The Southern Journal of Philosophy

Volume 50, Spindel Supplement

2012

RIGOR; OR, STUPID USELESSNESS

Geoffrey Bennington
abstract: In his seminars on the death penalty, Derrida consistently describes Kants
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 Derridas 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 writerswhether supporters or
opponents of the death penaltywhose arguments seem less rigorous to Derrida) an
exemplary object for deconstructive attention, not for the first time in Derridas 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 arguments 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 deconstruction 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), Frontires kantiennes (Galile, 2000), and, most recently, Not Half No End: Militantly Melancholic Essays in Memory of Jacques Derrida (Edinburgh University Press, 2010) and Gographie 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), 2038.
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 Derridas 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 Derridas being awarded an honorary degree at Cambridge, claiming 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 Derridas work in such terms will commit one to the view
that that work is in the end rather traditionally and unfortunately philosophical and more especially philosophical in an essentially Kantian kind
of way.
My point today will not be to criticize Rortys 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 Derridas 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 features of Derridas 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 understanding of its relation to the philosophical tradition. In the context of this confer1
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), 7692.
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,
19741994, ed. Elisabeth Weber, trans. Peggy Kamuf et al. (Stanford, CA: Stanford University
Press, 1995), 41921.

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GEOFFREY BENNINGTON

ence, if I may summarize a little brutally, as Derrida might have said, or

telescope a longer sequence, as he also might have said: if the tradition of the
metaphysics of presence comes, in Derridas later work, to seem especially
perspicuous, most saliently or most egregiously itself, as it were, around the
theologico-political logic of sovereignty, and if the issue of the death penalty
comes to be seen as something of a crux or keystone of that logic, as he indeed
suggests in the seminars of 19982000 and the associated interview in De quoi
demain?, then we should perhaps not be unduly surprised to find him explicitly
crediting Kant, rather than some other philosopher, with formulating the most
rigorous defense of the death penalty (and thus by extension of the logic of
sovereignty itself) and, thereby, the defense that most calls for deconstructive
attention if the challenge of those seminars is to be fulfilled. That challenge is
explicitly to formulate (for the first time, in Derridas hypothesis) an abolitionist
discourse able to compete on the same philosophical level, as it were, with
Kants rationalist argument in favor of the death penalty, or at least to be in a
position to call into question the conceptual bases of Kants arguments in this
respect. We can claim with some confidence that this is the specifically
philosophical challenge of the Death Penalty Seminars; though as we should also
try not to forget, these seminars, and indeed deconstruction more generally,
can never just be philosophical, never simply philosophical or philosophical
through and throughunless perhaps we take that expression more in the sense
that it has in forensic ballistics (if one is to believe the TV show CSI, at any rate)
and suggest that deconstruction involves going right through philosophy and
emerging more or less explosively on the other side. That philosophical
challenge cannot avoid some more or less rigorous engagement with rigor
itself, with the very concept of rigor in general, as it is apparently best
exemplified by Kant. (Kant is the only author mentioned in every single session
of both years of the Death Penalty Seminars and is the explicit object of more
analysis than any other philosopher.) In this particular case, there will be an
association to be explored here between rigor in the sense of accuracy and
precision, on the one hand, and, on the other hand, rigor in the sense of
harshness and hardness, stiffness and rigidityexemplarily perhaps as rigor
mortis. Derrida introduces this semantic interplay in Session Two of the first
year of the seminar:
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 machinelike, 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 exemplified 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 presented 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 oversights may also be taken to be). This would be one reason why deconstruction 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 Kamufs 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 Kants Metaphysics of
Moralsthe Rechtslehre or doctrine of rightwill represent for Derrida the
most rigorous philosophical attempt to justify the death penalty on rational
grounds. If in Derridas 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), Kants 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. Kants 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). Kants
object, which might indeed be called all sublime (like that of W. S. Gilberts Mikado, in that it supposedly bespeaks an incomparable rational
dignity of the human beyond the concerns and interests of mere phenomenal or animal life), is simply to make the punishment fit the crime,
although Kants formulation transforms any vengeance-based understanding 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 rigorous] 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 knnen anderer sich einmischenden Rcksichten wegen keine
Angemessenheit mit dem Spruch der reinen und strengen Gerechtigkeit enthalten.]6

