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Ex Lex

Geoffrey Bennington

It can seem surprising that Derrida should have devoted twowhole years of his seminar to discussion of the death penalty.In the long sequence begun in 1991 under the general titleQuestions of Responsibility, he moves through discussion of thesecret (19912), testimony (19925), hospitality (19957), perjury

and pardon (19979), arriving at the death penalty in 1999, andgoing on in what were to be the last two years of seminars beforehis death (20013) to the Beast and Sovereign sessions, which havenow been available for some time.1 Although one might be forgivenfor thinking that the death penalty was hardly a burning issue inEurope in 1999 (it having been abolished in France in 1981 andin Italy as early as 1948, for example), Derrida pursues its historyand more especially its philosophy particularly in European texts,while constantly referring to the case of the United States, where thedeath penalty was then (and is of course now) still practised. But ifone reads the summaries of his teaching that Derrida provided eachyear for the Ecole des Hautes Etudes en Sciences Sociales in Paris,where his seminar was held, it seems clear that the philosophicalquestion of the death penalty does not appear in the Questions ofResponsibility sequence by accident, and indeed that it provides alogical transition between the immediately preceding reflection onpardon or forgiveness (in which Derridas guiding thread is that onecan forgive only the unforgivable, only pardon the unpardonable)and the immediately following more direct focus on the figure of thesovereign (the sovereign being in part defined as he who can imposethe death penalty, and also he who can also exercise a power of grace

The Oxford Literary Review35.2 (2013): 143163DOI: 10.3366/olr.2013.0067 Edinburgh University Presswww.euppublishing.com/olr

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144 Oxford Literary Review

or pardon in death penalty cases). There is a further challenge inthe case of the death penalty, which Derrida formulates most clearlyin contemporaneous discussions with Elisabeth Roudinesco in ForWhat Tomorrow . . .where he claims that no philosopher, as such, hasever offered a philosophical argument against the death penalty.2 Thisstartling claim gives some urgency to the seminars, as Derrida findsall kinds of problems in the types of arguments that are habituallybrought forth to contest the death penalty, and confronts what hethinks of as the most rigorous philosophical argument in favourof thedeath penalty (i.e. Kants argument in theMetaphysics of Morals), andattempts to outline what a philosophical response to Kants argumentsmight be. Derrida is certainly in favour of the abolition of the deathpenalty, but is concerned that most abolitionist discourses (whetherthey invoke issues of efficiency, deterrence, cruelty or inhumanity),however effective they may be in practice, fail to rise to the height of theKantian argument, and are often in fact complicit in their assumptionswith discourses that defend the death penalty. In the attempt to clarifywhat a properly philosophical abolitionist argument would need tolook like, Derrida puts a good deal of deconstructive pressure on thephilosophical justifications for penal law in general, and indeed of

the concept of law as such. In what follows, I try to show that thegeneral schemes of argument that Derrida deploys in these seminarsare consistent with his earlier thinking, and notably his thinking aboutthe transcendental in general.

***

In the discussion included inFor What Tomorrow, Derrida points to anexceptionalposition of the death penalty, initially in the thought of the

reactionary Spanish nineteenth-century Catholic philosopher DonosoCorts (much admired by Carl Schmitt), but then also in ImmanuelKant, and in passing he confirms that this special position will bethe focus for any true philosophical discussion of the death penalty.Derrida refers to a universal abolition of the death penalty, in which[Donoso Corts] sees, like Kant in fact (and this is the real site of thephilosophical discussion) the very elimination of all criminal law. Andgoes on:

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Geoffrey Bennington 145

[On this view] there would be no longer any law, and above allno longer any criminal law, without the mechanism of the deathpenalty, which is thus its condition of possibility, itstranscendentalif

you like (at once internal, included: the death penalty is an element ofcriminal law, one punishment among others, a bit more severe to besure, andexternal, excluded: a foundation, a condition of possibility,an origin, an example outside the series, hyperbolic, something moreand other than a penalty).3

This transcendental position of the death penalty places it at thecenter or perhaps at the summit of criminal law, makes of it insome sense exemplary of punishment in general, but also tends tolift it above all other punishments, to remove it from the series ofpunishments of which it is after all only one, to exclude it in some sensefrom the realm of that of which it is nonetheless the transcendentalcondition of possibility. Criminal law on this view finds its truth,its rationale or its exemplary instance in the death penalty, but thatpenalty, just because of this special or exceptional status, tends to depart

from the sphere of the law, to become separate from it, to becomesomething outside the law, a law outside the law, an outlaw law, a

lex that is ex lex. This paradoxical status of the transcendental is, ingeneral, a crux of Derridas thinking from early to late, and (in myunderstanding at least) can take on two apparently quite differentvalences. One of these, which Derrida sometimes calls transcendentalcontraband, involves illegitimately smuggling a transcendental terminto a discourse that claims to be reducing the transcendental in general(and thereby reducing philosophy as such) to a variety of positiveconditions I believe that this is exemplarily the case with historicismsof all sorts, which surreptitiously rely on a transcendental concept of

history while claiming to historicise, and thus reduce, all transcendentalconcepts. Transcendental contraband in this sense always involvessome degree of failure or refusal to think the condition of possibility ofthe discourse in question, someavoidanceof that question at any rate,and I believe it provides the key to Derridas reading of the humansciences more generally, especially in his work of the 60s and 70s.This identification of a conceptual weakness or failure in discourses thatexploit this structure of transcendental contraband justifies the thought

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that deconstruction is still somewhatphilosophical in its manner andambitions, and that it insists on at leastentertainingthe transcendentalquestion.

