This is an excerpt from the book :

Why Moses  was not allowed

to enter the promised land 

Essays and considerations

  

books >>

Bücher >>


Immanuel Kant:

He who steals there makes the property of all other insecure, he deprives himself (according to the right of retribution) of the security of all possible property: he has nothing and can not acquire anything, but after all wants to live; which is not possible otherwise than that others feed him. Because the state will not do this in vain, he has to leave his powers to arbitrary work and will, for some time, depending on the ajudgment also foreverforever, be a slave. - 

But if he has murdered, he has to die. There is no surrogate for the satisfaction of justice here.

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 support of the death penalty

 

A dialogue

 

 

 

- How does 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 up as a subject.

He kills something in himself. That is a primal sensation. It results from Buber's thoughts of I and Thou

In it he articulates how the person-being of man, his I, grows out of the recognition and the acknow-ledge of the other person, the Thou. Who eliminates his Thou also cancels his I. Buber transfers this to the community, which primal emerges from the I-Thou relationship. Here the individual is affected as well as the community as such: The community kills itself by killing the individual under the pretending of community security. Thus it dissolves 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 suspendable. In all circumstances, even against a murderer, you have to be truthfull, otherwise you commit a breach of the law. Anyone who deliberately breaks the law, questions its general validity and thus makes social life impossible.

Also, no one could be misused for a purpose or reduced to a purpose.

 

- But precisely with this maxim, all life excitement and all living together is made to a purpose. More than before. Namely, by understanding the individual as a function of the community. The road to collective coercion, over that of the Prussian military state to that of German National Socialism, is laid down in it.

 

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

Now he calls the execution the only adequate punishment for one who has murdered, on the grounds that only then can one speak of a satisfaction of justice.

 

- In fact a contradiction, since justice is granted an absoluteness here, it is even personified, by able to be satisfied.

However, in Kant's philosophy, justice can only be an intersubjective consensus geared to creating social conditions for the advantage of all. 

 

- That's how Kant formulated it:

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 right of retribution can not be deduced from it and arbitrarily set. A satisfaction of justice by the death of the delinquent represents the reduction to a purpose and is in contradiction to the alleged ethics of the Categorical imperative.

 

- The contradiction exposes Kant's imperative in its basics. It lies in the matter. With Kant's advocacy of the death penalty it only becomes obvious. Since the very maxim of always acting in such a way that one's own action can be regarded as the yardstick of the community makes the community a functional end in itself, in which the individual is reduced 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 in the emerging industrial society may find its explanation here.

 

- The sentence forms the concept of modern democracy. Namely, to organize the selfish claims to power in way that they keep each other in check.

 

- A political mechanics. One speaks also with reference to Adam Smith of the Mechanism of the market.

 

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

 

- Insofar as a society actually invokes this rule and not something else, it leads to the dictatorship of constraint of facts.

 

- Into the dictatorship of those who understand how to present their interests as constraint of facts.

 

- The leader of Eastern espionage in the Nazi state, Reinhold Gehlen, who founded, fostered by the USA the german Federal Intelligence Service after the war, once formulated this coherently.

In a letter a few years after the collapse of the Nazi state, when the future german federal government was still in the process of forming itself, he speculated about that after the Nazi dictatorship and prussian Kaiserreich and the associated catastrophes, political decisions could no longer be communicated to the people via the authority of persons, since people's trust in any form of personal authority was irrevocably gone. Government measures could no longer be justified in this way. Therefore it would be advisable to present them as a constraint of facts.

 

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

 

- Kant's lapse of thought is systemic: proponents of community coercion are usually also supporters of the death penalty. It is the repression by the collectivy compulsion that demands sacrifice. This is the root of the matter.

At any rate, the death penalty is in conflict with the idea of democracy. In its essential sense, democracy excludes the use 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.

 

- The democracy in USA is not so old yet.

 

- Is it not said that the foundation of the United States of America in 1789 is the model for the modern democratic state?

 

- Does not it belong to a democracy that the population chooses the government, that everyone equally entitled to vote?

 

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

 

- It was not valid for the Indians and the slaves. These were not eligible to vote. If only certain sections of the population are allowed to vote, one can not speak of democracy.

 

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

 

 

(...) 

 

- Let's take Japan. Japan is also a democracy. There they have also the death penalty. In Britain, one of the oldest democracies ever, it was still practiced until the 1950s. Who wants to say that Britain was not democratic at the time? The death penalty seems quite compatible with democracy. Then it is a democratic agreement. If someone has killed, then he should also be punished with death. Whoever has taken the life of another, thereby forfeited the right to life.

 

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

 

- The state, I think, the courts.

 

- From whom do the courts and the state obtain the legitimacy to deny someone the right to life?

 

- From the people, from the community.

 

- By voting, so to speak? Do you mean that with democratically?

 

 - In this way, in a country of law, laws are made and the organs of jurisdiction are determined indirectly. Democracy means "the people itself rule".

