The death penalty as a form of corporal punishment for criminals has been around since civilisation. Such punishment is imposed upon a variety of offence in the Hammurabi’s code, a code of laws developed by the king of one of the first empires, dates back from the third or second millennium before Christ. Socrates and Jesus were perhaps the most famous people ever to be condemned to such punishment[1]. Thus, history tells us that the society has for many years found the death penalty to be a form of just punishment meted out in the name of justice. This paper will examine the philosophy behind this justification and then try to prove that this justification, although applicable in the past, could no longer be sustained in the modern society. And in order to do so, the paper will be divided into two parts i.e. (i) the justification of death penalty by ancient philosophers, where will see the arguments and counter-arguments for the retention of death penalty and (ii) reason for abolishing death penalty, primarily because such abolition is part of the civilizing mission of modern states.
(i) The justification of death penalty as claimed by ancient philosophersPrincipal of retributive justice
The most basic theory justifying punishment in general and death penalty in particular is the foundational notion of retributive justice. The rational behind this notion is that criminals deserve punishment or in more simple terms, those who caused sufferings deserve to be forced to suffer. This notion is further divided into two types. The first type is lex talionis, which refers to the idea that punishment should be in a form that is equivalent to the suffering caused by the criminal or in a more biblical injunction of “life for life, eye for eye, tooth for tooth” in Exodus 21:23[2]. Second, lex salica retribution involves punishment through compensation, and the harm inflicted can be repaired by payment or atonement.
Historically, retributive justice is based almost entirely under lex talionis retribution. According to Plato, penalties act as prevention for other crimes with the exception of death penalty where it is applied in the most serious crimes such as murder and crimes against the state. Plato has said that: “…if someone is proved guilty of a murder, having killed any of these peoples, the judges’ slaves will kill him and throw him naked in a cross-road, out of the city; all the judges will bring a stone in the name of the whole State throwing it on the head of the corpse, then will bring him out of the State’s frontier and will leave him there unburied; this is the law”.[3]
In the Medieval period, Aquinas (1224-74) looking from the Christian world-view, opined that punishment (poena) is to be understood as an evil which consists in the infliction of harm upon a person contrary to the will of that person and the punishment imposed as a response to a morally evil act or fault (culpa) which has been voluntarily committed by the person concerned, and for which the person is responsible and can be held blameworthy (Summa Theologiae Iallae, q.48, a.5)[4]. Aquinas further provided a list of several capital offences which includes, “sins against God, murder, slave raiding, disrespect to parents, adultery, incest, unrepentant heretics and forgers, thieves, who execute criminals without due authority and those who kill accidentally during the course of committing some other crime, state enemies.[5]”
It is a common viewpoint of the abolitionist of death penalty that retributive justice in a form of lex talionis is rooted on the psychology feeling of vengeance and revenge and therefore barbarous and meted out without rational thinking. However, the writers are of opinion that such views are made prematurely. Lex talionis is in fact closely associated with the principal of equality, a principal derivable by the faculty of reason that all men possessed according to the legal theory of natural law. When everyone are by nature born equality under the law, then no one is entitled to obtain any advantage by breaking any law. But when violence does occur, the person who commits such violation must be punished by taking away the advantage that he has taken from the society or in other words, the equilibrium in the context of law in a society must restored. Hence, “an eye for an eye, a life for a life” or in any form that is equivalent to the suffering caused by the criminal.
It is also a common argument that lex talionis-oriented form of punishment is not practical, for it will only mean that the law must provide punishment of raping the rapist, torturing the torturer and burning down houses of arsonist. Many writers are of view that strict adherence to lex talionis is not required but lex talionis must necessarily be qualified to call for doing to the offender as nearly as possible what he has done to his victim[6].
