Capital Punishment:The Rationales
A slight perusal of the laws by which the measures of vindictive and coercive justice are established will discover so many disproportions between crimes and punishments, such capricious distinctions of guilt, and such confusion of remissness and severity as can scarcely be believed to have been produced by public wisdom, sincerely and calmly studious of public happiness.
—Samuel Johnson, Rambler 114
Nietzsche denied that capital punishment ever arose from a single or consistent theory of its intent or effect. It erupted from a tangle of overlapping yet conflicting urges, which would be fitted out with later rationalizations. The only common denominator he found in the original urges was some form of grievance (he used the French term ressentiment).1 One can expand his own list of such urges:
Killing as exclusion. This occurs when society does not want to admit any responsibility for persons considered outsiders. Abandonment of wounded or captured people one does not want to feed or support is an example, or exposure of unwanted children, or exiling the defenseless (as the blind and old Oedipus was extruded from Thebes), or “outlawing”—leaving people without protection to any predators on them. Outlawing was an English practice continued in our colonies. In fact, Thomas Jefferson, when he revised the laws of Virginia for the new republic, left certain categories of offenders “out of the protection of the laws”—freed slaves who either enter the state or refuse to leave it, a white woman bearing a black child who does not leave the state within a year.2 These could be killed or mistreated in any way without remedy at law. The ancient Greeks denied offenders recourse to law by the penalty of atimia (loss of rights). There were lesser degrees of this, but the full degree of “atimia…and condemnation to death are interchangeable.”3 Nietzsche calls this “Punishment as the expulsion of a degenerate element…as a means of preserving the purity of a race or maintaining a social type.”
Killing as cleansing. Outlawing abandons people to possible or probable death but does not directly bring it about. Other forms of extrusion require society’s purification by destruction of a polluted person. Unless society or its agents effect this purification, the pollution continues to taint them. Lesser pollutions can be robbed of their effect by simply driving away the affected person. But deeper taints are removed only by accompanying the expulsion with something like stoning the polluter to death or throwing him off a cliff. Plato said that the murderer of anyone in his own immediate family was to be killed by judicial officers and magistrate, then “thrown down naked on a designated crossroads outside the city; whereupon every official present must throw his own stone at the head of the corpse, to cleanse the whole city, and finally must take him beyond the land’s outer boundaries and cast him out, all rites of burial denied” (Laws 873b–c).
Killing as execration. Sometimes the community must thrust…
This article is available to online subscribers only.
Please choose from one of the options below to access this article:
Purchase a print premium subscription (20 issues per year) and also receive online access to all all content on nybooks.com.
Purchase an Online Edition subscription and receive full access to all articles published by the Review since 1963.
Purchase a trial Online Edition subscription and receive unlimited access for one week to all the content on nybooks.com.