And, just a little later:

But what does it mean to say, If you steal from someone, you steal from yourself?
Whoever steals makes the property of everyone else insecure and therefore deprives
himself (by the principle of retribution) of security in any possible property. He has
nothing and can also acquire nothing; but he still wants to live, and this is now possible
only if others provide for him. But since the state will not provide for him free of
charge, he must let it have his powers for any kind of work it pleases (in convict or
prison labor) and is reduced to the status of a slave for a certain time, or permanently
if the state sees fit.If, however, he has committed murder he must die. Here there is
no substitute that will satisfy justice [Hat er aber gemordet, so mu er sterben. Es giebt hier kein
Surrogat zur Befriedigung der Gerechtigkeit]. There is no similarity between life, however
wretched it may be, and death, hence no likeness between the crime and the
retribution unless death is judicially carried out upon the wrongdoer. (MM, 10506)7

Derrida spends a good deal of time repeatedly probing this principle as Kant
formulates it, and he finds it to be surprisingly resistant to criticism from, for
example, psychoanalytic or Heideggerian perspectives. Derrida seems genuinely impressed by Kants formal rigor and is especially attached (as he is
elsewhere) to Kants difficult formulations around dignity (Wrde) as something that exceeds all comparative assessment, all calculation and price.8 In
6
Immanuel Kant, The Metaphysics of Morals [MM], trans. Mary Gregor (Cambridge: Cambridge University Press, 1996), 10506.
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],
12930).
8
But he does not apparently reflect on Kants rather acerbic analysis of dignities as they
attach to a hereditary nobility (MM, 10203). See too Derridas discussion of this Kantian
concept of Wrde in sec. 40 of Foi et savoir (Paris: Seuil, 2001), and in Lanimal que donc je suis (Paris:
Galile, 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 Derridas later thinking.

26

GEOFFREY BENNINGTON

Kant, that dignity is reserved for humans in their humanity as essentially

rational, and part of the stamp of that rationality is its intrinsic superiority
over merely phenomenal or animal life. The supposedly rational ending of
that life by the imposition of the death penalty purely in the name of the
formal categorical imperative of talionic law then becomes in a sense the best
confirmation of human dignity, so long, that is (and here Kant would probably begin to part ways with Gilberts Mikado, who you may remember
wanted not only the punishment to fit the crime, as does Kant, but also to
be a source of innocent merriment) as the humanity in the person of the
condemned is not disrespected by being made into something abominable
in the way the punishment is carried out. (This is the principle according to
which the death penalty in the United States is widely thought to be justifiable so long as it is not cruel and unusual in its execution, whence the
possibility of a connivance between abolitionists and morticolists over an
increasingly anesthetic approach to the question, analyzed by Derrida at
some length in the seminars.) The death penalty becomes the best confirmation of human dignity, then, so long as the humanity in the person of the
condemned is not disrespected, and so long as the properly rational justification for it (which is purely formal, whence its beauty and its rigor) is not
confused or contaminated with any kind of utilitarian end. Kant is resolutely
opposed to any attempt to justify the death penalty in terms of its supposedly
exemplary deterrent effect on crime, for example, and so his argument is
entirely impervious to abolitionist arguments that are based on the claim
that it does not in fact have such a deterrent effect. He says for example, in
a passage that Derrida also quotes, that even if a state were to agree to
disband or dissolve itself (so that no question of future deterrence could
arise), it would still be morally incumbent upon its members to make sure
to execute all remaining condemned prisoners before doing so, or else
remain tainted by the blood guilt that would ensue from unpunished
crime, thus making them collaborators in a public violation of justice
(MM, 106).
I want to spend some time here looking at the notion of what we have just
seen Kant call pure [rein] and strict [streng: rigorous] justice that is supposedly ensured by the principle of the talionic law and that leads to his defense
of the death penalty. If Derrida is right in his general construal of the relation
of the death penalty to the metaphysical or theologico-political tradition more
generally, the standing of this purity and rigor would be a deconstructive crux
of these seminars and by extension perhaps of the entire later arc of Derridas
thinking (especially given the salient place of an appeal to justice in that
thinking), if not of his thinking in general from the start. If Kants definition
of pure and strict justice were to give rise to something demonstrably other

