Death, Life, and Law

By Saitya Brata Das 

It appears that in today’s world of techno-legality, death has lost its existential ‘meaning’. We are living in a world that deprives us the possibility of intimation with death in all its existential ‘earnestness’, as Søren Kierkegaard has put it in one of his imagined discourses ( Kierkegaard 1845, pp. 75-115). These days we are deprived of death. Yet, and this is the paradox, no other time than ours has seen death everywhere, amorphous deaths, death as banal as “cutting off a head of cabbage or swallowing a mouthful of water” (Hegel 1998/1807, p. 360), death as penalty which is the gift of the law to us and that strikes us in ever renewed form with its “bloody power over mere life” ( Benjamin 1986, p. 297), death as mass technological production, death as useless suffering , countless sacrificial deaths without altar and without a vengeful God. How to understand this paradox: despite the immense manifestation of death occurring everywhere and all the time, death has somehow abandoned us in this advanced stage of technological mass-production. Death is everywhere and nowhere. More and more sacrificial deaths occurring without altar and without God, more and more it appears to be the unconditional demand of our time to think a death which is un-sacrificed and unsacrificiable.

This is the reason why in our immediate discursive and argumentative context, the discussions, critiques, debates surrounding “death penalty” remain so banal, unsatisfactory and superficial, all the time riveting to the same speculation: whether death penalty deters crime or does not. Also, whether capital punishment – which is the privilege of a juridico-political authority – has power over life or not etc, while fundamental questions concerning the (non)relation of law and life, between life and death and the question concerning the ‘status’ of death on the historical ‘experience’ of our time, remain unthought and unquestioned. As a result, the question of death remains trapped within the very juridico-political realm from which it is supposed to be released by manner of a thoughtful questioning. A thoughtful consideration will reveal that this difficulty lies in the very unconditional task of opening our historical existence to a death which is to be uncoupled from its fundamental determination of it as sacrifice, even though sacrificial rituals themselves have disappeared long back, even though the vengeful God seeking blood has departed and has never stopped departing for some time now.

This begs the following question: if death penalty is authorized to be granted by certain legitimate (we can also say that it is legitimized and legitimizing at the same instance) juridico-political authority, a real confrontation with it should be able to bring into manifestation not only the logic which the legitimacy of capital punishment presupposes but also the logic (or rather the illogic of it) by and in which life itself escapes the logic of the law. It is clear from above that this principle of legitimacy can be none other than the very logic of law itself, namely : the law of economy, understood as equivalences of values, between crime and punishment, between guilt and atonement, between the wrong done and fate striking to the guilty.  Walter Benjamin calls this law of economy, which is the law of law itself, by the name of mythic violence which is the power of law over life, not over life as such however, but over a life as “mere life”, life always already incorporated and economized within the law of equivalences of values between guilt and punishment. In this justly famous text called Critique of Violence Benjamin shows why and in what manner in such an original guilt-context (original because of its “always already” character) there never takes place expiration of guilt arising from crime. Hence violence recurs, again and again, in the most vicious circular manner, since it cannot imagine an expiation of guilt outside the original guilt-context of the law itself and hence ever new legitimation takes place, once more and all the time, renewing the logic of economy as equivalences of values. From here, at its most intense moment, derives the legitimized logic of capital punishment: since the crime is of nature that is “rarest of the rare”, it can only be expired by rewarding the criminal the equal reward of the ultimate denial of life which is the ultimatum of death so as to bring equivalences of values within the original guilt-context. Here, at an exceptional moment by means of an exceptional measure, the logic of sovereignty asserts its law of economy by reducing life as life to life as “mere life.” Any good reader of the Benjamin text knows that it is at this “mere life” that the power of law strikes, and therefore, this power can never strike at life for the sake of life but for the sake of an ever recurring, ever re-circling and never expired guilt itself.

As against it, Benjamin imagines a divine violence where an expiry takes place for the sake of life as life. In the instance of this expiry, life is released from the cages of “mere life”, from the vicious re-circling of the original guilt context. This instance of breaking through of divine violence also strikes us with death, but not the sacrificial and sacrificed death that has become now as banal as cutting the head of a cabbage but the other death, unsacrificiable and un-sacrificed death of the other. This is justice. Hence justice is connected with death as much as it is unconnected with sacrifice. It is as if life as life to be affirmed, it has to pass through a messianic strike of justice which is ‘experienced’ as impossibility of death itself. It is at this moment life as life escapes, even if furtively, from the original guilt context of law by a violence without violence, violence without force and without power.

Closer to our time, it is Jacques Derrida, who has renewed such a messianic notion of justice, which cannot be thought on the basis of the law of economy, of the law of equivalences of values which is, as we have seen, the very law of law itself. Therefore justice is not equivalent to law. Justice is the most un-economic possibility; it is not even ‘possibility’ if ‘possibility’ is understood as ‘capacity’ and ‘mastery’ (which is what law founds upon). One can say it is the messianic excess of the law itself.

In a beautiful text called On Cosmopolitanism and Forgiveness (2001), Jacques Derrida asks us to think of an unconditional forgiveness in excess of the logic of equivalences of values, the later constitutive of the conditioned realm of pragmatic juridico-political negotiations. This forgiveness cannot exhaustively be realized within the negotiated realm of possibilities and conditionalities which often, as we have seen above, uses the logic of ultimatum belonging to the capacities and authorities of the sovereign power.  

Thus the debate concerning capital punishment has to take into account this fundamental question of our time: how to imagine a life, life as life, which is not exhaustively determinable by not just ‘this’ or ‘that’ law but by the law of laws at all, which is the economic logic of equivalences of values? In this difficulty of thinking of life as life lies the very difficulty of opening to a death unenclosed within the realm of possibilities and capacities. Such death can neither be sacrificed nor be produced on such mass scale. It will remain the very task of thinking and existing in this damaged world that we are thrown into, and from which we must learn to extricate the very redemptive possibility for a time to come.

Pic-credit: Here 

Dr. Saitya Brata Das is Assistant professor, Department of English, Jawaharlal Nehru University, India.

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