THE ETHICAL COMMENTS ON CAPITAL PUNISHMENT

Introduction

What Is Capital Punishment

Some Scholars Views On Capital Punishment

The Ethical Comments On Capital Punishment

Evaluation

Conclusion

INTRODUCTION

Capital punishment is a very popular term in the legal parlance, and its justification has been a
controversial theme amongst philosophers. While some have argued that capital punishment is a
justified form of punishment on the grounds of retribution, deterrence, rehabilitation, closure and
vindication; others have argued in opposition of it. Amongst the latter includes the French
Philosopher, Albert Camus. Using the method of reductio ad absurdum,1 Camus argues against
the propositions of the proponents of Capital punishment. Arguing firstly against the exemplary
value of Capital punishment, he argues that a society that believes in the deterrence value of
capital punishment will not keep the citizens obscured of the act.2

However, one of the principles that determines the nature of punishments is the principle
of proportionality.3 The principle implies that a punishment should be proportional to the
severity of the crime. However, some persons are sentenced to death for crimes that do not

1
Reductio ad absurdum, which translates to ‘reduction to absurdity’, is a form of argument that seeks to show that a
thesis must be accepted because its rejection could be absurd or contradictory. It reduces a thesis or an argument to a
mere jest or caricature to bring out the foolishness or absurdity in its presentation. It concentrates on the flaws or the
illogicalities inherent in the argument to in order to debunk it. It is style of reason that dates back to ancient Greek
philosophy, most especially in mathematical and philosophical reasoning. Cf. Nicholas Rescher, “Reductio Ad
Absurdum”, Internet Encyclopaedia of Philosophy, https://iep.utm.edu/reductio/ (accessed 28.10.2022).
2
Albert Camus, “Reflections on The Guillotine” in Resistance, Rebellion and Death. Translated by Justin Brien.
(New York: Alfred A. Knopf, 1961),181
3
Ikenga Oraegbunam, “Some Basic Principles of Penal Jurisprudence: An Analytic Approach”, Journal of The
Indian Law Institute, 2010: 149.
deserve a punishment of that magnitude. This is because, sometimes, persons have no legal
backing or adequate legal representation.

Additionally, those who have been condemned to death are left to fill up the prisons
without any hint or clue as to when they will be executed. This is because no one is willing to
sign their execution order. So, living in perpetual fear and emotional torture, they keep on dying
daily for a crime that was committed just once. All these are happening in an era when, more
than ever, the sanctity of the human life and the right to live free from torture, inhuman, or
degrading punishment, as enshrined in the Universal Declaration of Human Rights, is being
upheld. Against this backdrop, therefore, this research seeks to address the ethical evaluation of
capital punishment with the methodology above.

What is Capital Punishment?

Capital Punishment is the legal killing of a person who has committed a certain crime prohibited
by law.4 Roger Hood elaborates that, while “death sentence” refers to the sentence of
condemnation passed on a convict, “execution” refers the process of carrying out the sentence. 5
He further distinguishes between capital punishment and extra judicial killing as he opines that
the latter, unlike the former, does not follow the due process of the law. 6 Conclusively, capital
punishment has been viewed as the most extreme form of punishment on a person, and may
come in any form such as by hanging, firing squad, lethal injection, etc. 7 it is also pertinent to
note that capital punishment is sometimes used interchangeably with death penalty.

Some Scholars Views on Capital Punishment

ALBERT CAMUS

Albert Camus lived a fascinating, complicated and conflicting life. However, according to David
Sherman, he had an interesting mixture of qualities.8

4
Benjamin Igwenyi, et al, “Abolition of Death Penalty in Nigeria: Juristic Issues and Solutions”, Global Journal of
Politics and Law Research. 7, No.7, (November 2019): 54.
5
Roger Hood, “Capital Punishment”, Encyclopaedia Britannica, https://www.britannica.com/topic/capital-
punishment , accessed on 14.7.2022
6
Ibid.
7
Benjamin, et al, “Abolition of Death Penalty in Nigeria: Juristic Issues and Solutions”, 54.
8
David Shearman, Camus, (West Sussex: Wiley-Blackwell, 2009), 10.
 He was born on November 7, 1913 in Mondovi, Algeria, into the family Lucien Camus
and Catherine Sintes.9 His family was classified as Pieds-noirs, a term used to show one who
was born in Algeria but were of French descent. His family was a modest family: while his father
was a cellar man in a wine company, who got drafted into the army and was killed in the Second
World War, his mother was of Spanish descent. She was illiterate partly deaf.10

However, he was diagnosed with tuberculosis in 1930, and this affected his studies,
plaguing him for a greater part of his life. Camus moved to live with his aunt and uncle,
Antoinette and Gustave Acault, in order not to infect his brother whom he shared a bed with.
There, Camus was exposed to another possibility of life, one different from the hard reality he
had always known. Albert Camus died in his 47 th year on January 4th, 1960, after a car accident
while on a journey to Paris.11

