quoting me
>> I would never trust the state as it is presently constituted to execute
>> people, but I do think that the mainstream 'anti' argument has some
>> flaws.
>Could you elaborate, what those flaws are?
>Johannes
Well, Charles here illustrates the argument with his all-too-accurate description of law as it is taught (I am not disagreeing with Charles here, just the argument he cites):
In message <s801f12b.046 at mail.ci.detroit.mi.us>, Charles Brown
<CharlesB at CNCL.ci.detroit.mi.us> writes
>In (bougeois) criminal law they teach that there are three bases for punishment:
>rehabilitation, deterrrence and "an eye-for-an-eye" , with the third not
>considered legitimate. When the Supreme Court abolished the death penalty for a
>while the studies said the death penalty was not a deterrent. And of course it
>is one penalty that forecloses the possibility of rehabilitation. So, ...
This, it seems to me, is pretty much indicative of the loss of nerve in the liberal version of criminal law theory.
Liberal theory is premised upon a utilitarian theory of interests, where obedience to the law is derived from the pragmatic decision of the (potential) offender (and, of course we are all potential offenders).
So the offender can be deterred on a rational choice estimation, or even be rehabilitated, where he is introduced to better life chances (say through education). He can reconcile himself to confinement in the knowledge that he will later be released. But the one thing that you cannot derive from the self-interest of the offender, is his acquiescence to execution - logically enough.
Put another way around the weakness of the liberal argument against the death penalty (and please accept that I am not arguing for the death penalty, but only examining the argument against) is this: It acknowledges no higher value than the interests of the individual, and so cannot countenance execution. The possibility of a higher value than the individual (such as the integrity of a society) is entirely absent.
(Now, to be clear, that's my view, too, as things are currently organised. I would resist the derogation of powers of execution to the state because I do not trust the state to act in the interests of society as a whole - at least as long as it is in the hands of the capitalist class.)
In the same way, liberal theory finds altruistic death and especially such warlike virtues as honour, duty and so on difficult to get a handle on - especially where soldiers risk death. You cannot derive battlefield heroism from self interest - at least, not convincingly.
As against the utilitarian tradition, the Hegelian is more coherent in my view. In the Hegelian view of punishment, the state necessarily acts to redress a wrong, not reproducing, but sublimating revenge as the action of society. The Hegelian takes will, not interest, as its basic building block.
The state's ability to punish arises out of the presumed acquiescence (or better, involvement) of the subject in the formation of the law (including the criminal law as regards capital offences). In that way the punishment does derive from the will of the offender. The will of the offender is divided between a recognition of the law as just, and his own egotistic desire to avoid justice. Punishment enacts the offenders' support for the law against his own failure to live by it. Like a contract that has been broken, the law acts to restore the contract, acting on behalf of the defendant to make good the promise he has broken.
In our more cynical times, such argument's appear otiose or hypocritical. We recoil from the idea of punishment, which strikes us as pre-modern.
The great crisis of the liberal theory of the law came with the 1977 decision of Gary Gilmore not to avoid the death penalty. Gilmore shocked liberal society because he said that he had been sentenced to death and so should die. This was unintelligible to most commentators, because none of them could imagine a situation where someone would willingly give up their lives. Gilmore's bluff was that (one guesses out of a sense of despair as much as anything) he challenged society to defend the value that was higher than his own life, and live up to its empty threat.
Tragically, his protest opened the floodgate, as I remember it.
(There was a great song by the Adverts 'Looking through Gary Gilmore's eyes' the first punk rock song to make the British charts.)
-- Jim heartfield