After the Death Penalty

Abstract

After the Death Penalty Mark Sanders (bio) LITERATURE AND THE REMAINS OF THE DEATH PENALTY BY PEGGY KAMUF New York: Fordham University Press, 2019 In 1995, the Constitutional Court of the Republic of South Africa declared the death penalty to be unconstitutional. The judgment and concurring opinions in State v. Makwanyane relied, along with other precedents, on Furman v. Georgia, the 1972 U.S. Supreme Court case that, following a moratorium, brought about an end to executions in the United States, until Gregg v. Georgia opened the way four years later for their resumption under more restricted conditions. The South African justices find noteworthy Justice William Brennan's affirmation, in Furman, of human dignity as a value guiding his concurring opinion. A right to dignity is enshrined in South Africa's constitution (State v. Makwanyane, ¶¶ 57–58). In the judgment in Makwanyane, as well as in several of its concurring opinions, human dignity is connected to ubuntu—the idea that a person is a person through other people—an African ethics of reciprocity invoked in the epilogue of the 1993 interim South African constitution (State v. Makwanyane, ¶¶ 130–31, 223–27, 237–63, 307–13). This reference to ubuntu leads to an appeal to recognize "African law and legal thinking as a source of legal ideas, values and practice." It is then noted that, prior to the imposition of colonial law, although people suspected of witchcraft were sometimes summarily killed, and killings took place in the context of military discipline, this is not how murderers were punished: meaning that the equivalent of judicial killing was not practiced in precolonial southern Africa (State v. Makwanyane, ¶¶ 365–83). [End Page 177] Peggy Kamuf's Literature and the Remains of the Death Penalty comes out of the post-Gregg era, taking as its point of departure Jacques Derrida's 1999–2000 lectures on the death penalty, which it takes to be similarly situated (Kamuf, 1–2). As the translator of these lectures, the first of two series of lectures by Derrida on the subject, and as an editor of the English-language edition of Derrida's seminars (publication of which began in 2009), Kamuf brings a clear sense of the status of the text, which is based on Derrida's typescript but also incorporates his handwritten annotations and verbal additions preserved in recordings. Having translated this and many other works by Derrida, and having authored several studies on his thought, Kamuf is well placed to undertake the analysis proposed in her book. Although a special issue of the Southern Journal of Philosophy addressed Derrida's seminars on the death penalty in 2012, and a book on the seminars edited by Kelly Oliver and Stephanie Straub appeared in 2018 (both of which volumes Kamuf contributed to), Literature and the Remains of the Death Penalty is the first book-length study of them. Concentrating on remarks made in the lectures by Derrida about literature, which she sets out with great clarity, Kamuf proceeds to an analysis of works by various authors, with George Orwell, Robert Coover, Norman Mailer, and Charles Baudelaire as her principal foci. Derrida furnishes Kamuf with three main ideas. First, as Derrida hypothesizes in his first lecture, the "history of the institution named literature in Europe over the last three or four centuries is contemporary with and indissociable from a contestation of the death penalty." This "abolitionist struggle … tend[s] toward the worldwide as conjoined history, once again, of literature and rights, and of the right to literature" (Derrida 2014, 30; quoted in Kamuf, 19). As Kamuf shows, elsewhere Derrida defines this right as "its right to say everything. Literature thus ties its destiny to a certain noncensure, to the space of democratic freedom (freedom of the press, freedom of speech, etc.)" (Derrida 1995, 28; quoted in Kamuf, 19–20). Second, as Kamuf explains, for Derrida, "this right to say everything … is also the right to say nothing, or rather the right and even the obligation not to respond to a demand to know, to divulge the hidden or unapparent, to make public what is secret…. Literary fictions … figure a space of nonresponse to the demand to know and therefore a reserve...