The othervalence of this strange position of the transcendental,which Derrida sometimes (though probably not as often as some of hiscommentators, including Rodolphe Gasch and me) calls the quasi-transcendental (he uses the term both in Of What Tomorrowand inthe seminars), exploits the ambiguity of the transcendental positionitself to complicate the status of the term or concept thus placed ina special or exceptional position (here the death penalty), and in sodoing questions the coherence of the whole conceptual set-up. Thedifference between transcendental contraband on the one hand and thequasi-transcendental on the other must itself, however, and on gooddeconstructive grounds, be thought of in terms of differance ratherthan opposition, as in fact itselfan effect of the quasi-transcendental,and the space this opens up is the space of deconstruction as neverjust or not simply theoretical philosophy. This status as not simplyphilosophy opens deconstruction onto other fields, notably the fieldsof the literary and the ethico-political. By identifying the death penaltyas having just this kind of complicated transcendental status, then,

Derrida suggests, at least implicitly, that we can predict it will, givenan appropriate effort of reading, allow for a deconstruction of theconceptual scaffolding of criminal law in general. And this in turnwill mean on the one hand that Derridas arguments against thedeath penalty, however philosophical he wants them to be, cannotbe conducted simply within the terms of the philosophical discourseopened up by that same transcendental position, and on the other thatit will also inevitably call into question more than the death penaltyitself. This is why his seminars on the death penalty might always seem

to be only ambiguously supportive of the abolitionist cause as it iscurrently configured in the US, and why we might want to suggest thathis deconstruction of the whole scaffold and scaffolding (DP I, 23) ofthe death penalty should also have some impact on other aspects of theUS law (saliently perhaps on the logic of incarceration and correction,but also on thinking about the supposed right to bear arms as embodiedin the Second Amendment to the constitution, especially as currentlyunderstood by the Supreme Court and the Congress).

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It is no accident that Derrida should invoke Kant in the passagefrom For What Tomorrowfrom which I began, or that Kant shouldappear whenever these general questions of the transcendental show up

in Derrida (which is just about everywhere). In the seminars, as I havediscussed elsewhere,4 Derrida repeatedly suggests that Kant providesthe most rigorous philosophical defense of the death penalty, andthat any attempt to produce a properly philosophical argument for itsabolition (which Derrida famously suggests has never been done by anyphilosopher quaphilosopher) will have to confront that defense andthat rigor. Derridas seminars suggest that he, Derrida, isable to comeup with something like that counter-argument, and I will mention hissuggestions in that regard in due course, though I shall suggest that,because of the logic I have tried to lay out, they cannot ever besimplyor properly philosophical.

First, however, I want to put a little more pressure on a reflexivemotif in Kants thinking in this respect. Kants defense of the deathpenalty rests on a rigorously formal reading of the so-called talionicprinciple: here he is stating it in the Metaphysics of Morals, and thenextrapolating from it to the justification of the death-penalty morespecifically:

But what kind and what amount of punishment is it that publicjustice makes its principle and measure? None other than theprinciple of equality (in the position of the needle on the scaleof justice), to incline no more to one side than to the other.Accordingly, whatever undeserved evil you inflict upon anotherwithin the people, that you inflict upon yourself. If you insult him,you insult yourself; if you steal from him, you steal from yourself; ifyou strike him, you strike yourself; if you kill him, you kill yourself.

But only the law of retribution [das Wiedervergeltungsrecht] (iustalionis) it being understood, of course, that this is applied bya court (not by your private judgment) can specify definitivelythe quality and the quantity of punishment; all other principlesare fluctuating and unsuited for a sentence of pure and strict[strict here translates the adjective streng, which could also betranslated as rigorous] justice because extraneous considerationsare mixed into them [alle andere sind hin und her schwankend

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und knnen anderer sich einmischenden Rcksichten wegen keineAngemessenheit mit dem Spruch der reinen und strengen Gerechtigkeitenthalten].5

And, just a little later:

