The Right Over Life and Death

The question is often asked how individuals, having no right to dispose of their own lives, can transfer to the Sovereign a right which they do not possess. The difficulty of answering this question seems to me to lie in its being wrongly stated. Every man has a right to risk his own life in order to preserve it. Has it ever, been said that a man who throws himself out of the window to escape from a fire is guilty of suicide? Has such a crime ever been laid to the charge of him who perishes in a storm because, when he went on board, he knew of the danger?

People often ask how individuals can give the Sovereign a right to end their lives. After all, individuals have no such right over their own lives. To me, the question seems hard to answer because it is framed incorrectly. Everyone has the right to risk their own life to save it. Has anyone ever called a man guilty of suicide for jumping out of a window to escape a fire? Has anyone ever accused a man of the same crime because he died in a storm at sea, knowing the danger when he boarded?

The social treaty has for its end the preservation of the contracting parties. He who wills the end wills the means also, and the means must involve some risks, and even some losses. He who wishes to preserve his life at others expense should also, when it is necessary, be ready to give it up for their sake. Furthermore, the citizen is no longer the judge of the dangers to which the law desires him to expose himself; and when the prince says to him: "It is expedient for the State that you should die," he ought to die, because it is only on that condition that he has been living in security up to the present, and because his life is no longer a mere bounty of nature, but a gift made conditionally by the State.

The social contract aims to preserve the lives of those who enter into it. Whoever wants that goal also wants the means to achieve it. And those means must involve some risks and even some losses. Anyone who wants to stay alive at others’ expense must also be ready, when necessary, to die for them. Furthermore, citizens no longer have the right to judge the dangers the law requires them to face. When the prince tells a citizen, "The State’s interests require you to die," the citizen ought to die. For only on that condition has the citizen lived in safety until now. And the citizen’s life is no longer simply a gift of nature, but a conditional gift from the State.

The death-penalty inflicted upon criminals may be looked on in much the same light: it is in order that we may not fall victims to an assassin that we consent to die if we ourselves turn assassins. In this treaty, so far from disposing of our own lives, we think only of securing them, and it is not to be assumed that any of the parties then expects to get hanged.

The death penalty for criminals may be seen in much the same way. To avoid becoming victims of murder, we agree to die if we become murderers ourselves. In making this agreement, we are not giving up our lives but thinking only of protecting them. And we should not assume that anyone entering the agreement expects to be hanged.

Again, every malefactor, by attacking social rights, becomes on forfeit a rebel and a traitor to his country; by violating its laws he ceases to be a member of it; he even makes war upon it. In such a case the preservation of the State is inconsistent with his own, and one or the other must perish; in putting the guilty to death, we slay not so much the citizen as an enemy. The trial and the judgment are the proofs that he has broken the social treaty, and is in consequence no longer a member of the State. Since, then, he has recognised himself to be such by living there, he must be removed by exile as a violator of the compact, or by death as a public enemy; for such an enemy is not a moral person, but merely a man; and in such a case the right of war is to kill the vanquished.

Again, every criminal who attacks society’s rights thereby becomes a rebel and a traitor to his country. By breaking its laws, he ceases to be a member of the country. He even wages war against it. In such a case, the State’s survival is incompatible with his own, and one or the other must perish. When we execute the guilty person, we kill not so much a citizen as an enemy. The trial and judgment prove that he has broken the social contract and therefore no longer belongs to the State. By living there, he has acknowledged himself as a member of the State. He must therefore be removed, either through exile for breaking the contract or through death as a public enemy. For such an enemy is not a collective entity, but simply an individual. And in such a case, the right of war is the right to kill the defeated.

But, it will be said, the condemnation of a criminal is a particular act. I admit it: but such condemnation is not a function of the Sovereign; it is a right the Sovereign can confer without being able itself to exert it. All my ideas are consistent, but I cannot expound them all at once.

But some will object that condemning a criminal is an act concerning a particular person. I admit that. But condemning a criminal is not a function of the Sovereign. The Sovereign can grant the right to condemn criminals, but cannot exercise that right itself. All my ideas are consistent, but I cannot explain them all at once.

We may add that frequent punishments are always a sign of weakness or remissness on the part of the government. There is not a single ill-doer who could not be turned to some good. The State has no right to put to death, even for the sake of making an example, any one whom it can leave alive without danger.

We may also add that frequent punishments always show weakness or neglect by the government. Every wrongdoer could be put to some good use. The State has no right to execute anyone who can safely be kept alive, even to set an example.

The right of pardoning or exempting the guilty from a penalty imposed by the law and pronounced by the judge belongs only to the authority which is superior to both judge and law, i.e. the Sovereign; even its right in this matter is far from clear, and the cases for exercising it are extremely rare. In a well-governed State, there are few punishments, not because there are many pardons, but because criminals are rare; it is when a State is in decay that the multitude of crimes is a guarantee of impunity. Under the Roman Republic, neither the Senate nor the Consuls ever attempted to pardon; even the people never did so, though it sometimes revoked its own decision. Frequent pardons mean that crime will soon need them no longer, and no-one can help seeing whither that leads. But I feel my heart protesting and restraining my pen; let us leave these questions to the just man who has never offended, and would himself stand in no need of pardon.

Only the authority above both judge and law can pardon the guilty, that is, the Sovereign. A pardon frees the guilty from a penalty imposed by law and handed down by a judge. Even the Sovereign’s right to grant pardons is far from clear, and cases that justify pardons are extremely rare. In a well-governed State, there are few punishments, not because pardons are common, but because criminals are rare. When a State is in decline, the sheer number of crimes guarantees that criminals go unpunished. Under the Roman Republic, neither the Senate nor the Consuls ever tried to grant pardons. Even the people never granted pardons, though they sometimes reversed their own decisions. Frequent pardons mean that crime will soon no longer need pardoning, and everyone can see where that leads. But I feel my heart protesting and holding back my pen. Let us leave these questions to the just man who has never done wrong and would need no pardon himself.