Derrida,the death penalty,and the theologico-political

Derrida’s seminars and politics

This first volume translates the seminars Derrida gave in Paris in December 1999 through March 2000. A second volume will soon be translated, providing sessions from seminars in 2000–01. Derrida presented the seminars, generally on a weekly basis, with a sense of the implementation of the death penalty worldwide, but with special attention focused on the United States. This book’s seminars took place during years that featured the highest number of annual executions in the US since the death penalty was re-established in 1976, after it had been briefly “abolished” in 1972. There were 98 US executions in 1999, another 85 in 2000. Thirty-two US men and women were executed just during the original seminars of 1999–2000, now contained in this book. He kept a watchful eye on these, referring for example to Betty Lou Beets, executed in Texas in 2000 and whose plea for pardon, also aired in France, “will certainly play its role in the abolition of the death penalty one day, even if this woman must die, alas, tomorrow” (217).

To be sure, the bulk of Derrida’s discourse is demanding philosophical examination of Kant’s, Nietzsche’s, and others’ writings. There is also, though, Derrida’s continual reading “between literature and philosophy, between law and religion” (169), also taking up film and other genres—even personal letters he received from US families of persons sentenced to die (77–78).

These volumes on the death penalty are only two of an extraordinary 43 forthcoming books of seminars by Derrida, treating numerous topics. Derrida carefully wrote out his seminars for audiences. Their publication, translators note, offers readers “unprecedented contact with the philosopher’s teaching voice” (ix). To be sure, many readers will be put off by Derrida’s discourse, and for many of the same reasons more traditional philosophers published their 1992 protest of the University of Cambridge’s granting Derrida an honorary doctorate. They claimed that his works fail to meet “accepted standards of clarity and rigour,” resemble the “tricks and gimmicks … of the Dadaists or concrete poets,” and “stretch the normal forms of scholarship beyond recognition.” ² I myself have in the past registered some protest of Derrida’s writing. But the 1992 philosophers’ protest, publicly titled, “A Question of Honor,” is a mark of the discomfort that often appears when Derrida exhibits, in both his writing and life, how thinking best proceeds if it seriously decolonizes and de-imperializes its Eurocentric legacies, as well as its white racist and phallocentric moorings. ³ This dissonance with Western projects makes understandable why one can view his career as framed by a 1970 advocacy for the assassinated prison revolutionary, George Jackson, and his later 1995 public stand for US revolutionary journalist and author, Mumia Abu-Jamal. Derrida refers to Abu-Jamal repeatedly (76–77, 90, 138, 212).

The theological

I focus this review on “the theological,” as Derrida relates it to the death penalty. Key to grasping Derrida’s position is understanding the “theological-political” in which the death penalty is inscribed. Theological issues are at the center of his project. Note this summary claim by Derrida from deep into his eighth session: “With this, we are at the most undecidable heart of our subject: Christ and the Christian church, the Christian church and the death penalty, political theology, outside of Christianity, and the death penalty” (195). The sentence’s immediate context is a discussion of Victor Hugo’s Christian abolitionist stance on the death penalty. But the sentence is crucial because it highlights the theological dynamics running throughout Derrida’s volume. Here, three significant relations, three couplets, are set forth as the “heart of our subject.” The subject is “undecidable,” he says, meaning vexing, perennially puzzling, perhaps even unresolvable, at least by the end of this first volume.

To clarify these theological topics in Derrida’s text, I restate (and reorder) the three conceptual couplets as follows:

Political theology (outside of Christianity) and the death penalty

Across his seminars—in spite of continuous circling back and eschewing a linear style—Derrida generally moves first to examine “political theology (outside of Christianity)”—this, a largely European-influenced field of historical thought and practice. Within this field, he then situates the church’s own internal conflict of positions on the death penalty, and then more specifically still, shows his interest in “the Christ” that is invoked by this church. This review essay mainly treats the logic of the first couplet. My critical questions regarding the first will enable my much briefer treatments of the other two couplets.

The death penalty as “theologico-political”

Consider, then, the first conceptual couplet, “political theology (outside the church) and the death penalty.” Crucial to everything Derrida writes about the death penalty is his point that the death penalty is “inscribed” in a theologico-political system, an apparatus of sovereignty” (23). This sovereignty is marked by its representing itself “as political but first of all [as] theologico-political power,” having “the right to decree and to exercise a death penalty. Or to pardon arbitrarily, sovereignly” (22). It is called “theologico-political” because the death penalty, historically and still today, he argues, dwells in the sovereignty that thrives on the connection of the theological and the political (23).

