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Rigor by Bennington
Rigor by Bennington
Geoffrey Bennington
abstract: In his seminars on the death penalty, Derrida consistently describes Kant’s
arguments in favor of capital punishment as “rigorous” and explicitly relates that rigor
to the mechanisms of execution and the subsequent rigor mortis of the corpse. ‘Rigor’
has also often been a contested term in descriptions of deconstruction: different
commentators have either deplored or celebrated the presence or the absence of rigor
in Derrida’s 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 need
to question the rigor of the concept of rigor itself. In this paper, I will outline the place
of Kant in the Death Penalty Seminars and suggest that it is the very rigor attributed
to Kant that makes him (rather than some other writers—whether supporters or
opponents of the death penalty—whose arguments seem less rigorous to Derrida) an
exemplary object for deconstructive attention, not for the first time in Derrida’s work.
Broadening the focus beyond the texts Derrida explicitly analyzes, I suggest that this
kind 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 of
this situation for the still difficult issue of the more general relation between decon-
struction and critique in the Kantian sense.
Geoffrey Bennington is Asa Griggs Candler Professor of Modern French Thought at Emory
University where he is also Chair of the Department of Comparative Literature. He is the
author of fifteen books and many articles and chapters on philosophical and literary-theoretical
topics. 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), Frontières kantiennes (Galilée, 2000), and, most recently, Not Half No End: Militantly Melan-
cholic Essays in Memory of Jacques Derrida (Edinburgh University Press, 2010) and Géographie et
autres 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 the
seminars to appear, The Beast and the Sovereign, Volume I and Volume II, appeared in 2009 and 2011.
He is currently working on a book of deconstructive political philosophy tentatively entitled
Scatter.
The Southern Journal of Philosophy, Volume 50, Spindel Supplement (2012), 20–38.
ISSN 0038-4283, online ISSN 2041-6962. DOI: 10.1111/j.2041-6962.2012.00116.x
20
RIGOR 21
“Bennington is big on rigor.”
—Richard Rorty, “Is Derrida a Quasi-Transcendental Philosopher?”1
As Richard Rorty points out in the review article from which I take my
epigraph (which I choose to read as one of the nicest things anyone has
ever said about me, at least in a professional context), many commentators
on Derrida’s work have invoked the notion of “rigor.”2 This term has been
invoked both to deplore its supposed lack (for example, in the infamous
letter in which a number of more or less unknown philosophers protested
against Derrida’s 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 is a feature of that work, something to be
valued in it, a quality that means it cannot accurately be described in the
“anything goes” or “free play” terms that often characterized its early
reception. Rorty himself, of course, is not so big on rigor (indeed I chide him
for just that failing in the book he is reviewing in his article) and fears that
characterizing Derrida’s work in such terms will commit one to the view
that that work is in the end rather traditionally and unfortunately philo-
sophical and more especially philosophical in an essentially Kantian kind
of way.
My point today will not be to criticize Rorty’s understanding of Derrida in
general but to take quite seriously what is at stake in this language of rigor as it
comes to be used in and around Derrida’s work, and more especially to use it
as a way into considering once again the still (for me at any rate) quite
mysterious relation of deconstruction to critique in the Kantian sense. As the
success of the term ‘quasi-transcendental’ in describing some important fea-
tures of Derrida’s thinking might suggest (the Rorty piece from which I took my
epigraph is entitled, “Is Derrida a quasi-transcendental philosopher?” explicitly
referring to his earlier essay “Is Derrida a transcendental philosopher?”), this
relation to critique in the Kantian sense seems important in understanding
Derridean deconstruction in general and in understanding its own understand-
ing of its relation to the philosophical tradition. In the context of this confer-
1
Richard Rorty, “Is Derrida a Quasi-Transcendental Philosopher?” Contemporary Literature
36 (Spring 1995): 187.
2
Rorty, “Is Derrida a Quasi-Transcendental Philosopher?” reviewing Jacques Derrida, ed.
Geoffrey Bennington and Jacques Derrida, trans. Geoffrey Bennington (Chicago: University of
Chicago Press, 2003). Rorty does not of course mean to be entirely complimentary. See my
reply to some of his objections at the end of “X,” in Interrupting Derrida (London: Routledge,
2000), 76–92.
