Capital Punishment. History of Capital Punishment in the United States.
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Transcript of lmCamus and His Critics on Capital Punishment
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8/17/2019 lmCamus and His Critics on Capital Punishment
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N EXCHANGE
Camus and
His
Critics
on Capital Punishment
Donald
Lazere
A
LARGE MAJORITY
of the American public
continues to favor the death penalty,
and a 1972 Supreme Court decision virtu-
ally abolishing capital punishment on
constitutional grounds has gradually
been superseded by a variety
of
legisla-
tion within individual states circumvent-
ing the Court’s constitutional objections
and resulting in a new cycle of execu-
tions during recent years. For this rea-
son, Albert Camus’ classic essay against
capital punishment, “Reflections on the
Guillotine,”retains all of its timeliness and
power as a challenge to Americans and
citizens of other countries where support
for th e death penalty remains strong.”Re
flections” was published in France in a
1957 bookceauthored by Arthur Koestler
titled
R ‘exions sur
la
peine cap itale,
and
the English version appeared in a 1960
collection of Camus’ journalism, Resis-
tance, Rebellion, and Death.’
For the purpose of reconfirming the
viability of Camus’ arguments on capital
punishment and the larger philosophi-
cal, political, and literary issues the es-
say raises, I will briefly review his lines
of argument and then evaluate two ma-
jor at tempts in the United States to re-
fute them, “On Camus and Capital Pun-
ishment” by Thomas Molnar and “For
Capital Punishment” by Walter Berns.
This exchange retains additional con-
temporary significance because Molnar
and Berns represent the movement of
intellectual conservatism that has gained
increasing influence in th e United States
in the past few decades, so that the
debate provides an exemplary case of
the nature and quality of conservative
versus liberal ideology-though Camus
was more inclined toward nonviolent
anarchism and communitarian social-
ism
than liberalism.
Published fifteen years after Camus’
The Stranger,
“Reflections” recapitulates
severalof that novel’s images and themes
concerning the impending execution
of
its narrator Meursault: the story of
Camus’/Meursault’s father self-righ-
teously going
to
watch an execution but
coming home vomiting; the agonies of
the condemned man in the death cell,
the theatricality
of
courtroom rhetoric
and arbitrariness of the verdict, etc.
Camus continues beyond
The Stranger,
which ends before Meursault
is
guillo-
tined, to describe actual executions, jux-
taposing their barbaric reality to the
euphemisms in which society inconsis-
tently shrouds this purportedly exem-
plary ritual. (Camus argues that execu-
tions should be televised rather than
taking place in private if society truly
believes they
serve
as a deterrent to
potential criminals.)
After beginning with these gruesomely
visceral physical descriptions of decapi-
Modern ge 371
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tation, Camus reviews criminological
data refuting defenses
of
capital punish-
ment based on its alleged deterrent value
and citing the high incidence of judicial
errors and variability in verdicts from
one time and place to another. These
data provide the basis for arguing against
capital punishment on the grounds of its
irreversibility; on these grounds alone,
Camus argues for life imprisonment with-
out parole a s an alternative. H e goes on,
however,
to
philosophical, religious, and
political levels of argument. H e does not
wholly reject conservative defenses of
punishment
as
revenge or retribution,
but draws the line at death, not only
because of the dangers
of
erroneous
executions but because society drags
itself down to the level of its most irratio-
nal members in indulging the impulse to
bloodshed, and indeed may incite more
of those members to murder through
emulation than it deters.
On the metaphysical level, Camus at-
tacks capital punishment as blasphemy
against Christian mercy and repentance:
“There could be read on the sword of the
Fribourg executioner the words: ‘Lord
Jesus, thou art the judge.’ 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.”2Moreover, he argues that t he
religious faith undergirding earlier
church-states can no longer justify mod-
ern secular states’ assumption of God-
like power over life and death.
On the political plane, Camus argues
as
a
leftist that bourgeois society breeds
and profits from anti-social conditions
like
poverty and alcoholism, bu t totally
absolves itself of responsibility for the
criminal consequences of these condi-
tions. (This argument has been sup-
ported by recent studies of atrocity kill-
ers in the United States showing nearly
allof hem to have been poor and abused
as children.)
His
argument
is
not that
individuals bear no responsibility for
crime or that society is not entitled to
defend itself, but that as long
as
society
bears the smallest fraction
of
responsi-
bility, it is unwarranted in placing 100
of
responsibility o n criminals in execut-
ing them; the cost of
life
imprisonment
should be considered society’s minimal
share
of
responsibility. Finally, and most
compellingly, he argues that capital pun-
ishment
is
the ultimate weapon of exces-
sive state power over the individual, and
should
be
abolished as a first step to-
ward reversal of the deification of the
state and nationalism that has led in the
twentieth century o two world wars, the
threat of nuclear war, totalitarianism,
and the diminishing of individual liber-
ties, even in democracies.