Exploring this sovereignty is not to explore theology proper, the church, or Christianity. These appear when Derrida considers the other two couplets. This “theologico-political power” is a political theology that in Christian Western contexts is inclusive of the church but also “outside the church,” dwelling in Christian-influenced political and social structures, which are often not seen as ecclesial or theological. Derrida’s seminars are “massively turned” to the USA, “the large country of so-called European culture … with a so-called democratic constitution,” and “predominantly Christian” (41). Derrida sees the USA as a Christianized political order. In Judith Butler’s language, Christianity in the USA persists, in spite of an array of many US religions and vibrant secular legacies, as “the legitimate religion.” Unlike other religious traditions in the USA (Judaism, Islam, Indigenous, Asian), it is Christianity’s “cultural preconditions of the public, whose symbols circulate freely within the public.” ⁴ Thus, to consider the theologico-political in European-influenced orders of governance and society, and especially in the USA, is crucial.

More specifically, how does Derrida see the death penalty “inscribed” in the theologico-political? Derrida answers that question mainly by probing four canonical examples, or “cases” (21), of “great condemned ones” or “emblematic figures in the West”: Socrates, Jesus, Hallaj (executed in 922), and Joan of Arc (in 1431). Hallaj, less known to many readers, was a Muslim who cried out in a drunken state, also during his later torture and execution, “Here I am, the Truth” (22).

In each of these cases, Derrida highlights how a “religious incrimination” works with a “political sovereignty that is capable of carrying out the execution” (21). Religious accusation and political implementation reinforce one another in the death penalty’s theologico-political apparatus. Derrida insists on their mutually reinforcing roles, and so attends to both the political dynamics of the state that executes (178) and also to the theological dynamics. In fact, he adds, “one must be a theologian” to understand the law and modern theory of the state (88–89, n. 31).

In the Christian-dominant United States, Derrida’s cases may not seem very helpful. After all, with US executions one sees readily neither religious accusations for the state to implement, nor the state offering or demanding religious and theological justifications for its executions. In the main, the theological seems to be out of the picture. “Seems” is, however, precisely the right word. For it is a key part of Derrida’s volume to trace in the death penalty’s politics an often denied or hidden role of the theological. This requires undertaking, again, “political theology (outside the church).” Derrida sees the theological as haunting the present politics of the death penalty in three major ways.

First, Derrida finds the theological entangled in the legacy of “festivals of cruelty” that sustain belief in an equivalence that is basic to all punishment. This is the equivalence that believes that an injury suffered (say, a murder) must find, or be “paid for,” by some suffering that the offender undergoes as punishment. Derrida asks, in analyzing Nietzsche’s The Genealogy of Morals, Why would inflicted pain, a compensatory cruelty, be a recompense for suffering injurious wrong? Derrida follows Nietzsche into the history of Western commercial exchange, into the history of debt and repayment, discerning, there, a crucial belief that invents the otherwise “unbelievable/incredible” equivalence of crime and compensatory cruelty. The cruel, often bloody, exchange, in commercial practice was often crystalized in “festivals of cruelty.” Religion played roles in these festivals, cultivating ritual sanction and holy fervor, thus sustaining the belief, making credi(ta)ble this equivalence at the heart of punishment (149, 152–54). Derrida does not make religion the sole agent in this history, but both religion and theology gave credibility to the idea that an imposed injury could be equivalent to, and so recompense for, crime suffered or debt unpaid. Reinforced by religious belief, cruelty thus runs deep, for Derrida, in social exchange, indeed in all life (154).

This may seem odd to many readers. After all, is not especially Christianity about grace and forgiveness, mercy amid nonequivalence? On a deep level, though, what gives notions of grace and forgiveness their traction is an underlying assumption found in a belief in the rightness of this cruel equivalence. The drama of grace lies in its setting aside this in-credible belief in equivalence at the heart of law, commerce, and punishment. This is one theological dimension of the theologico-political of the death penalty.

