This essay enquires into the implications for criminal law of Derrida’s analysis in the Death Penalty seminars. The seminars include a reading of Kant’s Metaphysics of Morals, specifically Kant’s reflections on the sovereign right to punish, which is read in conjunction with the reflections of Freud and Reik on the relation between the unconscious and crime, as well as Nietzsche’s reflections on morality, punishment and cruelty. What comes to the fore in Derrida’s analysis is a system of economic exchange operating on an unconscious level, of which criminal law forms an intrinsic part. Derrida’s analysis of the ‘origin’ of crime in the seminars poses serious questions to the assumption of freedom underlying modern criminal law. The link, which he posits between punishment and political theology, likewise challenges the existing theories and forms of punishment. What the seminars call for, in the name of the Kantian Enlightenment, is a radical break with economic circularity as it operates in respect of crime and punishment.
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This section is usually translated as ‘The Doctrine of Right [Der Rechtslehre]’, but ‘Law’ appears contextually more appropriate.
See also Derrida (2017, p. 95).
Reik (1959) views the compulsion to confess and the closely related unconscious need for punishment as a general tendency, and thus detectable also beyond the field of criminal law. Examples would include a partner who is sexually unfaithful and leaves behind clues of his/her infidelity; a person who is constantly hostile towards relatives and friends, even though this causes suffering; and a child who acts naughtily, thereby seeking punishment.
See further Reik (1959, p. 474).
See e.g. ‘On the Common Saying’ where Kant (1996, 8:297) speaks about the Idea of reason, that is, ‘to bind every legislator to give his laws in such a way that they could have arisen from the united will of a whole people and to regard each subject, insofar as he wants to be a citizen, as if he has joined in voting for such a will’.
Derrida (2017, pp. 66–67) points out that this situation is portrayed by Kafka in America.
See likewise Freud (2001 XIV, pp. 332–333) (Criminals from a sense of guilt).
See also Freud (2001 XIV, pp. 332–333).
Derrida’s stance towards the Oedipus complex is set out in more detail in The Post Card (Derrida 1987) where he notes, inter alia, that the unconscious generated by the restricted economy of the Oedipus complex is inscribed within what can be referred to as a ‘general economy’.
See Freud (2001 XIV, p. 333): ‘We must remember…that parricide and incest with the mother are the two great human crimes, the only ones which, as such, are pursued and abhorred in primitive communities’.
See e.g. Derrida (2001, p. 22): ‘I always have to be forgiven, to ask forgiveness for not giving, for never giving enough, for never offering or welcoming enough. One is always guilty, one must always be forgiven the gift.’
See also Derrida (2009, pp. 39–43) where he, in a reading of Hobbes’s Leviathan, analyses the notion of fear as the basis of both crime and compliance with the law, as well as ultimately, for the establishment of the state. It is not the fear of one’s fellow man that is at stake here, but fear for the self, for the wolf inside the self. For analysis, see De Ville (2012).
In Derrida and Roudinesco (2004, p. 48) Derrida notes that the word freedom ‘often seems to me to be loaded with metaphysical presuppositions that confer on the subject or on consciousness—that is, on an egological subject—a sovereign independence in relation to drives, calculation, economy, the machine’.
See Derrida and Roudinesco (2004, pp. 48–49, also at p. 58) where Derrida speaks of ‘an excess of play in the machine’.
See also Derrida (2014, pp. 83–88).
See likewise Reik (1959, p. 473) who, invoking Freud, notes that ‘punishment not infrequently offers, to those who execute it and who represent the community, the opportunity to commit, on their part, the same crime or evil deed under the justification of exacting penance’.
One cannot therefore make a convincing argument either for or against the death penalty simply in the name of cruelty. We know that Beccaria for example, argued for the abolition of the death penalty, as it was not cruel enough; see Derrida (2014, pp. 160–161). On the other hand, proponents of the death penalty at times seek through new inventions to make executions more humane and less cruel.
See likewise Foucault (1991, pp. 15–16) who points to the bodily pain of imprisonment and the trace of torture that remains in modern systems of punishment, even though the primary site of concern has moved towards the offender’s soul.
In Derrida and Roudinesco (2004, p. 142) Derrida points out that the death penalty is at the same time transcendental and internal. Whilst it is an element of criminal law, i.e. one punishment among others, it is also external, excluded: the foundation of criminal law, its origin.
Translation modified. See likewise Derrida (2017, p. 140) on the ius talionis as ‘the necessary, the ineluctable passage from quality to quantity, from the in-calculable or the non-calculable to the calculable’, and at p. 144.
Derrida relies here on the distinction in Kant between form and content, the latter which would e.g. point to the ‘interests’ at stake in other discourses on the death penalty.
‘Sex’ is of course not here to be understood in the ordinary sense, or in an Oedipal sense, as indicated earlier.
Further complicating Kant’s stance on the death penalty is his statement that the (execution of the) death penalty ‘must still be freed from any mistreatment that could make the humanity in the person suffering it into something abominable’, Kant (2015, 6:333). As Derrida (2014, p. 273) points out, this requirement is impossible to comply with, making ‘both the condemnation to death and especially its execution’ forever impermissible. Kant would thus de lege be a proponent of the death penalty, but de facto an abolitionist. See also Derrida and Roudinesco (2004, p. 152).
It can be noted in this regard that for Heidegger (similar to what Kant seems to be saying here), death ‘is the measure because it gives the measure, and giving the measure, it is not measurable’. Derrida (2017, p. 156).
Something similar can be said of movements towards decriminalisation of e.g. prostitution, homosexuality, abortion, drugs and petty offences.
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De Ville, J. On Crime and Punishment: Derrida Reading Kant. Law Critique 31, 93–111 (2020). https://doi.org/10.1007/s10978-019-09254-7