of the execution of a king and gives the example of Louis XVI, also hailed the French Revolution as a sign of a very peculiar kind, a sign of nothing that presently exists, a sign of no being, signum demonstrativum, signum rememorativum, signum prognostikon, a sign of nothing (res) that is, a sign of no reality, a sign of nothing, of no res, a sign of no present being, but one that reminds us, recalls to our memory (rememorativum), demonstrates (demonstrativum) that there is some future ( prognostikon) (Ak 7: 84, 301). (No being, nothing, and the principle of reason? Later . . . explain15). This sign (signum) tells us ( prognostikon) that there is some future and possible progress to come because we remember (rememorativum) that there has already been progress, that there is thus a possibility already attested to as possibility (but not an act, following our inquiry into what is or is not an act), there is at least the possibility already evidenced of progress or of a perfectibility in the human race. (Ages of humanity: what is the age of humanity?16) It is a certain thinking of the event, of the given of events, of what happens and becomes a given (Begebenheit — the French Revolution is the great example here), of a given event as that which gives a sign and even a sign of a prophetic nature. The event in question does not happen in the present; it does not happen to the present; it does not get as far as the present; it does not arrive at present; it has not arrived up to the present, one might say, but it’s coming; it will have arrived otherwise, or at least — because of the failure of the French Revolution in the eyes of Kant, because of its corruption in the Terror — the event did not come to pass as a fully present event, as far as the present [ jusqu’au present], up to the present [ jusqu’à present], identical to what it is, being what it is, all the while coming to pass as promise and reminder, as the signum in question, a sign that is both anamnesic and 15. During the session, Derrida adds: “So here one could show, though I won’t do it today, that this signum, which is the sign of nothing, of no being, but only demonstrativum, rememorativum, prognostikon, which is the sign of no present being, has a very particular relation to the principle of reason, and to the second tonal accentuation of the principle of reason, which does not go in the direction of calculation or reckoning according to Heidegger, but in the direction of being which is not a being, of nothing. Of the Abgrund which is not a being. Perhaps I will return to this next time.” 16. During the session, Derrida adds the following remark: “So the question that is on the horizon of this history of action and power is also the question of age, the age of humanity: action and age, as always.”

270

271

202 ‡ eigh t h se s sion

prophetic. For the paragraph in The Conflict of the Faculties that speaks of this signum demonstrativum, of this signum rememorativum, of this signum prognostikon has as its descriptive title an allusion to a prophetic history (wahrsagende Geschichte).17 From the beginning, Kant explains to us that in human history, an experience (Erfahrung) is possible that, as event (given its character of event, Begebenheit), points to or indicates a disposition and capacity (Vermögen), a power, namely the power that is at the same time the possibility (not as act but as possibility, as possible power) of becoming the cause of progress (Ursache von dem Fortrücken) toward the better, and, since this progress must be the act (That) of a being endowed with freedom, the capacity, the power, the possibility of being the author of this progress, the artisan-in-action [en acte] (Urheber) of this progress. But one can predict (vorhersagen) of an event that it will be the effect of a cause (according, that is, to the principle of reason), only if circumstances (Umstände) cooperate (this, for example, is what the French Revolution is, an event that indicates or testifies, a probative event but an event without full presence). That these circumstances must come to pass can in fact be predicted (vorhergesagt) by what Kant himself calls a calculation of probabilities, a calculation of likelihood (beim Calcul der Wahrscheinlichkeit). And yet in spite of this probability, in spite of this calculable likelihood, I cannot determine if I myself will be able to experience it during my lifetime. 272

Therefore, an occurrence must be sought which points to the existence of such a cause and to its effectiveness [den Akt ihrer Causalität] in the human race, undetermined with regard to time [so one doesn’t know when], and which would allow progress toward the better to be concluded as an inevitable consequence. This conclusion then could also be extended to the history of the past (namely, that it has always been in progress) in such a way that that occurrence would have to be considered not itself as the cause of history, but only as an intimation [nur als hindeutend], a historical sign [als Geschichtszeichen] (signum rememorativum, demonstrativum, prognostikon) demonstrating the tendency of the human race [die Tendenz des menschlichen Geschlechts] viewed in its entirety, that is, seen not as [a sum of ] individuals (for that would yield an interminable enumeration and computation [thus innumerable, unenumerable, incalculable: eine nicht zu beendigende Aufzählung und Berechnung]), but rather as divided into nations and states (as it is encountered on earth). (Ak 7: 84, 301) 17. The reference here is to §5 of the second section of The Conflict of the Faculties: “Yet the prophetic history of the human race must be connected to some experience.” (Ak 7: 84, 301)

m a rch 7, 2 0 01 ‡ 203

Well, the French Revolution will have constituted such a sign. If it demonstrated, recalled, announced humanity’s tendency toward progress, if it was such a sign, if it gave this sign in actuality toward a possibility, an actual sign toward a possibility, it is because it will have been the revolution of a spiritual people, a people rich in spirit (die Revolution eines geistreichen Volks). Whether the Revolution succeeds or fails, this sign will have been given. Even if it is filled with misery and terrible crimes (namely, killings, for example the Terror or the execution of the sovereign), crimes so awful that a wise person would hesitate to repeat the experience, the experiment (Experiment), even if he were certain of its success the second time around, well then, in spite of this, this signum, this event that was a sign, less a successful event than a signifying event, an event, I would say, of prophetic memory, a historical event speaking the true in advance (wahrsagen and vorsagen), well then, this signum can inspire in the spectator (for example, the foreigner, and this is the universal scope of the Revolution) a feeling of participation, of sympathy that is very close to enthusiasm. And this feeling of enthusiasm, once again, like the feeling of fright before the horror of the execution of the sovereign, like respect for the moral law, like the interest of reason, is a feeling that is not pathological, not empirical: it is a universal feeling, a universalizable feeling of reason, a feeling that is pure and purely inspired by a moral cause, by a twofold moral cause: first, the right of a free people to provide itself with a constitution that it deems good (theoretically a republican constitution, says Kant, and I invite you to read closely the cumbersome note he adds to this Remark [Ak 7: 86, 302]), and second, the moral cause as end or as duty, namely, that a people’s constitution can be compatible with law and morally good only if it is, by its very nature, capable of avoiding an offensive war, that is to say, capable of ensuring progress. Anxious to exempt these affective categories, this type of affect (Affekt), such as enthusiasm, from the set of emotions that deserve censure, Kant insists on the fact — claiming that this remark is important for anthropology — that genuine enthusiasm relates only to what is ideal and to what is purely moral, such as the concept of right, for example. Genuine enthusiasm cannot relate to something that would be “grafted” onto self-interest, onto a calculation of interest (auf den Eigennuss gepfropft) (Ak 7: 86– 87, 303). Such was the grandeur of soul of the French revolutionaries when it was inspired by the pure concept of right. Taking his courage in both hands, Kant is then forced to recognize that when confronted with this grandeur of soul, even the value of honor (which he often extols, as you will remember), the value of honor proper to a class, to the old warrior nobility (honor, which is also an analogue of enthusiasm), could not match and had to bow down before the people’s right.

273

204 ‡ eigh t h se s sion

274

275

This brief reminder was necessary in my opinion to recall this mix of horror and enthusiasm, to use his words, that Kant must have experienced before the signum of a French Revolution that at once destroyed law, cruelly threw the foundation (Grund) of law into the abyss (Abgrund) by executing the sovereign and generating the Terror, at once, then, destroyed the law and established the law, killed and resuscitated it again, refounded and recalled it, the law of a free people and the rights of man. One can imagine that this mix of two contradictory feelings also divided Kant’s view of Robespierre, his relation to a figure like Robespierre, to the cruelty of Robespierre. And vice versa — this is the chiasmus — this feeling, divided [ partagé] in itself, might have been shared [ partagé] by Robespierre, by Robespierre in his abolitionist phase when faced with Kant as a cruel supporter of the death penalty, and then by the regicidal Robespierre when faced with Kant as a reactionary and a pitiless judge of the simulacrum of revolutionary justice. If each appears crueler than the other, then, the obscurity surrounding the question of knowing what cruelty is only increases. Indeed, the psychoanalytic recourse to these words, cruel, cruelty (a recourse about which I briefly commented elsewhere, in Psychoanalysis Searches the States of Its Soul18), is perhaps not adequate to dispel the obscurity and draw a genuine concept of cruelty from the confusion of its everyday usage. In our present context, the fact remains that Reik’s statement (inspired, as always, by Freud) may be of some interest to us, if not for the content it provides the concept of cruelty, then at least for the law of escalation and hyperbole that concerns us here: one cruelty more cruel than another, which also means that when we think we are less cruel, when we abstain from cruelty, we risk being even more cruel, etc. In the chapter of his book devoted to “Forgiveness and Vengeance” (this is its title),19 a chapter in which he says, among other things, that the unconscious knows neither gratitude nor forgiveness and in which he interprets, as you recall, forgiveness as reaction formation, as the reaction to a virtualized or, in some sense, capitalized thirst for vengeance (the exemplary example: Christianity), Reik (in subsection 5, the final subsection of this chapter on “Forgiveness and Vengeance”20) interestingly puts into causal relation the ideal and cruelty, idealism and cruelty, the inflexible law of ideal purity and cruelty. The ideal produces the cruel; 18. See Jacques Derrida, “Psychoanalysis Searches the States of Its Soul,” especially pp. 238– 41, 262, 269– 73, 279– 80. 19. See Theodor Reik, The Compulsion to Confess, pp. 408– 30. 20. Ibid., p. 428.

m a rch 7, 2 0 01 ‡ 205

ideality engenders cruelty. The idea is cruel. It is the cause of cruelty. In short, it is not evil that is cruel but the good, as well as the good will; it is pure morality that is cruel; it is moral law that drives one to cruelty; it is the elevation of moral feelings, the elevation of moral demands, that produces cruelty and vengeance, vindictive cruelty. When, in his abolitionist phase, Robespierre condemned what he was then calling the “excess of severity” of “cruel laws,” he was in effect anticipating what Reik would later say, but this time against Robespierre by name, in The Compulsion to Confess, a century and a half later. The origin of cruelty is the ideal insofar as the ideal is, by its nature, excessive. It is not passion; it is the elevation of virtue that elevates the degree of cruelty. Since we are always dealing with a law of excess or escalation or hyperbole (X more cruel than Y, one more cruel than the other, R. more cruel than K. more cruel than R., etc.), perhaps we should begin by suspecting that excess, the excessive deviation, is not something that just happens to cruelty. Cruelty is constitutively excessive. One is never a little or moderately cruel; there is no measure or moderation for cruelty. Well then, this excess intrinsic to cruelty would be linked to a process of idealization that produces the excess itself. And only a being who is capable of idealization, and therefore of the pure Idea, would be excessive and thus susceptible to becoming cruel. Remember that when Kant, in the appendix, which we are still discussing at least indirectly, denounces crimes against nature, crimes against humanity, when he appeals to a talionic law that must also apply to rape, pederasty, or bestiality in the name of respect for humanity and human rights, Kant puts all of this forward in the name of what is inscribed in the law and in punitive justice as a pure, determining a priori Idea. Now what does Reik say, taking aim here at both, at Kant as well as at Robespierre, though he names only the latter, as if both were, in the end and on the same grounds, examples of cruelty produced by what Reik calls “excessively high” ideals? Reik first recommends that one soften the dangerous rigor of these ideal demands. Not that one forgive, since forgiveness is a reaction formation, but that one become benevolent, tolerant, flexible, in order to avoid the rigidity of the ideal. Benevolence and not “good will” in the terribly rigorous sense that Kant gives it. What is this flexibility, this relaxation [souplesse]? Reik begins by writing the following: Even though forgiveness can be recognized as reaction-formation of the conscious only, the milder judgment of people, of their tendencies and actions, is quite possible. The most important prerequisite for this attitude is a relaxation of the ideal demands. (428)

276

206 ‡ eigh t h se s sion

277

Thus, no forgiveness but also no rigor, no rigidity, no rigid rules, no inflexibility in taking the other to task [tenir-rigueur]. No excessive rectitude in law, in short, no absolute correctness. For inflexibility, rigidness, correction are essential attributes of what is right (droit, recht, correct, straight [In Right to Philosophy I, let it be said in passing, I explored in their own right the values of the right or straight [droit] and the oblique in Kant]21). When Reik calls for flexibility and relaxation, he asks that one not cede too much to the demands of law, to the ideal of law, which is rigidity par excellence: the idea of right is the inflexible rigidity of the erected rule. Let’s not ask Reik how and to what extent we must relax this rigidity, correction, rection, direction, or erection, for the value of flexibility [souplesse] is precisely less calculable than that of right [droit]. Flexibility is incalculable; it is that for which there is no objective rule, as there is for law. But this is perhaps what Reik is suggesting: without an objective rule, one must be benevolent toward the other as other, by finding each time, and this is perhaps what benevolence is, by each time inventing the flexibility, the form and degree of flexibility, of relaxation of the law, the good rule (without rule, then) of flexibility. Otherwise we get cruelty; the inflexible law is what produces cruelty. Today one might call it “moral harassment.” Reik continues, and you will see the theme of cruelty appear in its association with bestiality, with animality, according to a logic that is problematic or at least confusedly metaphorical, as I would like to show later on: The most important prerequisite for this attitude [of benevolence] is a relaxation of the ideal demands. The individual who makes excessively high demands of this kind on himself is compelled to become cruel and vengeful [my emphasis]. The great reformers and moralists became bloodthirsty animals as soon as they came to power over people because they expected too much of them. Robespierre’s faith in human virtue was unshakable. He had, therefore, to have several thousand French heads cut off. (428)

What is true of Robespierre, who came to power, as Reik says, would also be true of Kant, according to the logic. Faith in virtue, the excessive elevation of the ideal, in short, the imperious imperative of the superego, instead of keeping man at the height of human dignity, debases him to the rank of a ferocious beast whose thirst for blood cannot be quenched [étanchée]. Becoming cruel is the rigidifying or supererecting effect of the puritanical 21. See Jacques Derrida, Du droit à la philosophie (Paris: Galilée, 1990), pp. 77– 80; Who’s Afraid of Philosophy? Right to Philosophy I, trans. Jan Plug (Stanford, CA: Stanford University Press, 2002), pp. 42– 48.

m a rch 7, 2 0 01 ‡ 207

or purifying excess of the moral law, a law that essentially reduces man to the stupidity of the beast [abêtit] (Adorno and the repressive cruelty of Kant, and of idealism generally22). By being, in short, even more of an idealist than Robespierre, since he did not himself, in person and in actuality, cause heads to fall, Kant was in short crueler than Robespierre in this hyperbolic logic of cruel idealism or of the cruelty of idealism. So Kant was more idealistic, in consciousness [conscience], in spirit (in his conscious or unconscious desire), thus even more cruel than Robespierre who was, in actuality, crueler than Kant, as if the act of cruelty, the acting out of cruelty, were less cruel than the desire, without action, for cruelty (develop: logic of prior guilt: Robespierre confessed and clarified, and relieved, by acting out, a guilt that Kant did not confess to, to the same extent. Let us also beware of the cruelty that may be hidden in our abolitionist struggle, however innocent it may appear, in its good conscience, etc.23). But the mindlessness [abêtissement] of man, his becoming a cruel and bloodthirsty ferocious animal, does this mean that cruelty is what is proper to man or to the animal? I will return to this in a moment. To take the measure of Reik’s statement — and Reik had no more sympathy than Freud for the French Revolution nor, for that matter, for any other revolution, still less the revolution of 1917 — we must hear it out to the very end, namely that in this fraternity of cruel, moralistic reformers, a fraternity whose effects were disastrous, terrible, terrifying, terrorizing (at issue here is the Terror as effect of the Critique of Pure Practical Reason and the categorical imperative), in this “fraternity,” it is not only brother Kant and brother Robespierre whom we find. At the origin of this fraternity, we find the most brotherly of brothers, the inventor of the fraternity of one’s neighbor, the most brotherly of brothers, who was thus very close to the father, to the left or to the right of the Lord, namely the brother Jesus Christ, the son or image of God the Father. What is more, Reik accuses no one, neither Kant, nor Robespierre, nor Jesus; he takes them all for idealists who were the first victims (and it’s true that things end badly for two of them) 22. During the session, Derrida adds: “There are similar themes in Adorno, against Kant, against the repressive cruelty of Kant, against the cruelty of idealism in general, the effects of which Adorno denounces right up to our century.” 23. During the session, Derrida adds the following comment: “One could develop this, it’s a Freudian logic, the logic of prior guilt. Robespierre, like Kant, felt guilty beforehand but he acted, and by acting, he confessed, he sorted out his guilt, on several thousand heads; he relieved himself in this way of a preexisting guilt. Kant did not confess, not in the same way.”

278

208 ‡ eigh t h se s sion

279

of human nature, of the “human psychophysical constitution.” Listen to the end of the subsection of this subchapter, three paragraphs after the reference to Robespierre: (Read and comment on Reik, pp. 429– 30.) What gives us frail and miserable ephemeral beings the right to forgive each other? Tolerance of galley slaves chained together toward each other is no virtue nor can it be demanded with great moral aplomb. Generally it should be remembered that the practical value of maxims like that of Mme. de Staël is as small as that of other moral statements. Similarly, the exhortation for tolerance, for mutual forgiveness, has little prospect of success in the face of the unchangeable human psychophysical constitution. Christ called Himself meek and praised the peaceful. His teachings have offered peace to the world forever. Since then, there has not been the smallest piece of land in Europe that has not been soaked with the blood of murdered people.24

(And then Balzac [“An Episode under the Terror,” pp. 446– 47].)

