Abstract
Most readers believe that it is difficult, verging on the impossible, to extract concrete prescriptions from the ethics of Emmanuel Levinas. Although this view is largely correct, Levinas’ philosophy can, with some assistance, generate specific duties on the part of legal actors. In this paper, I argue that the fundamental premises of Levinas’ theory of justice can be used to construct a prohibition against capital punishment. After analyzing Levinas’ concepts of justice, responsibility, and interruption, I turn toward his scattered remarks on legal institutions, arguing that they enable a sense of interruption specific to the legal domain. It is here that we find the conceptual resources most important to my Levinasian abolition. I argue that the interruption of legal justice by responsibility implies what I call the “principle of revisability.” The principle of revisability states a necessary condition of just legal institutions: To be just, legal institutions must ensure the possibility of revising any and all of their rules, principles, and judgments. From this, the argument against capital punishment easily follows. Execution is a legal act, perhaps the only legal act, that cannot be undone. An application of the principle of revisability to this fact leads to the conclusion that legal institutions cannot justly impose capital punishment. After defending these points at length, I conclude with some observations on the consequences of the principle of revisability for law more generally.
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Notes
Ethics and Infinity, tr. Philippe Nemo (Pittsburgh: Duquesne UP, 1985); hereafter cited as EI. Other abbreviations are as follows: Is It Righteous to Be?: Interviews with Emmanuel Levinas, ed. Jill Robbins (Stanford: Stanford UP, 2001) [IRB]; Otherwise than Being, or Beyond Essence, tr. Alphonso Lingis (The Hague: Martinus Nijhoff, 1980), 101 [OBBE]; Autrement qu’être ou au-dela de l’essence (Paris: Librairie Générale Française, 1996) [AE]; Totality and Infinity: An Essay on Exteriority, tr. Alphonso Lingis (Pittsburgh: Duquesne UP, 1969) [TI]; Totalité et infini: essai sur l’exteriorité (Paris: Librairie Générale Française, 1996) [TeI]; God, Death, and Time, tr. Bettina Bergo (Stanford, Stanford UP, 2000) [GDT]; Dieu, la mort et le temps (Paris: Bernard Grasset, 1995) [DMT]; “The Paradox of Morality” in The Provocation of Levinas, eds. Robert Bernasconi and David Wood (New York: Routledge, 1988) [PM]; “The Rights of Man and the Rights of the Other” in Outside the Subject, tr. Michael B. Smith (Stanford: Stanford UP, 1994) [RMRO]; “The Rights of Man and Good Will” in Entre Nous, tr. Michael B. Smith and Barbara Harshav (New York: Columbia UP, 1998) [RMGW]; “Ideology and Idealism,” in Of God Who Comes to Mind, trans. Bettina Bergo (Stanford: Stanford UP, 1998) [II]; Difficult Freedom, tr. Sean Hand (Baltimore: Johns Hopkins UP, 1990) [DF]; “Freedom and Command” in Collected Philosophical Papers (Dordrecht: Kluwer, 1987) [FC]; “Sociality and Money,” tr. François Bouchetoux and Cambell Jones (Business Ethics: A European Review 16.3. 2007) [SM]. Citations to the original interviews will appear in footnotes.
For more on this strand of Levinas scholarship, see Perpich (2008, pp. 1–12). Perpich herself makes what I consider to be the best defense of this interpretation of Levinas, and I agree with most aspects of her argument (2008, pp. 124–149).
Levinas himself was skeptical of the idea that his work might have consequences for political or legal philosophy. When questioned about the relation of his philosophy to political concerns, he responded “How do you expect me to move from the absolute splendors of hesed, of charity, to an analysis of the state procedures at work in our democracies?” (IRB 195). But some of Levinas’ readers join me in disagreeing with Levinas’ evaluation. Those who argue that Levinas’ philosophy has political implications include Burggraeve (2002), Caygill (2002), Critchley (1992), Critchley (2007), Perpich (2008). Critchley and Perpich defend very general implications. Caygill and Burggraeve derive more concrete ones, especially with respect to the extension and protection of human rights, but not in the detailed fashion pursued here.
“The suppression of the death penalty seems to me an essential thing for the coexistence of charity with justice” (IRB 51). “The death penalty no longer belongs to [the categories of] justice?” (IRB 207). See also PM 175, where Levinas says that the abolition of the death penalty is a sign of democracy and the search for a “better justice.” (All of these interviews were conducted after France abolished capital punishment.) In his religious writings Levinas says that “justice without passion is not the only thing man must possess. He must also have justice without killing” (DF 147).