There is a second aspect of the theological in the death penalty’s “theologico-political apparatus”: the public ideologies holding that sacrificial death can effect some good. In the case of the death penalty, there is the frequent claim that an execution brings “closure” for aggrieved parties, or promotes larger social goods, such as social discipline, deterrence, maybe simply a public’s insistence on retribution. The issue is not only that theologies, especially in Judaism and Christianity, have placed value on sacrificial death as a means to some good (“redemption,” “salvation”). Most importantly, writes Derrida, is that the theologico-political apparatus lifts up the “good” telos of sacrifice in such a way that it also dispenses an anesthesia—an “anesthesial logic” (49, 274)—one that masks a cruelty that might make the sacrifice otherwise intolerable. In the case of Jesus, for example, the death is interpreted as redemptive or salvific, thus propounding the notion that a sacrifice—here the torture/killing of Roman crucifixion—can be a route to the good. Whatever we think of that (as Christian believer or not), it is a locus of the theological in the politics of the death penalty. In a Christian-dominant society, especially, this reinforces belief in the acceptability of a torture/killing, which is essential for accepting the death penalty.

There is a third way that the theological enters the politics of the death penalty. It focuses on the process of the state’s calculation of the incalculable end of a finite life. Although a complex point, this may be the most important for understanding the theological in the “theologico-political apparatus,” and for understanding Derrida’s own approach to abolition. Here, the theological resides in the hidden but real links created between those dwelling in a state that executes, a state that calculates and enacts the end of a finite life. Crucial to Derrida is the way the many members of a state’s “body politic” together experience a transcendent mutual interest. This is marked by a dialectic of fascination and infinitization. Consider each in turn.

Fascination is spawned in citizens and residents by the state’s calculated decision to end a person’s life. What fascinates is the state’s presumed power over time—time we share with one another and with all life. In terminating a finite human life, the state poses itself over against what dramatically marks finite life, namely its incalculability, the unknowing of its time of end, certainly an unknowing of the date and time, one’s instant, of dying. As co-belonging with others to the state, whether we harbor approval or disapproval of the death penalty, a fascination with this power claiming to be beyond time pulls us into what Karl Jaspers would have termed a “limit-situation” of finite life. The fascination is with a power claiming to pose as limit to finite life.

Derrida supplements this fascination with finitude’s temporal limits with his meditation on a spatial co-belonging that creates an “infinitization.” The crucial point here is that the state often does not succeed in achieving the calculation, despite its legal prescriptions, administrative orders, and “execution protocols.” Even if all goes in perfect accord with state planning (without “botched” executions), the state’s calculated procedures develop fascination further. We members of the state cannot help but “permanently play out for ourselves the scene of the condemned one whom we potentially are” (258). Derrida is highlighting here an inter-subjective complexity that harbors an expanding sense of social connection, an infinitization. Already brought by the state to fascination with the temporal limits of finite life, we here also cannot help but dream that we occupy the many social sites of interaction in the process of an execution,

all the positions, those of a judge, of judges, of the jury, of the executioner or the assistants, of the one condemned to death, of course, and the position of one’s nearest and dearest, loved or hated, and that of the voyeuristic spectators who we are more than ever. (258)

The crucified Jesus and Derrida’s Christ

I close by posing several questions, beginning with the first couplet emphasized for this review, then turning briefly to the other two.

Concerning the death penalty’s relation to “political theology (outside the church),” more probing is required. Derrida’s following of Nietzsche into the historical origins of commercial exchange, finding here the roots of punishment in the pleasure unpaid creditors take in extracting and then circulating/extending the pain of the debtor, raises the issue of sadism in punishment. This provokes the broader issue of how commercial/economic systems of exchange are related to sexual exchanges of power where structural sadism may also be at play. Butler, in reviewing Derrida’s book, raises already the importance of the sexual dimension for Derrida’s arguments. ⁶ I would propose that both sexual and racial dynamics are crucial to consider in the USA, where sexual, gendered, and racialized bodies have been rendered commodities, but often have also functioned as currency, now “traded” and “circulated” in the US criminal justice system, not only in its death penalty but also in mass incarceration. The sexual and racial dynamics of sacrifice—some of which Derrida himself has explored elsewhere—need greater detailing in relation to the desire that Derrida traces in citizens’ fascination and infinitization amid the US killing state. ⁷

