G. Bennington - Rigor

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RIGOR; OR, STUPID USELESSNESS

GB

: In his seminars on the death penalty, Derrida consistently describes Kantsarguments in favor of capital punishment as rigorous and explicitly relates that rigorto the mechanisms of execution and the subsequentrigor mortisof the corpse. Rigorhas also often been a contested term in descriptions of deconstruction: differentcommentators have either deplored or celebrated the presence or the absence of rigorin Derridas work. Derrida himself uses the term a good deal throughout his career,usually in a positive sense, although he also at least once, in passing, suggests the needto question the rigor of the concept of rigor itself. In this paper, I will outline the placeof Kant in the Death Penalty Seminars and suggest that it is the very rigor attributedto Kant that makes him (rather than some other writerswhether supporters or

opponents of the death penaltywhose arguments seem less rigorous to Derrida) anexemplary object for deconstructive attention, not for the first time in Derridas work.Broadening the focus beyond the texts Derrida explicitly analyzes, I suggest that thiskind of attention can also be fruitfully brought to bear on some more general argu-ments in Kant about right and justice. In conclusion, I suggest some implications ofthis situation for the still difficult issue of the more general relation between decon-struction and critique in the Kantian sense.

Geoffrey Benningtonis Asa Griggs Candler Professor of Modern French Thought at EmoryUniversity where he is also Chair of the Department of Comparative Literature. He is theauthor of fifteen books and many articles and chapters on philosophical and literary-theoreticaltopics. His books include Lyotard: Writing the Event(Manchester University Press, 1988), Jacques

Derrida(written with Derrida; University of Chicago Press, 2003),Interrupting Derrida(Routledge,2000), Frontires kantiennes(Galile, 2000), and, most recently, Not Half No End: Militantly Melan-cholic Essays in Memory of Jacques Derrida (Edinburgh University Press, 2010) and Gographie etautres lectures(Hermann, 2011). He is translator of a number of works by Derrida and Lyotard,and is General Editor, with Peggy Kamuf, of the English language edition of the Seminars of

Jacques Derrida at the University of Chicago Press. His translation of the first volumes of theseminars to appear,The Beast and the Sovereign, Volume IandVolume II, appeared in 2009 and 2011.He is currently working on a book of deconstructive political philosophy tentatively entitledScatter.

The Southern Journal of PhilosophyVolume 50, Spindel Supplement2012

The Southern Journal of Philosophy, Volume 50, Spindel Supplement (2012), 2038.ISSN 0038-4283, online ISSN 2041-6962. DOI: 10.1111/j.2041-6962.2012.00116.x

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Bennington is big on rigor.Richard Rorty, Is Derrida aQuasi-Transcendental Philosopher?1

As Richard Rorty points out in the review article from which I take myepigraph (which I choose to read as one of the nicest things anyone hasever said about me, at least in a professional context), many commentatorson Derridas work have invoked the notion of rigor.2 This term has beeninvoked both to deplore its supposed lack (for example, in the infamousletter in which a number of more or less unknown philosophers protestedagainst Derridas being awarded an honorary degree at Cambridge, claim-ing that his work does not meet accepted standards of clarity and rigor)3

but also to claim that rigor really isa feature of that work, something to be

valued in it, a quality that means it cannot accurately be described in theanything goes or free play terms that often characterized its earlyreception. Rorty himself, of course, is notso big on rigor (indeed I chide himfor just that failing in the book he is reviewing in his article) and fears thatcharacterizing Derridas work in such terms will commit one to the viewthat that work is in the end rather traditionally and unfortunately philo-sophical and more especially philosophical in an essentially Kantian kindof way.

My point today will not be to criticize Rortys understanding of Derrida in

general but to take quite seriously what is at stake in this language of rigor as itcomes to be used in and around Derridas work, and more especially to use itas a way into considering once again the still (for me at any rate) quitemysterious relation of deconstruction to critique in the Kantian sense. As thesuccess of the term quasi-transcendental in describing some important fea-turesofDerridasthinkingmightsuggest(theRortypiecefromwhichItookmyepigraphisentitled,IsDerridaa quasi-transcendental philosopher? explicitlyreferring to his earlier essay Is Derrida a transcendental philosopher?), thisrelation to critique in the Kantian sense seems important in understandingDerrideandeconstructioningeneralandinunderstandingitsownunderstand-ing of its relation to the philosophical tradition. In the context of this confer-

1 Richard Rorty, Is Derrida a Quasi-Transcendental Philosopher? Contemporary Literature36 (Spring 1995): 187.

2 Rorty, Is Derrida a Quasi-Transcendental Philosopher? reviewingJacques Derrida, ed.Geoffrey Bennington and Jacques Derrida, trans. Geoffrey Bennington (Chicago: University ofChicago Press, 2003). Rorty does not of course mean to be entirely complimentary. See myreply to some of his objections at the end of X, in Interrupting Derrida (London: Routledge,2000), 7692.

3 Barry Smith et al., Derrida Degree a Question of Honour, letter to The Times of London,May 9, 1992. The text of the letter is reprinted in Jacques Derrida, Points. . . : Interviews,19741994, ed. Elisabeth Weber, trans. Peggy Kamuf et al. (Stanford, CA: Stanford UniversityPress, 1995), 41921.

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ence, if I may summarize a little brutally, as Derrida might have said, ortelescope a longer sequence, as he also might have said: if the tradition of themetaphysics of presence comes, in Derridas later work, to seem especially

perspicuous, most saliently or most egregiously itself, as it were, around thetheologico-political logic of sovereignty, and if the issue of the death penaltycomes to be seen as something of a crux or keystone of that logic, as he indeedsuggests in the seminars of 19982000 and the associated interview in De quoidemain?, then we should perhaps not be unduly surprised to find him explicitlycrediting Kant, rather than some other philosopher, with formulating the mostrigorous defense of the death penalty (and thus by extension of the logic ofsovereignty itself) and, thereby, the defense that most calls for deconstructiveattention if the challenge of those seminars is to be fulfilled. That challenge is

explicitly to formulate (for the first time, in Derridas hypothesis) an abolitionistdiscourse able to compete on the same philosophical level, as it were, withKants rationalist argument in favor of the death penalty, or at least to be in aposition to call into question the conceptual bases of Kants arguments in thisrespect. We can claim with some confidence that this is the specifically

