Immanuel Kant:

In this way: that whoever steals anything makes everyone’s property insecure; he therefore robs himself of all security in property, according to the right of retaliation. Such a one has nothing, and can acquire nothing, but he has the will to live; and this is only possible by others supporting him. But as the state should not support the thief for free, he must yield his powers to the state to be used in penal labour; and thus he falls for a time, or it may be for life, into a condition of slavery.

But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice.

Imanuel Kant, On Criminal and Pardon Law / Metaphysics of Morals

 

 

Martin Buber:

Answer to a questionnaire in 1928

- My answer to the questions submitted to me can be summarized in the following sentences:

1. The death penalty is partial suicide without legitimate subject.

2. It acts not as a deterrent, only by its terror it will disturb people even deeper into confusion.

3. The self-protection of society must be limited by its purpose, and it must always be reconsidered.

Martin Buber, from:  Nachlese, 1965

 

 

 

Categorical imperative

and the approval of the death penalty

 

A dialogue

 

 

 

 

 

 

 

 

- How does Martin Buber come to the conclusion that the death penalty means partial suicide?

 

- The one who kills another or causes his death, kills his counterpart. With this he also cancels himself as a subject. He kills something in himself. This is a primal sensation. It results from Buber's thoughts about I and Thou. 

Here, he articulates how the person-being of man, his I, grows out of being aware of and allowing the other person, the Thou. Who eliminates his Thou also cancels his I.

Buber transfers this to the community, which emerges from the I-Thou relationship in the first place. Here the individual and the community as such are affected: The community kills itself by killing the individual under the pretense of securing the community. It negate itself in its foundation.

 

- Kant emphasizes that his maxim of the categorical imperative, act as if the standard of your actions can become the principle of the action of all, is not debatable. Under all circumstances, even towards a murderer, you have to be truthful, otherwise you commit a breach of the law. Anyone who deliberately breaks the law, questions its general validity and thus makes social life impossible.

Moreover, no one can be misused for a purpose or reduced to a purpose.

 

- But precisely this maxim turns any life impulse and any living together into a purpose. More than before because the individual is understood as a function of the community. Here, the road to collective coercion, from that of the Prussian military state to that of German National Socialism, is laid down.

 

- Kant, however, contradicts even the ethical claim of his imperative with his reasons for the death penalty. A murderer must die, he says, because there is no other satisfaction of justice in this case. This is a contradiction to his deduction of the Categorical Imperative, according to which no person must be misused for a purpose or made a purpose.

Here, he refers to the execution as the only adequate punishment for those who have murdered.

 

- This is indeed a contradiction, since justice is granted an absoluteness here, it is even personified, because it can be satisfied.

However, in Kant's philosophy, justice can only be an intersubjective consensus which aims to create social conditions for the benefit of all. Kant formulated it like this:

An amount of rational beings who demand general laws for their preservation, but from which each of them is inclined in secret to exclude themselves from it, to order and establish in their constitution in such a way that, even though they are against each other in their private attitudes, they nevertheless hold each other back in such a way that in their public conduct the success is the same as if they had no such evil attitudes.  Perpetual Peace: A Philosophical Sketch

 

- From this, one cannot deduce a right of retribution. It is set arbitrarily. The satisfaction of justice by the death of the delinquent represents a reduction to a purpose which stands in contradiction to the alleged ethics of the categorical imperative.

 

- The contradiction reveals the basic idea of Kant's imperative. It lies in the matter and becomes obvious with Kant's advocacy of the death penalty: The very maxim of always acting in such a way that one's own actions can apply as the yardstick of the community turns the community into a functional end in itself which reduces the individual to the purpose of maintaining the community. This is the essence of Kant's teaching.

The appreciation of Kantian philosophy in Prussian-dominated Germany and the emerging industrial society may find an explanation here.

 

- The proposition represents the concepmechanism of the market. t of modern democracy i.e. to organize selfish claims to power in such a way that they keep each other in check.

 

- A political mechanics with reference to Adam Smith and what he calls the mechanism of the market. 

 

- That would mean that those prevail, who best understand how to disguise their striving for power as a mechanism.

 

- As long as a society actually relies on this rule and not additionally on something else, it leads to the dictatorship of practical constraint.

 

- To the dictatorship of those who understand how to present their interests as practical constraint.

