Elements of Morals. Paul Janet
one’s character of a moral person; it is also a duty towards humanity in general, which is represented by every man, even the most violent and the most uncultivated.
26. Problems.—The right of legitimate self-defense gives rise to a certain number of problems relative to the law of homicide. M. Jules Simon[17] reduces them to five: homicide in case of self-defense, penalty of death, political assassination, duel, and war. In the first case it is implied in what precedes, that legitimate self-defense may go so far as to deprive another man of life; but only in case of absolute necessity.
There remain the four other cases, which are not all of the same order.
27. The penalty of death.—The penalty of death in these days has been very much contested, and several States have tried to abolish it.[18]
The following arguments are brought to bear against it:
1. The inviolability of human life.—The State, it is said, should not give the example of what it proscribes and punishes. Now, it punishes homicide; then it should not itself commit homicide.
2. The possible mistakes, which in all other cases can be corrected, but which in this case alone are irreparable.
3. Experience, which, it is said, tells against it in certain countries by proving that the number of crimes has not been increased by the suppression of the penalty of death.
4. Finally, the refinement of manners, which can no longer bear the idea of capital punishment.
No one of these arguments is wholly decisive.
1. The inviolability of human life is not an absolute thing, at least not for those who admit the right of legitimate self-defense. We shall examine this presently.
2. Judiciary mistakes are very rare, and will become more and more so, as justice becomes more respectful towards the rights of the accused, and through greater publicity, by the intervention of a jury, etc.
3. Experience is not so much of a test as it is said to be, and is often made on too small a scale. The attempts at abolition have not been very numerous. In Tuscany murders have always been very rare on account of the gentleness of manners. In Switzerland, on the contrary, crime is on the increase, and certain cantons have asked for a return to the death penalty. Besides, it is a very difficult experiment to make. How could a society as complicated as ours dare to trust its security to so hazardous an experiment?
4. The refinement of manners may gradually bring about, thanks to the institution of the jury, the diminution, perhaps some day the suppression, of the penalty of death, without its being necessary for the State to lay aside this powerful means of defense and intimidation.
The penalty of death, in fact, can be considered legitimate only in the light of the right of self-defense. If society needs this penalty to protect the life of its members, it may be said that it is authorized to use it, on the same ground as each individual to whom we have conceded the right to repel force by force, and to deprive of his own life one who should threaten to take his life.
But, it will be objected, the right of self-defense, when ending in homicide, is justifiable only at the moment of the attack, and to ward off a sudden aggression itself threatening murder; but the deed once committed and the criminal in the hands of the law, there is no reason to fear a new aggression from him, and his chances of escape from justice through evasion are too few to justify the violation of a duty so absolute as the respect for human life.
It may be answered that society, by the death penalty, not only defends itself against the criminal himself, but against all those who might be inclined to imitate him. The penalty of death is above all a precautionary means of defense, that is to say, a means of intimidation. The future criminal is warned beforehand of the risks he runs; he accepts voluntarily the punishment he will incur. If society should catch him in the act—flagrante delicto—it would certainly, in order to prevent the crime, since it is the representative of all individuals, have the same rights as the individual of defending himself. But the difficulty of seizing upon the criminal at the moment of commission, can it be considered a circumstance in favor of the criminal, and does society lose its right, because, through the skill and precautions of assassins, it can but very rarely, and scarcely ever, catch them in the act?
The right of society to defend itself by the death penalty does not seem to us, then, to admit any doubt. The whole question is to know whether such a means of defense is really necessary and efficacious. It is, as we have said, a question of experience which it is very difficult to settle, for the reason that we dare not make the experiment. All that can be said is that, as a principle, every man fears death; it is the greatest of fears. There is, therefore, reason to believe that it is the most powerful of the means of intimidation. Besides, it is known that professional criminals estimate with great accuracy offenses and crimes proportionably to their penalties. Thus, those who steal know that they expose themselves to such or such punishment, but they go no farther in order not to incur a more severe punishment; for these the penalty of death is certainly a great item in their plans, and it would be dangerous to relieve them of this menace.
We do not mean to say that in future society may not reach a state of organization strong and enlightened enough to be able to do without such means; but in the present state of things we should consider the attempt to abolish them dangerous for society.
28. Of political assassination.—Concerning this pretended right, so shockingly promulgated in these days by savage factions, we cannot do better than quote the words of M. Jules Simon in his book on Duty:
“Political assassination,” he says, “is essentially worthy of condemnation from whichever side one looks at it. It has the same origin as the penalty of death, with this double difference that, in the application of the penalty of death, it is the State that pronounces the sentence conformably to the law, whilst in political assassination it is the same man who makes the law, pronounces the sentence, and executes it. Now, society, though badly constituted, and the law, though bad, are nevertheless a guaranty, whilst there is none at all against the caprice, passion or false judgment of a single individual. Besides, the legitimacy of the penalty of death is connected with the legitimacy of the power that pronounces it, and the uniformity of the law. Let some tyrannical authority cause a man to be shot at the corner of a street, without form of legal process, that cannot be called penalty of death; it is called murder; and even when the victim should have deserved his death, the government would not be the less criminal for having executed him without trial. If these principles are just, how can we admit the theory of political assassination, which allows the destiny of all to depend upon the conscience of a single individual. We reflect so little upon the rights of men that there are those who will condemn the death penalty and yet approve of political assassination. We judge so badly, that under the Restoration a monument was erected to Georges Cadoudal, and we hear every day the eulogy of Charlotte Corday. The guiltiness of the victim does not legitimate the act of the murderer. It is both unwise and criminal to furnish hatred with such excuses.”
29. The duel.—Does the duel come under the head of legitimate self-defense? No; whatever custom and prejudice may say in its favor.
1. We must first lay aside without discussion all duels bearing on frivolous causes, and they are the largest in number.
2. In many other cases reparation may be obtained through the law, and prejudice alone can prevent having recourse to it. If I am willing to have recourse to law in a case of robbery, why should I not appeal to this same law when my honor is attacked?
3. The duel is an absurd form of justice, because it puts the offender and the one offended on the same level. It is not the guilty one that is punished; it is the awkward one.
4. Social justice has degrees of penalty in proportion to the gravity of the offense, and is applied only after a very severe examination. The aim of the duel is to apply to very unequal offenses one and the same penalty, death (Jules Simon, Le Devoir, IV.), or if there are any degrees, since it does not always result in death, these degrees are the effect of chance. Finally, if in a duel the parties