On Crime and Punishment: Derrida Reading Kant

Abstract

This essay enquires into the implications for criminal law of Derrida's analysis in the Death Penalty seminars. The seminars include a reading of Kant's Metaphysics of Morals, specifically Kant's reflections on the sovereign right to punish, which is read in conjunction with the reflections of Freud and Reik on the relation between the unconscious and crime, as well as Nietzsche's reflections on morality, punishment and cruelty. What comes to the fore in Derrida's analysis is a system of economic exchange operating on an unconscious level, of which criminal law forms an intrinsic part. Derrida's analysis of the 'origin' of crime in the seminars poses serious questions to the assumption of freedom underlying modern criminal law. The link, which he posits between punishment and political theology, likewise challenges the existing theories and forms of punishment. What the seminars call for, in the name of the Kantian Enlightenment, is a radical break with economic circularity as it operates in respect of crime and punishment.

Friedrich Nietzsche, On the Genealogy of Morals and Criminology

“… 6. While Nietzsche distances himself from Kant’s theory of retribution, this is not because Nietzsche was repulsed by (excessive) pain or cruelty, but because, as stated earlier, he fundamentally disagreed with the form of Kant’s reasoning, best evinced, perhaps, in his claim that “the categorical imperative gives off a whiff of cruelty” (Nietzsche, 1998/1887: 47; see also De Ville, 2020: 102 for further discussion). …”