RIGOR

27

than justice, for example, then it would appear that some not insignificant
progress would have been made in the deconstruction of the death penalty
and, thereby, of sovereigntyand perhaps also of the very concept of rigor
itself.
Indeed this notion of pure and strict justice generates a number of
paradoxes that seem to me to illuminate Derridas general way of thinking
here, although I will take my bearings from an Appendix to the Introduction
of Kants text (the Doctrine of Right, the first part of The Metaphysics of Morals)
that Derrida does not in fact ever explicitly discuss in the Death Penalty
Seminars and that is taking a rather more general view of right than the
passages that deal explicitly with punishment and exemplarily the death
penalty. (Derrida had mentioned this Appendix much earlier, in Du droit la
philosophie, where he asserts, without supporting analysis however, that what
is played out in [these pages] is quite simply vertiginous.9)
In the Introduction to the Rechtslehre, Kant first separates out the domain of
right from the domain of virtue: the former considers the limitation of ones
freedom by that of others as a question not of moral duty but of justifiable
constraint: this is the logic wherebyas Derrida often remarks, in these
seminars and elsewherelaw or right is law or right only if it can be enforced,
such that Kant can say here that right and authorization to use coercion . . . mean one and the same thing (MM, 26). This essential element of
force or constraint allows right to be formulated by analogy with the possibility of free movement of bodies within the law of the equality of action and
reaction (MM, 26). Having separated out right from virtue, then, with right at
least already somewhat more (by analogy, at least) on the side of the physical,
external, and mechanical, Kant nonetheless recognizes a kind of frontier zone
or no mans land that, although it does not fall into the domain of virtue, does
not simply belong to the domain of right, while still always tending to appeal
to that domain for decision. This frontier zone is presented through discussion
of two cases that appear to be diametrically opposed and that limit or de-limit
the domain of right, rather as contradiction and tautology are the limiting
cases (and indeed the disintegration) of the combination of signs in Wittgensteins Tractatus (4.464.466). As is often the case in Kant when trouble is
brewing, these cases are presented with reference to Epicurus.

9
Derrida, Du droit la philosophie (Paris: Galile, 1990), 87n1; as far as I know, this is
Derridas 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 Frontires kantiennes (Paris: Galile, 2000), here adapted from an English version,
Kants Open Secret, Theory, Culture and Society 28 (2011): 2640, 2011 by Sage. Reprinted
by permission of Sage Publications.

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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 casesas 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,
Kants 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
lifetimepunishable, 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, 7677 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, 2627; 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 Kants 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 proportionately greater losses that the others when the business fails: according to
equity, his disproportionate loss should be compensated because of his disproportionate 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, according to Kant, in fact be heard only by the court of conscience. Kant does not
contest the truth of what he calls equitys motto, which is simply: summum ius,
summa iniuria, the strictest right is the greatest wrong [Das strengste Recht ist das
grte Unrecht]. This formula is quoted by Kant without reference, but interestingly 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  drn to nmou / lan krib ukojnth janetai

referred to by Tams Ntri (Summum Ius Summa IniuriaComments on the Historical

Background of a Legal Maxim of Interpretation, Acta Juridica Hungarica 45 [2004]: 30121) 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.
Allinsons 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. Ntri comments: Terence speaks about ius, whereas
Menander mentions nomoi, i.e. the laws and not dikaion; the synchophants carries a slightly wider

