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I shall argue:

  1. Against the death penalty for civilian crimes
  2. In favour of the death penalty for certain military crimes, and for High Treason
  3. In favour of certain cases of summary execution, without trial
  4. That the use of the death penalty is not by any means "uncivilised", even in most of those cases with which I disagree with it.


I oppose the death penalty for civilian crimes such as murder and child rape.  I offer three main reasons:

a) The death penalty is unnecessary for these crimes, in our society.  Later in the discussion I shall come to cases in which I consider the death of the guilty accused a necessity, to maintain order and discipline.  There may be societies in which the death penalty is a practical necessity – one could imagine a post-apocalyptic society in which resources were so scarce that one could not afford to support an unproductive and uncooperative prisoner, or times and places in the past where without the death penalty people would have abandoned state justice and instead resorted to private vendetta and blood feud.  Such considerations do not apply to us.  We have the resources to support prisoners.  We can maintain public order with police and military forces and social pressure.  If a flesh price were indeed required, we could use corporal punishments – I support these for some crimes.  But a death is not necessary.

b) Mistakes will inevitably be made, and I do not wish to be responsible (as death penalty supporters would, morally, be) for the inevitable death of innocent men and women in such cases.

c) As a Whig, I am, by definition, at least sympathetic to a Lockean account of the social contract.  I do not regard it as part of the social contract that, as long as I remain a member of society (contrast with the case of High Treason below), I entitle the State to take my life.  Society is intrinsically a cooperative project – we are not the chattels of the King, to be disposed of according to his pleasure, in the manner of some Persian overlord.

In my view these considerations are much stronger than points such as deterrence or retribution.  I am sceptical that many murders would actually be deterred by the death penalty (murder is not that sort of crime).  And worldy retribution does not require life for life – we are answerable to God for our sins; wordly retribution does not need to be complete to be just.  Indeed, as we shall explore below, traditional English punishments accepted money compensations for murders.

So I am against the death penalty for these crimes.  But I support the death penalty for certain cases.  Specially, I believe there are circumstances in war where the death penalty will be necessary and appropriate, and I believe that the death penalty should be applied to High Treason.  (Indeed, it is worth observing that even the European Convention on Human Rights does not forbid all applications of the death penalty – it is permitted in times of war or imminent threat of war.  Thus, my position can be seen as broadly supportive of that adopted in the ECHR.)

If we are lined up in a trench, and we need to go over the top to charge a machine gun, and you don't go but instead run away, you will and should and must be shot for cowardice.  Otherwise, who will obey the order to charge?  In a war, the punishments for desertion and self-maiming must be at least as severe as what might happen to you if you do not desert or self-maim.  Indeed, in such cases the standard of proof must be lower than the usual "beyond reasonable doubt" test, also – we may well not have time to subject you to all relevant psychological tests; it's a war.  That is one of the many reasons John Major was right not to pardon those executed for cowardice during the First World War, and others were wrong to do so.

An act of High Treason – such as spying or the assassination of the Monarch or heir or a High Court judge in the pursuit of his duty – is an attack on one's own society.  It is an abandonment of the social contract – annulling one's protection under the social contract (as per my third argument) and making one akin to a foreign enemy, to be killed as one might kill a foreign soldier.  Execution for High Treason might well prove a necessity under certain circumstances – especially if, for example, the accused had been guilty of insurrection.  I suggest that a very high proof standard should be required to actually carry out an execution – as opposed to leaving someone on Death Row.  But I accept the principle.

The above were cases of judicial punishments.  I also support certain summary executions without trial (much better without trial, in these cases).  Specifically, if we invade a foreign country and capture the head – Saddam, Osama, Adolf – very often (probably typically) it will be appropriate to execute that person, otherwise order could not be restored, since the old leader would form a rallying point for guerilla action and other resistance.  We should avoid trials in such cases, because the use of a trial involves the arrogant presumption that the accused has committed some "crime" – that there is some human "law" that he or she has broken that carries the death penalty.  There is not.  We execute not because any law has been broken, but because we must.  We should do so openly and without shame or pretence.

My final point is to dispute the claim of those that would label countries that use the death penalty as "uncivilised".  Quite the reverse is true.  The use of death penalties has tended to arise, historically, as state became more civilised and centralised.  For example, Anglo-Saxon justice often accepted monetary payments in compensation for murders.  The Normans, with their more centralised justice, required death – partly because a murder was an assault upon the King's Peace.  Was Britain really not "civilised" before the 1960s?  Was France not civilised before 1977 (until when it continued to use the Guillotine!)?  Is the US not "civilised" today?  The use of the death penalty is not "uncivilised" (any more than is the use of corporal punishments).  The key objections to it are contingent – we do not need it, and not needing it means that the inevitability of innocents being executed is not a price worth paying – not objections of principle.

So, to summarise, I do not support the current petition.  I do not believe that murderers should be executed.  Civilian execution is not typically necessary in our society, and the costs – in terms of innocent blood and the claim of the State over my life – are thus not worth the very limited gains (contained to retribution and perhaps some order).  But some non-civilian forms of execution are appropriate, and we should not pretend that those that do use capital punishment – as we ourselves did until very recently – are in some way uncivilised.

51 comments for: Andrew Lilico: My view of the death penalty

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