280

“My son, if you have steeped your hands in the blood of the martyr king confess yourself to me. There is no crime which, in the eyes of God, is not washed out by a repentance as deep and sincere as yours appears to be.” At the first words of the ecclesiastic an involuntary motion of terror escaped the stranger; but he quickly recovered himself, and looked at the astonished priest with calm assurance. “My father,” he said, in a voice that nevertheless trembled, “no one is more innocent than I of the blood shed — ” “I believe it!” said the priest. He paused a moment, during which he examined afresh his penitent; then, persisting in the belief that he was one of those timid members of the Assembly who sacrificed the inviolate and sacred head to save their own, he resumed in a grave voice: — “Reflect, my son, that something more than taking no part in that great crime is needed to absolve from guilt. Those who kept their sword in the scabbard when they might have defended their king have a heavy account to render the King of kings. Oh! yes,” added the venerable man, moving his head from right to left with an expressive motion; “yes, heavy, indeed! for, standing idle, they made themselves the accomplices of a horrible transgression.” 24. During the session, Derrida comments on the last part of the quotation: “Always blood: cruelty, cruor and blood,” and then goes on: “And now I would like to read you very quickly, without commenting on it, a passage from Balzac’s “An Episode under the Terror,” where you will find all of this again. I am just going to read.”

m a rch 7, 2 0 01 ‡ 209

“Do you believe,” asked the stranger, in a surprised tone, “that even an indirect participation will be punished? The soldier ordered to form the line, — do you think that he was guilty?” The priest hesitated. Glad of the dilemma that placed this puritan of royalty between the dogma of passive obedience, which according to the partisans of monarchy should dominate the military system, and the other dogma, equally imperative, which consecrates the person of the king, the stranger hastened to accept the hesitation of the priest as a solution of the doubts that seemed to trouble him.25

And what if Kant and Robespierre were each more cruel than the other? This is what we were asking ourselves at the outset. Well then, with these two proper names, which were also great metonymies or great, exemplary allegories, the two questions that I wanted to take up for themselves, namely, “What is cruelty?” and “What is proper to man?,” have already been announced. Unless it is one and the same question: cruelty would be what is proper to man. Man escapes cruelty only in the name of law or rights, and thus in the name of an even greater refinement in cruelty. The death penalty, a cruel chastisement [châtiment] meant to punish the cruelty of murder. Castration, a cruel chastisement meant to punish sexual crimes against nature and against humanity. But who will punish the cruelty of the death penalty and the cruelty of all the castrations (literal or figurative), all the circumcisions (literal or figurative), all the excisions (literal or figurative), and all the castigations that take aim in the end at life itself? Might cruelty be what is proper to man? Can the animal, what one blithely calls the animal, as if such a thing existed in general and in the singular, can the animal be cruel? Is the animal capable of cruelty? We sometimes say this metaphorically (see Reik), but a rigorous use of the word cruel would have to rule it out to the extent that only someone in an explicit relation to the law and its prohibition is capable of an excess that consists in doing evil for the sake of evil by doing evil for the sake of the good [ faire le mal pour le mal en faisant le mal pour le bien], and as a result of suffering in order to make suffer, in the name of the law, in the name of the law as the evil of the good. As long as there is no law, but only nature, there is no cruelty. The classical concept of the animal, the one I am tempted to deconstruct insofar 25. Honoré de Balzac, “Un épisode sous la Terreur,” in La Comédie humaine, ed. Pierre-Georges Castex (Paris: Gallimard, Bibliothèque de la Pléiade, 1978), vol. 8, pp. 447– 48; “An Episode under the Terror,” in The Comédie Humaine of Honoré de Balzac: Scenes from Political Life, trans. Katharine Prescott Wormeley (Boston: Little Brown, 1906), vol. 1, pp. 358– 59.

281

210 ‡ eigh t h se s sion

as it takes the animal to be a natural living being, makes it impossible for us to speak of animal cruelty. It remains to be seen whether or not the animal has a relation to the law and everything the law imposes or presupposes. An enormous question, which is still the question of what is proper to man, before any concept of human rights and crime against humanity. This is the place where we would have to reopen the question of reason, and we will do so, between Kant and Heidegger, the question of two accentuations of the principle of reason, one of which, the dominant one, leads to calculating reason for the animale rationale, the animal living being that man supposedly is, as an animal who counts and calculates. And the other, which leads to the question of being as Grund/Abgrund and to another interpretation of the being of man. These two interpretations, these two accentuations, open onto different figures of the human (past or to come) and both of them also intersect, and we will see how, Kant’s discourse, as it is interpreted by Heidegger. The question of the death penalty is none other than the question of the human, our question, I mean the question of we humans.

282

We, we humans, we calmly make use of this “we,” we play with it blithely to the extent that, the game having been or supposedly having been played, we have already responded or we assume we are capable of responding to the question or answering for the question: “What is man?” We know or we believe we know how to recognize our fellow creatures; we are supposed to know how to recognize our fellow creatures. We, humans, we recognize our fellow creatures, however different from us they may be in their skin color, the shape of their faces, their language, their clothes, their behavior, etc. This is a classical topos, which I won’t develop further. If we try and condemn someone for a crime, it is because we take this person to be a free individual, responsible and guilty. Even if we judge him to be guilty of a crime against humanity. We do not try a lion or a shark for a crime against humanity even if they have treated a human with what we call, at least figuratively, abominable cruelty. Only a human can be found guilty of anything, of anything cruel, including a so-called crime “against humanity,” a modern, very recent concept that attests, more than any other, to a putative and masterable, therefore calculable, knowledge of what constitutes the humanity of the human, the human essence of the human, what is proper to man. Thus an at least virtual response to the question “What is man?” and therefore “What is called a man?” This is a question “What is man?” and therefore “what is proper to man?” with which we mustn’t play around, with which we must not play

m a rch 7, 2 0 01 ‡ 211

around, and with which we must find the means not to play around. If one wanted to play around with this question “What is man?” “What is proper to man?,” for example by turning it into a kind of board game, like the game of the goose in which all the occurrences and all the figures of the same question “What is man?,” “What is proper to man?,” would appear successively on a track, thus in a narratable history, all the occurrences and all the types of answers that have been brought to this single question throughout history, throughout the history of religions, the history of philosophy, the history of anthropology; and if the game consisted in jumping from one square to the next, according to the random throw of the dice, etc., then this game would have rules of calculation. We would have a finite series of squares, of given responses in the finite course of a given history, thus in a history whose circle was closed, without future; one would jump from square to square, according to the roll of the dice, or one would spend a longer or shorter time on one of the squares (what is proper to man is language, logos, reason, or else law, or else politics, or else freedom, or else responsibility, or else sovereignty, or else laughter, or else tears, or else the experience of death, or else time as such, or else right, or else modesty, or else clothing and home, or else technology, etc.), and among all of these squares — and this would risk complicating things — there would be one that would grab our attention, and this would be the death penalty: not murder, killing, making or letting-die, which one finds among all living beings, all “animals,” but the juridico-political apparatus that we call the death penalty. The death penalty would be just one of the squares, thus a figure for “what is proper to man,” and it would have, like all the other figures of what is proper to man, a relation of solidarity, of essential concatenation, with all the other traits, all the other figures of what is proper to man, but also a relation of metonymy or synecdoche with the other traits or figures or predicates of what is said to be “proper to man” (language, logos, reason, law, or else politics, or else freedom, or else responsibility, or else sovereignty, or else laughter, or else tears, or else the experience of death, or else time as such, or else right, or else modesty, or else clothing and home, or else technology). In any case, and let us weigh every word, the rational and calculated possibility of deciding sovereignly, of making the decision to make die (notice that I say here not let die but make die by what is called an act; it is indeed a matter of provoking death through a kind of machination; it’s a matter of giving death and not of leaving someone to die), thus the rational and calculated possibility, the possibility as power to decide sovereignly, to make the decision to make die the other who is deemed responsible and guilty, and to claim to answer for this decision in a responsible way, to claim to give an account and justify it

283

212 ‡ eigh t h se s sion

284

285

with reason, all of this would define what is proper to man, the essence of humanity. But since this square (like the prison square in the game of the goose) would be just one square (whether one stayed on it for a long time or forever) on a circular course, the history of that thing or those things that are proper to man (I say this in the singular and the plural for the reasons I have just given: there are multiple figures for what is proper to man, but these figures are represented and connected among themselves in a way that is so systematic that they actually make up but a single figure in which one moves in a circle), well then, the history of that thing or those things that are proper to man would be finite, so to speak; it would have exhausted its possibilities; and this is why I played around with the figure of the game of the goose, with the circular course in which one moves, more or less quickly, according to more or less random paths and rhythms (according to the roll of the dice), but all of which come down to the same thing. It’s a game with rules, and history would be closed, if not at its end. Without future. But what suggested to me this reference to the game, for example to the game of the goose, was not only the seeming multiplicity of squares or places (which are also topoi in the rhetorical sense), it was not only the idea of the rules of a game (and the game, in the absolute sense of the term, with its absolute experience of both absolute chance and absolute rule, the game would also be, from this point of view, one of the things proper to man: one might get the impression that some animals play, but in reality, as one might say in the code of the same anthropocentric humanism, animals don’t play in the strict and strong sense of the term; they have never invented a game whose technical rules are universalizable), what suggested to me this reference to the game, for example the game of the goose, was not only the seeming multiplicity of squares or places (which are also topoi in the rhetorical sense), it was not only the idea of the rules of a game but also the fact that this game presupposes a course [parcours] resembling a history, a course resembling the course [au cours] or the coursing [à la course], the curriculum [cursus] of a history that gives rise to knowledge and narration. And it’s this history, this course, this narrative that would be closed. One can continue to go around and around, of course, play again, go through all the squares in a different order, stay in them for longer or shorter periods and differently with every game, every time [à chaque coup], with every throw of the dice, but this infinite combinatory series remains a combinatory series whose possibilities are finite: the squares are many but they are finite in number. They are what they are. One doesn’t have the right to change the meaning of any one of them, nor does one have the right to change the rules of the game, etc. There is a history, but it is finite; you might as well say that it is past,

m a rch 7, 2 0 01 ‡ 213

presently passed, always already passed; nothing new can ever happen that is not already coming back, returning, that does not come down to coming back to one square or else, or better yet, a more interesting possibility that may seduce us for a moment, that does not come down to coming back to square “one” [à la case “départ”] to the place of the beginning or the place of the most archaic origin (Heidegger or Freud) — of the circle, of the history or the narrative. If, with the intention of dealing a new hand [donne] and causing a revolution, you removed or hid one of the squares, for example the “rights” square or the “death penalty” square, well then, the game master or the philosopher croupier would say to you: nothing has changed, carry on, place your bets, the square “death penalty” is closed, it has disappeared, it’s abolished, but this changes nothing: what is proper to man, as represented by all the other squares, implies that the possibility of the death penalty remains (as possibility and not as act). Is there a way out of this game? Is there a future for reason and for the name of man, a future that would not be exhausted in advance by this hand that was dealt [donne]? This is one of the questions that awaits us, a question about the future of the question itself. How do the possibility and the reality of the death penalty force us — waiting without waiting — to ask this question? We will speak of this again.

ninth session

March 21, 2001 h

The concept and blood. How to conceive, how to conceive of it, the relation between the concept and blood? How to conceive of blood? Can blood be conceived? And how might a concept bleed, how might it, this concept, lead to an effusion [épanchement] of blood?

288

Whether it comes to concepts or blood, we are thus a long way from being done with the impermeable [l’étanche]. We are a long way, a very long way, from being done — will we ever be done? — staunching the flow [d’étancher]. No doubt you remember that this word, impermeable [étanche], the impermeable [l’étanche], retained us briefly in passing last time.1 What does staunching [étancher] mean? We were present at the scene of the hemorrhaging, if not the hemophilia, of the wound and the bleeding to be staunched, of the effusion of blood to be staunched (by draining, suturing, ligaturing, stricturing, closing the wound, binding). The scenography of hemography, the hemoscenography, seemed to us to demand a certain privilege, a certain prerogative, even if water and tears could also be seen figuring among the liquidities to be staunched. Among the liquid bodies produced or secreted by the body itself — water, tears, blood, to which one would have to add milk or sperm — we felt called upon by the death penalty to see red, to see the red of blood return or disappear. Remember all of Victor Hugo’s indictments and pleas, which we read last year as so many canvasses in red, the red of blood but also the red of the guillotine’s uprights.2 1. See above, “Eighth session, March 7, 2001,” pp. 267 ff. 2. See Jacques Derrida, The Death Penalty, vol. 1. See especially the “Eighth session, February 23, 2000,” pp. 20 ff.

m a rch 21, 2 0 01 ‡ 215

In any case, whether we’re speaking about concepts or blood, we are a long way from being done with the impermeable; we are a long way, a very long way, from being done staunching the flow. Staunching, in every sense [en tous les sens], and finally and first of all, staunching all the overflowing of meaning and the meanings of the word “étancher.” (Parenthesis. One could — I will not do it here since I already did it in Glas3 — follow the trail of this religion of blood, of wine and blood that was Christianity, of the blood of a man condemned to death whose passion and crucifixion were interpreted by Hegel as an essential moment of the concept, precisely, in the Hegelian sense of the history of the absolute concept, given that, in this movement of stricturation that the dialectic is, absolute knowing is the truth of revealed religion (namely, of Christianity), which is itself the sublating truth of religion. In other words, so long as we sometimes speak of “losing one’s blood,” we have had to conclude, since Hegel, that the blood that Christ lost on the cross, he didn’t lose, it wasn’t lost. The concept, the history of spirit, the history of truth or the history of God, will in a certain way have staunched its flow. The absolute concept will have staunched the blood by giving it meaning. By giving an end and meaning to the blood that was lost. Meaning [sens] is what staunches blood [sang]. A first philosophical and Hegelian, dialectical response to the question of the relations between the concept and blood is that the concept, well, the concept is the end of blood, in the double sense of the word end, the concept is at once, in a single stroke, the term that puts an end to blood and the telos of blood spiritualized. I would even say that the concept is consummate or consumed [consommé] blood, namely blood fulfilled, completed, refined, sublimated, and blood drunk, interiorized in the Eucharist, like the body of the one condemned to death, like the body of Christ, and in remembrance of him, as he enjoins: “This is my body, hoc est meum corpus, keep it in remembrance of me,” he says holding out the bread and the wine, that is, his blood to his disciples. Staunch me, this is what I give you [donne] or command [ordonne] you to do in asking you, in asking you to keep it, my blood. These are among the last words of a man condemned to death, one of those “last statements”4 of which so much is said in the United States. You know that, in the United States, some states pride themselves on recording the last words, final declarations, “last statements” of those condemned to death before their execution, and in putting 3. See Jacques Derrida, Glas (Paris: Galilée, 1974); Glas, trans. John P. Leavey Jr. and Richard Rand (Lincoln: University of Nebraska Press, 1990). 4. [Translator’s Note]: In English in the original.

289

216 ‡ nin t h se s sion

290

them “on line.”5 These states think that they are thus paying their respects to the persons they are sending to death: they believe they are honoring the condemned ones by making their last words worldwide, virtually. Well, the last words of this condemned one that Christ was, these words that enjoin remembrance but also the consumption of his spilled blood, the interiorization of the very body of the condemned one, these words, these “last statements” of the “Last Supper”6 will also have been, as they are today in the United States, archived, recorded, made legible, visible, digitalized, virtualized, made virtually worldwide, in a world — which is, in fact, a Christian notion — and in the course of a worldwide-ization, of a worldwidelatinization that is profoundly marked by Christian traits — and by a Christianity that was not for nothing, here or there, in the justification and practice of the death penalty [recall Camus, etc.7]. Naturally, to remain very close to this history of blood as history of the conception of the concept, let me remind you that the blood shed or staunched is not only that of violent death, of death sentences, from the crucifixion to the guillotine; it is also that of birth, of filiation, and of lineage. One inherits from one’s parents, and in the Jewish tradition one inherits from one’s mother by blood. The blood of Christ was also the blood of his mother, and the concept is still there in the dogmatic figure of Mary’s Immaculate Conception, both of Mary’s birth by immaculate conception and of Mary’s virginity at the birth of Jesus. Two immaculate, immune, unscathed, safe, pure, uncontaminated conceptions, two examples of this chastity, this castitas that interests us as castigare, as castigatio, as chastisement [châtiment] destined to restore the purity of a castitas, a virginity. Since we are going to speak later, abundantly, about the taboo of virginity, since this theme of castitas is our theme, since the example of the 5. [Translator’s Note]: In English in the original. 6. [Translator’s Note]: In English in the original. 7. During the session, Derrida adds the following commentary: “This is what we learned last year, where there was this contradiction between, on the one hand, the condemnation to death in the name of the Gospels, with Hugo, and, on the other, the Church, which, from Saint Thomas until today, maintains, does not condemn the condemnation to death. You also remember the Camus text that we looked at last year, where Camus tries to show that it is only in a religious — that is, Christian — world that the death penalty persists because of its relation to the beyond, and the day the world loses this relation to the beyond and becomes purely humanized, the death penalty will no longer be justifiable. It’s more complicated than that, but you remember this schema: contradiction between the Gospels and the Church.” See Jacques Derrida, The Death Penalty, vol. 1, “Ninth session, March 1/8, 2000,” pp. 226 ff.

m a rch 21, 2 0 01 ‡ 217

birth and death of this condemned man who was the son of God is a history of blood inherited and of blood shed, since what is at stake, here as well as in the interpretation of talionic law, are the relations between Judaism and Christianity, I will not resist, as they say, the temptation, however vulgar and incongruous8 it may seem, to tell a story, which is more or less a Jewish joke, the story of a Jew who intends to demonstrate by means of a four-part proof 9 that Jesus was not only born Jewish, as everyone knows, born of a Jewish mother and of Jewish blood, but that he remained Jewish, up until the end, 100 percent Jewish by blood, an authentic Jew, as the Sartre of AntiSemite and Jew10 might say, an authentic Jew until the end. The bon mot of this Jewish joke about a Jew condemned to death, the mot d’esprit, the Witz that I didn’t make up is at once ridiculous and profound, vulgar, laughable, and nonetheless abyssal. First of the four proofs of the Jewishness of Jesus, then: he lived with his mother until he was 28. Second proof: he believed his mother was a virgin. Third proof: his mother believed he was the son of God. Fourth proof: he inherited a tiny little artisanal carpentry shop, and from a few pieces of wood and nails he founded a multinational corporation that survived for centuries and still prospers today, whose stock is highly valued on the market of worldwide-latinization. End of this vulgar parenthesis on the meaning and the Christian blood of conception). But before returning to a certain non-impermeability [non-étanchéité] of seemingly impermeable [étanches] concepts, let me remind you that this non-impermeability is the very place and the very work of a deconstruction that always begins by challenging, with properly conceptual work, the impermeability, the airtight barrier, the distinction or rigorous oppositional partition that is supposed to separate conceptual couples (here, for example, poena forensis/poena naturalis, hetero/auto-punishment, condemned to death/condemned to die, cruel/non-cruel, act/non-act, active/passive, or 8. [Translator’s Note]: In the typescript, Derrida writes “détonant” (explosive) instead of “détonnant” (incongruous). 9. [Translator’s Note]: Derrida refers in his text to “la preuve par quatre,” which is a play on “la preuve par neuf,” i.e., the casting-out-nines method, a proof used by schoolchildren to check their arithmetic calculations. 10. See Jean-Paul Sartre, Réflexions sur la question juive (Paris: Gallimard, 1946); AntiSemite and Jew: An Exploration of the Etiology of Hate, trans. George J. Becker (New York: Shocken, 1995).