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GEOFFREY BENNINGTON

the Heautontimoroumenos, the self-tormentor or self-punisher, that gives its title

to a famous poem by Baudelaire (which includes the line je suis la victime et
le bourreau; I am the victim and the executioner). This poem is indeed
mentioned by Derrida in the Death Penalty Seminars, precisely because of
the implication of Kants reflexive version of the talionic law that it always
involves a kind of self-inflicted punishment, such that on Kants view, any
criminal is a kind of heautontimoroumenos. The formula is then quoted more
than once as proverbial wisdom by Cicero among others and is the object of
learned commentary in Erasmuss Adages in the sixteenth century. This motto
of equity, summum ius, summa iniuria, seems to be full of deconstructive promise:
we could imagine experimenting with various more or less free translations of
it: maybe not just extreme right is extreme wrong, or the height of law is
the height of lawlessness, but maybe the height is the depths, the top is
the bottom, the best is the worst, the sovereign is a beast, or even,
remembering that lovely Latin term for sovereignty, superanus, the sovereign
is an asshole, which would probably lead us back to Bataille and the solar
anus. Kant does not contest the truth of what he calls equitys motto, then,
but simply the ability of right to remedy that wrong, which it seems to
produce in and through its very righteousness, by its very rigor.
The second case is the supposed right of necessity (ius necessitatis, Notrecht).
Kant deals with it even more rapidly, under the sign of contradiction, because
here there would supposedly be a right where there is in fact no prior
injustice. I invoke the right of necessity not when the other has attacked me
and I have killed him to save my own life in self-defense, but when, without
its being his fault, I would die if I did not kill him. For example, after a
shipwreck, I push the only other survivor off the single piece of floating
wreckage in order to use it to save myself. (Or, having made it with that only
other survivor to a desert island, I kill and eat him to avoid starvation.) Here
I am acting under a certain constraint, but right cannot be involved, says
Kant, because there could be no penal law to punish this case (it would make
no sense to threaten me with death for taking by force the last floating plank,
since a threat of an ill that is still uncertain (death by a judicial verdict) cannot
outweigh the fear of an ill that is certain (drowning) (MM, 28).13 This does not
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 akribs
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 circumstances of Roman legal life but preserved its basic message (Summum Ius Summa Iniuria,
303).
13
It is unclear to me how this fits with Kants 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 Kants discomfort with it. Hegel does recognize the

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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
soupon 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 Derridas 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 Kants 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 philosophy, 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. 12728).

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GEOFFREY BENNINGTON

survivor, guilty but unpunishable,14 and what happens in political revolution.

Here the revolutionaries are, according to the logic of sovereignty that Kant
lays out implacably (rigorously), by definition never within their rights, even
though they may be tempted to appeal to the supposed right of necessity to
justify their actions (for it would be simply a contradiction to concede a right
to revolution, which would amount to recognizing a sovereignty other than
that of the sovereign, which is contradictory). They are therefore punishable
by death, however great the distress, the Not, they claim to have been in under
the sovereign against whom they are revolting. But once the revolution has
succeeded (if it succeeds), they are clearly unpunishable. Right cannot punish
this action that suspends and interrupts right (Necessity knows no law here
because the only law necessity knows is the law of nature against which the
whole apparatus of right is set up) and yet right is also suspended on it: in the
case of revolution, this case shows how right in fact originates in a violence
that escapes its own judgment, the kind of foundational or transcendental
violence that Derrida discusses in Force of Law and pursues in these seminars
in terms of the tension in Kant between his absolute horrified condemnation
of the supposedly legal execution of Louis XVI (a chasm that irretrievably
swallows everything [MM, 97n]) in a famous footnote to The Metaphysics of
Morals, on the one hand, and on the other, his apparently more positive
account in The Conflict of the Faculties of the enthusiasm with which the Revolution was received by observers or spectators as a sign that the human race
is progressing for the better (the figure of the chasm or the abyss, also a
privileged example in Kants account of the sublime, might be the focal point
for what I have just called a tension here).15 The danger of revealing such
foundational violence also seems to be what dictates Kants firm assertion
elsewhere in the Rechtslehre that subjects should not inquire into the factual
historical origin of the state in which they live, lest their almost inevitable
discovery of its violent origin inspire them to resist the current authorities,
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., Kants Political Writings,
2nd ed. [Cambridge: Cambridge University Press, 1991], 81n).
15
In The Metaphysics of Morals, like a chasm that irretrievably swallows everything translates 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
(Gesetzmssigkeit) also borrows from it precisely this character of necessity.
The problem with Kants 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 Schmitts Political Theology.) Furthermore, 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 Kants 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 Frontires kantiennes that this exlex status is also that of the philosopher as such.