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,
1974–1994, ed. Elisabeth Weber, trans. Peggy Kamuf et al. (Stanford, CA: Stanford University
Press, 1995), 419–21.
22 GEOFFREY BENNINGTON
It is easy, perhaps too easy, even if one must indeed begin with this, to recall that the
death penalty is a juridical concept that, insofar as it belongs to penal law, that is, to
a set of calculable rules and prescriptions, is distinct from singular murder, from
individual 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 a
dispute, thus par excellence and at least virtually, the agency of a state, of an
institution of a juridico-statist, juridico-political type, or even a reason of state, a
RIGOR 23
rationality, a logos with general or universal claims, a juridical reason rising above the
parties, the particular interest and passion, the pathos, the pathological, of individual
affect. The effect of coldness, of frozen insensitivity that often takes hold of us when
faced with the discourse, with the process of judgment, or with the ritual of execution
of the death penalty, this effect of cadaverous coldness or rigor as rigor mortis is also
or 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, above
immediate passion, and above the individual relations between men of flesh and
blood; it is thus this alliance between reason, universal rationality, and the machine,
the machinality of its operation. All discourses that legitimate the death penalty are
first of all discourses of state rationality having a universal claim and structure; they
are theorems of state right, of the state machine. In the rationalist space thus defined
or alleged, it is understandable that very often, if not always and typically, the
abolitionist 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 feminine
allure, with the horror that is inspired by the cruelty of execution.4
Although Derrida is here only beginning to map out the terms of the debate
as it has traditionally been conducted (and is certainly not simply adopting the
“feminine” side of the argument, although he is also explicitly not simply
rejecting the claims or virtues of pathos in talking about the death penalty), the
link 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 extension
harshness in the execution of the law, then figured quite readily by the
cadaverous rigidity of the executed corpse.
As we shall see, the internal tensions this raises for the rationalist position
are themselves already at work in Kant, whose very rigor, or so I will
suggest, allows a deconstructive event to happen. And this seems to be a
general rule with deconstruction: although I think it is sometimes still pre-
sented as seeking out and exacerbating marginal or inessential weaknesses
or 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 texts
when they are at their strongest and best, rather than from contingent
lapses 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 Kantian
sense, to which we might then say it is very close, so that Derrida is right up
against Kant (tout contre Kant).
4
This is my own translation, based on Peggy Kamuf’s working draft translation of the first
year of the Death Penalty Seminars. Throughout this paper, quotes from the unpublished
Death Penalty Seminars will be cited by indicating whether the quote is from the first or second
year, along with the relevant session number.
24 GEOFFREY BENNINGTON
Kant, then, and more especially the first part of Kant’s Metaphysics of
Morals—the Rechtslehre or doctrine of right—will represent for Derrida the
most rigorous philosophical attempt to justify the death penalty on rational
grounds. If in Derrida’s repeated hypothesis (also firmly expressed in
conversation with Elizabeth Roudinesco in De quoi demain?),5 no philosopher
as such has ever opposed the death penalty (and to that extent philosophy
has always been at least implicitly supportive of it), Kant’s explicit rational
endorsement of it can be taken to stand for the philosophical position on the
matter, the position that would have to be refuted or deconstructed if a
properly philosophical opposition to the death penalty were to be
attempted. Kant’s justification more especially hangs (if I can say that in
this context) on his general grounding of all penal law in a principle that
functions as what he explicitly presents as its “categorical imperative”: this
principle is simply that of the so-called talionic law (an eye for an eye and
a tooth for a tooth, as it is often, perhaps misleadingly, formulated). Kant’s
object, which might indeed be called “all sublime” (like that of W. S. Gil-
bert’s Mikado, in that it supposedly bespeaks an incomparable rational
dignity 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 Kant’s 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 any
crime is to be understood as simultaneously perpetrated, as it were, on the
perpetrator him or herself.
In the Doctrine of Right, the first part of The Metaphysics of Morals, Kant
writes:
But what kind and what amount of punishment is it that public justice makes its
principle and measure? None other than the principle of equality (in the position of
the 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 from
him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you
kill yourself. But only the law of retribution [das Wiedervergeltungsrecht] (ius talionis)—it
being 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; all
other principles are fluctuating and unsuited for a sentence of pure and strict
[“strict” here translates the adjective streng, 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 University
Press, 2004).