I want to thank an anonymous reviewer for reminding me that Levinas quite frequently uses “tuer” instead of “muertre.” .
See also Atterton (2009).
In the lectures contained in God, Death, and Time, Levinas characterizes responsibility as a responsibility for the other’s death. This may look like a ground for a related type of abolitionist argument, but it is not. Although we are responsible for the other’s death, this does automatically generate a prohibition against capital punishment, at least insofar as we must be just as well as responsible. For example, if the death penalty deters murder, our responsibility for the others’ deaths might require us to endorse capital punishment.
This claim is scattered throughout the interviews contained in Is it Righteous to Be? One finds a more concrete discussion of this necessity in Levinas’ “Ethics and Politics,” (Hand 1989).
The way that Levinas describes conscience and the emphasis on the necessity of critique recalls Totality and Infinity’s discussion of conscience (TI 100–101), although that discussion remains on a purely moral plane.
Rawls ventures in this direction when he posits the existence of a “natural duty of justice” that “constrains us to further just institutions not yet established,” (Rawls 1999, p. 99); presumably this duty requires us to “reform” institutions if they are unjust, (Rawls 1999, p. 3). But the suggestion is too brief to be conclusive.
To describe the relation of responsibility and justice, Levinas often uses temporal metaphors such as “responsibility is prior to justice.” What Levinas means to express in these passages is an axiological priority. For more on this point, see Bernasconi (1999, p. 80).
Levinas does not make this distinction, but “responsibility” is different from “a responsibility” in the same way that “obligation” or “obligatoriness” is different from “an obligation.” The first term in the two pairs refers to the way that actions are made necessary, the second refers to the necessary act. “My responsibility” can refer to either, and is therefore ambiguous.
I recognize that this quasi-Kantian interpretation of Levinas is an unusual one, but nothing in the argument of the paper depends on it.
The passage in French can be found in Poirié (1996, p. 119).
The essays are “The Rights of Man and the Rights of the Other” and “The Rights of Man and Good Will.” The most important interviews for our purposes are contained in Is It Righteous to Be?: Interviews with Emmanuel Levinas.
Roger Burggraeve’s underappreciated book addresses this point in a sensitive fashion (2002).
By necessity, I will concentrate on interruptions in criminal law, but some of what I have to say would apply to civil law as well.
Poirié (1996, p. 143).
In these discussions, Levinas also uses the word “mercy” [miséricorde] and occasionally the conjunction “mercy and charity” (RMGW 157). It is somewhat surprising to find Levinas using either of these words. While “mercy” has become at least partially separated from its religious roots and can be used to name a legal virtue, neither “charité” nor “miséricorde” carries the same neutral sense. Indeed, they have a profoundly Thomistic resonance. Levinas recognizes the Christian inflection (IRB 69), but does not mention Aquinas. The oversight is unfortunate, because conjoining the two terms in their Thomistic sense actually serves Levinas’ purposes. For Aquinas, charity is the highest virtue; it is the love of the good, both in God and in human beings (Summa Theologica II-II.23). We act charitably when we love others as creatures of God, and treat them as creatures of God. Mercy, on the other hand is a virtue that comes into play when we are confronted with the suffering of others (II-II.30). We act mercifully when we empathize with others’ suffering, and attempt to ameliorate that suffering. So the conjunction “charity and mercy” is quite appropriate, insofar as the other is figured as the suffering other, but also as height. The other is both leper and God. That point aside, Levinas seems to use charity and mercy interchangeably, as can be seen when he discusses the role of hesed in biblical thought (IRB 69).
Levinas seems to endorse a roughly retributive justification of punishment in his cryptic “An Eye for an Eye” (DF 146-48).
Even though this emphasis on judgment would sit uneasily with most legal theorists committed to Rule of Law values, Levinas’ point here does not stray too far from actual legal practice. Take executive clemency. Clemency refers to an executive act that postpones punishment (a reprieve), lessens the severity of a punishment (a commutation), or vacates punishment entirely (a pardon). Clemency attests to an interruption insofar as it occurs after justice has been done, and executives make clemency decisions merely by considering the wrongdoer’s individual case. In the practice of clemency, we also see something like an appeal to the groundlessness of responsibility: Constitutionally speaking, neither governors nor clemency boards are required to follow rule or precedent when making a decision. Clemency decisions are matters of pure discretion, as opposed to the guided discretion of, say, capital sentencing. (I take this terminology from George Rainbolt’s unpublished manuscript, “Mercy, Justice, and the Death Penalty.”) When an executive makes clemency decisions, she is allowed to grant clemency for any reason she chooses. The Supreme Court of Florida holds that “an executive may grant a pardon for good reasons or bad, or for any reason at all” (348 So. 2d 312 [1977]). The U.S. Court of Appeals for the Sixth Circuit holds that the executive “need give no reasons for granting it, or for denying it” (118 F. 3d 460 [1997], emphasis mine).