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GEOFFREY BENNINGTON

I think that Derrida is getting at something like this when he refers in

Session Five of the first year of the seminar (talking about two cases of
homicide that Kant awkwardly wants to exempt from the death penalty while
waiting for culture to catch up with rationality, namely, maternal infanticide,
on the one hand, and death resulting from dueling in the military, on the
other) to the extraordinary rationality, but also the stupid uselessness of this
Kantian logic, of this Kantian position that is as rigorous as it is absurd
[aussi rigoureuse quabsurde]. We might try to sum up that simultaneous rigor
and absurdity as consisting in Kants stubborn reliance on a whole set of
distinctions: between, for example, nature and civil society, the subjective and
the objective, the phenomenal and the noumenal, and (salient here) reliance
on a distinction between poena naturalis and poena forensis, between the inner
punishment of conscience and the outer punishment of the penal system,
between auto-punishment and hetero-punishmenta distinction quite fundamental for Kant, but one that Derrida thinks has no rigor once the
reflexive structure of the talionic principle (whereby, remember, any crime I
commit, I commit against myself) really is made into the categorical imperative of penal law. This failure of rigor through rigor itself (the rigor of the
talionic principle leads to the collapse of the rigorous distinction Kant needs
to make between inner and outer punishment) functions as what Derrida calls
in this session both a hyperconfirmation of Kantian rigor and a real
self-exploding bomb, an implosive power of deconstruction at the very centre
of the rationality of right, the right of punishment and, at the centre or the
summit of the right of punishment, the death penalty [une vritable bombe
auto-explosive, une puissance de dconstruction implosive au centre mme de la rationalit
du droit, du droit de punir et, au centre ou au sommet du droit de punir, de la peine de
mort].
What is stupid and useless about such distinctions, their rigorous absurdity,
then, seems to be that they prescribe for themselves the telos of their own
disappearance. And this seems to be, more generally, the principle of difference of Derridas diffrance from the Idea in the Kantian sense with which it
has so often been confused, especially perhaps in discussions of the later, more
obviously ethical-and-political work.17 If humans were indeed rational, they
would not break the law and the death penalty (as exemplary of the talionic
principle and thus of rationality itself) would never have to be applied and
would thus no longer stand as an exemplary instance of that same rationality
17
See for example Gregory Fried, drawing on Slavoj iek, in Heideggers 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): 73130, reprinted in Legislations: The Politics of
Deconstruction (London: Verso Books, 1994), 1160, at 3940.

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 strenuously 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 Husserls 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 diffrance is finite), so Kants 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 Derridas 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 diffrance is finite
slogan: infinite reason is irrational, or perhapsto use one of my own
idiomsthe end of reason is the end of reason, and that would then allow
us some access to Derridas 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, mme
si elle est en fait inutile et inapplicable, la ncessit pure de la peine de mort, comme jus
talionis et comme raison pure, cest tout prs, dirait sans doute Reik-Freud, du symptme
18
( supposer dailleurs que limpratif de la rigueur, stricto sensu, de la plus stricte rigueur,
soit labri de toute question) (Passions: loffrande oblique [Paris: Galile, 1993], 29). Derrida
appends a note referring to this parenthesis: Je me permets cet gard de renvoyer au
traitement conjoint du secret, de la stricture, de la Passion et de lEucharistie dans Glas, Paris,
Galile, 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.

