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I would like to begin with a rather spectacular vision of the death penalty, one that brings together, with great irony, the death penalty, the possibility but also the impossibility of its abolition, and the 'American spirit'. Here is that vision:
   I would like to see a law passed which would abolish capital
   punishment, except for those states which insisted on keeping it.
   Such states would then be allowed to kill criminals provided that
   the killing is not impersonal but personal and a public spectacle:
   to wit that the executioner be more or less the same size and
   weight as the criminal (the law could here specify the limits) and
   that they fight to death using no weapons, or weapons not capable
   of killing at a distance. Thus, knives or broken bottles would be
   acceptable. Guns would not.

   The benefit of this law is that it might return us to moral
   responsibility. The killer would carry the other man's death in his
   psyche. The audience, in turn, would experience a sense of tragedy,
   since the executioners, highly trained for this, would almost
   always win. In the flabby American spirit there is a buried sadist
   who finds the bullfight contemptible--what he really desires are
   gladiators. Since nothing is worse for a country than repressed
   sadism, this method of execution would offer ventilation for the
   more cancerous emotions of the American public. (1)

The author of this fight-club-phantasy--this unadulterated American-Gladiators-meets-Thunderdome scenario--is Norman Mailer. The same Norman Mailer who would, some twenty years later, go on to write the Pulitzer Prize-winning 'true life story' The Executioner's Song (1979), which depicts in 1109 pages the events surrounding the execution of Gary Gilmore by the state of Utah in 1977 (Gary Gilmore was the first person executed in the United States after the re-instatement of the death penalty in 1976). 'The Executioner's Song' is, of course, also the title of a 1982 NBC film starring Tommy Lee Jones and Rosanna Arquette. (2)

But before the book, and before the movie, Mailer wrote a short article, titled 'A Program for the Nation', from which I have just quoted an excerpt. This article was written in response to a survey from Esquire magazine in 1959, (3) in which 150 famous people were queried about the 1960 U.S. Presidential election: 'What, to your mind, should be the most important issues in the election' (Presidential Papers, p10)?

Now if I turn to Mailer's program for the nation here, it is not only because he addresses capital punishment as an important, presidential issue. It is also because he insists on the scene of execution in America. There is a scene, says Mailer, that is not being seen: a hidden and invisible and perhaps even disavowed scene. This scene, says Mailer, must be made visible; it must be literally seen (this is his irony). America must see what it refuses to see: the scene of execution. What Mailer goes on to describe, however, is a rather un-American scene: no lethal injection here (or to put it less anachronistically: no hanging, no electric chair, no gas chamber here). Instead Mailer stages his American scene of execution as an epic historical drama, as an archaic and sadistic scene.

Indeed, what Mailer's phantasy makes visible is not only a Roman scene. It is also a second (or even third) scene, which is really a kind of primal scene: 'In the flabby American spirit there is a buried sadist who finds the bullfight contemptible--what he really desires are gladiators'. In the deep, dark, fleshy recesses of the American soul lies a desire that is older, younger, more primitive, more archaic than a desire for (European) bullfights. It's a desire for cutting weapons and a desire for human, rather than animal, sacrifice. Thus, Mailer's insistence on the scene of capital punishment leads him, as it were, behind the scene(s), to the scene's latent structure: 'Since nothing is worse for a country than repressed sadism, this method of execution would offer ventilation for the more cancerous emotions of the American public'.

The scene, then, in Mailer's vision of it, would be something that exceeds its particular (empirical, social, political, historical) context. Or to put it more provocatively: there is no such thing as an American scene of execution (which does not mean that people are not executed in the United States). What it does mean, however, is that there remains something excessive, something fundamentally out of joint, temporally and spatially dislocated, about what is called the 'American' scene.

It should come as no surprise, therefore, if I move to another scene, another theatre, this time the Amphitheatre at the Ecole des Hautes Etudes where, every Wednesday from 5:00 to 7:00 p.m., from December 1999 to March 2000 and then again from December 2000 to March 2001, Jacques Derrida delivered The Death Penalty Seminar. One might say that, like Mailer, Derrida calls our attention to the scene of execution--to the essentially theatrical and spectacular nature of the death penalty. Unlike Mailer, however, the scene in question involves not a literal seeing but a virtual or phantasmatic seeing, i.e. a specific kind of visibility that has important consequences for thinking the death penalty (and its future). In what follows, I will highlight two moments of this other visibility: the first is Derrida's insistence on the virtualisation of the spectacle; the second is Derrida's appeal, in the penultimate session of The Death Penalty I, to the explicitly phantasmatic dimension of the death penalty. As we will see when we get to the phantasm, there is no escaping the scene of execution because there is no escaping the dream of execution; one does not simply put an end to a 'phantasmatic truth'. (4) But if this 'ready-made phantasy' is the case, (5) if there is something invincible about the dream of execution, then what would it mean to think beyond the death penalty?


For Derrida, the idea of spectacle is analytically contained or included in the idea of legal execution. Here is what he says in the opening pages of The Death Penalty I:

By definition, in essence, by vocation, there will never have been any invisibility for a legal putting to death ... there has never been, on principle, a secret or invisible execution for this verdict. The spectacle and the spectator are required. The state, the polis, the whole of politics, the co-citizenry--itself or mediated through representation--must attend and attest, it must testify publicly that death was dealt or inflicted, it must see die the condemned one (Death Penalty I, p2).

There can be no invisibility for a legal putting to death. Capital punishment --by definition, in essence, in principle--requires a public: 'the death penalty must be accessible to the public in its procedures of judgment, verdict, and execution ... Where this is not the case ... it is not certain that we can, in all rigor, speak of the "death penalty"'. (6) Nothing is more 'publicly theatrical or theatrically public' (Death Penalty II, p60) than a punishment that is administered by the state. Nothing is less private than the criminal law in the name of which a person is condemned to death. 'The state', says Derrida, 'must see die the condemned one'. This seeing-die is, for Derrida, a must-see: it is essential to capital punishment. But let there be no literal or literalising misunderstanding here. When Derrida says 'the state, the polis, the whole of politics, the co-citizenry--itself or mediated through representation' it is clear that to be public does not mean, as it did for Mailer (or as it will for Foucault), that the public must literally see the execution or that the death penalty must be visible to everyone. Nor does it mean that it is literally possible to see die, i.e. to locate or pinpoint the 'objectifiable instant that separates the living from the dying' (Death Penalty I, p238). Rather, as we will see, a certain virtuality is already inscribed in the very act of witnessing an execution.