291

218 ‡ nin t h se s sion

292

doing/letting be done, and so on and so forth, the list is by definition not closed, not closeable, and thus also impossible to seal off [étancher]).11 The work of deconstruction consists in showing that in truth all of these supposedly opposed concepts, which are distinct in their very coupling, touch each other in their coupling; they do not break off contact with each other as they are supposed to. And if I say that these opposed concepts touch each other and that from the moment they touch each other, they are no longer impermeable to one another, they no longer let themselves be closed off, I am choosing, I am purposely choosing, or else I let myself be chosen by, without doing so purposely, this figure of “touching [one another].” Because it’s a place, touching is, like “touching one another [se toucher],” where the act, precisely, the action or activity of the act, can no longer be distinguished from its opposite, the passion or the passivity of suffering [ pâtir] or of desire, etc. What is proper to touch, to the act of touching, is that I cannot touch (actively, then) without being touched by what I touch, without, then, letting myself be touched by what I touch. In actively touching, I am passively touched. And if I am touched, I cannot abstain, on my part, from touching. This non-impermeability between the act and its others is the sense of this sense that is called touch and is true of no other sense. As concerns touch, one cannot let it be done without doing it, nor can one do it without letting it be done; one cannot distinguish between doing and not doing, between acting and not acting, and so forth. And this is an effect of finitude; touch is finitude itself, and finitude thus renders all couples of concepts non-impermeable. Which is a rather terrifying prospect for truth and for meaning, you have to admit, and for the veracity of a language that is thus radically contaminated, deprived of any possible purity, and liable to destroy, in autoimmune fashion, its own safeguards. Not to mention all the paradoxes of tact and touch without touch, of being touched without being touched, of all the undeniable paradoxes of the without [sans]12 of which I have spoken inexhaustibly elsewhere.13 Blood without blood [le sang sans le 11. The closing parenthesis has been added by the editors. 12. [Translator’s Note]: In the text, Derrida spells out the word “sans (s.a.n.s.)” in order that the audience not mistake “sans [without]” for “sang [blood],” which is its homonym in French. 13. See Jacques Derrida, Parages (Paris: Galilée, 1986); Parages, trans. Tom Conley, James Hulbert, John P. Leavey, and Avital Ronell (Stanford, CA: Stanford University Press, 2011); and Le Toucher — Jean-Luc Nancy (Paris: Galilée, 2000); On Touching — Jean-Luc Nancy, trans. Christine Irizarry (Stanford, CA: Stanford University Press, 2005).

m a rch 21, 2 0 01 ‡ 219

sang], perhaps this should be the title to come of what we are going to have to talk about. Before returning to it, though, let me take up this first question. Here it is. Is there a future for blood? In the last session, in connection with the game of the goose, we asked ourselves whether there was a future for the future of what is proper to man or whether we would have to go around in circles according to the roll of the dice, which would move us from square to square or foolishly [bêtement] immobilize us on one of the squares representing one of the properties of man, each square being in a relation of metonymic or synecdochic systematicity with all the others (I enumerated a certain number of them, and the death penalty, as I made clear, would be just one of the squares, and thus just one figure of what is “proper to man” [this was the question with which I opened this seminar last year: and what if the death penalty were what is proper to man?14], and then the death penalty would have, like all the other figures of what is proper to man, not only a relation at once of solidarity and of essential concatenation with all the other traits, all the other figures of what is proper to man, but also a relation of metonymy or of synecdoche, therefore, with all the other traits or figures or predicates of the so-called “proper of man”: language, logos, reason, law, or else politics, or else freedom, or else responsibility, or else sovereignty, or else laughter, or else tears, or else the experience of death, or else time as such, or else rights, or else modesty, or else clothing and home, or else technology; in this simultaneously open and closed list, I had foolishly forgotten foolishness [la bêtise], and I am taking advantage of this reminder to make up for this omission; for foolishness, others might say idiocy [la connerie], is indisputably what is proper to man: one will never say of another animal, nor of a beast in general that it is foolish, or stupid, except of course by way of anthropomorphic metaphor; we say “silly goose [bête comme une oie],” for example, but we well know that a goose is anything but silly, whereas the game of the goose, insofar as it has us going around in circles in its combinatory series, or landing on a square as a result of the roll of the dice, is a clever foolishness [savante bêtise] of man. No human could ever deny that foolishness is what is proper to man and belongs to no other living creature). 14. See Jacques Derrida, The Death Penalty, vol. 1, “First session, December 8, 1999,” pp. 1 ff.

293

220 ‡ nin t h se s sion

Is there a future for blood? And what happens when blood disappears and remains [demeure] as blood without blood [comme le sang sans le sang]?

294

From the beginning of this seminar last year, we became aware of a certain necessity. Which one? Well, the necessity of seeking, if not of finding, some correlation, a law of kinship, too obvious or too secret, but nonetheless a law of kinship between the history of the death penalty and the history of blood. Not the natural history of blood, but the cultural history of blood, and also the imaginary, symbolic, phantasmatic, techno-scientific history of blood, of what is called blood, of the “blood” fable, of the fabulation of blood, of the invention [affabulation] of blood, the blood that one hears speak or intends to make speak, in every way that blood can be “made to talk,” as they say, blood or what one takes to be blood, what one interprets in the name or image of blood, what one conceives as blood, blood conceived [le sang conçu], a history of the treatment of blood, a history of bloodletting, of the blood one sees flow, of the blood one lets flow, of the blood one causes to flow, of the blood that one does or doesn’t staunch, and of a history of blood as the history of a purification to be staunched, blood suddenly without blood, the history of an immunity to be saved, to be kept safe and sound. Since this history ultimately merges with the history of what is called man, homo faber, homo sapiens, homo politicus, etc., what is here homocentric, one would say in Latin, is also, one would say in Greek, hematocentric: homo-hematocentric. It is not impossible that we are approaching an end, a certain overdetermined end of this homo-hematocentrism. Last year we took issue with Foucault’s thesis of despectacularization, his claims about the modern detheatricalization of punishment; I suggested instead that punishment, which is in the end always public, did not become invisible but only changed its form and its place of visibility by virtualizing itself; well, in this debate, we were perfectly aware that what appeared to disappear in this phenomenon of visibility was first of all and essentially blood. As if one wanted to maintain the cruelty of punishment without blood, by moving from the Latin cruor (which means an effusion of blood) to the Germanic Grausamkeit, to a cruelty without blood. That is one of the meanings of the move from decapitation, or even the electric chair, which, as you should know, can sometimes also cause bleeding, to lethal injection,15 or even to the gas chamber, which no longer causes bleeding. In the modern forms of murderous violence, or even genocidal extermination, whether it is a matter of crime or punishment, what disappears as the archaic itself, in 15. [Translator’s Note]: “Lethal injection” is in English in the text.

m a rch 21, 2 0 01 ‡ 221

this new theater of cruelty that is the crematorium or the gas chamber, is blood. Hence the distinction or the difference in blood between different types of genocide when it comes to blood, each more murderous than the next: on the one hand, the industrial modernity of the Shoah which exterminates without blood, without lending a hand to, or having a hand in, blood, by staunching the blood at its source, and on the other, Cambodia or Rwanda, gun shots or blows of the ax, knives, hand-to-hand killing, namely a bloody or sanguinary violence in which blood is not staunched [s’étanche] but rather flows [s’épanche]. In both cases, in both ways of treating blood, both concepts of blood, we are dealing with a drive to purify, to indemnify, to secure against harm, to immunize. Where chastisement is destined to castigare, to make chaste, virginal, to restore a castitas, a virginity, the ambiguity of blood plays a decisive role. One can purify both by causing blood to flow and by preventing it from flowing, in the effusion as well as in the staunching, so to speak. That being the case, I wonder if we are justified in bringing our history of the death penalty as history of blood together with the history or histories, the stories that Freud tells us about the taboo of virginity, a text (“The Taboo of Virginity,” “Das Tabu der Virginität”16) that we might read with one hand while reading Totem and Taboo and The Compulsion to Confess with the other, as essays on the originarity of the Oedipal guilt of sons or brothers. “The Taboo of Virginity” begins by trying out several explanations for the taboo of virginity (explanations that Freud never abandons, moreover), and the first of these explanations concerns precisely the flow of blood at the moment of deflowering. Now, primitive races fear blood; there is a Blutscheu, a horror of blood among them, for they hold blood to be the seat of life (den Sitz des Lebens). This blood taboo (Bluttabu) can supposedly be seen in numerous prohibitions that have nothing to do with sexuality, as, for example, the “thou shalt not kill,” prohibitions that themselves attest to the fear of blood as protection against the desire for blood, against a primal thirst for blood ( gegen den ursprünglichen Blutdurst), that is, against primeval man’s pleasure or desire to kill (die Mordlust des Urmenschen). The blood taboo thus testifies to an originary and indestructible desire for blood and murder. The law of the talion that responds to it remains a matter of blood, of crime and bloody punishment. A certain sadism can take hold here, since the taboo of virginity is associated with the taboo of menstruation, and primitive people 16. Sigmund Freud, SE 11: 193– 208. Derrida is quoting the German text from volume 12 of the Gesammelte Werke (Frankfurt am Main: Fischer, 1947), pp. 161– 80. Hereafter, page numbers will refer first to the German and then to the English edition.

295

296

222 ‡ nin t h se s sion

297

are afraid of menstrual blood, which they often interpret, says Freud (who does not cite his sources here but refers to Totem and Taboo), as the bite of some spirit-animal (a revenant supposedly comes and bites the girl in her belly) and perhaps also as the sign of sexual dealings between the young girl and this spirit. There would be some Geist; there would be something spiritual and something spectral in these periods (SE 11: 166; 197). That being said, still according to this first explanation (which, and I emphasize, Freud will relativize, complicate, but never renounce), we are warned not to overestimate the horror of blood. For had it been so horrifying and so powerful, it would have prohibited two bloody things, two bloodlettings, two ways to cause bleeding or let bleed. Freud mentions first the circumcision of boys (die Beschneidung der Knaben). I won’t say anything more about this. He then mentions the excision of girls. In the last session, without referring to Freud’s text, I went so far as to say that excision represented a castration, a mutilation that was much more serious, more real, more mutilating than circumcision which, in principle, remains symbolic, insofar as it does not mutilate the sexual organ in its capacity for sexual pleasure (you know that I am not saying this in order to deny the real and profound effects of circumcision; I only want to indicate that it does not destroy the erogenous zones and the capacity for sexual pleasure, even if some claim that it does, on the contrary, or at least to a certain extent). Whereas the excision of the clitoris is a permanent mutilation, and the ablation of such an erogenous zone is as undeniable as it is irreversible. Now, what does Freud say, once he has evoked circumcision? He says, in parentheses, that in girls, the excision of the clitoris and the labia minora is still more cruel (and the word for cruel is grausam), grausamere, more cruel, noch grausamere, still more cruel (und die noch grausamere der Mädchen [Exzision der Klitoris und der kleinen Labien]) (SE 11: 166, 197). We find a real castration of the girl here, and in a moment we will have to breach the wall [ paroi] that will put us face to face this time — whether this reversal of things, by the implacable law of the talion, is just or unjust — with the castrating girl. In “The Taboo of Virginity,” it is true, Freud does not mention the death penalty, or he barely mentions it. He barely [à peine] mentions the death penalty [ peine de mort], as I will make clear in a moment. But if guilt, if the feeling of unconscious guilt precedes and motivates a crime, if putting to death, whether as crime or punishment, if putting to death in actuality, if the act of putting to death always proceeds from guilt or a feeling of guilt, from prior shame, if putting to death in actuality (murder or execution)

m a rch 21, 2 0 01 ‡ 223

proceeds from what precedes it, namely the unconscious feeling of guilt or shame about a crime or a prior desire for crime, at least for a past virtual crime, then there are a certain number of conclusions to be drawn. [I have just alluded to feelings of guilt and shame somewhat indiscriminately, as if they were the same thing. Later, no doubt, we will need to distinguish more carefully between the two qualities, so close and yet so subtly different, of these feelings, the feelings of guilt and shame. Shame is not just any feeling of guilt, and we can feel guilty without feeling ashamed, in the strict sense of the word; we will try to come back to this. In an unpublished essay by Satoshi Ukai, a Japanese friend who attended this seminar for many years and an expert on Genet (I underscore this fact because Genet was someone who thought a lot about the quality of the feeling of guilt that is called shame), in this unpublished essay, then, he refers to a distinction Ruth Benedict proposed in her book The Chrysanthemum and the Sword — Patterns of Japanese Culture,17 published just after World War II, the work of an American woman observing Japan and Japanese culture at the time. As Satoshi Ukai notes, the book is by an American, a woman speaking of a people that has just acknowledged defeat and surrendered. The anthropologist proposes that we distinguish between shame cultures and guilt cultures. I will not take it upon myself to ask here — not today — to what extent such a distinction is pertinent. But we can certainly see what she means. Shame would be the reaction to the gaze or the judgment of the other; it would involve appearing naked, in the wrong, before the other; whereas the feeling of guilt could remain completely internal. I do not find the distinction, formulated in this way, very rigorous, for the gaze of the other can and must inhabit the most internal feeling of guilt. Such a divide is interesting, however, to the extent that it gestures toward long and powerful processes of the interiorization of the gaze of the other, processes that are propped up by, and inscribed in, language itself, and which in fact involve the entire differential history of cultures and religions; such a divide might, formulated otherwise, in a more refined way, allow us to notice the relevant differences between experiences of evil [le mal], wrong [la faute], symptom, etc., in different traditions. It is clear that, for Ruth Benedict, shame cultures are non-Western cultures, whereas guilt cultures are European or Western. 17. See Ruth Benedict, The Chrysanthemum and the Sword — Patterns of Japanese Culture (London: Secker and Warburg, 1947). Derrida quotes Ruth Benedict from what is most likely a text by Satoshi Ukai, two typed pages of which were attached to his typescript. Derrida himself improvised the English translation during the session.

298

224 ‡ nin t h se s sion

299

300

What seems to me to mobilize this distinction, what allows it to engage with the reality of culture and ritual, is the role that the concept of honor plays; indeed we know (and we have seen a few examples of this with Kant) how much the concept of honor marks, in a differential way, social and anthropological culture. Honor has to do with appearing before the other, with putting up a good front, whereas dishonor consists in losing face, in blushing with shame. Shame brings out honor, or rather dishonor, according to Benedict, while guilt, which does not necessarily blush, refers to the most inner, the most interiorized, and even the most solitary experience of wrong. I don’t know if the “blush [rougir],” if the “red [rouge]” of shame has an obscure relation to this movement of blood, to this history of blood, and even to the history of blood without blood that interests us here. One doesn’t always blush when ashamed, and Benedict does not speak of the red that comes over the face, of course, but I myself wonder if “blushing” with shame (perhaps in women more than men, in children more than adults) does not manifest the rush of blood to a face that nonetheless does not bleed; when someone blushes with shame, the blood comes to the surface but — as if it were staunched in advance from within — it does not pour out, as do tears (in women more than men, in children more than adults); here we know that all of this is not natural, that there is a history of tears, that in France people cried more in certain centuries than others, that men (read Augustine and Rousseau) cried more easily in past centuries; and just as one can blush without bleeding, or be ashamed without blushing, so one can cry without shedding tears; the history of shame, however historical it is, is not strictly speaking an anthropology. Whence the serious question — and we discussed this several years ago with respect to forgiveness — as to whether there is not a feeling or manifestation of shame in certain animals.18 Shame and the feeling of honor, or else of dignity, which is not exactly the same but close — are shame, honor, and dignity what is proper to man? And does an honor culture dominate in this or that society rather than in some other? Before going any further along these lines, let me open another parenthesis. (Every time, and it happens very often, that I have my doubts about psychoanalysis, about this or that state, whether theoretical or practical, of psychoanalysis and its institutions, about the past, present, or future of psychoanalysis, well, there is always the moment of a question, there is always a type of question that reconciles me with psychoanalysis, that leads me back to it and reassures me that this question, with its dignity of the question, will never be resolved, nor could it even be asked, without the 18. We were unable to identify the exact year or session of the Seminar “Perjury and Pardon” (1997– 1999) to which Derrida makes reference here.

m a rch 21, 2 0 01 ‡ 225

help of something like psychoanalysis, at the crossroads of a soul or a life, of a psyche — which is not an ego or a consciousness — and of a living body, of a hoc est meum corpus, which need not be Christlike. And it’s the following question, the type of question that involves what we naively call body language, the rhetoric of the body; what are we doing, what is happening to our body, between our soul and our body, when we laugh? When we blush? When we shed tears? Why does this or that type of emotion translate as water that flows from the eyes? As blood that rushes to the face? As this movement that causes our eyes and our mouth to move, or even causes our entire body to convulse with laughter, with uncontrollable laughter [ fou rire]? Since these manifestations are specific, by which I mean both typical, general, and by and large proper to the species in general, they presuppose a long phylogenetic history, an immemorial but historical sedimentation of hexis, as Aristotle would say, a paleobiology of habit or habitus that cannot help but pass by way of the unconscious and the complex calculations of the unconscious body, of a body that is originarily social, collective, cultural, nonindividualized. All the questions related to the opposition flow/staunch, whether it is a matter of tears or blood, ultimately require that we appeal to this phylogenetic psychoanalysis of the so-called body proper, of the living body in general, for if there seem to be reasons for thinking (as many have) that laughter, tears, the blush of shame are what is proper to man, more refined analyses of what happens with certain animals would not fail to complicate or destabilize this comforting assurance). In any case, Ruth Benedict proposes the concept of honor in order to distinguish between “true shame cultures” that “rely on external sanctions for good behavior” and “true guilt cultures” that rely “on an internalized conviction of sin” (223). A man feels shame, Benedict clarifies, either because he is publicly, openly ridiculed and rejected, or because he imagines himself to be ridiculous and rejected (and with this causal relation, “fantasying to himself that he has been made ridiculous” (223), Benedict surreptitiously reintroduces the interiority she was claiming to exclude). “In either case,” she says (in believing oneself to be ridiculous or rejected), there is a “potent sanction” (223). “But it requires an audience or least a man’s fantasy of an audience” (223). (Comment and critique . . . In guilt too, there is an “audience,” etc.19) 19. During the session, Derrida adds: “But this requires a public or the phantasm of a public. Thus, from the moment there is the public or the image of the public, the phantasm of the public, we are already in interiority, and the distinction between shame and guilt becomes fragile; it is not airtight. In the most interiorized guilt, there is already

301

226 ‡ nin t h se s sion

What remains interesting, despite the confused and hasty conceptualization of this anthropology, is the insistence on what links shame to the exteriority of a sanction and especially to laughter, to ridicule. (Read and comment on Benedict, pp. 4– 5)

302

In a nation where honor means living up to one’s own picture of oneself, a man may suffer from guilt though no man knows of his misdeed and a man’s feeling of guilt may actually be relieved by confessing his sin. [...] The primacy of shame in Japanese life means, as it does in any tribe or nation where shame is deeply felt, that any man watches the judgment of the public upon his deeds. He need only fantasy what their verdict will be, but he orients himself toward the verdict of others. When everybody is playing the game by the same rules and mutually supporting each other, the Japanese can be lighthearted and easy. They can play the game with fanaticism when they feel it is one which carries out the “mission” of Japan. They are most vulnerable when they attempt to export their virtues into foreign lands where their own formal signposts of good behavior do not hold. They failed in their “good will” mission to Greater East Asia, and the resentment many of them felt at the attitudes of Chinese and Filipinos toward them was genuine enough. [Guilt cultures, then, are represented by Western, Christian cultures, whereas shame cultures are represented by the totality of non-Western cultures.20] (223– 25)

