Elizabeth Warren’s “social contract” comment combined with yesterday’s execution talk prompts me to revisit something I wrote a few years back before comments were enabled here, so readers weren’t then able to show me the error of my ways. Namely, that most of the debate over the death penalty revolves around secondary, albeit important, matters. But the core argument for executing murderers, it seems to me, is that the state was created to execute murderers.
The real social contract — not the theoretical one of Locke and Hobbes and Rousseau but the thousands of actual decisions in distant antiquity by various tribes and clans to submit to political authority — was driven by the need to establish rule-based justice to avoid perpetual vendettas and blood feuds. Where the state still is or recently was weak, you get a sense for what the pre-political, pre-state world was like — parts of Appalachia in the past, Corsica, Sicily, parts of Albania, Mount Lebanon, Afghanistan — with private justice resulting in endless rounds of revenge killings and disorder. So people surrendered their natural right to avenge the murder of their kinsman in exchange for a promise by the political authority to avenge the murder for them, but in a rule-based, orderly way.
If the state refuses, as a matter of policy, to execute murderers under any circumstances, it rejects the reason people submitted to government in the first place and undermines its own legitimacy. And this isn’t just theoretical bloviation — people sense it in their hearts, even if they don’t think about it in those terms. That was the appeal of Chuck Bronson’s Death Wish movies — when the state fails to carry out its most elementary duty, people will resort to vigilantism, i.e., they seek justice in the only way available to our ancestors in pre-political times. I’m in no way arguing for vigilantism — I agree with Jefferson that “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes” — but executing murderers is one of the important ways the state reinforces its legitimacy in the mind of the public. Conversely, each time a murderer, absent persuasive extenuating circumstances, is not put to death, that decision chips away just a little bit at the law’s credibility and the state’s legitimacy.