On the Death Penalty: Hegel vs. Foucault
On a warm summer night in New York, Soviet spies Julius and Ethel Rosenberg shared their last kiss before an executioner and an electric chair. They had leaked numerous technological and military secrets to the Soviets at the height of anti-communist hysteria and now faced punishment for espionage and treason. Julius died after a single shock, but Ethel’s heart refused to stop. She took five turns in the chair. The young couple left behind two small children and a tragic legacy as the only two American civilians executed for espionage during the Cold War.
Cesare Beccaria once wrote of capital punishment: “The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly.” Indeed, the death penalty does not solve any problems for society in a tangible or rational way. The criminal is already locked up for life. He or she may have been wrongly convicted. All possibilities for redemption are foreclosed upon. It is more expensive than keeping them alive. The chief purpose of it, commonly understood, is to satiate a bloodlust for vengeance on the part of the wronged. Yet, Hegel, Kant and other proponents of the Enlightenment may have supported this most controversial of punishments from a rationalistic perspective. And paradoxically, it was post-modern philosophers such as Foucault and Bataille, who rejected the Enlightenment’s strict adherence to rationality, that most persuasively opposed capital punishment.
Why would the greatest advocates for reason support the most unreasonable of punishments? Why might reason's critics argue for a more reasonable course of action?
I. The Sovereignty of Reason.
“The Enlightenment” is a loosely defined term. The 18th-century movement is variously perceived as a special period for scientific, philosophical, cultural, and political history and as a time wherein the ideals of reason, logic, skepticism, naturalism, and progress held great authority. In particular, reason held ultimate authority.
The Enlightenment produced revolutionary ideals we take for granted today: appeals to liberty, equality, and progress. Our understanding of these concepts is similar to the way that even the most intelligent of sea creatures never recognizes that there exists a mode of being other than a life underwater. For a sea anemone thousands of leagues deep, water simply is, and for humans, the worthiness of Enlightenment ideals remains evident, whether or not we succeed in living up to them. Many philosophers and psychologists argue that we are not. Yet, these ideals and our means of achieving them remain the civic oxygen that animates our discourse.
Much of 19th-century philosophy either built upon the work of the Enlightenment philosophers or sought to tear it down along with systematic and rationalistic philosophical systems. One lumbering giant of 19th-century philosophy, Georg Wilhelm Friedrich Hegel, is considered by many to have been one of the leaders of Enlightenment thinking.
Hegel’s philosophical project is often described as a theodicy, or a vigorous and persuasive attempt to justify God and the inherent value of existence despite thousands of years of human suffering. To briefly summarize, in his Phenomenology of Spirit, he argues that Spirit, the human race, has over the millennia evolved its social, political, and philosophical consciousness in a painstaking process involving the rooting out of contradictions and unsatisfactory experiences to replace them with modes of being and thought that are more cogent, rational, egalitarian, and humanitarian. Thus, Spirit distributes human freedom and self-consciousness more broadly throughout the human race. Hegel provides a riveting and difficult account of this process throughout Phenomenology, commenting upon and analyzing each stage of the progression and its various pitfalls and errors, and the consequent dialectical turn required to move beyond the given paradigm of consciousness.
The values enshrined in the French Revolution, “Liberté, Égalité and Fraternité,” were the culmination of this process, with the Revolution itself being the first example of humanity achieving anything close to absolute political freedom. Hegel’s Introduction to the Philosophy of History vividly describes the process of political, cultural and philosophical evolution as “the slaughter-bench of history.” In line with this forewarning, Hegel notes near the end of the Phenomenology that once “Absolute Freedom” was achieved with the brutal overthrow of the French state, without any kind of legal apparatus to restrain the Absolutely Free, the French nation descended into chaos. A murderous “Reign of Terror” took hold, consisting of a horrific trance of lawlessness and executions. This period introduced the need for a Rational State, supported by a political and philosophical foundation, to guarantee freedom in a sustainable, affirmative, and rational structure. This freedom would be a manifestation of the will of the people that necessarily constrains the people by their desire to exercise their freedom in the structures of family and civil society. This latter project, describing the Rational State, is expounded upon in great detail in Hegel’s masterpiece Elements of the Philosophy of Right.
It was a common view among philosophers of the Enlightenment and Post-Enlightenment that capital punishment was to be a necessary activity of the Rational State. This may seem irrational at the surface level, as capital punishment does not help citizens become better people, is unnecessarily brutal and torturous, and a grave miscarriage of justice if later shown to be undeserved. This requires further investigation into Hegel’s political philosophy.
