Aug. 28, 2012
If a society imposes the death penalty, as most have always done, which system makes more sense?
System 1
The enforcing institution is the state, not the family or clan.
Citizens have the right to bear arms.
There is a right of citizen's arrest -- no state monopoly.
The accused must be accused by at least two witnesses.
The people accusing him must be among the executioners.
The accused has an opportunity to confront his accusers at the end.
A false accusation is a criminal offense against the victim.
The penalty for false accusation id the same penalty that applied to the victim.
System 2
The enforcing institution is the state, not the family or clan.
Citizens do not have the right to bear arms.
There is no right of citizen's arrest -- state monopoly.
The accused need not be accused by at least two witnesses.
The people accusing him are not present at the execution.
The executioner is an anonymous bureaucrat hired by the state.
The execution is conducted in seclusion in a prison.
The convicted person has no opportunity to confront his accusers at the end.
A false accusation is a criminal offense against the state (court).
The penalty for false accusation is prison.
The taxpayers pay for the prison system.
Question: Which system is likely to reduce the number of false accusations?
Think this through. Look at the sanctions.
When families or clans assert the right to impose capital sanctions, a society is threatened by feuds. This increases violence. It makes violence unpredictable. It also makes it open-ended. Revenge replaces justice.
The state asserts the right of execution. But is the state autonomously sovereign? Or does it derive its sovereignty over execution from its citizens? Who exercises primary sovereignty? On what legal basis?
The second system is almost universal in today's secular societies.
Some nations do not impose a death penalty. The man who murdered 77 victims in Norway in 2011 was given a maximum of 21 years in August 2012: 13 weeks per victim. He is eligible for parole in 10 years: six weeks per victim. Here is the economic implication: a steep discount for mass murders. I went into print on this implication. The mainstream media did not.
Those who are familiar with the Bible will recognize that the first system was required by the Mosaic law. But, because modern citizens have been educated in humanist schools, they have not thought through the implications of the rival systems of capital punishment. They think of the Mosaic law as barbaric. They think of the humanist system as humane. This is what humanists teach.
Citizens' Sovereignty. Should citizens be armed? The Mosaic law said yes. What is the lowest common denominator in weaponry? It is not a club. If you live in a mostly treeless society, the lowest common denominator weapon is a stone. You do not need an axe to cut a branch from a tree. You reach down and pick up a weapon. This weapon is close to universal, other than in a desert. The legal right to defend yourself with a stone is a mark of your judicial sovereignty. The law does not insist that you must wait for a man with a badge to come and defend you.
The modern state seeks to disarm citizens. It seeks to remove the fundamental mark of sovereignty from citizens. The United States is an exception to this trend, but the rest of the world cannot understand why the right to keep and bear arms is a central tenant of the Constitution. Liberals hate the idea of an armed citizenry. They insist that agents of the state -- ordained people with badges -- alone should have the right to carry a weapon. This political battle is fundamental to the older biblical concept of citizenship. It limits the state. It limits the authority of people with badges. It seeks to eliminate the visible sign of the citizens' sovereignty over the state.
Yet in the area of jurisprudence, one supreme mark of the disarmed citizenry is fundamental in the United States: execution by a man with a badge. Here, the citizenry is happy to delegate this mark of citizen's sovereignty to the state. People accept the argument that it is barbaric for citizens to be allowed to participate in bringing the supreme civil sanction. The state asserts this sovereignty, and the voters accept the state's claim. In the war against an armed citizenry as a sign of citizens' judicial sovereignty, liberals will take what they can get. They resist the suggestion that citizens are sovereign here, too -- not just in self-defense, but in execution. They have been successful in persuading conservatives of this position. Symbols are important. Defenders of state sovereignty know this better than defenders of citizens' sovereignty do.
Two Witnesses. The Mosaic law required two witnesses.
One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established. (Deuteronomy 19:15)
Perjury. The accusers were at risk for perjury. The penalty for perjury was whatever the penalty would have been, had the victim been convicted, or what the penalty was, because he was convicted and punished. This applied to capital crimes.
