Innocence and guilt, the two antagonizing forces ruling over the justice system. When one commits an injustice to another, is it not just to deliver the same form of “justice” which they have dealt? For many, punishment is a generality justified only on the grounds of happiness vs
unhappiness. While many argue that capital punishment is unjust, others argue that it not only eliminates repeat violent offenders, it also deters would be offenders as well as increasing the safety of society as a whole.
Punishment is a foundational matter of justice and, people who violate the law deserve justice for their actions and whatever punishments the law may see fit as retrubution for their actions. Punishment should be, “equal to harm.” Traditionally, theorists have described two forms of
retributive justice, lex talionis and lex salica. Lex talionis more commonly associated with the phrase “an eye for an eye”, which is the primary notion behind capital punishment. While the latter involves punishment through compensation and the harm inflicted can be repaired through
payments or atonements.
Historically, capital punishment has been mostly associated with lax talionis in that :
“If a builder builds a house for someone and does not construct it properly and the house which he built falls in and kills its owner, then that builder should be put to death. If it kills the son of the owner, then the son of that builder shall be put to death.”
The second sentence pertaining to the rationale that “if the [house collapses and] kills the son of the owner… then the son of that builder [should] be put to death” contains no real rational justice. Although the son of the owner may have been innocent, the son of the builder may not have had any hand in building the house and is also therefore innocent, so therefore it is unjust to punish an innocent person for the harm committed by another. Obviously, the above rationale on Babylonian justice is not only flawed in various manners, but is also lacking practicalness, inadequate and unjust, very much like the justice dealt when dealing death penalties. Unfortunately, lex talionis cannot rationally be uniformly applied to every human harm committed. For example, a man intentionally kills his neighbor in a fit of vengeance while another man accidentally kills his neighbors as he is attempting to break into his house. Both are charged with the same initial crime: murder, but does justice equate itself to deal the same punishment for the
man who kills with intent vs. the man who kills in self defense?
Lex talionis is not only impractical, it is also inadequate, for example, if a WWII German Nazi murders thousands of people then is placed before a jury at the Nuremberg trial, there technically is no justice in the form of punishment available which can equate to the weight of a thousand
lives. There may be justice dealt for one person if the war criminal was executed, but what of the other nine hundred and ninety-nine? Would there be equal or fair justice to try and take an “eye for an eye”, when there is only one war criminal to punish and thousands of victims in need of retribution? Lastly, the foundational beliefs in general have the unfortunate consequences of proving themselves arbitrary. If belief in lax talionis retribution is foundational, then by definition, it cannot be defended by appealing to a prior set of reasons. The arbitrary nature of
this patricular notion is clear when we see that there is an alternative retributive view of punishment which is equally foundational yet which does not require capital punishment, predominantly lex schica retribution.
Lastly, critics of capital punishment (supporters of the lex talionis rationale) argue that the true basis of retributive justification of capital punishment is not at all foundational, but instead, is deeply rooted in feelings of vengeance. Given, even if vengeance is granted as a natural humanemotion, critics argue that it is an impulse which should be tempered, just as we do natural inclinations of fear, lust and anger. However, principles of justice, primarily those pertaining to punishment, should not be undermined by our extreme feelings, but should instead, be based on our more tempered ones. Only when the natural feelings of vengeance are moderated, only then will the inclination to execute criminals diminish.
The famous philosopher Immanuel Kant proposed an alternative to capital punishment which was not predisposition in vengeance: capital punishment is based on the idea that every person is valuable and worthy of respect because of their ability to make rational and free choices.
Likewise, a murderer is also worthy of respect by treating him with the same like respect which he declares that people are to be treated. Thus, he should be executed, for his idea of respect to other entails taking ones life, so therefore, it is justified that his life should likewise be taken.
However, capital punishment dictates to us what should be done with only rational killers, who more then likely deserve death, unfortunately, not many killers are what we define as rational human beings.
With this in mind, the question pertaining to why capital punishment was initially justified. John Locke argued that a person relinquishes his rights when committing even minor crimes as his defense for capital punishment. Once rights are relinquished, Locke justifies punishment from two perspectives: retributive and utilitarian. Retributive punishment entails around the ideal concept that criminals deserve punishment, whereas the utilitarian position claims that punishment is needed to protect our society by deterring future criminals by setting an example.
Inversely pertaining to the later of the two, society may punish criminals in any way it deems necessary so to set an example for other would be criminals, including the possibility of taking his life away. But in reality, some studies indicate that the death penalty may actually have played a hand in increasing te number of murders. “A recent study in California found that the average annual increase in homicides was twice as high during years in which death penalty was carried out, rather than in years during which no one was executed.” (Center on Juvenile and Criminal Justice) While “[a]nother study [conducted on] executions in New York form 1907 to 1963 (when NY was executing more than any state) found that, on average, homicides increased in the month following executions.” (Bowers and Pierce)
Whereas in places where capital punishment is no longer practiced (and coincidently also posses the lower homicide rate vs. places who do) retributive punishment replaces capital punishment by incarcerating the criminal for the rest of their life without the possibility of parole, which can
metaphorically equate itself to taking their “life” (IE: their livihood, freedom, democratic rights, etc) without physically killing them. Throughout the years, capital punishment as well as its underlying component lex talionis rationale, has become not only irrational and inhumane, but also unjustified. A good majority of people on death row are typically poor and could not afford the best defense at their initial trial. Records show that innocent people have been executed because of human imperfection and such mistakes are avoidable.
Capital punishment should no longer be practiced because it is undignified, inhumane and contrary to love. Dignity, humanity and love are foundational moral goods and are such prima facie in nature; they are morally binding on face value until a stronger duty emerges with which it
conflicts, in which a moral dilemmas should arise. Even if it is granted that capital punishment violates or duty to treat people with dignity, humanity and love, that alone may not justify a satisfying reason to abolish the practice. On the contrary, defenders of capital punishment have argued that retributive justice is one such conflicting duty against our basic duty of dignity, humanity and love. As rational humans, we are inclined to acknowledge the criminal’s dignity, however duty of retribution is also present and is out weighs the other duties. Unfortunately, when dealing justice, it is virtually impossible to apply death sentences fairly. Ironically, it is in the quest for fair and impartial justice, which the greatest injustices have been committed.
VRB