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problem that is once more confronting our conscience and our reason, we think that a solution must be sought, not through the conceptions, problems, and arguments of the past, nor through the hopes and theoretical promises of the future, but through the ideas, recognized facts, and necessities of the present." 7 It is possible, indeed, to debate endlessly as to the benefits or harm attributable to the death penalty through the ages or in an intellectual vacuum. But it plays a role here and now, and we must take our stand here and now in relation to the modern executioner. What does the death penalty mean to the men of the mid-century?
To simplify matters, let us say that our civilization has lost the only values that, in a certain way, can justify that penalty and, on the other hand, suffers from evils that necessitate its suppression. In other words, the abolition of the death penalty ought to be asked for by all thinking members of our society, for reasons both of logic and of realism.
Of logic, to begin with. Deciding that a man must have the definitive punishment imposed on him is tantamount to deciding that that man has no chance of making amends. This is the point, to repeat ourselves, where the arguments clash blindly and crystallize in a sterile opposition. But it so happens that none among us can settle the question, for we are all both judges and interested parties. Whence our uncertainty as to our right to kill and our inability to convince each other.
7 Revue de Criminologie et de Police Technique (Geneva), special issue, 1952.
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Without absolute innocence, there is no supreme judge. Now, we have all done wrong in our lives even if that wrong, without falling within the jurisdiction of the laws, went as far as the unknown crime. There are no just people—merely hearts more or less lacking in justice. Living at least allows us to discover this and to add to the sum of our actions a little of the good that will make up in part for the evil we have added to the world. Such a right to live, which allows a chance to make amends, is the natural right of every man, even the worst man. The lowest of criminals and the most upright of judges meet side by side, equally wretched in their solidarity. Without that right, moral life is utterly impossible. None among us is authorized to despair of a single man, except after his death, which transforms his life into destiny and then permits a definitive judgment. But pronouncing the definitive judgment before his death, decreeing the closing of accounts when the creditor is still alive, is no man's right. On this limit, at least, whoever judges absolutely condemns himself absolutely.
Bernard Fallot of the Masuy gang, working for the Gestapo, was condemned to death after admitting the many terrible crimes of which he was guilty, and declared himself that he could not be pardoned. "My hands are too red with blood," he told a prison mate.8 Public opinion and the opinion of his judges certainly classed him among the irremediable, and I should have been tempted to agree if I had not read a surprising 8 Jean Bocognano: Quartier des fauves, prison de Fresnes (Editions du Fuseau).
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testimony. This is what Fallot said to the same companion after declaring that he wanted to die courageously: "Shall I tell you my greatest regret? Well, it is not having known the Bible I now have here. I assure you that I wouldn't be where I now am." There is no question of giving in to some conventional set of sentimental pictures and calling to mind Victor Hugo's good convicts. The age of enlightenment, as people say, wanted to suppress the death penalty on the pretext that man was naturally good. Of course he is not (he is worse or better). After twenty years of our magnificent history we are well aware of this. But precisely because he is not absolutely good, no one among us can pose as an absolute judge and pronounce the definitive elimination of the worst among the guilty, because no one of us can lay claim to absolute innocence. Capital judgment upsets the only indisputable human solidarity—our solidarity against death—and it can be legitimized only by a truth or a principle that is superior to man.
In fact, the supreme punishment has always been, throughout the ages, a religious penalty. Inflicted in the name of the king, God's representative on earth, or by priests or in the name of society considered as a sacred body, it denies, not human solidarity, but the guilty man's membership in the divine community, the only thing that can give him life. Life on earth is taken from him, to be sure, but his chance of making amends is left him. The real judgment is not pronounced; it will be in the other world. Only religious values, and especially belief in eternal life, can therefore serve as a basis for the supreme punishment because, according to their
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own logic, they keep it from being definitive and irreparable. Consequently, it is justified only insofar as it is not supreme.
The Catholic Church, for example, has always accepted the necessity of the death penalty. It inflicted that penalty itself, and without stint, in other periods. Even today it justifies it and grants the State the right to apply it. The Church's position, however subtle, contains a very deep feeling that was expressed directly in 1937 by a Swiss National Councillor from Fribourg during a discussion in the National Council. According to M. Grand, the lowest of criminals when faced with execution withdraws into himself. "He repents and his preparation for death is thereby facilitated. The Church has saved one of its members and fulfilled its divine mission. This is why it has always accepted the death penalty, not only as a means of self-defense, but as a powerful means of salvation.9 . . . Without trying to make of it a thing of the Church, the death penalty can point proudly to its almost divine efficacy, like war."
By virtue of the same reasoning, probably, there could be read on the sword of the Fribourg executioner the words: "Lord Jesus, thou art the judge." Hence the executioner is invested with a sacred function. He is the man who destroys the body in order to deliver the soul to the divine sentence, which no one can judge beforehand. Some may think that such words imply rather scandalous confusions. And, to be sure, whoever clings to the teaching of Jesus will look upon that handsome sword as one more outrage to the person of Christ. In the 9 My italics.