But the quotation continues. After pointing to the spectacular dimension of legal execution, Derrida shifts his attention to its specular dimension. In short, staging becomes self-staging:

It is at that moment, in the instant at which the people having become the state or the nation-state sees die the condemned one that it best sees itself. It best sees itself, that is, it acknowledges and becomes aware of its absolute sovereignty and that it sees itself in the sense in French where 'il se voit' can mean 'it lets itself be seen' or 'it gives itself to be seen'. Never ... is the sovereignty of the state more visible in the gathering that founds it than when it makes itself into the seer and the voyeur of ... an execution. For this act of witnessing--the state as witness of the execution and witness of itself, of its own sovereignty, of its own almightiness--this act of witnessing must be visual: an eye witness. It thus never happens without a stage (Death Penalty I, p2-3).

In the scene of execution, sovereignty makes a spectacle of itself; it makes an absolute spectacle of itself. For it is 'at that moment, in that instant' in which the state sees die the condemned one, and perhaps not without jubilation, that it 'acknowledges and becomes aware of its absolute sovereignty'. In this sense, in the sense that the scene of execution is the site of the coming-to-visibility of sovereignty to itself, the scene of execution might also be called the mirror-stage of sovereignty. In a way too, and though I hate to say it, I do not think it can be avoided here, in this context of optics and self-reflection, the spectacle of capital punishment becomes a kind of super-selfie: it's the sovereign selfie.

But it is also through this sovereign selfie that the light of a more archaic or foundational scene begins to come into focus. Indeed, Derrida not only points to the coming-to-visibility of sovereignty (to itself) but also to the coming-to-visibility of sovereignty 'in the gathering that founds it': 'never', says Derrida, 'is the sovereignty of the state more visible in the gathering that founds it [en son rassemblement fondateur] than when it makes itself into the seer and the voyeur ... of an execution' (Death Penalty I, p3). Never is sovereignty more visible in the gathering/assembling that is its dawn and first light, than in the state's act of witnessing an execution. To be most visible in its foundational gathering: what does this mean? What would it mean to see a primal gathering? Does one see a primal scene?

But let me return to the very beginning of The Death Penalty I:

It is dawn, then. Early light, earliest light. Before the end, before even beginning, before the three blows are struck, the actors and the places are ready, they are waiting for us in order to begin (Death Penalty I, p3).

Why begin in this way? Why set the scene in such a 'deliberately pathos-laden fashion' (Death Penalty I, p2)? Derrida has in mind, of course, to 'analyse the "scene", the history of its visibility and of its "public" character generally' (Death Penalty I, xv). But if he marks the stage in this way, if he 'play[s] without playing at the theatre ... as theatrically but also as nontheatrically as possible' (Death Penalty I, p3), it is also because he desires to change the scene. It is because he wants to bring down the curtain on the death penalty: 'It is obvious that in my argumentation and in the pathos you will hear, my discourse is going to be abolitionist' (Death Penalty I, p5n7). That is, it's a strategy. It's a strategy for thinking a dramatic turn of events--a coup de theatre. In fact, and despite his early programmatic statement to the contrary ('deconstruction ... is not the psychoanalysis of philosophy'), (7) Derrida's strategy here resembles nothing so much as that of an analyst who, in bringing the theatre of a patient's phantasies to the fore in an analytic setting, gives place to the non-theatrical at the heart of the theatrical, the place from which these phantasies can be analysed and thus potentially transformed.

Just like the analyst who plays without playing at the theatre, as theatrically but also as nontheatrically as possible, Derrida is laying the groundwork for thinking the possibility of change. But just as there can be no transference interpretation without transference, so too there can be no coup de theatre without the theatre. In other words, we must begin, as Derrida does in The Death Penalty Seminar, by making the scene of execution as visible and as manifest as possible.


But we have already seen it--and right from the start. By insisting at every turn on visibility, Derrida disputes Michel Foucault's claims regarding the progressive disappearance of the spectacular visibility of torture and execution in Discipline and Punish. (8) Foucault's thesis, you will recall, is that at the end of the eighteenth and the beginning of the nineteenth century, 'punishment had gradually ceased to be a spectacle'. (9) 'Punishment-as-spectacle' (Discipline and Punish, p9) had disappeared and with it the theatre of public execution. Hence, Discipline and Punish marks a division, a rupture, a passage from one episteme to another. Let me quote Foucault here:

At the beginning of the nineteenth century ... the great spectacle of physical punishment gets erased; the tortured body was avoided; the theatrical representation of pain was excluded from punishment. The age of sobriety in punishment had begun (Discipline and Punish, p14, modified).

We move, in other words, from 'one art of punishing' to another (Discipline and Punish, p257)--from a society of spectacle and public execution to a society of surveillance where punishment 'tend[s] to become the most hidden part of the penal process' (Discipline and Punish, p9).

Now it is precisely this shift in the administration of penalties, a shift from the spectacular to the hidden, from the visible to the invisible that Derrida calls into question. (10) In fact, and it is somewhat compulsive, whenever Derrida mentions the name 'Foucault' in his writing on the death penalty, he does so in order to highlight another logic, another modality of visibility, one that extends the field of the visible beyond 'the "how", the "where", and especially the "when"' of the pre-modern 'spectacle' (Death Penalty I, p219).

