Part 6 (1/2)
=25. The right of self-defense.=--None of the foregoing principles would present the shadow of a difficulty to any except those who are nearer the brute than man, if it were not for an apparent exception to the rule, which is the _case of legitimate self-defense_. To understand properly the solution of this question, it is necessary to examine carefully the nature of the relations which bind men to each other.
Every man is a _moral person_; that is to say, a free being, and for that very reason inviolable in his dignity and in his rights. He is, as Kant says, an _end to himself_, and should not be treated as a _means_. The things of nature are to us but means to satisfy our wants; we may therefore mutilate and destroy them, not as our whims may dictate, but as our wants require. Thus can we cut the finest trees of a forest to make fire of, or for furniture. We even claim a similar right over animals, although it may, perhaps, not be so evident. But we have no such right over man. We can neither mutilate nor destroy him for our use.
And, in fact, to destroy or mutilate through sheer force a member of humanity, is to apply to him the law of compulsion, which is the law of physical nature, and which without reserve governs all physical phenomena: it is to make of man _a thing of nature_, to see in him the body only, and ignore the soul.
The consequence of such conduct is evident: it is that whosoever employs against another the law of compulsion means thereby that he does not recognize between himself and other men any other law but that. Treating them as if they were purely physical agents, he gives us thereby to understand that he recognizes himself, and expects to be treated, as such; he means to take advantage of his strength as long as he is the strongest, but gives us to understand thereby that he is satisfied to submit to strength if he is the weaker.
It is here that the _right of self-defense_ comes in. He who is violently attacked, has the right to oppose to violence just as much strength as there is employed against him. Otherwise, in allowing himself to be knocked down by strength, he would consent to the abas.e.m.e.nt, to the suppression of his own personality; he would in some respect be the accomplice of the violence he is made to suffer. Some Christian sects, straining this point, go so far as to condemn absolutely the right of self-defense; they do not see that this would infallibly bring with it the triumph of brute force, and the suppression of all justice. Such sects may, to a certain extent, manage to exist in civilized societies; but the principle is self-destructive, since not to resist violence is in some respect to be its accomplice.
Yet, whilst admitting the right of self-defense, it is necessary to recognize its limits. ”This agent,” says M. Renouvier, ”whom the right of self-defense treats as a brute, this being is a man, nevertheless, or has been one, or may become such. Hence the doctrine of conscience is to admit this right only when necessary, and not beyond what is necessary.” (_Moral Science_, Ch. LVI.) This is, to begin with, a natural consequence of the duties towards one's self, since it is already a surrender of one's dignity to be obliged to act in the capacity of a physical agent, and renounce one's character of a moral person; it is also a duty towards humanity in general, which is represented by every man, even the most violent and the most uncultivated.
=26. Problems.=--The right of legitimate self-defense gives rise to a certain number of problems relative to the law of homicide. M. Jules Simon[17] reduces them to five: homicide in case of self-defense, penalty of death, political a.s.sa.s.sination, duel, and war. In the first case it is implied in what precedes, that legitimate self-defense may go so far as to deprive another man of life; but only in case of absolute necessity.
There remain the four other cases, which are not all of the same order.
=27. The penalty of death.=--The penalty of death in these days has been very much contested, and several States have tried to abolish it.[18]
The following arguments are brought to bear against it:
1. _The inviolability of human life._--The State, it is said, should not give the example of what it proscribes and punishes. Now, it punishes homicide; then it should not itself commit homicide.
2. The possible _mistakes_, which in all other cases can be corrected, but which in this case alone are irreparable.
3. _Experience_, which, it is said, tells against it in certain countries by proving that the number of crimes has not been increased by the suppression of the penalty of death.
4. Finally, the _refinement of manners_, which can no longer bear the idea of capital punishment.
No one of these arguments is wholly decisive.
1. The inviolability of human life is not an absolute thing, at least not for those who admit the right of legitimate self-defense. We shall examine this presently.
2. Judiciary mistakes are very rare, and will become more and more so, as justice becomes more respectful towards the rights of the accused, and through greater publicity, by the intervention of a jury, etc.
3. Experience is not so much of a test as it is said to be, and is often made on too small a scale. The attempts at abolition have not been very numerous. In Tuscany murders have always been very rare on account of the gentleness of manners. In Switzerland, on the contrary, crime is on the increase, and certain cantons have asked for a return to the death penalty. Besides, it is a very difficult experiment to make. How could a society as complicated as ours dare to trust its security to so hazardous an experiment?
4. The refinement of manners may gradually bring about, thanks to the inst.i.tution of the jury, the diminution, perhaps some day the suppression, of the penalty of death, without its being necessary for the State to lay aside this powerful means of defense and intimidation.
The penalty of death, in fact, can be considered legitimate only in the light of the right of self-defense. If society needs this penalty to protect the life of its members, it may be said that it is authorized to use it, on the same ground as each individual to whom we have conceded the right to repel force by force, and to deprive of his own life one who should threaten to take _his_ life.
But, it will be objected, the right of self-defense, when ending in homicide, is justifiable only at the moment of the attack, and to ward off a sudden aggression itself threatening murder; but the deed once committed and the criminal in the hands of the law, there is no reason to fear a new aggression from him, and his chances of escape from justice through evasion are too few to justify the violation of a duty so absolute as the respect for human life.
It may be answered that society, by the death penalty, not only defends itself against the criminal himself, but against all those who might be inclined to imitate him. The penalty of death is above all a precautionary means of defense, that is to say, a means of intimidation. The future criminal is warned beforehand of the risks he runs; he accepts voluntarily the punishment he will incur. If society should catch him in the act--_flagrante delicto_--it would certainly, in order to prevent the crime, since it is the representative of all individuals, have the same rights as the individual of defending himself. But the difficulty of seizing upon the criminal at the moment of commission, can it be considered a circ.u.mstance in favor of the criminal, and does society lose its right, because, through the skill and precautions of a.s.sa.s.sins, it can but very rarely, and scarcely ever, catch them in the act?
The right of society to defend itself by the death penalty does not seem to us, then, to admit any doubt. The whole question is to know whether such a means of defense is really necessary and efficacious. It is, as we have said, a question of experience which it is very difficult to settle, for the reason that we dare not make the experiment. All that can be said is that, as a principle, every man fears death; it is the greatest of fears. There is, therefore, reason to believe that it is the most powerful of the means of intimidation. Besides, it is known that professional criminals estimate with great accuracy offenses and crimes proportionably to their penalties. Thus, those who steal know that they expose themselves to such or such punishment, but they go no farther in order not to incur a more severe punishment; for these the penalty of death is certainly a great item in their plans, and it would be dangerous to relieve them of this menace.
We do not mean to say that in future society may not reach a state of organization strong and enlightened enough to be able to do without such means; but in the present state of things we should consider the attempt to abolish them dangerous for society.
=28. Of political a.s.sa.s.sination.=--Concerning this pretended right, so shockingly promulgated in these days by savage factions, we cannot do better than quote the words of M. Jules Simon in his book on _Duty_: