Killing Time: Law Like Death

Peter Fitzpatrick is possibly not best known as a scholar of the death penalty. When it comes to particular areas of law with which his work engages, then arguably international law, native (aboriginal) title or even human rights might represent more promising places to start. ¹ Nevertheless, in the pages that follow I want to take his serial and sustained engagements with the question of capital punishment, conducted over roughly a decade from the late 1990s, as a point of departure for considering wider themes in his scholarship, and reflecting on its significance and particular qualities. The archive with which I am primarily concerned is a collection of texts addressing themselves to the question of the death penalty – characteristically but not always in an American setting, with US constitutional jurisprudence, abolitionist discourse, and vexed racial histories (and presents) very much in view. I am not proposing to argue that Fitzpatrick is best understood as a theorist of the death penalty or that he should be reimagined as an Eighth Amendment scholar malgré lui. (Indeed, these are revealing and quite personal texts, and one of the things they reveal is the studied amateurism of the disciplinary and jurisdictional outsider, ² often at several removes from his object of study but endlessly perceptive of and responsive to its terrain.) ³ Rather, I want merely to suggest that this discrete minor ‘jurisprudence of death’ ⁴ , in which Fitzpatrick as legal theorist engages a concrete and evolving politico-legal controversy, shows us something of his characteristic mode of engagement as a scholar and of the wider jurisprudential themes of his work. I will start by sketching as briefly as I can the core arguments of these texts (and the arguments they make, on behalf of a poststructural legal normativity, against the death penalty) before discussing three layered and interconnected themes that arise from them but that also characterise his work as a whole: critique, normativity and, resistant subjectivity. Foucault will serve as an instructive guide and oftentimes just as instructive counterpoint, in what follows. But let me start where Fitzpatrick starts; at the end, with death, and with a seeming connection between it and law.

‘The affinity between law and death is usually put in terms of law’s pretension to finality’, writes Fitzpatrick. ⁵ Law characteristically effects a closure and a shutting down, and this extends in sanguinary instances to the shutting down of life itself. This is ‘law’s deathly claim to determine finally, to fix and hold life, denying its protean possibility’. ⁶ This it does on behalf of a sovereign power and, as Foucault (among numberless others) observed, ‘one of the characteristic privileges of sovereign power was the right to decide life and death’. ⁷ ‘Law cannot help but be armed, and its arm, par excellence is death’. ⁸ So oft observed and philosophically reinforced is the connection that the ‘dealing of death is commonly taken to be the supreme assertion of the law,’ ⁹ its raison d’être. Bluntly with Blanchot, Fitzpatrick would observe that ‘The law kills. Death is always the horizon of the law: if you do this, you will die’. ¹⁰ There does not seem to be much more to say at this juncture but just as ‘[l]aw’s ready correspondence to death has . . . been copiously instanced . . . there is [in fact] more to it,’ for it subsequently turns out that on Fitzpatrick’s account the self-same ‘horizon is productively ambivalent’. ¹¹ Horizons import both a limit but also an intimation of what lies, unknowably and ineffably, beyond the limit. ‘Here the horizon’, in Fitzpatrick’s hands, ‘does not simply contain but, rather, connects integrally with what is beyond, or the possibility of it’. ¹² ‘We could say,’ Fitzpatrick suggests, ‘that death is the horizon of the law not just in the standard and simple sense that law kills or that it fixes and positions, but also and conjointly in the sense that death impels a responsiveness to all that is beyond fixity and position’. ¹³

Never one for the ‘standard and simple sense,’ instead preferring a more ‘sinuous, road’, ¹⁴ Fitzpatrick now equates law and death but it is an unsettled equation, an ‘apposition’. ¹⁵ Law is like death in two opposed and co-implicated senses. In terms that mirror his well-known theorisation of law as an alternation between the opposed yet integral dimensions of determinacy and responsiveness, ¹⁶ Fitzpatrick argues that law (like death as horizon) cannot simply enclose and determine but must ever hold itself open to new possibilities and eventualities, to alterity. It is precisely in this sense, coming now more directly to the matter of the death penalty, that law is not simply like death but rather that the much-vaunted legal dealing of death actually deals a certain death to law. There is something about the death penalty that ‘debases the legal system as a whole’ and that if it were to be continued would ultimately mean that ‘law [could not] be operatively sustained as law’. ¹⁷ To be abundantly clear: ‘law cannot accommodate either the general decision to have capital punishment or the particular decision to kill someone. Death, in this argument, marks a limit of the law’. ¹⁸

How does death mark a limit of the law? On Fitzpatrick’s account, law (to be law) must determinately ‘choose and elevate some modes of existence and suppress or ignore others’ (and this for Fitzpatrick, and Foucault, and many theorists of the death penalty, imports a racialised – and sacrificial – dynamic to capital punishment). ¹⁹ But law’s determinacy is counter-balanced by its ‘ever being able to be otherwise than what it determinately is. One day to come, à venir, law could actually be more and extend to the previously excluded’. But by rendering a final and irreversible judgement the institution of capital punishment ‘denies that promise. It effects a closure around the already determined and denies it the ability to be otherwise’ and this judicial denial effects a restraint on law’s ability to ‘remedi[ate its constitutive] exclusions,’ making its decisions ‘axiomatically partial’ not contingently and revocably so. Killing time.