CAPITAL PUNISHMENT AND ITS INEFFECTIVENESS

The central point of Camus’ arguments against capital punishment is to show that the death
penalty is irrelevant, and its irrelevance is borne out its ineffectiveness. To prove this, he begins
by highlighting the stands of the proponents of the death penalty, i.e., the exemplary value and
deterrence, and begins dissecting their view.
More so, Camus opines that if the society believes in the death penalty as they claim, they
would give the executions the benefits of publicity, as it does for issues of national bond, or in
the advertisement of a new brand of drink. This is no longer the case, as evidenced by the
privacy that executions now enjoy. He claims that this privacy is a recent development, and no
reason has been given for it. He recalls France’s last public execution which took place in 1939;
how it drew massive crowd, journalists and photographers; and how the scary images flew all
around newspapers the following day. Sadly, that marked the end of public executions, as the
large number of the public did not endorse or approve of it.12 The government officials, who
9

10
Shearman, “Camus,” 11.
11
David Shearman, “Camus,”
12
The last public execution in France was in the morning of June 17, 1939, and it involved a German serial killer,
Eugene Weidman. His execution generated a massive public unrest, just like others before his. This led to the
abolition of public executions, for the authority concluded that public execution, which was supposed to have a
moralizing effect was yielding the opposite result. From that moment till France abolished the death penalty in 1981,
execution was carried out in the prison, before selected witnesses.
Cf. Paul Friedland, Seeing Justice Done: The Age of Spectacular Capital Punishment in France. (Oxford: Oxford
University Press, 2012), Epilogue 12 – 19.
were responsible accused the press of trying to satisfy the sadistic instinct of their readers, and
Camus averred that the society, should have rather lauded the journalists, and helped in making
the events travel far by publicizing it if they believed in the exemplary value of the death penalty
13

Camus claim is that a penalty must truly be frightening if it must be exemplary, and it cannot be
frightening if it is committed in the secret.14

Augustine of Hippo (354–430 AD)

In St. Augustine's The City of God, published in 426 AD, he wrote in Chapter I that:

The same divine authority that forbids the killing of a human being establishes certain
exceptions, as when God authorizes killing by a general law or when He gives an explicit
commission to an individual for a limited time. The agent who executes the killing does not
commit homicide; he is an instrument as is the sword with which he cuts. Therefore, it is in no
way contrary to the commandment, 'Thou shalt not kill' to wage war at God's bidding, or for the
representatives of public authority to put criminals to death, according to the law, that is, the will
of the most just reason. The City of God, Book 1, Chapter 21, and Augustine felt that the death
penalty was a means of deterring the wicked and protecting the innocent.

Thomas Aquinas (1225–1274 AD)

In the middle Ages, Thomas Aquinas reaffirmed this position. The following is a summary

of Summa Contra Gentiles, Book 3, and Chapter 146 which was written by Aquinas prior to
writing the Summa Theologica. St. Thomas was a supporter of the death penalty. This was based
on the theory (found in natural moral law), that the state has not only the right, but the duty to
protect its citizens from enemies, both from within, and without. For those who have been
appropriately appointed, there is no sin in administering punishment. For those who refuse to
obey God's laws, it is correct for society to rebuke them with civil and criminal sanctions. No
one sins working for justice, within the law. Actions that are necessary to preserve the good of
society are not inherently evil. The common good of the whole society is greater and better than
the good of any particular person. "The life of certain pestiferous men is an impediment to the
common good which is the concord of human society. Therefore, certain men must be removed
13
Albert Camus, “Reflections on The Guillotine” in Resistance, Rebellion and Death, 181.
14
Albert Camus, “Reflections on The Guillotine” in Resistance, Rebellion and Death 182.
by death from the society of men." This is likened to the physician who must amputate a
diseased limb, or a cancer, for the good of the whole person. He based this on (I Corinthians 5,
6): "You know that a little leaven corrupts the whole lump of dough?" and I Corinthians 5, 13:
"Put away the evil one from among yourselves"; (Romans 13:4): "it is said of earthly power that
he bears not the sword in vain: for he is God's minister, an avenger to execute wrath upon him
that does evil"; (I Peter 2:13–14): "Be subjected therefore to every human creature for God's
sake: whether to be on the king as excelling, or to governors as sent by him for the punishment of
evildoers and for the praise of good."15

THE ETHICAL COMMENTS ON CAPITAL PUNISHMENT

Our moral compass can be shifted by engaging in ethical dialogue fashioned in the public square.
In the Nicomachean Ethics, (1985) Aristotle argued that we learn just acts by the practice of
doing them, and the learning of the habits of justice, from our earliest years makes all the
difference in the world. For Aristotle this carried over into the public realm:

“For the legislator makes citizens good by habituating them, and this is the wish of every
legislator; if he fails to do it well he misses his goal. The right habituation is what makes the
difference between a good political system and a bad one.” Public ethics are the virtues and
principles that we share, from practice (habit), by our communally grounded understanding and
are the things we choose to do not or not do in respect to our understanding of the public good.
For Aristotle, virtues were neither feelings nor natural capacities; virtue (or ethical behavior)
requires decision and action beyond potential and emotion (Aristotle, 1985).