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light of this, it is possible to understand the dreadful remark of the Russian condemned man about to be hanged by the Tsar's executioners in 1905 who said firmly to the priest who had come to console him with the image of Christ: "Go away and commit no sacrilege." The unbeliever cannot keep from thinking that men who have set at the center of their faith the staggering victim of a judicial error ought at least to hesitate before committing legal murder. Believers might also be reminded that Emperor Julian, before his conversion, did not want to give official offices to Christians because they systematically refused to pronounce death sentences or to have anything to do with them. For five centuries Christians therefore believed that the strict moral teaching of their master forbade killing. But Catholic faith is not nourished solely by the personal teaching of Christ. It also feeds on the Old Testament, on St. Paul, and on the Church Fathers. In particular, the immortality of the soul and the universal resurrection of bodies are articles of dogma. As a result, capital punishment is for the believer a temporary penalty that leaves the final sentence in suspense, an arrangement necessary only for terrestrial order, an administrative measure which, far from signifying the end for the guilty man, may instead favor his redemption. I am not saying that all believers agree with this, and I can readily imagine that some Catholics may stand closer to Christ than to Moses or St. Paul. I am simply saying that faith in the immortality of the soul allowed Catholicism to see the problem of capital punishment in very different terms and to justify it.
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But what is the value of such a justification in the society we live in, which in its institutions and its customs has lost all contact with the sacred? When an atheistic or skeptical or agnostic judge inflicts the death penalty on an unbelieving criminal, he is pronouncing a definitive punishment that cannot be reconsidered. He takes his place on the throne of God, 1 without having the same powers and even without believing in God. He kills, in short, be
cause his ancestors believed in eternal life. But the society that he claims to represent is in reality pronouncing a simple measure of elimination, doing violence to the human community united against death, and taking a stand as an absolute value because society is laying claim to absolute power. To be sure, it delegates a priest to the condemned man, through tradition. The priest may legitimately hope that fear of punishment will help the guilty man's conversion. Who can accept, however, that such a calculation should justify a penalty most often inflicted and received in a quite different spirit? It is one thing to believe before being afraid and another to find faith after fear. Conversion through fire or the guillotine will always be suspect, and it may seem surprising that the Church has not given up conquering infidels through terror. In any case, society that has lost all contact with the sacred can find no advantage in a conversion in which it professes to have no interest. Society decrees a sacred punishment and at the same time divests it both of excuse and of usefulness. Society proceeds sovereignly to eliminate the 1 As everyone knows, the jury's decision is preceded by the words: "Before God and my conscience. . . ."
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evil ones from her midst as if she were virtue itself. Like an honorable man killing his wayward son and remarking: "Really, I didn't know what to do with him." She assumes the right to select as if she were nature herself and to add great sufferings to the elimination as if she were a redeeming god.
To assert, in any case, that a man must be absolutely cut off from society because he is absolutely evil amounts to saying that society is absolutely good, and no one in his right mind will believe this today. Instead of believing this, people will more readily think the reverse. Our society has become so bad and so criminal only because she has respected nothing but her own preservation or a good reputation in history. Society has indeed lost all contact with the sacred. But society began in the nineteenth century to find a substitute for religion by proposing herself as an object of adoration. The doctrines of evolution and the notions of selection that accompany them have made of the future of society a final end. The political Utopias that were grafted onto those doctrines placed at the end of time a golden age that justified in advance any enterprises whatever. Society became accustomed to legitimizing what might serve her future and, consequently, to making use of the supreme punishment in an absolute way. From then on, society considered as a crime and a sacrilege anything that stood in the way of her plan and her temporal dogmas. In other words, after being a priest, the executioner became a government official. The result is here all around us. The situation is such that this mid-century society which has lost the right, in all logic, to decree capital
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punishment ought now to suppress it for reasons of realism.
In relation to crime, how can our civilization be defined? The reply is easy: for thirty years now, State crimes have been far more numerous than individual crimes. I am not even speaking of wars, general or localized, although bloodshed too is an alcohol that eventually intoxicates like the headiest of wines. But the number of individuals killed directly by the State has assumed astronomical proportions and infinitely outnumbers private murders. There are fewer and fewer condemned by common law and more and more condemned for political reasons. The proof is that each of us, however honorable he may be, can foresee the possibility of being someday condemned to death, whereas that eventuality would have seemed ridiculous at the beginning of the century. Alphonse Karr's witty remark: "Let the noble assassins begin" has no meaning now. Those who cause the most blood to flow are the same ones who believe they have right, logic, and history on their side.
