Deadly Aversion Or, How I Learned to Stop Worrying and Love Judgment

I take guilty pleasure in tracing how legal decisions and their rationales are built around hollow centers, places where the real issue lurks and the law avoids treading. A decision about life or death is transformed into the more straightforward task of instructing juries. Or, a decision about the nature of marriage devolves into a discussion of adoption procedures. Jennifer Culbert’s Dead Certainty: The Death Penalty and the Problem of Judgment refuses to follow the courts down such detours and instead grapples with the core away from which they studiously maneuver. And while the book’s material comes from capital punishment jurisprudence, it keeps its focus on the central question in law: what are the grounds upon which decisions are made?

Culbert holds that capital punishment jurisprudence reveals the shifting metaphysical grounds of judgment and thus betrays a deep anxiety at the core of legal authority. While her argument is developed through an extensive reading of capital punishment cases, the book will resonate with audiences well beyond scholars who specialize in this field. The book makes a particularly strong contribution to the field of political theory, as it traces how our ideas, not just our social and political dynamics, come to be reflected in institutional practices.

Culbert takes Nietzsche’s history of metaphysics as her starting point. In each different stage of this “history of an error,” “philosophers try to grasp what is but fail and then look for reasons to explain their inability to comprehend the ‘thing-in-itself.’” (7) From dialectics to spiritualism, moral imperatives, positivism, utilitarianism and finally practical nihilism, Nietzsche traced the evolving — and in his view increasingly desperate — grounds upon which we have tried to stake our claims to knowledge and being. Culbert’s argument explains the evolution of death penalty jurisprudence along these same stages, beginning with the relinquishment of an outside and absolute source of certainty in Furman v Georgia. She then builds a chapter around each of Nietzsche’s subsequent stages of metaphysics, connecting it to a distinct moment in capital punishment jurisprudence. When I first realized that this was how the book’s argument was structured, I became concerned that this approach would feel overly schematic and forced. Admittedly, the device feels more stretched at a few points than others, but Culbert weaves her argument in such a way that the framework seems to serve more as a unifying foundation than a Procrustean bed.

The questions addressed here are pressing. Given that the Furman decision acknowledged the fallibility of the court, what are alternative foundations from which the court can decide to end the life of offenders? Without recourse to absolutism outside of this world, how does the court reconcile its worldly fallibility with the permanence of death? While many books have investigated the texts of what the court has said and the political mobilization around the death penalty to explain American exceptionalism, Culbert’s approach is different. In fact, she sidesteps the question of whether the death penalty is right or wrong, instead focusing on what death penalty jurisprudence can tell us about our larger metaphysical crisis.

One popular strand of capital punishment scholarship traces the logic espoused by the courts though its circuitous journeys; another examines the world outside of the court to explain how juridical decisions reflect the historical and political pressures of the day. Culbert chooses instead to look into that space which the court itself tries to avoid, examining the grounds upon which the courts assert their ability and privilege to judge: “Can we define who deserves death? The answer is obvious: yes, of course we can. We define who deserves death every day. The question is then how we define who deserves death.” (140)

While the issues of life and death in capital punishment provide the imperative to reflect upon the grounds of judgment, Culbert’s argument seeks to illuminate American justice more broadly. She argues there is a crisis of metaphysics at hand; we...