 

- If everyone is allowed to participate in the vote, is it not because everyone is given a basic right, which 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. This should, so the statement, be punished with death.

 

- What then ultimately decide the community again. 

 

- Correct.

 

- This would mean that it is up to the arbitrariness of the community or its majority to deny a person the right to life. In so doing it self contradicts this principle of the right to life in a fundamental way.

 

- Why contradicts? 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 decision. He does not have to kill; He who lives in a community also accepts its conditions, to which he, in a certain way, contributes.

 

- It contradicts itself fundamentally, because the right to life can not be subject to the decision of the community, since the right of the individual to life is the presupposition of its constitution.

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

 

-  But this is about a murderer, not about anyone.

 

- A murderer is also anyone. It's about a community that claims the right to deny a murderer the right to life. And that is contradictory, because in a community that claims to be based on respect for the individual's life, this can not be subject to conditions because it would fundamentally nullify that respect.

Therefore, Buber also named the death sentence against Eichmann, the only death penalty ever imposed by an Israeli court, a mistake of historical proportions. 

 

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

 

- You ask rhetorically. Perhaps you think that democracy in its essence is about making political decisions that are made by the majority.

 

- In fact, that's 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. From the relationship of the individuals, who recognize each other and generaly, namely each human being in his dignity, the liberal community is enable in the first place. It is the crucial condition.

Only out of this the functions and doings of community formation, including voting by majority vote of this indivuals, are resulting.

 

- But the majority decision is a fundamental function of democratic society.

 

- But it is not the basic content of democracy. The Greeks distinguished democracy from laocracy, the rule of the crowd.

The majority decision alone is not decisive, since it could negate its own precondition.

 

- Majority principle is not equal to democracy?

 

- The majority decision is based on respect for the dignity of the individual. She is derived from her and this is her prescondition. Therefore, it can not deny the dignity of one or more individuals, as it then dissolves in its ethical basis.

 

- Well, that's plausible. The majority principle can not be the sole legitimization principle. But there is also the natural law. And so it lies in the logic of the matter that one who has murdered, deserves death.

 

- You think he also deserves to be murdered?

 

- Not murdered! Punished by death by sentence. 

 

- If you speak of the logic of the matter, then you mean that here is an act to be repaid one to one.

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, advocate the state or the community for his murderous desires.

Let him take a gun and go. Then we would have a clan rule as they still may exist in Europe in the scipetarian mountains. They should go to the scipetarian mountains. Guaranteed that these well pension insured supporters of death penalty would shit themself there

 

- You are wrong. The lex talionis, the retaliatory thought, for example in the ancient jurisprudence, is not comparable to the clan revenge. This goes beyond the idea of revenge, according to which the same should be compensated only with the same.

The biblical eye for an eye, a tooth for a tooth is by no means a tighter jurisprudence in its time, but on the contrary; it represents a containment of the clan revenge by specifying a rule 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 not about retaliate the same thing in the narrow sense with the same.

 

- Not?

 

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

give an eye for an eye ... 

Thus the directive has a completely different meaning than commonly stated. It is not aimed at the injured party, who should now demand the eye of the perpetrator for his 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 to give it to the injured party, who anyway would not be helped with that, but that a compensation is meant here.

 

- This is only partially true. This directive is repeated several times in the Five Books of Moses. Only once, the first time, it says Give life for life, an eye for an eye ... in the 2. Book of Moses, chapter 21, verse 23 and 24. Only here, the causer of the damage seems 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 even clearly articulated that the similar should be retaliated with the similar.

 

- Again, it is about adequate compensation. The original Hebrew text contains the word takhat and that means instead of or in place of.  

The takhat is a continuous principle when it is about accidents or damages in biblical jurisprudence.

 

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

 

- 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, the font is not a homogeneous block. But you yourself say that the Mosaic instructions have an exalted 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, takes 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 relativized by the fifth commandment of the Decalogue, usually translated as Thou Shalt Not Kill. Ist it that, what you mean?

 

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

 

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

 

- How one takes it. Supporters of death penalty like to emphasize this distinction, since the state-run execution would be affected by a ban on killing, but in the linguistic consensus it will not called a murder.

But it remains: the verb killing as an act of one person against another person means a specific act. 

Killing a person on purpose means to do a murder!

 

- You mean, this concerns any intentional killing? Also when it is the action of a government or a court?

 

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

 

- Understanding 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.  

Thus one needed seventy judges in order to be able to sentence a person to death. It required two witnesses of his crime. The Gemara says: A court that sentences only one person to death in seventy years is called a bloodthirsty court.

Although one admitted in principle the possibility of a divine judge's verdict, one did not trust any human judge infallibility.

 

- But theoretically the death penalty was seen as  justificated.

 

 - Since one could never be sure of this justification, it was practically abolished. But essential is 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. 

For the Hebrew verb asseh in the sentence, as he has done, so it shall be done to him, can be read also 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, that one should conced Judaism a certain competence 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 testifies to itself. 

 

 

                                                                                                          ***