RIGOR 25
sind hin und her schwankend und können anderer sich einmischenden Rücksichten wegen keine
Angemessenheit mit dem Spruch der reinen und strengen Gerechtigkeit enthalten.]6
6
Immanuel Kant, The Metaphysics of Morals [MM], trans. Mary Gregor (Cambridge: Cam-
bridge University Press, 1996), 105–06.
7
Just because there is no substitute or surrogate in this case, it would seem that this is where
the principle of the ius talionis is most purely embodied. After a curious excursus designed to
show that the death penalty imposed in cases other than murder still in fact obeys the principle
of the ius talionis, Kant adds: “Moreover, one has never heard of anyone who was sentenced to
death 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 accordance
with universal laws that are grounded a priori” (MM, 107). This idea that the death penalty
represents the purest or clearest case of justice as straightforward equivalence of crime and
punishment can also be found in Hegel, not mentioned by Derrida until the final sessions of the
second year of the Death Penalty Seminars, where he is also concerned to find a “subtle but
decisive” difference between Kant and Hegel on these matters, to which he promises to return
but does not apparently do so: whatever that subtle but decisive difference may be, an addition
to sec. 101 of the Philosophy of Right seems to follow Kant in singling out the death penalty (as
punishment for murder) as the only case where penal justice need not calculate an equivalence of
“value” of crime and punishment, in that the equivalence is immediately given, one is tempted
to 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],
129–30).
8
But he does not apparently reflect on Kant’s rather acerbic analysis of “dignities” as they
attach to a hereditary nobility (MM, 102–03). See too Derrida’s discussion of this Kantian
concept of Würde in sec. 40 of Foi et savoir (Paris: Seuil, 2001), and in L’animal que donc je suis (Paris:
Galilée, 2006). I argue in a forthcoming work that this notion of dignity (and saliently its
appearance in the idiom “digne de ce nom”) is a crux for understanding Derrida’s later thinking.
26 GEOFFREY BENNINGTON
9
Derrida, Du droit à la philosophie (Paris: Galilée, 1990), 87n1; as far as I know, this is
Derrida’s only reference to this passage from Kant. The next part of this paper is a second
attempt at what I now think was only a partially successful analysis that I first attempted some
time ago in Frontières kantiennes (Paris: Galilée, 2000), here adapted from an English version,
“Kant’s Open Secret,” Theory, Culture and Society 28 (2011): 26–40, © 2011 by Sage. Reprinted
by permission of Sage Publications.
28 GEOFFREY BENNINGTON
But without making incursions into the province of ethics, one finds two cases that
lay claim to a decision about rights although no one can be found to decide them,
and that belong as it were within the intermundia of Epicurus.—We must first separate
these 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 the
doctrine of right. (MM, 26)
The intermundus or metakosmion (posited by Epicurus in the letter to Pythocles,
quoted by Diogenes Laertius in Book 10 [I: 89] of The Lives and Opinions of
Eminent Philosophers) is, from the point of view of right at any rate, a place of
uncertainty, ambiguity, or equivocation (ius aequivocum) and is placed, then, in
an 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 ius
talionis and addresses some difficult cases—as it happens, Derrida thinks not
by chance, cases of a sexual nature, namely, rape, pederasty, and bestiality—
where strict application of the talionic law seems less than obvious because it
would necessarily involve a punishment that violates humanity in the person
of the criminal.)10 The two cases in question here in the Appendix to the
Introduction 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 whole
domain 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 the right of necessity
(ius necessitatis).
The appeal to equity tends to pull right back toward ethics, and the right of
necessity tends to pull it in the other direction toward mere mechanism (by
analogy with which Kant in any case always has to think right, just because
10
“The mere idea of a civil constitution among human beings carries with it the concept of
punitive justice belonging to the supreme authority. The only question is whether it is a matter
of indifference to the legislator what kinds of punishment are adopted, as long as they are
effective measures for eradicating crime (which violates the security a state gives each in his
possession of what is his), or whether the legislator must also take into account respect for the
humanity in the person of the wrongdoer (i.e., respect for the species) simply on grounds of right.