philosophicalchallenge of the Death Penalty Seminars; though as we should alsotry not to forget, these seminars, and indeed deconstruction more generally,can never justbe philosophical, never simply philosophical or philosophicalthrough and throughunless perhaps we take that expression more in the sense

that it has in forensic ballistics (if one is to believe the TV show CSI,atanyrate)and suggest that deconstruction involves going right throughphilosophy andemerging more or less explosively on the other side. That philosophicalchallenge cannot avoid some more or less rigorous engagement with rigoritself, with the very concept of rigor in general, as it is apparently bestexemplifiedbyKant.(Kantistheonlyauthormentionedineverysinglesessionof both years of the Death Penalty Seminars and is the explicit object of moreanalysis than any other philosopher.) In this particular case, there will be anassociation to be explored here between rigor in the sense of accuracy andprecision, on the one hand, and, on the other hand, rigor in the sense ofharshness and hardness, stiffness and rigidityexemplarily perhaps as rigormortis. Derrida introduces this semantic interplay in Session Two of the firstyear of the seminar:

It is easy, perhaps too easy, even if one must indeed begin with this, to recall that thedeath penalty is a juridical concept that, insofar as it belongs to penal law, that is, toa set of calculable rules and prescriptions, is distinct from singular murder, fromindividual vengeance and implies, by right and thus in principle, the intervention of

a third party, of an arbitrating agency that is foreign or superior to the parties to adispute, thus par excellence and at least virtually, the agency of a state, of aninstitution of a juridico-statist, juridico-political type, or even a reason of state, a

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rationality, alogoswith general or universal claims, a juridical reason rising above theparties, the particular interest and passion, the pathos, the pathological, of individualaffect. The effect of coldness, of frozen insensitivity that often takes hold of us whenfaced with the discourse, with the process of judgment, or with the ritual of executionof the death penalty, this effect of cadaverous coldness or rigor as rigor mortisis alsoor first of all the manifestation of this power or of this claim to the power of reason:it is the allegation of an imperturbable rationality rising above the heart, aboveimmediate passion, and above the individual relations between men of flesh andblood; it is thus this alliance between reason, universal rationality, and the machine,the machinality of its operation. All discourses that legitimate the death penalty arefirst of all discourses of state rationality having a universal claim and structure; theyare theorems of state right, of the state machine. In the rationalist space thus definedor alleged, it is understandable that very often, if not always and typically, theabolitionist objection to the death penalty is tempted to oppose the cold machine-like, mediatized, technologized, mechanized reason, and its rather police-like and

virile allure, with immediate feeling, the heart, affectivity, and its rather feminineallure, with the horror that is inspired by thecrueltyof execution.4

Although Derrida is here only beginning to map out the terms of the debateas it has traditionally been conducted (and is certainly notsimplyadopting thefeminine side of the argument, although he is also explicitly not simplyrejecting the claims or virtues ofpathosin talking about the death penalty), thelink is clear between rigor in the rationalistic sense that will be best exempli-

fied by Kant and rigor in the sense of hardness, rigidity, and by extensionharshness in the execution of the law, then figured quite readily by thecadaverous rigidity of the executed corpse.

As we shall see, the internal tensions this raises for the rationalist positionare themselves already at work in Kant, whose very rigor, or so I willsuggest, allows a deconstructive event to happen. And this seems to be ageneral rule with deconstruction: although I think it is sometimes still pre-sented as seeking out and exacerbating marginal or inessential weaknessesor inconsistencies in the texts it reads, it seems in fact most to thrive in

showing up failings or aporias that result from the very rigor of those textswhen they are at their strongest and best, rather than from contingentlapses or oversights (however symptomatic such contingent lapses or over-sights may also be taken to be). This would be one reason why deconstruc-tion has repeatedly had to measure itself against critique in the Kantiansense, to which we might then say it is very close, so that Derrida is right upagainstKant (tout contre Kant).

4 This is my own translation, based on Peggy Kamufs working draft translation of the firstyear of the Death Penalty Seminars. Throughout this paper, quotes from the unpublishedDeath Penalty Seminars will be cited by indicating whether the quote is from the first or second

year, along with the relevant session number.

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Kant, then, and more especially the first part of Kants Metaphysics of Moralsthe Rechtslehreor doctrine of rightwill represent for Derrida themost rigorous philosophical attempt to justify the death penalty on rational

grounds. If in Derridas repeated hypothesis (also firmly expressed inconversation with Elizabeth Roudinesco in De quoi demain?),5 no philosopheras suchhas ever opposed the death penalty (and to that extent philosophyhas always been at least implicitly supportive of it), Kants explicit rationalendorsement of it can be taken to stand for thephilosophical position on thematter, the position that would have to be refuted or deconstructed if aproperly philosophical opposition to the death penalty were to beattempted. Kants justification more especially hangs (if I can say that inthis context) on his general grounding of all penal law in a principle that

functions as what he explicitly presents as its categorical imperative: thisprinciple is simply that of the so-called talionic law (an eye for an eye anda tooth for a tooth, as it is often, perhaps misleadingly, formulated). Kantsobject, which might indeed be called all sublime (like that of W. S. Gil-berts Mikado, in that it supposedly bespeaks an incomparable rationaldignity of the human beyond the concerns and interests of mere phenom-enal or animal life), is simply to make the punishment fit the crime,although Kants formulation transforms any vengeance-based understand-ing of the talionic law into a reflexive and purely formal structure whereby

the principle of retaliation in question is justified by the view that anycrime is to be understood as simultaneously perpetrated, as it were, on theperpetrator him or herself.

In the Doctrine of Right, the first part of The Metaphysics of Morals, Kantwrites:

But what kind and what amount of punishment is it that public justice makes itsprinciple and measure? None other than the principle of equality (in the position ofthe needle on the scale of justice), to incline no more to one side than to the other.

Accordingly, whatever undeserved evil you inflict upon another within the people,that you inflict upon yourself. If you insult him, you insult yourself; if you steal fromhim, you steal from yourself; if you strike him, you strike yourself; if you kill him, youkill yourself. But only the law of retribution [das Wiedervergeltungsrecht] (ius talionis)itbeing understood, of course, that this is applied by a court (not by your private

judgment)can specify definitively the quality and the quantity of punishment; allother principles are fluctuating and unsuited for a sentence of pure and strict[strict here translates the adjectivestreng, which could also be translated as rig-orous] justice because extraneous considerations are mixed into them. [alle andere

5 Jacques Derrida and Elizabeth Roudinesco, De quoi demain . . . Dialogue (Paris: Fayard,2001); trans. Jeff Fort as For What Tomorrow. . .: A Dialogue (Stanford, CA: Stanford UniversityPress, 2004).