Louis Pojman and Jeffrey Reiman discuss this general problem at length, even though they disagree on its consequences for the death penalty debate (Pojman and Reiman 1998).
The difference between this and the more optimistic Enlightenment view it recalls is that Levinas does not think that a “happy end” to history is certain. He sees no guarantee that the world will not implode into fascism and totalitarianism.
This point reveals a more specific version of the “bad conscience of justice” described above. The necessity of revision means that legal actors can never pat themselves on the back. They can never rest satisfied with the current state of legal rules and procedures. Rather, legal actors must remain in a constant state of anxiety—anxiety that justice has not been done, that responsibilities have not been met. This disposition combats our tendency to think to ourselves that “we have tried hard enough and thus may take it that justice has been done” (Bator 1963, p. 453). (This citation is from an influential legal scholar, discussed below, who approves of this tendency, and thinks that we should embrace it.)
Mike Davis contests this assertion of the unrevisability or irrevocability of capital punishment (1984, p. 150). I attempt to defeat this argument in a work in progress titled “The Irrevocability of Capital Punishment.”.
I am indebted to Austin Sarat for this way of framing the matter.
Sarat (2002).
Solum (2004, p. 247).
Ibid.
Ibid., p. 185.
Bator (1963, p. 447).
Herrera v. Collins, 506 U.S. 390 (1993), p. 399. One cannot avoid tripping over consequentialist justifications of finality in Supreme Court opinions. See, for example, Smith v. Murray, 477 U.S. 527 (1986), p. 539; McCleskey v. Kemp, 481 U.S. 279 (1987), pp. 490–91; Mathews v. Eldridge, 424 U.S. 319 (1976), pp. 334–335; and Anderson v. City of Bessemer, 470 U.S. 564 (1985), pp. 574–75.
Rawls (1999, p. 207).
This is not to say that the principle of revisability would authorize any type of punishment other than execution. It might, for example, prohibit especially traumatic punishments such as torture. But it would prohibit torture only if one could argue that the trauma of torture cannot be undone. While such an argument might be made, it is not, to me, as clear-cut as the argument regarding execution.
Antiterrorism and Effective Death Penalty Act (1996). A writ of a habeas corpus is an order to bring an inmate to court so that it can be determined whether she is lawfully imprisoned. In the United States, habeas petitions are granted to determine whether a petitioner is being held in accordance with the Constitution. As such, habeas corpus is an immensely important check on state power.
For more on this point, see Pettys (2007).
Harris v. Hutchinson, 209 F.3d 325 (2000), p. 330.
As the Fourth Circuit Court of Appeals put it in the Harris case just cited: “Any invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes. To apply equity generously would loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation. We believe, therefore, that any resort to equity must be reserved for those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result” (Harris v. Hutchinson, 209 F.3d 325 [2000], p. 330).
339 F.3d 238 (2003).
Ibid., p. 248 ff.
Ibid., p. 257.
Ibid., p. 253.
Ibid., p. 251.
The Rouse Court seems to find it perfectly acceptable to refuse Rouse relief in order to teach him and other petitioners a lesson about deadlines. In all seriousness, the Court asserts that granting Rouse relief would be unfair to other petitioners who got their papers in on time (2003, p. 253).
A more recent example is the case of Troy Anthony Davis, convicted of murdering an off-duty police officer in Savannah, Georgia. Seven of the nine witnesses who testified against Davis at his trial have since recanted, and many of those witnesses have said they were coerced by police investigators. The Georgia State Supreme Court and the 11th Circuit Court have refused to consider this testimony, citing procedural rules contained in the Antiterrorism and Effective Death Penalty Act of 1996. For a detailed discussion, see the Amnesty International report: “‘Unconscionable and Unconstitutional’: Troy Davis Facing Fourth Execution Date in Two Year” (2009).
Some of Levinas’ remarks suggest that the economic system might be another place to look (SM).
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Antiterrorism and Effective Death Penalty Act. 1996.
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Yost, B.S. Responsibility and revision: a Levinasian argument for the abolition of capital punishment. Cont Philos Rev 44, 41–64 (2011). https://doi.org/10.1007/s11007-011-9167-8
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DOI: https://doi.org/10.1007/s11007-011-9167-8