Off with their Heads – No or Sometimes Yes? Ruthless Criticism

MSZ (September 1987)

The good citizen’s favorite puzzle:

Off with their Heads – No or Sometimes Yes?

A reader's question:

“Has an article on the subject of the death penalty appeared in your magazine during the last few years? I would also appreciate some references to works about this subject. I hope for a fast answer, I have to write a paper for school.”


To answer your question: no. And with good reason.


You know almost everything about the subject if you make it clear to yourself why you have to write a paper for school about this point – instead of letting this matter rest after the abolition of this type of punishment. Or do you think it's a coincidence that no one gets an education without at some time having to mull over this question: heads off – yes or no? (By the way, the “as the case may be” variant is reserved for older students: why do “the people” always want it back?)

There is no cruder, but evidently also no more effective way of putting upcoming citizens with both feet on the viewpoint of state power than by the forming of an opinion about the death penalty; a viewpoint which they never take in reality themselves: state decisions have to be taken note of by the citizens only as obligatory laws – by the way, without being made the slightest bit dependent on reasoning from good arguments (which therefore also as a rule remain unmade) – and not learned with clever school papers, let alone to influence them.

The effect of the question – and its appeal for educational character development – lies in its alternatives and what it assumes as the biggest self-evident fact in the world. Nobody asks himself “should I put people down?” at least so basically and generally. By contrast, when the state is considered as the initiator of the death penalty, one already assumes that it is perfectly entitled to decide this subject, whether it puts certain people to death consciously, full of intention, without need, after long preparation, almost ceremoniously, or not. And the question invites one to weigh the good reasons for wiping people out in this way – still better, one needs good reasons to reject it (no paper is complete without them). No matter how the decision turns out – the point of view taken there in thought for the decision is that of an absolute sovereign over the lives of people. Sovereignty involves a power which cannot be resisted in principle and goes beyond it: meaning, a force whose discretionary power goes without saying. In questions such as: no death penalty or maybe yes? a problem is thought out which is actually only posed for a superior authority in regard to its free treatment of people. From there one should look at the world – thus not think through or even criticize the sovereign penal authority itself.

So one exercises one's mind in a prejudice. The outcome is the opinion that thinking is generally synonymous with empathy for the problems of a sovereign that commands over people up to the point of their death. You yourself may discover the brutal angle of this way of thinking. The amusing thing consists in the fact that 1000th of humanity do not have these problems practically in their daily lives at all.


Asked in a different way: why do states impose punishment? Why do some even impose the death penalty? Clearly, it is an answer to crime. But: whose answer? What predicates it? What is a crime if this should be the appropriate answer to it?

Punishment is by no means the counter-defense of a people materially harmed in a dispute, but the act of violence of an indifferent higher subject. With punishment, this “highest power” wants to harm anybody who has violated the rules – which it has decreed and has always directly armed with threats against violations. The definition of a crime is already complete with it: the “knowledge” which a punishment is based on concerns only the question whether an act corresponds to the circumscribed elements of a crime; it has nothing to do with the question why something has been done; such questions only come afterwards, to give a “human” and individual note to the measure of punishment.

The circumstance that many – although by no means most – inflictions of damage are criminalized easily leads one’s fellow citizens to the politically intended misunderstanding that state punishment has the aim of protecting people. Furthermore, punishment neither exists nor is suitable for preventing “encroachments” by the citizens against each other – here the penal system could announce its outright bankruptcy as a gigantic historic failure; but, in truth, prohibitions always assume that what is prohibited is a social custom! And reparations are also not its concern. The punishment brings into line solely the sovereignty of the violated rule: in the punishment, it acquires back for itself the respect which the lawbreaker has refused to it by violating it.

The perfectly designed term of imprisonment for this has become naturalized in our Christian West. This content of a punishment is to be taken literally: the will which has not kept itself within the law is to be contained by means of external barriers; it is to be hindered in the pursuit of its purposes because they conflict with those prescribed. Punishment is essential “because” of this; whether the “so that” results – so that the offender behaves better in the future – is a logically and legally secondary consideration, and indeed in view of prisons a ridiculously idealistic one. The consequence of the sovereign punishment is completely seriously made equivalent to the breaking of the criminal's will, to take freedom away from him for life or to destroy him. The latter functions, because the person is just made that way, to eradicate the creature who has wronged so deliberately.

Whether a punitive state power should go this far is frequently decided in public debate according to the degree of political sympathy with which the aforementioned power may assert its claims. With regard to Germany, one holds the renunciation of the death penalty long overdue because our state concedes in the long run generally no legitimacy to this. With regard to the USA, reservations become asserted of the sort that the sensitive viewer can see no blood at the scene.


From the penal claims of the state follows the general popularity of criminal questions among its citizens. And not because one may there do in thought – eventually someday! – what the state prohibits all private individuals from doing in everyday practice: exercise unbridled revenge. It is the other way around: only the constitutional state with its supreme impersonal punishment system absolutely obtains the ideal of revenge, so that private individuals who gladly think state thoughts (see point 1) adopt this ideal in their worldview, indeed dilettantishly, but with engagement. The result is called “sense of justice” or “feeling for right and wrong” and differs from the real justice system not least in the fact that the rigid standards of the real punishment system, which restore the decreed and violated laws, slips all too easily out of control of the amateurs.

This is due to the fact that the public tests this abstract purpose of punishment by happily translating it into their private emotional life. Under expert journalistic instruction, one portrays to oneself the criminal who is intended for punishment as a gruesome unsympathetic person who one would not like to meet even in daylight, but who could be restrained by a particularly choice punishment. It reaches the absurdity that people do not possibly demand revenge on those figures who have inflicted damage on them, but vice versa, visit by press or even in the courtroom criminals with whom they have nothing at all to do, but to whom they sincerely grant a punishment: they look or go to attain the human view that it also happens to them appropriately.

This popular mania for justice is on its part the solid ground for the morality of moderation which humanizes the revenge thoughts in another direction: it should be about “helping reintegrate” and similar nonsense – precisely where the state power applies extensive provisions to make the malefactor’s life unpleasant and with the execution of a sentence complicates, if it does not make thoroughly impossible, a future bourgeois life. The debate plays out between these two antitheses, whether certain crimes are not best corrected through whatever type of warm-hearted misunderstanding of the institution of state legal punishment, or on the contrary through striking them dead.

One should not participate in it – also not with good reasons for “more clemency.”

They are never far away from such interesting considerations as “lethal injection or electric chair.”


There is, in addition, another irony in the story. Nowadays, a fan of the revenge and punishment idea must already be a person with a fair amount of rage against the people who do – to him – injustice, so that he or she enters into the crime statistics. What psychologists and policemen – professionals as well as aficionados of this trade – call “criminal mindedness” is nothing other than private opinion emulating the legal system, according to all the rules which should apply, thus of having unjustly gotten a raw deal. Murders hardly happen without private individuals having positively answered the question of the death penalty for their own particular inter-personal relations and not wanting to wait with their offended legal feelings for the state after lengthy administration.

And because the social living conditions guaranteed by the constitutional state in any case continually ensure that the citizens get a raw deal, it is dead certain that criminal justice does not run out of material as long as it exists.

MSZ editorial staff