His commentary on crime and punishment begins rather tautologically, as he notes that laws are not laws unless there are punishments for breaking them. Further, he claims that for laws to truly embody the free will and rational desires of the governed and therefore the Rational State, they must be affirmed by them. Thus, for the governed to affirm their own set of laws is to affirm their own set of punishments. If they break a given law, they have rationally chosen a punishment for themselves by consenting to belong to the Rational State, provided, of course, that the State is structured in the way Hegel feels it should be in Philosophy of Right and affirms their dignity, freedom, and decision to be governed. Hegel goes as far as to argue that this is an honor for the criminal:
In so far as the punishment which this entails is seen as embodying the criminals own right, the criminal is honored as a rational being. He is denied this honor if the concept and criterion of his punishment are not derived from his own act; and he is also denied it if he is regarded simply as a harmful animal which must be rendered harmless, or punished with a view to deterring or reforming him.
For a punishment to be “rational” and not merely an act of vengeance, Hegel holds that it must be retributive, appealing to the ancient belief that a punishment must be equal to the crime. It must also be ethical, in that it serves as an expression of the universal will of the governed. He defines retributive justice in a memorable way, proclaiming that “the universal feeling of peoples and individuals towards crime is, and always has been, that it deserves to be punished, and that what the criminal has done should also happen to him.” He states that punishments should not take the barbaric form of an “eye for an eye, tooth for a tooth,” but that they should be proportional to the damage of a crime. However, he states that this rule of proportionality does not hold for murder, “for since life is the entire compass of existence, the punishment for murder cannot consist in a value — since none is equivalent to life — but only the taking of another life.”
Seeing that Julius and Ethel Rosenberg stole national security secrets and sent them to the Soviets, an action that could have led to the deaths of thousands or millions if the Soviets were able to make use of a scientific or military secret acquired through their espionage, it is clear that there are few punishments that could have been proportional to their actions. Through Hegel’s schema of rational punishment as consisting of a violation of the laws to which the public consents and being proportionate to the impact of the crime, they would have to face no less than execution. Kant and other Enlightenment philosophers held a similar position, but it is Hegel that I believe argues for this most convincingly. It is not for the sake of vengeance that one must punish the harshest of crimes most harshly. Rather, it is for the sake of upholding the dignity of a rationally-legitimized state. However, this seems to violate many of our intuitions. It does not seem rational at all, given all that we know about the risk, expense, brutality, and ultimate futility of such punishments. Why might the death penalty be both irrational and brutal to contemporary citizens, yet perfectly rational to some of history’s most eminent rationalists?
II. The Sovereignty of Discourse.
Michel Foucault, along with many of his post-modernist contemporaries, held a very different position than Hegel. Foucault’s focus on discourse as the central pillar of authority upon which institutions and government are contingent stands in stark contrast to Enlightenment philosophers’ appeals to reason.
In Discipline and Punish, Foucault did not seek to rationalize or explain the philosophies behind various modes of punishment throughout history. Rather, he sought to explain the acts themselves, along with their effects, and let interpretations fall where they may. In this sense, he was more of a historian than a philosopher, and his work is sometimes compared to literature or historical journalism rather than philosophy. Foucault remains a philosopher, in my opinion, because of his contribution to various theories in the areas of social and political philosophy. Foucault felt that appeals to higher ideals such as “reason,” “human nature,” “divinity,” and other common human values and aspirations more often than not served to legitimize institutions of oppression and domination. For Foucault, Hegel’s grand vision of human culture and society progressing throughout history was nothing more than an apologia for thousands of years of suffering and brutality. Regarding capital punishment, the story is much the same.
While writing about public executions in centuries past, he dispenses with any pretenses appealing to an innate human desire for retributive justice. He states that punishments originally served as a kind of interactive public spectacle that served to actively undermine the state rather than elevate its claim to rational legitimacy:
It was as if the punishment was thought to equal, if not to exceed, in savagery the crime itself, to accustom the spectators to a ferocity from which one wished to divert them, to show them the frequency of crime, to make the executioner resemble a criminal, judges murderers, to reverse roles at the last moment, to make the tortured criminal an object of pity or admiration… it can be said that the practice of the public execution haunted our penal system for a long time and still haunts it today.
The amount of public affection, pity and sympathy for the executed criminal, Foucault argues, forced punishment of all kinds out of sight and into the subterranean depths of the prison-industrial complex.