But what does it mean to say, If you steal from someone, yousteal from yourself? Whoever steals makes the property of everyoneelse insecure and therefore deprives himself (by the principle ofretribution) of security in any possible property. He has nothing andcan also acquire nothing; but he still wants to live, and this is nowpossible only if others provide for him. But since the state will notprovide for him free of charge, he must let it have his powers for anykind of work it pleases (in convict or prison labor) and is reduced tothe status of a slave for a certain time, or permanently if the state seesfit. If, however, he has committed murder he mustdie. Here thereis no substitute that will satisfy justice [Hat er aber gemordet, so mu ersterben. Es giebt hier kein Surrogat zur Befriedigung der Gerechtigkeit].There is nosimilaritybetween life, however wretched it may be, anddeath, hence no likeness between the crime and the retribution unless

death is judicially carried out upon the wrongdoer. (MM, 106)Just because there is no substitute or surrogate in this case, it wouldseem that this is where the principle of the ius talionisis most purelyembodied. And after a curious and awkward excursus designed toshow that the death penalty imposed in cases other than murder stillin fact obeys the principle of the ius talionis, Kant adds: Moreover,one has never heard of anyone who was sentenced to death formurder complaining that he was dealt with too severely and therefore

wronged; everyone would laugh in his face if he said this, and goeson Accordingly, every murderer (...) must suffer death; this is whatjustice, as the idea of judicial authority, wills in accordance withuniversal laws that are groundeda priori (MM, 107).

According to this logic, the death penalty, at least when imposedfor murder, comes to have a special place in criminal law (or at leastin philosophical thinking about criminal law) not immediately as anexemplary instance or prerogative of sovereign power (as it does inother authors in the tradition), but because it is the one and only

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place where the punishment really does fit the crime. Given the strongreflexive principle as Kant states it, it is clear that the example ofstealing doesnotin fact provide a rigorous equivalence between crime

and penalty, but some kind of calculated or mediated equivalence thatmight certainly be suspected of a degree of arbitrariness: in the caseof the death penalty for murder, on the other hand, the equivalenceappears to be direct and, so one might think (so Kant appears tothink), more rationally satisfying. Just because there is no similarityor likeness between life and death (and so no possible equivalencebetween crime and punishment if that punishment still involve life),the onlyequivalence to one putting to death is another putting to death.In this case there is an apparently perfect instantiation of the talionicprinciple, and so Kants entire thinking about penal law comes underthe sway of this perfect example.6

The clarity of the argument in this salient case, that of the deathpenalty, at least when imposed for murder, also seems to be in playin Hegels discussion in the Philosophy of Right. Derrida mentionsHegels thinking in this regard only a couple of times in the seminars:once in the context of Theodor Reiks ironic but completely unargueddismissal of Hegels understanding of criminal law (Reik thinks that it

is enough just to quote Hegelian formulas such as that punishment isthe negation of the negation7 to get rid of them by immediate ridicule),and once in a late session where Derrida announces proleptically thathe will later return to a more detailed discussion of Hegels critiqueof Beccarias abolitionism and his more general account of the logicof punishment in 100 and 101 of the Philosophy of Right. As Imentioned in a passing reference to this brief discussion in an earlieressay on the place of Kant in Derridas thinking about the deathpenalty,8 Hegels position can look really quite close to Kants (the

one Derrida systematically describes as the most rigorous), so it is notwithout interest that Derrida alludes to a subtle but perhaps decisivefrontier between them in this regard, even though he, Derrida, appearsnever to return to this question as he suggests he will. Here is whatDerrida says:

A little later we will look at Hegels philosophy of right, hiscomplicated critique of Beccaria (100) and his interpretation oftalionic law (Wiedervergeltung der Strafe); he wants to show (101)

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that, though it is easy to represent (darzustellen) the absurdity(Absurditt) of talionic law as when one says theft for theft, eyefor eye, tooth for tooth (images that represent the criminal as one-

eyed and toothless) on the other hand, if we think value as theinner equivalence of things (das innere Gleiche von Sachen), if wego to the essence of what the criminal deserves (das Wesentliche,was der Verbrecher verdient hat) and not to the external form, notto the image of the punishment, then we must think equality,equivalence (and thus talionic law) in conformity with the conceptand with reason. We will no doubt have the opportunity to situateboth the continuity and the discontinuity between Kant and Hegelon the death penalty and the talion. Both are its advocates, butthe Hegelian distinctionbetween, 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 boundarybetween the two, Kant and Hegel, as does their evaluation of therelation between penal law and the state. We would also have to takeinto account the Hegelian discourse on sovereignty (279) and onthe right to pardon (Begnadigungsrecht282 sq.) that follows from

it. (DP II, Session 18)I want to pursue a little this Hegelian analysis, which we mightbe tempted to think is in fact even more rigorous than that ofKant, Derridas constant reference point for rigor. Hegels generalunderstanding of punishment is indeed still based on the talionicprinciple, even if he thinks he is purifying that principle beyondwhat happens in Kant. Kants version of the talionic principle, aswe just saw, has a reflexive quality such that if I commit a crime, I

supposedly commit it in a certain sense against myself. It follows thatin an important sense I am the agent of my own punishment, andjust this confirms my status as a rational being: according to anothermotif that is repeatedly brought out in the seminars, I rise above mymerely phenomenal or animal life by rationally consenting, in principleif not in fact, to my punishment, even and indeed especially if thatpunishment is my death. For Kant, the death penalty to which Iimplicitly consent if I commit murder thus confirms my rationality(and this is why it must not be carried out in a way that would demean

