The Cultural Lives of Capital Punishment: Comparative Perspectives

CHAPTER ONE

Putting Culture into the Picture Toward a Comparative Analysis of State Killing

CHRISTIAN BOULANGER AND AUSTIN SARAT

Introduction

How do the ways we think and feel about the world around us affect the existence and administration of the death penalty? And what role does capital punishment play in defining our political and cultural identity? In this book, we argue that in order to understand the death penalty, we need to know more about the cultural lives—past and present—of the state’s ultimate sanction. A second claim is that this cultural voyage should be undertaken comparatively: we need to look beyond the United States and see how capital punishment lives or dies in the rest of the world, how images of state killing are produced and consumed elsewhere, how they are reflected, back and forth, in the emerging international judicial and political discourse on the penalty of death and its abolition.¹

What do we mean by the cultural life of capital punishment? First of all, for the purpose of this introduction, we refer to capital punishment, or the death penalty, as legally administered state killing, used as a punishment in response to a crime.² By cultural lives we mean capital punishment’s embeddedness in discourses and symbolic practices in specific times and places. To talk about the penalty of death having, not only one, but several lives is not a simple pun. We argue that, after centuries in which capital punishment was a completely normal and self-evident part of criminal punishment, it has taken on a life of its own in various arenas, which goes far beyond the limits of the penal sphere. We further claim that, even though it is important to consider political (Neumeyer 2004) and socioeconomic (Simon 1997) factors that shape the existence of capital punishment across geographic and social spaces, it is its cultural life that deserves more attention.

As David Garland (1990) has argued, punishment and culture are connected in two ways: culture gives punishment meaning and legitimacy and shapes its practice through cultural sensibilities and mentalities. On the other hand, punishment itself defines cultural and sociopolitical identities and provides vivid symbols in cultural battles. Punishment lives in culture as a set of images, as a marvelous spectacle of condemnation. The semiotics of punishment is all around us, not just in the architecture of the prison, or the speech made by a judge as she sends someone to the penal colony, but in both high and popular culture iconography, in novels, television, and film. Punishment has traditionally been one of the great subjects of cultural production, suggesting the powerful allure of the fall and of our prospects for redemption. But perhaps the word our is inaccurate here since Durkheim (1984 [1893]) and Mead (1918), among others, remind us that it is through practices of punishment that cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, through disidentification as much as imagined connection.

And what is true of punishment in general is certainly true of those instances in which the punishment is death. Traditionally, public execution was one of the great spectacles of power and an instruction in the mysteries of responsibility and retribution. Even the privatization of execution has not ended the pedagogy of the scaffold. Execution itself, the moment of state killing, is today an occasion for rich symbolization, for the production of public images of evil or of an unruly freedom whose only containment is in a state-imposed death, and for fictive re-creations of the scene of death in popular culture. Yet all of this may miss the deepest cultural significance of state killing. As Baudrillard (1993: 169) suggests, in regard to capital punishment, the thought of the right (hysterical reaction) and the thought of the left (rational humanism) are both equally removed from the symbolic configuration where crime, madness and death are modalities of exchange.

It is a commonplace to state that the United States is alone among Western industrialized nations in executing its citizens. Usually, analysis focuses on American exceptionalism, comparing the new with the old world (Steiker 2002; Moravcsik 2001; Poveda 2000). From a global perspective, however, the United States is not exceptional. Little more than a fourth of the world’s population lives in countries that have completely abolished the death penalty. Most U.S.-American death-penalty proponents hesitate to cite states like the Democratic Republic of Congo, Iran, Saudi Arabia, China, or North Korea as examples of countries which are also executing their citizens. However, there is at least one more industrialized democracy, Japan, and other politically respectable states such as India, South Korea, Taiwan, and Singapore in which capital punishment is still applied.