 

- Reinhard Gehlen, chief of the Foreign Armies East intelligence service during the Nazi regime, who after the war founded the West German Federal Intelligence Service with support of the USA, once formulated this coherently.

A few years after the collapse of the Nazi regime, when the future German federal government was still in the process of being built, he speculated in a letter to the authorities that after Hitler, the Berlin Kaiserreich and the associated catastrophes, political decisions could no longer be communicated to the people via the authority of persons, since their trust in any form of personal authority was irrevocably lost. He wrote that government measures could no longer be justified in this way. Therefore, it would be advisable to present them as practical constraint.

 

- Gehlen apparently uses Hegel's definition according to which Freedom is the insight into necessity. Despite the differences quite in the sense of Kant. Both of them provided the theoretical equipment of the Prussian state and its guiding principle of state duty as the highest virtue.

 

- Kant's fallacy has systemic reasons: Proponents of community coercion are usually also supporters of the death penalty. It is the repression by the collectivistic compulsion What demands sacrifice is that what is repressed by communal compulsion. This is the essence of the matter.

At any rate, death penalty is contradictory to the idea of democracy. In its proper sense, democracy rules out the imposition of the death penalty.

 

- Why should the imposition of the death penalty be undemocratic? The USA is a democracy, actually the first modern democracy, and they have the death penalty in some states.

 

- The US democracy is not so old yet.

 

 - Is not the foundation of the United States of America in 1789 said to be the model for the modern democratic state?

 

- Is it not part of a democracy that the population chooses the government, that everyone is equally entitled to vote?

 

- Yes, that's exactly what was stated in the US Constitution.

 

- But it did not apply for the Native Americans and the slaves. They were not entitled to vote. If only certain sections of the population are allowed to vote, one cannot speak of democracy.

 

- Teething problems. That was overcome. Today, all citizens in the US are entitled to vote.

 

- Not very long. To be precise, the US can only be called a democracy since 1965, because only then did the so-called Voting Rights Act put an end to the suffrage restrictions and allowed all sections of the population to vote. Previously, in many states colored people had to pass an illiteracy test in order to be able to vote. So it came to pass that the majority of the population of entire neighborhoods or regions did not have the right to vote. 

As long as a state excludes a part of its population from elections, it cannot be called democratic, but at best be described as a modern Ständestaat - an authoritarian corporative state or oligarchy.

 

- All in all, the US is and will remain in its basic orientation a modern constitutional state.

 

- Are you sure? During the Bush administration, top government officials allowed torture by waterboarding, simply by calling it extended interrogation instead of torture. The delinquent is held horizontally with his head drawn backwards. Water is constantly poured over his face so that he cannot breathe and has the feeling of drowning. Isn't that disturbing or questionable?

 

- It is. But why should someone who holds the lives of others in their hands by holding back life-saving information, not be forced to divulge this information by some inconvenience or pain? In principle, that would be comparable to self-defense or emergency relief.

 

- No, it wouldn't. The immediacy is not given.

 

- But in the case of the bomber who does not reveal the deactivation code, there would be no other way to save lives. 

 

- This case is constructed and actually never occurred in practice. It is an example that is cited by torture advocates only. Reality is different. 

Where torture is used, it is used for investigation. 

But mainly to exert terror in order to create fear. As a means of investigation, torture is known to be less effective. For understandable reasons, the results are not reliable.

 

- However, since we can imagine such a case, it is at least possible and perhaps increasingly likely given international terrorism. 

If it is already debated whether the investigation results of foreign intelligence services should be used even if they are extorted by torture, we can assume a corresponding acute situation.

 

- You say it yourself: It's about investigation results. The case of averting danger by forcing the disclosure of a deactivation code is therefore not given here. So, this is about a very lapidary practice of torture interrogation.

 

- Indirectly, the averting of danger is given. These interrogations lead to insights that prevent terrorist attacks.

 

- As you can see, it gets more and more indirect, once you begin to posit a legitimate reason for torture. Where should the line be drawn? Who is to draw it and who will observe it?

The mere fact that the question arises, where to draw the line, clearly shows that in principle something is wrong.

 

- Think of the murderer, who does not respect human dignity. This cannot be a reason for a superordinate jurisdiction which is obligated to human dignity, to disrespect human dignity as well.

Accordingly, the fact that someone does not reveal life-saving information in contempt of humanity values, cannot be a a justification for disregarding human dignity. 