I1
Thomas Molnar’s “OnCamus and Capi-
tal Punishment” appeared in the sum-
mer
1958
issue of
Modern Age.
Walter
Berns’s “For Capital Punishment” was
published in the April 1979
Harper’s,
at
that time predominantly neoconserv-
ative in its politics; the essay was repub-
lished the same year in Berns’s bookFor
Capital Punishment: Crime and the Mo
rality
of
the D eath P e n ~ l t y . ~
erns, a po-
litical scientist, was and still is a resident
scholar at t he American Enterprise Insti-
tute in Washington. In my view, Molnar’s
article, although appearing only a year
after Camus,’ presents a more informed
account than Berns’s later one of Camus’
philosophy and its basic points of opposi-
tion to conservative thought. Neverthe-
less,
will make the case tha t both
es-
says misrepresent Camus’ ideas to t he
point
of
attackinga straw man and evad-
ing the central issues Camus addresses.
Before summarizing Molnar’s and
Berns’s arguments, it
is
necessary to
note that neither critic addresses all of
Camus’s main lines of argument, includ-
ing the issues of judicial error and vari-
ability-an omission that presents prob-
lems for the moral position they defend,
3
72
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which assumes a high degree of recti-
tude in the judiciary system. Both do
raise the traditional conservative argu-
ment for deterrence , only t o acknowl-
edge its weakness as a defense
of
capital
punishment; they reject it not
so
much
because empirical evidence does not
support it (which neither denies), but
because any empirical argument, as
Molnar says, “enters into the game
of
pragmatism and statistic^, ^
as
opposed
to the moral dimensions they both em-
phasize.
Molnar begins his essay with the
case
of an elderly, white New Yorkshopkeeper
who, having been held up twice, finally
shot to death athird blackrobber,whose
gun, as it turned out, was a toy. Molnar
defends t h e shopkeeper’s action against
predictable liberal criticisms, moving
from this individual execution of justice
to the death penalty. In both cases,
Molnar asserts, man has a
“moral
duty
to
react with indignation when his com-
mon sense, uncorrupted by psychologi-
cal and sociological sophistication,
tells
him that evil
is
evil, hat every action is
projected against the walls
of
the social
order and of the divine order, and rever-
berates from there.”j
Molnar opposes this definition of jus-
tice to the alleged moral relativism of
modern liberals, including Camus. After
a fairminded summary of Camus’ vari-
ous
works expressing his social and
metaphysical skepticism, particularly
regarding the frailties of legal justice
and “the role of the judge who assumes
divine prerogatives in an agnostic soci-
ety,” Molnar charges that “Camus’ idea
of
justice
is
tinged with sentimentality,
and it fails to distinguish between a gen-
eralized and hazy
guilt-feeling
made fas h-
ionable by the novels of Dostoevsky and
Kafka) and the moral and legal concept
of individual responsibility.”6 Molnar
continues:
reply to Camus that responsibility ought
to be kept l imited if we want it to have a
meaning It is human nature to feel in-
terested in, concerned
with,
and, hence,
responsible for
a
relatively
small number
of people and issues. This is contrary to
the prevailing liberal, humanitarian phi-
losophy
which
wants to impress upon us
a universal concern for all mankind, and
responsibility for events distant from
US,
outside of our possible sphere
of
influ-
ence and effectiveness. The m a n w h o
would adopt this attitude [is] obliviousto
its abstract and artificial nature ...’
Molnar goes on to reply to Camus’
arguments about the impossibility of
definitively delineating between the
individual’s and society’s responsibility
for crime;equating Camus with the kind
of liberals who “say or imply tha t man is
good, but ‘society’ corrupts him .... We
know these Rousseauistic laments, but
we may be surprised t o find them under
Camus’ pen.”8
In spite of Molnar’s generally well-
informed view
of
modern moral philoso-
phy and Camus’ thought in general, he
misrepresents “Reflections on th e Guil-
lotine” on three major points: Camus’
alleged denial
of
the responsibility of
criminals and the legitimacy of punish-
ing them, his displacement
of
responsi-
bility for crime onto society, and the
abstrac t nature
of
his position. To begin
with Molnar’s charge tha t Camus has a
romantically sentimental attitude toward
criminals and exonerates them of all
responsibility, Camus could not be more
clear in his opposition to such attitudes:
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 grounds 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
Modern
ge
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pose as an absolute judge and pronounce
the definitive elimination of the worst
among the guilty, because no one
of u s
can
lay claim to absolute innocence.Capi-
tal judgment upsets the only indisput-
able human solidarity-our solidarity
against death-and it can be legitimized
only
by
a
truth or
a principle that is
superior to man?