On the other hand, the European Union proudly proclaims itself to be death-penalty-free and has succeeded in talking (and sometimes coercing) almost the whole of Eastern Europe into abolition (Fijalkowski 2001; Frankowski 1996). In the territory of Russia and the former Soviet states in Central Asia, Turkmenistan alone has abolished the death penalty completely, although Russia, Kazakhstan, and Kyrgyzstan have moratoria in place. The African continent presents a mixed picture, with nine fully and fourteen de facto abolitionist states and twenty-seven states with the death penalty.³ Asia is, with the exception of a few small nations, an abolition-free zone.⁴ Equally, no state in the Middle East—except the de facto abolitionist Israel—has decided to abandon judicially authorized state killing.

Abolitionists in Europe like to point out that the death penalty is unacceptable in a civilized society.⁵ In addition, the Council of Europe has expressed its firm conviction that capital punishment, therefore, has no place in civilised, democratic societies governed by the rule of law (Council of Europe and Wohlwend 1999). European Court of Human Rights Justice Jan de Meyer put it simply when he said that [Capital] punishment is not consistent with the present state of European civilisation (Soering v United Kingdom 1989: 439). Some believe that a civilizing process leads inexorably to rejection of legalized state killing.⁶ Europe, in this view, is a step ahead of the United States, which, along with the rest of the world, sooner or later will catch up. The optimistic view of the globalization of penality is that the differences between countries will be leveled out in an abolitionist direction.⁷ As the chapters in this volume suggest, this idea is inadequate to explain what has happened in abolitionist countries and might be misleading when thinking about the global process of abolition. We argue that a closer look is needed at structures and processes on the national and subnational levels.

In recent years, there have been several publications which have looked comparatively into global processes of abolition (Hodgkinson and Rutherford 1996; Schabas 1997; Hood 2002; Boulanger et al. 2002; Reicher 2003; Hodgkinson and Schabas 2004). At the same time, there has been little systematic research on the determinants of the death penalty on a global scale, and most of it is concerned with the question of abolition (Greenberg and West 2001; Neumayer 2004). In comparative perspective, there are a variety of methodologies which one can employ to understand capital punishment. We think that comparative analyses are best served by methodological eclecticism, which combines insights from various approaches (Kohli et al. 1995). In what follows, we discuss previous research and highlight some aspects that we consider important for a comparative cultural research agenda on capital punishment.

Deadly Significant Relationships? Data-Driven Research

That there can be no simple explanation for global variation seems clear. The number of possible factors that differentiate abolitionist from retentionist states is potentially infinite. This, of course, has not kept comparativists from trying to solve the puzzle on the aggregate level. They have collected data on various independent variables to determine how the dependent variable, the (non)existence of capital punishment, can be explained (e.g., Greenberg and West 2001; Neumayer 2004). Among the factors so far studied are:

Crime rates. That state punitivism cannot be explained as a simple response to crime has been a commonplace in analyses of punishment for a long time. This is confirmed by statistical analyses which show that crime rates, punitive attitudes, and policy responses are, if at all, only marginally correlated (Savelsberg 2000, Greenberg and West 2001). This, of course, doesn’t mean that crime rates are not important,⁸ but only that they do not translate directly into penal policy. For this reason, what has to be studied are the conditions under which high crime rates do result in extreme sentencing, including the death penalty, and when it does not.

Socioeconomic indicators. There is no clear statistical relationship between a country’s socioeconomic development and its use or non-use of the death penalty (Greenberg and West 2001, Neumayer 2004). This might be surprising, especially to theorists who think of the abolition of capital punishment as the product of the sociocultural process of civilization.

Regime type. The more authoritarian a country is, the more it is likely to have the death penalty. Of 194 independent countries rated by Freedom House in 2003, 71 of 90 countries classified as Free were abolitionist (de jure or de facto), about 80 percent, versus 19 which were classified retentionist. For Partly Free countries, the ratio is 33 (62 percent) abolitionist to 20 retentionist. On the other hand, of the 48 countries rated as Not Free three-fourths (36) had the death penalty on the books and had executed someone in the last ten years, compared with 12 abolitionist countries.⁹ These data make it clear that there is a relationship between democracy and respect for human rights on one side, and abolition on the other. But with the United States as the world’s largest stable democracy and supporter both of human rights and of capital punishment, this correlation again leaves us puzzled about American exceptionalism within the Western world.