This person has made him- or herself a purpose. If the guardians of the law, tortured, they would do the same by making this person a purpose of information procurement.

 

- But by disregarding the human dignity of an individual one would save the lives of thousands of others. One has to weigh up all options.

 

- Hierarchies can be weighed up, but not the dignity of man.

In this respect, it seems logical that in the US, a society that calls itself democratic but prides itself on pragmatism, torture was legitimized under the Bush administration.

 

- If you want to see it that way, it's also inhumane to imprison someone. Again, a graduation is obviously applied: Physical mistreatment or an enforced confession, i.e. by torture or corporal punishment, are prohibited, but the restriction of physical freedom of movement is a common penalty.

 

- In the Declaration of Human Rights corporal punishment and torture were defined as violations of human rights.

 

- Why was such a line drawn?

 

- Possibly because corporal punishment could have lifelong consequences. Without a doubt, however, there is a violence that is more intimate than that of a mere capture. The difference is that the will of the delinquent shall be broken, he shall be pressed to confess.

It is the intimacy of violence that is shameful for a community committed to human dignity.

The crucial and essential reason is that corporal punishment means serfdom. It means that your body is the possession of another person, someone who can dispose of it in an existential way. It means that you do not belong to yourself. Hence, the imposition of corporal punishment shows the structures of a Ständestaat, a corporative state whose individuals are subject to graded appreciation and, correspondingly, to graded freedom.

 

- I cannot see why this should not apply to imprisonment. After all, obstructing my freedom of movement also affects my body. If one can imprison me and bring me hither and tither without me wanting it, he also rules about my body. And this is a physical experience.

 

- You do not experience them on your body, but via your body, because your freedom of movement and your freedom of action is limited.

 

- Again, you cannot draw a clear qualitative line. For example, what happens when someone is locked up in a very small cell, one in which he or she may not be able to stand upright, something which has indeed been applied as a method of torture? Here the restriction of the freedom of movement is synonymous with a corporal punishment.

 

- Not synonymous. This kind of restriction is a corporal punishment because it leads to physical pain. It is neither about the restriction of the freedom of movement, because this can of course mean a physical impairment, since physical movement is part of the physical existence. But it is about the restriction of the freedom of action. This is a difference.

 

- Let's take Japan which is also a democracy with the death penalty. In Britain, one of the oldest democracies we have, it was executed until the 1950s. Who wants to say that Britain was not democratic at the time? To me, the death penalty seems quite compatible with democracy. It can be regarded as a democratic agreement. If someone has killed, then they should also be punished with death. Whoever has taken the life of another forfeited the right to life by doing so.

 

- What does that look like in detail? Who should determine whether one forfeited the right to life?

 

- The state, I think, the courts.

 

- Who legitimates the courts and the state to deny someone the right to life?

 

- The people, the community.

 

- By popular vote, referendum, so to speak? Do you mean that by democratic?

 

 - This is how, in a country of law, laws are made and the organs of jurisdiction are determined indirectly. Democracy means that "the people themselves rule".

 

- If everyone is allowed to vote, is this not because everyone is given a basic right, which also includes the right to life? In total, what we call human dignity?

 

- Yeah, right. Everyone is granted this dignity, including the right to life, unless he has killed another person. This should, so the statement, be punished by death.

 

- What is ultimately again decided by the community. 

 

- Correct.

 

- This would mean that it is up to the arbitrariness of the community or their majority to deny a person the right to life. In so doing, however, they contradict this principle of the right to life in a fundamental way.

 

- Why contradict? Why arbitrariness? It is like a social contract in which certain statutes have been laid down, according to which the one who commits a murder forfeits his right to life. It is his or her own decision. This person does not have to kill. Who lives in a community also accepts its conditions, to which he or she, in a certain way, contributes.

 

- It is a fundamental contradiction in itself because the right to life cannot be subject to the decision of the community, since the right of the individual to life is the presupposition of its constitution.

If the community denies someone the right to life, it basically abolishes this elementary condition of respect for the human dignity of the other. Therefore, Martin Buber calls the death penalty a partial suicide of every community.

 

-  But this is about a murderer, not about just anybody.

 

- A murderer is also somebody. It's about a community that assumes the right to deny a murderer the right to life. And that is contradictory, because in a community which claims to be based on respect for the life of the individual, has to be unconditional because this respect would otherwise fundamentally be abolished.

