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The Dramaturgy of Death


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 away contamination by ritual curses (arai), joining the punitive cry of the Furies, who are also called Arai (Aeschylus, Eumenides 417). When Prometheus is punished by exposure as the penalty of theft, Brute Force (Bia) tells the technician clamping him to the rock (Hephaistos) that he should curse as well as immobilize him (Aeschylus, Prometheus 38, 67–68). Southern lynch mobs stayed to curse with fury their hanged victim from a similar impulse.

Killing to maintain social order. Superiors dramatize their dominance by showing that it is easy for those higher in the social scale to kill those lower, but harder for the lower to kill the higher. Plato’s legal code devised a penalty for a slave who kills a free man—public scourging to death before the free man’s tomb and family—that had no symmetrical penalty for a free man who kills a slave (Laws 872b–c). In Jefferson’s legal code, slaves could not testify against whites, but whites could testify against slaves.4 In parts of this country still, a black killing a white is far more likely to receive a death sentence than a white killing a black. Nietzsche calls this “Punishment as a means of inspiring fear of those who determine and execute the punishment.”

Killing to delegitimize a former social order. Revolutionary tribunals execute officials of an overthrown regime. Even without a coup, critics of Athenian democracy claimed that mass juries were too ready to condemn their leaders. When the Turkish general Lala Mustafa Pasha captured Cyprus from the Venetians in 1570, the podestà who had held out against him, Marcantonio Bragadin, was mutilated (nose and ears cut off), dragged around the city walls, dangled from a ship’s mast, tied naked to a post, skinned alive, beheaded, and “quartered” (his four limbs cut off). Then his skin, stuffed with straw, was tied to a cow and led through the streets of the Famagusta, before being returned as a victory prize to Constantinople. Venetian rule was pulverized in its representative. Nietzsche calls this “Punishment as a festival, namely as the rape and mockery of a finally defeated enemy.”

Killing as posthumous delegitimation. Some inquisitors tried dead men and symbolically executed them.5 The leaders of the Gowrie Plot that tried to supplant King James VI of Scotland in 1600 were tried posthumously and their corpses were hanged, drawn (eviscerated), and quartered. In 897, Stephen VI had the corpse of his predecessor, Pope Formosus, exhumed, propped up in his papal garb, tried and condemned for usurpation, stripped of his vestments, his head (that had borne the tiara) cut off, along with the three fingers of his right hand used in benediction, and head, fingers, and body then thrown in the Tiber—all to declare Stephen’s consecration of bishops and ordination of priests invalid.

Killing as total degradation. The previous three forms of execution punished an offender as a member of a class (lower or higher); but other humiliating deaths are contrived to deprive a person of humanity as such. Public torture before death was one means for this—scourging that makes the offender scream and writhe, losing dignity along with his composure. The Greek punishment for theft was apotympanismos, the beating of a naked man clamped down in a crouched position before he was left to die of exposure (it is the punishment given to Prometheus in his play, though he cannot die).6 The death for traitors in Elizabethan England was an elaborate piece of theater. First the offender was dragged backward on a hurdle to the place of execution—signifying, said the Attorney General Sir Edward Coke, that the man was “not worthy any more to tread upon the face of the earth whereof he was made; also for that he hath been retrograde to nature, therefore is he drawn backward at a horse-tail.”7 Then the man (it was a male punishment) was stripped, hanged, cut down living, castrated, disemboweled, his heart and viscera thrown in boiling water, decapitated, quartered, and his head exposed on Tower Bridge. When Jesuit priests were hanged, drawn, and quartered, their head, members, torso, and clothes were hidden away to prevent the taking of relics.

