John Locke: “every man, in the state of nature, has
a power to kill a murderer […] such men are not under the ties of the common
law of reason, have no other rule, but that of force and violence, and so may
be treated as beasts of prey (source of picture)
The last millennium has seen three overlapping
trends in Western societies with respect to unlawful violence.
The first one began in the 12th century with the
rise of strong States and a growing determination, with the consent of the
Church, to punish the “wicked” so that the “good” may live in peace. By the
late Middle Ages, the courts were condemning to death between 0.5 and 1.0 % of
all men of each generation, with an equal number dying while awaiting trial. There
was correspondingly a shift in the cultural environment. The violent male went
from hero to zero; even if he didn’t pay the ultimate penalty, his
opportunities for social advancement were now much more constrained.
The second trend was a steady drop in the homicide
rate throughout most of Western Europe. In England, this rate fell by over a
hundred-fold between the 12th and 19th centuries (Eisner, 2001).
The third trend began in the 17th century with a
growing unwillingness by the courts to impose the death penalty. Then, from the
mid-18th century onward, one country after another began to limit the death
penalty or abolish it altogether.
These three trends were interrelated. The first
one—the “war on murder”—succeeded all too well. The pool of violent men dried
up to the point that most murders occurred only under conditions of extreme
stress, jealousy, or intoxication. Violence ceased to be a socially approved
way to gain prestige and advance personal interests. It became a mark of shame,
condemning those guilty of it to the margins of society, if not to the gallows.
Thus, the longer the death penalty was used, the less necessary it became.
The ideological
background
But there was another reason, an ideological one. At
all levels of society, people began to see the death penalty as being inherently
wrong. In the early 19th century, for instance, English law still required
hanging for thefts equal to or greater than forty shillings. To get around the
law, and save a condemned man, a jury decided that a stolen 10-pound note was
worth only thirty-nine shillings. Another jury came to the same decision for a
theft of a hundred pounds! (Savey-Casard, 1968).
What caused this change of heart? The usual answer
is liberalism, specifically “the Enlightenment”—a philosophical movement of the
18th century that sought to base public policy on reason and science. For many
traditionalists today, this is one example among many of how the Enlightenment
replaced the old faith in proven tradition with a new faith in unproven ideals.
Yet most philosophers of the Enlightenment accepted
the death penalty. This was the case with John Locke (1632-1704), the Father of
Classical Liberalism:
[…] every man, in the state of
nature, has a power to kill a murderer, both to deter others from doing the
like injury, which no reparation can compensate, by the example of the
punishment that attends it from every body, and also to secure men from the
attempts of a criminal, who having renounced reason, the common rule and
measure God hath given to mankind, hath, by the unjust violence and slaughter
he hath committed upon one, declared war against all mankind, and therefore may
be destroyed as a lion or a tyger, one of those wild savage beasts, with whom
men can have no society nor security: and upon this is grounded that great law
of nature, Whoso sheddeth man's blood, by man shall his blood be shed. (Second Treatise of Government, 2, 11)
[…] one may destroy a man who
makes war upon him, or has discovered an enmity to his being, for the same
reason that he may kill a wolf or a lion; because such men are not under the ties
of the common law of reason, have no other rule, but that of force and
violence, and so may be treated as beasts of prey, those dangerous and noxious
creatures, that will be sure to destroy him whenever he falls into their power.
(3, 16)
This is the idea of the “Social Contract.” In modern
societies, people forego the use of violence for personal ends so that they may
enjoy the benefits of a peaceful society. If a man commits unlawful violence, he
repudiates this implicit contract and thus loses his immunity from violence.
Interestingly, Locke supported the death penalty not just for murder but for
lesser offences as well: “each transgression may be punished to that degree
[with death], and with so much severity, as will suffice to make it an ill
bargain to the offender, give him cause to repent, and terrify others from
doing the like” (2, 12).
The Social Contract was central to an essay by
Jean-Jacques Rousseau (1712-1778):
The death-penalty inflicted upon
criminals may be looked on in much the same light: it is in order that we may
not fall victims to an assassin that we consent to die if we ourselves turn
assassins. […]
Again, every malefactor, by
attacking social rights, becomes on forfeit a rebel and a traitor to his
country; by violating its laws he ceases to be a member of it; he even makes
war upon it. In such a case the preservation of the State is inconsistent with
his own, and one or the other must perish; in putting the guilty to death, we
slay not so much the citizen as an enemy. (Du contrat social, 2, 5)
Among the philosophers of the Enlightenment, Cesare
Beccaria (1738-1794) was the only major one to argue against the death penalty:
[…] the laws, which are intended
to moderate the ferocity of mankind, should not increase it by examples of
barbarity the most horrible, as this punishment is usually attended with formal
pageantry. Is it not absurd that the laws, which detest and punish homicide,
should, in order to prevent murder, publicly commit murder themselves? (On crimes and punishments, 28)
But Beccaria’s opinion was a minority one. After the
French Revolution, his arguments for abolition were presented to the Assembly
by several deputies, but the majority remained opposed (Carbasse, 2011, p.
76-77).
Was abolitionism
liberal?
The French Revolution actually reversed an
abolitionist trend that had developed under the Ancien Régime. From 1750
onward, the courts had become increasingly reluctant to condemn people to
death. In Dijon, the death penalty accounted for 13 to 14.5% of all sentences
before 1750, 8.5% in 1758-1760, 6% in 1764-1766, and less than 5% after 1770.
