Adam Thurschwell

In this paper I first explicate and then critically compare and contrast the political philosophies of Giorgio Agamben and Jacques Derrida. Their writings intersect at a number of crucial issues and texts, sometimes lightly touching, sometimes crossing at the same point, going, so to speak, in different directions, and thus often resembling each other without, however, there being an actual identity of viewpoint. The differences, although sometimes subtle, are real. My thesis is that, subtle though these intersections and differences are, they reveal two incompatible yet inextricable axes of contemporary political thought, blueprints of the competing visions of the political between which, for the foreseeable future, the most advanced philosophical thinking on the political will have to choose. Here, by way of an organizing principle, I attempt to show that these axes can be articulated around two ways of inheriting Nietzsche's intellectual legacy -- one that interprets the essence of political action in fundamentally ontological terms (Agamben), and the other that interprets it as fundamentally ethical (Derrida).

Philosophers and legal theorists have traditionally analyzed capital punishment as a moral or ethical problem, by asking questions like: Is capital punishment justifiable given the utilitarian or retributive goals of the criminal justice system? Is it or can it be made consistent with our commitment to the moral autonomy and dignity of the human person? And so on. In this paper I criticize the moral-philosophical approach and argue that a far more fruitful way of analyzing the institution of the death penalty is to approach it from a political-philosophical perspective - in particular, by viewing it in its relation to the concept and practice of sovereignty that undergirds our understanding of the political state. Viewed in this way, it becomes clear that capital punishment is a component of the essential attribute of post-Westphalian political sovereignty: the sovereign's right to the death of its citizens. It is the sovereign alone that has not only the power but the right to kill for violation of its edicts, and to force its citizens to sacrifice their lives in defense of its own life through military conscription. I then show that approaching capital punishment as an essential component and expression of sovereignty provides more conceptual and practical insight into the contemporary vagaries of capital punishment than does the moral perspective. The point of departure for this critique is the recent debate in the Stanford Law Review between Cass Sunstein and Adrian Vermeule (on one side) and Carol Steiker (on the other) on the moral legitimacy of the death penalty, a debate that illuminates both the weakness of the moral philosophical approach and the unavoidability of the relationship between capital punishment and sovereignty. After showing that, in different ways, both sides of this debate depend upon underlying conceptions of the state as (in Michel Foucault's words) the entity with "the power to exercise the right to decide life and death," I go on to explicate Foucault's notion and show that his conception of sovereignty is not novel but is in fact a shared assumption of virtually all Western philosophical approaches to the political state, from the classical social contractarianism of Locke, Hobbes and Rousseau to Carl Schmitt's decisionism to Giorgio Agamben's recent elaboration of Foucault's idea of biopolitics. I conclude by suggesting how the sovereignty perspective sheds light on a wide range of theoretical, political, and legal-doctrinal phenomena occurring within the sphere of capital punishment today that remain entirely mysterious from the moral perspective. These include, among others, the United States's stubbornly retentioninst position in the face of the accelerating trend toward abolition among other nations, the legal-doctrinal conundrums that arise when capital defendants waive their right to defend and volunteer for execution (sometimes referred to as state-assisted suicide), and the fact that the heated controversy over the use of international law in the Supreme Court's interpretation of the United States Constitution first emerged in a capital case (Roper v. Simmons, in which the Supreme Court declared it unconstitutional to employ death as a punishment for crimes committed by juveniles).

This paper was written for a forthcoming Cambridge University Press anthology titled "On Philosophy in American Law" that commemorates the 75th anniversary of Karl Llewellyn's essay of the same name. Karl Llewellyn was a founder of the Legal Realist movement in American jurisprudence, and his essay is most obviously read as a brief for that movement, in which he argues that a Realist focus on underlying social needs better explains the course of American legal history than do the competing natural law, positivist and formalist schools. Without contesting the merits of this conventional reading, I argue that Llewellyn's essay also makes an implicit case for another, quite different point: the need for Continental philosophical approaches to law in contemporary American jurisprudence. In particular, I argue that the conception of philosophy upon which Llewellyn relies is, with one exception, deeply Hegelian. The one exception lies in Llewellyn's residual belief that, at least to a limited extent, philosophy can change the world as well interpret it. This belief places him squarely in the camp of post-Hegelian thinkers, the camp that also includes contemporary Continental political and legal philosophers. I conclude by suggesting how the post-Hegelian tradition responds to some of the deepest conundrums of contemporary American jurisprudence, using the problem of affirmative action as an example.

