In “Ex Lex” (Oxford Literary Review 35.2 : 143-63), Geoffrey Bennington mentions the transcendental status of the death penalty—the death penalty, for Jacques Derrida, would have become for some the transcendental condition of all law, which means that the abolition of the death penalty, as Donoso Cortés and Kant thought, is “the very elimination of all criminal law” (144). This is what Bennington says Derrida thinks is “the real site of the philosophical discussion” (144). By referring to the “transcendental” status of the death penalty, Bennington, glossing Derrida, means that the death penalty is at the same time internal to the system of law, that is, that it is one punishment among others for those who break the law, and also external, that is, that it functions as “a foundation, a condition of possibility, an origin, an example outside the series, hyperbolic, something more and other than a penalty” (Derrida quoted by Bennington, 145).
If so, then it means that the death penalty “tends to depart from the sphere of the law, to become separate from it, to become something outside the law, a law outside the law, an outlaw law, a lex that is ex lex” (145). Of course Derrida is of two minds about these transcendental objects. He often talks about “transcendental contraband,” an operation that consists in smuggling a transcendental term into an otherwise positive series of conditions (as it might happen with historicisms in general, where the notion of history itself acts as transcendental contraband). But Derrida also uses the term in a sense sometimes redefined as “the quasitranscendental,” in order to complicate ambiguities in the philosophical realm and to launch deconstructive procedures. It is in this second sense that Derrida considers that the death penalty is a quasitranscendental (whose difference from transcendental contraband is not a difference of opposition, rather a differance), and that enables him to initiate a “deconstruction of the conceptual scaffolding of criminal law in general” (146).
It remains to be seen what else will be deconstructed through a deconstruction of the death penalty, but I could advance the thought that the metonymic association of the death penalty with sovereignty opens the possibility that we could think of the place of the sovereign as itself quasitranscendental. Is this not the way in which hegemony theory conceives of it? For hegemony theory an element of the series occupies the position of empty signifier, which means it becomes a quasitranscendental, within the series and not of it, ex series. The hegemonic quasitranscendental organizes the hegemonic chain of equivalences by positing itself as part of it and at the same time not a part of it. If the death penalty hegemonizes the apparatus of criminal law, could we not say that, through a deconstruction of the death penalty, the hegemonic site of power, the leading position, will also necessarily be deconstructed? In politics we can take the site of power as the hegemonic element of an equivalential chain, and we have hegemony, or we can take the site of power as an impossible, merely phantasmatic quasitranscendental imposture. In the latter case, we move towards posthegemonic infrapolitics.
For Kant, the death penalty, as the pure embodiment of the ius talionis (if you murder, you must die), is also the purest expression of penal law as the representative of the principle of equivalence. As such, its special place must be deemed a consequence of the fact that it founds, in virtue of being the one and only “perfect example” (Bennington, 149) of equivalential adequation, the equivalential system of criminal law.
Hegel was just as committed as Kant to the principle of the death penalty, also in virtue of its paradigmatic role in terms of founding equivalence. For the rest of criminal law, equivalence can be posited at the level of “value,” as he says in his Philosophy of Right: “the determinate character given by the concept to punishment is just that necessary connection between crime and punishment already mentioned: crime, as the will which is null in itself, eo ipso contains its negation in itself and this negationis manifested as punishment. It is this inner identity whose reflection in external existence appears to the understanding as ‘equality.’ . . . If the intrinsic interconnection of crime and its negation, and if also the thought of value and the comparability of crime and punishment in respect of their value are not apprehended, then it may become possible to see in a punishment proper only an arbitrary connection of an evil with an unlawful action” (Hegel quoted by Bennington, 153). Let me simply note that this is the moment in which “value” refers to the necessarily merely approximate substantiation of equivalence in any given exchange (say, beyond the exact correspondence between taking a life and giving a life, the one-eyed, toothless criminal is the parodic figure of ius talionis applied literally, that is, without the spiritualization of value as a mediator). The point of grounding, necessary to the system, its anchor, is the death penalty as perfect example.
But Bennington makes the interesting point that a “perfect example” is therefore more than an example—a perfect example moves towards transcendentalization, moves ex lex. For Bennington, the death penalty is “a situation where the lex talionis does not even get started, as it were, because the equivalence between crime and punishment is supposedly immediate (and therefore in a sense not even an equivalence” (154). In other words, the death sentence does not embody value, which is the acting principle in the equivalential law: it is the founding exception for all measures of value, but it is also the radical enactment of the inconmensurable. And Bennington continues: “Although I do not think that Derrida ever quite presents the matter this way in his seminars, this strange status of the death penalty (for murder) seems then to confirm Derrida’s diagnosis of its quasi-transcendental status, and the paradoxical consequences that seem to ensue (such that the death penalty is simultaneously the most and the least spiritual punishment, both savage in its immediacy and pure in what Hegel calls its ‘specific equality’ with the crime, both the originary blind spot and the quasi-teleological vanishing point of the talionic principle” (154).
This is of course why we can begin talk of a certain presence of “the abominable” at the core of rationalism, of transcendental idealism even; as Bennington puts it, the sovereign, who alone dictates the death penalty, appears as “a non-rational and non-dialectical answer to a certain impasse of rationalism itself” (156). We should note this “non-rational and non-dialectical” answer is itself the answer for the sovereign as the hegemonic impostor in the empty site of power. This has implications for political theory that Bennington points at without quite making explicit: glossing over the fact that the death penalty is also theorized by Kant as eminently usable in the case of high treason, such as an insurrection against the sovereign, he says “Kant is an unconditional partisan of the death penalty except when an attempt is made to apply it to the sovereign, which results in a kind of short-circuit of reason itself, a kind of ‘cannot compute’ that leads to self-destruction and the abyss. This threat to reason is so serious that it motivates Kant’s demand that the death penalty be applied to ‘any attempt’ whatsoever at attacking the sovereign, which he attempts rather desperately to assimilate to the case of murder (or at least attempted murder) by identifying it as a ‘parricide,’ this assimilation perhaps confirming the phallogocentric quality of rationalism itself” (158). It leads us to ask about the surreptitious exceptionality of the site of power in hegemonic theory as a simple case of imaginary radical investment into the love of the father, which turns every father into a despotic impostor (imposture=the act or practice of deceiving by means of an assumed character or name).
But, if the site of power is always occupied by an impostor, if there can be no rational or measurable equivalence between the sovereign and sovereignty itself, if the sovereign is simply the enactor of the exceptional, non-rational, non-dialectical answer to the problem of murder, then “no sovereign is really sovereign” (Bennington 160). “This means that Kant’s defense of the death penalty is also the very place to look for the principle of resistance to it: as tendentially ex lex, the philosopher outlaw shows up the ex lex status of the sovereign and also of the death penalty in the same gesture as he shows up the tendentially collapsing status of sovereignty and indeed of the transcendental position as such” (Bennington 160).
Once we understand that the quasi-transcendental status of any element in an equivalential chain is necessarily contaminated by the abomination of imposture, why should we persist in our radical investment into any kind of hegemonic formation? Why should we continue to privilege a notion of the political as necessarily given over to the establishment of equivalential chains and hegemonic articulations? It is more “rational,” and less unjust, to forfeit hegemony and to look infrapolitically for some other form of constitution.