A double weakness: on the one hand, a shame culture presupposes some interiorization and thus cannot simply be opposed to a guilt culture. On the other hand, interiorization, as interiorization of the gaze of the other, is never pure; it can never interiorize the verdict of the other without remainder; on the contrary, it requires this verdict, which can be all the more cruel for being internal and implacable, so much so that, on the side of shame cultures, there is also an “audience,” the spectator or auditor, the other who condemns me inside me; this is why so-called guilt cultures are also shame cultures, and the two concepts let themselves be contaminated each by the other; they touch each other. Naturally, this is not the first critical reading of Benedict’s thesis, particularly with regard to Japanese culture. One of Benedict’s Japanese critics, an audience. Even in an absolutely solitary guilt, there is a tribunal, there is someone who watches over me, who judges inside me.” 20. [Translator’s Note]: This sentence seems to have been misattributed to Ruth Benedict by the editors.

m a rch 21, 2 0 01 ‡ 227

Yanagida Kunio, immediately responded that guilt cultures also exist in Japan, and this is attested to by the fact that, in everyday language, expressions referring to guilt or innocence are more numerous than in other languages. The most serious point of disagreement involves above all the interpretation of Japanese Buddhism, which would supposedly be responsible for this cultural situation. According to Benedict, the idea of the migration of souls, of the metempsychosis that determines the Buddhist idea of sin, this particular Buddhist belief did not take root in Japan, which is something that Yanagida Kunio strongly contests. So we would have to clarify this history of Buddhisms in order to say more, something which, unfortunately, we will not be able to do here.]21 However, if guilt precedes and motivates crime, if murder, putting to death, as both crime and punishment, always proceeds from prior guilt or a prior feeling of guilt, from earlier shame, then crime, as well as capital punishment and execution, would be just so many symptoms and therefore confessions of a prior sin, such that the worldwide culture of confession, advocated by Reik as the future of a human world that would no longer need punishment or external sanctions, this becoming worldwide of repentance, confession, and/or psychoanalysis, would simply reaffirm the interiorization of guilt or shame for an indestructible criminality, for an ineradicable originary sin, for a drive that would be impossible to eradicate. The becoming worldwide of avowal or of a confession that is secularized (that is to say here psychoanalyzed,22 turned into psychoanalysis, into an auto- or hetero-psychoanalytic process) would be, as the end of punishment or sanction, of poena forensis or external punishment, as Kant would say, simply a process of absolute interiorization, of auto-verdict and auto-punishment; in Benedictine terms — I mean according to the opposition that Ruth Benedict somewhat naively proposes — this would be a becoming guilt culture of a shame culture. There would be no more external punishment, no more judiciary and legal castigation, but a certain castitas would be recovered, restored, reconstituted, rehabilitated, sought after in any case by the process of avowal, secular confession, the transference and psychoanalytic working through on the scale of a humanity that thus restores its virginity and its image through a generalized and radicalized confession, a confession of all crimes, which would be, in short, so many crimes against humanity. That is, moreover, exactly what is happening today, as states, heads of state, great 21. The bracket opened above, on p. 223, closes here. 22. As such in the typescript.

303

304

228 ‡ nin t h se s sion

statesmen, or great military men try to restore their virginity and their image by confessing.

305

From “The Taboo of Virginity” (1918, at the end of World War I), an essay that is a part of the Contributions to the Psychology of Love, Beiträge zur Psychologie des Liebenslebens, which I ask that you reread, I will point to a certain number of features that have to do with blood. They are essential for what interests us here. I began by saying that Freud hardly mentions the death penalty in this text. He notes in any case, in a sentence a little after the passage on menstruation, circumcision, and excision, that “Köpfen ist uns als symbolischer Ersatz für Kastrieren wohlbekannt”: “Beheading is well known to us as a symbolic substitute for castrating” (SE 11: 178, 207). A logic of the Ersatz, then, a logic of the substitute or supplement, a logic that comes to be exercised, above all, at the head, at the level of the head or capital, of the chief, of the principle of sovereign command, of the most eminent part of the body, of the hoc est meum corpus as hoc est meum caput, where to lose one’s head is to lose one’s life; it is to lose the essential of that which makes sense; it is to lose one’s ipseity; it is to lose oneself; it is to lose self. Now notice that Freud doesn’t say that castration is a substitute for decapitation; he says, on the contrary, that decapitation (Köpfen) is an Ersatz, a substitute, a supplement or replacement [suppléant] for Kastrieren. Decapitation supplements castration: it is a figure for castration. And not the reverse. This suggests that what comes first, originally, is castration and not decapitation, not decollation. The death penalty, as decapitation, takes the place of castration, namely, the removal, the cutting ablation, the excision of the penis, if you like, if you prefer. Now, if you think back to Kant’s appendix (Zusatz and not Ersatz), which discusses castration (Kastration) as a punishment, according to talionic law, for the sexual crimes of rape and pederasty, well then, Freud would say that Kant, instead of recommending the substitute, namely, death by decapitation, prescribes or envisages the originary violence, the first violence, violence itself, that is, castration. The example that Freud gives of this originary castration in “The Taboo of Virginity” is both a biblical and a literary or theatrical example, an example in which castration, or rather decapitation as castration, is first the act of a woman, a feminine operation. The Judith of certain apocryphal texts of the Bible and Hebbel’s Judith (1839) takes revenge, precisely, or such is Freud’s interpretation, for her deflowering by Holofernes, the Assyrian general. What supports the interpretative schema that Freud puts to work in this text? Judith’s virginity is protected by a taboo. Her first husband (and

m a rch 21, 2 0 01 ‡ 229

Freud constantly returns to the fact that a second marriage is always happier than the first since a wife never stops resenting the one who has deflowered her), Holofernes, her first husband, is paralyzed on their wedding night. Overcome by the anxiety of the taboo, he doesn’t even dare touch her. “‘My beauty is like belladonna,’” she says. “‘Enjoyment of it brings madness and death,’” says the text (SE 11: 178, 207). When Holofernes besieges her city, Judith decides to seduce him by her beauty and thereby lead him to his death. Freud then goes on to say that she employs a patriotic motive to conceal (Ersatz again) a sexual one. Following her defloration by this violent, brutal, macho man, she finds, in her indignation, the strength to cut off his head (ihm den Kopf abzuschlagen) and thereby becomes the liberator of her people. Once again, once already, the political salvation, the liberation of an oppressed people, in a word, revolution, passes by way of the decapitation of the sovereign. Freud’s interpretation does not waver; it is as steady as the hand of any good surgeon. To decapitate equals to castrate; decapitation is a substitute for castration, and Judith castrates Holofernes to punish him for deflowering her. Freud’s interpretive gesture is interesting but no less problematic for all that. From at least three points of view.23 1. First of all, we have an equivalence between decapitation/castration, but this equivalence is organized and arranged in a hierarchy: the figural Ersatz, the substitute, is decapitation; the literal and original meaning is castration, emasculation. And not the reverse. One does not have the right to reverse the order of substitutive representation. The consequences of this are far reaching, and not only with regard to the phallocentrism it confirms and validates (decapitated women are also castrated once the originary violence befalls the phallus, which is here the signifier and the first signified) but also to the extent that, in decapitation (which, let us not forget, unlike castration, strictly speaking, takes away life), in Freud’s eyes, death doesn’t count, it’s an appearance: when one decapitates, one doesn’t kill, one castrates. The profound and ultimate meaning of decapitation (as both figure of castration and as example of capital punishment), the profound and ultimate meaning of decapitation is not the putting to death, it’s only castration as revenge, reaction, vengeance. Decapitation is not homicide. If one follows this logic, according to which all death penalties by beheading are substitutes for castration, one makes secondary or depreciates the seriousness of the death penalty, as well as the properly juridical sphere and penal law, 23. Derrida lists only two points in the typescript.

306

230 ‡ nin t h se s sion

307

308

strictly speaking. And this would be consistent with that other axiom of psychoanalysis according to which the unconscious, among all the things it does not know, knows no death. Knowing no death, it also knows no death penalty. It knows castration but not death or the death penalty; moreover, the anxiety before death would also only be an anxiety before castration. As a result [du coup], if one links, as is the case here, castration-decapitation to vengeance for a deflowering, for the loss of a virginity to be restored, then the death penalty, the supreme punishment, the absolute castigation, would have as its end the reconstitution of a castitas, the redemption of an immaculate purity, in its essentially feminine figure. 2. To support his interpretation of Judith, to make a scientific argument for his translation “decapitation = substitute for castration,” Freud begins by invoking clinical practice, and, in his own clinic, a dream he has just recounted on the previous page. This dream will allow him to smuggle in [en contrebande], so to speak, and surreptitiously to graft, illicitly to graft onto the thesis of the hierarchical, substitutive equivalence (decapitation = originary castration) another thesis, namely, penis envy, itself grafted onto a paleo-biological hypothesis. This patient’s dream is that of a newly married woman who spontaneously betrayed the wish to castrate her young husband and to keep his penis for herself (den jungen Ehemann zu kastrieren und seinen Penis bei sich zu behalten).24 In short, the aim is displaced slightly here but in a way that is highly significant: she does not castrate to avenge her deflowering but rather to take possession of the penis and to keep it for herself (bei sich). Or if you prefer a more conciliatory formulation: she castrates less to avenge herself for the deflowering than to get her hands on the penis and satisfy her desire, her desire [envie] for the penis. But the two gestures would be indissociable. It would be less a matter of cutting off the penis than of stealing it, of having it, of appropriating it; it would be about detaching it in order to take it, to lift it, to bring it back to herself, by lifting it off [en le prélevant]. The woman lifts off the penis, she levies it [le lève] like a tax, or if you like this better, she raises it in order to tax its importation, exportation with a view to importation. Oriented in this way, the import/ export economy of the penis would not only turn death (by murder or by capital punishment) into an appearance or secondary effect, it would also turn castrating violence into a strategy in the service of a conquest, of a quest for the Grail or the colonization of the penis (I say quest for the Holy Grail because this leads us back to the Last Supper and the Crucifixion, to 24. See SE 11: 176, 205. Derrida is the one translating here.

m a rch 21, 2 0 01 ‡ 231

the blood that flowed from Christ’s wounds and was gathered by Joseph of Arimathea, at the moment of the Crucifixion, in the cup that was used at the Last Supper when Jesus said “This is my body”). Freud does acknowledge, in a single sentence, that one could interpret the dream of this young patient otherwise, in what he calls a more harmless, a more innocent way (harmlosere Deutung) (SE 11: 176, 205). In fact, one could say that she would have liked to prolong and repeat the sexual act of deflowering, that she was disappointed that it stopped there, en route, and that it took place only once. One could say foolishly that she likes it, as does her partner, and that, like him, she wants it to continue and happen again. And the best way to control this continued repetition is to have its source at her disposal, by means of a movement or a game of absence/presence, of fort/ da, whose generality is no longer to be proved or extended. I myself would be tempted to think that this innocent interpretation is not so innocent. It can, moreover, be perfectly reconciled or articulated with the other, the one that Freud prefers and deems more serious (die ernstere Auffassung), an interpretation that would be propped up, according to him, by other details of the dream that come to attest to it, but about which he tells us nothing. Taking a wider view, Freud then tells us what he thinks of penis envy in general. In this envy for the penis, he sees the source of women’s hostile bitterness, their aggressive rancor against men (die feindselige Erbitterung des Weibes gegen den Mann), an ineradicable feminine resentment, a catastrophic reactiveness that marks the relations between the sexes and of which one finds the clearest, the most clearly indicated signs (die deutlichsten Anzeichen) among feminists, among writers, among so-called “‘emancipated’” feminist writers (Freud puts the word in quotation marks) (SE 11: 176, 205). In other words, castration (by the woman: Judith is the figure here) translates penis envy, which is itself translated into the relations between the sexes in general, the clearest signs of which are to be found especially, naturally, on the side of women (naturally because it is women who are naturally envious, since they are naturally lacking, organically lacking, the penis; men are simply enviable, the enviable victims of envious women). Among women, the clearest signs are to be found among “emancipated” feminists. Among emancipated feminists, the clearest signs are to be found among those who write and those who write literature. This rancor, says Freud, women’s grudge against men, marks all sexual relations; the clearest signs of this rancor become apparent and manifest in the aspirations and in the literary productions of “emancipated” women (in den Bestrebungen und literarischen Produktionen der “Emanzipierten” die deutlichsten Anzeichen vorliegen) (SE 11: 176, 205).

309

232 ‡ nin t h se s sion

310

We may wonder, among so very many other things, why literature is granted this privilege in Freud’s relentless attacks against “emancipated” women. A double question: on the one hand, why does Freud choose his target in this way, why does he privilege one target: not merely women, not merely so-called “emancipated” feminists, but in particular women writers and their literary productions? Why would the appropriating castration of the penis be something feminist and literary par excellence? On the other hand, or conversely, why indeed are the spokeswomen or the most determining and visible, really the most “clearly indicated” actors, among the producers of signs — thus the most conspicuous and the most effective representatives of the feminist cause — why have they in fact been engaged in literature? Why have they so often been writers and poets? For it is not at all certain that Freud’s targeting lacks insight, however obscurely motivated it may remain, even if the phenomenon he has not failed to identify requires an interpretation about which psychoanalysis does not utter a word. This question, or that part of it which at bottom concerns the original and irreplaceable role of literature in the feminist cause, is inseparable from the other question or the other aspect of the same question that we posed last year, namely, the following: how is it that the abolitionist cause has more often been served, publicly served, by poets or by writers than by philosophers and even politicians? If we couple these two questions and these two signs, we cannot fail to see a supplementary correspondence and confirmation in the fact that, probably (I don’t have the statistics at my disposal on this topic and a more careful investigation would be necessary), probably, in all likelihood, women are25 more spontaneously and more frequently abolitionist than men. Freud does not hesitate to trace the roots of this situation (a castrating and appropriating vengeance against the archi-deflowerer) back to prehistoric times. Just as he roots this entire story of penis envy in a natural, anatomical, organic situation (contrary to what his heirs, claiming to be more subtle, assert in order to exempt him from accusations of organicism or biologism) [just as he roots this entire story of penis envy in a natural, anatomical, organic situation, then], so does he root this scene of female rancor — and thus the castration-decapitation that follows from it — in what he calls a “paleobiological speculation” (SE 11: 176, 205). This paleo-biological speculation is not his, of course; he is not its father or first author, but he expounds it without opposing it. We should stop at 25. In the typescript: “are women.”

m a rch 21, 2 0 01 ‡ 233

this point to look at the use Freud makes here and elsewhere of the word and concept of speculation. I won’t do so here because we don’t have the time and because I formerly devoted the entire second part of The Post Card (“To Speculate — on Freud”) to them in connection with the death drive and the beyond of the pleasure principle.26 Here the paleo-biological speculation would be the one proposed by Ferenczi, and Freud, having himself expounded it, concludes that one cannot reproach oneself, that one is above reproach (vorwurfsfrei) in employing such speculations, so long as one avoids overvaluing (überwerten) or overestimating them. Woman is thus the enemy [l’ennemie] of man; she is hostile [ennemie] to man; she doesn’t like man. And it is woman’s hostility toward men — to Ferenczi it appears obvious and undeniable, constitutive — it is this enmity (diese Feindseligkeit des Weibes) that leads him (“I do not know if he is the first to do so,” writes Freud parenthetically), in the course of a “paleo-biological speculation [in einer paläobiologischen Spekulation],” to the “period in time when the sexes became differentiated [bis auf die Epoche der Differenzierung der Geschlechter zurück]” (SE 11: 176, 205). In the beginning, in this history before history, in this protohistory, according to Ferenczi, copulation took place between two individuals of the same sex, or at least of the same kind, or of the same gender ( gleichartigen). (Were one to amuse oneself here with the arithmetic of the sexes, one could compare this speculation with that in Plato’s Symposium, which Freud recalls in Beyond 27: in the beginning, there were not one or two but three kinds of human beings, three sexual configurations, the male sex, the female sex, and a third that partook of both, the androgynous sex that Zeus cut in two, whence the desire for reunion that ensued, and the nostalgia called eros or love). According to Ferenczi’s speculation, there is only one gender.28 According to Ferenczi’s speculation, in which it is a matter of explaining not love and eros between men and women but war, hostility, polemos or eris, not Eros but Eris, the war in fact waged by women against men, as a reaction against his natural superiority, his greater natural force, in this case there only one sex, and copulation first takes place, then, between two individuals of the same gender. One of the two, having become stronger than the other, forces (zwang) the weaker one to passively 26. See Jacques Derrida, “Spéculer — sur Freud,” in La carte postale de Socrate à Freud et au-delà (Paris: Aubier-Flammarion, 1980); “To Speculate — on Freud,” in The Post Card: From Socrates to Freud and Beyond, trans. Alan Bass (Chicago: University of Chicago Press, 1987). 27. That is, Beyond the Pleasure Principle. 28. [Translator’s note]: “Gender” is in English in the original.

