Kant with Freud: Derrida’s Analysis of the Ancient Dream of Self-Punishment

Abstract

During his 2000–2001 seminar on the death penalty, Jacques Derrida argues that Kant is the most ‘rigorous’ philosophical proponent of the death penalty and, thus, the thinker who poses the most serious objections to the kind of philosophical abolitionism that Derrida is trying to develop in his seminar. For Kant, the death penalty is the logical result of the fundamental principle of criminal law, namely, talionic law or the right of retaliation as a principle of pure, disinterested reason. In this paper, I demonstrate how Derrida attempts to undermine Kant’s defence of the death penalty by demonstrating both its internal contradictions (the tenuous distinction between poena forensis, that is, punishment by a court, and poena naturalis, natural punishment) and its strange affinities with the law of primitive peoples (as understood by Freud in Totem and Taboo). I argue that Derrida’s repeated returns throughout the seminar to Kant’s Metaphysics of Morals suggest that Kant’s seemingly rational defence of the death penalty is ultimately motivated by interests that belie the supposed disinterestedness of modern law and by a notion of natural justice that at once subtends and subverts all criminal law.