This other logic, which is that of the 'virtual', follows closely upon any mention of 'Foucault'. I will give two examples of this. The first is from The Death Penalty I, and it is the only explicit reference to Foucault in the whole first year of the seminar:

Foucault's book [Discipline and Punish] is not a book on the death penalty, but it is a book that deals among other things with the historical transformation of the spectacle, with the organized visibility of punishment, with what I will call, even though this is not Foucault's expression, the seeing-punish [voir-punir], a seeing-punish essential to punishment, to the right to punish as right to see-punish(ed), or even as duty-to-see-punish(ed) [devoir de voir-punir], one of Foucault's historical theses being that at the beginning of the nineteenth century, what 'gets erased' is, I quote, 'the great spectacle of physical punishment; the tortured body is avoided; the staging of suffering is excluded from the punishment. The age of punitive sobriety begins' ... I am not so sure of this, but perhaps there is here a technical, tele-technical, or even televisual complication of seeing, or even a virtualization of visual perception (Death Penalty I, p43).

The second is from Derrida's interview with Elisabeth Roudinesco (where he is speaking of The Death Penalty Seminar):

Contrary to what Foucault says, I don't believe there is a shift from the visible to the invisible in the administration of penalties beginning in the eighteenth century. While I recognize the relative legitimacy of this analysis, according to certain limited criteria, I would be tempted to say that in the evolution of punishments, we shift not from the visible to the invisible but rather from one visibility to another, more virtual, one. In [my] seminar on capital punishment, I am trying to demonstrate that the same process is oriented toward another modality, another distribution of the visible (and therefore of the invisible) that can even, on the contrary, extend the virtual field of the spectacular and the theatrical, with decisive consequences (For What Tomorrow, p12).

By becoming virtual, the spectacle will have continued: 'today we can no longer speak of ... the death penalty without film and television; we have proof of this every day and it is an essential change in the given state of affairs' (Death Penalty I, p247). Film and television but also the media and the Internet will have transformed and extended the field of the visible. Never, says Derrida, 'have things been as "visible" in the worldwide space as they are today; this is itself an essential element of the problem--and of the struggle. Spectral logic invades everything' (For What Tomorrow, p159, modified). Spectral logic, here the logic of the 'virtual', makes it such that the scene of punishment and execution is never simply visible (or invisible) in Foucault's sense, but always marked by the trace of another visibility, of a non-present visibility (that is, the trace of something that is not visible determines our experience of the visible, so there is no pure visibility; visibility is always marked by the trace of another visibility). Thus, although it is true, in a certain sense, that punishment and execution have become less and less visible, less and less theatrical, more and more hidden and invisible, it is also true that we have more and more visibility through technical, tele-technical, and televisual means.

What this means, however, is that there is something visibly unmasterable, abyssal, and unattributable about the scene of punishment and execution. Such that Foucault's own masterful attempt to locate power in the organised visibility/invisibility of punishment finds itself unmastered by this logic. Now before I jump to the phantasmatic scene of execution in The Death Penalty I, I would like to turn briefly to a strange moment in Discipline and Punish where Foucault describes the 'real subjugation' that results from a 'fictitious relation' (Discipline and Punish, p202). In this passage, which is remarkable in many ways, one might say that Foucault sees without seeing, and knows without being able to take into account what Derrida has been saying all along, namely that 'capital punishment remains fundamentally ... a spectacle' (Discipline and Punish, p15)--and just to make my point in advance, I will note that this last quotation comes not from The Death Penalty Seminar but from Discipline and Punish. What Foucault describes in this passage is a fictional, a phantasmatic or virtual scene, an internalised spectacle in which the prisoner in the Panopticon sees himself being seen. Although Foucault sees only a 'calculated, organized, technically thought out' subjection in this scene of self-surveillance, I will suggest instead that it presents us with a scene from which we can begin to think an excess of play in the panoptic machine (Discipline and Punish, p26).

In the chapter that immediately precedes 'Panopticism' in the 'Discipline' section of Discipline and Punish, Foucault points to the importance of the examination in the rise of disciplinary power. The examination, says Foucault, 'combines the techniques of an observing hierarchy and those of a normalizing judgment' (Discipline and Punish, p184). Foucault devotes several pages to the examination in both its medical and educational applications before advancing a statement, which seems to follow directly and rather unproblematically from the central thesis of Discipline and Punish: 'The examination transformed the economy of visibility into the exercise of power' (Discipline and Punish, p187). Such a sentence beautifully summarises the movement away from visibility that I have pointed to in Derrida's critique of Foucault. And yet, this is not what Foucault says, at least not in French. The French line reads: 'L'examen intervertit l'economie de la visibilite dans l'exercise du pouvoir',11 that is to say, the examination reverses (intervertit) the economy of visibility in the exercise of power. It is not, in other words, that we move from an economy of visibility, on the one hand, to an exercise of power, on the other, which is how the translator understands it (here, by being too Foucauldian, he forgets to read Foucault). Rather we move from one economy of visibility to another economy of visibility when we move from a society of spectacle to one of surveillance. The examination reverses or inverts that which is visible; it changes who or what is seen. Thus, the very process of despectacularisation is not only a move from visibility to invisibility; it is also, at the same time, a re-positioning or re-positing of visibility. What Foucault goes on to say makes this perfectly clear:

Traditionally, power was what was seen, what was shown and what was manifested ... Those on whom it was exercized could remain in the shadows; they received light only from that portion of power that was conceded to them, or from the reflection of it that for a moment they carried. Disciplinary power, on the other hand, is exercized through its invisibility; at the same time it imposes on those whom it subjects a principle of compulsory visibility. In discipline, it is the subjects who have to be seen. Their visibility assures the hold of the power that is exercised over them. It is the fact of being constantly seen, of being able always to be seen, that maintains the disciplined individual in his subjection (Discipline and Punish, p187).

Thus, Foucault describes the passage from relations of sovereignty to relations of discipline as a chiasmic reversal. The power that was visible ('Traditionally, power was what was seen') becomes invisible ('Disciplinary power, on the other hand, is exercised through its invisibility'), while the reverse is true for those who are on the receiving end of punishment. Traditionally, those on whom power is exercised remain invisible, 'in the shadows', whereas now they are driven into the limelight ('Disciplinary power ... imposes on those whom it subjects a principle of compulsory visibility'). But what remains constant and completely unchanged in this reversal is the principle of visibility/invisibility as a principle of power or mastery. Power (whether sovereign or disciplinary) is the power to make visible and/or invisible.