For Fitzpatrick, then, this prioritisation of the determinate dimension of law in the institution of capital punishment – its literal and figurative cutting function; cutting into life, into bodies, into possibilities, into time – effects an ‘egregious restriction on the responsive’. ²⁰ Whilst this dynamic unavoidably characterises other, routine, aspects of legal interpretation, judgement and enforcement, it is ‘peculiarly concentrate[d]’ in relation to the death penalty because of its (here Fitzpatrick quotes Marshall J in the US Supreme Court case of Coleman v Balkcom) ‘unique finality’. ²¹ ‘When it is not effected in death,’ he argues, ‘law’s finality can always be rendered less so. Law can always extend itself differently. But with the “unique finality” of death, law remains fixed and monotonously the same.’ ²² The death penalty thus denies something integral about law itself and in so doing, in its ‘patholog[ical and] . . . occidental subordination of the unconditional to a determinate appropriation of life,’ ²³ certain life, it concentrates and reproduces existing social, especially racial, inequalities.

Having sketched the contours of Fitzpatrick’s jurisprudential encounter with the death penalty, I want now to bring to the surface and to tease out three interconnected themes in these texts, themes that characterise Fitzpatrick’s wider oeuvre and his practices of reading. The first is the form and style of critique that this death penalty jurisprudence puts into play. On my account, it can best be characterised as a radical legal critique, both in its simultaneous querying of reformist arguments and its opposition to revolutionary (or antinomian) traditions of critique, as well as in its going to the roots, the very fundaments, of what law ‘is’ (and deploying this as an immanent standard of critique for legal practices). ²⁴

On the one hand, a consistent feature of his writings on the death penalty is his problematisation of the putatively abolitionist (yet practically reformist) arguments made against the institution. In a Foucauldian vein, ²⁵ Fitzpatrick details how ‘the death penalty becomes more embedded in law through [a] reformist discourse’ ²⁶ that would seemingly oppose it – whether through submissions that ‘the death penalty should not be imposed on juveniles or on the mentally incapacitated because of their attenuated responsibility’ that hence ‘inexorably’ confirm its application in other instances ‘where responsibility is found ample enough,’ ²⁷ or the proceduralist arguments about ‘limiting or defective or corrupt procedures, or . . . incompetent representation’ that, ‘valuable as they are in themselves, nonetheless end up being complicit with’ the death penalty in ‘implicitly advancing a realizable truth justifying [its] imposition’. ²⁸

On the other hand, Fitzpatrick consistently wants to hold at bay diagnoses of the death penalty as symptomatic of an enduring truth about law’s irreducible violence and which consequently call for law’s evacuation or revolutionary overcoming. ²⁹ Fitzpatrick’s engagement with Robert Cover, admittedly not himself an advocate of law’s overcoming, is nevertheless instructive here. In Cover’s celebrated rendition, ‘[l]egal interpretation takes place in a field of pain and death’. ³⁰ For Fitzpatrick, Cover’s ‘supposedly radical case that law is imbued with violence’ is in fact premised on a separation between his eponymous violence and its legal word, the latter itself kept ‘unsullied’ and ‘inviolate’ when set against its physical ‘execution’. ³¹ To the contrary, Fitzpatrick shows, law is (epistemically and constituently) suffused with a thoroughgoing determinate violence that it cannot deny and disavow. Thus radicalising Cover’s position, Fitzpatrick nevertheless suggests, as his title has it, that ‘the Law is also nonviolent’ because it is ‘precisely in order to effect and sustain the violence of these determining decisions that they must reach responsively and nonviolently beyond themselves’. ³² In sum, Fitzpatrick remains suspicious of a ‘kind of terminal pessimism’ advanced in reformist arguments ‘about the death penalty and its abolition’ ³³ yet refuses revolutionary or messianic rejections of law and instead affirms law’s nonviolent, responsive possibilities. But what kind of affirmation, what kind of normative argument, is this? This question of normativity is the second theme I wish to discuss.