Religion seems to matter (Hood 2001). Almost all of the states with a majority of Muslims, and certainly all of those claiming to adhere to Shari’ah law, have the death penalty. As Neumayer has pointed out, however, such numerical evidence might be misleading. He suggests that the lack of democracy, the lack of political incentives, and the fact that most Muslim countries are located in regions with very few abolitionist countries might be more important explanations than Islam itself (2004: 29). Most states in which Christians (and especially Catholics) are the majority do not execute their citizens (Greenberg and West 2001). Again, the United States stands out. Today, the United States is, together with Belarus, the only majority Christian country with executions. There is evidence from the United States that Evangelical Christians show stronger support for the death penalty than members of other religious groups (Grasmick et al. 1993; Green 2000). Finally, states which have declared themselves to be atheist, such as the previously communist countries, and those who claim to be so today have not shown any special inclination toward abolition.¹⁰ The same is true for Asian countries where a numerical majority of citizens are Buddhist, even though it has been argued that the compassionate element in Buddhism favors abolition (Horigan 1996).

As these various data show, the relationship between religion and the death penalty, on an aggregate basis, is ambiguous. What we need are accounts of how religious beliefs translate into public policy in particular times at particular places. Religion is obviously a part of culture, but, as Geertz has argued (1973: 14) culture is not a power, something to which social events, behaviors, institutions, or processes can be causally attributed; it is a context.¹¹ Statistical data on the number of adherents to a particular religion do not necessarily help us explain differences between countries.

Public opinion. How popular is the death penalty and how is its popularity related to abolitionism? In the United States, the answer seems easy. Capital punishment is popular all over the country. Even though support has waned somewhat over the last few years, probably under the influence of growing media attention to miscarriages of justice, over 60 percent of respondents still support it (PollingReport.com 2004; Gross 1998; Cook 1998). However, the aggregate picture is, as always, somewhat misleading, since support varies by state, and so does the application of capital punishment (Norrander 2000; Zimring 2003). International comparisons blur the picture even further: In Canada, opinion polls indicated over 70 percent support for the death penalty during the 1980s and 1990s. In the UK in 1995, when the issue of reinstating the death penalty was debated and subsequently defeated in Parliament, 76 percent of British respondents supported the death penalty, and support remains high, even if it has declined recently (Death Penalty Information Center 2004). While in Western Europe support is currently around 30 percent, it has been consistently higher in Eastern Europe.¹² We know much less about the rest of the world, where there is little research on the topic, but the few figures available show general support of capital punishment.¹³

As various observers have noted, public opinion appears to follow national political decisions—and, even then, only slowly—rather than leading it (Moravcsik 2001). In Germany, for example, at the time of abolition in 1948, support for capital punishment was higher than it is in the United States today (Savelsberg 2000: 191). Looking at survey figures we have no way of knowing how deeply rooted support is. Moreover, surveys often don’t tell us much about the reasons for support at particular times and places, and how likely is it that these motives will lose their force.

Comparative data-driven approaches are valuable as they can help us to identify factors that might escape the attention of single-case studies. However, they have a number of shortcomings. Explanations that rely on factors at the aggregate level will necessarily miss crucial historical processes and national and regional peculiarities. They run the ever-present risk of concept misformation (Sartori 1970) which occurs when abstract concepts are operationalized without knowledge of the context. And finally, they have a hard time accounting for the processes in which structural conditions are mediated by actors, institutions, and historical contingencies.¹⁴ This is why they need to be coupled with medium-range theories which allow for closer examination of individual cases.