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sind hin und her schwankend und knnen anderer sich einmischenden Rcksichten wegen keine

Angemessenheit mit dem Spruch der reinen und strengen Gerechtigkeit enthalten.]6

And, just a little later:

But what does it mean to say, If you steal from someone, you steal from yourself?Whoever steals makes the property of everyone else insecure and therefore depriveshimself (by the principle of retribution) of security in any possible property. He hasnothingandcanalsoacquirenothing;buthestillwantstolive,andthisisnowpossibleonly if others provide for him. But since the state will not provide for him free ofcharge, he must let it have his powers for any kind of work it pleases (in convict orprison labor) and is reduced to the status of a slave for a certain time, or permanentlyif the state sees fit.If, however, he has committed murder he mustdie. Here there isno substitute that will satisfy justice [Hat er aber gemordet, so mu er sterben. Es giebt hier kein

Surrogat zur Befriedigung der Gerechtigkeit]. There is no similaritybetween life, howeverwretched it may be, and death, hence no likeness between the crime and theretribution unless death is judicially carried out upon the wrongdoer. (MM, 10506)7

Derrida spends a good deal of time repeatedly probing this principle as Kantformulates it, and he finds it to be surprisingly resistant to criticism from, forexample, psychoanalytic or Heideggerian perspectives. Derrida seems genu-inely impressed by Kants formal rigor and is especially attached (as he iselsewhere) to Kants difficult formulations around dignity (Wrde) as some-thing that exceeds all comparative assessment, all calculation and price.8 In

6 Immanuel Kant,The Metaphysics of Morals[MM], trans. Mary Gregor (Cambridge: Cam-bridge University Press, 1996), 10506.

7 Just because there is no substitute or surrogate in this case, it would seem that this is wherethe principle of the ius talionisis most purely embodied. After a curious excursus designed toshow that the death penalty imposed in cases other than murder still in fact obeys the principleof theius talionis, Kant adds: Moreover, one has never heard of anyone who was sentenced todeath for murder complaining that he was dealt with too severely and therefore wronged;everyone would laugh in his face if he said this, and goes on Accordingly, every murderer. . . must suffer death; this is what justice, as the idea of judicial authority, wills in accordancewith universal laws that are grounded a priori (MM, 107). This idea that the death penaltyrepresents the purest or clearest case of justice as straightforward equivalence of crime andpunishment can also be found in Hegel, not mentioned by Derrida until the final sessions of thesecond year of the Death Penalty Seminars, where he is also concerned to find a subtle butdecisive difference between Kant and Hegel on these matters, to which he promises to returnbut does not apparently do so: whatever that subtle but decisive difference may be, an additionto sec. 101 of the Philosophy of Rightseems to follow Kant in singling out the death penalty (aspunishment for murder) as theonlycase where penal justice need not calculatean equivalence ofvalue of crime and punishment, in that the equivalence is immediately given, one is temptedto say to the point of identity (Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right[PhR], ed. Allen Wood, trans. Barry Nisbet [Cambridge: Cambridge University Press, 1991],12930).

8 But he does not apparently reflect on Kants rather acerbic analysis of dignities as theyattach to a hereditary nobility (MM, 10203). See too Derridas discussion of this Kantianconcept ofWrdein sec. 40 ofFoi et savoir(Paris: Seuil, 2001), and inLanimal que donc je suis(Paris:Galile, 2006). I argue in a forthcoming work that this notion of dignity (and saliently itsappearance in the idiom digne de ce nom) is a crux for understanding Derridas later thinking.

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Kant, that dignity is reserved for humans in their humanity as essentiallyrational, and part of the stamp of that rationality is its intrinsic superiorityover merely phenomenal or animal life. The supposedly rational ending of

that life by the imposition of the death penalty purely in the name of theformal categorical imperative of talionic law then becomes in a sense thebestconfirmation of human dignity, so long, that is (and here Kant would prob-ably begin to part ways with Gilberts Mikado, who you may rememberwanted not only the punishment to fit the crime, as does Kant, but also tobe a source of innocent merriment) as the humanity in the person of thecondemned is not disrespected by being made into something abominablein the way the punishment is carried out. (This is the principle according towhich the death penalty in the United States is widely thought to be justi-

fiable so long as it is not cruel and unusual in its execution, whence thepossibility of a connivance between abolitionists and morticolists over anincreasingly anesthetic approach to the question, analyzed by Derrida atsome length in the seminars.) The death penalty becomes the best confir-mation of human dignity, then, so long as the humanity in the person of thecondemned is not disrespected, and so long as the properly rational justifi-cation for it (which is purely formal, whence its beauty and its rigor) is notconfused or contaminated with any kind of utilitarian end. Kant is resolutelyopposed to any attempt to justify the death penalty in terms of its supposedly

exemplary deterrent effect on crime, for example, and so his argument isentirely impervious to abolitionist arguments that are based on the claimthat it does not in fact have such a deterrent effect. He says for example, ina passage that Derrida also quotes, that even if a state were to agree todisband or dissolve itself (so that no question of future deterrence couldarise), it would still be morally incumbent upon its members to make sureto execute all remaining condemned prisoners before doing so, or elseremain tainted by the blood guilt that would ensue from unpunishedcrime, thus making them collaborators in a public violation of justice(MM, 106).