And nowhere is this power more explicit or more literal than in the 'political anatomy' of 'Panopticism' (Discipline and Punish, p208). 'The Panopticon', says Foucault, 'is a machine for dissociating the see/being seen dyad: in the peripheric ring, one is totally seen, without ever seeing; in the central tower, one sees everything without ever being seen' (p201-202). The Panopticon makes completely visible those in the peripheric ring while making completely invisible those in the central tower. The reason for this distribution of visibility/invisibility is that when it comes to the power of disciplinary power, less is more: the less visible, the less external, the less physical a mechanism, the more effective, the more efficient, and the more insidious its power. But nothing quite compares to the marvel that is the Panopticon--'The Panopticon', says Foucault, 'is a marvellous machine [une machine merveilleuse]' (p202):

[With the Panopticon] it is not necessary to use force to constrain the convict to good behavior, the madman to calm, the worker to work, the schoolboy to application, the patient to the observation of regulations ... He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he plays them out spontaneously on himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection. By this very fact, the external power may throw off its physical weight; it tends to the non-corporal; and, the more it approaches this limit, the more constant, profound and permanent are its effects: it is a perpetual victory that avoids any physical confrontation and which is always played out in advance (p202-203, modified).

What Foucault is describing here--and what he calls 'panopticism'--is the process whereby intersubjective relations are transformed into intrasubjective ones ('he inscribes in himself the power relation'). The power relation is transposed in phantasy from the 'outside' to the inside'; it is taken within the psyche such that the relation of subjection is lived out on the intrapsychic level. Freud called this process 'internalisation' and he too found it 'very remarkable' (Standard Edition 21: 123). Whether or not Foucault intends to limit this internalisation process to societies of surveillance (which would mean, I suppose, no superego before the eighteenth century), one thing is clear: there is a fictional and even theatrical dimension to this process. To be seen is at the same time--'spontaneously', 'simultaneously' says Foucault --to see oneself being seen. Thus, the disciplined individual (the convict, the madman, the worker, the schoolboy, the patient) sets up an agency within himself to watch over him, 'like a garrison in a conquered city' (Standard Edition 21: 123); he plays and replays for himself a scene of surveillance. In this scene, he plays both roles; he plays them out on himself: he occupies both roles, as one might in a dream--he is inmate and guard, schoolboy and examiner, patient and doctor, victim and executioner. Indeed, the echo is not only Freudian; it is also Baudelairian: 'Je suis la plaie et le couteau! ... Et la victime et le bourreau! [I am the wound and the dagger! ... Victim and Executioner!]'. In becoming the 'principle of his own subjection', the convict, the madman, the schoolboy, the patient is also the principal actor or star player in a scene of subjection. Or to put it another way: in this phantasmatic scene of (self-)surveillance, the disciplined individual becomes the master of ceremonies.

To play both roles, to become the master of one's own subjection, where does this lead us? For Foucault it leads only to 'a real subjection' (Discipline and Punish, p202). By taking the Panopticon into himself and establishing his own private Panopticon, the prisoner plays into the hands of the other, of the external power, precisely because this external power is now inside him ('non-corporal' and invisible). In other words, Foucault sees the play between inside/outside, auto-surveillance/hetero-surveillance, auto-punishment/ hetero-punishment as merely the effect of a disciplinary machination. Thus, although Foucault may rage against the machine and its 'calculated management of life', (12) the victory of external power is 'always played out in advance' (p203, modified). It is always played out in advance because we are part of its mechanism (rouage).

But what if we saw the 'fictitious relation', i.e. the phantasmatic scene of surveillance in a more Freuderridean vein? What if we saw the scene as precisely exceeding, or better yet e-luding (and the French here would be dejouer), the grip of our common sense (or conscious) belief in the oppositional distinction between inside/outside, internal/external, auto- and hetero? What if, in other words, we read the scene of self-surveillance not only as a scene of 'real subjection' but also, as I have suggested with and against Foucault, as a scene of virtual mastery? Indeed, what if what this scene of virtual mastery made visible was something essential to punishment?

Perhaps, then, we might read Foucault's disavowal of the theatrical nature of modern punishment--the fact that he sees without seeing that punishment remains fundamentally a spectacle--as a different sort of recognition. (13) One that would lead us to ask a different sort of question: What if there were something about the scene of virtual mastery that made it not only unthinkable for a thinker wedded to the modern detheatricalisation of punishment but also intolerable? Might there not be something intolerable about a virtual collusion (and to collude is to play with, colludere) with 'real subjection'?


But here I would like to recall a difference, namely that, unlike Foucault for whom the death penalty becomes but another example of power-knowledge in a specific regime of punishment, Derrida considers the death penalty to be the example par excellence of sovereign power. Along with war, the death penalty remains the 'best emblem of the sovereign power of the state over the life and death of the citizen'. (14) This is why the deconstruction of the death penalty is not simply 'one necessity among others, a particular point of application' (For What Tomorrow, p148). Rather 'deconstruction is perhaps always, ultimately ... the deconstruction of the death penalty, of the logocentric, logonomocentric scaffolding in which the death penalty is inscribed or prescribed' (Death Penalty I, p23).

As a result, the theatre of the death penalty is not simply one theatre of punishment among others. Indeed, if Derrida returns again and again to the scene of execution, it is because, as we have seen, it is the primal or foundational scene of sovereignty; it is the moment in which sovereignty becomes most visible 'in the gathering that founds it' (Death Penalty I, p3). But if he insists on the logic of virtualisation--against Foucault's logic of 'devisibilisation' (p205)--it is because this primal scene of sovereignty is bound up with future scenes of punishment, that is, with the very question and possibility of abolition. To disavow the spectacle--to see without seeing the virtualisation of visibility, as Foucault does--is thus also to disavow the way in which the scene of the foundational gathering of sovereignty is projected into the future. It is to miss not only the foundational element of the spectacle but also its temporalisation: the relation between primal and future scenes of punishment. In the end, I hope to show how the linking of these questions (the question of what comes before with the question of what comes after) throws new light on the 'actual' theatre of the death penalty and on its future projections.

