The Death Penalty:
Australian Legal Institutions vs the Bahá'í Faith?

by Roger Le Lievre

published in 75 Years of the Bahá'í Faith in Australasia
Rosebery: Association for Bahá'í Studies Australia, 1996

During an escape from Pentridge Gaol on Sunday 19 December 1965, Ronald Ryan aimed a rifle at Warder George Hodson to prevent him from seizing his accomplice. Hodson fell, hit by a bullet which pierced his chest. He died within minutes. Ryan was convicted of murder and sentenced to death. On Friday 3, February 1967 Ryan was hanged, becoming the last person to face the gallows in Australia. Seven years after Ryan's execution, Victoria joined the other Australian states in abolishing capital punishment, making Australia a completely abolitionist country. Australian institutions made this decision because there was no evidence to suggest that the death penalty acted as a unique deterrent in lowering capital offence crime rates and because it was seen as morally abhorrent for a civilised society to kill - in fact an abuse of the fundamental "right to life".

Guidance by both The Master and Bahá'u'lláh directs us to the opposite conclusion. That is, to sanction the death penalty. Abdul Baha in Some Answered Questions supports the right of the community to enact retributory punishments on the grounds that such punishments warn and prevent so that others dare not commit such crimes. Bahá'u'lláh specifically states in the Kitáb-i Aqdas "should anyone deliberately take another's life, him also shall ye put to death". For good reason however many of the laws and opinions exhorted by Bahá'u'lláh in the Kitáb-i Aqdas are not to be implemented for many years. This paper argues that sanction of the death penalty by Bahá'u'lláh is a very limited sanction to be carried out under the narrow confines of a fully functional Bahá'í legal system. Only under such a system can the severest of all penalties, the death penalty, be effective in lowering crime rates and the possibility of the penalty being used as a tool of repression be removed.

Recently I completed a masters thesis on Islam and the death penalty. The theoretical basis of the thesis was derived from a book called Law and Society in Transition by Philippe Nonet and Philip Selznick.[1] Nonet and Selznick theorise law as being in developmental stages moving from repressive through autonomous to responsive. Such a theory on systems of law helps us understand why Bahá'í sanction of the death penalty should be limited to the very narrow confines of a fully functional Bahá'í legal system. Autonomous systems such as the Australian legal systems are directed at curtailing repression and therefore they rely to a much lesser extent on producing substantive Justice than a more developed responsive legal system. Retributivism, which is an element of substantive Justice, is not part of the focus of an autonomous system and consequently the death penalty has little utilitarian benefit in the Australian system. Conversely in responsive systems such as the Bahá'í system, legitimacy is a function of the extent to which they produce substantive Justice. Retributivism is a necessary element of the system and the exercise of retributive punishments will, I predict, have a substantially positive utilitarian benefit.

According to Nonet and Selznick, history would suggest that the legal system which exists during the formative stages of political society naturally tends to be repressive. They state that nation building is ultimately a transformation of loyalties and consciousness, but in its beginnings it is a function of the working of emerging elites who have little to draw on beyond force and fraud. Because of this "poverty of power" the sovereign of the repressive state utilises the power of repression, not out of malign intent but because they may see no other way to fulfil their responsibility in providing general security. Law in such a state is subordinated to power politics and the legislative is also the judiciary, a situation which facilitates unchecked power.

As a result of the need to limit powers of the repressive regime and vindicate individual rights, Nonet and Selznick theorise that autonomous legal systems are developed. This is achieved by separating the powers of the judiciary, legislative and executive branches within government. The specialised, relatively autonomous legal institutions that develop, put in place strict sets of almost mechanical procedures that strive towards regularity and procedural fairness. The legal system becomes highly critical of the government as the commitment to procedural regularity puts the courts in the business of defining opportunities for the assertion of claims. Advocacy, which encourages self-assertion and a searching criticism of the authority, is elevated to a level equal to adjudication. The result is a system which progressively advances the rights of individuals with only incidental attention to institutional outcomes.

Australian legal institutions are a good example of Nonet and Selznick's autonomous law. This system is often referred to as the "rule of law", where the legal institutions have acquired enough independent authority to impose standards of restraint on the exercise of government power. Rules are elaborate and require specialised groups, such as lawyers and judges. Judges' discretion is limited within a set of procedures and rules with apparent mechanical application. The integrity of decisions are linked to sets of rules and doctrines which ensure fairness, limit access to courts, enforce strict criteria of legal relevance and keep legal reasoning abstract and neutral, unaffected by substantive outcomes. Each of the strategies reduces the risk that courts might impinge upon the political process; each makes the law remote, expensive, chancy, and opaque.