I want to spend some time here looking at the notion of what we have justseen Kant call pure [rein] and strict [streng: rigorous] justice that is suppos-edly ensured by the principle of the talionic law and that leads to his defenseof the death penalty. If Derrida is right in his general construal of the relationof the death penalty to the metaphysical or theologico-political tradition moregenerally, the standing of this purity and rigor would be a deconstructive cruxof these seminars and by extension perhaps of the entire later arc of Derridas

thinking (especially given the salient place of an appeal to justice in thatthinking), if not of his thinking in general from the start. If Kants definitionof pure and strict justice were to give rise to something demonstrably other



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than justice, for example, then it would appear that some not insignificantprogress would have been made in the deconstruction of the death penaltyand, thereby, of sovereigntyand perhaps also of the very concept of rigor

itself.Indeed this notion of pure and strict justice generates a number ofparadoxes that seem to me to illuminate Derridas general way of thinkinghere, although I will take my bearings from an Appendix to the Introductionof Kants text (the Doctrine of Right, the first part ofThe Metaphysics of Morals)that Derrida does not in fact ever explicitly discuss in the Death PenaltySeminars and that is taking a rather more general view of right than thepassages that deal explicitly with punishment and exemplarily the deathpenalty. (Derrida had mentioned this Appendix much earlier, in Du droit la

philosophie, where he asserts, without supporting analysis however, that whatis played out in [these pages] is quite simply vertiginous.9)

In the Introduction to theRechtslehre, Kant first separates out the domain ofright from the domain of virtue: the former considers the limitation of onesfreedom by that of others as a question not of moral duty but of justifiableconstraint: this is the logic wherebyas Derrida often remarks, in theseseminars and elsewherelaw or right is law or right only if it can be enforced,such that Kant can say here that right and authorization to use coer-cion . . . mean one and the same thing (MM, 26). This essential element of

force or constraint allows right to be formulated by analogy with the possi-bility of free movement of bodies within the law of the equality of action andreaction (MM, 26). Having separated out right from virtue, then, with right atleast already somewhat more (by analogy, at least) on the side of the physical,external, and mechanical, Kant nonetheless recognizes a kind of frontier zoneor no mans land that, although it does not fall into the domain of virtue, doesnotsimplybelong to the domain of right, while still always tending to appealto that domain fordecision. This frontier zone is presented through discussionof twocasesthat appear to be diametrically opposed and that limit or de-limitthe domain of right, rather as contradiction and tautology are the limitingcases (and indeed the disintegration) of the combination of signs in Witt-gensteinsTractatus(4.464.466). As is often the case in Kant when trouble isbrewing, these cases are presented with reference to Epicurus.

9 Derrida, Du droit la philosophie (Paris: Galile, 1990), 87n1; as far as I know, this isDerridas only reference to this passage from Kant. The next part of this paper is a secondattempt at what I now think was only a partially successful analysis that I first attempted sometime ago in Frontires kantiennes (Paris: Galile, 2000), here adapted from an English version,Kants Open Secret, Theory, Culture and Society28 (2011): 2640, 2011 by Sage. Reprintedby permission of Sage Publications.

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But without making incursions into the province of ethics, one finds two cases thatlay claim to a decision about rights although no one can be found to decide them,and that belong as it were within theintermundiaof Epicurus.We must first separatethese two cases from the doctrine of right proper, to which we are about to proceed,so that their wavering principles will not affect the firm basic principles of thedoctrine of right. (MM, 26)

Theintermundusor metakosmion(posited by Epicurus in the letter to Pythocles,quoted by Diogenes Laertius in Book 10 [I: 89] ofThe Lives and Opinions ofEminent Philosophers) is, from the point of view of right at any rate, a place ofuncertainty, ambiguity, or equivocation (ius aequivocum) and is placed, then, inan Appendix to the Introduction. (In year two of the Death Penalty Seminars,Derrida makes much of another convoluted Appendix to the Metaphysics of

Morals, where Kant recalls the categorical imperative nature of the iustalionisand addresses some difficult casesas it happens, Derrida thinks notby chance, cases of a sexual nature, namely, rape, pederasty, and bestialitywhere strict application of the talionic law seems less than obvious because itwould necessarily involve a punishment that violates humanity in the personof the criminal.)10 The two cases in question here in the Appendix to theIntroduction seem rather more general that those cases of rape, pederasty,and bestiality, and they run the risk, if one is not careful, of invading the wholedomain of right if they are not excluded from it as Kant is trying to do here.

One case is what Kant calls equity(Aequitas), and the other is theright of necessity(ius necessitatis).

The appeal to equity tends to pull right back toward ethics, and the right ofnecessity tends to pull it in the other direction toward mere mechanism (byanalogy with which Kant in any case always has to think right, just because

10 The mere idea of a civil constitution amonghumanbeings carries with it the concept ofpunitive justice belonging to the supreme authority. The only question is whether it is a matterof indifference to the legislator what kinds of punishment are adopted, as long as they areeffective measures for eradicating crime (which violates the security a state gives each in hispossession of what is his), or whether the legislator must also take into account respect for thehumanity in the person of the wrongdoer (i.e., respect for the species) simply on grounds of right.I said that theius talionisis by its form always the principle for the right to punish since it aloneis the principle determining this idea a priori(not derived from experience of which measureswould be most effective for eradicating crime).*But what is to be done in the case of crimesthat cannot be punished by a return for them because this would be either impossible or itselfa punishable crime againsthumanityas such, for example, rape as well as pederasty or bestiality?(MM, 130). The only other place where the right of retribution [Recht der Wiedervergeltung,Kants explicit translation ofius talionis] is explicitly mentioned in The Metaphysics of Moralsis,curiously enough, around the question of whether the dead still have rights, for example againstbeing slandered: Kant thinks they do, even though no deduction of its possibility can be given:whoever robs me of my honor (a slanderer) is just as punishable as if he had done it during mylifetimepunishable, however, not by a criminal court but only by public opinion, which, inaccordance with the right of retribution, inflicts on him the same loss of the honor he diminishedin another (MM, 7677 and note).