The key word here
is
“absolute.” Like-
wise for Camus’ view of punishment:
“The instinct of preservation
of
societ-
ies, and hence of individuals, requires
hat individual responsibility be pos-
tulated and accepted without dreaming
of an absolute indulgence that would
amount t o the death of all society. But
the same reasoning must lead us to con-
clude that there never exists any total
responsibility or, consequently, any ab-
solute punishment or reward .... The
death penalty, which really neither pro-
vides an example nor assures distribu-
tive justice, simply usurps an exorbitant
privilege b y claiming to punish an al-
ways relative culpability by a definitive
and irreparable punishment.”I0 And,
“Compassion, of course, can in this in-
stance be but an awareness of a common
suffering and not a frivolous indulgence
paying
no
attention to the sufferings and
rights of the victim. Compassion does
not exclude punishment, but it suspends
the final condemnation.”” And finally,
“We should admit at one and th e same
time our hope and our ignorance, we
should refuse absolute law and the ir-
reparable judgment. We know enough to
say that this or that major criminal de-
serves hard labor for life. But we don’t
know enough t o decree that h e be shorn
of his future.”l2
In response to Camus’ citation of t he
high incidence of slum housing and alco-
holism in France as factors contributing
to crime, Molnar claims, “Now Camus
may be hoist by his own statistical pe-
tard,”I3 since France has a lower crime
rate than other countries with better
housing and
less alcoholism. Camus
never a ttempts, however, to make such
a reductive correlation between social
conditions and crime in one country or
another; his point
is
thatany society tha t
fosters, and allows profiteering from,
poverty and vice bears a minimal share
of
responsibility for the criminal conse-
quences.
So
Camus’ case rests not on a denial of
individual responsibility or punishment,
but only
o n
drawing the line at carrying
them to the point of death; in ignoring
this essential distinction, Molnar misses
Camus’ entire point. Ignoring the dis-
tinction likewise misleads Molnar into
an analogy between capital punishment
and a mother slapping her child for dis-
regarding her instructions:
Beyond the mother’s mmediateresponse,
avenging, in some way, the injury against
a visible (or invisible) order, there
is
of
course, the further and inseparable in-
tention of “teaching the child a lesson.”
But again,
this
does
not
amount exactly
to discouraging
him
from repeating the
same thing; it merely informs him that
each time
he
commits act A, he takes risk
R that punishment P
might
follow. The
legal systems of civilized nations express
the same idea.
Thus the law does not
punish
only
in
order to set an exampleand prevent other
misdeeds,
but
also because
our
innate
concept of justice, reinforced by tradi-
tion, demands an immediate reaction
against crime
and
apenalty possibly equal
to the amount of suffering
or
damage
caused.I4
Whether Molnar
is
arguing here for
deterrence or retaliation, the analogy
of
slapping the child, for whatever pur-
pose, is surely incommensurate with
teaching someone a lesson by killing
him. And the notion of “a penalty possi-
bly equal to the amount
of
suffering”
could b e said t o enter into the game of
pragmatism that Molnar eschews, since
it involves what Camus calls a casuistry
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of bloodshed attempting to measure
what degree of imposed suffering justi-
fies execution-murder in various de-
grees, kidnapping, rape, adultery,
etc
and possibly leading
to
justification for
crucifixion, drawing and quartering, or
keeping killers alive to torture them daily.
Molnar makes another dubious anal-
ogy in criticizing Camus’ “cheap rheto-
ric” in his gruesome descriptions
of
a
decapitation, intended to expose the
hypocritical euphemisms in which ex-
ecutions are shrouded. “After all,”
Molnar comments, “few people could
bear witnessing even a minor surgical
intervention, let alone a major
operation.’’’15t is generally agreed, how-
ever, that the gore of an operation
is
justified by its salutary effects, whereas
the salutary effects of executions, on
society
if
not on the patient, are exactly
what abolitionists dispute. Molnar fur-
ther ignores the point of Camus’ use of
emotional appeal-that many people
who approve of capital punishment in
the abstract would not do
so
if they
understood its flesh-and-blood reality.
Molnar’s penchant for analogies that
distract from the visceral specifics of an
individual’s death
is
only one sign of
precisely the abstract modes of thought
Camus’ essay and the rest of his works
are addressed against. When defenders
of
capital punishment dismiss cases
where innocent people may have been
executed, on the grounds that such cases
are “exceptional,” Camus remarks that
all of “our lives are exceptional, too.”16
Molnar, accusing Camus and other liber-
als of abstract moralizing is anomalous
in an essay filled with phrases l ike,
“[Camus]simply fails to see that it is not
the judge-in-person, but the representa-
tive
of
the law who sits in th e chair, and
that th e law-expression of the social
order-possesses certain definite, al-
though imperfectly mirrored, attributes
of the divine order.’’l7 Such phrases in-
evitably bring to mind one of Camus’ most
powerful criticisms of the abstractions
of
legal justice, the passage in The Stranger
where Meursault, having been condemned
to death for a murder committed in a
moment
of
sun-blindness, muses:
Try as
1
might, couldn’t stomach this
brutal certitude. For really,when onecame
to think about it, there was a dispropor-
tion between the judgment on which it
was based and the unalterable sequence
of events starting from the moment when
that judgment was delivered. The fact
that the verdict was read out at eight p.m.
