Monday, August 31, 2009



During my break from writing this week, I have had time to read some interesting history. I am always searching for historical material to flesh out my satires and inspire essays that link modern-day problems to ancient precedents. I found a good one in the story of Simon Fraser, 11th Lord Lovat (1667-1747), a Scottish Baron who had the honor to be the last man beheaded at London's Tower Hill.

I have studied capital punishment at length. I think it measures a society's moral progress. You can tell how advanced--or barbaric--a society is by investigating three things: (1) Does its government kill its own citizens "by law?"; (2) If it does, how does it "officially kill" them? and (3) If it does, how many does it kill every year? For over a year now, I have cataloged which countries (and US States) allow capital punishment. I have also investigated which methods they use to execute people. It is a grim business, but I think it reveals a lot about human societies and their claims to "civilization." Capital punishment, after all, is the ultimate government action vis-a-vis the individual. Government can take many things from you. It can take all your property, your dignity, your self-respect, your money, your liberty and even your children. But it can't take anything more than your life.

Yet it impossible to talk about capital punishment without talking about history. Throughout the ages, capital punishment and brute political power have gone hand in hand. Political power uses law to advance its own purposes, not in order to vindicate abstract principles like justice or right. Victorious governments execute rebels and others who commit "treason" against them. In this sense, capital punishment masquerades as a "legal sanction," when in fact it is merely an exercise in raw, arbitrary political power. The strong man kills the weak one who opposes the "establishment." The strong man deploys judges to cover up the killing with official-sounding legal gobbledygook.

But law doesn't fool me. Law is supposed to speak against killing our neighbors, not kill them itself. I have profound difficulty believing legal rhetoric that justifies capital punishment when the same legal rhetoric condemns common, intentional homicide. If intentional homicide is "wrong" when a citizen commits it, how is it different when a State officer does the same to a citizen? There is a glaring inconsistency here. And this inconsistency persists because governments have always claimed a power to kill their own citizens. In my view, blind tradition is no reason to keep foolishness alive in our time.

In all my studies about capital punishment, I routinely run across ironic tales that expose these philosophical inconsistencies. Simon Fraser's story is a perfect example. Fraser was sentenced to die because he conspired with Jacobite rebels during their attempt to overthrow King George II in the 1740s. He "had to die" because he threatened to dislodge those with political power. He lost, so he "had to die." If he had won, he probably would have executed the losers. It had nothing to do with principle; it was about power.

In any event, Fraser went to Tower Hill. Huge crowds gathered to watch his head roll off the block. The government built wooden scaffolds to accommodate the overflow crowd. They wanted to see this "traitor" die. But before the headsman struck, a scaffold collapsed, killing 20 bloodthirsty spectators.

I laughed when I learned this. I found it ironic that men and women died while waiting to watch an execution. They paid for their perverse desire to watch the government ritually kill someone. Something turned the tables on them. They thought the law supported them against the "traitor," but they died, too. Victorious political power might have killed Lord Fraser, but some other power killed the spectators who prepared to celebrate his death.

In my view, this shows that executions do not prove that the government is "right" about anything, even if the condemned person is guilty. No matter what legal arguments the King's judges and prosecutors made to justify Lord Fraser's death in law, they could not prevent "innocent" spectators from dying, too. In short, government had power to order Lord Fraser to die, but it had no power to prevent the spectators from dying. Thus, the government's own claim to "power over life and death" appeared pitifully limited.

In principle, then, government is not "naturally right" when it kills its own citizens. It has simply arrogated the power to execute people "by law" because power creates law. There is nothing in nature that entitles government to put citizens to death. All the procedures, trials, rules and rhetoric underlying modern capital punishment are mere inventions, not a priori truths.

There is not much I can do to dislodge power. I just like to think that government should aspire to something better than the crude, human urge for revenge against "trespassers." I have written before than men will always kill each other. Men are emotional animals. They have individual weaknesses, passions, idiosyncrasies and even delusions. Yet government is supposed to be better than the individual men who compose it. Just because men constitute government does not mean that government must mirror all men's weaknesses. To the contrary, government has a unique power to stand on principle and dignity, even when individual men cannot. To my mind, there is no substance to the argument that "government can kill because men can kill." Rather, I believe that government has a unique opportunity to insist on behavior that transcends human weakness. Principles might not work for individual men, but governments can demand them.