Consider the second conceptual couplet at “the heart” of Derrida’s subject in this book (195): “the Christian church and the death penalty.” Of crucial theological interest to Christians, perhaps, is that both Christianity’s abolitionists and its proponents manifest, though in different modes, the “anesthesial” theo-logic of sacrifice, as do also, at least occasionally, atheistic abolitionists such as Albert Camus (281–82). Derrida helpfully traces the struggles and contradictions within “two camps” in Christianity: “Divine law of abolitionism against divine law of the death penalty” (182). But there is a possible “third camp” Derrida does not discuss. This is another abolitionist way, but one depending on none of the three aspects of the theological that supports the death penalty’s theologico-political apparatus. Indeed, this camp refuses the whole logic of sacrifice, especially that making necessary Jesus of Nazareth’s torture/killing for a redemptive scenario. Instead, these are Jesus-followers working without anesthesia of redemptive salvifics, in solidarity with the imperially executed Jesus and, by extension, conscious of the social suffering of all those, past and present, subject to forms of state structural violence. These communities may, and often do, contest and resist capital punishment and capitalist exchange, as well as the state’s construction and violation of racialized, sexual, and gendered bodies. ⁸

This point marches quickly onto my final critique, and it concerns Derrida’s third conceptual couplet, “Christ and the Christian Church.” Here I problematize the issue of what or who, for Derrida in his seminars, is this “Christ.” Derrida displays a rather limited understanding of “the Christ.” I do not simply mean that Derrida neglects dogmatic concerns of Christian doctrine. Instead, I am raising a broader, more humanist—better, extra-Christian—concern.

The problem is that in this book Derrida accepts the widespread view of Jesus’ death as one propounding forgiveness and grace. Christianity is, he writes, “the religion of pardon.” It is this that drives Hugo’s and many Christian abolitionists’ organizing against the death penalty. Even as Derrida criticizes Hugo, Derrida himself, on the final page of his work, also refers to Christ, and “the Passion of the Son of God,” as “the exemplary example of the gift of forgiveness.” It is a kind of exemplary “copy for us,” of “the love” needed “while waiting, for what is called the abolition of the death penalty, and thus for life.” Derrida’s book ends, “Love … must never cease appealing to the chance of a pardon issued, of grace granted” (283).

By defaulting to this understanding of Christ on the cross (as mainly about pardon and grace), Derrida glosses the crucified figure, Jesus of Nazareth, one executed by Roman theologico-juridical-political power. This not only forecloses the more radical “third camp” of Christianity I considered above, it also forecloses reflection on Jesus who remained, and often remains, because he was “crucified,” an embarrassment to officials and theologians of the imperial Christian Church who propound the Gospel of pardon and grace. Crucifixion was the torture/death distinctively reserved for the slave, the political rebel, the poor, the politically inconvenient. ⁹

Moreover, Derrida, seemingly against some of his own interests, forecloses the possibility of thinking this crucified Jesus as something like Walter Benjamin’s “Great Criminal,” who is not just offender of one law of the state, but of the state’s entire claim to be law with sovereign rights to kill. The “Great Criminal” would be another deconstructive way for theological reflection, one resonant with Derrida’s project. It would foreground something that Derrida finds most problematically missing in much European and US abolitionism (Christian and atheistic): it “banishes the death penalty at home and maintains the right to kill in war” (82). Indeed, it is because Derrida has long been oriented to such comprehensive critique that he was himself attracted to such figures as political prisoners, George Jackson and Mumia Abu-Jamal, as well as others (90–91). I am not suggesting that Derrida make “Christ figures” or icons of these political prisoners. But one can ask, given their importance to his own abolitionist aspirations, to condemning the death penalty “in its philosophical systematicity,” why Derrida allows, finally, the figure of the Christ to be colonized in his seminars by the same long story to which the church has been confined: the largely sacrificial theo-logic about “the Passion of the Son of God” granting grace and pardon. Where in relation to Derrida’s abolitionism is the Jesus of Nazareth who, as something like “the Great Criminal” in Rome-dominated lands was subject to imperial execution and fosters resistance to pervasive imperial politics? Where is the tortured body of this one, killed like a sexualized and racialized, lynched body, who yet spawns solidarities against all state killing? ¹⁰