A similar kind of public sympathy emerged for the Rosenbergs in the extensive media coverage of their arrest, trial, and execution. Many were horrified by the actions of the United States government and deeply sympathetic to their orphaned children. In particular, Ethel Rosenberg garnered much sympathy and outrage over her longer execution. This seems particularly salient when one considers that no other American civilians were ever executed for espionage after the Rosenbergs. Had it not been for the public, emotional display of the two orphaned children, who Foucault would describe as “objects of pity or admiration,” it is possible that many more children of Soviet spies would be orphans.
Foucault’s Discipline and History of Sexuality provided a pre-eminent demonstration of the evolving purpose of punishment and so-called “justice” over the next several hundred years. If justice was not retributive but instead a spectacle of sovereign power that evolved into a regulation of human “biopower,” as he puts it, it is clear then that capital punishment is merely a tool of power to Foucault. He feels that it is a fact of social life, not an integral element of rational society. What, then, was sovereign for Foucault? For him, it was power for its own sake as an immutable feature of human society and a force encompassing the limits and scope that defined human discourse and culture. He embraced the advance of rationality as a passing excuse for our darkest drives and most brutal tendencies. In Foucault’s worldview, beyond a few basic characteristics, humans are more or less blank slates waiting for orders and etchings, informed by the prevailing discourse and ideology of their times.
Though he held a much darker view of human nature and its relation to higher ideals than Hegel, or rather held that there was a lack of any human nature at all, Foucault was in fact very much against the death penalty, and much of his work can be read as a compassionate outcry in aid of the oppressed. Shortly after its abolishment in France, he proclaimed in the magazine “Libération” that “The oldest grief in the world is dead in France. We must rejoice.”
III. The Dialectical Turn.
If a brilliant rationalistic political philosophy calls for a form of punishment that is cruel and unusual, and another formidable set of teachings that is more or less anti-rational leads one to the conclusion that such punishment must be done away with, what is one to make of this contrast? Must we abandon rationalistic political philosophy? Are there political limits to reason?
One commonality between Hegel and Foucault is the way in which both philosophers place the importance of culture and social life at the center of personal experience. Hegel observes that the true realization of human freedom in the world is only possible given a complex web of laws, rights, and institutions, and Foucault shows through his historical investigations that human reality is inseparable from social and historical existence. These are both irreducibly social views of the human being rather than individualistic or atomistic ones. This implies that, given a social order founded upon a more humanitarian and modern set of insights, a human being brought up in such a society would be likely to contribute positively to that society.
With this more modern set of insights, it is perhaps the case that what might be defined as “rational” punishment may be less retributive and more utilitarian, with the ideal of furthering the common good for all rather than simply displaying obeisance to reason. To integrate the ideas of the two philosophers requires a twofold reconfiguration: first, an adequately proportional punishment accompanied by the rational prioritization of the suffering and rehabilitation of the possibly-innocent living over the retribution of the dead on the part of the Hegelian view; second, an acknowledgement that it is possible to be cynical to a fault and that some ideals, perhaps even that of a modified version of Reason, are worth appealing to on the part of the Foucauldian view.
The nature of rationality is such that it presupposes its own ends— following rationality, applied to any system, including social systems, to its logical endpoint will result in a particular, necessary endpoint. 2 + 2 can only equal 4, in other words. It is easy to see how an anti-rationalist or cynic might poke plenty of holes in such a rigid mode of thought, when applied to such a fluid and emergent phenomena such as social life. Foucault and those in his tradition would argue that to try to apply any form of rationalistic discipline to social life is to necessarily commit some act of violence through the exclusion of those that cannot abide by the given social discipline.
This takes various forms throughout Foucault’s philosophical project, whether it is the insane asylum in Madness and Civilization or the introduction of sexual preferences in History of Sexuality. Foucault is not arguing for barbarism and the surrender of all social disciplines, or what one might call civilization itself. Yet, notably, he spends much effort and energy revealing the contradictions and tragedies inherent in civilization, without proposing any kind of a viable alternative, that it is clear as to why Foucauldian thought is often conflated with nihilism. The Hegelian response to Foucault’s attack on the discipline of civilization would be to argue that such discipline ultimately ends up saving more lives in the end, allowing more human flourishing than without it. A good Hegelian might even argue that Foucault, in his cynical attack on Hegel and any paeans to reason, has actually helped society to become even more Hegelian than Hegel: in pointing out the absurdities of his given moment in history such that we may correct our course and move further in the direction of a rational ideal worth aspiring to. That is, one that mitigates as much collateral damage as possible, and, as Hegel sought to accomplish in Right, guarantees freedom for all. As a wise man once said, “behind every cynic is a disappointed idealist.”