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my status in this regard, must not be cruel and unusual as Kant allbut says in the Metaphysics of Morals). Hegel does not disagree withthis, and also locates that consent to punishment as it were right in or

on the crime itself, as part of the logic of crime itself, saying for examplethat insofar as the punishment (. . . ) is seen as embodyingthe criminalsown right,the criminal ishonouredas a rational being (100).9 Perhapsthis is what Derrida has in mind when he describes Hegels critique ofBeccaria as complicated, because it means that Hegel (1) agrees withBeccaria that in general the people should give their consent to beingpunished (Addition to 100); but (2) disagrees with Beccaria that suchagreement cannot reasonably be secured in the case of the death penalty(the contractarian aspect of Beccarias argument resting on the thoughtthat it is unreasonable for a party to a contract to agree to his ownexecution as part of that contract10); for Hegel, Beccarias requirementthat people should give their consent to being punished is right enough,but the criminal gives his consent already by his very act. The natureof the crime, no less than the criminals own will, requires that theinjury initiated by the criminal should be annulled; yet (3) concedesthat Beccarias abolitionism has had positive results:

However that may be, Beccarias endeavour to have capitalpunishment abolished has had beneficial effects. Even if neitherJoseph II nor the French ever succeeded in entirely abolishing it, stillwe have begun to see which crimes deserve the death penalty andwhich do not. Capital punishment has in consequence become rarer,as in fact should be the case with this most extreme punishment.(Addition to 100)

Hegel nevertheless is absolutely committed to the principle of the

death penalty, if not to its widespread use. For Kant, the paradigmaticcase of punishment is the death penalty inflicted for murder. Hegelsdisagreement with Kant, insofar as he has one, seems to come not in hisunderstanding of that paradigmatic case, but in his understanding ofhow the talionic principle applies to othercases, where, as we noted,strict equivalence is hard to find: in Kants example of theft beingpunished by imprisonment and forced labor, for example, there is (asthere so often is in Kants discussion of actual cases) a palpable senseof casuistry. In such cases, some mediating equivalence has to be found

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for the talionic principle to function. Hegel thinks he has a way ofexplaining how this happens, allowing us to see why there might alwaysbe something unsatisfactory in actual punishments, and yet why the

principle functions nevertheless: crime and punishment are equivalentin what Hegel calls their value, which is explained a little more fullyin the Remark to 101:

the determinate character given by the concept to punishment is justthat necessary connection between crime and punishment alreadymentioned: crime, as the will which is null in itself,eo ipsocontainsits negation in itself and this negation is manifested as punishment.It is this inner identity whose reflection in external existence appearsto the understanding as equality.

It would be a mistake, however, to see this equality of value as aclaim to empirical or psychological equality. Seeing itthatway (Hegelsimplication is that Kant has not sufficiently clarified this matter) meanswe can always make fun of the talionic principle, but at the wrong level,as it were:

It is easy enough from this point of view to exhibit the retributivecharacter of punishment as an absurdity (theft for theft, robberyfor robbery, an eye for an eye, a tooth for a tooth and then youcan go on to suppose that the criminal has only one eye or noteeth). But the concept has nothing to do with this absurdity, forwhich indeed the introduction of this specific equality is solely toblame. Value, as the inner equality of things which in their outwardexistence are specifically different from one another in every way, isa category which has appeared already in connection with contracts

(see 77), and also in connection with injuries that are the subjectof civil suits (see Remark to 98); and by means of it our idea ofa thing is raised above its immediate character to its universality.In crime, whose basic determination is the infinite aspect of thedeed, the purely external specific character disappears all the moreobviously, and equality remains the basic rule determining what thecriminal essentially deserves, though not the specific external formthat it should take. It is only in respect of that form that there is aplain inequality between theft and robbery on the one hand, and

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fines, imprisonment, etc., on the other. In respect of their value,however, i.e. in respect of their universal property of being injuries,they are comparable. Thus, as was said above, it is a matter for the

understanding to look for something approximately equal to theirvalue in this sense. If the intrinsic interconnection of crime and itsnegation, and if also the thought of value and the comparability ofcrime and punishment in respect of their value are not apprehended,then it may become possible to see in a punishment proper only anarbitrary connection of an evil with an unlawful action. (101)