Derrida begins Session 9 of The Death Penalty I with a question: 'When to die finally?' (Death Penalty I, p218). When to die, in the end, since we are all fated or 'condemned to die'? 'What is the right age to die, if there is one?' (Death Penalty II, p5). These questions lead him to imagine a thought experiment: 'If ... I was given the choice between being condemned to death at age seventy-five (guillotined) or being condemned to die at age seventy-four (in my bed)' (Death Penalty I, p218), what would I choose? The point of course is not to choose but to show that what is at issue in this 'choice', and thus what is at issue when it is a question of the death penalty, is a 'certain modality, a certain qualification of living and dying ... a theatre, a scene of life-giving and of giving-death' (Death Penalty II, p6). So the choice is not between life and death; the choice is between two modes of an 'unavoidable and always imminent death' (Death Penalty II, p6), between two theatres of death, or--and Derrida will use the word 'intolerable' here to characterise both sides of the alternative--two relations to calculation, mastery, decidability, and the question of 'when':

The alternative is terrible and infinite: I may deem it intolerable, and this is the case of the death penalty, to know that the hour of my death is fixed, by others, by a third party, at a certain day, a certain hour, a certain second, whereas if I am not condemned to death but only to die, this calculable knowledge is impossible. But conversely, I may deem it intolerable not to know the date, the place, and the hour of my death and thus I may dream of appropriating this knowledge, of having this knowledge at my disposal, at least phantasmatically, by getting myself condemned to death and thus by arriving in this fashion at some calculable certitude, some quasi-suicidal mastery of my death ... By knowing at what hour, on what day I will die, I can tell myself the story of how death will not take me by surprise and will thus remain at my disposal, like a quasi-suicidal auto-affection. (Death Penalty I, p218)

To know, or not to know 'when'--that is the question that divides, 'as with a knife blade, two deaths or two condemnations, the condemnation to die and the condemnation to death' (Death Penalty I, p219). Whether it is more intolerable to know the moment, the date, the precise hour of one's death (cf. the '"given moment" or the "designated place" of the given moment of "my death"' [Death Penalty II, p4]) or not to know at which instant death will come, and by opposing this non-knowledge with the calculable certainty of the death penalty, arrive at some quasi-suicidal mastery of my death.

However paradoxical it may seem, both positions are not only possible but also inseparable. For both are predicated on a relation to a force that comes 'into' me from a beyond that is greater than I am. Indeed, the point is that, in both cases, my time-of-life-and-death--the (im)possibility of my future--is determined by what comes to me from the outside, from the other. On the side of the death penalty, it is too obvious, but it is an 'obscure obviousness that one must begin by recalling' (Death Penalty I, p250). Let me quote, therefore, three short passages in order to recall this obvious fact--the fact that the death penalty is first and foremost la mort venue de l'autre, 'death that comes from the other':

The death penalty, as the sovereign decision of a power, reminds us perhaps, before anything else, that a sovereign decision is always the other's. Come from the other (Death Penalty I, p1).

Even in cases ... where the death sentence might be obscurely, compulsively, irresistibly sought, desired--as desire itself--by the condemned one ... the death penalty is always, by definition, death that comes from the other, given or decided by the other, be it the other within oneself. The possibility of the death penalty ... begins where I am delivered into the power of the other, be it the power of the other in me (Death Penalty I, p250-51).

The death penalty ... [is] a death that comes from the other, decided and calculated by the other, in the hands of the other (Death Penalty I, p251).

The death penalty is death that comes from the other; it is death that is given, decided, calculated by the power of the other (be it the power of the other in me, the power of the outside inside me). It implies, in principle, 'that the other knows and sometimes that I know, to the second, to the minute, in a way that is therefore calculable, the moment of "my death"' (Death Penalty II, p4). To be condemned to death, in other words (and here we must distinguish the condemnation to death from the condemnation to die), implies the power of the other as the one who decides, sovereignly: 'you will die and you will die in such a way and you will die on this day, at this hour' (Death Penalty II, p137). And what is decided by the power of the other, what is 'delivered up to the calculating decision of the other', is my time of life and death: 'the time given or the time taken, time that becomes the calculation of the other' (Death Penalty I, p220). In the case of the death penalty, what comes to me from the other is, one might say, my death date, the given moment of my death.

But this death that comes to me from the other is also, says Derrida, the only example of a death whose instant is calculable by a machine or by machines--'not by someone, finally, as in a murder, but by all sorts of machines: the law, the penal code, the anonymous third party, the calendar, the clock, the guillotine or another apparatus' (Death Penalty I, p257). This is why one must also speak, as Derrida does, of the 'machine of the death penalty' (p257) or, as Harry Blackmun did, of the 'machinery of death'. (15) But the worst, that is to say, the most intolerable, but also, as we will see, the most fascinating and the most seductive of these machines, is the clock. Indeed, one cannot think the torture and cruelty of the calculating decision without thinking its relation to clockwork: 'you will die ... in that calculable place, and from blows delivered by several machines, the worst of which is perhaps neither the guillotine nor the syringe, but the clock and the anonymity of clockwork' (Death Penalty I, p256, my emphasis).

