Abstract
During his 2000–2001 seminar on the death penalty, Jacques Derrida argues that Kant is the most ‘rigorous’ philosophical proponent of the death penalty and, thus, the thinker who poses the most serious objections to the kind of philosophical abolitionism that Derrida is trying to develop in his seminar. For Kant, the death penalty is the logical result of the fundamental principle of criminal law, namely, talionic law or the right of retaliation as a principle of pure, disinterested reason. In this paper, I demonstrate how Derrida attempts to undermine Kant’s defence of the death penalty by demonstrating both its internal contradictions (the tenuous distinction between poena forensis, that is, punishment by a court, and poena naturalis, natural punishment) and its strange affinities with the law of primitive peoples (as understood by Freud in Totem and Taboo). I argue that Derrida’s repeated returns throughout the seminar to Kant’s Metaphysics of Morals suggest that Kant’s seemingly rational defence of the death penalty is ultimately motivated by interests that belie the supposed disinterestedness of modern law and by a notion of natural justice that at once subtends and subverts all criminal law.
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Notes
The discussion of punishment is to be found in the part of the Doctrine of Right (as opposed to the Doctrine of Virtue) that is devoted to Public Right (as opposed to Private Right). It is there that Kant treats the ‘Right to Punish and to Grant Clemency’. There is also an appendix to the Doctrine of Right, a ‘Further Discussion of the Concept of the Right to Punish,’ in which Kant treats the exceptional crimes of rape, pederasty and bestiality.
Kant cites one exception: a murder with so many accomplices that putting them all to death would lead to the dissolution of the state.
Freud writes in a similar vein just a few pages later: ‘the world of magic has a telepathic disregard for spatial distance and treats past situations as though they were present’ (Freud 1950, p. 85). In other words, when the internal world is projected upon the external world of cause and effect, simply thinking something makes it so.
While Derrida does not comment on this passage or on Freud’s analogy between the categorical imperative and the taboo in The Death Penalty Seminar, he does look at it in some detail in Glas (see pp. 215–216a).
References
Derrida, Jacques. 2014. The death penalty, volume 1, seminar of 1999–2000. Chicago: University of Chicago Press.
Derrida, Jacques. 2016. The death penalty, volume 2, seminar of 2000–2001 (trans: Elizabeth Rottenberg). Chicago: University of Chicago Press.
Derrida, Jacques, and Elisabeth Roudinesco. 2004. For what tomorrow….. Stanford, CA: Stanford University Press.
Dumas, Alexandre. 1996. The Count of Monte Cristo. New York: Penguin Books.
Freud, Sigmund. 1950. Totem and taboo. New York: W. W. Norton & Company Inc.
Kant, Immanuel. 1996. The metaphysics of morals. Cambridge: Cambridge University Press.
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Naas, M. Kant with Freud: Derrida’s Analysis of the Ancient Dream of Self-Punishment. Law Critique 27, 151–169 (2016). https://doi.org/10.1007/s10978-016-9182-3
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DOI: https://doi.org/10.1007/s10978-016-9182-3