Capital Punishment as a Problem for the Philosophy of Law

Do we want the debate on the death penalty to be anything other than a discussion on the best punitive techniques? Do we want it to be the occasion for and the beginning of a new political reflection? Then it must take up the problem of the right to kill at its root, as the state exercises that right in various forms.

—Michel Foucault, "Against Replacement Penalties," 1981

In the book that Gilles Deleuze Called a "new philosophy of law" (1995 [1990], 94), François Ewald suggests that the primary task for the philosophy of law is to inquire critically into the conditions under which various societies problematize their own juridical experience (41–43). Capital punishment is a particularly interesting matter for the philosophy of law so construed. The elimination of the death penalty was not posed as a serious question by any of the Abrahamic religions, by classical political philosophy, or even by the modern political philosophies that otherwise broke so decisively with both religious tradition and classical political philosophy (Camus 1959 [1957], 44–47; Bobbio 1996 [1990], 140–41, 144, 149–50, 160; Derrida 2004, 202–3). Only when thought within the horizon of eighteenth-century political economy, where its wasteful ineffectiveness could suddenly be raised as a problem for the government of the emergent modern state, did the abolition of the death penalty emerge as a distinct juridical possibility (Bobbio 1996 [1990], 128–30).

This ostensibly simple fact has important implications for the way we think about the abolition of the death penalty today. Deleuze argues that modern political philosophy's definitive difference from classical political philosophy consists in its reversal of the relation of the Good to Law: whereas in Plato the Law depends upon the Good, in Kant it is the Good that depends on the Law (Deleuze 1985 [1963], ix–xi; 1991 [1967], 82–84). Yet if modernity is understood as the specifically political philosophical aspiration to produce a culture grounded only in reason's own autonomous self-legislation (Habermas 1987 [1985], 7, 17–20), why is it that none of abolitionism's criticisms of the death penalty rise to the status of purely unconditional, self-legislating concepts? The uniquely modern status of the death penalty would seem to involve a paradox: the philosophical discourse that provides modernity with its morality and its self-definition is unambiguously opposed to the specifically modern problematization of the death penalty. Abolitionism may be uniquely modern, but its modernity is somehow such that it does not participate in the philosophical essence of modernity itself.

This remains a paradox, of course, only if we attempt to comprehend what is uniquely modern about abolitionism on the basis of philosophical discourse alone. But where the death penalty is concerned, the difference between classical and modern political philosophy is almost meaningless: both Plato and Kant agree on the necessity of the death penalty for a wellgoverned republic. To inquire into the way in which the death penalty has been posed as a question by political philosophy, we must first therefore set aside the standard periodization in the history of political philosophy and think through the politics of philosophy by rotating philosophy itself on a much different axis. The decisive theoretical antagonism at work in the problematization of the death penalty is not the quarrel between the ancient and the moderns; it is the suture of philosophy to nonphilosophy, which is to say, philosophy's delegation of its functions to a practice or procedure other than itself, such that philosophy then produces its effects in and through its own suppression or suspension (Badiou 1999 [1989], 61–68). The uniquely modern aspect of abolitionism, in this respect, is not its relation to the tribunal of pure reason, nor even its status as a mark of historical progress from barbarism to civilization, but its emergence from institutional conditions defined by philosophy's loss of its hitherto central function in the production of knowledge (Foucault 2003 [1997], 182). Insofar as we can speak of a discrete tradition of jurisprudence and social thought called "abolitionism," which has as...