Wigged Oracles

 At the time Arthur Koestler wrote his Reflections on Hanging (1956), Britain was still defying the trend among other Western democracies by continuing to apply the death penalty. Despite the country's celebrated liberal traditions, the UK clung to the practice of hanging people by the neck till dead, long after most of its peer nations on the continent had abandoned capital punishment as a brutal and archaic relic. 

Today, that same mantle has passed to the United States. Great Britain has long since joined the rest of the democratic world by ending the practice of judicial murder. And so now, it is the U.S. that is the outlier; the U.S. that lags far behind the rest of its democratic peers in terms of moral progress by still executing a score or so of people every year, across its fifty states. 

Meanwhile, the extreme right faction that runs our government has made clear that they think this is not nearly enough. One of the first acts of the new Trump administration upon taking office was to issue a directive to try to pressure states to bring new capital cases against federal death row inmates whose sentences were commuted under Biden. More recently, Trump's Justice Department reintroduced firing squads to its list of recommended methods for ending a prisoner's life. 

Nor is the United States the only country moving backward on this issue. At the time he wrote his book in the mid-1950s, Arthur Koestler praised the State of Israel for abolishing the death penalty once it had achieved sovereign status. Now, seventy years later, Israel's Knesset has approved a law to re-introduce hanging as a judicial sentence—a law that is written, moreover, in a way that is likely only ever to be applied to Palestinians. 

Why did Britain still cling to the gallows in 1956? Why is the United States so unwilling today to part with those famously "humane" execution methods of ours—the deadly syringe, the nitrogen gas canister—now, it would seem, the firing squad? 

Koestler attributed the evil to the heart of that vaunted Common Law tradition of the English-speaking countries, with its emphasis on judge-made law and the binding power of precedent—which he saw as encouraging a blind and superstitious worship of the past. Even worse—Koestler wrote—the legal system had placed absolute powers of life and death in the hands of a small closed group of learned ninnies convinced of their own infallible wisdom. 

And so, Koestler shows, the same myths and superstitions about the efficacy and necessity of the death penalty could be passed down from one generation of judges to the next, because tradition, authority, and precedent can substitute in the Common Law system for mere evidence and facts (indeed, often supersedes them). 

"Guided by precedent only," Koestler writes "[...] they quoted each others quotations and became more and more estranged from reality." And so it became the case that "The history of English criminal law is a wonderland filled with the braying of learned asses." 

These "wigged oracles"—Koestler called them—"lent to the public strangling of ten-year-olds a halo of respectability, and led this gentle nation through two centuries of gore." 

Koestler's historical examples suggest that the death penalty in England was indeed an instrument of class rule—part of the caste system that still subsists in elements of the British constitutional order to this day. He cites an example of the jolly English newspaper that met the hanging of several waifs with a reference to an Eton boating song, "We'll all swing together." 

The judges, of course, had all attended such hallowed public schools, and would have understood an allusion lost on their less fortunate victims. 

Then there is the pompous early nineteenth century judge Koestler cites, who pronounced the sentence of death—under England's Bloody Code—for the crime of passing a single one-pound note that had been found to be forged. In the afterlife, His Lordship intoned in passing sentence, perhaps the prisoner might find "that mercy with a due regard to the credit of the paper currency of the country forbids you to hope for here." 

I am reminded of Thomas Love Peacock's remark, in The Misfortunes of Elphin: that if a Druid from the dark ages could visit England at the dawn of the Industrial Revolution, he would doubtless conclude that the practice of human sacrifice was alive and well in the British Isles—except that the modern government had set up the paper currency, in place of the moon goddess, as the Moloch to which human lives were to be devoted. 

("[T]he exhibition of some half-dozen funipendulous forgers might have shocked the tender bowels of [the Druid's] humanity, as much as one of his wicker baskets of captives in the flames shocked those of Caesar," Peacock observes; "and it would, perhaps, have been difficult to convince him that paper credit was not an idol, and one of a more sanguinary character than his Andraste.")

But England, despite of its rich inheritance of learned assery and caste rule—somehow managed to transcend their history and bewiggery enough to eventually abolish the death penalty. Our country—a republic, supposedly without an aristocracy or titles—meanwhile—has not. 

This fact invites us to look to the causes of English backwardness that Koestler identified in 1956 and ask whether they might not apply all too much to us in the United States in the 21st century. 

It is hard to escape the impression that today, the American bench suffers no less under the sagging weight of the "wigged oracles" and "learned asses." For decades, after all, the U.S. Supreme Court has refused to interfere with state-level executions, insisting that the death penalty in America is hallowed by tradition. Indeed, Justice Clarence Thomas declared last week that he would go even further—and overturn even the constitutional precedent that forbids executing people who have been adjudged mentally disabled. 

"Nothing in our history, from 1791 to 2002, suggests that there is anything unlawful about executing murderers now protected by Atkins," declared that particular learned oracle and worthy, in a May 21 dissenting opinion. As far as Justice Thomas is concerned, it would seem, mentally disabled people with an IQ of 78 or lower can "all swing together" too. 

We are entitled to ask here whether we are not plainly in the presence of a member of that "powerful new class" of Common Law judges Koestler identified, "the medicine-men of the Law, [who...,] under the hypnotic effect of exclusive preoccupation with the past [...] were bound to develop a professional deformity. [... A]n exclusive class of alleged technical experts who, like the mediaeval alchemists, lived in a mysterious world of secret formulae, their minds riveted to the past, impervious to changing conditions, ignorant of vital developments outside their closed world."

To the world outside the federal bench, after all—the fact that such things were done in 1791 is not a conclusive argument for the killing of a mentally disabled person. Only a mind so riveted and impervious as Koestler describes could think that two and a half centuries of social progress and changing public attitudes should have no impact whatsoever on our government's ongoing practice of judicial murder. 

And so here—in the wigged oracles Koestler described, and in the learned asses of our own day a la Justice Thomas, with his "history and tradition" that sanctifies killing a man who has the brain of a child—we find "all / The hypocrisy, falsity, and callousness of the Law, / The infernal sadism that hauls to the scaffold / A poor woman sick at both ends, and places / A congenital idiot playing with his dolls / In the Electric Chair [...]" as Hugh MacDiarmid wrote—

—his timeless take on that sacred tradition of the Common Law that is still with us today. 

Koestler cites one of the learned judges in 1956 as admitting that even in a case in which he knew the defendant to be "insane," he still "thought it very proper that he should have hanged." To which Koestler replies: "the law of the land and the law of humanity take the opposite view." 

He goes on to quote a relevant passage from the Royal Commission that Justice Thomas today ought to study and heed as well:

"We make one fundamental assumption, which we should hardly have thought it necessary to state explicitly if it had not lately been questioned in some quarters. It has for centuries been recognized that, if a person was, at the time of his unlawful act, mentally so disordered that it would be unreasonable to impute guilt to him, he ought not to be held liable to conviction and punishment [....] Recently, however, the suggestion has sometimes been made that the insane murderer [...] should be painlessly exterminated as a measure of social hygiene. 

"Such doctrines have been preached and practised in National-Socialist Germany," the Commission observes; "but they are repugnant to the moral traditions of Western civilization and we are confident that they would be unhesitatingly rejected by the great majority of the population of this country."

I hope so!