By 1788, on the eve of the revolution, no executions at all were being carried
out in Paris (Carbasse, 2011, p. 70).
Elsewhere, abolitionism made the most progress where
liberalism was the weakest. In Russia, the death penalty was unofficially
abolished during the reign of Elizaveta Petrovna (1741-1762), apparently out of
Christian piety. It was then reestablished by Ekaterina II (Catherine the
Great), who corresponded with Voltaire and professed Enlightenment ideals
(Carbasse, 2011, pp. 74-75). Under the influence of Beccaria, the death penalty
was abolished in countries that were nonetheless illiberal by any other
standard, notably Tuscany in 1786 and the Hapsburg dominions in 1787. The least
progress was made in England, the very epicenter of liberalism:
The only European country where
the ideas of penal reform had almost no effect was finally England. English
criminal law, whose particular ferocity we have pointed out, remained just as
repressive. In the late 18th century, nearly 300 infractions were still
punishable by death (Carbasse, 2011, p. 75).
Who was breaking
with the past?
Thus, when debating the rightness or wrongness of
the death penalty, most philosophers of the Enlightenment did not break with
the past. Medieval views similarly prevailed in secondary debates, like whether
this penalty should be motivated by retribution or by the need to maintain
public order. The latter, more utilitarian view is often associated with the
Enlightenment, yet it had been earlier expressed by medieval thinkers, such as
Thomas Aquinas (1225-1274):
[…] it is lawful to kill an
evildoer in so far as it is directed to the welfare of the whole community, so
that it belongs to him alone who has charge of the community's welfare. Thus it
belongs to a physician to cut off a decayed limb, when he has been entrusted
with the care of the health of the whole body. Now the care of the common good
is entrusted to persons of rank having public authority: wherefore they alone,
and not private individuals, can lawfully put evildoers to death. (IlaIlae, q. 64)
Another secondary debate was whether murderers act
out of free will and, if not, whether it is fair to execute them. On this, the philosophers
of the Enlightenment denied the existence of free will. All behavior is
channeled through constraints that exist either within oneself or in one’s
environment, and these constraints are stronger in those murderers who act on
impulse and not after sober reflection. Nonetheless, lack of free will is no
excuse for a condemned murderer, any more than for a mad dog. He isn’t sentenced
to be executed because he “deserves” it and will know better next time. There
will be no next time. He is simply removed, permanently, from the community of
peace-loving citizens. In this, the Enlightenment was reiterating views held by
Thomas Aquinas and other medieval scholars. (Carbasse, 2011, pp. 62-63).
The Enlightenment thus refined ideas that had already
taken shape during the late Middle Ages. It was really the 12th century that had
broken with prior thinking. Previously, the death penalty had been reserved for
exceptional cases, partly because the Church considered it inherently wrong and
partly because the State preferred to be an honest broker in personal conflicts
that did not challenge its authority. It was only from the 12th century onward
that the death penalty came to be seen as a force for good, and this consensus
still prevailed among most philosophers of the Enlightenment.
So how did this consensus come to an end? The
Enlightenment was paralleled by an ideological change within Christianity
itself. The same processes that made the Enlightenment possible—invention of
printing, mass distribution of books, rising level of literacy—also allowed
more and more Christians to discover the Bible. They soon discovered that this
book did not contain the overlay of correction, interpretation, and commentary
that had been added during the Middle Ages. Why, they wondered, was this
overlay absent from the Holy Scriptures? Surely it must be a sham! And so they
discarded the hard lessons that had been learned at much cost. The clock was
literally turned back to the Dark Ages—when the Church provided murderers with
sanctuary and when the State preferred to be an arbiter between the murderer
and the victim’s family.
We associate this rejection of medieval teachings
with Protestantism, but it has also been present in Catholicism. In both, there
has been a move towards a truncated kind of Christianity … towards “Jesusism.”
It is this Jesus-centered Christianity, much more so
than the Enlightenment, that has shaped modern liberalism. For every copy of
John Locke’s works, there have been millions more of the Bible, and millions
more of writings by people who spurn medieval Christianity as one would an
imposter.
Conclusion
Some people have called me a thinker of the “Dark
Enlightenment.” Actually, the original one seems fine enough to me. We have not
been failed by science and reason. Rather, we have been failed by an
ideological change within Christianity that has become secularized and now
dominates the modern world view. One might call it “secularized Christianity”
or perhaps “Christian atheism,” but neither is really appropriate. It is a
changeling. It claims descent from our rich traditions of the Middle Ages and
the Enlightenment … while actually owing little to either.
References
Beccaria, C. (1767). An Essay on Crimes and Punishments, transl. from the Italian
http://archive.org/details/anessayoncrimes00beccgoog
Carbasse, J-M. (2011). La peine de mort, Que sais-je ?, Paris.
Eisner, M. (2001). Modernization, self-control and
lethal violence. The long-term dynamics of European homicide rates in
theoretical perspective, British Journal
of Criminology, 41, 618-638.
Locke, J. (1690). Second Treatise of Government,
http://www.gutenberg.org/files/7370/7370-h/7370-h.htm
Rousseau, J-J. (1762). The Social Contract or Principles of Political Right, transl. from
the French
http://www.constitution.org/jjr/socon.htm
Savey-Casard, P. (1968). La peine de mort, Librairie Droz, Geneva.
Thomas Aquinas. Ila
Ilae, The Summa Theologica, Benziger Bros (transl. 19474)
http://dhspriory.org/thomas/summa/SS/SS064.html#SSQ64A3THEP1