rather than at five, the fact that it might
have been quitedifferent, that it was given
by men who change their underclothes,
and was credited to
so
vague an entity as
the “French people”-for that matter, why
not to the Chinese or the German
people?-all these facts seemed to de-
prive the court’s decision of much of its
gravity.’*
Criticizing Camus, along with other
existentialists
l ike
Sartre and Malraux
who assert the factitiousness of society’s
claim to power over individual lives and
deaths, Molnar says, “Never for a mo-
ment do they seriously consider theview
that the defects of institutions and of
society as a whole have their roots in
human nature, or as the Christian and
Jewish religions put it, in original sin;
that we are not justified to transfer man’s
own failings
to
the community and its
defective organi~ation.”’~amus does
indeed consider such views, for more
than a minute, and thoroughly refutes
them. H e argues that modern societies
are essentially secular or ecumenical,
and therefore have no right to legislate
on the basis
of
the
beliefs
of specific
religions. Particularly in legislating mat-
ters of life or death, they cannot legiti-
mately assume the existence of a God or
an afterlife in which the errors of human
justice might
be
redeemed. How can a
society
l ike
the United States, for ex-
ample, whose present gods are the pur-
suit of wealth and consumption of com-
Modem
ge
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modities, rock music stars and protes-
sional athletes, suddenly lay claim to
being the steward of divine order when
it comes to executions?
In Molnar’s statement about original
sin cited above, the phrase after the
semicolon seems
a
o sequitur Even
if
one accepts Molnar’s belief in original
sin (as Camus does not), the logical con-
sequence of that doctrine, as Camus
suggests, would seem to be that the
postlapsarian state
of
all societies as
well as individuals should be a warrant
against the assumption that any such
fallen society should have the godlike
power to judge who shall
live
and who
shall die. Thus Camus does not attempt,
as Molnar claims, to “transfer man’s own
failings to th e community,” but only to
assert (an assertion that would seem to
be equally valid for either believers or
agnostics), “There is a solidarity
of
all
men in error and aberration. Must that
solidarity operate for the tribunal and
ine Camus’bemused reaction to Molnar’s
reference to “imperfectly mirrored at-
tributes of the divine order.” Which soci-
ety is nearly enough perfect to mirror
divinity, and which isn’t? Nazi Germany?
Communist Russia? The United States?
One would think that Molnar, as an
Hungarian survivor of Nazism and Com-
munism, should be as skeptical
as
Camus
of the claims to omnipotence by modern
states, including Nazi Germany, which
claimed the religious mandate,
ott
mit
Uns specially in exterminating politi-
cal “criminals.” Molnar claims that
Camus’ arguments against capital pun-
ishment (which Molnar sees as a plea for
mercy toward victims
of
political perse-
cution during the Algerian War, at its
height in 1957 , “may serve, in the eyes
of a nondiscriminating public opinion,
the much more dubious cause of exoner-
ating common criminals, murderers, and
Gestapo-torturers.”2’This last claim ig-
nores Camus’ record as a leading
Resis-
be denied the accused?”20One can
imag-
tance journalist and his extensive post-
war deliberations on moral dilemmas
such as executing Nazi war criminals in
“Reflections on the Guillotine” and else-
where, including his account
of
his
change
of
att itude from favoring capital
punishment a s the result of a debate
with the Catholic author Franqois
Mauriac, who argued persuasively
against executing Nazi collaborators in
France following World War 11
Molnar glosses over Camus’ central
argument that fascist and communist
totalitarianism arose largely out of the
modern deification
of
state power and
ideological absolutism epitomized in the
death penalty:
Those who cause the most blood to flow
are the same ones who believe they have
right, logic, and history [and, he might
have added, God]
on
their side Blood-
thirsty laws, it has been said, make blood-
thirsty customs. But any society eventu-
ally reaches a stateof ignominy in which,
despite every disorder, the customs never
manage to beas bloodthirstyas thelaws....
How can European society of the mid-
century survive unless it decides to de-
fend individuals by every means against
the State’s oppression? Forbidding a
man’s execution would amount to pro
claiming publicly that society and the
State are not absolute values, that noth-
ing authorizes them to legislate defini-
tively
or
to bring about the irreparable.22
Molnar’s position against Camus de-
rives from
a
classic conservatism justi-
fying state power in the tradition of Euro-
pean church-states and the divine right
of kings. But such a position seems anach-
ronistic not only in light of twentieth-
century totalitarianism but also of the
degeneration of democratic sta tes into
corporate plutocracy, corrupt parties,
and bureaucratic ineptitude. The main-
stream
of
conservative ideology, at least
in the United States, has been libertarian
and othe r varieties of anti-statism. The
fact that Molnar himself cites Friedrich
37
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Hayek
as
an authority makes it all the
more puzzling that he fails to acknowl-
edge what would seem to be the strong
appeal in Camus’ arguments for anti-
statist conservatives. From my own
so
cialdemocrat ic viewpoint, this appears
to be one of countless contradictions
between absolutistic, judicial-moral stat-
ism and economic laissez-faire in con-
temporary conservatives (other than
lib-
ertarians), whether the intellectual
variety of Molnar and Modern
Age
or the
vulgar variety of Nixon-Reagan-Bush
Republicanism-though, to be sure, left-
ists
can be accused
of
the reverse
set
of
self-contradictions.