If a false witness rise up against any man to testify against him that which is wrong; Then both the men, between whom the controversy is, shall stand before the LORD, before the priests and the judges, which shall be in those days; And the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testified falsely against his brother; Then shall ye do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you. And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you (Deuteronomy 19:16-20).
Witness Participation. The Mosaic law required that the witness who testified against a person had to participate in the person's execution. The magnitude of the civil sanction could not be hidden from the witnesses.
At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death. The hands of the witnesses shall be first upon him to put him to death, and afterward the hands of all the people. So thou shalt put the evil away from among you (Deuteronomy 17:6-7).
It was a public execution. The accused had an opportunity to confront his accusers one last time. In the New Testament, the preeminent example was the testimony and execution of Stephen (Acts 7).
And all the men of his city shall stone him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear (Deuteronomy 21:21).
Why stoning? Because the stone was the mark of universal citizenship. This was the sign of every citizen's right of self-defense. It was the mark of the right to keep and bear arms. It was also cheap. Every citizens could afford a stone.
A stone was a universal weapon. The state did not supply it. The state did not delegate this authority only to people who could afford a sword. It did not delegate it at all. The right of participation in the execution was a fundamental human right, immune from state exclusion. The state did not supply the means of execution as a sign of its sovereignty over citizens. The stone was the mark of sovereignty -- sovereignty over the state. The state derives its sovereignty from God and men. It is not the source of this sovereignty.
No one person was responsible for the death of the convicted person. It was an act of state, which meant that it was an act of citizenship. It was not an act lawfully delegated to a paid executioner.
The rich man in early modern England did not suffer the hangman's rope. That was undignified. He was executed by beheading. It was common that he would give a gold coin to the masked hangman. Why? It was a bribe. The victim knew that the executioner might "accidentally" mess up the execution. The victim might be tortured. So, he paid for a clean beheading. Here is a section from the Wikipedia entry on decapitation.
If the headsman's axe or sword was sharp and his aim was precise, decapitation was quick and was presumed to be a relatively painless form of death. If the instrument was blunt or the executioner clumsy, however, multiple strokes might be required to sever the head. The person to be executed was therefore advised to give a gold coin to the headsman to ensure that he did his job with care. Robert Devereux, 2nd Earl of Essex, and Mary, Queen of Scots, required three strikes at their respective executions. Margaret Pole, 8th Countess of Salisbury, is said to have required up to ten strokes before decapitation was achieved.
Not so in Mosaic Israel. There was no one to bribe. There was no one in charge of the final blow. It was a community execution, because all executions in a republic or democracy are legally community acts. Sovereignty is derived from God and the people, not from oligarchs or a king. Execution is made in the name of God and the people. The mark of the people's sovereignty is their participation in executions.
Reducing False Witness. Under this system, would false witness be common? I doubt it. At every step of the process of false witnessing, the criminal would be reminded of the penalty. He would cast the first stone. If later convicted, he would be the recipient of the first stone.
Humanists abandoned this system in the West. First came the public executioner, usually masked -- a paid, anonymous functionary of the state. Then came public hangings, where the community attended, but refused to be participants in the act. The modern humanist wants to hide the execution. It must be invisible.
At each stage, the progressives claimed that the existing mode of execution was barbaric.
At each stage, the witnesses against the accused have been farther removed from the visible consequences of their testimony. This is barbaric.
Conclusion. The person who thinks of the citizens of a community stoning of a person convicted of a capital crime as barbaric has accepted the first principle of modern political theory: the superior sovereignty of the state over its citizens. To begin re-thinking this premise, I suggest that people re-think their views on stoning.
I regard the idea of a disarmed citizenry as barbaric. The Left does not. It has attempted to persuade conservatives that a disarmed public is humane. It has been successful in this one area: the legitimacy of all state-mandated executions in a prison by one or more anonymous bureaucrats with badges -- the mark of state sovereignty.
The Soviet Union built an entire social order on this principle of jurisprudence. Lubyanka Prison was its supreme symbol. Arthur Koestler's novel summarized it in three words: darkness at noon.
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