So the difference between Kant and Hegel here appears to come downto Hegels sharper use of what is still a Kantian distinction betweena realm of the understanding (for which actual equivalences betweencrime and punishment in most cases do indeed need continuallyto be sought, even though they will always remain provisional andapproximate in fact), and that of reason (where in principle theequivalence is rationally secured by the concept of value). So Hegelcan be taken to be in a sense more rigorous than the rigorous Kantin this respect, and to avoid to some extent Kants casuistry. In bothKant and Hegel, however, the case of the death penalty (at least as

punishing murder) appears to enjoy special status. Hegels generalunderstanding of the talionic principle differs from Kants in that themediating concept of value is supposed to account for the difficultyin finding actual equivalents with which to punish many crimes. Butthe death penalty (for murder) itself in principle escapes this need toappeal to a mediating value: Hegel says, although requital [Vergeltung:the root of the word Wiedervergeltungsrecht, law of retribution or lextalionisas we saw Kant gloss it] cannot simply be made specificallyequal to the crime, the case is otherwise with murder, which is of

necessity liable to the death penalty; the reason is that since life isthe full compass of [a human beings] existence, the punishment herecannot simply consist in a value, for none is great enough, but canconsist only in taking away a second life (Remark to 101). Becauselife (at least human life) is beyond value (this being the basis for itsimmeasurable dignity, its Wrde), it in a sense escapes comparisonor equivalence. But this incomparability of (human) life then, rathercuriously, motivates in both Kant and Hegel a kind of short-circuitingof any calculus of punishment whatsoever, so that the beyond value

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of human life seems to collapse into some kind of direct or unmediatedequivalence or identity which is, then,boththe purest embodiment ofthelex talionis(and thus themost rationaland eventhe most spiritualexample imaginable) and a situation where the lex talionisdoes noteven get started, as it were, because the equivalence between crime andpunishment is supposedly immediate (and therefore in a sense not evenan equivalence). This curious status could then be used to motivate themore Nietzschean position Derrida takes in the seminars, wherebythe salience of the death penalty example would lie precisely in itsnotbeing able to be entered into any such calculus of equivalence,where the supposed immediacy or unmediated nature of the talioniclaw in the case of the death penalty for murder opens the thoughtthat there is no possible equivalence to be found here: as Derrida saysin an improvised remark reported in Session 10 of the first year ofthe seminars, it is a matter of an excessiveness [dmesure], a penaltywithout proportion, without commensurability, without any possiblerelation that is proportional to the crime. [...] The death penaltydares to claim to measure the beyond-measure [dmesur] in some way(DP I, 248, n11). Although I do not think that Derrida ever quitepresents the matter this way in his seminars, this strange status of the

death penalty (for murder) seems then to confirm Derridas diagnosisof its quasi-transcendental status, and the paradoxical consequencesthat seem to ensue (such that the death penalty is simultaneously themostandthe least spiritual punishment, both savage in its immediacyand pure in what Hegel calls its specific equality with the crime, boththe originary blind spot and the quasi-teleological vanishing point ofthe talionic principle) these paradoxical consequences would alsoencourage the thought that it is, as it were, ripe for deconstructiveanalysis. And this would also explain why the talionic principle lends

itself to both a primitivist reading as a mark of barbarism (eschewedby Christianity at least according to Matthew 5:38), and a rigorousformal reading as in Kants canonical formulations.

On this view, then, the specificity of the death penalty (for murder)has, as I suggested, less to do with any particular prerogative of thesovereign, and more to do with this peculiarly satisfying but curiouslyparadoxical embodiment of the talionic principle. That specificity hasto do with the way it concentrates a paradoxical property of thequestion as pointed out by Derrida in the very first session of the

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seminar, in the context of the ten commandments, where the relationbetween the Thou shalt not kill commandment and the or elseyoull be put to death follow-up already concentrates our problems

here. The way in which the question of the death penalty nonethelessdoesclearly converge with the question of sovereignty is in its specialand ambiguous transcendental status, its exceptional standing: not theexception that supposedly proves the rule so much as the exceptionthat founds or institutes the rule, the founding exception wherebythe law is, at the origin, as Joyce says and as Derrida is fond ofrecalling, written in the language of the outlaw. Ex lex. And wemight want to speculate that the figure of the sovereign is producedor fantasised as a kind of magical solution to what I think is theundialectisable contradiction between the supposedly rational and theunavoidably barbaric aspects of the death penalty in this logic, a kind ofcontradiction that also bespeaks a curious kind of barbarism intrinsicto rationalism itself, to the very rigor of its rigor.

The rational satisfaction apparently to be had from the supposedlydirect and unmediated equivalence of crime and punishment in thecase of the death penalty exacted as punishment for murder implicitlyleads us to think about cases where the death penalty is not the

punishment for that particular crime. Hegel concedes somethingto Beccarias abolitionism in recognising that it led to a welcomereduction in the use of the death penalty to punish crimes otherthan murder. I do not know if Hegel thought that the death penaltyshould only and always be applied in the case of murder. Kantclearly did not. Not only does he concede that there are cases ofvoluntary homicide that should not be punished in this way (thecases of maternal infanticide and of death inflicted in a duel betweenmilitary officers, cases that lead Derrida to reflect on the stupid

uselessness and rigorous absurdity of Kants arguments the first timehe entertains them at any length in these seminars) not only that,but he believes the death penalty is indeed appropriate in cases notliterally involving murder, i.e. cases oftreason. Kant in fact uses a caseof treason to illustrate with the slightly, if blackly, hilarious casuistrythat characterises some of his doctrinal statements about ethical andpolitical matters the way in which, in spite of some appearances,the death penalty still embodies the talionic principle even when notapplied to cases of murder.11 The way in which the talionic principle