Walter Berns’s “For Capital Punishment”
follows many
of
the same lines of argu-
ment as Molnar; Berns falls into the same
misrepresentations or misunderstand-
ings
of
Camus’ “Reflections” and is even
more fallacious in his reasoning, adding
some flights of literary fancy to confuse
things. H e begins by explaining that he
has come around to rejecting the con-
ventional liberal wisdom that capital
punishment represents an unjustifiable
principle of revenge against criminals,
and now believes “we punish criminals
principally in order to pay them back,
and we execute the worst of them out of
mora l neces~ i ty .”~~
e
reiterates this
point several times over, and yet, like
Molnar, he never explains how accept-
ing the principle of punishment logically
dictates capitalpunishment, as opposed,
say,to life imprisonment without parole
as advocated by Camus.
Berns cites as authority for the prin-
ciple of retribution Simon Wiesenthal’s
writings about his motives for bringing
Nazi war criminals to justice, but he
presents no supporting quotations from
Wiesenthal. The fact is that in
Wiesenthal’s memoirs and interviews
with Joseph Wechsberg he advocates
neither retaliation nor execution:
“ am not motivated by a sense of re-
venge.’Iz4
[Wiesenthal] was approached by several
groups who wanted to create gangs that
would capture and kill their former tor-
mentors; he opposed this idea violently.
The Jews must not fight the Nazis with the
Nazis’ depraved methods, he said.25
Wiesenthal knew that the Nazi crimes
could never be ‘avenged.’ Obviously,
strict accountability for the crimes was
impossible The important thing was to
prevent the commission of mass murder
in the future.26
Wiesenthal explained that the Jews have
always had
a
high regard for the sanctity
of human life and didn’t think that murder
would expiate murder.27
About Camus, Berns claims, “The most
powerful attack on capital punishment
was written by a man, Albert Camus,
who denied the legitimacy
of
anger and
moral indignation by denying the very
possibility of
a
moral community in our
time. The anger expressed in our world,
he said, is nothing but hypocrisy.”28This
grotesque distortion of Camus’ ideas is
based, not on “Reflections” but on The
Stranger,
a
novel which Berns views as
expressing unequivocally thesame ideas
as Camus’ essay published fifteen years
later. To be sure, the novel and essay
express some
of
the same ideas, but
Berns either d oes not know or chooses
to ignore that Camus ViewedTheStranger
as a very limited and even anomalous
part
of
his total work-a study
of
one
distinctive character ,his distinctive sen-
sibility and reactions to an accidental
series
of
events pulling him into crime
and punishment. Others of Camus’s
works, including “Reflections,”explictly
or implicitly repudiated the nihilistic
implications of his early novel.
Berns
is
especially equivocal in using
TheStrangerto gloss th e following quotes
from “Reflections”:
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“Our civilization has lost the only values
that, in a certain way,
can
justify that
penalty
[
the existenceof] a truth or prin-
ciple that is superior to man.” [Berns’
ellipsis and brackets.] There is n o basis
for friendship and
no
moral law; there-
fore, n o one, not even a murderer, can
violate the terms of friendship or break
that law; a n d there is no basis for the
anger that we express when someone
breaks that law. The only thing we share
as men,
t h e
only thing that connects us
one to another, is a “solidarity against
death,”
and a
judgment of capital
punish-
ment “upsets” that solidarity. The pur-
pose
of
human life is to stay alive.29
The preceding words may
be
an accu-
rate enough account of The Stranger, but
surely not of “Reflections” or of Camus’
work as a whole. (Even The Stranger
does not imply that staying alive at an y
cost is all-important; Meursault could
avoid execution by lying about the cir-
cumstances of th e murder he commit-
ted, but he refuses to.) On the contrary,
friendship and fraternal solidarity are
among the most positivevalues through-
out Camus. He sees this precious soli-
darity constantly menaced both by th e
absurdity of life’s physical constraints
and t he absurdity of society’s arbitrary
conventions-preeminently the power
of the s ta te to suppress individual lives
through war and capital punishment. By
temperament a solitary individual and
political anarchist, Camus nevertheless
emphasized the paradox that t he meta-
physical and social isolation of each in-
dividual creates
a
bond between her or
him and everyother individual;as he put
it in Lyrical and Critical Essays, “Soli-
tudes unite those society
separate^. ^'
This bond in turn should lead individu-
als
to unite in struggling against social
forces encroaching on individual liberty,
and for the establishment
of
social con-
ditions and political policies maximizing
that liberty. Hence Camus’ own lifelong
political commitments, including risk-
ing his life in the Resistance, and his
writings (such as The Plague, The Rebel,
and The Just
Assassins)
delineating situ-
ations where sacrificing one’s life
takes
moral precedence over staying alive at
any cost-details that Berns inexcus-
ably ignores. Finally, in “Reflections”
Camus makes it clear that murderers
must be deplored and punished for u p
setting our “solidarity against death,”
but that by executing them societydrags
itself down to the same level a nd -e ve n
worse-institutionalizes their personal
failure t o sanctify life.
