i don't know if the film goes so far as to say that the death penalty isn't right, just that people should trust the law and the law should be fairer and more just than people taking the law into their own hands.
The point of the film is also to show the hypocrisy and complexity of "civic law" or "civic justice" as opposed to the vigilante variety, because as Jed learns and protests against, Judge Fenton is often just as cruel, capricious, and wanton as the vigilantes. People should turn to civic law rather than vigilantism, but as
Hang 'em High reveals (and here's what renders the film intelligent and subversive), civic law cannot be fully trusted, either, since it's often a product of prejudices and ulterior motives (such as dictatorial egotism, abuse of authority, public spectacle and consumption, justification of bravery and heroism, and political agendas such as proving that Oklahoma Territory is ready for statehood). As a result, capital punishment sometimes becomes just as egregious when it's presided over by a judge in black robes standing under the American flag than when it's conducted by some dusty cowboys in the middle of nowhere. To Jed's chagrin, increased civility does not necessarily result in better justice, and at times the results are just as gruesome, savage, and unfair, amounting to a lynching either way. In
Hang 'em High's unswerving perspective, a lynching can occur within the legal justice system, too.
Hang 'em High could have just been a simplistic revenge Western, or it could have maintained a simple faith in the progress of civilization and the infallibility of civilized law. Instead, the motive of revenge and the genre's customary faith in civic law are thoroughly questioned, evaluated, and inverted, to the point where
Hang 'em High (while flawed and lacking the visual naturalism of the Leone movies and Eastwood's future Westerns) becomes a challenging, compelling oater. It partook of one of Eastwood's favorite films growing up (1943's
The Ox-Bow Incident, a dark, gloomy, claustrophobic Western directed by William Wellman and starring Henry Fonda), and it foreshadowed Eastwood's modern-day exploration of the fallibility of capital punishment,
True Crime (Eastwood, 1999).
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