311

234 ‡ nin t h se s sion

312

313

endure, to undergo (erdulden), to suffer sexual union (die geschlechtliche Vereinigung). Since Freud first says “two individuals of similar kind or gender” (SE 11: 177, 205, modified), and then says “sexual union” when the violence of the stronger is exerted, one might also have the feeling that union, copulation, only becomes sexual at the moment this war, this difference of forces [différence de forces], has forced one of the two individuals to yield, to become passive and to suffer. In any case, Freud continues, still explicating Ferenczi, where he says that there is no harm in doing so, the bitter rancor, the vengeful reactiveness that is perceptible in the present-day disposition of women (in der heutigen Anlage des Weibes), would be but the extension of this initial state of subordination against which the weaker sex constantly protests (SE 11: 177, 205). Though we won’t linger over the slightly delirious [délirant] and phantasmatic nature of this speculation, which Freud believes he must take seriously to some extent, let us note that this speculation interests Freud precisely to the extent that it roots penis envy in nature, in a power differential that is supposedly found in nature and thus assigns a destiny to the weaker sex, which can only be what is called woman. While sexual difference, or copulation, appeared on the scene only very late in the history of the reproduction of the living, as soon as it appears, it appears in the power differential whose consequences are the enslavement of one sex by the other and the reactivity that follows from it. While this destiny is sealed with the appearance of sexual difference, from the first sexual differentiation, while it is quasi natural, as natural as the difference of forces, culture and history may well conceal it, refine it, attenuate it, defer it, but they cannot change it in the end. However, while penis envy, in this context, is destined to explain the reactivity that pushes women to castrate men (Judith’s castration of Holofernes, for example), and while castration is the origin of decapitation, itself merely an Ersatz for the former, we can clearly see that the entire fundamental stratum (murder, castration, decapitation, crime, and capital punishment, etc.), this entire stratum rests on a quasi-natural and indelible foundation, even if culture, civilization, law, etc. can soften or mask its effects. For Freud says it straight out, penis envy is only one case, only one example or figure of the “castration complex,” of the “castration complex” in general, which lies at the origin of this feeling of guilt that precedes and thus motivates all crimes: those crimes punished as offenses as well as those authorized crimes, which go by the name of criminal law and capital punishment. Freud puts penis envy under or in the category of the “castration complex” (Wir ordnen diesen “Penisneid” dem “Kastrationskomplex” ein) (SE

m a rch 21, 2 0 01 ‡ 235

11: 175, 204). Why? Because penis envy arises from, if not the experience of a lack, at least the experience of a cut, the interpretive experience, the experience that consists in interpreting an absence as a cut, as a shortening of the penis. Freud clarifies this in a parenthesis when, before saying “Wir ordnen diesen ‘Penisneid’ dem ‘Kastrationskomplex’ ein,” he evokes the case of neurotic women who envy their brothers’ “sign of masculinity” (Zeichen der Männlichkeit) and feel at a disadvantage because of their lack of it (seines Fehlen) but more precisely, and this is the parenthesis, because of its shortening, because of what is properly its shortening, properly its dimunition (eigentlich seiner Verkleinerung) (SE 11: 175, 204). Before going any further in the analysis of this passage, which concerns, then, a case of the castration complex in general, and is extremely important to us for obvious reasons given that Freud takes decapitation to be an Ersatz for castration, for a castration that is thus fundamental on more than one account and inescapable on more than one account, since penis envy is merely a figure for it, and decapitation merely an Ersatz for it, and since it is at the origin of all capital and decapitating crimes, those committed by men as well as those committed by women, against the law and in the name of the law [before going any further, then, in the analysis of this passage that concerns a case of the castration complex in general], two comments on this no less important parenthesis about the diminution or shortening [raccourcissement] (moreover, one often says “raccourcir quelqu’un [to cut someone down]” meaning to put someone to death by decapitation). 1. This parenthesis might lead one to think that, on the one hand, women are not absolutely deprived, they do not suffer from a radical lack of penis but only — a question of size — from a smaller penis, which may lead one to think that (a) they interpret this reduction as a violence, this small size [ petite taille] as a sizeable effect [effet de taille], in the sense of an incision [entaille], an attempt at castration for which they must avenge themselves, which may also lead one to think (b) according to some rather standard paleo-biological hypotheses that the clitoris is this penis in miniature (many texts in the tradition, including those by Hegel, speculate about this remainder of the penis in the course of the phylogenesis of women; I discussed this in Glas where I privileged the logic of the greater or lesser stricture of “bander”29 against the binary structure (yes or no) of castration),30 which may finally and above all (c) lead one to think that wherever there is a reduced or shortened penis, including in men, the same interpretive phantasmatics and the same reac29. [Translator’s Note]: The verb “bander” means “to have an erection.” 30. See Jacques Derrida, Glas, especially pp. 22– 23, 136– 38, 226– 27.

314

236 ‡ nin t h se s sion

315

tivity, the same resentment can find their motivation, which should lead one to a problematic of erection and detumescence, of the fort/da of erection, that would undoubtedly be more enlightening and richer than the problematic of castration as emasculation, all the more so in that it would involve the alternation of the phallus as alternation of erection itself (in men and in women) and not as presence or absence of the penis, indeed of penis envy that would exist only in women; which would finally (d) explain what Freud himself says about excision as a mutilation more cruel than circumcision. 2. Second comment. Freud says that this allusion to neurotic women who supposedly envy the penis of their brothers refers to an earlier phase. Earlier than what? Freud is trying to account for the phenomenon, so widespread and so complex in its etiology, of feminine frigidity, which is often due to the hostility toward the first man, the deflowering man. This stems from the fact, just as widespread, that the fixation of libido is first directed toward the brother or the father, the husband being merely a substitute, an Ersatz once again, a man supplement, a supplementary man, an Ersatztmann (the word appears twice), that many rituals in different cultures tend to arrange for deflowering by someone other than the husband, so that the latter can evade the hostility or aggression that would be directed at him were he himself to perform the deflowering. This deflowering by proxy is often delegated not only to substitutes for the husband (who is himself an Ersatz)32 but also to substitutes for the father (Vaterersatz or Vatersurrogat, a supplement of father — one begins to wonder, moreover, who or what in fact is not, as man or phallus, an Ersatz, a substitute, a supplement), a substitute for the father who can an elder, a saint, a priest, or even an image of the gods. Saint Augustine, as cited by Freud, testifies that, in certain regions of India, the newly married woman was obliged to sacrifice her hymen to the wooden lingam, and that this very same custom existed in the Roman marriage ceremony but modified so that the young wife only had to seat herself on the gigantic stone phallus of Priapus (auf den riesigen Steinphallus des Priapus nur zu setzen brauchte) (SE 11: 175, 204). But let us return to a moment when — even before those deflowerings entrusted to substitutes — the symptoms of neurotic women refer to a more archaic phase, when the little girl, even before her marriage, envies the penis of her brothers, an envy that already illustrates the castration complex in general. If by “masculine,” says Freud, we mean “wishing to be masculine” (Männlichseinwollen), then this clearly fits with what Adler (another dis31. In the typescript: “whence many rituals.” 32. The closing parenthesis has been added by the editors.

m a rch 21, 2 0 01 ‡ 237

ciple) calls “‘masculine protest [männlicher Protest],’” which is responsible for neurosis in general (SE 11: 175, 204– 5). At this point, and to illustrate this virile protest — about which one must recall, against Freud, that it is also, sometimes, often, true of men no less than of women (and again it is the difference between the two logics that I was recalling earlier, that of differential stricture and that of binary or oppositional structure) — in order to illustrate this virile protest, then, Freud uses two words, as if in passing, without paying much attention to what they denote or connote, two words that I myself would like to underscore in the context that is ours here. Freud says that, in this very precocious phase, then, girls often make no secret of their hostility (again Feindseligkeit) toward their brothers favored by nature: they try to “urinate standing upright like their brothers in order to prove the equality to which they lay claim” (SE 11: 175, 205). To “urinate standing upright” is “aufrechtstehen”; “aufrecht” means “straight up.” Girls want to stand straight [tenir droit], stand upright [droit debout], straight and upright in order to urinate. This compensation does not involve simply the use of the organ of erection that at once erects and rigidifies in one direction, straight ahead, in other words, the organ of right, of rigid rectitude; this compensation takes the figure of the entire body in erection, straight and upright [droit debout]. The privileging of right or rectitude, of right upright, and here of right from top to bottom [de bout en bout] concerns, then, the totality of the body that stands up, tries to stand up, strains to stand in an upright position. And why urinate standing up like that in competition with their brothers? Well, to prove the “equality to which they lay claim [ihre angebliche Gleichberechtigung zu vertreten]: sie versuchen es auch, aufrechtstehend wie der Bruder zu urinieren, um ihre angebliche Gleichberechtigung zu vertreten (SE 11: 175– 76, 205). It is a question, then, for these poor girls, in their virile protest, of standing upright so as to lay claim to their rights, their alleged rights. Such that between the rectitude of right (Recht, droit) and the rectitude of the erect body, there is an analogy, a common rection or direction that may lead one to think that the boy enjoys a natural right, so to speak, one which the girl tries vainly, and precociously, to supplement by way of an artificial mimesis, of a nonnatural right, a right that can only be claimed and asserted in hatred, a nonnatural right, thus a historical right, this distinction between the two rights, the second being somewhat unnatural and thus a little twisted, precarious, and reversible (but, I will add, like masculine erection itself in detumescence). Freud lets it be understood that in their virile protest, feminists, emancipated women, above all those who write, are trying desperately to urinate standing up. Even though he speaks of urine here, he doesn’t go so far as to compare the inferiority of urine to

316

317

238 ‡ nin t h se s sion

318

sperm, as Hegel does somewhere, when he says that representation is poor, inferior to the concept, and that representation is to the force of the concept what urine is to sperm. So what is at issue for Freud here, in passing, as it were, is a thesis on rights, on the relation between erection and rights in general, on natural right and historical right — and thus, when it comes to criminal law as historical law, as legislative apparatus, a thesis on the derivative, fragile, and superstructural character of the juridical. Whether one is for or against the death penalty as a legal device, what is in play and at stake, namely, the drives underlying and inscribed in a nature or a quasi nature, will not be affected. No more affected than what leads to the decapitation of Holofernes and to all the figures of castration. A culture, a civilization, a politics, or an ethics of right can only accelerate here, slow down there, organize superficial systems of compensation or protest, but they cannot radically change the natural and prehistoric hand that has been dealt them [la donne]. One might say, from this point of view and to that extent, as a way of answering our initial question, that there is no future for a Freudian psychoanalyst, no future or progress that would radically change things. No future for blood, and for what it represents. We touch here on Freud’s profound pessimism, his refined conservatism, his hostility toward, or his declared distrust of, revolution, revolutions. Even his stand against the death penalty (made known in a very particular situation, paying lip service through the mediation of a delegated spokesperson, following a list of careful reasons that might well have justified, without logical or principial inconsistency, a stand in favor of the death penalty), even this stand against the death penalty is, at the very most, merely a sign of resigned pessimism or, at best, a very reasonable optimism, a moderate and refined optimism, one that is prepared to take part in a steady progress, of a very traditional and European sort. But without illusion, without illusion as to the future, without illusion about the future of an illusion, which is no longer only religion here but also culture, law, and history. For what gives evil its roots, so to speak, what makes it, if not radical, in the strict Kantian sense, at least ineradicable, is, according to Freud, the originary and archaic nature of these processes. For example, to return briefly to this penis envy, this assertion of the right to a urinary position, this right to urinate upright (and wherever there is a story, a history of urine, the history of sperm is not far behind, as we have just seen, and neither is the history of milk or tears, or the history of blood, of the future of blood to be spilled or staunched), to return, then, briefly, to the different manifestations of penis envy, as well as to the limitless aggression (uneingeschränkter

m a rch 21, 2 0 01 ‡ 239

Aggression: the overflowing aggression of the girl, an aggression that cannot be contained within limits, an aggression of a naturally excessive, hyperbolic nature [SE 11: 176, 205]), Freud finds it so archaic, and expressed so early, this hostility, this reactive war that women wage against men, that he thinks he can trace its roots back, in its clinical signs, to a phase that existed prior to object-choice (Objektwahl), even before the little girl’s love fixation is directed toward her father. It is only later that the girl loves her father and, in the place of a penis, she wants a child from him. Even if Freud admits that, in certain cases, the part of the castration complex that is penis envy (he himself calls penis envy a part, a piece of the castration complex: dies Stück des Kastrationskomplexes [SE 11: 176, 205]) only manifests itself actively after a choice of object has been made. But the masculine phase in the little girl, in the absolutely primitive time when she envies the boy his penis, when it starts to go badly between the sexes, and when the uncontrolled aggression of women prepares its worst blows, from castration pure and simple to the attenuated form of castration that is death itself and the Ersatz of the decapitation of the poor masculine victim, well then, this original phase of limitless aggression that characterizes women is scarcely a phase. It’s scarcely a phase because it will never stop, henceforth, it will never stop re-presenting itself, deferring itself, delegating itself, then figuring itself, taking on new figures and new turns, interminably, while remaining the same, at bottom, beneath all of its substitutes; but it’s also scarcely a phase because it is always in itself prior to all object-choice, and thus prior to any history and any development, and thus any culture, and it is closer to original narcissism, says Freud, than it is to object-love. What is being posed here is nothing less than the question of history for Freudian psychoanalysis. Freud is certainly not inattentive to history, culture, or civilization; it would be silly to think or to claim otherwise. But there is, in his thought, a profound disbelief in the possibility of radically changing, in a revolutionary way, the archaic nature of things. There couldn’t be, for example, a true history of blood, a true history of the culture of blood, of the originary phantasmatics of blood surrounding menstruation, deflowering, castration, and everything that follows from them. Even when — to stay with our question of the death penalty — even when his good disciple Reik advocates, like Freud, the end of the death penalty and even the end of all punishment, which would be like an almost unimaginable upheaval of history, well, even then, an atmosphere of ahistoricity and atemporality reigns over these visions of the future. Not only because this worldwide confession and autoanalysis, this new transparency of humanity, would bring history to a stop, but also, and above all, because the avowal

319

320

240 ‡ nin t h se s sion

321

itself would only come to acknowledge a guilt prior to the crime, one that was thus prehistoric, fundamental, radical, and ineradicable: the Oedipus complex, the castration complex, penis envy, etc. Moreover, even before confession, in this logic, before confession as such, crime was itself held to be a confession; crime was a confession since it confessed, as would a symptom, a guilt that was already there, before the act. Even crime invents nothing; it does not even produce guilt, because, on the contrary, crime follows from and expresses guilt; it seals it. Even crime has no history and does not make history through its acts [ne fait pas d’histoire en acte]. In the end, it is this generalization of substitution, upon which I have insisted so much today, that makes at once possible and impossible, produces and voids historicity and the right to history. In the end, there would only be Ersatz, supplement, stand-in substitute [substitut suppléant]. History would be nothing but a differance of supplement. Since we promised ourselves, such was the contract of this seminar, to keep the death penalty always in view — as experience of forgiveness or rather, or thereby, of the unforgivable (both because the death penalty does not forgive and because it itself may seem unforgivable) [since we promised ourselves, such was the contract of the seminar, to keep the death penalty always in view], we must approach by way of thought this double stipulation: 1. Death seems to put an end to all possible substitution: the decision to execute is terrible because no one can make this decision in the place of another and, especially, because no one can and no one should be executed in the place of another. Death puts substitution to death. 2. Death is the end of substitution. A double stipulation, thus, two stipulations that appear incompatible. Save [sauf ] for two hypotheses: 1. except if [sauf si] — a Christian hypothesis — the passion or bloody sacrifice of the crucified is still the experience of substitution itself, the substitution of the only son, without angel and without ram to the rescue (as we saw from the Catholic tradition of the word “substitution” that leads to Massignon and which we will encounter again next week with Juan Donoso Cortés); the question of the death penalty remains, in every sense and in the depths of the very enigma of these two words, a sacrificial logic; this seems undeniable to me; and 2. except if [sauf si] — a second hypothesis — we think, as Freud himself thought, that death, for example decapitation, is itself an Ersatz, a substitute for some other unique, originary, and irreplaceable thing, namely castration. In the end, there is no death; no one dies; there is no death in the unconscious, and the fear of death is merely a substitutive phantasm, a

m a rch 21, 2 0 01 ‡ 241

wrinkle, however deep it may be, on the surface of the conscious ego. There is no death; the question of death is a substitute and thus death remains, properly speaking, second and secondary. This question of the substitute in general, which is not new but nonetheless remains intact, which repeats and replaces itself while remaining virginal, as it were, chaste, unharmed, how is this question of the substitute to be articulated, since it is perhaps one with the question of the future we raised at the beginning of the session? Is there a future for blood? we asked. And how to conceive of blood, and how to conceive of the future? Is there a chance for the future through the element of blood or through the element of the concept? Will we one day have another experience of blood, another relation to blood, another concept of blood, as perhaps seems to be in the offing, both in the techno-sciences of military and/or judiciary killing and in the biogenetic and medical techno-sciences, in tomorrow’s hematology? And will it be possible to think this beyond the concept? I consider this whole problem to be inseparable from the problem of reason and the future of reason, as we saw it prefigured in our reading of Heidegger with Kant, The Principle of Reason with the Philosophy of Right.33 Historical pessimism, or that side of historical pessimism in Freud’s thought, is a stand taken by reason, a stand taken for reason — and even in favor of science and Enlightenment reason — but at the same time psychoanalysis is another critique of pure reason, that is, a critique of Kant’s critique of pure reason or pure practical reason. Now, when confronted with the question “Is there a future for man and for blood, for the blood of every living being as well as the blood of the animal rationale?” we meet up again with all the elements [donnes] of the game of the goose and with what is beyond the game of the goose. One can interpret substitution as what lends itself to calculation, par excellence, substitution as repetition, as the very element and condition of the calculable, of calculating and prosthetic formalization, the “for”: one for one, an eye for an eye, a tooth for a tooth. But this logic of calculable equivalence can also be thwarted by the substitution of the unique, the nonrepeatable, the irreplaceable, by another thinking of substitution, indeed by another thinking of blood. When Heidegger believes he can think two intonations, two accentuations (Tonart) of the principle of reason, the one that dominates, in which the Principle of Reason lets itself be dominated by calculability, reckoning, the reor of the ratio, or the distributive ration and the metaphysics of 33. See above, “Sixth session, February 21, 2001,” pp. 136 ff.

322

242 ‡ nin t h se s sion

323

man as animal rationale who knows how to count, the other, more discreet but profound in another way, which is turned toward the Being of “nothing is without reason,” toward the nothing of beings and toward the Being that, not being a being, neither a cause nor an ontic foundation nor a reason (Grund), is nothing and sinks into the abyss of the Abgrund, Heidegger does not hide that it is a matter of the historial future of Dasein, of the future of man. Depending on whether one thinks according to this or that accentuation of the principle of reason, the future of man will be played out [s’engager] differently. Will it then be a matter of saving man, of giving him the chance of the unscathed, of immunity, thus of a certain castitas, of a new or very old virginity? Or else will it be a matter of another way of condemning him to death properly, to a death that will finally be his? In any case, so to speak, it is always as if, and I mean always, every day, as if, for the other I were dying [ je mourais], I would die [ je mourrais], an “I” had to come to die FOR THE OTHER. Not in truth and especially not only for the other in the sense of replaceability or prosthetic substitution, nor even in truth and especially not only in the sacrificial sense of “dying for the other,” but in the disseminal opening of all the senses of “for.” I die and I die only for the other — however you want to deal with it — this does not mean that this, my death, does not happen to me. I think rather that it is in the obscure clarity, in the dim early light [ petit jour] of this “for,” which is itself illuminated, irreplaceably, by the light and the day [ jour] of this death, as if the “for” could only find its place and could see itself come to light [donner le jour] only in this dying for the other; it’s on the fold of the birth of this “for” that the distinction becomes impossible or remains impossible, however necessary it may otherwise be, between killing and dying, between a crime of vengeance and the death penalty, between all the meanings of condemnation (condemning to death, condemning to die as a result of so-called natural death, or condemning to die as a result of illness), between homicide, zoocide, or biocide in general, and suicide, etc. Were I to know one day, one fine day, what “for” means, the day I know what “for” means, perhaps then I could die — not die in peace but at least while beginning to think through what was happening to me. By saying or without saying plus de lumière, “(no) more light,” not mehr Licht but in truth and in French plus de jour, “(no) more day/(no) more light.” Every time there is some “for” or some “day/light [ jour]” in my death (I die for the other), it is risky to say that “I myself die.” How, then, do you expect me to die [Comment voulez-vous, dès lors, que je meure]? How do you expect me to die? Imagine that someone leaves you with

m a rch 21, 2 0 01 ‡ 243

this expression: “How do you expect me to die?”34 Imagine that this expression, whose meaning is so undecidable, were left to you as an inheritance. And that the “me,” whether dead or not, the very suspense of this question (“how do you expect me to die [comment veux-tu que je meure]?”) were35 bequeathed to you, entrusted to you, given for keeps [donné à jamais], but also for the keeping [donné à garder].36 We will perhaps return to these questions of the “day/light [ jour]” and the “for [ pour],” which I offer up for our consideration and discussion next week — and I will no doubt begin by reading with you a text by Juan Donoso Cortés, an extreme right-wing Spanish Catholic thinker who was much admired, as you may know, by Schmitt, who often refers to him. (Thanks to Petar Bojanic´37 for finding me a copy of this text.) This text, which dates from 1859, is a chapter from his Essay on Catholicism, Liberalism and Socialism Considered in Their Fundamental Principles, chapter 6 to be exact, titled “Dogmas Correlative with the Dogma of Solidarity — Bloody Sacrifices — Theories of the Rationalistic Schools Respecting the Death Penalty.”