Berns’ literary penchant leads him
even farther astray when he compares
The Stranger unfavorably with Macbeth,
prefacing his praise of t he latter with an
endorsement by Abraham Lincoln,
“‘NothingequalsMac6efh I t is wonder-
ful.’
Macbeth is wonderful because, to
say nothing more here,
it
teaches us the
awesomeness
of
the commandment
‘Thou shalt not Berns, however,
does say more:
Canwe imagine aworld that does not take
its revenge
on
the man who kills Macduff’s
wife and children? (Can we imagine the
play in which Macbeth does not die?) Can
we imagine a people that does not
hate
murderers? (Can
w e
imagine a world
where Meursault is an outsider only be-
cause he does not
pretend
to be outraged
by murder?) Shakespeare’s
poetry
could
not have been written out of the moral
sense that the death penalty’s opponents
insist we ought
to
have. Indeed, the issue
of capital punishment can be said
to
turn
o n whether Shakespeare’s or Camus’ is
the more telling account of murder
In Macbefh he majesty of the moral law is
demonstrated to us... In a similar fash-
ion,
the punishments imposed
by
the 1e-
gal order remind us of the reign of
the
moral order;
not
only do they remind
u s
of it,
but by
enforcing its prescriptions,
they enhance the dignity
of
the legal or-
der in the eyes of moral men, in the eyes
of
those decent citizens who cry out for
”gods who will avenge in ju~t ice. ”~~
378
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Now, even if we grant it to Berns that
Macbeth
presents a more cathartic a p
peal to our sense of justice than The
Stranger,
we must also note the ways he
has stacked the deck in this comparison.
To begin with, Macbeth is a butcherous
political tyrant, whereas Meursault is an
ordinary man who stumbles inadvert-
ently into committing a single act of
manslaughter. (Granted, he fails to ex-
press remorse or compassion for his
victim, and in this respect, the book’s
morality is indeed open to being criti-
cized, as Camus himself later acknowl-
edged.)
A
much fairer and more obvious
point of comparison could have been
made with two of Camus’ plays, Caligula,
in which a Macbeth-like tyrant is like-
wise struck down by his oppressed sub-
jects, or The Jus t Assassins n which a
Russian revolutionary of 1905 voluntar-
ily gives up his
life
as compensation for
his assassination of the Grand Duke.
Berns’s comparison cavalierly disre-
gards several major differences in the
teleological and aesthet ic beliefs of
Shakespeare’s time versus Camus’. Mod-
ernliteraryrealism and naturalism, from
which The Stranger derives, were pre-
cisely reactions against earlier ages of
belief in “gods who will avenge injus-
tice.” We may still thrill today to the
poetic justice in Macbeth, but we know
that in real
life,
Macbeth would be just as
likely to kill Macduff as the reverse.
Berns’s appeal t o “the reign of the moral
order,” ike Molnar’s, seems quite plain-
tive in a wholly pragmatic, materialistic
modern moral order engineered largely
by and in the interests of the multina-
tional corporations, their governmental
agents, and assorted lobbyists, law firms,
and public relations agents who are cur-
rently defined as conservatives.
nd
that
“awesome” legal or de r invoked by
Berns-administered in America largely
through patronage and disabled ever
further through Reaganomic budget
cuts-is the same one denounced as
“big government” by Berns’s supply-side
economist colleagues at the American
Enterprise Institute.
On a more mundane level, in Macbeth
justiceis administeredneither bythegods
nor by the state,but by Macduff. Is Berns
advocating that we deal with criminals by
giving them over to hand-tehand com-
bat, perhaps with the survivors of their
victims? Vigilante justice may seem a p
pealingin oursafeaesthetic distance from
the Shakespearean stage (or from the
films of a Charles Bronson and a Clint
Eastwood), but is Berns, or Molnar, really
prepared to turn over today’s legal pro-
cess toanyonewho declares himself judge,
jury, and executioner? Berns’s and
Molnar’s unqualified appeals to anger and
moral indignation against criminals disre-
gard an elementary point agreed on by
most political philosophers in modern
constitutional democracies; as Camus
puts
it
in “Reflections,” f murder is in the
nature of man, the law is not intended to
imitate or reproduce that nature. It is
intended to correct it. Now, retaliation
does no more than ratify and confer the
status of alaw on apure impulse of nature.