The Big, but Not Complete Picture: Theory-Driven Approaches

Most theoretical accounts of the death penalty deploy theories which concern particular countries (such as the United States) or comparative pairs (such as the United States versus Europe). We discuss three types of approaches: national political economy, institutional factors, and the dynamics of regional integration. ¹⁵

National Political Economy

Materialist theories explain differences between countries in terms of material interests of individuals and groups. Earlier, Marxian-inspired theories argued that punishment was an instrument of the ruling class used to defend its dominant position.¹⁶ Today, rational choice analyses have taken their place, albeit mostly with a different (or no) normative commitment. They argue that the choice of punishments can be explained by the demand for them in the political market.¹⁷ Classes, powerful social groups, or political entrepreneurs are the protagonists in the explanatory framework of these approaches. Some think that the demand for harsher policies is exogenously caused by factors such as crime rates and public insecurity. Others argue plausibly that some of this demand is caused by political actors themselves, who cleverly use the topic to advance their own political careers (Zimring and Hawkins 1986), radicalizing punitive discourses as an effect. Still others do integrate cultural factors (mainly from opinion research), arguing that politicians act strategically in exploiting public sentiment to advance their agenda.

Even though we are skeptical regarding purely instrumentalist accounts, we agree that the question who benefits from the existence of the death penalty is an important one.¹⁸ Jonathan Simon (1997), for example, has highlighted the neo-liberal agenda of the conservative revolution which characteristically combines lower taxes and the death penalty. In his account, the death penalty in the United States has served a symbolic, not a directly economic, function. Neo-liberal reform of the welfare state generated insecurity and resentment and undermined confidence in the state’s capacity to provide security and legitimacy through welfare and regulation, a capacity that was associated with the modern decline of the death penalty. In response, the tough on crime rhetoric associated with support of capital punishment has been used to deflect discontentment and mobilize consent (see also Garland 2001).

It is certainly true that capital punishment can serve as a distraction from socioeconomic insecurities, and in this way, can accompany the decline of the welfare state. However, this is but one of multiple functions capital punishment can serve and is certainly not restricted to neo-liberal projects. It could serve the same function in any type of regime. It is not surprising that in the most neo-liberal country in Western Europe, Great Britain, we find some of the most vocal supporters of a re-introduction of the death penalty in Europe.¹⁹ However, abolition in Britain survived free votes in Parliament even during Margaret Thatcher’s reign, and the Tories have not used the death penalty recently as a serious campaign issue (Hodgkinson 1996). More than just the interests of political actors seem to be at stake. One important analytical strategy is to look at the impact of institutions.

Legal-Institutional Factors and Democratic Governance

Recently, new institutionalist approaches have emphasized the need to study institutionalized agency, institutional differences, and historical conjectures (Koelble 1995; Hall and Taylor 1996; Thelen 1999). For our purposes, this means looking at how elite strategies and institutional arrangements have worked together in history to produce abolitionist and retentionist outcomes. For example, American penal law federalism is unparalleled in Europe. Congress cannot abolish the death penalty for the whole country even if it wanted to do so, making abolition a slow and incremental process rather than a onceand-for-all event.²⁰ As Zimring and Hawkins (1986) have shown, the tension between the right of states to choose criminal penalties and federal oversight has led to a situation where capital punishment became a symbol for much larger struggles between the center and the periphery.

In addition, Zimring, Hawkins, and Kamin (2001) have argued that the more democratic penal policy making is, the more it is prone to be driven by punitivism, with the irrational and emotional motives often found among death penalty supporters. Their empirical case is three-strikes-and-you’re-out legislation in California, but their hypothesis can be extended to capital punishment on a global scale. As one observer put it, Basically, Europe doesn’t have the death penalty because its political systems are less democratic, or at least more insulated from populist impulses, than the U.S. government (Marshall 2000). One has to be careful not to confuse democracy with public participation in penal policy making. The theory that nondemocratic societies are less punitive because they are more shielded from public pressure has little to it. Throughout history, most authoritarian states, including socialist, have used the death penalty liberally. This is not surprising since penal policy is a domain especially suitable for symbolic politics. Being tough on crime can be popular in any regime type.

