The Home of American Intellectual Conservatism — First Principles

February 20, 2018

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Democracy without Nations? The Fate of Self-Government in Europe (part 2)
Pierre Manent - 04/17/08

This essay is adapted from Pierre Manent, Democracy without Nations? The Fate of Self-Government in Europe, translated by Paul Seaton and recently released from ISI Books.

I enter into the subject of the death penalty only because my broader subject demands it. To consider it requires a painful effort to think about something that disturbs all our instincts. Nor am I unaware of the history of the growing postwar movement in favor of the abolition of the death penalty. The current European consensus occurred gradually, but finally won over almost all hearts. For Europeans the abolition of the death penalty constitutes the most eloquent expression, the one dearest to their hearts, of their identity and their distinctive values. It distinguishes them from other areas of the world, including many important states in the United States that retain the death penalty. Europeans find the American retention of capital punishment almost incomprehensible. But isn’t this discrepancy between Europe and the United States, on a subject upon which all democratic nations would seem to have to agree, itself derived from the great political difference between the two? That is, the United States is still a sovereign state, a genuine nation-state, whereas the European countries no longer are and no longer wish to be sovereign states, nor even nations in the full sense of the term. In any event, I will address the question only through this very specific political angle: the relationship of the death penalty to the principles of the sovereign state.

Let us return to the beginning, even to what preceded the beginning. Let us return to the “state of nature” as conceived by the architects of the modern state, first of all by Thomas Hobbes and John Locke. Locke underscores that, in the state of nature, each person is the executor of the law of nature. More precisely, this means in the state of nature, where there is no legitimate superior and no state, each individual has the right to inflict the death penalty. Of course, man in the state of nature does not have this right except in cases of legitimate defense. But under these conditions he is the sole and “sovereign” judge of what constitutes legitimate defense. Such is the original situation that must always be kept in mind.

In such a situation, where each is the judge of his legitimate defense, one arrives very quickly—one might say logically—at “the war of all against all.” The state of nature necessarily ushers in a state of war, if it is not simply equivalent to it. In order to exit this state of war, which is certainly intolerable, it is necessary and sufficient that each one of us confers the exclusive right to be the executor of the law of nature on a third party. That third party now becomes the legitimate superior, and in the end he becomes the sovereign state, which is legitimate by this very act of consent. Max Weber’s endlessly cited formulation—that the modern state is characterized by a “monopoly of legitimate violence”—echoes this analysis and these propositions of Hobbes and Locke.

In the state of nature, which is essentially a state of war, the death penalty is omnipresent. (It suffices for us to think of certain modern-day approximations to the state of nature: e.g., Lebanon between 1975 and 1990, certain areas of Colombia, or until recently Sierra Leone, and so on.) In the civil state the death penalty, which is now reserved to the state, has become “homeopathic”—to employ an expression of that great reader of Hobbes, Michael Oakeshott. One heals the mortal malady with a very small dose of the same evil. Such was the political justice of Western societies during the past three centuries.

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