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can go both ways, as it were, simultaneously towards the heights ofreason, honor and dignity on the one hand,12andtowards the depthsof barbarity on the other, is further evident in Kant when he discusses

possible cases of conspiracy involving many accomplices. Here too thesolidarity between transcendental purity and blatant casuistry is quitestriking:

And so here too, when sentence is pronounced on a number ofcriminals united in a plot, the best equalizer before public justice isdeath. (...) Accordingly, every murderer anyone who commitsmurder, orders it, or is an accomplice in it must suffer death; thisis what justice, as the Idea of judicial authority, wills in accordancewith universal laws that are grounded a priori. If, however, thenumber of accomplices (correi) to such a deed is so great that thestate, in order to have no such criminals in it, could soon find itselfwithout subjects; and if the state still does not want to dissolve, thatis, to pass over into the state of nature, which is far worse becausethere is no external justice at all in it (and if it especially does not wantto dull the peoples feeling by the spectacle of a slaughterhouse), thenthe sovereign must also have it in his power, in this case of necessity

(casus necessitatis), to assume the role of judge (to represent him) andpronounce a judgment that decrees for the criminals a sentence otherthan capital punishment, such as deportation, which still preservesthe population. This cannot be done in accordance with public law,but it can be done by an executive decree, that is, by an act of theright of majesty which, as clemency, can always be exercised only inindividual cases. (MM, 1078)

On this reading, then, it would not be excessive to claim that the

death penalty, as exemplary of the purely formal, rational and reflexivelogic of thelex talionisand yet as simultaneously quite the other thingtoo, itself generates the figure of the sovereign as a non-rational andnon-dialectical answer to a certain impasse of rationalism itself. It is,I believe, no accident that Kant here recognises the claim of a case ofnecessity, whereas, as I have discussed at length elsewhere, he opensthe entireDoctrine of Rightpart of theMetaphysics of Moralsby arguingthat the supposed law of necessity must be the object of a preliminaryexclusion from the field of right. The highly paradoxical and even

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aporetical quality of the death penalty in this argument seems to gomuch deeper than could ever be handled by the Kantian rider that itmust be carried out without any mistreatment that could make the

humanity in the person suffering it into something abominable (MM,106). On our reading, something abominable is lurking in the rationalprinciple from the start and this something abominable will go on toaffect or infect Kants political and ethical thinking more generally.13

The question of the death penalty as punishment for treason issomething Derrida discusses much later, almost at the end of thesecond year of the death penalty seminars, where he compares andcontrasts Kant and Robespierre. Here is how Kant puts it somewhatearlier in theMetaphysics of Moralsthan the discussion of criminal law

per se:

There is, therefore, no right to sedition(seditio), still less torebellion(rebellio),and least of all is there a right against the head of a state asan individual person (the monarch),to attack his person or even hislife(monarchomachismus sub specie tyrannicidii)on the pretext that hehas abused his authority(tyrannis). Any attempt whatsoever at thisishigh treason (proditio eminens),and whoever commits such treason

must be punished by nothing less than death for attemptingto destroyhis fatherland (parricida). The reason a people has a duty to putup with even what is held to be an unbearable abuse of supremeauthority is that its resistance to the highest legislation can never beregarded as other than contrary to law, and indeed as abolishing theentire legal constitution. (MM, 967)

This, a well-known moment in Kants political thinking, leads in a

famous footnote to the suggestion that the claim of revolutionaries inEngland and France to havelegallyexecuted the sovereign

must be regarded as a complete overturning of the principles of therelation between a sovereign and his people (in which the people,which owes its existence only to the sovereigns legislation, makesitself his master), so that violence is elevated above the most sacredrights brazenly and in accordance with principle. Like a chasm thatirretrievably swallows everything, the execution of a monarch seems

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to be a crime from which the people cannot be absolved, for it is asif the state commits suicide. (MM, 978n)

In other words, Kant is an unconditional partisan of the death penalty,exceptwhen an attempt is made to apply it to the sovereign, whichresults in a kind of short-circuit of reason itself, a kind of cannotcompute that leads to self-destruction and the abyss. This threat toreason itself is so serious that it motivates Kants demand that thedeath penalty be applied to any attempt whatsoever at attacking thesovereign, which he attempts rather desperately to assimilate to thecase of murder (or at least attempted murder) by identifying it as aparricide, this assimilation perhaps confirming the phallogocentricquality of rationalism itself.