I said that the ius talionis is by its form always the principle for the right to punish since it alone
is the principle determining this idea a priori (not derived from experience of which measures
would be most effective for eradicating crime).*—But what is to be done in the case of crimes
that cannot be punished by a return for them because this would be either impossible or itself
a punishable crime against humanity as such, for example, rape as well as pederasty or bestiality?”
(MM, 130). The only other place where the “right of retribution” [Recht der Wiedervergeltung,
Kant’s explicit translation of ius talionis] is explicitly mentioned in The Metaphysics of Morals is,
curiously enough, around the question of whether the dead still have rights, for example against
being 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 my
lifetime—punishable, however, not by a criminal court but only by public opinion, which, in
accordance with the right of retribution, inflicts on him the same loss of the honor he diminished
in another” (MM, 76–77 and note).
RIGOR 29
right is not right unless it can be enforced, and enforcement entails some
mechanical consideration of forces, precisely, of action and reaction, as we
saw). The whole domain of right as Kant defines it is situated between these two
supposedly marginal, equivocal, and slightly shady kinds of supposed right:
An authorization to use coercion is connected with any right in the narrow sense (ius
strictum). But people also think of a right in a wider sense (ius latium), in which there is
no law by which an authorization to use coercion can be determined.—There are
two such true or alleged rights, equity and the right of necessity. The first admits a right
without coercion, the second, coercion without a right. It can easily be seen that this
ambiguity really arises from the fact that there are cases in which a right is in question
but for which no judge can be appointed to render a decision. (MM, 26–27; emphasis added in
the final sentence)11
The argument from equity arises when the strict, rigorous application of right
produces injustice, as judged according to a criterion that cannot however be
presented to any tribunal and that cannot, therefore, give rise to a properly
legal judgment. According to equity, in Kant’s rather pedestrian example,
one ought not to respect the equal distribution of proceeds and losses in a case
where one business partner has done more work and thereby suffered pro-
portionately greater losses that the others when the business fails: according to
equity, 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, someone
who receives a payment due to her in a currency that has in the meantime
been devalued is, according to equity, due a supplementary payment that no
tribunal, however, is in a position to accord. Equity is a “mute divinity who
cannot be heard [eine stumme Gottheit]” (MM, 27) but one that nonetheless
incites 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 not
contest the truth of what he calls equity’s “motto,” which is simply: summum ius,
summa iniuria, “the strictest right is the greatest wrong [Das strengste Recht ist das
größte 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 an
exception that is not subject to a principle of sovereignty, except perhaps on a Bataillean rather
than Kantian construal of sovereignty.
12
kaln o nmoi jdr’ en d’rn to ς nmouς / lan kribς ukojnthς janetai
referred to by Tamás Nótári (“Summum Ius Summa Iniuria—Comments on the Historical
Background of a Legal Maxim of Interpretation,” Acta Juridica Hungarica 45 [2004]: 301–21) as
Menandros Nr. 545; I quote it here from Menander: The Principal Fragments, ed. and trans. Francis
G. Allinson (London: Heinemann/Putnams, 1921), 512, where it is numbered as fragment 635.
Allinson’s translation: “The laws are a very fine thing, but he who keeps his eye too close upon the
code turns out to be a backbiter.” Nótári comments: “Terence speaks about ius, whereas
Menander mentions nomoi, i.e. the laws and not dikaion; the synchophantés carries a slightly wider
30 GEOFFREY BENNINGTON
semantic load than malitia, which could be translated into Latin as damnum, calumnia or malum, in
any way designating a content in contradiction with the spirit and destination of ius; the lian akribós
can be equally translated by the phrase summo iure or nimis exacto quodam studio. Hence it becomes
obvious 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 Kant’s insistence elsewhere that the essence of the
death penalty is absolutely not dissuasive. It seems that the argument here does not fall under
the talionic principle at all, whence perhaps Kant’s discomfort with it. Hegel does recognize the
RIGOR 31
mean that the action is just (for I have caused someone to die without
justification), nor even that it is exactly legal: it is not that I am not guilty, but
simply that I am not punishable. Invoking the supposed law of necessity
changes nothing with respect to my guilt because “there could be no necessity
that 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, whereas
objective right (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. In
both cases, the strict or proper exercise of right leaves at least a residue or
soupçon of injustice, which belongs to the intermundus or the frontier of right in
the sense that it nonetheless concerns right: the case of equity is not purely a
moral matter and the cases of supposed necessity are always questionable as
to the true measure of that necessity. In both cases, the question is that of a
possible legal judgment by a tribunal.
