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Clarence Darrow on Freedom, Justice, and War

Mises Daily: Friday, March 25, 2011 by

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[Transcribed from the Libertarian Tradition podcast episode "Clarence Darrow"]

Clarence Darrow

Clarence Darrow is best known today as the Chicago lawyer who defended John T. Scopes in the Scopes Monkey Trial in 1925. A character based loosely on him is played by Spencer Tracy in the 1960 movie version of the classic play about the Scopes trial, Inherit the Wind.

Darrow was long known perhaps equally well as the Chicago lawyer who got life imprisonment instead of the death penalty for two 19-year-olds, Richard Loeb and Nathan Leopold, in their sensational 1924 trial for the kidnapping and murder of a 14-year-old boy, which they had undertaken to prove that they could commit the perfect crime. Orson Welles played the character loosely based on Darrow in Compulsion, the 1959 movie about the Loeb-Leopold case.

Darrow's real-life closing argument in that case was something of a popular bestseller, in various editions, during the late 1920s and early 1930s. It was reissued at the time of Darrow's death 73 years ago this month, on March 13, 1938. It was the sort of thing you could pick up at the same newsstand where you'd picked up the papers covering Darrow's performances in the Scopes trial and in the Loeb-Leopold trial, the same papers that were now trumpeting the famous lawyer's death in 48-point type. It was the kind of thing that was available as a cheap paperback in the years just before there were any paperbacks in the sense we mean by that term today, and long before the term itself — "paperback" — had come into widespread use.

When I was growing up in the 1950s, my father had a disintegrating copy of Darrow's closing argument in the Loeb-Leopold trial sitting in our family bookcase. I tried reading it, as I tried reading most of my parents' books during those years, but it was one of the few I simply couldn't get interested in. No matter how many times I started it, I always abandoned it after no more than a few pages. It seemed to be all puffed up — a brief against capital punishment that, to the me of the 1950s, seemed self-evidently true, expanded to the length of a small book by means of the addition of a lot of superfluous rhetoric, oratorical flourishes, all that sort of thing. I put Darrow's closing argument in the Loeb-Leopold trial aside the final time when I was in high school in the early 1960s, and I really made no further effort to get to know Clarence Darrow or understand his significance for quite a few years after that.

Then, nearly three decades later, I received an unsolicited review copy of another small book published under Darrow's byline — a trade-paperback reprint of his 1902 book Resist Not Evil, with a new introduction by Carol Moore. The book was published by Loompanics, an important libertarian book publisher throughout the 1980s and '90s. And this book turned out to be an interesting read. In fact, it proved interesting even before I began reading it, because merely having it in my hands motivated me to catch up on what little I knew about Darrow's life and career.

He was born in rural northeastern Ohio on April 18, 1857. He was three years old when Abraham Lincoln was elected president and he was still three a couple of months later when Fort Sumter was fired upon. He was 19 when the Republican Party ended armed occupation of the Southern states as part of the deal that enabled them to steal the 1876 election from Samuel Tilden.

Darrow was admitted to the Ohio bar in 1878, at the age of 21. At first he practiced corporate law. His employers were governments and railroads. But Darrow was that peskiest of all things, a reader — somebody who read more or less compulsively and thought about what he read. He decided after a while that, for moral reasons, he didn't want to represent governments or railroads anymore. For a time he represented unions, but after a while, he decided he didn't want to represent them anymore either. He began taking criminal cases, because he had become convinced that what we are used to describing as "the criminal-justice system" was a gigantic fraud that ruined real people's lives because they had no representation capable of defending them properly against it.

But let Darrow tell you himself why he took up the practice of criminal law. All of the following quotations are taken from his 1902 book, Resist Not Evil, published when he was 45 years old. Darrow pointed out that "the decrees of courts, whether rightful or wrongful, must be obeyed, and the penalty of disobedience is the forcible taking of property, the kidnapping and imprisoning of men, and if need be, the taking of human life." Yet these courts whose decrees and rulings were expected to command such respect were little better at the end of the 19th century in America, Darrow contended, than the courts of the Middle Ages in Europe — at least if the standard by which you were judging them was the accuracy with which they identified the guilty party in each case.