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GEOFFREY BENNINGTON

paranoaque]. The principle of Derridas early response to Husserl, stressing a

paradoxical finitude of the infinite, then, seems to me to run throughout his
work up to these late seminars (and beyond, to Voyous, for example) and to
motivate Derridas own opposition to the death penalty in the name of just
such a complex infinite finitude or finite infinitude. What he calls the
madness of the death penalty is that it represents an attempt to put an end
to, to finish off, the finitude that is the very opening to the unforeseeable
future event that constitutes life itself as thus intrinsically finite and mortal.
This complex thought of finitude (which just is what all of Derridas thinking
since diffrance and the trace is trying to elaborate, rather than the existing
forms of abolitionist discourse of which Derrida is quite critical in the seminars) would then pave the way for the first philosophical opposition to the
death penalty to be able to measure up to the rigor of Kants argumentation,
or to be able to show how that rigor is, when read strictly and rigorously, itself
deconstructive of the very oppositions it is supposed to secure.
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, aggravates nothing, remains in any case incommensurable. [Chaque fois que a meurt, cest la
fin du monde. Non pas dun monde, mais du monde, du tout du monde, de louverture infinie du
monde. Et cela de quelque vivant quil sagisse, de larbre au protozoaire, du moustique lhomme,
la mort est infinie, elle est la fin de linfini. Le fini de linfini. . . . Partout o il y a de la mort, le
monde se ferme. Linfini se finit. Cest une fin du monde qui est sans quivalent, qui a si peu
dquivalent quau regard de la mort du moindre vivant la fin du monde absolue ou, si vous prfrez,
la seule destruction de la terre et de lhumanit terrestre ne change rien, naggrave rien, reste en tout
cas incommensurable.]

19
Jacques Derrida, Chaque fois unique, la fin du monde, ed. Pascale-Anne Brault and Michael
Naas (Paris: Galile, 2003), 12425.

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 meit
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 mme, une autre, et que
chaque fois ce nest rien de moins quune origine du monde, chaque fois seul, chaque fois lunique
monde qui en sa fin nous apparat comme ce quil fut lorigine, seul, unique, et ce quil doit
lorigine, cest--dire ce quil aura t, au-del de tout futur antrieur. . . .]20

If, then, the mysterious end of the world claim loops back to the only
slightly less mysterious infinite diffrance is finite claim and is even a kind of
rereading of that claim, along lines that are I think entirely characteristic
of Derridas still hard-to-describe work (uvre? Corpus?)so that the end of
that work plugs back into its beginnings, as it wereit does so not only by
looping the empirical or historical end of Derridas 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 presence of the trace [Labsence dun autre ici-maintenant, dun autre prsent transcendantal,
dune autre origine du monde apparaissant comme telle, se prsentant comme absence
irrductible dans la prsence 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, 12425.

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), 13638.
22
Derrida, De la grammatologie [Of Grammatology] (Paris: Minuit, 1967), 68.
21

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GEOFFREY BENNINGTON

as presented by and in the wake of Kant, which is still perhaps the dominant
schema of how we think about many questionssaliently 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 Derridain the very last session of his very
last seminar (La bte 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 tragencalls 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 diffrance, 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 discourse 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 Derridas opposition to the death penalty will,
rather, flow from the trace-structure, the finitude of infinite diffrance, 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, Sminaire la bte et le souverain II (Paris: Galile, 2009), 367, translated by
Geoffrey Bennington as The Beast and the Sovereign, Volume II (Chicago University Press, 2011),
267.