Following this example of treason, where the death penalty is appliedin a case that is only analogically (and according to a shaky analogyat that) that of murder, would rapidly lead us into deep and darkwaters. (In the UK, for example, the death penalty for murder wassuspended in 1965 and abolished in 1969, but remained in place forso-called high treason until 1998, almost the time of Derridas death-penalty seminars, although never in fact applied.)14 The relation of

high treason to parricide or at least to offences against the symbolicorder of the father might be judged from the fact that even today,in the UK, when high treason is no longer punishable by death,its definition still includes, alongside plotting the murder of thesovereign, committing adultery with the sovereigns consort, with thesovereigns eldest unmarried daughter, or with the wife of the heir tothe throne. What I am interested in here, however, is the convergenceof the exceptional status of the death penalty (its [quasi-]transcendentalstatus, as we saw Derrida describe it at the beginning of this essay) and

the exceptional status of the sovereign or of the principle of sovereignty.Many reasons could make us want to emphasise that convergence,beyond that of the quasi-sovereign status of the great criminal thatDerrida likes to quote from Benjamin, and even beyond the tendential,sometimes perverse identification of the executed with Christ crucified,be it in Hugo or in Genet. We might also, for example, point toBatailles insight that the putting to death of the sovereign is in a sensethe paradigmatic case of sacrifice, the sacrifice of what is most high, thesovereign sacrifice and so the paradigmatic moment of sovereignty is

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to be sought paradoxically in the putting to death of the sovereign. ThisBataillean logic, which Derrida mentions only in passing in his latework on sovereignty,15 goes some considerable way towards clarifying

the very possibility of any convergence between beast and sovereign,between sovereign and outlaw, between the god and the wild beastwith which Aristotle compares the apolitical man at the beginning ofthePolitics(1253a 29), between Socratess proposal of the possibilityof the philosopher-king in the Republicand the immediate evocationof the violent and perhaps murderous reaction that that proposal willlikely provoke.16

In conclusion, however, I want to pursue very briefly a slightlydifferent, though related, path, guided by what I believe is Kantsonly explicit use of the Latin tag, exlex,that gives me my title. Thisoccurs just before the remarks about treason and the footnote aboutthe supposedly legal executions of Charles I and Louis XVI, and in partmotivates the claims Kant there makes about the necessary inviolabilityof the sovereign:

A people should notinquirewith any practical aim in view into theorigin of the supreme authority to which it is subject, that is, a subject

ought not to reason subtlyfor the sake of action [werkttig vernnfteln]about the origin of this authority, as a right that can still be calledinto question (ius controversum) with regard to the obedience he owesit. For, since a people must be regarded as already united undera general legislative will in order to j u d g e with rightful forceabout the supreme authority [Staatsgewalt] (summum imperium), itcannot and may not judge otherwise than as the present head ofstate (summus imperans) wills it to. Whether a state began with anactual contract of submission (pactum subiectionis civilis) as a fact,

or whether power came first and law arrived only afterward, or evenwhether they should have followed in this order: For a people alreadysubject to civil law these rationalisations are altogether pointless and,moreover, threaten a state with danger. If a subject, having ponderedover the ultimate origin of the authority now ruling, wanted to resistthis authority, he would be punished, got rid of, or expelled (as anoutlaw,exlex) in accordance with the laws of this authority, that is,with every right. A law that is so holy (inviolable) that it is already acrime even to call it in doubt in a practical way, and so to suspend

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its effect for a moment, is thought as if it must have arisen notfrom men but from some highest, flawless lawgiver; and that is whatthe saying All authority is from God means. This saying is not an

assertion about thehistorical basisof the civil constitution; it insteadsets forth an Idea as a practical principle of reason: the principlethat the presently existing legislative authority ought to be obeyed,whatever its origin. (MM, 95)

One might sympathise with Kants difficulty here, as evidencedin the anxious italics he uses in his text. We only have to put(or imagine the sovereign putting) the slightest pressure on thedistinction between reasoning and reasoning-subtly-for-the-sake-of-action, between doubting and doubting-in-a-practical-way to seethat what Kant himself is doing here, even as he affirms thetranscendental privileges of sovereignty, is itself as close as can be totreason. Simply byarguing fora transcendental, non-factual, rationallynecessary legitimacy of the principle of sovereignty, in other words, byconfirming the sovereignty of sovereignty itself, Kant always might betaken, and in a sense cannot fail to be taken, to be arguing againstthe actual legitimacy of any particular sovereign power, because no

actually existing sovereign is transcendentally sovereign. No sovereignis really sovereign thats the transcendental as always only quasi-transcendental. Raising the question of sovereignty, even attemptingto defend the sovereignty of sovereignty on rational grounds, is onthis logic already tendentially treasonable, already taking a positionsomewhere outside the law even if only supposedly to justify it. Kantsrigorous defense of the death penalty as rooted in this logic is then notso surprisingly the most promising place to look for the possibility ofits radical contestation, just as in general the most rigorous thinking

of the transcendental is the best place to seek for the principle of itsdeconstruction, for, as Derrida already had it in the Grammatology,an ultra-transcendental thinking that does not collapse into pre-critical naivety. This means that Kants defense of the death penaltyis also the very place to look for the principle of resistance to it: astendentiallyex lex, the philosopher-outlaw shows up the ex lexstatusof the sovereign and also of the death penalty in the same gestureas he shows up the tendentially collapsing status of sovereignty andindeed of the transcendental position as such. Deconstruction pursues

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and exacerbates this internal collapse and thus expects and even invitesbeing brandished an outlaw and being at the very least ostracised orbanished from the city.

