No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 25 February 2009
The House of Lords debate of July last on the Death Penalty Abolition Bill1 may prove to have been a landmark in British constitutional and legal history; certainly it was of the greatest interest as a specimen of current moral thinking and moral conflicts on the death penalty; and it is in this latter light that I shall discuss it here. Socialists and radicals might of course complain that a predominantly Conservative House of Lords could not be representative of current thinking; and they might contrast the voting for the second reading of Mr. Silverman's Bill in the Lords—Contents 95, Non-contents 238—with the votes that had previously been recorded in the Commons.
1 All references to this debate are to Hansard, Vol. 198, Nos. 114–115, 9th–10th July, 1956.
2 In an important speech in which he urged his fellow peers not to give too much attention to what his fellow judges might say regarding the death penalty, Lord Keith of Avonholm remarked: “Might I add that I do not regard this as a legal issue at all…. The question is primarily a social question.” No. 114, pp. 644–5.
page 134 note 1 A terminological point: Why “Tolstoyan” rather than “Christian pacificist” or simply “Christian”? As to the latter, my answer is that no single, consistent, currently acceptable account of Christian teaching relevant to the subject of capital punishment can be established. (No part of the House of Lords debate was less edifying than when opposing speakers took to bandying Bible texts—at about the intellectual level of a fourth form debate in a school staffed by uneducated masters.) As to the former, I have three reasons for preferring the term Tolstoyan. (1) Tolstoy, probably the most influential pacificist moralist of the last hundred years, based his doctrine largely, to be sure, on his own interpretations of the Gospels, but also on at least one non-Christian source, viz. Lao-Tsu. (2) Tolstoy's influence has, particularly through the teaching of Gandhi and his disciples, been greater in non-Christian than in Christian countries. (3) The fact that Tolstoy was equally eminent as a novelist and as an “active advocate” indicates an important feature of the Tolstoyan standpoint; viz. the sense of “continuous humanity” on which it ultimately rests is something which the great novelists from Scott and Dickens, through the Russians, to Robert Musil, have illuminated far more effectively than even the ablest preachers or psychologists or penal reformers have succeeded in doing.
page 135 note 1 A characteristic statement, indicating an attitude that is logically exactly parallel to, although practically in direct opposition to, the Draconian stand-point, may be quoted from Tolstoy's writings:
“I understand that under the influence of momentary irritation, hatred, revenge, or loss of consciousness of his humanity, a man may kill another in his own defence or in defence of a friend; or that under the influence of patriotic mass-hypnotism and while exposing himself to death he may take part in collective murder in war. But that men in full control of their human attributes can quietly and deliberately admit the necessity of killing a fellow man, and can oblige others to perform that action so contrary to human nature, I never can understand. Nor did I understand it then when I was living my limited egotistical life in 1866, and so, strange as it may have been, I undertook the man's defence with some hope of success.” (From a letter of Tolstoy's, written in 1908 to his biographer Birukov. Reprinted in the World's Classics Edition “Essays and Recollections,” p. 59.)
page 137 note 1 It is remarkable that among the more persuasive and informed speakers only the two Archbishops, both of whom voted for a second reading of the Silverman Bill, clearly affirmed that the primary purpose of all punishment is retribution. The Lord Chancellor cited with approval the Archbishop of Canterbury's evidence on this point to the Royal Commission; but thereafter based his case on the allegedly unique deterrent effect of the death penalty.
page 138 note 1 Two impressive speeches, of predominantly Public Utilitarian character may be cited to show how strong is the influence of “Tolstoyan” ideas on even the coolest heads. From the Bishop of Manchester's carefully argued Abolitionist speech I cite: “It is unnatural, it seems to me, to ask a man in cold blood to kill one of his fellows, no matter how deserving of death that man or woman may be” (No. 115, p. 717). And from Lord Salisbury's closing (Retentionist) speech for the government: “…the taking of life by the community is a terrible decision. Therefore I should not feel justified in supporting capital punishment merely on the grounds that the murderer was not fit to live.”
As examples of the influence of “Spinozist” ideas in quarters where one might not expect them, I would refer to the speeches of the Bishops of Exeter and Chichester (No. 114, p. 627 and No. 115, p. 692) and of the Archbishop of Canterbury (No. 115, p. 748), who combined his defence of the primarily retributionist character of all punishment, including capital punishment, with the admission that “the present system … is too clumsy to continue as it is in an age where scientific accuracy is a primary requirement.”
The nearest approach to “pure Tolstoyan” speeches were those of Lord Wise and Lord Darwen: to “pure Spinozism” the speeches of Lord Raglan and the Earl of Haddington.
page 140 note 1 It might perhaps be thought that Tolstoyans can have little or no use for the idea of retribution; but of one—and in many people a highly efficacious—form of retribution Tolstoyans cannot have too much, viz. lifelong remorse, fortifying the resolve never to repeat certain grave wrongs or crimes.
page 142 note 1 See, e.g., the speech of Lord Waverley, No. 115, p. 758, in particular paragraph 4.
page 142 note 2 See the speeches of, e.g., Lords Webb-Johnson (No. 114, p. 622), Teviot (No. 115, p. 769) and Teynham (No. 115, p. 769).
page 143 note 1 Particularly effective speeches on this score were made by Lord Brabazon of Tara, No. 114, p. 606, and Lord Astor, No. 115, p. 701
page 143 note 2 No. 114. p. 586.
page 143 note 3 Ibid.
page 143 note 4 No. 115, p. 702.
page 143 note 5 No. 115, p. 757.
page 144 note 1 See, e.g., Lord Webb-Johnson (No. 114, p. 625, paragraph 2).
page 144 note 2 See, e.g., Earl of Winterton as cited below.
page 144 note 3 See, e.g., Lord Tweedsmuir (No. 114, p. 673).
page 145 note 1 No. 115, p. 734.
page 145 note 2 E.g. Lord Templewood (No. 115, p. 709).
page 145 note 3 E.g. Lord Pethwick-Lawrence (No. 114, p. 593).
page 145 note 4 The nearest approach to a statement of this thesis in the debate came from Lord Craigmyle, No. 114, p. 768.
Crime can be regarded as a social failure only on the view that effective moral standards are in the first instance social and have to be “internalized” in individuals through appropriate social pressures and appeals. When these fail, crime is likely to result. This way of thinking—whose theoretical foundations we owe to the nearly simultaneous and quite independent discoveries of Freud, Durkheim, G. H. Mead and Hagerstrom—is now largely accepted by social workers, though quite clearly not by most judges and most Conservative women.
page 146 note 1 E.g. by Lord Craigmyle (No. 115, p. 766) and by Lord Russell of Liverpool (No. 114, p. 670).