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right is not right unless it can be enforced, and enforcement entails somemechanical consideration of forces, precisely, of action and reaction, as wesaw).ThewholedomainofrightasKantdefinesitissituatedbetweenthesetwo

supposedly marginal, equivocal, and slightly shady kinds of supposed right:An authorization to use coercion is connected with any right in the narrowsense (iusstrictum). But people also think of a right in awidersense (ius latium), in which there isno law by which an authorization to use coercion can be determined.There aretwo such true or alleged rights, equityand theright of necessity. The first admits a rightwithout coercion, the second, coercion without a right. It can easily be seen that thisambiguity really arises from the fact that there are cases in which a right is in questionbut for which no judge can be appointed to render a decision. (MM, 2627; emphasis added inthe final sentence)11

The argument fromequityarises when the strict, rigorous application of rightproduces injustice, as judged according to a criterion that cannot however bepresented to any tribunal and that cannot, therefore, give rise to a properlylegal judgment. According to equity, in Kants rather pedestrian example,one oughtnotto respect the equal distribution of proceeds and losses in a casewhere one business partner has done more work and thereby suffered pro-portionately greater losses that the others when the business fails: according toequity, his disproportionate loss should be compensated because of his dis-proportionate effort, but according to the law, one must respect the contract

that demands equality of distribution. Again, according to equity, someonewho receives a payment due to her in a currency that has in the meantimebeen devalued is, according to equity, due a supplementary payment that notribunal, however, is in a position to accord. Equity is a mute divinity whocannot be heard [eine stumme Gottheit] (MM, 27) but one that nonethelessincites people to present cases before a tribunal when those cases can, accord-ing to Kant, in fact be heard only by the court of conscience. Kant does notcontest thetruthof what he calls equitys motto, which is simply: summum ius,summa iniuria, the strictest right is the greatest wrong [Das strengste Recht ist das

grte Unrecht]. This formula is quoted by Kant without reference, but inter-estingly enough appears to stem, via Menander,12 from the play by Terence,

11 I want to say, a right is in question that is therefore not strictly a sovereign right, or anexception that is not subject to a principle of sovereignty, except perhaps on a Bataillean ratherthan Kantian construal of sovereignty.

12 kaln onmoijdren drn tonmou/lankribukojnthjanetaireferred to by Tams Ntri (Summum Ius Summa IniuriaComments on the HistoricalBackground of a Legal Maxim of Interpretation, Acta Juridica Hungarica45 [2004]: 30121) asMenandros Nr. 545; I quote it here fromMenander: The Principal Fragments, ed. and trans. FrancisG. Allinson (London: Heinemann/Putnams, 1921), 512, where it is numbered as fragment 635.

Allinsons translation: The laws are a very fine thing, but he who keeps his eye too close upon thecode turns out to be a backbiter. Ntri comments: Terence speaks about ius, whereasMenander mentionsnomoi, i.e. the laws and not dikaion; thesynchophantscarries a slightly wider

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theHeautontimoroumenos, the self-tormentor or self-punisher, that gives its titleto a famous poem by Baudelaire (which includes the line je suis la victime etle bourreau; I am the victim and the executioner). This poem is indeed

mentioned by Derrida in the Death Penalty Seminars, precisely because ofthe implication of Kants reflexive version of the talionic law that it alwaysinvolves a kind of self-inflicted punishment, such that on Kants view, anycriminal is a kind ofheautontimoroumenos. The formula is then quoted morethan once as proverbial wisdom by Cicero among others and is the object oflearned commentary in ErasmussAdagesin the sixteenth century. This mottoof equity,summum ius, summa iniuria, seems to be full of deconstructive promise:we could imagine experimenting with various more or less free translations ofit: maybe not just extreme right is extreme wrong, or the height of law is

the height of lawlessness, but maybe the height is the depths, the top isthe bottom, the best is the worst, the sovereign is a beast, or even,remembering that lovely Latin term for sovereignty, superanus, the sovereignis an asshole, which would probably lead us back to Bataille and the solaranus. Kant does not contest the truthof what he calls equitys motto, then,but simply the ability of right to remedy that wrong, which it seems toproduce in and through its very righteousness, by its very rigor.

The second case is the supposed right of necessity (ius necessitatis, Notrecht).Kant deals with it even more rapidly, under the sign of contradiction, because

here there would supposedly be a right where there is in fact no priorinjustice. I invoke the right of necessity not when the other has attacked meand I have killed him to save my own life in self-defense, but when, withoutits being his fault, I would die if I did not kill him. For example, after ashipwreck, I push the only other survivor off the single piece of floatingwreckage in order to use it to save myself. (Or, having made it with that onlyother survivor to a desert island, I kill and eat him to avoid starvation.) HereI am acting under a certain constraint, but right cannot be involved, saysKant, because there could be no penal law to punish this case (it would makeno sense to threaten me with death for taking by force the last floating plank,since a threat of an ill that is stilluncertain(death by a judicial verdict) cannotoutweigh the fear of an ill that iscertain(drowning) (MM, 28).13 This does not

semantic load thanmalitia, which could be translated into Latin asdamnum,calumniaormalum, inany way designating a content in contradiction with the spirit and destination ofius;the lian akribscan be equally translated by the phrasesummo iureornimis exacto quodam studio. Hence it becomesobvious that Terence heavily altered the Menandrian thought and adapted it to the circum-stances of Roman legal life but preserved its basic message (Summum Ius Summa Iniuria,303).

13 It is unclear to me how this fits with Kants insistence elsewhere that the essence of thedeath penalty is absolutely not dissuasive. It seems that the argument here does not fall underthe talionic principle at all, whence perhaps Kants discomfort with it. Hegel does recognize the



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mean that the action is just (for I have caused someone to die withoutjustification), nor even that it is exactly legal: it is not that I am not guilty, butsimply that I am not punishable. Invoking the supposed law of necessity

changes nothing with respect to my guilt because there could be no necessitythat would make what is wrong conform with law (MM, 28).In both cases, then, we are faced with what Kant calls equivocation. In the

case of equity, subjective right (as exercised by reason) justifies me, whereasobjectiveright (as practiced by a tribunal) can only find that I am in the wrong.In the case of necessity, subjective right says I am wrong (I killed someone)where the objective right of the tribunal finds that it cannot punish me. Inboth cases, the strict or proper exercise of right leaves at least a residue orsouponof injustice, which belongs to the intermundusor the frontier of right in

the sense that it nonetheless concernsright: the case of equity is not purely amoral matter and the cases of supposed necessity are always questionable asto the true measure of that necessity. In both cases, the question is that of apossible legal judgment by a tribunal.