The third stage in the evolution of legal systems, response law, develops as a result of the dynamic of change that advocacy is able to develop within the system. Responsive law resolves the tension of excessive openness in repressive law (which leads to an abuse of power) and the obsession with integrity in autonomous law (which leads to excessive rigidity), by adopting a clear, defined purpose. Through the overriding power of purpose, standards are set for criticising established practices, and when taken seriously avoids indiscriminate openness. Responsive law addresses the problem of making purpose effective in guiding institutions by re-merging the judiciary with the legislative. Whereas autonomous law obtains its legitimacy through procedural fairness, responsive law obtains its legitimacy through substantive justice. Justice however sometimes requires retribution and in some cases the death penalty. A system which obtains its legitimacy through procedural fairness can obtain no possible benefit by imposing the death penalty.

Although little is known about how the Bahá'í faith will process criminal matters in the future some broad features help identify the system as conforming to Nonet and Selznick's responsive law. The Bahá'í system will be theocratic; there will be no separation of powers between legislative and executive yet there are enough checks and balances to be able to achieve this without losing the ability to moderate the role of power in society and regress to repression. The checks and balances include the fact that no person has power as an individual, there is no electioneering (which eliminates pressure for political favouritism) and those in power are elected on the basis of their spiritual as well as personal characteristics. Future Bahá'í institutions will act in a dual capacity: as political actors assuming responsibility for deciding what ends are to be pursued and with what resources; and as legal actors, to establish the agencies and mechanisms by which public ends will be furthered. Through the guidance of purpose, ie., fulfilling the dictates of Bahá'u'lláh, administrative discretion will be controlled and integrity and openness will be combined.

Many abolitionists may accept the different modalities of law, however at the core of the most coherent abolitionist argument, (which I believe is that of Amnesty International), is an unequivocal rejection of the concept of retributivism. Retributivism is the belief that the guilty deserve to suffer an evil equal or proportionate to the one they themselves have inflicted.[2] Amnesty's response to the retributive argument in "When the State Kills"[3] is two fold. Firstly; "If a person who commits a terrible act 'deserves' the cruelty of death, why cannot others, for similar reasons 'deserve' to be tortured or imprisoned without trial or simply shot on sight? Central to fundamental human rights is that they are inalienable". Secondly, Amnesty states that "What the argument for retribution boils down to is often no more than a desire for vengeance masked as a principle of justice". They state that today's societies understand that they must be built on a different set of values from those they condemn and for this reason an arsonist's home should not be burned to the ground and those who commit an act of aggravated murder should not be killed.

Philosopher Tom Sorrel[4] believes that retributivism is a position that assumes that the past suffering of victims of crime can be counterbalanced by things done in the present, even if the punishment provides no utility to the members of the society. The reason for the position is that such a debt is not to society, but to the victim of the crime. The 19th century philosopher Kant states in The Metaphysics of Morals that if a wrongdoer has committed murder, "he must die. In this case, there is no substitute that will satisfy the requirements of legal justice. For there is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is no equality between the crime and the retribution unless the criminal is judicially condemned and put to death".

The principle of equality of crime and punishment is central to Kant's retributive argument. Sorrel points out that such a principle assumes that life itself, whatever its quality, is a good, and that the harm of murder consists at least of the loss of this good to the victim. The good described by Kant consists of satisfaction of desires and happiness, that death does not provide. Kant also states that, where it does not apply automatically, the death sentence ought to be pronounced in proportion to the inner malice of the offender. Thus, such a position assumes that there are different types of murders and that the crime involving the capture of victims, sexual abuse and a slowly agonising tortured death is a different level of murder to that of an abused wife who calmly murders her husband, and this difference should be reflected in the punishment.

Amnesty's view that the death penalty is a violation of human rights, equal if not worse than other human rights abuses such as torture and an absence of a fair trial. This view is debated by Kant, who sees it merely as the deprivation of life, similar to the way in which a fine is the deprivation of a sum of money. Kant states specifically in The Metaphysics of Morals that "the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering". In addition it is acknowledged that a death sentence's legitimacy depends upon its ability to ensure that the risk of arbitrariness, capriciousness, discrimination, unfairness, factual error, and moral error do not materialise, a requirement responsive law is able to satisfy.

In response to Amnesty's interpretation of the word retribution, equating it with vengeance, Sorell points out that there are important differences between desire for vengeance and the belief in retribution. It is not possible to want revenge for the murder of someone whom one was indifferent to, or in fact wanted to see dead oneself. Revenge however is a function of some supposed injury to oneself or to someone who is cared about. Without the appropriate sympathies the concept of revenge becomes inapplicable. Another consideration is that revenge has no limits and is still revenge when the act is harsher than the offence. Retribution on the other hand is tied to sameness or equivalence of punishment.

Abdul Baha states that there are two sorts of retributory punishments. One is vengeance, the other, chastisement. Man has not the right to take vengeance, but the community has the right to punish the criminal; and this punishment is intended to warn and to prevent so that no other person will dare to commit a like crime. The community has no ill-will and rancour in the infliction of punishment, and it does not desire to appease the anger of the heart; its purpose is by punishment to protect others so that no atrocious actions may be committed.