34. [Translator’s Note]: Here Derrida moves from the plural “Comment voulez-vous que je meure?” to the singular “Comment veux-tu que je meure?,” a move that allows one to hear even more clearly the two sides of the question, namely, “How can you expect me to die?” and “How do you want me to die?” 35. In the typescript: “would be.” 36. During the session, Derrida adds: “At that moment, someone would say to you: ‘Comment voulez-vous que je meure?’ Imagine someone who says this to you and who leaves you with this expression suspended: ‘Comment voulez-vous que je meure?’ and try to translate it.” 37. See above, “Sixth session, February 21, 2001,” p. 140, n. 5.

324

tenth session

March 28, 2001 h

326

Okay, since, as you know, this is the last session of the year, I thought it might be a good idea to organize it a little differently.1 Here is what I propose: I’ll give an introduction (one that will still take a little over an hour) to the final discussion that will follow; I propose to say something that is both a recapitulation and a step forward — an overture, let’s say — but one that would have the form of a reprise, ultimately with a view to what will follow next year. I still don’t know what I will do next year; as usual, I hope to find a topic that, let’s say, will at once extend, prolong, develop what we are doing here and nonetheless mark a new departure, however contradictory this may seem, in such a way that, by continuing on our journey, we are able to welcome whatever we encounter along the way. Though I have not yet finalized my decision, I was thinking about the question of sovereignty, the history of sovereignty,2 which is obviously very, very close to everything we have been working on here this year and in past years, but which also calls for new types of approaches. But if any of you has a suggestion, I will certainly consider it and maybe even take it up. So please don’t hesitate — no decision has yet been made. Now, as you have seen, we have talked a lot about blood up until now, and even last week we tried to elaborate anew a problematic of blood, taking off 1. As indicated in the “Editorial Note,” this improvised session was transcribed from the audio recording. 2. And it is indeed of sovereignty that Derrida will speak over the next two years, in his seminar. See Jacques Derrida, Séminaire La bête et le souverain, vol. 1 (2001– 2002), ed. Michel Lisse, Marie-Louise Mallet, Ginette Michaud (Paris: Galilée, 2008); The Beast and the Sovereign, vol. 1 (2001– 2002), trans. Geoffrey Bennington (Chicago: University of Chicago Press, 2009); and Séminaire La bête et le souverain, vol 2. (2002– 2003), ed. Michel Lisse, Marie-Louise Mallet, Ginette Michaud (Paris: Galilée, 2010); The Beast and the Sovereign, vol. 2 (2002– 2003), trans. Geoffrey Bennington (Chicago: University of Chicago Press, 2011).

m a rch 2 8 , 2 0 01 ‡ 245

from Freud’s texts on cruelty in particular — cruelty, which is always in part a question of blood, cruor — but also by asking whether blood had a future, that is, if what is happening today presents itself a transformation of our experience, etc., in relation to blood in all of its registers: culture, religion, but also medicine, genetics — our perception of blood is changing. On the other hand, when it came to the question of the death penalty and execution, we also registered something that looked like a disappearance of blood, of the effusion of blood, of the flowing of blood, through the motif of the impermeable [de l’étanche], of staunching [de l’étancher], which we talked about a lot. Thus, the question of blood — which I am going to talk about at length again today — and then the question of sacrifice, which is closely related to that of blood. On several occasions, I have at the very least hinted at my hypothesis regarding this enormous history of the death penalty: namely that interpretations of the non-Kantian type — let’s call them this — that is to say, usefulness or uselessness: usefulness for those who think that the death penalty has a deterrent value; uselessness for those who oppose the death penalty because it has no deterrent value. Thus, both are as much on the side of a logic of utility and hence of the relations between ends and means, the non-Kantian side, whereas the Kantian side opposes the advocates as well as the opponents of the death penalty, who, according to Kant, have all gone astray in this question or this perception of justice as utility. In both cases, Kant versus non-Kant, to simplify things, the drive animating criminal law was a sacrificial drive. I think the same is true for our relation to animals: behind all the problematics, which are just so many alibis for our consumption and slaughter of animals, there lies, beyond all the alleged needs for protein, etc., a sacrificial drive. But this doesn’t mean that I understand what sacrifice is: the question of sacrifice remains entirely intact even after that. Nonetheless, this means that we must think what “sacrifice” means, if we are to approach the question of the animal as well as the question of the death penalty, from both sides. From both sides, Kant! Kantian thought is a sacrificial thought through and through; Kantian morality is a sacrificial morality [ . . . ].4 Hence, we must tie this question of blood to the question of sacrifice. And, consequently, the question of the future of sacrificial blood. And it is in an effort to elaborate this question that I wanted to read with you today — and I’m going to explain why — a text by Donoso Cortés (and let me thank Petar Bojanic´ again for tracking down a copy of it in French for me, in French translation — it also exists of 3. In the recording: “as to.” 4. The end of this sentence is inaudible.

327

246 ‡ t en t h se s sion

328

course in Spanish, its original language, in German, and in Italian) and I would like to explain why I am going to speak of Donoso Cortés today, by way of final introduction to the final discussion. Donoso Cortés is known for being, let’s say, a great essayist, an extreme right-wing, Spanish, Catholic ideologue of the last century, and, until now, everything I knew about him I knew only indirectly; what I knew, I knew from the insistent references that Carl Schmitt makes to him, as you know. Carl Schmitt regularly shows great interest in Cortés, draws inspiration from him, cites him, and for me Cortés was, first of all, simply the reference made by a great Catholic jurist — Schmitt — to another Catholic political thinker of the last century. So, before reading and commenting on a chapter by Cortés with you — I’ll tell you which one in a minute — I would like to return for a moment precisely to Schmitt, and to the reasons Schmitt has for being interested in Cortés. Now Schmitt has been at the center of our seminar in particular because of his discourse on sovereignty. All of this leads back, though sacrifice, to the enormous question of religion and the death penalty, Christianity and the death penalty, an enormous question that has occupied us since the beginning of this year, since the beginning of last year, along with this great alternative that I have been schematizing excessively and to the extreme, namely, that on one side there has been, almost quasipermanently, support for the death penalty by the Catholic Church — by the Catholic Church — from Saint Thomas until today, including today (although the pope declares himself to be personally against the death penalty, he has never published an official document of the Church condemning it5); from Saint Thomas to today, then, the Church — the Catholic Church — has been for the death penalty. And conversely, it is in the name of the Gospels that for example — and one could give other examples — Victor Hugo (but also bishops and archbishops today) oppose the death penalty. Thus, the death penalty is at the center of the Christian experience or interpretation of Christianity, of the Gospels and Christianity, with all the differences that can be situated within Christianity, between Catholicism, Protestantism, the Orthodox Church, and other variations of Christianity. Naturally, as a great theorist of sovereignty, Schmitt was for the death penalty, and he praises Cortés, the Catholic theorist, most often, precisely, for his thinking on sovereignty. So, before looking at Cortés’s text, I would like to situate, let’s say, Cortés in Schmitt’s thought, in Schmitt’s sovereignism and decisionism. For 5. In 2001, the pope in question was John-Paul II.

m a rch 2 8 , 2 0 01 ‡ 247

example, in the Concept of the Political,6 when he discusses the Church’s political critique of liberalism or socialism, he invokes Cortés a series of thinkers in which he brings together left-wing and far-left-wing thinkers, as always in Schmitt, and Cortés. Marx and Cortés, together, yes, Marx and Cortés. Marx who, you will remember, is also suspicious of abolitionists. We saw this last year. For example, regarding the depoliticization effected by the ethico-economic polarity — for Schmitt the problem of the specificity of the political is irreducible; consequently one must never fall back on either ethics or economics. He writes the following: The systematic theory of liberalism concerns almost solely the internal struggle against the power of the state. For the purpose of protecting individual freedom and private property, liberalism provides a series of methods for hindering and controlling the state’s and government’s power. It makes of the state a compromise [thus, liberalism is in fact a critique of the state, of state sovereignty] and of its institutions a ventilating system and, moreover, balances monarchy against democracy and vice versa. In critical times — particularly 1848 [1848 is a very interesting reference here; that is the French revolution that abolished the death penalty for political crimes — you remember, we spent time studying this episode — and Donoso Cortés’s text, which we will read later, closely follows it; Cortés is a commentator, an observer of what was taking place in Europe at that time] — this led to such a contradictory position that all good observers, such as Lorenz von Stein, Karl Marx, Friedrich Julius Stahl, Donoso Cortés, despaired of trying to find here a political principle or an intellectually consistent idea.7

A contradiction, therefore, of the 1848 Revolution. And another important reference in the texts collected in The Concept of the Political is the following, which interests me because of the Russian question, which we haven’t really, how shall I say it, formalized as such in this seminar, the Russian question of the death penalty. You have Dostoyevsky, you know the story, and then Tolstoy, who was a fervent opponent of the death penalty, and who wrote against the death penalty. Schmitt writes the following, at the beginning of the text that is called “The Age of Neutralizations and 6. During the session, Derrida translates the title of Carl Schmitt’s Der Begriff des Politischen as Le concept du politique, which corresponds to the English title of this work by Schmitt: The Concept of the Political. The French translation is titled La notion de politique, trans. M.-L. Steinhauser (Paris: Calmann-Levy, 1972). 7. Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, 1996), p. 70.

329

248 ‡ t en t h se s sion

330

Depoliticizations.” Schmitt’s diagnosis or prognosis, as you know, is that we have entered modernity, and with it an age of depoliticization, neutralization of the political. Along with a critique of the sovereignty of the state, with the reduction of the political to ethics or economics, to the humanitarian, there is a loss of the perception of the enemy, which is the condition for the concept of the political, and thus a depoliticization that frightens Schmitt, a depoliticization that is a de-Europeanization, a deterioration of the authority of European law, of international law as European law: We in Central Europe live “sous l’œil des Russes” [in French in the text]. For a century their psychological lucidity has seen through our great words and institutions. Their vitality is strong enough to seize our knowledge and technology as weapons. Their prowess in rationalism and its opposite, as well as their potential for good and evil in orthodoxy, is overwhelming. They have realized the union of Socialism and Slavism, which already in 1848 Donoso Cortés [the Spanish Donoso Cortés who is diagnosing Russia] — [They have realized the union of Socialism and Slavism, which already in 1848 Donoso Cortés] said would be the decisive event of the next century. (80)

So in 1848 Donoso Cortés is saying: “the next century will be Russian.” It will be Russian — and he was more or less right, to the extent that Carl Schmitt, like Heidegger and others, is reacting to the Russian thing. He says in 1848 that the next century will be determined by Russia, why? Because of this alliance of rationalism and irrationalism, of Slavism and Socialism.

331

So that’s another important reference to Donoso Cortés in Schmitt. I am telling you all of this — I was intrigued by these references without knowing Cortés at all; I am only discovering him now. What is more, Schmitt’s most important references to Cortés, if you allow me to prolong these prolegomena just a little, are in Schmitt’s Political Theology, and naturally, as you all noticed, a seminar on the death penalty is a seminar on the theologico-political, as I said from the very opening lines of the seminar, from the very first sentences when I staged the four great paradigms: Socrates, Jesus, Hallaj, and Joan of Arc. It is obvious that the death penalty seals the alliance between the theological and the political. So what does Schmitt say, when he cites Cortés on this subject? He says the following, in chapter 3 of Political Theology [in the Gallimard edition], he says the following, which I recall, it’s well known and we have already commented on it here: All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development — in

m a rch 2 8 , 2 0 01 ‡ 249

which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver — but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts.8

Remember this point, the word “systematic.” What Schmitt says here — we will find it again in Cortés — what Schmitt says here is that it is not only a matter of saying, as a genealogist would: “all political concepts stem from theology”; that’s genealogy, that’s history. What he says is: One must show, not as a historian but as a systematic logician, the link, the systemic connection between all of these concepts, their systemic inseparability. And we will find this theme again in Cortés, who turns Catholic thought into the only absolutely systemic, systematic thought. [ . . . ] but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. (80)

What does this sentence mean? The exceptional situation, that is, the criterion of sovereignty — you remember: sovereign is he who decides on the exception — so the thinking of sovereignty is a thinking of the exception, well then, what is called the exception, when one speaks of sovereignty and the sovereign decision in politics, is the same thing as what are called miracles in religion. It’s the same structure: a pure decision, which is thus — a sovereign decision — which is in some sense induced or programmed by nothing other than itself, a sovereign decision is also a miracle, it looks like a miracle. So maybe there never is a miracle, maybe there never is a decision, but if you want to think the decision, you must tell yourself that it is the miracle itself. And thus, to think what “decision” means, you must think the miracle as a theologian, or reciprocally. Well then, a little further on, after underscoring that the rationalism of the Aufklärung, of the Enlightenment, was a blindness to the exception and to the decision, in the end, the Aufklärung is where the digression began that sought to replace decision with discussion. Instead of making decisions we’re going to discuss things — that’s democracy, no? We’re going to deliberate, and we don’t understand that politics is decision — thus the blind digression, the blindness of the Enlightenment, of the Aufklärung, of the Illuminismo, of the Illustración, is discussion. It’s blindness to the decision. And thus to the exception. What the 8. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2005), p. 36. (See Jacques Derrida, The Death Penalty, vol. 1, “Third Session, January 12, 2000,” pp. 88 ff.)

332

250 ‡ t en t h se s sion

333

Aufklärers didn’t want was the exception. Singularity. The rationalism of the Aufklärung condemned the exception in all its forms. Well then, having developed this analogy between the theological and the political through law, what does Schmitt say? The most interesting political use of such analogies is to be found in the Catholic philosophers of the counterrevolution: Bonald, de Maistre, and Donoso Cortés. It’s always the same series, isn’t it? Catholics, counterrevolutionary Catholic thinkers. Catholic thinkers who reacted to the revolution of 1789, or to the revolution of 1848. In other words — and that’s the perspective — if one wants to understand what sovereignty is, what the decision is, what the exception is, one must be reactionary, in the strongest sense of the term; one must react against the Enlightenment, against the progressivism of the Enlightenment, and against revolution. And in this Cortés is, or would be, exemplary. Naturally, it goes without saying, and it’s sheer banality to recall it here, that such a decisionism, such a thinking of the decision — and it’s a very powerful thinking, it’s not easy, it’s not easy, even for an Enlightenment thinker who would want to abandon decision, and to replace decision with discussion, it’s not easy to show that we can do without the decision in politics.9 Clearly, a decisionism that takes into account the irreducibility of what is called a decision — whether or not there is such a thing as a decision — the irreducibility of the concept of decision is a theory of dictatorship. It’s a theory of dictatorship, right? It’s the moment, even if one belongs to the most reassuring of parliamentary democracies — if there is decision, the decision is dictatorial. This is the moment of the Diktat, of the — how should I put this? — of the verdict as Diktat. That no longer has to justify itself. The moment of sovereignty, such as it is capitalized on [capitalisé] in Western democracy, in the figure of the president, or the king — previously one the president the right to pardon — when the president decides to grant or not to grant a pardon, these are moments of dictatorship, obviously. He is above the law, and he makes his decision on his own. And he doesn’t have to render an account of it, he is accountable to no one. It’s the moment of dictatorship that is essential to politics. Even in a democracy, if there are politics in a democracy, there must be some decision; there must be some exception and therefore some dictatorship. And this is what Schmitt is always reminding us of: dictatorship. A word that shouldn’t be used so casually, and that we shouldn’t think we can get rid of so easily. Another reference to Cortés, on p. 53 of the same book, where the question of decision as dictatorship is precisely what is being emphasized. I quote: 9. In the recording, one sentence remains inaudible.

m a rch 2 8 , 2 0 01 ‡ 251

German romantics possess an odd trait: everlasting conversation [This is German romanticism: perpetual discussion]. Novalis and Adam Müller feel at home with it; to them it constitutes the true realization of their spirits. Catholic political philosophers such as de Maistre, Bonald, and Donoso Cortés — who are called romantics in Germany because they were conservative or reactionary and idealized the conditions of the Middle Ages — would have considered everlasting conversation a product of a gruesomely comic fantasy [The idea that there must discussion — and this is the parliamentary idea, is it not? — that there must be endless discussion, the caricature of this, or that of which this is a caricature, is, for example, Habermas — I have the greatest respect for him — a philosophy of conversation, an ethics of discussion: as long as it takes, we’ll discuss it, shall we not? And this, for de Maistre, Bonald, and Cortés, is gruesomely comic. Gruesomely comic because it is first of all comic, an endless conversation, but also gruesome because this means no decision, irresponsibility. A decision that is indefinitely deferred, like an endless session of parliament. And, obviously, when one puts in place schedules, calendars, agendas, or measures to allow the government to put a stop to the discussion in democratic parliaments — one calls for a vote — these are obviously moments of dictatorship, moments that interrupt the discussion. He continues:] for what characterized their counterrevolutionary political philosophy was the recognition that their times needed a decision. And with an energy that rose to an extreme between the two revolutions of 1789 and 1848, they thrust the notion of the decision to the center of their thinking [that of de Maistre, Bonald, and Donoso Cortés]. Wherever Catholic philosophy of the nineteenth century was engaged [let’s not forget that Schmitt was Catholic, a German Catholic, as Heidegger was originally], it expressed the idea [when I say “originally” — he always remained Catholic, but in my opinion things got a little complicated when he married a Protestant, but he remained Catholic, a Catholic seminarian] in one form or another that there was now a great alternative that no longer allowed of synthesis. No medium exists, said Cardinal Newman, between catholicity and atheism. Everyone formulated a big either/or, the rigor of which sounded more like dictatorship than everlasting conversation. (53– 54)

There is indeed a quotation from Cortés on the following page. Well, two more references, and then we’ll move to Cortés himself: The true significance of those counterrevolutionary philosophers of the state lies precisely in the consistency with which they decide. [And you’ll see that Cortés — I don’t know if you will see it the way I do — a little crazy, a slightly crazy reactionary, but whose craziness consists, as is often the case, in an unshakeable logic.] They heightened the moment of the de-

334

335

252 ‡ t en t h se s sion

cision to such an extent that the notion of legitimacy, their starting point, was finally dissolved. As soon as Donoso Cortés realized that the period of monarchy had come to an end because there no longer were kings and no one would have the courage to be king in any way other than by the will of the people [because Spain was moving from an absolute monarchy to a constitutional monarchy], he brought his decisionism to its logical conclusion. He demanded a political dictatorship. In the cited remarks of de Maistre we can also see a reduction of the state to the moment of the decision, to a pure decision not based on reason and discussion and not justifying itself, that is, to an absolute decision created out of nothingness [ex nihilo, that’s what pure decision is]. But this decisionism is essentially dictatorship, not legitimacy. Donoso Cortés was convinced that the moment of the last battle had arrived; in the face of radical evil the only solution is dictatorship, and the legitimist principle of succession becomes at such a moment empty dogmatism. [So when there is no longer a hereditary monarchy to embody sovereignty, well then, pure dictatorship. And this is what was attempted, this is what happened in that century, in that respect these people were more than lucid in their own way]. (65– 66).