The argument of Zimring and his colleagues, however, is more nuanced. They refer to popular participation in the penal policy-making process. The comparison between the United States and Europe, in this regard, is instructive. Observers have pointed out that American institutions are more porous and open to popular demands than European political structures. They expose many officials, particularly judges, to electoral competition for positions which in Europe are staffed by career bureaucrats or disciplined party politicians (Savelsberg 2000; Steiker 2002). Additionally, U.S. states allow penal policy to be made through referenda, such as the Californian three-strikes initiative. This would be unthinkable in most of Europe.²¹

How can this hypothesis be extended beyond the comparison between Europe and the United States? It seems safe to argue that less democratic states (in the participatory sense) seem to have an easier time abolishing capital punishment, since they can expect less resistance by a population overwhelmingly supportive of it. But neither the motivation nor the timing of abolition seems to have any necessary relationship with regime types.²²

An important institutional factor in abolitionist outcomes is judicial abolition. It has so far taken place in Hungary, Ukraine, Latvia, South Africa, and Albania, with Russia’s constitutional court imposing a moratorium (Schabas 1996; Fijalkowski 2002). In each country, a strong majority of the populace supported capital punishment when the courts abolished it. This is not much different from countries in which it was abolished by parliamentary decision. But it certainly creates a greater legitimacy problem. It is no coincidence that all countries in which judicial abolition occurred had experienced a regime change beforehand. They had left behind regimes in which frequent human rights violations had occurred. In the aftermath, institutions which could claim a particular commitment to human rights had more influence than they would normally have had.²³ This has led to an interesting international development in which courts start citing each other’s case law on judicial abolition. So far, the U.S. Supreme Court has remained split over the question whether foreign court jurisprudence is relevant to American cases.²⁴

The Dynamics of Regional Integration

But there is another, maybe more important, reason for the abolitionist activism of these constitutional courts, namely the dynamics of regional integration. Abolition in Eastern and Southeastern Europe cannot be explained without looking at the fact that international organizations such as the Council of Europe and the European Union have made abolition a criterion of membership, and have actively promoted abolition in Western and Eastern Europe (Council of Europe 1999, 2004). Populations in postcommunist countries overwhelmingly support the death penalty, and it seems safe to say that most governments in the area abolished it less because of the human rights appeal of abolitionism and more because of anticipated benefits of compliance with European norms (Manacorda 2003; Fawn 2001). Turkey is a good example of a country that abolished capital punishment for no other reason than to remove obstacles on its way to EU membership.

In the rest of the world, such incentive structures just do not exist. Even if a numerical majority of states within the United Nations are now abolitionist, there is no economic benefit for others to join that majority, and little advantage in terms of prestige, as long as economically and politically powerful nations such as the United States and Japan still retain the penalty. In Africa and Asia, no international institutions exist which act as forcefully as the Council of Europe and the EU in promoting abolitionism.²⁵ Interestingly in this regard is Latin America, where abolition has occurred without any regional initiative. Thus all Latin American states except Guatemala and Belize had abolished the death penalty by 2001.²⁶

But the international politics of the death penalty goes beyond the dynamics of regional integration. As Zimring (2003: chap. 2) has pointed out, the death penalty has become a human rights issue, although only recently. There are repeated efforts in the United Nations to promote abolition or at least restrict the use of capital punishment. The European Union and the Council of Europe have hosted abolitionist events and started initiatives to reach countries outside their immediate geographical orbit.²⁷ The Council of Europe has even warned that it would withdraw the observer status of Japan and the United States if these countries did not take any positive steps toward abolition (Council of Europe 2001). So far, of course, this has achieved little, and not just because in most cases the federal government is the wrong addressee for such calls.

