In this essay, I examine Derrida’s deconstruction (or critique) of the death penalty in his first set of lectures (The Death Penalty, Volume 1). The essay has two parts. First, I reconstruct this deconstruction. I show that the deconstruction depends on the difference between the calculable instant and the incalculable instant. Then, in the second part I show how this difference is based on the deconstruction of temporalization Derrida produced in his 1967 Voice and Phenomenon. The deconstruction of temporalization shows (...) that the calculated instant is impossible, and the future, including the instant of my death, remains incalculable. In the essay’s conclusion, I show that the pardon from the death penalty is only a gift of time, only more time or extra time. The pardon can pardon someone from the condemnation to death, but it cannot pardon anyone from the condemnation to die. The pardon can give only a finite survival. (shrink)

The Southern Journal of Philosophy, Volume 59, Issue 4, Page 477-494, December 2021.

Derrida notes that while many discourses—like law, politics, morality and theology—make use of the term cruelty, psychoanalysis alone takes psychical suffering as its own object of study. He is therefore incredulous that psychoanalysis has had so little to say about such important legal and political questions as the death penalty and other forms of state-sanctioned cruelty. His diagnosis is that insofar as psychoanalysis remains attached to a logic or a fantasy of sovereignty—one in which subjectivity is understood as individual or (...) indivisible—its revolutionary force remains blunted. Thus, Derrida calls for ‘a psychoanalysis to come’, a psychoanalysis for whom ‘cruelty’ is delinked from moral or theological approaches, a psychoanalysis which is delinked from its reliance on sovereignty—the sovereign subject, the sovereign nation or sovereign knowledge. Significantly, the ‘to come’ here is not the positing of some horizon of possibility for psychoanalysis, as if this were just an Idea that we must move towards. Rather the ‘to come’ expresses the dislocation that structures the very possibility of psychoanalysis from within. I conclude by asking how this psychoanalysis to come might shed light on what Angela Davis called the ‘great feat of the imagination’ required to ‘envision life beyond the prison’. (shrink)

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. (shrink)