Within a year of each other in the early 1990s, Anthony Kronman and Jacques Derrida both published books criticizing the currently dominant philosophical conception of politics - Kronman's The Lost Lawyer: Failing Ideals of the Legal Profession and Derrida's Politiques de l'amitie ). Given the books' otherwise profound differences in subject matter, intellectual tradition and intended audience, these would be ships that could be allowed to pass in the night were it not for the fact that both books' arguments turn in crucial respects on a single element of Aristotle's political philosophy - the role of friendship as the mediating link between the good for the individual and the good for the community. In this essay, I attempt to take advantage of this coincidence by elaborating a possible rapprochement - or "generative graft," to use Derrida's terminology - between Kronman's and Derrida's approaches to the political-philosophical problem of modernity. Through close critical readings of Kronman's book and key passages in Aristotle's Nichomachean Ethics, I suggest that a Derridian reading of Aristotle not only sheds light on Kronman's failed attempt to reconstruct a philosophical basis for modern politics along Aristotelian lines, but that the Derridian approach offers Kronman his best hope of achieving his goal. Towards that end, the essay concludes with a sketch of an ethical-political philosophy based on Derrida's work and the work of one of his main influences, Emmanuel Levinas, that incorporates the most important elements of the Aristotelian critique of modernity, without, however, falling back into the elitism and communitarian dangers in which Kronman's traditionalist reconstruction of Aristotle entangles him, and without losing the benefit of modernity's real political achievements. Thus, along the way, I also hope to show that the American legal academy has something valuable to learn about some of its most fundamental issues from an intellectual tradition that it has for the most part viewed as an exotic and irrelevant foreign import

The very name of the Law and Literature movement implies some inner connection between the institutions and concepts of law on one hand and those of literature on the other. Received wisdom has it that this connection reaches its limit, however, at the point where the language of law incorporates an essential relation to the literal violence of the state. The canonical statement of this distinction (at least in the Anglo-American legal academy) is Robert Cover's claim that judges deal pain and death... In this they are different from poets, from critics, from artists. In this essay I attempt to complicate this distinction through a close reading of Maurice Blanchot's essay, Literature and the Right to Death. My thesis is that, beyond sharing law's status as linguistic artifact and cultural construct, the literary already inhabits law's ostensibly distinguishing relationship to sovereign violence.

This is a brief review of Simon Critchley's recent book, Infinitely Demanding: Ethics of Commitment, Politics of Resistance. In it, he argues that the overriding political-philosophical problem of late modernity is the problem of political motivation. Critchley's book is both an analysis and critique of how that problem has been resolved by ethical and political philosophers since Kant and a defense of his own solution, which he derives primarily from the philosophy of Emmanuel Levinas and which issues in a call for a form of ethical anarchism. In this review I summarize his arguments and raise some critical questions about his solution, while agreeing with him about the essential nature of the problem of motivation that his book highlights

The paradoxical relationships among philosophical knowledge, ethical responsibility, legal decision, and political action were among the most persistent themes of Jacques Derrida's later writings. In this short article (presented as part of a memorial issue), I examine this aspect of his work by focusing on a structural ambiguity in his accounts of the relation of ethical responsibility to legal-political action. The narrower point of this discussion is to demonstrate how Derrida's writing exemplifies the same aporia between knowledge and ethical responsibility that it describes; the larger aim is to suggest how this ambiguity illustrates the limit of political thought in general (a limit that at the same time demands and founds the possibility of ethical-political action).