The conception of public ethics applied to capital punishment seeks to identify the trends and
principles that guide constructive social choices. Through the lens of public ethics, the tension in
law and justice between a utilitarian or justice based understanding of criminal punishment is
resolved. A classical Liberal understanding of crime and punishment could draw from utilitarian,
or a number of other perspectives, for example Immanuel Kant. Even so, a utilitarian approach,
strictly speaking, is not enough if geared to evaluating whether or not the act of capital
punishment, in other words the death of the condemned and the loss of life, is balanced by some
resulting social benefits. Utilitarian ethics alone does not resolve the conflict between the

15
Avery Cardinal Dulles, “Catholicism and the Capital Punishment” Last Modified 2023.
https://en.wikipedia.org/wiki/Catholic_Church_and_capital_punishment.html.
differing moral objection positions very easily. A utilitarian might focus entirely on the actual
harm or goods produced by the death penalty. In some ways America has been caught in a
looping debate in this vein. From a Kantian perspective, capital punishment obstinately resists
the application of Kant’s Categorical Imperative.

Immanuel Kant’s position on capital punishment favors its application but here again the moral
principle objection would interfere. A Kantian orientation is potentially applicable because Kant
saw Duty to the abstract moral principle defined by Reason as the final arbiter in moral choice. If
capital punishment is about a moral choice, then the Duty to act morally is prescribed by the
rational nature of human beings.

Consequently, immoral acts are violations of reason, and the moral law is an abstract principle.
Kant argued that judicial punishment is imposed for one simple reason: because a person has
committed a crime. “But what kind and what degree of punishment does public justice take as its
principle norm? None other than the principle of equality in the movement of the pointer on the
scales of justice, the principle of not inclining to one side more than to the other.

Thus any undeserved evil which you do to someone else among the people is an evil done to
yourself.” This leads Kant to argue that therefore: “All murderers, whether they have themselves
done the deed, ordered it to be done, or acted as accomplices, must suffer the death penalty.”
Kant went further, discounting the arguments of abolitionists, like Beccaria, as “pure sophistry.”

Extending the argument against abolitionist claims to its fullest, Kant opined that beyond
murder, execution may be warranted in two more crimes: in cases of infanticide and a comrade
killing his brothers in arms during time of war. Perhaps, based on a moral principle prescribed by
human reason, Kant’s rule would be sufficient for all arguments, but it relies completely on a
relationship between the autonomous individual and an abstract principle of the moral law.
Kant’s Categorical Imperative does not cut the knot of disagreement over capital punishment in
the 21st century, in part because human reason has moved the pointer on the scales of justice
since 1797.

However, moral abolitionists may argue that prison is punishment enough, and executions are
inhumane and violate human rights. They may also pin arguments on the higher costs of death
row, the pain of death, the failure of people playing God, and the danger of wrongful convictions
without resort to the possibility of either regret or forgiveness. All the same, these arguments
stem from an internal moral belief. Moral retentionists (like James Q. Wilson) will argue that
capital punishment is appropriate and morally right. Retentionists will argue that justice must be
done for extreme crimes, so the punishment must also be extreme and commensurate.

Therefore, Capital punishment can be evaluated by criteria that do not assume a moral position.
Concrete questions that emanate from the requirements of effective systems of justice may be
asked without resort to moral prescriptions. Is capital punishment: 1) swift and sure; 2) equitably
distributed; 3) cost-effective; and 4) does US policy compare favorably with other countries?
Moral judgments concerning the answers to these questions are left to the observer and later
analysis. Criminal justice systems are assessed primarily by the criteria of speed and confidence,
fairness, costs and the view of the outside world and the judgments of other nations (Wilson,
2008; 1983). Public ethics are informed by what is experienced by citizens; moral judgments
may only come later and with the passage of time.

The four questions posed respond to the question: what is the public citizenry due in the
application of capital punishment and not what is due the victims of capital crimes? If we are to
accept execution as a matter of public policy then that policy must deliver while reinforcing
primary social values.

According to the basics of rule of law principles, the punishment must not be lingering and
indeterminate, but delivered within reasonable time tables, and it must be certain to land on those
criminals we know deserve. Taking a life is an action whose consequences are permanent.
Support of executions must rest not only on prosecutorial certainty, but on the confidence that
the penalty is fairly distributed. The rule of law requires that no one is above the law, but that
also no person or group is specially disadvantaged for any reason.

Hence, to maintain retention of the death penalty, it must be proven to society that the policy and
its implementation do not impose excessive costs. If reasonable and commensurate penalties
provide the same effects in safety, security and deterrence of crime at diminished expense to all,
then it is rational to question the public good of capital punishment.16

16
Anthony R. Brunello, Politics, Ethics and Capital Punishment in America, Review of History and Political
Science), 4, No. 1, (June 2016), 13-30, https://doi.org/10.15640/rhps.v4n1a2.