Principal of utility
The utilitarian principal was introduced by Jeremy Bentham (1748-1832) where it is a benchmark to evaluate the effect of the law. According to this benchmark, a good law gives greater happiness to a greater number of people. In his theory, if the magnitude of pain is much greater than the magnitude of pleasure he would be expecting by the consequence of his act, then he will be prevented from doing it. In Bentham’s own words, he described that the recurrence of an offence may be provided against in three ways that is by taking from him the physical power of offending, by taking away the desire of offending and by making him afraid of offending.[7] In the first scenario, the individual can no longer commit the offence as there is physical incapacity, in the second case, the individual no longer desires to commit the offence as there is moral reformation and in the third scenario is that the individual might no longer dare to do it as there intimidation of the law. The utilitarian argument is that capital punishment deters many criminals from murder and furthermore, killing murderers prevents this crime from happening again. It is also said that the state saves money by killing murderers instead of keeping them in prison for life at the expense of the community. Hence, the scenario provided will contribute to the greater balance of happiness in the society. However, the justification of death penalty based on the utilitarian theory entails several criticisms. The first being, there is no concrete evidence to show that the death penalty provides a better deterrent as compared to life imprisonment. A survey of research findings on the relation between the death penalty and homicide rates, conducted for the UN by the in 1988 and updated in 2002, concluded: “…it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment.”[8]The second criticism concerns the ratio of innocent lives saved per execution forwarded by political philosopher Adam Bedau[9]. According to Bedau, by executing 5 criminals may indeed save the lives of 5 innocence lives in the future. However, the number of lives saved will not be increased proportionally as more criminals are executed. Eventually, it may take one thousand additional executions to save only one additional innocent life[10]. If Bedau’s calculation is correct and death penalty does in fact fail to serve its purpose as a deterrent to commit crime, then the utilitarian principal would fail because no added value of happiness will be given to the pain-pleasure calculus. However, it is submitted that neither side of the argument for and against the death penalty based on the utilitarian principle provide any conclusive empirical evidence. Retentionist claims that death penalty is indeed an effective deterrence as compared to life imprisonment because the criminal will never commit another murder once he has been executed. However, statistics have shown that prisoner officers and inmates were murdered in prison by prisoners who are serving life sentences for murder[11]. There are also contentions that death penalty is an irreversible penalty. Coupled with the fact that the justice system is administered by human beings and therefore not entirely foolproof, sentencing an innocent person to the gallows would cause the people to lose confidence in the justice system – a result which will undermine the peaceful existence of a society, creating unhappiness. On the other hand, there is no empirical evidence to prove that life imprisonment is a better form of punishment in the context of deterrence as no one when committing a serious crime like murder would ever be in a rational state of mind or will consider the consequences of his action. As a result to this, it is submitted that the argument surrounding the utilitarian principle is uncalled for and without basis and further research has to be done in balancing the weight of arguments from both sides.
Right to life and social contract
It is the contention that the right to life is not an absolute right especially in the context of a murderer. This contention commonly raised by the retentionist can be seen in two different viewpoints. Under the theory of legal positivism, a right of a person is a positive right derived under positive law, which are question about fact. Jeremy Bentham, for example said: “Right is the child of law; from real laws come real rights, but from imaginary laws, from ‘laws of nature’ come imaginary rights….Natural rights is simple nonsense….”[12]. Bentham defined law as, “an assemblage of signs, declarative of a violation, conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons who are in the case in question are or are supposed to be subject to his power”. Hence, from a positivist viewpoint, the sovereign has the ultimate power to pass laws, which includes laws which curtails a person’s right to life and laws on death penalty.
According to Thomas Hobbes, whose Leviathan transposed the idea of natural law into individualist terms, men live in the perilous and insecure state of nature authorise a sovereign to declare and enforce the rules by which they live[13]. A man in the state of nature has the right to everything, even to one another’s body. To prevent the occurrence of war and insecurity that was created by nature, the first thing a rational man does with this right of nature is to get rid of it. The ruler is thus given unlimited authority to make laws and it is the subject’s duty to obey them. Henceforth, under the rule of absolutism propounded by Thomas Hobbes, the ruler is given the power to make laws to protect the subjects from their own vulnerability. Therefore it is safe to say that Thomas Hobbes is of opinion that the death penalty is justifiable as long as it is a law made to protect the subjects.
John Locke, whose Two Treaties of Government created great impact on the declaration of America and the French revolution, define ‘political power’ at the start of the Second Treatise as including ‘a right of making laws with penalties of death[14]’. This has created the impression that in Locke’s view, a legitimate government necessarily possesses the right to impose death penalty as a punishment. Even though every human being is born with the right to life, liberty and property, the right of a murderer is forfeited by his act of killing an innocent victim. Further more, a rational man enter into the social contract with the ruler by surrendering his rights to the ruler. The ruler may then make laws to protect the interest of the subjects.
However it is pertinent to note that, John Locke’s philosophy, influential it may be, has attracted several criticism with regards to his opinion on right to life. Italian reformer, Beccaria argued that in a social contract no one will be willing to give the state power to his life, for the preservation of life is a fundamental reason one enters into a social contract[15]. Another point worth noting is that, even though the readers of John Locke’s Two Treaties of Government have understood his work in terms of the later practice of liberal, democratic and secular states, the background of John Locke is profoundly theological. The idea of secularism found within the Two Treaties of Government was in fact a document designed to justify resistance to the pretentions of divine-right monarchy threatening to abuse the prerogative powers attached to the English crown[16]. John Locke said that men are God’s property and may not dispose of each other, or even of themselves, entirely as they wish[17]. This is, of course, in line with the biblical notion of “sanctity of life”. How then does John Locke reconcile this with his later statement that political power has the right to make laws that could impose death penalty, remains a question.
(ii) Reason for abolishing death penalty
From part (i) arguments have been made to support the death penalty, so were arguments made against the imposition of penalty, and both arguments rebutting one another making the debate endless as there were clear flaws on each sides even though justified by legal philosophies. However, it is the contention of the writers that there is one good reason that states must take action to reduce the need of all forms of corporal punishment including death penalty. The reason referred to is that abolition of death penalty and other forms of corporal punishment is a part of civilizing mission of a modern state.