In order to put forward a doctrine of right, which is what he is proposing in
the Metaphysics of Morals, Kant has to dismiss the problem of equity, even
though it can clearly show up at any moment in the exercise of right, and even
though it must in fact show up in every case, each time right is rendered in pure
and rigorous legality, to the exact extent that the more right is right, the less just it
is. Perfectly right right, analogically mathematical or mechanical right, right
in all rigor, always runs the risk, by its very rightness and rigor, its purity and
strictness, of being not so much purely right as merely right, constraint without
justice, force of law become simple force, and thus absolutely unjust, or at
least a-just, if I can say that. It would seem, then, as though the appeal to
equity as Kant defines it here is registering a tension between right and justice
that is an important feature of Derrida’s Force de loi and much of what follows.
And even though the case of appeal to the law of necessity seems as though
it would show up less often (on the basis of Kant’s example, or the venerable
tradition of stories of shipwrecked sailors he is following here), it is no less
important, in that the very possibility of such an unjudgable case (even if there
were only one) seems to put the very possibility of a clearly delimited doctrine
of right into question.
In fact, it is probably no accident that this problem of a supposed right of
necessity returns explicitly in Kant at a crucial point of his political philoso-
phy, namely, that of the revolution, discussed at some length by Derrida in
these 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 odds
with abstract right (PhR, secs. 127–28).
32 GEOFFREY BENNINGTON
14
As Kant makes a little clearer in a footnote to the “Theory and Practice” essay, “it is only
a relative duty for me to preserve my own life (i.e., it applies only if I can do so without
committing a crime). But it is an absolute duty not to take the life of another person who has not
offended me and does not even make me risk my own life. Yet the teachers of general civil law
are perfectly consistent in authorizing such measures in cases of distress. For the authorities
cannot combine a penalty with this prohibition, since this penalty would have to be death. But it
would be a nonsensical law which threatened anyone with death if he did not voluntarily deliver
himself up to death when in dangerous circumstances” (H. Reiss, ed., Kant’s 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 an
abyss 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.
RIGOR 33
which means they could legitimately be “punished, got rid of, or expelled (as
an outlaw, exlex)” (MM, 95) by those same authorities.16
So equity appears singularly in every case as 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 (always
an exceptional case) is always at the basis of right. In fact, as Kant often
insists, law in general, the very concept of law in all its rigor, must have the
character of necessity, be it on the side of the laws of nature dictated by the
legislative understanding or on the side of the moral law, where the “typic”
that supposedly borrows from the law of nature the form of lawfulness
(Gesetzmässigkeit) also borrows from it precisely this character of necessity.
The problem with Kant’s thinking about law seems to be concentrated in
this problem, this “equivocation” of a necessity that both grounds law and
right and that immediately undermines the foundations of that same right.
It is necessary that the law have the character of necessity, but necessity
knows no law and is the suspension of all justice. (I imagine it is no accident
that this is starting to sound like Carl Schmitt’s Political Theology.) Further-
more, on this reading, necessity as a character of the law is exactly what
equity 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 an
appeal 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 would
then indeed become the case where the very rigor of Kant’s thinking in general
of the ius talionis as the categorical imperative of penal law is most evident and
so, potentially, also most in crisis. This seems to have something to do with a
very general deconstructive way of thinking whereby the more something
appears to become itself or to come into its own (the more just justice appears
to become by conforming more and more to the purely formal talionic
principle, the more right or straight right gets), the more nearly it approaches
its apparent telos, the more it tends (catastrophically, I often find myself saying)
to collapse into the apparent opposite of itself (here exactly as the motto of
equity says: summum ius, summa iniuria), so that the death penalty is both the very
keystone of the rational system of law (the guarantor of its dignity, what raises
man above mere phenomenal life) and something like its ongoing scandal
or inner principle of collapse and ruin. And I take it that this structure is at
least formally similar to what the later Derrida often describes in terms of
“auto-immunity.”
16
I argue in Frontières kantiennes that this exlex status is also that of the philosopher as such.