The Cultural Life of Punishment

Thus far we have argued that when trying to account for global variation in capital punishment regimes, we have to pay attention to political economy and institutional dynamics, on both the national and the international level. At the same time, we think that these accounts are incomplete. Institutional rules and individual interests cannot be separated from the cultural context in which they are embedded. Institutions are not just there. They are the result of historical developments and struggles and are influenced by their political, social, and cultural environments as much as they shape them.

David Garland has forcefully made this argument about the institutions of punishment. According to him, punishment is a social institution composed of the interlinked processes of law-making, conviction, sentencing, and the administration of penalties. It involves discursive frameworks of authority and condemnation, ritual procedures of imposing punishment, a repertoire of penal sanctions, institutions and agencies for the enforcement of sanctions and a rhetoric of symbols, figures, and images by means of which the penal process is represented to its various audiences (Garland 1990: 17). Reviewing a century of sociolegal theorizing on punishment, Garland concludes that most theorists have neglected the role of culture in punishment. However, as he points out, punishment is not only shaped by cultural processes, it is itself a cultural agent. He reminds us that we should attend to the cultural role of legal practices, and to their ability to create social meaning and thus shape social worlds, and that among those practices none is more important than how we punish (Garland 1991: 191).

Punishment, Garland (1990: 248) tells us, helps shape the overarching culture and contribute[s] to the generation and regeneration of its terms. Punishment is a set of signifying practices that teaches, clarifies, dramatizes and authoritatively enacts some of the most basic moral-political categories and distinctions which help shape our symbolic universe (252). Punishment teaches us how to think about categories like intention, responsibility, and injury, and it models the socially appropriate ways of responding to injury done to us. Moreover, it exemplifies relations of power and reminds us of the pervasiveness of vulnerability and pain. Most powerfully, penality highlights the characteristics of the normal self by policing its failures and pathologies and spelling out more precisely what one is expected minimally to be (1991: 210).

Penality, for Garland, is a complex cultural process. Individual penal institutions, such as capital punishment, therefore cannot be viewed in isolation from other punitive practices in a society. Ideas about guilt, shame, retribution, and just punishment are reflected, for example, in sentencing schemes, prison conditions, legislative proposals, election campaigns, movie plots, or attitudes toward prison labor. There is no simple causation at work, instead, culture and punishment are mutually interdependent.

The Rise of the Cultural

So what is this culture of which Garland speaks? Everywhere it seems culture is in ascendance. More and more social groups are claiming to have distinctive cultures and are demanding recognition of their cultural distinctiveness. Identity politics has merged with cultural politics so that to have an identity one must now also have a culture.²⁸ As a result, it sometimes seems as if almost every ethnic, religious, or social group seeks to have its culture recognized, and for precisely this reason the cultural itself has become a subject of political life to a greater extent than in the past.

The backlash against the proliferation of cultures and identities, and what is called the politics of recognition (Taylor 1994), has been vehement. Politicians proclaim culture wars in an effort to reassert both the meaning and centrality of certain allegedly transcendent human values (Whitehead 1994). Debates about the meaning and significance of culture become arguments about civilization itself in which acknowledgment of cultural pluralism and its accompanying decanonization of the sacred texts of the Western tradition is treated as undermining national unity, national purpose, and the meaning of being a citizen.²⁹ Political contests are increasingly fought over values and symbols, with different parties advancing different cultural programs (Caplow and Simon 1999; Wattenberg 1995).