In The Genealogy of Morals, Nietzsche says that in the early times “pain did not hurt as much as it does today”[18]. This is of course an inevitable truth as the progress in civilisation is characterized by a lower tolerance for one’s own pain and that suffered by others. And this is appropriate since via growth in knowledge, civilisation brings increased power to prevent or reduce pain and, via growth in the ability to communicate and interact with more people, civilisation extends the circle of people with whom we empathize[19]. In short, by publicly refusing to do horrible things to our fellows signals the level of our civilisation and by our example continues the work of civilizing[20].
Earlier, the retentionist claimed that the lex talionis must be qualified and not to be applied with strict adherence except in cases of murder. It is submitted that there was a point of time where lex talionis was in fact applied strictly to all criminal offences and violation of rights, i.e burning arsonist house and torturing torturer, but through civilisation lex talionis became a qualified doctrine. And it will soon be a time, through civilisation, where the qualified lex talionis has no application at all.
Another example will be in the arena of international laws in particularly, laws of armed conflict and international human rights law. After witnessing the nightmare of the two world wars that took away lives of millions, and the aftermath of the Hiroshima and Nagasaki bombings, human beings began to look at war as a serious violation of to humanity. Peace-loving is often raised as an important agenda when it comes to settle disputes and conflicts. This clearly shows that civilisation involves the taming of the natural environment and of the human animals in it, and that the overall trend in human history is toward increasing this taming[21].
Though the crime of murder is the most severe offence, the punishment of life imprisonment is the most suitable punishment. Life imprisonment is regarded as “civilly dead”[22], for a prisoner condemned to spend his entire life in prison would suffer the death of freedom and the cell will be their cemetery. Besides, life imprisonment is a reflective pain. Physical pain in every corporal punishment, including death penalty, is cruel and inhumane as it is administered via a body, the pain is foreseen, and humanly administered death strikes us with the urgency that characterizes intense physical pain, causing grown men to cry, faint and lose control of their bodily functions[23]. This is made worse when there are laws which impose a mandatory death penalty, excluding any sort of mitigation on humanitarian ground. Laws can be administered so strictly that death penalty could be imposed upon juvenile and women[24].
Conclusion
A society is a justier society when it is limited in the degree of force it can be used against its subjects because it will require to gain its subjects trust and cooperation by offering them fairer terms. It is also the fundamental that every human being respects another’s life to live with dignity – a requirement so closely related to civilization. Hence, are we civilized enough?
[1] Dixon Cox, Justice in Retribution.7 Nov 2007 <http://www.cwrl.utexas.edu/~tonya/spring/cap/dustin.htm#WorkCited>.
[2] <http://atheism.about.com/library/glossary/political/bldef_lextalionis.htm>.
[3] Death penalty: When Life Generates Death (legally)<http://library.thinkquest.org/23685/data/greeks.html>.
[4] Brian Calvart, “Aquinas on Punishment and the Death Penalty” The American Journal of Jurisprudence (1992) page 262.
[6] Reiman, Jeffrey H., “Justice, Civilization, and the Death Penalty : Answering van den Haag”, Philosophy & Public Affairs, Vol.14 no.2 115-148.
[7] Jeremy Bentham, “The Aims of Punishment” pg 54.
[8] Roger Hood, The Death Penalty: A World-wide Perspective, Oxford, Clarendon Press, third edition, 2002, p. 230, quoted in http://web.amnesty.org/library/index/engact510022007
[9] Hugo Adam Bedau, Punishment, <http://plato.stanford.edu/entries/punishment/>.
[10]Internet Encyclopedia of Philosophy, Punishment, <http://www.iep.utm.edu/c/capitalp.htm>.
[11] Casey Carmical, Death Penalty: morally Defensible?, <http://www.carmical.net/articles/deathpenalty.html>
[12] Cranston, Maurice, “What Are Human Rights?”, The Human Rights Reader, Ed., Walter Z. Laquer,(New York: New American Library,1979),17-25.
[13] Minogue, Kenneth, “The History of Human Rights.”, The Human Rights Reader, Ed., Walter Z. Laquer,(New York: New American Library,1979),3-17.
[14] John Simmons, Locke on Death Penalty, <http://www.royalinstitutephilosophy.org/articles/article.php?id=22>.
[15] Frederick Raucher, Kant’s Social and Politically Philosophy, http://plato.stanford.edu/entries/kant-social-political/
[16] Supra note 12 p9.
[17] Ibid.
[18] Nietzsche Friedrich, The Birth of Tragedy and the Genealogy of Moral, (New York:Doubleday,1953) quoted in supra note 6.
[19] Supra note 6 p135.
[20] Ibid.
[21] Supra note20.
[22] Ibid note 20. p130
[23] Ibid.
[24] See case of :Lim Hang Seoh v Public Prosecutor [1977] 1 MLJ.
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