336

So there it is. Obviously, I refer you to Schmitt for all this. Now, for the next half hour or so, if you will permit it — that way there will be enough time for a discussion afterward — I wanted to look at a text by Cortés and discuss it with you. It’s chapter 6 of his Essays on Catholicism, Liberalism, and Socialism published [in French] in 1859 and reprinted in 1986.10 Chapter 6 is titled “Bloody Sacrifices [this is why I chose this chapter]: Theories of the Rationalistic Schools Respecting the Death Penalty.” However, before following the thread of Cortés’s very rigorous demonstration, I will go straight to the knots [nœuds] of his argumentation and his conclusions, which are, on the one hand, as follows, and which thus concern the death penalty. He writes on p. 202 of the [English] translation: from which follows not only the legitimacy, but also the necessity and propriety of the death penalty. The universality of this institution testifies to the universality of the belief of mankind in the purifying efficacy of blood, shed under certain circumstances, and in its expiatory virtue when it is thus shed. 10. Juan Donoso Cortés, Ensayo sobre el catolicismo, el liberalismo y el socialismo, considerados en sus principios fundamentales (Barcelona: Rivadeneyna, 1851); Essai sur le catholicisme, le libéralisme et le socialisme (Paris: Bibliothèque nouvelle, 1851, 2nd ed. 1859), reproduced in facsimile edition (Bouère: D. Martin Morin, 1986); Essay on Catholicism, Liberalism and Socialism Considered in Their Fundamental Principles, trans. Madeleine Vinton Goddard (Boonville, NY: Preserving Christian Publications, 1989).

m a rch 2 8 , 2 0 01 ‡ 253

Thus, legitimacy of the death penalty as expiation, but an expiation that must be bloody, that must involve an effusion that is made in blood, because of the story that Cortés is going to tell us, and which goes back to Adam and Eve. He then tells the bloody story, the story of the history of blood, since Adam and Eve, and especially since Cain and Abel, in order to show that expiation is necessary and that it always passes by way of blood, and that the death penalty must be this expiation through blood. Obviously, what remains is the question11 with which we began last time and again today, the question of the history of blood: What would happen if suddenly there were no more blood? Or if suddenly blood no longer counted for humanity? What happens when blood can no longer flow, so to speak, or have this phantasmatic virtue of expiatory sacrifice? And then, a little further on, once again in order to pass very quickly to the crux [nœud] of the matter: He alone can find another guilty of crime who may accuse him of sin [every crime must be a sin: if we lose the reference to sin, we lose the reference to crime and, consequently, we lose law; a nonreligious [laïc] law makes no sense, a secular law makes no sense; law cannot be secularized]; and he alone can inflict punishment for the one who may impose it for the other. Governments have only power to impose a penalty upon man in their quality of being so delegated by God, and the human law is only competent when it is the application of the divine law. (203)

Remember everything we discussed last year, think of Camus’s text “Reflections on the Guillotine,”12 which showed that the death penalty could find its justification and possibility, in the end, only in a religious culture in which the afterlife was possible, that from the moment the afterlife was dead, as it were, and man fell back on his terrestrial immanence, the death penalty was no longer possible. Why? Because we can justify the death penalty only if we think that the last judgment is beyond, that what happens here below when one executes someone is not irreversible. And finally, in support of his core conclusion: The atheism of the law and of the state, or, what amounts to the same thing expressed in a different manner, the complete secularization of the law of the state, is a theory which can never coincide with the theory of penalty. The first comes from man in his condition of voluntary separa11. In the recording: “the question of knowing, the question.” 12. Albert Camus, “Réflexions sur la guillotine,” in Essais, ed. R. Quilliot and L. Faucon (Paris: Gallimard, Bibiothèque de la Pléiade, 1992); “Reflections on the Guillotine,” in Resistance, Rebellion, and Death, trans. Justin O’Brien (New York: Vintage Books, 1974). See Jacques Derrida, The Death Penalty, vol. 1, pp. 223 ff.

337

254 ‡ t en t h se s sion

tion from God, and the other comes from God when in a state of union with man. (204)

338

339

In other words, one cannot secularize the state and the law and hold on to criminal law. Criminal law can be sustained only where the state is theological or in any case supported by the belief in God or the reference to God. This is the core of the thesis of the text, which begins by reminding us — this is why I insisted on the “systemic” in Schmitt earlier — that the difference between socialism and Catholicism (for this was the opposition of the day) is not the difference between two theories, between two systems or two philosophies or two visions of the world; rather it’s the difference between an incoherence and a coherence. Socialism is not coherent. Catholicism is the only thought — he never says Christianity — Catholicism is the only great synthesis in which, he says, everything enters into “sovereign harmony” (194). “La gran síntesis católica” and sovereign harmony, “soberana armonía.” Sovereign harmony is to be found only in Catholic thought, whose interconnections are so perfect that it is impossible to dissociate one element from the other — he also speaks of “great synthesis” (194) — such that if one wanted to deny something, if one wanted to contest one point of Catholicism, a particular Catholic thesis, everything would be swept away with this negation, and if one were to deny the totality of the Catholic system, one would be denying oneself: in other words, Catholicism is irrefutable. You cannot refute one part without refuting the whole, and you cannot refute the whole without refuting yourself. Therefore one cannot possibly oppose Catholicism. This is the absolute premise of what he calls “sovereign virtue” (195) — the word “sovereign” comes up often, the sovereign virtue of la palabra catolicá, the Catholic word. It is invincible: la palabra católica invencible, and eternal. In what, then, does this sovereign systematicity, this consistency, as one says in English, this absolute consistency of Catholicism consist? Well, above all, it consists in the idea of responsibility, which will connect the systemic to the juridical, the theologico-juridical, as it were. We must respond. The idea of man, the solidarity and the unity among men, entails the idea of a shared responsibility: la idea de una responsabilidad en común, a responsibility in common, which refers to the fact that where there was sin, where we inherit sin, we have all sinned in Adam. If we don’t begin with the idea of original sin, we cannot understand anything about responsibility in general and the responsibility that brings men together. Remember too, since we were reading Schmitt, that for Schmitt there is no political theory worthy of the name, and no political theorist worthy of the name, except where there is radical pessimism. The only political theorists to have understood the meaning of

m a rch 2 8 , 2 0 01 ‡ 255

politics are pessimists, that is, people who know that man is wicked. That he is originally evil, that he is a sinner. That is why only Christian theorists, or in any case men of original sin, can understand the political on the basis of the originary wickedness of man. On the basis of sin, originary evil. We have all sinned in Adam, and we have all been redeemed through Jesus Christ. So the idea that there is a sin that we inherit and a redemption that we inherit takes the form in Cortés of a pair of concepts, concepts that are, on the one hand — and this is going to remind you of things — imputation, the imputation of guilt, and especially the concept of substitution. We have talked a lot about substitution here, in past years, with Lévinas and Massignon: namely, that I am responsible for the other, that Jesus Christ took the place of men in order to redeem them, and without this possibility of substitution in imputation and redemption, we cannot think solidarity in human responsibility. Imputation and substitution that are merely, says Cortés, the dogmas of solidarity and reversibility considered in their application. Solidarity and reversibility: it is because there is imputation that Adam’s crime, that the crime of anyone, can be imputed to me, since I take the place of the sinner, and can be redeemed, since Jesus Christ takes the place of sinning humanity — and that is equivalence itself. In virtue of the dogma of imputation, we all suffer the punishment inflicted upon Adam, and by that of substitution, our Savior suffered for us all. . . . The principle in virtue of which we have been saved in our Lord, is identical with that through which we have all been guilty and punished in Adam. [Imputation and substitution. Redemption and transmission of sin]. (196)

So how does blood enter into this story, into this prehistory? It’s because this dogma, this double dogma — imputation and substitution — and thus this dogma of original sin, of the prevarication of Adam, reveals the true nature of man. And it is because the sins of some may draw down the wrath of God upon the head of everyone that deliverance from punishment and sin may be obtained by a victim offered as a holocaust. Cortés finds signs of this general law of imputation and substitution not only in the history of the Hebrews. He claims — whence the universality of Catholicism — that there are signs of it even in non-Christian cultures, in order to explain that sin is transgenerational, that children are guilty of the sins of their parents and have to pay or be redeemed for the sins of their parents; this is found even in cultures foreign to Christinanity. For example, having picked up several signs of it here and there in the sin of Adam, and then in Noah [Cortés writes:] “Noah, inspired by God, condemned, in the person of Canaan, all his race; God blessed in Abraham, and then in Isaac, and afterward in

340

256 ‡ t en t h se s sion

341

Jacob, all the Hebrew race” (196) — all of this is taken from the Bible. But it’s the same thing for Oedipus. All of this, says Cortés, is viewed by reason as unbelievable, and yet none of this seems strange to the human race: Oedipus was guilty, and the gods poured out their fury on Thebes. Oedipus was the object of divine anger, and the merits of his expiation were likewise imputable to Thebes. Etc. Etc. Blood appears with the first human sacrifice. Cortés begins by noting that there arose among the deicidal people — that is, the Jewish people — what he calls a “turbulent outcry,” in the form of these frightful words: “May his blood be upon us, and upon our children” (197). This attests, then, to the fact that the murder of God, the blood that was shed, the blood of Christ that was shed, had to be paid for or redeemed in turn by generations of Jews. But what seems to me to be more important still — for what matters to us here — is that all of this is tied to an institution, the institution of bloody sacrifices. All of these dogmas — though they are, in a sense, original — “All of these dogmas, which were in the same day proclaimed by a people and by a God, and afterward accomplished in the person of this God, and in the successive generations of this people [etc.], these same dogmas have all been constantly proclaimed and accomplished . . . since the beginning of the world” (197). But at a certain moment they were “symbolized in an institution,” in what Cortés calls an institution, “before they were fulfilled in a person” (197). And this institution is that of bloody sacrifices. In other words, to understand this whole systematicity and this whole history, one must understand what a bloody sacrifice is and where it comes from. It is, as he says again, a universal institution, then, one that is found not only in the Bible or in Biblical peoples; there is the institution of bloody sacrifice among all peoples. In the Bible, the first indication, the first example, the first event, is Abel, the paradox of Cain and Abel, and you know how important this is for Schmitt too; the question of enemy brothers, the question of hostility in Schmitt, often refers to the story of Cain and Abel as enemy brothers. Abel is the first man who, after the catastrophe of the earthly paradise, after the original sin, offers God a bloody sacrifice. As you know, he offers God a lamb, I think — I think it was a lamb, I don’t quite recall, in any case an animal, one that was not suffering at the time from any diseases13 — because who knows what would have happened had there been a precautionary principle at the time? Imagine the tests that are called precautionary principles. Thus, these people being foolhardy, come what may, Abel offers a 13. In the recording, one hears laughter in the room. Derrida has just made an indirect allusion to mad cow disease.

m a rch 2 8 , 2 0 01 ‡ 257

lamb in sacrifice to God who — and this is the first surprising thing: I have to say, every time I tell the story of Abel and Cain I betray my stupefaction before the established fact (alleged in any case) and which in my opinion explains the entire history of animality, of the treatment of animals by man (in the end, I see that, whether I’m speaking of the death penalty or the animal, it’s the same thing, it’s the same system, and not by accident) — I am always stupefied by the fact that God should have preferred Abel’s offering, his bloody offering, to Cain’s; Cain arrives with fruit, he’s very granola [écolo] [laughter]; he arrives with the fruits of the earth, completely organic and everything [laughter], well, God isn’t the least bit interested by this, and it all began there.14 Cortés is also surprised: what seems strange, what is full of mystery, is that Abel, who sheds blood — what surprises Cortés? — is not that God accepts Abel’s bloody sacrifice, it’s that he arranges for Cain’s blood to be shed, for Cain to be punished: he who offered organic products will be punished by God who will shed his blood.

342

And what is here singular and mysterious is, that Abel, who offers blood as an expiatory sacrifice, holds its effusion in such horror that he prefers to die rather than shed the blood of him who would kill him; while Cain, who refuses to shed blood as a symbol of expiation, does not hesitate to take the life of his brother. (198)

Hence, a chiasmus. There is the good brother who offers a bloody sacrifice to God, sheds blood for God, but who refuses to shed Cain’s blood, to defend himself against Cain’s aggression, and then there’s Cain, who doesn’t like blood since he offers God vegetables, but who does not hesitate to shed the blood of his brother. Everything begins with this chiasmus. Why is it — this is Cortés’s brilliant, or in any case lucid, question, which I will cite literally, and I would like to find the Spanish for this: Why is it that, according to the manner in which it is done, the effusion of blood is here regarded either as a means of purification or as a crime? Why do all shed blood in one manner or the other? (198)

This is what matters to him, and in any case, what counts for Cortés, is that on both sides, Cain and Abel, blood must be shed. Abel by making an offering to God, Cain by killing his brother. And, thus, at the very least, both sacrifices or the same sacrifice in two phases presuppose the institution of the bloody, of sacrifice as bloody sacrifice. “Since the day of the first effusion of blood,” says Cortés, “it has never ceased to flow” (198). And thus, ev14. Syntax as such in the recording.

343

258 ‡ t en t h se s sion

erything, in virtue of this logic of imputation, that is, of the transmission of sin through generations, all men have this relation to crime, to purification through blood. “And it has never been shed in vain” (198). In other words, once it is shed, here as purification, there as crime, it makes sense. Blood makes sense [le sang a du sens]. Sacrifice makes sense. It produces sense. This means that blood is never shed in vain. It makes sense: this means that it is purifying or corrupting, purification or stain and, in both cases, the bloody sacrifice produces sense and is therefore not in vain. Hence, the origin of sense is bloody sacrifice. And it has never been shed in vain, always preserving intact either its condemnatory or its purifying virtue. All men who have lived since Abel the just, and Cain the fratricide, resemble more or less, the one or the other. Abel and Cain are the types of those two kingdoms which are governed by contrary laws, and by different masters, and which are called the kingdom of God and the kingdom of the world. These kingdoms are not distinguished from each other because blood is shed in one and not in the other, but because in the one life is offered through love, and in the other it is taken in revenge. (198)

344

But in both both cases, it’s blood. The blood of love or the blood of revenge. “In the one, life is taken by man to assuage his passion, and in the other it is offered to God as an expiatory sacrifice” (198). So the effusion of blood is necessary. The effusion of blood is necessary, and this is absolutely undeniable for Cortés, and naturally he has no trouble demonstrating that history has constantly illustrated this need for blood; all of history, which attests to this belief, presents us with but the narrative of cruel acts, of bloody conquests, again I quote: of the overthrow and destruction of famous cities, of atrocious murders committed, of pure victims offered on bloodstained altars, of brothers warring against brothers, of the rich oppressing the poor, and of fathers tyrannizing over their children, until the earth appears to us like an immense sea of blood, which neither the piercing breath of the winds can dry up [I would say “staunch {étancher}” here], nor the scorching rays of the sun can absorb. This general belief is no less clearly revealed by the bloody sacrifices offered to God upon every altar, and finally, by the legislation of all nations, whereby he who takes the life of another is always and everywhere condemned to lose his own. (199)

In other words, what attests to this need for the effusion of blood is the nature or culture of the bloody sacrifices one makes to God as well as the universal institution of law, natural law — this is where law is natural law;

m a rch 2 8 , 2 0 01 ‡ 259

the fact that the death penalty is a criminal law, according to Cortés, one that is universal and thus eternal, confirms that this instituted law, as law, is in fact natural law. In short, blood is the element of the natural resource of the institution, of the artificial. Where within the nature of man is the artificial, the institutional, the historical inscribed? Blood. In blood. It is blood that feeds the institution of nature; it is through blood that the incarnation, as it were, of law, of culture, of everything that is artifice, of technology, passes: incarnation means blood. Naturally, I don’t want to say any more about this because it would take too long; once again, the examples Cortés uses in support of his thesis come not only from the Bible but also from general anthropological culture, a culture that is often Greek, Orestes by Euripides . . . I quote:

345

In the tragedy of Orestes, Euripides makes Apollo utter these words: “Helen is not accountable for the Trojan war; her beauty was only the means which the gods made use of in order to enkindle war between two nations, and by the shedding of blood to purify the earth, which was corrupted by a multitude of crimes.” The poet, in this passage, is only the echo of the traditions of his own people, and of humanity. (199)

And here too, as we saw earlier, I am emphasizing the inscription of the artificial in the natural, of history in nature, of law in nature; again blood is what allies, as it were, the universal with the national, that by which the universal is inscribed in national writing, in the difference between cultures; it is blood, it is through blood; what the Greeks have in common with the Jews is blood. What the peoples of Oceania have in common with the Jews and the Greeks and the Christians is blood. It’s the bloody sacrifice: the expression “bloody sacrifice” is repeated every ten lines. And thus all of this, whether it is a matter of the Greeks or others, all of this, nonetheless, and this is the privilege of Catholicism, if you will, all of this is explained through original sin, through the prevarication of Adam. It is because of Adam’s sin that the story of Cain and Abel took place. And naturally, each event, each bloody sacrifice, is the commemoration and the symbol of this entire history — all of which allows Cortés to say: This is why Abel . . . instituted the only sacrifice which could then be acceptable to God, the commemorative and symbolic sacrifice. The sacrifice of Abel was so perfect that it comprised in an extraordinary manner, all the Catholic dogmas. (200)

Hence the Catholic dogmas, in the end, are not essentially evangelical: they are primarily paleo-testamentary; they go back to Genesis. Thus, Cor-