We have all known that impulse, often to
our shame, and we know its power, for it
comes down to us from the primitive
Once again in this passage, as through-
out his essay, Camus
is
not categorically
opposing the impulse to retaliation, but
he is emphasizing the need for limiting
that principle at the point where it be-
comes morally and socially
d6rnesur6
or
counterproductive, as in the example he
gives of Arab countries cutting off the
hands of robbers. Neither Molnar nor
Berns really comes to terms with Camus,
because their absolutistic arguments
assume tha t his are equally absolutistic
(or absolutely relativistic), without ever
recognizing that t he core
of
his philoso-
phy in “Reflections”and elsewhere is its
classical opposition of measure and lim-
its to both absolutism and relativism.
Modem Age
3
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1. Resistance, Rebellion, and Death, translated by
Justin O’Brien New York, 1960).
2.
Ibid., 171.3. For
Capital Punishment: Crime and the Morality of the
Death Penalty New York, 1979). 4. “On Camus and
Capital Punishment,” 301.5.
Ibid.
99. 6. Ibid., 300.
7 . d em . 8 Ibid., 302. 9 “Reflections on th e Guillo-
tine,”
222 .
IO
Ib id ., 210.11. Ibid. , 217.12.Ibid., 230.13.
“CamusandCapitalPunishment ”302.14.Ibid. 01-
302.15.Ibid.,304-305.16. “Reflectionson the Guillo-
tine,” 212.17.“Camusandcapital Punishment,”301.
18. The Stranger, translated by Stuart Gilbert [New
York, 1946), 137-138.19.“Camus andcapi tal Punish-
ment,”305 .20 . “Reflections on the Guillotine,”217.
21 . “Camus and Capital Punishment,” 299 .22 .
“Re-
flections on the Guillotine,”227-228.23.“For Capital
Punishment,”15 .24 . The MurderersAm ong Us: The
Simon Wiesenthal Memoirs, ed. and with introduc-
toryprofile by Joseph Wechsberg NewYork, 1 9 6 9 ,
8.25.Ibid . .9.26.Idem. 27. Ibid.. 261 .28.“ForCapital
Punishment,”16.29. Ibid., 17.30. Lyrical an d Critical
Essays, trans. by Ellen Conroy Kennedy New York,
1968), 12.31.“For Capital Punishment,” 17.32. Idem .
33. “Reflections on the Guillotine.”198.
A
Reply
to
“Camus
and
His Critics on Capital Pun ishment”
IN THE INTERVENING
YEARS thirty-eight, to be
exact, an entire generation, the issue
discussed inModemAge Summer 1958)
has remained as valid and alive
as
it was
then-and so will it remain as long
as
there are communities with a sense of
identity, on the one hand, and breakers
of law, on the other. History s not an
evolutionary science; the problems tha t
the passage of time raises are, while
different in style and anecdotal illustra-
tion, identical across civilizational peri-
ods. Crime invites punishment, and irre-
versible crime invites what the French
call
le chBtiment supreme.
Albert Camus, and in his wake Profes-
sor Donald Lazere, discuss the issue
from the wrong angle. Although in Camus’
time Western opinion had not yet plunged
into the mire of a tear-jerking humani-
tarianism, his American commentator’s
thesis benefits by the currently raging
universal hypocrisy: capital punishment
s
declared an absolute evil. But the
butchering of innocents in abortion clin-
ics has become a woman’s right; Pol
Pot’s massacres ar e said t o be redeemed
by pure intentions; and for certain Meth-
odist churches every illegal immigrant
is
Jesus Christ in person. No wonder we
are confused. This confusion s also at
th e root of the Camus/Lazere thesis. The
matter in question is not whether, as
Camus claims, a human being can
be
an
“absolute judge” because he
s
“abso-
lutely innocent”; nor
is
it an issue of
“human solidarity against death” ill-fit-
ting Camusian phrases quoted by
Lazere).At issue isa society’s anation’s,
a
state’s, a tribe’s) duty to restore a
certain moral balance when it is su-
premely upset. It is necessary to restore
th is equilibrium against external aggres-
sion when the community
s
attacked in
its vital identity and interests-the case
of Bosnia serves as a classic example-
and to restore it internally when in the
protected domestic area a
life
is taken.
So far, then, the justification of just wars
and capital punishment.
The difficulty of arguing against
Camus/Lazere
s
that they absolutize
man, not to say divinize him, aided as
they are in this endeavor by the contem-
porary humanitarian verbiage. Thus they
come to decide the issue of capital pun-
ishment according to two opposing a p
plications of the same standard: the vic-
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tim of assassination no longer benefits
by his sacrednessas a person, yet Camus
insists on the continued sacredness
of
the assassin. Former ages knew nothing
of
this strange and obscene phenom-
enon; they sentenced a sacrilegious per-
son to death, whether he killed a person
or de-sacralized a holy object. The no-
tion still survives in the re-sacralization
of churches after the misuse of their
premises, for example, by communist
regimes which used churches for stables,
athletic clubs, or atheistic exhibits.