Darrow conceded that there had been at least the appearance of improvement over the previous thousand years or so in this regard. But at no time, he wrote, had the means by which government courts ascertained culpability

been as accurate and scientific as is generally presumed. Sometimes it has been by torturing until the victim is made to confess; sometimes by wager of battle; sometimes by tying the feet and hands and throwing them into a pond, when if they sank they were innocent, if they swam they were guilty and promptly put to death. The modern method of arraying a defendant in court, prosecuted by able lawyers with ample resources, tried by judges who almost invariably believe in the prisoner's guilt, defended as is usually the case by incompetent lawyers, and without means, is scarcely more liable to lead to correct results than the ancient forms.

The fact is, Darrow thundered, that

the state furnishes no machinery for arriving at justice. [It] has no way of arriving at the facts. If the state pretends to administer justice this should be its highest concern. It should not be interested in convicting men or punishing crime, but administering justice between men. It is obvious to the most casual observer that the state furnishes no machinery to accomplish this result.

In fact, as Darrow saw it, government courts exhibit no comprehension whatever of what justice actually is, what it consists in. In Darrow's words,

Some human being has shed his neighbor's blood; the state must take his life. In no other way can the crime be wiped away. In some inconceivable manner it is believed that when this punishment follows, justice has been done. But by no method of reasoning can it be shown that the injustice of killing one man is retrieved by the execution of another, or that the forcible taking of property is made right by confining some human being in a pen.

The problem, Darrow argued, was that

in no theory of the law is compensation, or recompense, or making good, any part of punishment. If taking the life of the prisoner could bring to life the victim whom he killed there might be some apparent excuse for the punishment of death. If imprisoning in the penitentiary in any way retrieved a wrong or made up a loss, a prison might be tolerated, and some relation might be shown between punishment and crime. Even in cases where a fine is administered, in place of imprisonment, the fine does not go in any way to retrieve any loss, but goes to the state as pure punishment and nothing else.

Now, contrast, if you would, the passages I've just quoted with another passage by another author, taken from a much more recent book on human social relations. According to this more recent author,

the emphasis in punishment must be not on paying one's debt to "society," whatever that may mean, but in paying one's "debt" to the victim. Certainly, the initial part of that debt is restitution. This works clearly in cases of theft. If A has stolen $15,000 from B, then the first, or initial, part of A's punishment must be to restore that $15,000 to the hands of B (plus damages, judicial and police costs, and interest foregone). Suppose that, as in most cases, the thief has already spent the money. In that case, the first step of proper libertarian punishment is to force the thief to work, and to allocate the ensuing income to the victim until the victim has been repaid. The ideal situation, then, puts the criminal frankly into a state of enslavement to his victim, the criminal continuing in that condition of just slavery until he has redressed the grievance of the man he has wronged.

We must note that the emphasis of restitution-punishment is diametrically opposite to the current practice of punishment. What happens nowadays is the following absurdity: A steals $15,000 from B. The government tracks down, tries, and convicts A, all at the expense of B, as one of the numerous taxpayers victimized in this process. Then, the government, instead of forcing A to repay B or to work at forced labor until that debt is paid, forces B, the victim, to pay taxes to support the criminal in prison for ten or twenty years' time. Where in the world is the justice here? The victim not only loses his money, but pays more money besides for the dubious thrill of catching, convicting, and then supporting the criminal; and the criminal is still enslaved, but not to the good purpose of recompensing his victim.

This more recent passage is taken, as some of my readers may know, from The Ethics of Liberty by Murray N. Rothbard, and it serves, I think, to illustrate the extent to which the Clarence Darrow of 1902 was on pretty much the same wavelength as the Murray Rothbard of 80 years later. This is evident also in the general observations on government with which Darrow begins his little book. "Everywhere it seems to have been taken for granted," he writes,

that force and violence are necessary to man's welfare upon the earth. Endless volumes have been written, and countless lives been sacrificed in an effort to prove that one form of government is better than another; but few seem seriously to have considered the proposition that all government rests on violence and force, is sustained by soldiers, policemen and courts, and is contrary to the ideal peace and order which make for the happiness and progress of the human race. Now and then it is even admitted that in the far distant ages yet to come men may so far develop toward the angelic that political governments will have no need to be. This admission, like the common concept, presumes that governments are good; that their duties undertaken and performed consist in repressing the evil and the lawless, and protecting and caring for the helpless and the weak.

If the history of the state proved that governing bodies were ever formed for this purpose or filled this function, there might be some basis for the assumption that government is necessary to preserve order and to defend the weak. But the origin and evolution of the political state show quite another thing — it shows that the state was born in aggression, and that in all the various stages through which it has passed its essential characteristics have been preserved.