In the end, what is intolerable (in the first sense) and what we oppose when we oppose the death penalty is not death, 'or even the fact of killing, of taking a life' (p256). What we oppose when we oppose the death penalty is the calculating decision, the calculation imposed on what is--and should remain--an incalculable future. And this is where the foundational element that distinguishes Derrida's thinking of the death penalty from Foucault's is also strangely--how shall I put it?--'heartening', for what comes to us originally from the other is both death- and life-giving. For there is no way for me to speak of 'my life', that is, of my relation to an 'incalculable and undecidable future', without first naming what 'comes from the other', or from what Derrida lyrically calls the 'heart of the other' (p256): (16)

The insult, the injury, the fundamental injustice done to the life in me, to the principle of the life in me, is not death ... it is rather the interruption of the principle of indetermination, the ending imposed on the opening of the incalculable chance whereby a living being has a relation to what comes ... It is because my life is finite, 'ended' in a certain sense that I keep this relation to incalculability and undecidability as to the instant of my death. It is because my life is finite, 'finished' in a certain sense that I do not know, and that I neither can nor want to know when I am going to die. Only a living being as finite being can have a future, can be exposed to a future, to an incalculable and undecidable future that s/ he does not have at his/her disposal like a master and that comes to him or to her from [the] other, from the heart of the other. So much so that when I say 'my life' ... I have already named the other in me ... the other who ... lets me be me, the other whose heart is more interior to my heart than my heart itself. (p256-57, modified)

In other words, what comes to me from the other is not only death, calculation and decision, the calculable decidability of the instant of my death, but also life, the relation to incalculability and undecidability, the relation to the 'coming of the to-come [venue de l'a-venir]' (p256). What comes to me from the other, from the heart of the other, is thus a certain undecidability as to the instant of my death. And here we would have to think the heart with the machine, for a heart is also a machine: it's a time machine, a ticker. We would have to think the 'heart' as an excess in relation to the machine itself: at once a machine and something that eludes (dejoue) machinelike calculation. We might have to think the heart as something like the 'ghost in the machine'.

The 'I' is thus 'invested' by the other ('invested as one is by a force greater than oneself' [p257]). What comes to me from the other, from the heart of the other, is the force that affirms life in me (the force that 'lets me be me') rather than the power or the decision to give me death. 'Only thanks to the other', says Derrida, 'by the grace of the other heart that affirms life in me' (p257), can the finite being that I am have a future, be exposed to a future, to an incalculable and undecidable future that I do not have at my disposal like a master.

One might put this another way--and here we return to the other possible position, that of the second 'intolerable'. What is intolerable, and that of which I am relieved by the calculating decision, is precisely my exposure to an unmasterable future. By eliminating the principle of indetermination, by determining the instant of my death, by providing protection against what comes from the outside, the calculating machine has a strangely reassuring and pleasurable effect. (17) Whence its seductive power: we are 'fascinated by the power and by the calculation ... fascinated by the end of this anxiety before the future that the calculating machine procures' (Death Penalty I, p258). I may thus dream of appropriating or securing the power-knowledge of the calculating machine by getting myself condemned to death. For it is precisely in putting an end to life that the calculating machine gives the impression of putting an end to finitude: 'it affirms its power over time; it masters the future; it protects against the irruption of the other' (p258, my emphasis). But of course it only seems to do this; it only seems to do this because 'this calculation, this mastery, this decidability, remain phantasms' (p258, my emphasis).

To put an end to finitude, to put an end to the principle of indetermination that comes to us from the other (from some other), this would be our ultimate but also our most fundamental desire: 'It would no doubt be possible to show', says Derrida, 'that this [this desire for calculation, mastery, decidability] is even the origin of phantasm in general' (p258). (18) Never is the origin of phantasm more visible, one might say, never is its foundational gathering more manifest, than in the scene in which we give ourselves death (that is, in a scene in which the end of finitude is represented as the end of life). Thus, what the phantasm of the end of finitude makes visible is a primal or final scene of self-protection: self-destruction as self-protection against what threatens to irrupt or break into us from the outside. Why be anxious if there is no future, that is, if the future can be mastered?

But 'an end will never put an end to finitude', says Derrida, 'for only a finite being can be condemned to death' (p258). An end will never put an end to finitude, one might say, because it is already too late. The fear of irruption is the fear of an irruption that has already taken place--in a time before the beginning of time. We are always too late when it comes to the other: 'So much so that when I say "my life", or even my "living present" ... I have already named the other in me' (p257). I am invested by the other, says Derrida, 'as one is by a force greater than oneself and that occupies you entirely by pre-occupying you'; the other is 'before me in me' (p257). (19) What comes before, from the heart of the other, is the incalculability of the instant of my death. And it is to this primal incalculability that the calculating decision tries to put an end--by making a scene, as it were. Indeed, we would have to say that the virtuality of any scene of execution (e.g. the fact that the visibility of the death penalty is never simply literal but also always virtual) is already a sign or symptom of this primal relation to incalculability.

And now for the scene you have all been waiting for ... a scene that is not only a primal scene but also a primal projector. It is a much more unsettling scene than the scene of self-surveillance in Discipline and Punish:

Since this phantasm is at work in us all the time, even outside any real scene of verdict and death penalty ... we cannot keep ourselves from permanently playing out for ourselves the scene of the condemned one whom we potentially are ... the fascination exerted by the real phenomena of death penalty and execution, this fascination of which we could give so many examples, has to do with its effect of truth or of acting out: we then see it <as> actually staged; we project it as one projects a film or as one projects a project; we see in projection actually enacted what we are dreaming of all the time--what we are dreaming of, that is, what in a certain way we desire, namely, to give ourselves death and to infinitize ourselves by giving ourselves death in a calculable, calculated, decidable fashion; and when I say 'we', this means that in this dream we occupy, simultaneously or successively, all the positions, those of a judge, of judges, of the jury, of the executioner or the assistants, of the one condemned to death, of course, and the position of one's nearest and dearest, loved or hated, and that of the voyeuristic spectators who we are more than ever. And it is the force of this effect of phantasmatic truth that will probably remain forever invincible, thus guaranteeing forever, alas, a double survival, both the survival of the death penalty and the survival of the abolitionist protest. (Death Penalty I, p258)

What keeps the death penalty alive is a dream, a desire, a fabulous and virtual scene of mastery in which we occupy all the roles, all the positions, all at once or successively. But if the death penalty fascinates and seduces us, if it promises us the fulfilment of our oldest wish for omnipotence, it is also because it allows us to externalise what is otherwise always internally occurring: in the real phenomena of death penalty and execution, we see actually staged, actually enacted, in projection what we are dreaming of all the time. What we are dreaming of all the time: what can this mean except that the death penalty is a dream come true. But to express it in this way is also, I hope, to convey something of its obscenity, for what the death penalty tries to play out as 'actual' theatre is a kind of 'internal' primal relation to an 'outside' that can never simply be located--and mastered or eliminated--in this way. (20)

In conclusion, I would like to return briefly to the American scene and to a rather remarkable episode in The Executioner's Song. Although Mailer's description of the scene of execution certainly accentuates its theatrical elements--'Gary's end of the room was lit ... and the rest of the room was dark. He was up on a little platform. It was like a stage'. (21) I would like instead to bring up an earlier and eerier scene in which Gary is preparing for his execution. In this scene, which takes place the day before the execution, Gary is insisting that his uncle deliver a posthumous gift to his girlfriend:

Gary said, 'Look, take this watch. I don't want anybody to have it but Nicole'. He had broken it and taped it with the hands set at 7:49. (Executioner's Song, p1014).