Law should mean something more than mere power. Lord Fraser's story reveals power at work through law. Yet his story also reveals that neither law nor power can control everything, despite their claims to the contrary. While power might have ordained Lord Fraser's death, it did not ordain the spectators' deaths. No legal solemnity or argument killed the spectators. Law may have justified Lord Fraser's death with florid rhetoric and even legal citations. But its pretentious reasoning could do nothing to justify--or prevent--the spectators' deaths.

In short, power has limits. But power acts as if does not. I love stories that reveal those limits, chastising those who adhere to power. The spectators at Lord Fraser's execution confidently took their seats on the scaffold to behold "their" power at work on a man "their" law had condemned. They felt justified in exercising "their" power. But they wound up dying, too, even though the "law was on their side." They didn't "deserve to die;" but apparently--to quote The Unforgiven--"deserve's got nothing to do with it."

What sweet, maddening irony. The history of power--and capital punishment--abounds with stories like this. In the end, you get the impression that no one is right, no matter who dies and who invokes law to justify death.


Timoteo said...

Unlike the "lower" animals that act out of pure instinct, (and thus have an excuse) WE have the ability to CHOOSE. Where's OUR excuse when we choose to deny compassion?

The only difference between the public executions of our "deep dark past" and today is that those who witness the killing get a special invitation.

SteveW said...

I know your posts are not supposed to be an exercise in raw logic, but while I'm sympathetic to your argument here I find it unconvincing.

The idea that governments may not have the power to kill their people is exceptionally recent, and therefore according to your reasoning civilization itself is exceptionally recent (e.g. 1981 in France). That just doesn't sit with me, as clearly many important advances in civilization occurred before the last 100 years or so that capital punishment went out of vogue.

Also, governments compel citizens to not imprison each other, and yet I presume you would argue that the government should still be able to imprison people (perhaps I presume too much?). Therefore, the idea that government proscribes killing and therefore cannot kill is simply illogical.

Finally, you focus on the worst kinds of killing for your analysis, i.e. killing of political opponents, and extrapolate that out to say that killing Ted Bundy is just as bad. Nope, not buying the connection or at least not as strongly as presented.

Capital punishment is not particularly effective in any dimension of criminal punishment except in the dimension of specific deterrence (or really incapacitation - where it is, obviously, perfect). Therefore, I could see utilization of capital punishment where perfect incapacitation was required. However, the idea that the state should have any extra powers (i.e. beyond direct police power) to kill people goes against my libertarian grain.

However, I just don't find your arguments compelling - not that I have a better replacement.

Balthazar Oesterhoudt said...

Steve, I didn't even realize that you had left a comment on this post.

Do I think government should be barred from engaging in any conduct that it proscribes among its citizens? Certainly not. I support imprisonment as a legal sanction even though government bars "private imprisonment" as "conduct" among its citizens. Similarly, I think government has the power to fine people, even though it bans stealing money. That is probably not the best example, since the government asserts "lawful authority" to take the fine, which wouldn't make it "legal stealing," but you get the point. We're talking about conduct here in the abstract. If we step back far enough, taking money is taking money, lawful or not.

My response about killing as "conduct" is that "killing is different." And I am talking about a very particular kind of killing, namely, ritualized, executions under domestic law. In other words, executions are different than killing in war, or killing in self-defense, etc. I don't have a reason for this other than intrinsic moral contempt for the practice: It is grotesque because it is so measured. I also think that because law takes such a firm moral stand against killing among the citizenry, it should lead by example and refuse to kill. The law does not take such a pervasive stand against imprisonment or stealing. Yes, they are bad, but we always learn that "killing is the worst." I just think that government puts its foot in its mouth when it does the very thing it condemns the most in civil society.

So perhaps it's not purely logical argument (did you expect anything less from me), but I think it has some logical strength to the extent that government should not engage in the very conduct it calls the "worst" in civil society. If there is one area in which government's practice and preaching should be consistent, it is here, since depriving life is the ultimate deprivation.