The Supreme Court agreed on Friday to decide whether the Constitution allows the death penalty for the rape of a child.
--New York Times, January 5, 2008
The best case for the death penalty--or, at least, the best explanation of it--was made, paradoxically, by one of the most famous of its opponents, Albert Camus, the French novelist. Others complained of the alleged unusual cruelty of the death penalty, or insisted that it was not, as claimed, a better deterrent of murder than, say, life imprisonment, and Americans especially complained of the manner in which it was imposed by judge or jury (discriminatorily or capriciously, for example), and sometimes on the innocent.
Camus said all this and more, and what he said in addition is instructive. The death penalty, he said, "can be legitimized only by a truth or a principle that is superior to man," or, as he then made clearer, it may rightly be imposed only by a religious society or community; specifically, one that believes in "eternal life." Only in such a place can it be said that the death sentence provides the guilty person with the opportunity (and reminds him of the reason) to make amends, thus to prepare himself for the final judgment which will be made in the world to come. For this reason, he said, the Catholic church "has always accepted the necessity of the death penalty." This may no longer be the case. And it may no longer be the case that death is, as Camus said it has always been, a religious penalty. But it can be said that the death penalty is more likely to be imposed by a religious people.
The reasons for this are not obvious. It may be that the religious know what evil is or, at least, that it is, and, unlike the irreligious, are not so ready to believe that evil can be explained, and thereby excused, by a history of child abuse or, say, a "post-traumatic stress disorder" or a "temporal lobe seizure." Or, again unlike the irreligious, and probably without having read so much as a word of his argument, they may be morally disposed (or better, predisposed) to agree with the philosopher Immanuel Kant--that greatest of the moralists--who said it was a "categorical imperative" that a convicted murderer "must die." Or perhaps the religious are simply quicker to anger and, while instructed to do otherwise, slower, even unwilling, to forgive. In a word, they are more likely to demand that justice be done. Whatever the reason, there is surely a connection between the death penalty and religious belief.
European politicians and journalists recognize or acknowledge the connection, if only inadvertently, when they simultaneously despise us Americans for supporting the death penalty and ridicule us for going to church. We might draw a conclusion from the fact that they do neither. Consider the facts on the ground (so to speak): In this country, 60 convicted murderers were executed in 2005 (and 53 in 2006), almost all of them in southern or southwestern and church-going states--Virginia and Georgia, for example, Texas and Oklahoma--states whose residents are among the most seriously religious Americans. Whereas in Europe, or "old Europe," no one was executed and, according to one survey, almost no one--and certainly no soi-disant intellectual--goes to church. In Germany, for example, leaving aside the Muslims and few remaining Jews, only 4 percent of the people regularly attend church services, in Britain and Denmark 3 percent, and in Sweden not much more than 1; in France there are more practicing Muslims than there are baptized Catholics, and a third of the Dutch do not know the "why" of Christmas. Hence, the empty or abandoned churches, or in Shakespeare's words, the "bare ruined choirs where late the sweet birds sang."
As for the death penalty, it is not enough to say that they (or their officials) are opposed to it. They want it abolished everywhere. They are not satisfied that it was abolished in France (in 1981, and over the opposition at the time of some 70 percent of the population), as well as in Britain, Germany, and the other countries of Old Europe, or that--according to a protocol attached to the European Convention on Human Rights--it will have to be abolished in any country seeking membership in the European Union; and its abolition in Samoa was greeted by an official declaration expressing Europe's satisfaction. (To paraphrase Hamlet, "what is Samoa to them or they to Samoa that they should judge for it?") In fact, their concern, if not their authority, extends far beyond the countries for which they are legally responsible.
Thus, the European Union adopted a charter confirming everyone's right to life and stating that "no one may be removed, expelled, or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty." They even organized a World Congress Against the Death Penalty which, in turn, organized the first World Day Against the Death Penalty. They go so far as to intervene in our business, filing amicus curiae briefs in Supreme Court capital cases.
What explains this obsession with the death penalty? Hard to say, but probably the fact that abolishing it is one of the few things Europeans can do that make them feel righteous; in fact, very few. Nowhere in the new European constitution--some 300 pages long, not counting the appendages--is there any mention of religion, of Christian Europe, or of God. God is dead in Europe and, of course, something died with Him.
This "something" is the subject of Camus's famous novel The Stranger, first published in 1942, 60 years after Nietzsche first announced God's death, and another 60 before the truth of what he said became apparent, at least with respect to Europe and its intellectuals. The novel has been called a modern masterpiece--there was a time, and not so long ago, when students of a certain age were required to read it--and Meursault, its hero (actually, its antihero), is a murderer, but a different kind of murderer. What is different about him is that he murdered for no reason--he did it because the sun got in his eyes, à cause du soleil--and because he neither loves nor hates, and unlike the other people who inhabit his world, does not pretend to love or hate. He has no friends; indeed, he lives in a world in which there is no basis for friendship and no moral law; therefore, no one, not even a murderer, can violate the terms of friendship or break that law. As he said, the universe "is benignly indifferent" to how he lives.
It is a bleak picture, and Camus was criticized for painting it, but as he wrote in reply, "there is no other life possible for a man deprived of God, and all men are [now] in that position." But Camus was not the first European to draw this picture; he was preceded by Nietzsche who (see Zarathustra's "Prologue") provided us with an account of human life in that godless and "brave new world." It will be a comfortable world--rather like that promised by the European Union--where men will "have their little pleasures for the day, and their little pleasures for the night," but no love, no longing, no striving, no hope, no gods or ideals, no politics ("too burdensome"), no passions (especially no anger), only "a regard for health." To this list, Camus rightly added, no death penalty.
This makes sense. A world so lacking in passion lacks the necessary components of punishment. Punishment has its origins in the demand for justice, and justice is demanded by angry, morally indignant men, men who are angry when someone else is robbed, raped, or murdered, men utterly unlike Camus's Meursault. This anger is an expression of their caring, and the just society needs citizens who care for each other, and for the community of which they are parts. One of the purposes of punishment, particularly capital punishment, is to recognize the legitimacy of that righteous anger and to satisfy and thereby to reward it. In this way, the death penalty, when duly or deliberately imposed, serves to strengthen the moral sentiments required by a self-governing community.
Walter Berns is a resident scholar at the American Enterprise Institute and professor of government emeritus at Georgetown University. An earlier version of this essay appeared in his collection, Democracy and the Constitution (AEI Press, 2006).