Killing and posthumous degradation. Refusal of burial led the ancient Greeks to let bodies be exposed for ravaging by dogs and kites (Creon’s treatment of Polyneices in Sophocles’ Antigone). Romans let crucified bodies hang to be pecked at and decompose. Florentines in the Renaissance dangled the corpses of criminals from the high windows of the Bargello till they rotted, and commissioned artists like Andrea del Sarto to depict them there, prolonging the shame after they were gone.8 Joan of Arc was killed by a slow fire that consumed her clothes and skin, then the flames were raked away, to expose her body as a woman’s and to show that no demon had spirited her away. Then intense fire was mounted to burn her down to ashes for scattering in the Seine, to prevent any collection of relics.9

Killing by ordeal. In this punish-ment, the innocent were supposed to be protected if subjected to ordeal by combat, ordeal by fire (walking through it, as Saint Francis is supposed to have done in Egypt), or ordeal by water. The latter was especially reserved for suspected witches, who would sink only if innocent. A less lethal form of this punishment survived in the “ducking stool” for immersing witches. Jefferson’s revised code says this: “All attempts to delude the people, or to abuse their understanding by exercise of the pretended [claimed] arts of witchcraft, conjuration, enchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15 stripes.”10

Threatened killing as inducement to remorse. Refusal to undergo trial by ordeal could be taken as a confession, leading to a lesser penalty than death. Recanting could have the same effect. Joan of Arc, when first brought out to the stake with its kindling, renounced her voices as “idolatry” (devil worship), and was given life imprisonment. Only when she abjured her recantation was she actually put to the stake. Scaffold repentance could reduce the sentence to less than death—or, at the least, make officials perform a “merciful” (a swifter, not a lingering) execution—e.g., letting a man die in the noose before being cut down for disemboweling. Nietzsche calls this punishment for the “improvement” of the criminal.

Killing as repayment. The lex talionis, as it exacts “an eye for an eye,” must exact a life for a life. We say, “You’re going to pay for this.” Jefferson followed the logic of his state’s lex talionis:

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least…. Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury, and moreover shall forfeit one half of his lands and goods to the sufferer.11

Taking a life for a life on this principle is called by Nietzsche “Punishment as recompense to the injured party for the harm done.”

Killing as repayment-plus. In Athenian law, repayment was of equal value if the crime was unintentional, but of double if it was intentional.12 On that principle, death has not been reserved only for taking a life, but can be considered an added penalty for crimes like major theft, rape, treasonous speech, and the like.

Killing as victim therapy. The Attic orator Antiphon has the father of a son killed by accident plead that the unintentional killer must be punished; the death leaves the father aggrieved (epithymion—much like Nietzsche’s ressentiment).13 The grievance, of course, would be even greater if the killing were intentional. Soothing this sense of grievance is now called “giving closure” to the ordeal of victims.

  1. 1

    Friedrich Nietzsche, On the Genealogy of Morals 2.11–14, translated by Walter Kaufmann, in Basic Writings of Nietzsche (Modern Library, 1992), pp. 509–518.

  2. 2

    The Papers of Thomas Jefferson, Vol. 2, edited by Julian P. Boyd (Princeton University Press, 1950), p. 471.

  3. 3

    A.R.W. Harrison, The Law of Athens, Vol. 2: Procedure (Oxford University Press, 1971), p. 170.

  4. 4

    The Papers of Thomas Jefferson, Vol. 2, p. 471.

  5. 5

    Robert Adams, The Abuses of Punishment (St. Martin’s, 1998), p. 156.

  6. 6

    For the apotympanismos of Prometheus, see Louis Gernet, The Anthropology of Ancient Greece, translated by John Hamilton, S.J., and Blaise Nagy (Johns Hopkins University Press, 1968), pp. 242–244. Plato has Protagoras identify Prometheus’ crime as, precisely, theft (of fire) at Protagoras 322e.

  7. 7

    Coke quoted in Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, Vol. 1 (Macmillan, 1899), pp. 221–222.

  8. 8

    Samuel Y. Edgerton Jr., Pictures and Punishment: Art and Criminal Prosecution During the Florentine Renaissance (Cornell University Press, 1985), pp. 112–123.

  9. 9

    A Parisian Journal, 1405–1449, translated by Janet Shirley (Clarendon Press/ Oxford University Press, 1968).

  10. 10

    The Papers of Thomas Jefferson, Vol. 2, p. 502.

  11. 11

    The Papers of Thomas Jefferson, Vol. 2, pp. 497–498.

  12. 12

    Demosthenes, Against Meidias 43.

  13. 13

    Antiphon, Tetralogy 2.1.2.

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