With the decline of ideology as an organizing force in international relations, culture seems to provide another vantage point from which to understand new polarities (Huntington 1996). In addition, the cachet of the cultural is increasingly resonant in public policy where traditional goals like reducing crime and poverty are giving way to cultural goals like reducing fear of crime and eliminating the culture of dependency. The cultural is the implicit and explicit space of intervention for popular new strategies like community policing (Lyons 1999) and workfare (Rose 1995) that promise to improve objective problems by altering the attitudes and experiences of the subjects of policing and welfare. Government and other formal organizations believe that it is essential to have cultural strategies in order to more effectively govern their employees and customers and to influence their broader popular image. The twentieth century familiarized us with the idea of propaganda and the fact that political forces had to utilize mass communication to realize their power. Today, however, the cultural has become more than a supplement or a delivery vehicle; it is quite literally where the action is.³⁰

The ascendance of the cultural comes paradoxically at a time when scholars increasingly have begun to contest the concept of culture and recognize its troubling vagueness. Talking about culture at the start of the twenty-first century means venturing into a field where there are almost as many definitions of the term as there are discussions of it,³¹ and where inside as well as outside the academy arguments rage.³² In recent years, as we noted above, these arguments have come to play a progressively more visible role in national life, and culture wars are also being fought within universities (Graff 1987). There the history, meaning, and utility of culture as a category of analysis in the humanities and social sciences are all up for grabs.³³ Where once the analysis of culture could neatly be assigned to the respective disciplines of anthropology or literature, today the study of culture refuses disciplinary cabining and forges new interdisciplinary connections.³⁴ Thus we should resist the temptation to treat the culture wars over academic curricula and arts and museum programming as penumbras of some deeper social conflict; they represent their own very real conflict.

Traditionally the study of culture was the study of ‘that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society’ (Edward Tylor cited in Greenblatt 1990: 225). This definition, in addition to being hopelessly vague and inclusive, treats culture as a thing existing outside of ongoing local practices and social relations. In addition, by treating culture as capabilities and habits acquired, culture was made into a set of timeless resources to be internalized in the civilizing process through which persons were made social. Finally, culture was identified as containing a kind of inclusive integrity, parts combining into a whole.

This conception of culture still has its defenders and may even be on the rise as a political knowledge.³⁵ Today, however, within the academy critiques of the traditional, unified, reified, civilizing idea of culture abound.³⁶ It is now indeed almost imperative to write, to quote Lila Abu-Lughod’s influential essay, against culture (1991: 137) or, in the face of these critiques, to forget culture (Brightman 1995). Thus during the course of a suit filed by the Mashpee Indians of Cape Cod in 1977, James Clifford examined the way culture stood up in a context where the very idea of cultural authenticity was on trial. Culture, he said,

was too closely tied to assumptions of organic form and development. In the eighteenth century culture meant simply a tending toward natural growth. By the end of the nineteenth century the word could be applied not only to gardens and well-developed individuals but to whole societies.... [T]he term culture retained its bias toward wholeness, continuity, and growth. Indian culture in Mashpee might be made of unexpected everyday elements, but it had in the last analysis to cohere, its elements fitting together like parts of a body. The culture concept accommodates internal diversity and an organic division of roles but not sharp contradictions, mutations, or emergences.... This cornerstone of the anthropological discipline proved to be vulnerable under cross-examination. (Clifford 1988: 338, 323)

Culture, Clifford concluded, is a deeply compromised idea.... Twentieth-century identities no longer presuppose continuous cultures or traditions (10). Or, as Luhrmann observed, the concept of culture is more unsettled than it has been for forty years (1973: 1058).

Culture, Law, and Capital Punishment

Yet in this unsettled time, studies of law and of punishment have taken up cultural analysis. In the last thirty years, however, first with the development of critical legal studies, then with the growth of the law and literature movement, and finally with the growing attention to legal consciousness and legal ideology in sociolegal studies, legal scholars have come to attend to the cultural lives of law (Silbey 1992; Macaulay 1987; Chase 1986, 1994). Fueled in part by Clifford Geertz’s description of law as a distinctive manner of imagining the real (1983: 184), they have begun to be attentive to the imaginative life of the law and the way law lives in our imagination. Law, as Geertz suggested, is not "a mere technical add-on to a morally (or immorally) finished society, it is, along of course with a whole range of other cultural realities, ... an active part of it" (218). Treating law as a cultural reality means looking at the material structure of law to see it in play and at play, as signs and symbols, fantasies and phantasms. ³⁷ These views are echoed by Robert Cover, who investigated law’s role in creating our normative universe: Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live (1992: 95–96). As he continues, In this normative world, law and narrative are inseparably related. Every prescription is insistent in its demand to be located in discourse—to be supplied with history and destiny, beginning and end, explanation and purpose (26). For research on capital punishment, this requires examining the narratives and discourses of capital punishment in one’s own society. As Zimring and Hawkins noted in 1986:

[the] extensive ethnographic literature on ritual and symbolism focuses mainly on primitive societies, tending to overlook the collective ceremonials and focal rituals of large and complex modern societies. Our own twentieth-century institutions and practices, in which what Durkheim called the collective consciousness is expressed, have been largely ignored. But it seems likely that the symbolic significance of death penalty legislation, the ritual nature of the murder trial, and the incantatory of the death sentence constitute a large part of the appeal for supporters of the death penalty. (1986: 11)

As they point out, we need to write ethnographies of the death penalty in Western societies as much as we need to study what the punishment of death means in societies that we consider exotic or foreign.

The death penalty process displays many features of a communal ritual,³⁸ and ritual and symbolism are, as we know, intrinsic parts of modern politics. Many studies have interpreted capital punishment accordingly (e.g., Stolz 1983). Most, however, follow Foucault in concentrating on the instrumental, political aspects of this symbolism, and neglect the question why it finds an audience in the first place. Even fewer studies exist which investigate if, why, and how the symbolic appeal of legalized state killing varies across time and space. Capital punishment has its supporters in each and every country, and the call for the hangman will always find supporters—the question remains what cultural factors contribute to the appeal of the rhetoric of death and, in this way, determine its political utility, its cultural uses, as David Garland (2002) has phrased it.

But, again, how can we make the concept of culture analytically useful in this respect? Culture is about the meanings we attribute to the symbols, signs, texts, utterances, and behaviors that make up our world, and the corresponding symbols, signs, texts, and utterances that we produce and the behaviors we display in that process of attribution. Culture is not static—it is constantly produced and reproduced and continually changing. In other words, culture consists of recurring, yet contested, patterns in what people think, say, feel, and do at a particular time and place—our mentalities, discourses, sensibilities, and behaviors. ³⁹

Culture from Above—Culture from Below

The concept of national character has luckily and deservedly gone out of fashion. But there is a danger that the notion of culture might be used in similar ways. That is why one of the first things cultural analyses have to do is to disentangle the cultures of different groups in society. This requires attention to differences between ethnic groups in pluralist societies on one hand, and class and social status on the other.⁴⁰

Cultural production is always entangled with power and can therefore never be separated from power relations and structures of authority. Max Weber (1994), for example, argued that ideologically structured institutions, run by elites, have a profound influence on the human beings subjected to their authority. Weber did not use the world culture as a theoretical concept—he was more interested in worldviews expressed in religious doctrines and the resulting behavior enforced by religious authorities. Others theorists like Pareto, Michels, or C. Wright Mills remind us that—even in democracies—elites have a larger impact on all spheres of life, including the penal sphere, than the ordinary population. Elite culture becomes an important subject of study. Law is produced and adjudicated by a small part of the population which has access to legal training and political posts, and legal policy—even if it responds to popular pressure—remains an almost exclusive domain of political and legal elites. How this segment of the population thinks and feels (in Garland’s words, their mentalities and sensibilities) has important ramifications for law and punishment. This will influence the way capital punishment is used—or not used—as a political instrument.

Joachim Savelsberg (2000) has taken up this theme in a comparative analysis of the religious foundations of state punishment in the United States and Germany. According to him, in the United States, strong puritan conceptions of good and evil, together with religiously legitimated distrust of state institutions, have produced a punitive, and democratic, notion of punishment. In contrast,