In order to put forward adoctrineof right, which is what he is proposing inthe Metaphysics of Morals, Kant has to dismiss the problem of equity, eventhough it can clearly show up at any moment in the exercise of right, and eventhough it must in fact show up in every case, each time right is rendered in pureand rigorous legality, to the exact extent that the more right is right, the less just itis. Perfectly right right, analogically mathematical or mechanical right, rightin all rigor, always runs the risk, by its very rightness and rigor, its purity andstrictness, of being not so muchpurelyright asmerelyright, constraint withoutjustice, force of law become simple force, and thus absolutely unjust, or atleast a-just, if I can say that. It would seem, then, as though the appeal toequity as Kant defines it here is registering a tension between right and justicethat is an important feature of DerridasForce de loiand much of what follows.And even though the case of appeal to the law of necessity seems as thoughit would show up less often (on the basis of Kants example, or the venerabletradition of stories of shipwrecked sailors he is following here), it is no lessimportant, in that the very possibility of such an unjudgable case (even if therewere only one) seems to put the very possibility of a clearly delimited doctrineof right into question.

In fact, it is probably no accident that this problem of a supposed right ofnecessity returns explicitly in Kant at a crucial point of his political philoso-phy, namely, that of the revolution, discussed at some length by Derrida inthese seminars. It is hard not to see some similarity between the shipwreck

right of necessity that he presents as a right of life and thereby freedom that is explicitly at oddswith abstract right (PhR, secs. 12728).

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survivor, guilty but unpunishable,14 and what happens in political revolution.Here the revolutionaries are, according to the logic of sovereignty that Kantlays out implacably (rigorously), by definition neverwithin their rights, even

though they may be tempted to appeal to the supposed right of necessity tojustify their actions (for it would be simply a contradiction to concede arightto revolution, which would amount to recognizing a sovereignty other thanthat of the sovereign, which is contradictory). They are therefore punishableby death, however great the distress, theNot, they claim to have been in underthe sovereign against whom they are revolting. But once the revolution hassucceeded (if it succeeds), they are clearly unpunishable. Right cannot punishthis action that suspends and interrupts right (Necessity knows no law herebecause the only law necessity knows is the law of nature against which the

whole apparatus of right is set up) and yet right is also suspended on it: in thecase of revolution, this case shows how right in fact originates in a violencethat escapes its own judgment, the kind of foundational or transcendentalviolence that Derrida discusses inForce of Lawand pursues in these seminarsin terms of the tension in Kant between his absolute horrified condemnationof the supposedly legal execution of Louis XVI (a chasm that irretrievablyswallows everything [MM, 97n]) in a famous footnote to The Metaphysics of

Morals, on the one hand, and on the other, his apparently more positiveaccount inThe Conflict of the Facultiesof the enthusiasm with which the Revo-

lution was received by observers or spectators as a sign that the human raceis progressing for the better (the figure of the chasm or the abyss, also aprivileged example in Kants account of the sublime, might be the focal pointfor what I have just called a tension here).15 The danger of revealing suchfoundational violence also seems to be what dictates Kants firm assertionelsewhere in the Rechtslehrethat subjects should not inquire into the factualhistorical origin of the state in which they live, lest their almost inevitablediscovery of its violent origin inspire them to resist the current authorities,

14 As Kant makes a little clearer in a footnote to the Theory and Practice essay, it is onlya relative duty for me to preserve my own life (i.e., it applies only if I can do so withoutcommitting a crime). But it is an absolute duty not to take the life of another person who has notoffended me and does not even make me risk my own life. Yet the teachers of general civil laware perfectly consistent in authorizing such measures in cases of distress. For the authoritiescannot combine apenaltywith this prohibition, since this penalty would have to be death. But itwould be a nonsensical law which threatened anyone with death if he did not voluntarily deliverhimself up to death when in dangerous circumstances (H. Reiss, ed., Kants Political Writings,2nd ed. [Cambridge: Cambridge University Press, 1991], 81n).

15 In The Metaphysics of Morals, like a chasm that irretrievably swallows everything trans-lates wie ein Alles ohne Wiederkehr verschlingender Abgrund; compare in the third Critique, like anabyss threatening to engulf everything, which translates wie einem alles zu verschlingen drohenden

Abgrund. Emannuel Kant, Critique of Judgment, trans. Werner S. Pluhar (Indianapolis: Hackett,1987), 130.



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which means they could legitimately be punished, got rid of, or expelled (asan outlaw,exlex) (MM, 95) by those same authorities.16

So equity appears singularly in every caseas a kind of inevitable bending

back of the right that always tends to be too right (in the sense of straight,rectus), too strict and rigorous, and the law or the case of necessity (alwaysan exceptional case) is always at the basisof right. In fact, as Kant ofteninsists, lawin general, the very concept of law in all its rigor, must have thecharacter of necessity, be it on the side of the laws of nature dictated by thelegislative understanding or on the side of the moral law, where the typicthat supposedly borrows from the law of nature the form of lawfulness(Gesetzmssigkeit) also borrows from it precisely this character of necessity.The problem with Kants thinking about law seems to be concentrated in

this problem, this equivocation of a necessity that both grounds law andright and that immediately undermines the foundations of that same right.It is necessary that the law have the character of necessity, but necessityknows no law and is the suspension of all justice. (I imagine it is no accidentthat this is starting to sound like Carl Schmitts Political Theology.) Further-more, on this reading, necessity as a character of the law is exactly whatequity is mutely contesting from the other end of legal space, as it were,exactly what places the rigor and righteousness of right in tension with anappeal to justice it is always tendentially denying and against which the

appeal to equity is the perpetual protest.I want to suggest that these two exceptional, equivocal cases (equity and

necessity) show up saliently in the question of the death penalty, which wouldthen indeed become the case where the veryrigorof Kants thinking in generalof theius talionisas the categorical imperative of penal law is most evident andso, potentially, also most in crisis. This seems to have something to do with avery general deconstructive way of thinking whereby the more somethingappears to become itself or to come into its own (the more just justice appearsto become by conforming more and more to the purely formal talionicprinciple, the more right or straight right gets), the more nearly it approachesits apparenttelos, the more it tends (catastrophically, I often find myself saying)to collapse into the apparent opposite of itself (here exactly as the motto ofequity says:summum ius, summa iniuria), so that the death penalty isboththe verykeystone of the rational system of law (the guarantor of its dignity, what raisesman above mere phenomenal life) and something like its ongoing scandalor inner principle of collapse and ruin. And I take it that this structure is atleast formally similar to what the later Derrida often describes in terms of

auto-immunity.16 I argue inFrontires kantiennesthat this exlexstatus is also that of the philosopher as such.