Hence our society must now defend herself not so much against the individual as against the State. It may be that the proportions will be reversed in another thirty years. But, for the moment, our self-defense must be aimed at the State first and foremost. Justice and expediency command the law to protect the individual against a State given over to the follies of sectarianism or of pride. "Let the State begin and abolish the death penalty" ought to be our rallying cry today.
Bloodthirsty laws, it has been said, make bloodthirsty
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customs. But any society eventually reaches a state of ignominy in which, despite every disorder, the customs never manage to be as bloodthirsty as the laws. Half of Europe knows that condition. We French knew it in the past and may again know it. Those executed during the Occupation led to those executed at the time of the Liberation, whose friends now dream of revenge. Elsewhere States laden with too many crimes are getting ready to drown their guilt in even greater massacres. One kills for a nation or a class that has been granted divine status. One kills for a future society that has likewise been given divine status. Whoever thinks he has omniscience imagines he has omnipotence. Temporal idols demanding an absolute faith tirelessly decree absolute punishments. And religions devoid of transcendence kill great numbers of condemned men devoid of hope.
How can European society of the mid-century survive unless it decides to defend individuals by every means against the State's oppression? Forbidding a man's execution would amount to proclaiming publicly that society and the State are not absolute values, that nothing authorizes them to legislate definitively or to bring about the irreparable. Without the death penalty, Gabriel Peri and Brasillach would perhaps be among us. We could then judge them according to our opinion and proudly proclaim our judgment, whereas now they judge us and we keep silent. Without the death penalty Rajk's corpse would not poison Hungary; Germany, with less guilt on her conscience, would be more favorably looked upon by Europe; the Russian Revolution would not be
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agonizing in shame; and Algerian blood would weigh less heavily on our consciences. Without the death penalty, Europe would not be infected by the corpses accumulated for the last twenty years in its tired soil. On our continent, all values are upset by fear and hatred between individuals and between nations. In the conflict of ideas the weapons are the cord and the guillotine. A natural and human society exercising her right of repression has given way to a dominant ideology that requires human sacrifices. "The example of the gallows," it has been written,2 "is that a man's life ceases to be sacred when it is thought useful to kill him." Apparently it is becoming ever more useful; the example is being copied; the contagion is spreading everywhere. And together with it, the disorder of nihilism. Hence we must call a spectacular halt and proclaim, in our principles and institutions, that the individual is above the State. And any measure that decreases the pressure of social forces upon the individual will help to relieve the congestion of a Europe suffering from a rush of blood, allowing us to think more clearly and to start on the way toward health. Europe's malady consists in believing nothing and claiming to know everything. But Europe is far from knowing everything, and, judging from the revolt and hope we feel, she believes in something: she believes that the extreme of man's wretchedness, on some mysterious limit, borders on the extreme of his greatness. For the majority of Europeans, faith is lost. And with it, the justifications faith provided in the domain of punishment. But the majority of Europeans also reject the State 2 By Francart.
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idolatry that aimed to take the place of faith. Henceforth in mid-course, both certain and uncertain, having made up our minds never to submit and never to oppress, we should admit at one and the same time our hope and our ignorance, we should refuse absolute law and the irreparable judgment. We know enough to say that this or that major criminal deserves hard labor for life. But we don't know enough to decree that he be shorn of his future—in other words, of the chance we all have of making amends. Because of what I have just said, in the unified Europe of the future the solemn abolition of the death penalty ought to be the first article of the European Code we all hope for.
From the humanitarian idylls of the eighteenth century to the bloodstained gallows the way leads directly, and the executioners of today, as everyone knows, are humanists. Hence we cannot
be too wary of the humanitarian ideology in dealing with a problem such as the death penalty. On the point of concluding, I should like therefore to repeat that neither an illusion as to the natural goodness of the human being nor faith in a golden age to come motivates my opposition to the death penalty. On the contrary, its abolition seems to me necessary because of reasoned pessimism, of logic, and of realism. Not that the heart has no share in what I have said. Anyone who has spent weeks with texts, recollections, and men having any contact, whether close or not, with the gallows could not possibly remain untouched by that experience. But, let me repeat, I do not believe, nonetheless, that there is no responsibility in this world
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and that we must give way to that modern tendency to absolve everything, victim and murderer, in the same confusion. Such purely sentimental confusion is made up of cowardice rather than of generosity and eventually justifies whatever is worst in this world. If you keep on excusing, you eventually give your blessing to the slave camp, to cowardly force, to organized executioners, to the cynicism of great political monsters; you finally hand over your brothers. This can be seen around us. But it so happens, in the present state of the world, that the man of today wants laws and institutions suitable to a convalescent, which will curb him without breaking him and lead him without crushing him. Hurled into the unchecked dynamic movement of history, he needs a natural philosophy and a few laws of equilibrium. He needs, in short, a society based on reason and not the anarchy into which he has been plunged by his own pride and the excessive powers of the State.