Gary's parting gift to his girlfriend is a watch. But not just any watch. It's a watch he has broken and taped so that its hands are forever set at the given time of his death: dawn, 17 January, 1977. (22) It is a little as if he were trying to stage, from beyond the grave, his mastery over the 'clock and the anonymity of clockwork'.

But I don't want to end on a morbid note. So instead I will describe a new product on the market called 'Tikker'. Fredrik Colting, its inventor, calls it 'The Happiness Watch' and claims it was designed to help people make the most of their lives. Here is how the watch is advertised online (at mytikker. com):
   Anger or forgiveness? Tic-toc. Wearing a frown or a smile? Tic-toc.
   Happy or upset? Tic-toc.

   THAT'S WHY WE'VE CREATED Tikker, the death watch that counts down
   your life, just so you can make every second count.

   Tikker is a wrist watch that counts down your life from years to
   seconds, and motivates you to make the right choices. Tikker will
   be there to remind you to make the most of your life, and most
   importantly, to be happy. (23)

Mr Colting, who came up with the idea for the 'death watch' following the death of his grandfather, explains it this way:
   For all of us, life comes with a best-before date ... While death
   is nonnegotiable, life isn't. All we have to do is learn how to
   cherish the time and the life that we have been given; seize the
   day and follow our hearts ... From years to seconds [Tikker]
   presents time ever moving, never standing still, and our lives
   dwindling towards the final rest ... I think that if we were more
   aware of our own expiration ... we'd make better choices while we
   are alive. (24)

However perverse we may find the Tikker and its maker--to say nothing of the algorithm that calculates the wearer's 'death date'--there is clearly a market for such products. Records indicate that 2162 backers pledged $98,665 on Kickstarter to help bring Tikker to life. For there's something unique, even if uniquely intolerable, about an everyday accessory that brings together 'this strange coincidence, this bizarre synchrony' (Death Penalty I, p250) of subjective and objective time, ticker and Tikker, heart and clockwork, the condemnation to die and the condemnation to death, the virtual event (Kickstarter) and the calculating machine, happiness and death. Indeed, for all its perversity, the 'death watch' puts a certain death penalty back on stage as if to submit it to the 'hypothesis of a mutation' (Without Alibi, p256). It is a little as if the Tikker campaign were saying: 'if there will always be "some death penalty"' (Death Penalty I, p282), if, as Derrida says at the end of The Death Penalty I, the future of the death penalty lies in the figures that will be invented for it, why not invent a figure for the death penalty, a symbolic deathwatch, we can live with? Why not a virtual death penalty?

And yet even this figure of the death penalty may give us pause. For it repeats, albeit symbolically, the illusion that the future is a countdown and the heart merely a ticking machine.

Since this essay is already too long, let me simply end by quoting my good friend and colleague Michael Naas who, bless his heart, had only this to say when I told him about the Tikker watch: 'Let's just hope', he said, 'your Tikker gives out before your ticker does'. By which I took him to mean--but who can say for sure, we were talking on the phone--that there would always remain something undecidable about what comes to us from the other.

DOI: 10.3898/NEWF:89/90.02.2016

Elizabeth Rottenberg teaches philosophy at DePaul University and is an advanced candidate at the Chicago Institute for Psychoanalysis. She is one of the six founding members of the Derrida Seminars Translation Project and the translator most recently of Jacques Derrida's The Death Penalty II. She is the author of Inheriting the Future: Legacies of Kant, Freud, and Flaubert (Stanford, 2005) and the translator of many books by Blanchot, Derrida, Lyotard. She is the editor of Negotiations: Interventions and Interviews (1971-2001) by Jacques Derrida (Stanford, 2001) as well as the co-editor (with Peggy Kamuf) of the two-volume edition of Jacques Derrida's Psyche: Inventions of the Other (Stanford, 2007/2008). Her forthcoming book is entitled For the Love of Psychoanalysis.

* A longer version of this text appeared in the Oxford Literary Review 38.2, 2016, pp118-220.

(1.) Norman Mailer, The Presidential Papers, New York, Bantam 1964, p11. (Hereafter Presidential Papers).

(2.) 'The Executioner's Song' had also been used as a title in two earlier works by Mailer: first as the title of a poem in Cannibals and Christians (1966) and then as a chapter heading in his documentary novel The Fight (1975).

(3.) In the end, Mailer's article was published not in Esquire but in Dissent magazine, in the winter of 1960. See Appendix B (Presidential Papers, p305).

(4.) Jacques Derrida, The Death Penalty, Volume I, (trans) Peggy Kamuf, Chicago, University of Chicago Press 2013, p258. Jacques Derrida's The Death Penalty Seminar is being prepared for publication in French and English as follows: Jacques Derrida, La peine de mort, 2 vols, Paris, Galilee 2012-2015 and The Death Penalty, 2 vols translated by Peggy Kamuf (vol. 1) and Elizabeth Rottenberg (vol. 2), Chicago, University of Chicago Press 2013-17. Only the first volume of the seminar has appeared in English so far; the second volume is forthcoming in 2017. To oversee the English-language edition of The Seminars of Jacques Derrida, the Derrida Seminars Translation Project (DSTP) was formed in 2006. The six members of the DSTP--Geoffrey Bennington, Pascale-Anne Brault, Peggy Kamuf, Michael Naas, Elizabeth Rottenberg, David Wills--will be responsible for translating the first eight volumes of The Seminars of Jacques Derrida (of which The Death Penalty Seminar will be volumes 3 and 4). Hereafter, All references to The Death Penalty, Volume I will be given parenthetically I as Death Penalty I, followed by a page number; all references to The Death Penalty, Volume II will be given parenthetically as Death Penalty II. All translations of Death Penalty II are my own. For more information on the translation of these seminars, see http:// index.html. Jacques Derrida.