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I think that Derrida is getting at something like this when he refers inSession Five of the first year of the seminar (talking about two cases ofhomicide that Kant awkwardly wants to exempt from the death penalty while

waiting for culture to catch up with rationality, namely, maternal infanticide,on the one hand, and death resulting from dueling in the military, on theother) to the extraordinary rationality, but also the stupid uselessness of thisKantian logic, of this Kantian position that is as rigorous as it is absurd[aussi rigoureuse quabsurde]. We might try to sum up that simultaneous rigorand absurdity as consisting in Kants stubborn reliance on a whole set ofdistinctions: between, for example, nature and civil society, the subjective andthe objective, the phenomenal and the noumenal, and (salient here) relianceon a distinction between poena naturalisand poena forensis, between the inner

punishment of conscience and the outer punishment of the penal system,between auto-punishment and hetero-punishmenta distinction quite fun-damental for Kant, but one that Derrida thinks has no rigor once thereflexive structure of the talionic principle (whereby, remember, any crime Icommit, I commit against myself) really is made into the categorical impera-tive of penal law. This failure of rigor through rigor itself (the rigor of thetalionic principle leads to the collapse of the rigorous distinction Kant needsto make between inner and outer punishment) functions as what Derrida callsin this session both a hyperconfirmation of Kantian rigor and a real

self-exploding bomb, an implosive power of deconstruction at the very centreof the rationality of right, the right of punishment and, at the centre or thesummit of the right of punishment, the death penalty [une vritable bombeauto-explosive, une puissance de dconstruction implosive au centre mme de la rationalitdu droit, du droit de punir et, au centre ou au sommet du droit de punir, de la peine demort].

What is stupid and useless about such distinctions, their rigorous absurdity,then, seems to be that they prescribe for themselves the telosof their owndisappearance. And this seems to be, more generally, the principle of differ-ence of Derridasdiffrancefrom the Idea in the Kantian sense with which ithas so often been confused, especially perhaps in discussions of the later, moreobviously ethical-and-political work.17 If humans were indeed rational, theywould not break the law and the death penalty (as exemplary of the talionicprinciple and thus of rationality itself) would never have to be applied andwould thus no longer stand as an exemplary instance of that same rationality

17 See for example Gregory Fried, drawing on Slavoj iek, inHeideggers Polemos: From Beingto Politics (New Haven: Yale University Press, 2000), 204. I have been arguing against thisassimilation for over twenty years. See my 1988 essay, Deconstruction and the Philosophers(The Very Idea),Oxford Literary Review10 (1988): 73130, reprinted inLegislations: The Politics of

Deconstruction(London: Verso Books, 1994), 1160, at 3940.



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but rather as a potential proof of its failure. We are rational to the extent thatwe have the death penalty, and we are not yet rational to the extent that weneed to have the death penalty. But if ever we were fully and rigorously

rational, if the law were never broken, then there would be no case, andhuman action would have become every bit as mechanical as the phenomenalnature from which humanity in its noumenal aspect is, apparently, so strenu-ously to be distinguished, exemplarily here by the death penalty as the stampof the superior rational calling of humanity. Achieved justice as rationalitywould not even be justice, but the very necessity from which it needs, in spiteof itself, to distinguish itself. In other words, if the (penal) law really werenecessary it would be quite unnecessary. So just as, at the end ofSpeech andPhenomena, all of Husserls essential distinctions are shown to depend for

their coherence on the very failure of reason to achieve its teleological end inthe convergence of fact and right (such that the teleology is interrupted and,famously, in a sentence that I think is the key to all Derridology [I have atee-shirt to prove it] infinite diffranceis finite), so Kants right depends onthe very obliqueness, curvature, or equivocation to which it is also rationallycommitted to putting an end. And this structure (or stricture, as we should, inall rigor, in more or less rigor, call it after Glas, to which Derrida refers hisreader in the one place I am aware of in his published work where heexplicitly casts doubt on the rigor of the concept of rigor itself)18 would also,

or so my hypothesis goes, describe everything that it is tempting to present asan Idea in the Kantian sense and be exactly what is at stake in all theunconditionals Derridas late work is trying to think in a logic other thanthat of sovereignty and, so, other than that of the theologico-political. Wemight want to say along the same lines as the infinite diffrance is finiteslogan: infinite reason is irrational, or perhapsto use one of my ownidiomsthe end of reason is the end of reason, and that would then allowus some access to Derridas gloss, in the opening session of the second year ofthe seminars, on a psychoanalytic reading of Kant whereby wanting tomaintain the pure necessity of the death penalty, as jus talionis and purereason, even if it is in fact useless and cannot be applied is, Reik-Freud wouldno doubt say, as close as can be to a paranoid symptom [vouloir maintenir, mmesi elle est en fait inutile et inapplicable, la ncessit pure de la peine de mort, comme justalionis et comme raison pure, cest tout prs, dirait sans doute Reik-Freud, du symptme

18 ( supposer dailleurs que limpratif de la rigueur, stricto sensu, de la plusstricterigueur,soit labri de toute question) (Passions: loffrande oblique[Paris: Galile, 1993], 29). Derridaappends a note referring to this parenthesis: Je me permets cet gard de renvoyer autraitement conjoint du secret, de la stricture, de la Passion et de lEucharistie dans Glas, Paris,Galile, 1974, 60 et suiv. The word rigor hardly ever appears in Glas, however, and the leastone can say is that nothing in the immediate sequence of page 60 really helps the reader tounderstand why this would be the special place to look for a questioning of the concept of rigor.

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paranoaque]. The principle of Derridas early response to Husserl, stressing aparadoxical finitude of the infinite, then, seems to me to run throughout hiswork up to these late seminars (and beyond, to Voyous, for example) and to

motivate Derridas own opposition to the death penalty in the name of justsuch a complex infinite finitude or finite infinitude. What he calls themadness of the death penalty is that it represents an attempt to put an endto, to finish off, the finitude that is the very opening to the unforeseeablefuture event that constitutes life itself as thus intrinsically finite and mortal.This complex thought of finitude (which just is what all of Derridas thinkingsince diffranceand the trace is trying to elaborate, rather than the existingforms of abolitionist discourse of which Derrida is quite critical in the sem-inars) would then pave the way for the first philosophical opposition to the

death penalty to be able to measure up to the rigor of Kants argumentation,or to be able to show how that rigor is, when read strictly and rigorously, itselfdeconstructive of the very oppositions it is supposed to secure.