I want to suggest that this logic (which is consistently presentacross Derridas thinking, this logic thatjust is deconstruction) is whatmotivates Derridas philosophical argument against the death penalty,or at least explains why that argument cannot in fact be philosophicalthrough and through, insofar as it is showing this ultra-transcendentalprinciple of ruination of the transcendental as such. Derridas thought,formulated most succinctly in Session 10 of the first year of theseminars, is that the madness of the death penalty is that it attempts toput an end to finitude, to finish finitude, by giving itself the right to anessentially mechanical or machinic calculation and application of themoment of death. This dream or phantasy of finishing finitude wouldthen readily communicate with all manner of infinitising schemas thatcan allow for more or less secret complicities between arguments infavour and arguments against the death penalty. Deconstruction, onthe other hand, for which, famously,infinite differance is finite,neitheraffirms the infinite nor simply denies it in the name of the finite, thusopening onto another thinking entirely. That thinking could not be

content with anisolatedargument against the death penalty (which, asDerrida points out with great sobriety, can never be considered trulyto be abolished by its factual abolition, but can be seen to survivein other forms, so that any self-righteousness or bonne conscience inthis regard would be misplaced), just because the deconstructionof thedeath penalty (which is something other and more than its mere factualabolition) would entail the deconstruction of that whole conceptualityin which it finds its shockingly salient place, the conceptuality ofWestern metaphysics itself.

Notes

1 Derrida,Sminaire La Bte et le souverain, Volume I (20012002), edited by MichelLisse, Marie-Louise Mallet and Ginette Michaud (Paris, ditions Galile, 2008);Sminaire La Bte et le souverain, Volume II (20022003), edited by Michel Lisse,Marie-Louise Mallet and Ginette Michaud (Paris, ditions Galile, 2010); TheBeast and the Sovereign, Volume I, translated by Geoffrey Bennington (Chicago,University of Chicago Press, 2009); The Beast and the Sovereign, Volume II(Chicago, University of Chicago Press, 2011).

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2 [N]ever,to my knowledge, has any philosopher as a philosopher, in his or her ownstrictly and systematically philosophical discourse, never has any philosophyas suchcontested the legitimacy of the death penalty. Derrida and Roudinesco, For WhatTomorrow ... A Dialogue, translated by Jeff Fort (Stanford, Stanford UniversityPress, 2004), 146; italics in original.

3 For What Tomorrow . . . ,142; translation slightly modified; see also, DP I, 124 n3.4 See my Rigor: or, Stupid Uselessness, Southern Journal of Philosophy, Vol. 50,

Spindel Supplement (2012), 2038.5 Immanuel Kant, The Metaphysics of Morals, translated by Mary Gregor

(Cambridge, Cambridge University Press, 1996), 1056. References to this volumewill henceforth use the abbreviation MM and be included in the text.

6 Kant is not alone in this thought: Derrida quotes Marat to the same effect in PM1,274. Cf. too Alan Bruder,Punishment and Freedom: a Liberal Theory of Penal Justice(Oxford, Oxford University Press, 2009), 54, summarising the Kantian position:Murder is an exception because it is the only crime for which there is a known anddeterminate equal punishment.

7 Philosophy of Right, 97: The criminal act (...) is itself negative, so that thepunishment is merely the negation of the negation. Actual right is thus theAufhebungof this infringement.

8 See note 4 above.9

G.W.F. Hegel, Outlines of the Philosophy of Right, translated by T.M. Knox(Oxford, Oxford University Press, 1952), 100. Subsequent references will be tothis translation and will be included in the text.

10 Beccarias other main argument, which earns him Kants scorn, is that the deathpenalty should be abolished because it is less dissuasive, less rigorous, than lifeimprisonment.

11 Suppose that some (such as Balmerino and others) who took part in the recentScottish rebellion believed that by their uprising they were only performing a dutythey owed the House of Stuart, while others on the contrary were out for their

private interests; and suppose that the judgment pronounced by the highest courthad been that each is free to make the choice between death and convict labor. I saythat in this case the man of honor would choose death, and the scoundrel convictlabor. This comes along with the nature of the human mind; for the man of honoris acquainted with something that he values even more highly than life, namelyhonor, while the scoundrel considers it better to live in shame than not to live atall (animam praeferre pudori; Iuvenal [SatiresIII, 8, 83]). Since the man of honor isundeniably less deserving of punishment than the other, both would be punishedquite proportionately if all alike were sentenced to death; the man of honor would

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