Ruth Scurr

"I know that he is guilty, that he is a villain, but even so, to cause a man to dieI!" According to his sister's memoirs, these words were spoken by Maximilien Robespierre before the French Revolution. The young lawyer was required to sentence a murderer to death. The execution was to be a painful hanging, possibly preceded by a protracted breaking on the wheel, nothing like the comparative speed and supposed efficiency that the invention of the guillotine would later bring. Nevertheless, his sister claimed that Robespierre came home that evening with "despair in his heart", did not eat for two days and paced the house agonising over capital punishment.

Robespierre's sister was writing retrospectively, hoping to prove that her brother was anything but the bloodthirsty charlatan vilified after his own execution in 1794. She perhaps exaggerates his youthful qualms about the death sentence, but there is no reason to believe she invented them. The young Robespierre prided himself on progressive and enlightened views; he would have been familiar with the strong arguments against capital punishment made by 18th century philosophers such as Cesare Beccaria; and he was squeamish by nature.

In May 1791, two years into the revolution, the National Assembly got around to debating France's new penal code. Dr Guillotin had already proposed that: 1) "Crimes of the same kind shall be punished by the same kind of punishment, whatever the rank of the criminal"; and 2) "In all cases of capital punishment (whatever the crime), it shall be of the same kind - that is beheading - and it shall be executed by means of a machine."

In this debate, Robespierre distinguished himself by insisting that the time had come to abolish the death penalty.

He advanced two arguments against capital punishment: first, its injustice and, second, its ineffectiveness as a deterrent. Society, Robespierre argued, has rights that individuals lack, and individuals have the right to kill only in cases of self-defence. "When society punishes a culprit, harming him is out of the question; instead, it holds him in chains, it judges him peaceably, it may use its limitless authority to chastise him and make it impossible for him to make himself feared in the future." He insisted that the death penalty confused severity of punishment with efficiency, when what was needed was a system of punishment finely attuned to the passions that drive human nature.

All this seems horribly ironic, given the bloodshed beneath the guillotine over the next few revolutionary years. Robespierre ended up defending the terror in terms of virtue and was instrumental in designing the draconian legislation that implemented it. His turnabout is a cautionary tale still relevant today. Blanket opposition to capital punishment is a difficult stance to maintain.

It always comes as a shock to recall that France did not abolish the death penalty until 1981, when Robert Badinter, the Socialist Government's Minister for Justice, demolished the "old and rickety scale of crimes and punishments". This Christmas, lots of Western liberals reconciled themselves to the hanging of Saddam Hussein on grounds that Iraq has a system of crime and punishment different from our own; it would be politically incorrect to call it "old and rickety". Seeing the ubiquitous images of Saddam's final moments, I thought of Victor Hugo's The Last Day of a Condemned Man .

Geoff Woollen, in his introduction to a recent English translation of Hugo's novella, remarks: "The intolerable thought of the judicially licensed act of retaliatory murder is what bulks largest in The Last Day of a Condemned Man." We never learn what the protagonist's crime is. For Hugo, it did not matter. He aimed to represent "prisoners of every time, be they innocent or guilty, before all courts, all tribunals, all juries and every form of justice". Hugo defended "the case of any condemned man, executed on any day for any crime", a category that includes the perpetrators of atrocities against humanity.

In the maelstrom of the revolution, Robespierre abandoned his call for the abolition of the death penalty. When Hugo revived it 35 years after Robespierre's death, he characterised the former revolutionary as an instigator of "barbarous penal statutes" not as a failed advocate of his own absolute rejection of capital punishment. In the circumstances, this was understandable. "The scaffold is the only construction that revolutions do not demolish," Hugo wrote, disgusted by his country's recent history.

We do well to remember the full complexity of Robespierre's failure, especially when our liberal theorists and newspapers waver on the question of whether or not the scaffold, in some circumstances, can be justified.

Ruth Scurr is affiliated lecturer in the politics department, Cambridge University, and fellow of and director of studies at Gonville and Caius College.