POST-SCRIPTUM

This structure or stricture whereby the infinite is finite can be seen in theDeath Penalty Seminars to communicate with another (to me at least) rathermysterious theme in later Derrida, namely, that death is each time unique,

the end of the world.19 Here is a passage from Session Three of year two ofthe seminars that makes the link quite clear:

Each time something dies, it is the end of the world. Not of a world, but of the world,the totality of the world, the infinite opening of the world. And this is so whateverliving being is in question, from tree to protozoa, from mosquito to man, death isinfinite, it is the end of the infinite. The finite of the infinite. . . . Wherever there isdeath, the world closes itself. The infinite finishes itself. This is an end of the worldthat is without equivalent, which has so little equivalent that with respect to thedeath of the slightest living being the absolute end of the world or, if you prefer, the

simple destruction of the earth and of terrestrial humanity changes nothing, aggra-vates nothing, remains in any case incommensurable. [Chaque fois que a meurt, cest lafin du monde. Non pas dun monde, mais du monde, du tout du monde, de louverture infinie du

monde. Et cela de quelque vivant quil sagisse, de larbre au protozoaire, du moustique lhomme,

la mort est infinie, elle est la fin de linfini. Le fini de linfini. . . . Partout o il y a de la mort, le

monde se ferme. Linfini se finit. Cest une fin du monde qui est sans quivalent, qui a si peu

dquivalent quau regard de la mort du moindre vivant la fin du monde absolue ou, si vous prfrez,

la seule destruction de la terre et de lhumanit terrestre ne change rien, naggrave rien, reste en tout

cas incommensurable.]

19 Jacques Derrida,Chaque fois unique, la fin du monde, ed. Pascale-Anne Brault and MichaelNaas (Paris: Galile, 2003), 12425.



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This unique end of the world also brings into play the originof the world, aswhat seems to be the earliest appearance of the end of the world motif. (Iam very grateful to Kas Saghafi who pointed this reference out to meit

predates by about a year what I had previously thought was the earliestreference to end of the world, in Aporiesfrom 1992.) This is from a letterwritten after the death of Max Loreau, included in Chaque fois unique, la fin dumonde:

I lack the strength to speak publicly and to recall each time another end of the world,the same end, another, and that each time it is nothing less than an origin of theworld, each time the sole world, each time the unique world which in its end appearsto us as what it was at the origin, sole, unique, and what it owes to the origin, thatis what it will have been, beyond any future perfect. . . . [La force me manque pour prendrela parole au grand jour et rappeler chaque fois une autre fin du monde, la mme, une autre, et quechaque fois ce nest rien de moins quune origine du monde, chaque fois seul, chaque fois lunique

monde qui en sa fin nous apparat comme ce quil fut lorigine, seul, unique, et ce quil doit

lorigine, cest--dire ce quil aura t, au-del de tout futur antrieur. . . .]20

If, then, the mysterious end of the world claim loops back to the onlyslightly less mysterious infinitediffranceis finite claim and is even a kind ofrereading of that claim, along lines that are I think entirely characteristicof Derridas still hard-to-describe work (uvre?Corpus?)so that the end ofthat work plugs back into its beginnings, as it wereit does so not only by

looping the empirical or historical end of Derridas thinking from the 1990sand 2000s back to its empirical beginning in the 1950s or 1960s, but bylooping the verymotifof the end (which preoccupied Derrida more especiallytoward the end) back to the motif of the origin (which preoccupied Derridamore especially toward the beginning).21 For what seems to be described forthe first time in this piece on Max Loreau (the thought of the end of the world,then) is itself perhaps a rereading of a famous and difficult passage fromDe la

grammatologie, which is one of the defining passages for the thought of the trace,no less, and in which a crucial role is played by The absence of an otherhere-and-now, of another transcendental present, of an otherorigin of theworld appearing as such, presenting itself as irreducible absence in the pres-ence of the trace [Labsence dun autre ici-maintenant, dun autre prsent transcendantal,dune autre origine du monde apparaissant comme telle, se prsentant comme absenceirrductible dans la prsence de la trace].22

These motifs, these same and different motifs that are, or bear, the trace ofeach other, all saliently interrupt or disrupt the structure of the regulative idea

20 Derrida,Chaque fois unique, la fin du monde, 12425.21 See my brief text Beginnings and Ends, in Not Half No End: Militantly Melancholic Essays

in Memory of Jacques Derrida (Edinburgh: Edinburgh University Press, 2010), 13638.22 Derrida,De la grammatologie[Of Grammatology] (Paris: Minuit, 1967), 68.

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as presented by and in the wake of Kant, which is still perhaps the dominantschema of how we think about many questionssaliently ethical and politicalquestions. Whatever dignity Derrida is prepared to concede to the Kantian

Idea in a famous passage fromVoyous, it seems that the thought of the end ofthe world is the end of the Idea of the world (as Derrida reminds us, worldis the second of the three original regulative Ideas as Kant formulates them inthe firstCritique), the end of what Derridain the very last session of his verylast seminar (La bte et le souverain II), in a long, impassioned, and almost lyricalpassage that as often in this late work is inspired in part by the line from PaulCelan that states Die Welt ist fort, ich muss dich tragencalls simply aphantasm and a word that is no more than a convenient and reassuring bitof chatter [Un bavardage commode et rassurant].23 The end of the world is the end

of the Idea of the world, and more precisely the end of its end, the (finite) endof its (infinite) end, the failure or collapse of its telosin the open-endedness ofthe dispersion of singularities and alterities for whichdiffrance, dissemination,and trace are possible names. The death penalty tries to put an end to thatend of the end of the world by re-infinitizing finitude in the name of reason,or of the Idea of reason (subjective and objective genitive): abolitionist dis-course often runs the risk of complicity with that gesture insofar as it appealsto an infinite value of Life or a reconciliation in the infinite justice of thebeyond. The principle of Derridas opposition to the death penalty will,

rather, flow from the trace-structure, the finitude of infinite diffrance, thefinitizing interruption of the Idea of reason that must, in all rigor, take placeeach time uniquely, each time here-and-now, interruptively, without any endin sight.

23 Jacques Derrida, Sminaire la bte et le souverain II(Paris: Galile, 2009), 367, translated byGeoffrey Bennington as The Beast and the Sovereign, Volume II (Chicago University Press, 2011),267.


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