346

260 ‡ t en t h se s sion

tés will have to explain the Gospels: how can what happens with the passion of Christ be explained by original sin and from the perspective of bloody sacrifice? Well, it’s rather simple: the lamb. In the inheritance of sin and of the substitutions that follow from it, the substitution — in virtue of which he, the Messiah, whose advent was promised and who was to offer himself as a sacrifice for the whole human race — will pass precisely by way of the lamb. These victims being lambs without blemish, and the firstlings of the flock [like the sacrifice of Abel], the sacrifice of Abel typified the true sacrifice in which the most pure and most meek Lamb, the only Son of the Father, offered Himself as a holy and perfect sacrifice for the sins of the world. In this manner Catholicism, in its entirety, which explains [I’m quoting here] and includes all things, is, by a miracle of condensation, itself explained and contained in the first bloody sacrifice offered by man to God. What a surprising virtue does the Catholic religion possess, which gives it so infinite a power of expansion and condensation! How wonderful is the immense variety of those doctrines which we behold comprised in this one symbol! (200)

347

And the whole text on substitution, the true substitute, Christ, is the answer to these questions, and now, to finish with this cursory reading, I’m getting to it, precisely, the question of the death penalty as rigorous consequence of this logic15 as it were of “bloody sacrifice.” One must understand the error — the ancients made an error regarding substitution. When the ancients sought an innocent and spotless and firstborn victim, the lamb, says Cortés, and led it to the altar covered, crowned with flowers, in order to appease the wrath of God, there was, in this, one part truth and one part error. What was true was that “the divine justice required to be appeased” (201) — it was a matter of appeasing God. Why did they make a bloody sacrifice? To appease God. This they understood quite well. And that one victim can atone for the sins of all: they understood the logic of substitution. And that to effect this substitution, this redemption, the victim had to be innocent — the lamb, Jesus Christ. This they understood clearly. They were in the truth. Their only mistake was that of supposing that there could exist a man so innocent and just, as to be an efficacious offering of expiation for the sins of the people as a Redeemer. This one error, this one act of forgetfulness of a Catholic dogma, converted the world into a sea of blood, and would of 15. At this point in the recording, several words remain inaudible.

m a rch 2 8 , 2 0 01 ‡ 261

itself have been sufficient to prevent the advent of all true civilization. A ferocious and cruel barbarism is the legitimate and inevitable consequence of the forgetfulness of any Christian dogma, whatever it may be. (201)

And this error, indicated by Cortés, is an error only from a certain point of view: the blood of man cannot, as blood of man, expiate original sin, which is the sin of the species, human sin par excellence; without the blood of the Redeemer, the human species could never have extinguished the common debt that it contracted in Adam, vis-à-vis God. But what was understood was that there is no expiation without the shedding of blood. He is citing Hebrews 9:22 here: “Sine sanguinis effusione non fit remissio” (202), no remission, no forgiveness without the shedding of blood. In other words, forgiveness and redemption are linked to the blood that flows. No redemption without blood. And it is from there that he arrives at the death penalty; from this follows [découle] — this is the sentence I quoted at the beginning — from this follows not only the legitimacy, but also the necessity and fittingness of the death penalty, which naturally presupposes that the death penalty is interpreted as bloody sacrifice. This is what I wanted to say. It’s that this logic would no longer work if one contested the fact that the death penalty is, or had to be, a bloody sacrifice. Whence my initial question: what happens when one puts to death without shedding blood? Is blood in fact a metaphor, is blood always shed, even when one moves to the electric chair or lethal injection,16 or does one escape this logic from the moment that one loses the visibility of literal blood, the visible literality of blood? It is nonetheless not surprising, and this was my aim in reading Cortés with you, it is not surprising that the question of the death penalty at the end of the twentieth century and the beginning of the twenty-first is posed differently, that there should be a progressive, accelerated abolition of the death penalty on the surface of the earth. Since it is the case that in the last ten years — I will remind you again, I am repeating it for the nth time — we have moved from a majority to a minority of nationstates practicing the death penalty, justifying the death penalty. Thus, there is a movement underway, and it is easy to think that it is irreversible. Is it a coincidence that this progressive and no doubt irreversible disappearance of the death penalty goes hand in hand with the disappearance of bloody killing, with the history of blood? Is it a coincidence that just when we have eliminated the guillotine and moved to lethal injection, etc., we move in 16. [Translator’s Note]: “Lethal injection” is in English in the original.

348

262 ‡ t en t h se s sion

349

the direction of the disappearance of the death penalty? In other words, the two questions, the questions of sacrifice and of the death penalty, of bloody sacrifice and the death penalty, are very closely linked. I will simply conclude my comments on Cortés by recalling this so very powerful logic, which one finds everywhere, namely, that if we do away with the death penalty, for all of these people, from Kant to Cortés — and Kant was a republican, Aufklärer; Cortés, just the opposite — for both of them, though for different but, in the end, concurrent, convergent reasons, for all of these people, the elimination of the death penalty is the elimination of law itself. One cannot eliminate the death penalty and continue to speak of anything that would still go by the name of law. The elimination of the death penalty is the end of law, the end of the political, the end of the state. And this is what Cortés says in his own way in conclusion when, for example, he says the following, which I quote: The suppression of the [political] death penalty [he takes his examples from contemporary history, the history that is contemporaneous with him] [The suppression of the {political} death penalty] in Saxony was followed by the great and bloody battle of May, which endangered the life of the state to such a degree that it could only be saved by foreign intervention. (202, modified)

This means that by suppressing the death penalty one causes a juridical and political catastrophe; one puts the state in danger. In the end, this is what probably inspired the Conventionalists, the French revolutionaries, in deciding not to abolish the death penalty during the Revolution. To maintain it until — you remember this decree of the Convention — until the day when peace will have been fully restored. The death penalty will be abolished in the French Republic when peace is fully restored, but in the meantime, in order to protect the state, the death penalty must be maintained. The abolition of the death penalty is the end of the state. And the end of law.

350

Merely [the] proclamation [of the abolition of the death penalty for political crimes] in Frankfort [other examples, he is going to speak of Saxony now], in the name of the common country, placed the affairs of Germany in worse confusion and disorder than had existed during any other period of its turbulent history. [The end of the death penalty equals political chaos. And finally, France:] The suppression of this penalty which was decreed by the provisional government of France [so it’s 1848, the very brief episode in the revolution of 1848 when the death penalty was abolished for several months for political reasons, for political crimes], was succeeded by those frightful days of June [we talked a lot about this] which, with all their horrors, will live forever in the memories of men; and added to these, others

m a rch 2 8 , 2 0 01 ‡ 263

would have followed in rapid succession if a pure victim, and one acceptable to God, had not offered itself in atonement for the sins of that guilty government and sinful country. [Thankfully, in other words, there was a reaction, thankfully the reaction saved France from the threat posed by the abolition of the death penalty.] How far the virtue of that innocent and august blood may extend no one knows, or can know: but, humanly speaking, it may be asserted without fear of being contradicted by facts, that blood will again flow abundantly if France does not again submit to the jurisdiction of that providential law which no people may safely neglect. (202)

It’s a strange logic because it means: “if you abolish the death penalty and bloody sacrifice, there will be such disorder that blood will flow, that blood will flow all the more. In an excessive, catastrophic way.” In other words, bloody sacrifice, with all the ambiguity of a blood that is both purifying and corrupting, bloody sacrifice, a particular sacrifice, is, in its economy of sacrifice, meant to spare greater effusions of blood. If you do not want your city or your state reduced to fire and blood, well, keep the death penalty, practice a controlled form of bloody sacrifice. Otherwise there will be pools and pools of blood. In any case, everything is played out between blood and blood. It is simply an economy of bloody sacrifice, an economy of blood in sacrifice. I shall not close this chapter without making a reflection which I consider as of the highest importance. If the abolition of the penalty of death for political crimes has been productive of such disastrous consequences, how terrible would be the effect if this suppression extended to crimes of the common order! (202– 3)

In other words — we’re in 1848 — the catastrophes brought on or that could have been brought on by the abolition of the death penalty for political crimes are already clear, but if the death penalty is abolished for all crimes, you can imagine what will happen. “For it is evident to me that the suppression of the first brings with it, in a given time, the suppression of the second” (203). If you begin by suppressing the death penalty for political crimes, you will inevitably end up suppressing it for all crimes, and so, do not engage in the abolitionist process, because if you begin there, that’s how far you will go. This is a way of saying, a very powerful way of saying — these texts are very powerful in their own way — that basically one cannot delimit politics. There is a continuity between political crimes and common law crimes. Do not give in to the illusion of thinking that you will be able to circumscribe the political, the political crime, that is, abolish the death penalty for political crimes but not for others. If you abolish it for political crimes, you abolish it

351

264 ‡ t en t h se s sion

for the others, because every crime is basically political, and every crime is basically a sin. Every crime is a sin against God. And “it is capable of being demonstrated that from this double suppression proceeds the abolition of all human penalties” (203). This is the radicalization: if you eliminate the death penalty, you eliminate criminal law in general. You eliminate law altogether: if you begin by abolishing the death penalty for political crimes, you will extend it to crime in general; if you extend it to crime in general, you will extend it to all crimes, to all sins. Criminal law will collapse, and therefore law itself. 352

To suppress the extreme penalty for crimes which endanger the security of the state, that is to say, the security of all, and to enforce it for crimes committed against simple individuals, appears to me to be a monstrous inconsistency, which must sooner or later produce the logical and inevitable consequences which always attend human events. [What is striking in these texts is the desire, the logical, logician-like, systemic drive.] On the other hand, to abolish in either case, as excessive, the death penalty for capital crimes, would be equivalent in its results to the abolition of every kind of penalty for lesser offenses; for if you once admit any other than the death penalty for capital crimes, you would violate the laws of a just proportion, and then whatever punishment may be applied to the lesser class of offenses must in equity be considered as oppressive and unjust. (203)

In other words — and this is also a very powerful argument — if you rebel against the death penalty for political crimes, you will rebel against the death penalty in general; if you rebel against the death penalty in general, you will rebel against all punishment, and you will put into question the very idea of punishment, the very idea of criminal law. This is what happens, to return to Freud and Reik, with Reik’s hypothesis, which seemed a little crazy to us, and at the same time so banal, concerning an abolition to come of punishment. One day humanity will be done with punishment; what will be substituted for it? — why that para-Christian thing17 that will remain even in the most psychoanalytic psychoanalysis: confession. Punishment will be abolished; all of this will be replaced by worldwide confession. Now, before stopping — we could go on much longer — before stopping, I would like to quote a note from the Italian translation, which, I don’t know why, the French translation, a copy of which I have here, cites in a note — a note in the Italian translation, which seems interesting to me. It seems interesting to me because of the reference to parricide that we’ve 17. In the recording: “So, that thing.”

m a rch 2 8 , 2 0 01 ‡ 265

talked a lot about in past weeks. This Italian note, regarding the revolution of 1848, says this: The discussions of the legislative assemblies of the French Republic in 1848 support what the author says here [what Cortés says here]. On several occasions, the proposal was made [that is, by the French legislative assemblies in 1848] to abolish the death penalty for all crimes without exception [this proposal was not accepted], even — even — for premeditated murder and for parricide.18 [Thus they went as far as they could possibly go. One cannot go further than to consider abolishing the death penalty even for parricide, and we’ve seen the role that parricide plays in this entire problematic.]

There, I could go on much longer. I invite you to read this text; I’ll stop here, as promised, so that we can have at least the beginning of a final discussion. Let me remind those of you who weren’t here at the beginning that this is the last session of the year; I don’t know what we will talk about next year, probably different and related things; I am open to all suggestions. And so, now you have the floor.19

18. Cortés, Essai sur le catholicisme, p. 359. 19. In accordance with the editorial decision that was taken for all of the Seminars of Jacques Derrida, the discussion that followed has not been transcribed.

353

index of names

Abraham, Karl, 113 Abu-Jamal, Mumia, 47 Adler, Alfred, 236 Adorno, Theodor Wisengrund, 207 Agamemnon, 53 Aquinas, Saint Thomas, 76, 216n7, 246 Aristotle, 5, 225 Ashcroft, John, 72– 73 Augustine, Saint, 224, 236 Badinter, Robert, 14– 15, 21– 24, 57, 61, 75– 76 Balzac, Honoré de, 77– 78, 208– 9 Bataille, Georges, 182 Baudelaire, Charles, 94, 138 Beccaria, Cesare Bonesana, 2, 21– 24, 37, 40, 42, 51– 52, 74, 99– 100, 150, 163, 184, 194 Bedau, Hugo Adam, 74 Benedict, Ruth, 223– 27 Benjamin, Walter, 34– 36, 43– 48, 51– 52, 68, 87– 88, 107, 136, 190 Benveniste, Émile, 25– 28, 31– 32, 40, 44– 45, 53– 55, 161– 62 Blanchot, Maurice, 3 Bojanic´, Petar, 140, 243, 245 Bonald, Louis Gabriel Ambroise, 119, 250– 51 Bontems, Roger, 14 Bossuet, Jacques-Bénigne, 119 Botul, Jean-Baptiste, 108

Bouterwek, Friedrich, 108 Bové, José, 133 Bruno T., 62 Buffet, Claude, 14 Caesar, Julius, 121, 181 Camus, Albert, 2, 45, 61, 216, 253 Ceaucescu, Nicolae, 191 Charles I, 189– 90 Chateaubriand, François-René, 78 Chevènement, Jean-Pierre, 133 Chirac, Jacques, 62, 88 Chouraqui, André, 103, 141 Chromaticus, 59 Cicero, 102, 121, 147 Cixous, Hélène, 79 Clinton, William Jefferson, 1, 43n13, 88 Condorcet, Marie Jean Antoine Nicolas de Caritat, 195 Cortés, Juan Donoso, 119, 240, 243, 245– 53, 255– 62, 265 Desenheimer, Emile, 105, 112 Dhorme, Édouard, 141 Dostoyevsky, Fyodor, 247 Etchegaray, Roger Marie Élie, 75 Euripides, 259 Falstaff, 70 Ferenczi, Sándor, 233– 34

268 ‡ in de x of na m e s Feuerbach, Ludwig, 173 Fichte, Johann Gottlieb, 119 Flaubert, Gustave, 61 Fliess, Wilhelm, 71 Foucault, Michel, 45, 220 Freud, Sigmund, 3, 8– 9, 11– 12, 18, 38, 69– 72, 77, 79– 80, 84, 105– 6, 109– 10, 112– 26, 128– 29, 131– 32, 138, 159– 60, 170, 172– 73, 175, 178– 79, 181– 82, 184– 85, 188, 193, 204, 207, 213, 221– 22, 228– 41, 245, 264 Gandillac, Maurice de, 34, 163 Genet, Jean, 2, 27, 34, 68, 136, 223 Giscard d’Estaing, Valéry, 14, 21, 58, 61– 63 Guillotin, Joseph Ignace, 16 Habermas, Jürgen, 251 Hallaj, Mansur al-, 1, 248 Hebbel, Friedrich, 228 Hegel, Georg Wilhelm Friedrich, 1, 105, 131, 162– 65, 184, 215, 235, 238 Heidegger, Martin, 59, 81, 96, 144– 59, 184– 85, 191, 201, 210, 213, 241– 42, 248, 251 Helen of Troy, 53, 259 Hilse, Benno, 176 Hobbes, Thomas, 119 Hölderlin, Friedrich, 156– 58 Hugo, Victor, 2, 45, 61, 73, 214, 216n7, 246 Jerome, Saint, 59 Jesus, 1, 105, 207, 216– 17, 231, 248, 255, 260 Joan of Arc, 1, 248 Joseph K., 65– 66 Joseph of Arimathea, 231 Kafka, Franz, 64– 66, 69, 71, 84– 85 Kant, Immanuel, 2– 3, 11, 21, 23, 25, 27, 34, 36– 44, 46– 47, 51– 52, 60, 66, 68– 69,

73– 74, 84– 102, 104, 106, 108– 9, 112, 118, 128– 32, 134– 35, 138– 39, 151, 155, 158– 60, 164– 69, 174, 178– 81, 183– 98, 200– 207, 209– 10, 224, 227– 28, 238, 241, 245, 262 Kennedy, John Fitzgerald, 191 Kierkegaard, Søren Aabye, 151 Kunio, Yanagida, 227 Lacan, Jacques, 3, 128 Lecanuet, Jean, 62 Leibniz, Gottfried Wilhelm, 145, 149 Lévinas, Emmanuel, 103– 4, 255 Lincoln, Abraham, 65, 191 Littré, Maximilien Paul Émile, 162 Louis XVI, 189– 90, 194, 201 Machiavelli, Niccolò, 104, 119 Maistre, Joseph de, 119, 250– 52 Mandela, Nelson, 105 Mann, Thomas, 105, 112 Marx, Karl, 18, 94, 247 Massignon, Louis, 240 Matthew, Saint, 105, 173 Maupassant, Guy de, 61 Menelaus, 53 Méré, Antoine Gombaud, Chevalier de, 59 Miloš evic´, Slobodan, 88 Mitterrand, François, 14, 21– 22, 58, 61 Montaigne, Michel de, 59, 68 Morsink, Johannes, 74 Moses, 103, 176– 77 Müller, Adam, 251 Napoleon Bonaparte, 19 Newman, John Henry, 251 Nietzsche, Friedrich, 3, 18, 91, 94, 104, 128, 173, 175 Nixon, Richard Milhous, 88 Novalis (Georg Philipp Friedrich von Hardenberg), 251 Nozick, Robert, 74

in de x of na m e s ‡ 269 O’Connor, Sandra Day, 11 Oedipus (complex), 123, 156, 182, 240, 256 Pascal, Blaise, 59 Penry, Johnny Paul, 10– 11 Pinochet, Augusto, 88 Plato, 233 Pompidou, Georges, 14, 21, 57 Poniatowski, Michel, 61 Priapus, 236 Rank, Otto, 133 Ravaillac, François, 133 Reik, Theodor, 8, 12, 38, 80, 84, 105– 6, 108, 112– 13, 115– 16, 118– 32, 138, 159– 60, 169– 85, 188, 193, 204– 9, 227, 239, 264 Robespierre, Maximilien Marie Isidore de, 186– 87, 193– 94, 196, 200– 201, 204– 9 Rossman, Karl, 65 Rousseau, Jean-Jacques, 20, 23, 51, 77– 78, 150, 179, 224 Rushdie, Salman, 197 Sade, Donatien Alphonse François, Comte de, 3, 128 Sallust, 24 Sarat, Austin, 10

Sartre, Jean-Paul, 217 Schenker, Adrien, 140 Schmitt, Carl, 2, 19, 35, 52, 56, 64, 88, 105, 107n21, 119– 21, 243, 246– 52, 254, 256 Shakespeare, William, 69– 71 Shylock, 70, 148, 175 Simmel, Ernst, 113 Simpson, O. J., 143 Socrates, 1, 248 Sophocles, 156 Staël, Madame de (Anne-Louise Germaine Necker), 208 Stahl, Friedrich Julius, 247 Stein, Lorenz von, 247 Tacitus, 24 Thomas, Saint, 76, 216n7, 246 Tolstoy, Leo, 247 Tutu, Desmond, 1 Ukai, Satoshi, 223 Veil, Simone, 14 Voltaire (Francois Marie Arouet), 61 Weber, Samuel, 78 Zeus, 233