Or consider Darrow's comments on war. "The history of the world is little else," he wrote,

than the story of the carnage and destruction wrought on battlefields; carnage and destruction springing not from any difference between the common people of the earth, but due alone to the desires and passions of the rulers of the earth. This ruling class, ever eager to extend its power and strength, ever looking for new people to govern and new lands to tax, has always been ready to turn its face against other powers to satisfy the ruler's will, and without pity or regret, these rulers have depopulated their kingdoms, and carried ruin and destruction to every portion of the earth for gold and power.

They have done so with the assistance of others, of course — in particular, soldiers. It is therefore appropriate to note, according to Darrow, that

the lowest standard of ethics of which a right-thinking man can possibly conceive is taught to the common soldier whose trade is to shoot his fellow man. In youth he may have learned the command, "Thou shalt not kill," but the ruler takes the boy just as he enters manhood and teaches him that his highest duty is to shoot a bullet through his neighbor's heart, — and this unmoved by passion or feeling or hatred, and without the least regard to right or wrong, but simply because his ruler gives the word. It is not the privilege of the common soldier to ask questions, to consider right and wrong, to think of the misery and suffering his act entails upon others innocent of crime. He may be told to point his gun at his neighbor and his friend, even at his brother or father; if so he must obey commands. "Theirs not to reason why,/Theirs but to do and die," represents the code of ethics that governs a soldier's life.

Soldiers, Darrow declared, are

men who sacrifice their right of private judgment in the holiest matter that can weigh upon the conscience and the intellect, the taking of human life, — men who place their lives, their consciences, their destinies, without question or hesitation, into another's keeping, men whose trade is slaughter and whose cunning consists in their ability to kill their fellows.

Nor is there any shortage of such men, for, as Darrow put it,

rulers have ever taught and encouraged the spirit of patriotism. … Every people in the world is taught that their country and their government is the best on earth, and that they should be ever ready to desert their homes, abandon their hopes, aspirations, and ambitions when their ruler calls, and this regardless of the right or wrong for which they fight. The teaching of patriotism and war permeates all society.

Indeed, "the pulpit, the press, and the school unite in teaching patriotism and in proclaiming the glory and beneficence of war." It is hardly any surprise, then, that, as Darrow puts it,

endless wars have been waged to increase or protect the territory governed by … various rulers. In these bloody conflicts the poor serfs have dumbly and patiently met death in a thousand sickening ways to uphold the authority and prowess of the ruler whose sole function has ever been to pillage and rob the poor victims that fate has placed within his power. To these brutal, senseless, fighting millions the boundaries of the state or the color of the flag that they were taught to love could not in the least affect their lives. Whoever their rulers, their mission has ever been to toil and fight and die for the honor of the state and the glory of the chief.

I won't leave you with the impression that Clarence Darrow was an early, unsung Rothbardian, because he wasn't. Darrow was a pacifist of the purest kind. His title is taken from the King James Version of Matthew, chapter 5, verses 38 and 39, which quotes Jesus of Nazareth as having declared,

Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.

In the very first paragraph of Resist Not Evil, Darrow acknowledges that "the following pages … were inspired by the writings of Tolstoy," and, as Rothbard noted 80 years later in The Ethics of Liberty, the Tolstoyan anarchist believes "that no violence should ever be used by anyone against anyone else: even by a victim against a criminal." Rothbard held

that any such total objector to violence must then be consistent and advocate that no criminal ever be punished by the use of violent means. And this implies, let us note, not only abstaining from capital punishment but from all punishment whatsoever, and, indeed, from all methods of violent defense that might conceivably injure an aggressor.

Clarence Darrow, for one, was unafraid of such consistency. "Let any reasoning being," he wrote in Resist Not Evil,

consider the tens of thousands who have been burned, and hanged, and boiled, and otherwise put to death for witchcraft; the millions for heresy; the thousands of noble victims who have suffered for treason; the victims of fire, of torture, of scaffold, of rack and of dungeon, for all the conceivable crimes since time began. Let him consider the oceans of blood and rivers of tears shed by the force and brutality of the rulers of the world; the cruelty, torture and suffering heaped upon the helpless, the weak, the unfortunate; and then ask himself if he believes that punishment is good. Even could violence ever prevent crime, the brutality, suffering, blood and crime of the rulers has towered mountain high above that of the weak and obscure victims whose wrongs they have pretended to avenge. And this cruelty does not abate. It is simple madness that doubts the justice of past condemnations and believes in the righteous judgments of today. No condemnation is just, and no judgment is righteous. All violence and force are cruel, unjust and barbarous, and cannot be sustained by the judgment of men.