The Home of American Intellectual Conservatism — First Principles

November 12, 2018

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

In the past few years European countries have abolished the death penalty. Why? To repeat: I will leave aside all moral, religious, social, or properly penal considerations. I will restrict myself to the political terms of the problem as I have just presented them. The political argument against the death penalty can be formulated as follows: putting a human being to death is justified only in the case of legitimate defense. Now, this justification can hardly be valid for the state­—especially the modern state, that enormous collective institution whose life is not endangered by the crimes and offenses that it must judge and punish. Consequently, the state does not have the right to put to death any member of society, no matter how criminal that person may be.

The argument is very strong. It is at the heart of the most popular moral argument against the death penalty, which states that society is not permitted to conduct itself like the criminal in putting him to death; otherwise it runs the risk of resembling him. In any case, the political argument is required for the validity of the moral argument. If we allow ourselves not to “resemble” the murderer, it is because the state is as different as is humanly possible from either the criminal or the victim, since it is invulnerable and, in Hobbes’s term, “immortal.” In the absence of such a state, I would be obliged to “resemble” the murderer in order to defend myself. And I would be legitimately defending myself, because we both would be in the state of nature.

As I said, the argument is strong. But perhaps it lends too much of its force to the state. I mean by this that the argument attributes to the state more power and strength than the state has or could ever have. The argument also ignores the vital moral exchange that takes place between the state and its members, the exchange that is the principle of its legitimacy and of its strength. The state requires of us not only that we do not pursue justice on our own but even that we renounce legitimate self-defense, except in very limited circumstances. Even before constraining us in this way, the state teaches us to forebear from all conduct, behavior, or even attitudes by which we prepare ourselves to be able to defend ourselves in the state of nature. It teaches us to lay down our natural defenses and place our confidence in the state’s ability and willingness to defend us. It requires an enormous sacrifice and an immense act of faith. When a murder or a comparable crime is committed this sacrifice seems to have been made in vain and our confidence is betrayed.

For its part, the state suffers a loss of legitimacy to the extent that it shows that it lacks power. Yet today, by contrast, most Europeans think that the state which applies the death penalty both increases its weakness and loses more of its legitimacy: it “descends” to the criminal’s level, thus causing all of us to fall back into the state of nature.

The argument against the death penalty can be summarized as follows: by inflicting the death penalty, the state causes us to return to the state of nature, to where it was the great instrument designed to free us. But it is precisely crimes of this sort—crimes the state could not prevent—that show that we have not completely left the state of nature. And since there will always be crimes of violent death at the hands of others we will never completely leave the state of nature behind. However, when the civil state rejects the death penalty as a matter of principle and conscience, thereby protecting the murderer of the person it could not protect, it pretends to have left the state of nature behind definitively. But by pretending this, the state severs itself from the original source of its legitimacy. And how, without extreme and shocking injustice, can the state ask me to risk my life to defend it after it has erected a new constitutional principle stating that the worst criminal will never risk his own life at the hands of the state?

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