34 GEOFFREY BENNINGTON
17
See for example Gregory Fried, drawing on Slavoj Žižek, in Heidegger’s Polemos: From Being
to Politics (New Haven: Yale University Press, 2000), 204. I have been arguing against this
assimilation for over twenty years. See my 1988 essay, “Deconstruction and the Philosophers
(The Very Idea),” Oxford Literary Review 10 (1988): 73–130, reprinted in Legislations: The Politics of
Deconstruction (London: Verso Books, 1994), 11–60, at 39–40.
RIGOR 35
but rather as a potential proof of its failure. We are rational to the extent that
we have the death penalty, and we are not yet rational to the extent that we
need 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, and
human action would have become every bit as mechanical as the phenomenal
nature from which humanity in its noumenal aspect is, apparently, so strenu-
ously to be distinguished, exemplarily here by the death penalty as the stamp
of the superior rational calling of humanity. Achieved justice as rationality
would not even be justice, but the very necessity from which it needs, in spite
of itself, to distinguish itself. In other words, if the (penal) law really were
necessary it would be quite unnecessary. So just as, at the end of Speech and
Phenomena, all of Husserl’s “essential distinctions” are shown to depend for
their coherence on the very failure of reason to achieve its teleological end in
the 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 a
tee-shirt to prove it] “infinite différance is finite”), so Kant’s right depends on
the very obliqueness, curvature, or equivocation to which it is also rationally
committed to putting an end. And this structure (or stricture, as we should, in
all rigor, in more or less rigor, call it after Glas, to which Derrida refers his
reader in the one place I am aware of in his published work where he
explicitly 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 as
an “Idea in the Kantian sense” and be exactly what is at stake in all the
“unconditionals” Derrida’s late work is trying to think in a logic other than
that of sovereignty and, so, other than that of the theologico-political. We
might want to say along the same lines as the “infinite différance is finite”
slogan: “infinite reason is irrational,” or perhaps—to use one of my own
idioms—“the end of reason is the end of reason,” and that would then allow
us some access to Derrida’s gloss, in the opening session of the second year of
the seminars, on a psychoanalytic reading of Kant whereby “wanting to
maintain the pure necessity of the death penalty, as jus talionis and pure
reason, even if it is in fact useless and cannot be applied is, Reik-Freud would
no doubt say, as close as can be to a paranoid symptom [vouloir maintenir, même
si elle est en fait inutile et inapplicable, la nécessité pure de la peine de mort, comme jus
talionis et comme raison pure, c’est tout près, dirait sans doute Reik-Freud, du symptôme
18
“(à supposer d’ailleurs que l’impératif de la rigueur, stricto sensu, de la plus stricte rigueur,
soit à l’abri de toute question)” (Passions: l’offrande oblique [Paris: Galilée, 1993], 29). Derrida
appends a note referring to this parenthesis: “Je me permets à cet égard de renvoyer au
traitement conjoint du secret, de la stricture, de la Passion et de l’Eucharistie dans Glas, Paris,
Galilée, 1974, 60 et suiv.” The word ‘rigor’ hardly ever appears in Glas, however, and the least
one can say is that nothing in the immediate sequence of page 60 really helps the reader to
understand why this would be the special place to look for a questioning of the concept of rigor.
36 GEOFFREY BENNINGTON
POST-SCRIPTUM
This structure or stricture whereby the infinite is finite can be seen in the
Death Penalty Seminars to communicate with another (to me at least) rather
mysterious 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 of
the 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 whatever
living being is in question, from tree to protozoa, from mosquito to man, death is
infinite, it is the end of the infinite. The finite of the infinite. . . . Wherever there is
death, the world closes itself. The infinite finishes itself. This is an end of the world
that is without equivalent, which has so little equivalent that with respect to the
death 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 ça meurt, c’est la
fin du monde. Non pas d’un monde, mais du monde, du tout du monde, de l’ouverture infinie du
monde. Et cela de quelque vivant qu’il s’agisse, de l’arbre au protozoaire, du moustique à l’homme,
la mort est infinie, elle est la fin de l’infini. Le fini de l’infini. . . . Partout où il y a de la mort, le
monde se ferme. L’infini se finit. C’est une fin du monde qui est sans équivalent, qui a si peu
d’équivalent qu’au regard de la mort du moindre vivant la fin du monde absolue ou, si vous préférez,
la seule destruction de la terre et de l’humanité terrestre ne change rien, n’aggrave rien, reste en tout
cas incommensurable.]