This is why Buber called the death sentence pronounced against Eichmann, the only death penalty ever imposed by an Israeli court, a mistake of historical proportions. 

 

- But could you really say that, if the community denies this right, this decision would be arbitrary? Can you?

 

- This is a rhetorical question. Perhaps you think that democracy is essentially about making political decisions by majority vote.

 

- Yes, that’s exactly, what I think.

 

- In fact, this is only the secondary principle of a democratic society. Secondary because it is a consequence of the fundamental respect for the dignity of the individual. The relationship of the individuals, who recognize each other and who generally concede this dignity to each human being the liberal community is made possible in the first place. It is the crucial prerequisite.

Only enables the formation of a community and its workings, including majority decisions by vote of the individuals.

 

- But majority decisions are a fundamental function of a democratic society.

 

- Although not the basic content of democracy. The Greeks distinguished democracy from ochlocracy, the rule of the crowd.

Majority decisions alone are not decisive since they might negate their own precondition.

 

- Well, that's plausible. The majority principle cannot be the sole legitimization principle. But there is also the natural law. It is in the logic of the matter that one who has murdered deserves death.

 

- You think he also deserves to be murdered?

 

- Not murdered! Sentenced to death. 

 

- When you speak of the logic of the matter, you mean that it is about a deed to be paid back in kind.

And that means: A murder is atoned for by a murder. That would not be democratic jurisprudence, but the revenge principle like it dominates in clan societies. 

Anyone who wants to live like this should do so. But he should not, well provided with social security and pension insurance, use the state or the community for his murderous desires.

Let them take a gun and go. Then we would have a clan rule as they may still exist in Europe in the Albanian mountains. If they went there, these well-insured supporters of the death penalty would surely wet their pants.

 

- You are wrong. The lex talionis, the idea of retaliation as it existed the ancient jurisprudence and according to which the same should be compensated only with the same. It is not comparable to clan revenge which goes beyond this.

The biblical eye for eye, tooth for tooth is by no means a tighter jurisprudence in its time. On the contrary: it represents a containment of the clan revenge by specifying a measure and introducing a generally binding case-law.

 

- You're right. The lex talionis is not synonymous with the clan vengeance. However, your biblical quotation is, strictly speaking, not about repaying like with like.

 

- It is not?

 

- In the Mosaic laws it is not called an eye for an eye. The original wording is:

"give life for life, eye for eye" . Thus, the directive has a completely different meaning than what is commonly stated. It is not aimed at the injured party, who should now demand the eye of the perpetrator for their lost eye, nor at a judge, but at the polluter to compensate for the damage. It goes without saying that the instruction to him does not literally mean to rip his eye out and give it to the injured party, who would not be helped with that, anyway. What is meant here is a compensation.

 

- This applies only partly. The directive is repeated several times in the Five Books of Moses. Only once, the first time, it says Give life for life, eye for eye ... in the second book of Moses, chapter 21, verse 23 and 24. Only here the causer of the damage seems to be addressed.

But what is meant in another passage, say 3 Moses, 24, verse 19 to 20? There it is said expressly: If anyone injures his neighbor, as he has done, it shall happen to him, fracture for fracture, eye for eye, tooth for tooth; whatever injury he has given a person shall be given to him.

Here the higher-level instance of a jurisdiction is addressed: so shall it happen to him. And it is clearly articulated that like should be repaid with like.

 

- Actually not. With the first and only full wording of the phrase it was made clear that in all further mentions give life for life, an eye for an eye was meant. Everyone knew that.

 

- How come?

 

- By fundamentally emphasizing the meaning of the instruction and thus creating the context.

History is also clear here: since at no time there was a biblical or rabbinical jurisdiction that would have claimed the eye of the person who caused the damage to the eye of another person. In fact, it is always a question of proportionate compensation.The original Hebrew text contains the word takhat and that means instead of or in place of.  

The takhat is a continuous principle where accidents or damages in biblical jurisprudence are concerned.

 

- Anyway. Two lines before it is said that if anyone kills any man, he shall die. You will not be able to refute the fact that in Mosaic laws, at least some offenses are listed as death-worthy offenses.

 

- The statements are actually applicable to all sides. They would also apply to judges and executioners. But other interpretations are also possible for the well-known phrase in the first book of Moses 9, 6.