The transfer of th e victim’s sacred-
ness
as
a person to the murderer-the
Camusian logic-protects th e la tter
against the former’s fate. According to
this view, the judge
is
not permitted to
impose capital punishment to de-
sacralize the criminal); the judge, that is,
the society which he represents, and the
killer become equal parties. More: as a
spokesman for “institutionalized vio-
lence,” the judge
is
regarded
as a
greater
criminal than the taker
of
life. In this
perspective, the modern one, light sen-
tencing becomes a branch of socia l
therapy administered by the udge/thera-
pist to the assassin/patient.
Let us note, however, that society
is
neither achurch nor a hospital. The task
of these two institutions s to help save
souls and to help cure bodies. Society
s
a
network of reciprocal actions wherein
those who break the rules must pay the
penalty; but society also participates in
the moral order, and is ennobled in pro-
portion as it defends that order. Thus
capital punishment
is
not merely a de-
terrent against the highest law-break-
ing, it
is
more importantly a restorative
act of the moral order. It is a misplaced
argument to say that sentencing one to
life
imprisonment or hard labor would
be an adequate alternative. citizen not
only fears the killer, he
s
also aware that
society’s moral identity and integrity
suffer when the supreme crime is not
irrevocably compensated for.
What does it mean, then, that “com-
passion does not exclude punishment,
but it suspends the final condemnation”?
Either society punishes according to the
gravity and monstrosity of the crime, or
it hides behind judicial agnosticism,
claiming it does not know how to distin-
guish between one crime and another.
With this step, however, society muti-
lates itself, cutting off one of its func-
tions. Judicial agnosticism, by the way,
is
again manifest when the courts pre-
tend ignorance as to whether a foetus is
alive or not a t conception.
There
s
no question that Camus was
an eminently decent individual, “a good
man,” and that his plea against capital
punishment was motivated by a sense
of-here misplaced-charity.
I
still re-
tain a letter from him, dated October
1952
in which he severely criticizes Jean-
Pau Sa r t r
e’s
“merc 1es
s
rigor
s
m”
jans6nisrne impitoyable)
and asks for
th e recognition
of
“immediately obvious
values” in our life. Yet, as also seen in his
novel,
TheStranger,
Camus confuses pri-
vatevir tues and public imperatives; thus
he justified in advance the demagogues
who use the first when t he criminal
be-
longs to their own camp, and the second
when he
s
an adversary. This was illus-
trated by Simone de Beauvoir when she
not only wanted t o pardon the common-
law criminal his misdeeds are bour-
geois society’s responsibility), but also
called for the destruction of the political
opponent.
While in our time the concept
of
pun-
ishment yields to that of therapy, we
should not be surprised that criminol-
ogy and the practice of tribunals also
undergo vast changes. The foundation
of law used to be God and nature, both
demoted by modern philosophy. To
make a long legal story short, let us
observe that in the Kantian-Fichtean
universe, underlined both by the French
Revolution and, less blatantly, by the
American Revolution, the foundation of
Modern
ge
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law became man himself. Building on the
Kantian precedent, Hans Kelsen in this
century eliminated natural law, arguing
that it is based on fictional norms, and
that positive law alone
s
valid because
it is founded on ad-hocsociological cur-
rents and interests. In this view, Soviet
law was as valid because internally co-
herent) as any other legal system
founded on circumstances and prece-
dents.
In recent years, however, the concept
of man as the subject of law has been
changing. Human rights have become
exclusive
of all
others: family, nation,
God. But more was to come. The horizon
of human rights is no longer circum-
scribed bythe individual’s concretesitu-
ation-his membership in a nation, a
religion, a class, a profession-since the
human person himself is held to
be
inde-
terminate and tending to transcend all
limits. In present legal thinking, man’s
humanity consists in his capacity to tear
himself out
of
any definition. Denying
him his right to turn into anything to
choose his lifestyle or his sexual orienta-
tion) s condemning him to remain what
he is and forbidding him to become what
his potentialityand choices suggest. The
unjust law is the one which confines the
individual within a nation, a race, a sex,
or a social function. In contrast , just law
assigns no limits to free growth.
We find in this recent evolution the
influence of philosophy from Kant to
Nietzsche to Sartre: the human being
builds himself independently of other
factors tradition, law, moral norms) and
chooses an existence which should by
no means rigidify as a destiny. There
s
no human nature, no divine guidance, no
social limitation. Man
s
free, and as
noted earlier, auto-divinized. Obviously
the law is subordinate to him, and he
owes it nothing. It is not murder but
capital punishment that has become the
absolute criminal act.
Thomas Molnar