Fitzpatrick’s critique of the death penalty is a radical legal critique but it does not avail itself of the standard (positivist or transcendent) normative resorts. This is not a critique of deathly sovereignty made in the name of life, for example. Vitalist appeals to sovereign biopolitics are all too easily recuperable in the service of necropolitical projects, as Foucault and others counsel. ³⁴ Neither is it made in the name of the dignity of the subject to be put to death or of the sanctity of her life nor, obviously, in terms of the putatively civilising ‘evolving standards of decency’ of mankind. ³⁵ Nor, finally, is it an argument necessarily advanced on behalf of particular, canonical liberal legal commitments or values like (as we have seen) due process, or the rule of law, or human rights. ³⁶ Rather, it is a directly normative argument made against the death penalty precisely in the name of law. This is where on standard accounts of Foucault (although arguably not Fitzpatrick’s own), ³⁷ he parts company with the former. But Fitzpatrick could not be clearer. The death penalty does not reveal the obscene truth of law’s violence; rather, the law is degraded and debased in the death penalty. ‘[L]aw cannot be tied to finality and . . . when it purports to be’, he writes, ‘it is less than law’. ³⁸ What kind of less-than-law, lawless law, is this? A violently non-responsive one. In short, an imperial one. (Think here, for example, of Nelson Mandela’s affirmation of a superior law in the face of law’s violent racism in apartheid South Africa. As Fitzpatrick, reading Derrida reading Mandela, observes, his (Mandela’s) counterposing of a superior law against its apartheid perversion transcends any simple opposition between realism and idealism. In affirming a superior law that is ‘integral to law as it is’, Mandela ‘is [still] a realist, but one who sees more in the real, and in the realizable, more than others see’). ³⁹ Recall, too, that for Fitzpatrick death penalty laws are characteristically ‘occidental’ laws that perform a ‘subordination of the unconditional [viz. responsive]’ to the determinate. ⁴⁰ ‘Colonial law,’ he reminds us elsewhere, ‘[is] the apotheosis of legalism, of law isolated in its determinate dimension’. ⁴¹ Capital punishment might well be an instance of legalism but it is not law, properly so called. And in its imperial self-positioning and terminal closure this kind of law signally fails to do what, for Fitzpatrick, it is so important that law does. This is not a normative critique of law simply for the sake of law itself but one ultimately made because in modernity ‘law becomes the commensurate condition of our being together as society’, which, ‘if it is to provide the continuate and generative terms of [our] being together, . . . must . . . be illimitable and illimitably responsive. It must ever enable an opening onto itself’. ⁴²

How and when might some of these normative possibilities be actualised? How and when might law be made more responsive? To come now to a conclusion, then, let me say a few words about the third and final theme of these texts on the death penalty, namely the kinds of resistant subjectivity they envision and enact. There is a sense in much of Fitzpatrick’s jurisprudence (on capital punishment and on law more broadly) that it is ‘[law] . . . [that] maintains its seductive appeal to the excluded through its responsive ability to be other than what it is’. ⁴³ That it is law itself that, miraculously, ‘becomes self-resistant’. ⁴⁴ That law, now in more openly redemptive terms, ‘can always be other than what it “is”. The hope extinguished in its determinate fixity is resurrected in its responsiveness’. ⁴⁵ The accent and emphasis remains on law’s ‘own,’ almost miraculous, agency in these formulations. Law is the doer; its responsiveness seemingly a fait accompli, a done deed. This leads some to ask of Fitzpatrick whether he has not over-invested his ‘faith in justice-as-responsiveness,’ whether in ‘exaggerat[ing] the work that responsiveness’, a self-responsive law, ‘is able to do,’ we risk ‘redeeming’ ‘present injustices’. ⁴⁶ This seems a fair question to ask. Assuredly, there is a redemptive register to many of these texts that can at first sight be difficult to square with the continued presence of the determinedly non-responsive death penalty, and sundry other imperial legal violences. But by the same token, to invoke ‘Nietzsche’s supremely sane madman’ (of The Gay Science) as Fitzpatrick would often do, ⁴⁷ it is equally clear in these texts (and many others besides) that it is us, we social beings, we ‘moderns’, who bear the responsibility for law’s responsiveness. ‘We need to be more responsive, as it were, to law’s responsive dimension’. ⁴⁸ We need to bring it to bear. ‘[T]hat which demands accommodation [in and as law],’ he says, ‘the active alterity beyond, cannot simply be placid and expectant’. ⁴⁹ We cannot wait for law’s responsiveness but must perform it ourselves, must draw it out, must fight urgently for it. To turn the question around, then, and to read these texts performatively and politically, asking what they require of us as readers and thinkers and citizens and lawyers, might help us to ask a slightly different set of questions. ⁵⁰ If we read these texts not so much as jurisprudential statements of what law ‘is’ but rather as manuals of radical legal opposition to the death penalty, then what kinds of subjectivity do they solicit? What kinds of response and responsibility do they beckon us towards – in order to face up to and accomplish the task of abolition? Not a wistful or a quietist faith in law. Quite the opposite. What then? What might we as Fitzpatrick’s readers today need to do in order to inherit this resistant, scholarly legacy? Conveniently, these writings themselves manifest some of the very traits we might need, on the sinuous ‘road to abolition’ and beyond: a slowness and a curiousness, an intense creativity and a feeling for nuance and ambivalence and possibility, a humility, the maintenance of a difficult faith, an intolerance of violence and a feeling for justice. Plainly, ‘there is always more to do’. ⁵¹ Indeed, we have no time to lose.