In Hebrew: "Shofekh dam haAdam, baAdam damo jeshafekh" – what ist usually translated as: "Whoso sheddeth man's blood, by man shall his blood be shed." King James

 

- What other interpretation?

 

- The colon is already an interpretation. There is none in the original Hebrew text. A well-known Talmudic derivation now puts it elsewhere, not in front of but behind "baAdam". The prefix ba" would then no longer mean "through a person"  but "in a person". The phrase then reads:

"Whoever sheds man's blood in a man, his blood will be shed."

 

- A man in a man?

 

- The statement was related to the unborn child. It is considered the prohibition of abortion.

 

- That does not contradict the other interpretation. It even includes the killing of an unborn child.

 

- That's true. However, it highlights the range of meanings of the prefix ba. It can also mean through or at or by, but the most common meaning is actually in.

 

Because of this "baAdam", as "in a man", can also be understood in such a way that when someone sheds a person's blood, he kills something in himself, in a man. HaAdam - baAdam - “Whoever sheds blood of man, his blood is shed in man".

A juxtaposition. This is probably what Martin Buber had in mind when he called the death penalty partial suicide:  Whoever kills someone else kills someone in himself.

 

- The argumentation in support of the death penalty is occasionally justified by its representatives with certain biblical passages from the Mosaic laws.  According to their interpretation, there are some passages which speak of killing an offender.

 

- Indeed. That is undeniable.

 

– It must be taken into account that the various texts of the Holy Scripture should be weighted differently - in terms of their importance and in relation to each other.

Thus, according to the orthodox tradition, the content of the Torah is revelation given directly by God, while the rest of the authors are considered to be inspired with God, and their writings are accordingly regarded as inspired revelations. 

 

- Well, Scripture is not a homogeneous block. But you say it yourself that the Mosaic instructions have a prominent position, since they are regarded as immediate revelation.

 

- Here there are also different points of view. Within the laws of the Torah, in turn, the stone tablets with the Ten Commandments, which Moses received from God on Sinai, take a prominent position. They stand above all other instructions.

These Ten Commandments can be considered the essential instruction of biblical ethics, given by God to Moses, and superior to all the other commandments and rules of the Torah. 

 

- Now, with regard to the Mosaic Laws on deadly crimes, these would be put into perspective by the fifth commandment of the Decalogue, usually translated as Thou Shalt Not Kill. Is it that, what you mean?

 

- Thou shalt not kill is not a perfect translation of the Hebrew lo tirtsakh. Another verb is considered as a more correct transfer of the fifth commandment of the Decalogue: Thou shalt not murder.

 

- Can the execution of a death sentence be called murder? Only in polemics the word is used in this context.

 

- It depends. Supporters of the death penalty like to emphasize this distinction, since the state-run execution would be affected by a ban on killing, but according to the linguistic consensus it is not called murder.

But still: the verb killing as an act of one person against another person is a specific act. 

Killing a person on purpose means to commit murder!

 

- You mean, this concerns any intentional killing? Even those executed by a government or a court?

 

- Due to the declared institutionalized purpose and the associated cruelty even more.

 

- An answer to the question what is the proper interpretation of the original Hebrew text, should be found in the handling of the jurisdiction of Judaism. How did they deal with the proscription of killing in the Ten Commandments?

 

- A look at the relationship of late antiquity Judaism to the imposition of the death penalty reveals a hardly comparable reluctance towards the death penalty, which ultimately resulted in general avoidance in the fourth century. 

Seventy judges and two witnesses were necessary in order to sentence a person to death. The Gemara says: A court that sentences only one person to death in seventy years is called a bloodthirsty court.

Whereas the possibility of a divine judge's verdict was principally admitted, no human judge was conceded infallibility.

 

- But theoretically the death penalty was seen as justified.

 

 - Since one could never be sure of this justification, it was practically abolished. But what is essential is the fact that there was also a rabbinical interpretation which understood the wording by no means as a directive for the judiciary, but as a passive divinum, as a matter of divine providence. 

In Hebrew the phrase as he has done, so it shall be done to him, can also be read as ... so it will happen to him.

 

- In other societies, people took a different view.

 

- As far as the interpretation of a Hebrew commandment from the Decalogue is concerned, there are good reasons to concede a certain competence to Judaism for grasping the linguistic meaning.

Thou shalt not kill / murder.

And the fact that the death penalty was already outlawed in Jewish ethics in the fourth century speaks for itself. 

 

 

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