19
Jacques Derrida, Chaque fois unique, la fin du monde, ed. Pascale-Anne Brault and Michael
Naas (Paris: Galilée, 2003), 124–25.
RIGOR 37
This unique “end of the world” also brings into play the origin of the world, as
what seems to be the earliest appearance of the “end of the world” motif. (I
am very grateful to Kas Saghafi who pointed this reference out to me—it
predates by about a year what I had previously thought was the earliest
reference to “end of the world,” in Apories from 1992.) This is from a letter
written after the death of Max Loreau, included in Chaque fois unique, la fin du
monde:
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 the
world, each time the sole world, each time the unique world which in its end appears
to us as what it was at the origin, sole, unique, and what it owes to the origin, that
is what it will have been, beyond any future perfect. . . . [La force me manque pour prendre
la parole au grand jour et rappeler chaque fois une autre fin du monde, la même, une autre, et que
chaque fois ce n’est rien de moins qu’une origine du monde, chaque fois seul, chaque fois l’unique
monde qui en sa fin nous apparaît comme ce qu’il fut à l’origine, seul, unique, et ce qu’il doit à
l’origine, c’est-à-dire ce qu’il aura été, au-delà de tout futur antérieur. . . .]20
If, then, the mysterious “end of the world” claim loops back to the only
slightly less mysterious “infinite différance is finite” claim and is even a kind of
rereading of that claim, along lines that are I think entirely characteristic
of Derrida’s still hard-to-describe work (Œuvre? Corpus?)—so that the end of
that work plugs back into its beginnings, as it were—it does so not only by
looping the empirical or historical end of Derrida’s thinking from the 1990s
and 2000s back to its empirical beginning in the 1950s or 1960s, but by
looping the very motif of the end (which preoccupied Derrida more especially
toward the end) back to the motif of the origin (which preoccupied Derrida
more especially toward the beginning).21 For what seems to be described for
the 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 from De 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 other
here-and-now, of another transcendental present, of an other origin of the
world appearing as such, presenting itself as irreducible absence in the pres-
ence of the trace [L’absence d’un autre ici-maintenant, d’un autre présent transcendantal,
d’une autre origine du monde apparaissant comme telle, se présentant comme absence
irréductible dans la présence de la trace].”22
These motifs, these same and different motifs that are, or bear, the trace of
each other, all saliently interrupt or disrupt the structure of the regulative idea
20
Derrida, Chaque fois unique, la fin du monde, 124–25.
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), 136–38.
22
Derrida, De la grammatologie [Of Grammatology] (Paris: Minuit, 1967), 68.
38 GEOFFREY BENNINGTON
as presented by and in the wake of Kant, which is still perhaps the dominant
schema of how we think about many questions—saliently ethical and political
questions. Whatever “dignity” Derrida is prepared to concede to the Kantian
Idea in a famous passage from Voyous, it seems that the thought of the end of
the world is the end of the Idea of the world (as Derrida reminds us, “world”
is the second of the three original regulative Ideas as Kant formulates them in
the first Critique), the end of what Derrida—in the very last session of his very
last seminar (La bête et le souverain II), in a long, impassioned, and almost lyrical
passage that as often in this late work is inspired in part by the line from Paul
Celan that states “Die Welt ist fort, ich muss dich tragen”—calls simply a
phantasm and a word that is “no more than a convenient and reassuring bit
of 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) end
of its (infinite) end, the failure or collapse of its telos in the open-endedness of
the dispersion of singularities and alterities for which différance, dissemination,
and trace are possible names. The death penalty tries to put an end to that
end 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 appeals
to an infinite value of Life or a reconciliation in the infinite justice of the
beyond. The principle of Derrida’s opposition to the death penalty will,
rather, flow from the trace-structure, the finitude of infinite différance, the
finitizing interruption of the Idea of reason that must, in all rigor, take place
each time uniquely, each time here-and-now, interruptively, without any end
in sight.
23
Jacques Derrida, Séminaire la bête et le souverain II (Paris: Galilée, 2009), 367, translated by
Geoffrey Bennington as The Beast and the Sovereign, Volume II (Chicago University Press, 2011),
267.
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