[H-German]
Richard
J. Evans. Rituals of Retribution: Capital
Punishment in Germany 1600-1987. Oxford: Oxford
University Press, 1996. Pp. 1014. Cloth $65.00. ISBN
0-19-821968-7.published by H-German 6 February 1998
--------------------------------------------------------------------------------
IN Rituals of
Retribution, Richard J. Evans for the
second time brings to the scholarly community a big book
that seemingly addresses an arcane and narrow subject but
in reality throws a piercing light into many unlit
corners of German history. Just as Death in Hamburg
(1987) taught us much about urbanization, municipal
government, the history of medicine, public health, and
the history of technology -- thus transcending its
apparent focus on a single cholera epidemic in a
masterpiece of bricolage -- Rituals of Retribution offers
far more than a mere history of capital punishment in
Germany.
Evans uses capital punishment to trace the transition
of Germany from a society of estates to a class society
and through all the upheavals and regime changes of the
twentieth century. In so doing, he not only challenges
constructions of "German exceptionalism," but explores
the validity of three rival theories of death as
punishment: Michel Foucault (Discipline and
Punish), Norbert Elias (The Civilizing Process),
and Philippe Aries (The Hour of Our Death). Evans
constructs the theories as contending primacies of
discourse, culture, and experience, and social historians
will not be surprised to learn that he finds experience
to be the most persuasive explanation both for the
persistence and then the abolition of the death penalty
in Germany.
Evans places early modern capital punishment in its
context of an array of corporal punishments in a society
in which both religious concern for the soul and concepts
of honor dominated people's thinking and the public
discourse. Executions were public, brutal, and calibrated
to convey community notions of honor and dishonor.
"Honorable" executions were conducted by the sword,
whereas breaking with the wheel (and lesser corporal
punishments such as cropping and branding) aimed at
heaping obloquy and infamy upon the offender. Yet the
larger public ceremony at the ravenstone sacralized the
institution of capital punishment, supporting the secular
sovereign through the ultimate sovereignty of God, who
could redeem even the basest if only she or he repented.
Confession remained central, both in criminal law to
create certainty before execution of the ultimate penalty
and in religion, as the condemned was assisted by the
patriarchal state to security in the life
everlasting.
Reason in the Enlightenment called this understanding
into question. Beginning in the mid-eighteenth century,
penal theorists questioned both the rationality and
deterrent value of corporal and capital punishments,
favoring instead rehabilitation and building prisons.
Inspired by Beccaria, some European states, notably the
Habsburg Empire under Joseph II, abolished capital
punishment, while others reduced the wide array and
dishonoring intent of their means of execution. Evans
views the Prussian General Law Code of 1794 as the
"summation of Enlightenment thinking on criminal law"
(135), and it eliminated corporal punishments and created
a limited number of graduated means of execution for a
shorter list of capital crimes. While it did not abolish
the death penalty, the General Law Code desacralized it,
secularizing the execution ceremony through the work of
rationalist officials and elites. Yet popular notions of
the meaning of capital punishment continued, and after
events in Paris since the summer of 1789, those same
rationalist officials and elites became increasingly
nervous about disorder of the lower orders at public
executions.
The trend in the nineteenth century, then, was toward
continued rational codification of criminal law, and an
end of public executions, turning to "intramural"
ceremonies within prison walls in the presence of a
controlled audience of elites. Rationalism and
secularization accompanied a divergence of elite and
popular understandings of capital punishment, as well as
a transition from a society of estates to one of classes.
Liberal rationalism led in the early 1840s to an active
debate in the bourgeois public sphere about abolition of
capital punishment. Although new criminal law codes, such
as the Prussian Criminal Code of 1851, did not abolish
the death penalty, the debate about potential abolition
caused sovereigns to exercise their powers of clemency to
commute sentences to life imprisonment out of
considerations of caution and fairness. In sharp contrast
to England, the death penalty ceased for property crimes
that did not involve homicide, and while legislatures
debated new codes in mid-century, executions ceased
altogether. In Prussia, there were no executions between
1868 and 1878, and abolition seemed imminent.
Bismarck's course change in 1878 renewed the
death penalty in Prussia. He made the execution of the
would-be assassin Hödel in 1878 part of his
campaign to play upon the contradictions of liberal
convictions, to play their abolitionism off against their
fear of Social Democracy, to expose their elite
rationalism to a populist audience that favored the death
penalty as just retribution. Abolitionism and
retentionism became fundamental political positions, and
the politics of the death penalty reflected divergent
theories of the state. The death penalty served far more
as an instrument of state policy that an aspect of penal
policy.
Weimar opened with a debate about abolition, and the
liberals again compromised by omitting it from the
constitution, pending a revision of the criminal code
that has not yet happened. The Third Reich, as is well
known, greatly expanded its use before it eventually
merged into even vaster forms of elimination. Article 102
of the Grundgesetz came into being in 1949 almost by
chance, withstood efforts in the 1950s and 1960s to
restore the death penalty, and survived until a public
abolitionist consensus emerged in the west in the 1960s,
which ultimately forced the DDR in 1987 to abolish the
death penalty as it was losing its own legitimacy.
Evans concludes that Foucault erred by overestimating
the transgressive potential and carnivalesque atmosphere
of early modern executions and underestimating the real
humanitarianism of Enlightenment rationalism. Elias
mistook German exceptionalism, which he took to be one of
barbarity. Certainly National Socialist positions on
capital punishment were barbarous, but prior to 1933
German exceptionalism was in its humanity, eliminating
the death penalty for property crimes quite early and
executing murderers as a far lower rate than Britain,
France, and of course the United States.
Taking Aries's history of experience as the most
promising, Evans argues that changing attitudes toward
death are the key to understanding the history of the
death penalty in Germany. Secularization and rationalism
shifted attention from the afterlife to the value of
human life in the present, favoring abolition; but in the
1890s, the rise of eugenics and hereditarian notions of
criminality brought a new secularly-rational
justification to the death penalty, one carried to its
logical extreme by the National Socialists. German
exceptionalism, Evans argues, was that the social
tensions of crime were diverted upward into politics
(899), with capital punishment as the central symbol of
the division. Only in Germany did abolition become
identified as a central tenet of liberalism and retention
as support for sovereignty, authority, and rejection of
liberal beliefs like tolerance, participation, and
freedom of the individual.
Americans in the 1990s can doubt whether the symbolic
politics of capital punishment were peculiar to Germany,
and legal historians can quibble with Evans' equation of
the Rechtsstaat with legal positivism (470), but all
historians of Germany and of criminal law should welcome
this latest excellent contribution.
Kenneth F. Ledford
Case Western Reserve University
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Richard Evans is one of the expert witnesses chosen by
Prof Deborah Lipstadt for her defence of David
Irving's libel action
write to David Irving