(5.) Sigmund Freud, The Interpretation of Dreams in The Standard Edition of the Complete Psychological Works of Sigmund Freud, (trans) James Strachey in collaboration with Anna Freud, assisted by Alix Strachey and Alan Tyson, 24 vols, London, The Hogarth Press 1953-1974, 5, p495. Hereafter all references to Freud's works will be as Standard Edition followed by volume and page number.

(6.) Jacques Derrida, For What Tomorrow: A Dialogue, (trans) Jeff Fort, Stanford, Stanford University Press 2004, p145. (Hereafter For What Tomorrow).

(7.) Jacques Derrida, Writing and Difference, (trans) Alan Bass, Chicago, The University of Chicago Press 1978, p196.

(8.) Although a student had presented on the chapter 'Right of Death and Power over Life' from Foucault's History of Sexuality: Volume I, An Introduction (see Editorial Note, Death Penalty I, xvi), and Derrida makes a passing reference to 'bio-power' in The Death Penalty II (see Death Penalty II, p42), Discipline and Punish is the only book by Foucault that is mentioned by name in Derrida's seminar.

(9.) Michel Foucault, Discipline and Punish: The Birth of the Prison, (trans) Alan Sheridan, New York, Random House 1977, p9. (Hereafter Discipline and Punish).

(10.) It is interesting to note that the work of the GIP (Groupe d'information sur les prisons) to which Foucault alludes in Discipline and Punish (see Discipline and Punish, p30-31) had, as its working principle, to expose the material conditions of prison life to the public, i.e. 'to make the invisible visible', as my colleague Kevin Thompson has put it. Though this work of revealing the deplorable conditions of detention (overcrowding, poor sanitation, lack of medical care, lack of privacy, etc.) certainly did make 'visible' what was 'hidden' and 'invisible' to the public, the notions of visibility/publicity to which the GIP appealed were, importantly, literal: the public must (be made to) see with its own eyes the material conditions of the prisons. Indeed, this literality was its force. But it is precisely this literal notion of visibility that Derrida challenges here.

(11.) Michel Foucault, Surveiller et punir: Naissance de la prison, Paris, Gallimard 1975, p189.

(12.) Michel Foucault, The History of Sexuality: Volume 1, An Introduction, (trans) Robert Hurley, New York, Random House 1978, p140. (Hereafter History of Sexuality).

(13.) In this context, one might read Foucault's turn away from death and the death penalty in History of Sexuality, published just one year after Discipline and Punish, as another example of such 'recognition'. It is as if Foucault had pinpointed the very condition of impossibility of his theory and had then simply excluded it. Thus, Foucault will argue that the procedures of power must turn away from death in order to focus on the management of life:

'How could power exercise its highest prerogatives by putting people to death, when its main role was to ensure, sustain, and multiply life, to put this life in order? For such a power, execution was at the same time a limit, a scandal, and a contradiction ... Now it is over life ... that power establishes its dominion; death is power's limit, the moment that escapes it; death becomes the most secret aspect of existence, the most "privat"'. (History of Sexuality, p138).

In a sense, then, by drawing attention to the death penalty in The Death Penalty Seminar Derrida begins with Foucault's disavowal, that is, he begins with the limit-case that Foucault has excluded from consideration and asks if the death penalty is not precisely the quasi-transcendental condition of sovereignty: included as excluded.

(14.) Jacques Derrida, Without Alibi, (ed. and trans) Peggy Kamuf, Stanford, Stanford University Press 2002, p245. (Hereafter Without Alibi).

(15.) See Harry Blackmun's dissent from the U.S. Supreme Court's decision denying review in a Texas death penalty case (Callins v. Collins) on 22 Februar, 1994, at https:// en.wikipedia. org/wiki/Harry_ Blackmun.

(16.) For a wonderful discussion of literature and the 'heart of the other', see Peggy Kamuf, 'At the Heart of the Death Penalty', The Oxford Literary Review, 35.2 (2013): pp241-251.

(17.) And how not to think of Freud here and his description of the death drive in Civilization and Its Discontents: 'Even where it emerges without any sexual purpose, in the blindest fury of destructiveness, we cannot fail to recognize that the satisfaction of the drive is accompanied by an extraordinarily high degree of narcissistic enjoyment, owing to its presenting the ego with a fulfilment of the latter's old wish for omnipotence' (Standard Edition 21, p121, modified).

(18.) As both primal scene and phantasm, the scene in which I give myself death would be both a scene of origin and a scene of closure. In this, it would differ interestingly from Freud's three primal phantasms, all of which are scenes of origin: the 'primal scene', which is the scene of the origin of the subject; 'castration', which is the scene of the origin of the distinction between the sexes; and 'seduction', which is the scene of the origin of sexuality.

(19.) In other words, the phantasm of the end of finitude--and here, it seems to me, Derrida is adding a new chapter to Freud's Beyond the Pleasure Principle--is the trace of 'my life' attempting (but forever failing) to return to the moment before there was the other in me, that is to say, to the moment before life began.

(20.) Indeed, I would argue that the profound racialisation of the death penalty in the United States is the most outrageous and visible expression of this literalising violence.

(21.) Norman Mailer, The Executioner's Song, New York, Grand Central Publishing 2012, p1011-12. (Hereafter Executioner's Song).

(22.) The official time of death turned out to be 8:07 a.m.

(23.) See http://

(24.) See http:// www.dailymail. article-2776230/ How-long-YOU -got-left-live-New -Death-Watch -claims-calculate-life -expectancy-based -lifestyle-counts -death.html.
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Date:Sep 22, 2016

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