The Home of American Intellectual Conservatism — First Principles

December 18, 2017

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.

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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It is in this context we might usefully clarify the new doctrine of the Catholic Church on the death penalty. The ultimate principle of the Roman Church’s teaching has not changed. [3] It resides in unreserved obedience to the divine commandment, “Thou shalt not kill.” That is why the church, even in the periods when it exercised its power over souls with less restraint, has always itself refused to put to death those it judged worthy of the ultimate penalty. Instead, it committed them to “the secular arm”—an exquisite procedure that managed to stir Joseph de Maistre to tears of tender admiration. Thus, the church recognized as legitimate in principle something it forbade itself from doing—putting men to death—if the one who did it was the legitimate political authority. This was one way of recognizing the validity of the political order, which otherwise was seen as a merely human thing that ruled over and for bodies. It therefore could inflict the death of the body, as the church ruled over and for souls and therefore could inflict the death of the soul. What the church bound on earth would remain bound in heaven.

Why then has the church modified if not its very teaching on this point, at least the rules of its application? [4] Why has the church set to demanding insistently, even vehemently, that states should renounce a right that it had always recognized them to possess? Among the reasons one could advance, I believe that a reason of high politics merits particular attention.

The church cannot completely abandon its exercise of “indirect power” over the political order. Yet at the Second Vatican Council (1962–65) it accepted the principle of religious freedom. Henceforth, therefore, its exercise of its “indirect power” must be more and more indirect. And if the church no longer claims the right to act positively within states in the name of its divine authority, the possibility remains of doing what it can to diminish the spiritual legitimacy of these political bodies. After all, these are communities to which men have devoted themselves over the course of centuries, to the point of preferring the salvation of the state to the salvation of their own souls. It is therefore very coherent of the church to adopt a generally “pacifist” stance at the same time that it rejects the death penalty. It thus advances both the interior and exterior disarmament of the secular state. Should we suspect that the Church of Rome by these new teachings is only pursuing in new circumstances the old struggle between the papacy and the emperor? Be that as it may, one would have to be very insensitive to the interplay of “spiritual masses” (the phrase is Hegel’s) not to detect how markedly the notion of secularization changes color—and perhaps meaning—for the church when secularization today affects political bodies as much or more as it does the church itself. Today the secular state is itself becoming secularized.

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I just spoke of the papacy and the empire. In fact, its rather militant rejection of the death penalty and its rather accentuated pacifism place the church today in a profound and serious spiritual opposition to “the American empire.” It is important, therefore, to consider the American attitude toward the death penalty—which as I said presents such a striking contrast to the European position. This contrast requires us to consider certain phenomena belonging to the third circle, that of the nation-state, to the extent these are unintelligible in terms of the second circle of Tocqueville’s analysis. As we have seen, Tocqueville explains the progressive development of democratic “mildness” by the growing sentiment of human resemblance. Thus, there is no “democratic” reason, if I can put it that way, why the United States and Europe should find themselves at such different points on the compassion spectrum. [5] How, then, can we explain what seems to us a halt, even a regress, in democratic mildness in the birthplace of democracy, the United States? This development is even more striking when one considers that this country remains in many other respects in the avant-garde of nations when it comes to democratic sensibilities—in the relationship between the sexes, for example. Why, then, this sole exception—an exception between democratic countries and within American democratic life—when it comes to applying the death penalty? More generally, what accounts for what one could call Americans’ punitive vigor and even alacrity?

In my view, it is because the Tocquevillean country par excellence has not broken with the Hobbesian scheme of the Western nation-state. There is a paradox, even a historical mystery in this, because the United States came into being by breaking with the sovereignty of Westminster. [6] In any case, the connection between the state that holds a monopoly of legitimate force and the experience of the state of nature has never completely been forgotten there. It has been maintained and even reinforced of late, even before September 11. The general recognition of the legitimacy of the death penalty goes hand-in-hand with a widespread view that each individual has the right to possess arms for self-defense. [7] Europeans believe that the Hobbesian logic speaks in their favor, and they insist that it is contradictory to exercise a right that in principle has been yielded to the state. In turn, Americans respond that since the risk of violent death at the hands of others never completely disappears, the right to self-defense cannot completely disappear. The right to bear arms is a manifestation or component of that right. We should acknowledge that both Europeans and Americans can rightly claim to draw inspiration from the great architect of the sovereign state. But Europeans think and act as though the sovereign state has fulfilled its purpose so completely that they can now consign it to the thrift store, filed under “accessories.” Americans, on the other hand, retain the feeling that they are living in a condition which makes this “accessory” necessary, even indispensable.

Notes
  1. “Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” Catechism of the Catholic Church, 2nd edition (Libreria Editrice Vaticana), art. 2267, 546.
  2. “If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.”Ibid.
  3. I presuppose here that abolition of the death penalty signifies a progress in “mildness” and “compassion.” These two dispositions or affects, and those connected with them, would require a much more careful analysis than I can provide here. In principle, we are distrustful of our “noble feelings,” but compassion seems to escape this rule of suspicion. Our compassion is revolted at the death penalty, but it seems to accept without any difficulty sufferings that occur in prison. Prison is that instrument of torment that we refuse to look at and name as such. What we really find intolerable is any visible assault on bodily integrity. Even in the United States one tries to reduce the visibility of this assault by means of death by lethal injection.
  4. See Peter Sloterdijk: “The function of fear in politics is a problem that Americans share with Arabs: neither has really known the Hobbesian ‘castration’—that is, the submission of the wild pride of the citizen to the sovereignty of the State.” Peter Sloterdijk and Alain Finkielkraut, Les Battements du monde (Paris: Pauvert, 2003), 99.
  5. This “general recognition” is far from being unanimous, I know. The past few years has seen a movement to moderate this punitive alacrity. But if democratic mildness continues to manifest itself, including at the level of the Supreme Court, it seems to me that, above all, what is at issue in the United States is less the principle of the death penalty than the conditions of its application. I could be wrong, of course.
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