As previously stated the virtue of Australia's autonomous system lies in its ability to overcome repression, by separating the legislative and the judiciary. The system obtains its legitimacy through procedural fairness. Substantive justice is a derivative, a hoped-for by-product of impeccable method. It makes little difference to the outcome of the autonomous system whether it serves the wealthy and the specially trained or whether it sufficiently chastises those who transgress the law, as this is not a central feature of the system. This is reflected in the statistics which indicate that imposing or abolishing the death penalty in Australia has little utilitarian benefit. Utilitarianism is the doctrine that actions are right because they are useful and that the greatest happiness of the greatest number of people should be the guiding principle of conduct.[5] Under this doctrine punishment is judged purely on its ability to deter crime and thus to provide security.

In a study published in January/February 1992,[6] John Walker analysed the number of homicide charges at lower courts in various states before and after abolition of capital punishment. He found that Queensland, which abolished capital punishment in 1922 when national homicide rates appear to have been falling, experienced generally lower rates of charges for murder after abolition. In contrast, New South Wales, Western and Southern Australia, which all abolished hanging when homicide rates were increasing nationally, experienced generally higher trends post-abolition. In all jurisdictions, however, there were significant peaks and troughs in data, both during and after the use of capital punishment. These results suggest, again, that the rates of capital crimes in these jurisdictions were not affected one way or the other by the use, existence or otherwise of capital punishment. These figures are consistent with other countries with autonomous legal systems, whose various states have gone through periods of abolition. Clearly punishment on its own does not affect a person's decision on whether or not to commit a capital offence.

It is indeed impossible to prove that Bahá'í law would lower capital offences and produce greater social order in the absence of its existence. The closest equivalent to Bahá'í law is Sharia or Islamic law. In fact Bahá'ís believe that Bahá'í law is the evolution of the Sharia, bringing it up to date and making it relevant to the modern period. The only possible insight we may be able to glean from the experience of current legal systems would come from those countries which have implemented the Sharia. Of the Islamic countries in the world only three can credibly claim to have implemented Sharia within their legal codes - Saudi Arabia, Iran and the Sudan. Although there is no evidence to indicate that Iran or the Sudan have been able to lower homicide rates, statistics indicate that Saudi Arabia has rates ten times lower than regional averages. The number of annual murders in Saudi Arabia per 100,000 in the 1970's was .4818 compared to the average rates of Syria, Sudan, Egypt, Iraq, Lebanon and Kuwait which was 5.025.

Mark Jones argued in 1992[7] that Islamic law in Saudi Arabia, though far from ideal, comes closer to the responsive model than many Westerners would initially presume. Jones selects the criteria of ends to law, legitimacy, discretion, and politics as aspects which correspond to responsive law. The end of law in Saudi society is not to maintain order merely to keep the royal family in power, but to insure that justice is handed down in an equitable and competent manner in accordance with Islamic principles. For Wahabi muslims who believe in the Quranic principles, Saudi justice is legitimate. For such people the Saudi system reconciles excessive openness and excessive integrity by passing sentences which accord with Islamic principles. Discretion is held accountable to Quranic principles even though appeals are limited and lastly both political aspirations and legal principles are subjected to Quranic principles. Jones indicates that Saudi justice falls short of the responsive model on the criteria of reasoning and morality. In Saudi Arabia rigidity in reasoning has made the law vulnerable to formalism and legalism. Finally morality in Saudi Arabia is characterised by legal moralism, a characteristic of repressive law.

Saudi law, though far from ideal, approaches responsive law, and the adoption of the death penalty within Saudi Arabia has resulted in significantly lower crime rates. This is also closely tied to homogeneity of belief in Saudi Arabia. Islamic scholars assist by educating society on the Koranic teachings against homicide and by carrying out the Koranic punishment of death to those who murder, helping the majority of Saudi citizens to accept the system as just. In the Sudan the implementation of Sharia has exacerbated a long running civil war which has resulted in a country characterised by famine, disease and economic paralysis. Clearly the non-Muslim half of the country are not prepared to see an Islamic court as Just or Islamic punishments as Just.

Abdul Baha argues in Some Answered Questions that the purpose of punishment is to benefit society. This paper has argued that the retributive argument can be justified in terms of equality of crime and punishment and is not as Amnesty International suggests a desire for vengeance but rather a principle of Justice. It leads on to say that the implementation of Justice within a responsive legal system can as Abdul Baha states "warn and prevent so that others dare not commit such crimes". The argument that capital punishment only has utilitarian benefit in a responsive legal system means that under autonomous systems, such as Australia's, the death penalty will have no benefit to society. Extrapolating from Abdul Baha's statements on punishment, I argue that there is no reason to assume that Bahá'ís would support the death penalty in Australia as we operate under an autonomous system and that only under the strictest application of Bahá'í law, in a country with an overwhelming majority of Bahá'ís or people who see Bahá'í law as Just, would the death penalty have a positive benefit on society and therefore be sanctioned by the Bahá'í Faith.

Bibliography

Notes