Capital Punishment S. Lourdunathan

8/12/2019 Capital Punishment S. Lourdunathan

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The Absurdity of Absolute Punishment:From Redistribution and Deterrence towards Restoration

S. Lourdunathan

1. Death and Punishment are contradictoryin any conceivable possibility. Death is anend whereas punishment is not an end, but a process towards, a means for somethingbetter. The problem of death punishment is a problem of tactfully conjuring both an end

and a means as if death and punishment as one and the same as Death Punishment. Is it

not absurd?

1.1. Since Death-punishment is enforcing an end-to-life, an end itself, but punishmentcannot be considered as an end itself rather a process-towards. As a process-

towards, punishment is to be considered as a method of/for

correction/reformation/progression. How on earth, once ending life can be

punishment? There is a world of difference between both. It is like feeding the

deadly poisonous snake at home still claim that it not bite and even if it bits it will

only bite the criminals who enter the house. Is there any guarantee the house

owner himself be not bitten by it or the house owner legally arrange it in such a

way that the snake bites the vulnerable and conspired ones? Should the snake be

killed or let the victim to be killed to death? Is it not absurd that Indian democracy

still retains death-punishment as legal?

2. Means cannot justify its Ends:This is one of the positions that our honored nationalfather Gandhi himself notably considered it. If X needs money or wealth (let us say an

end) it is not legal and not moral that s/he can assume that it is right to steal the money

from another person to achieve his/her end i.e., money. The end being death, an

absolute end to life, it cannot be conceived as a matter of ones achievement throughpunishment, I think it is a legal-fraud to bestow death as punishment. Something is

seriously missing here. That is why I call Death-Punishment is absurd.

3. Death (dead-end) is absolute where as punishment is conditional:Bringing togethermutually contradictory concepts i.e. death vs. punishment, as death-punishment is there a

serious sense of deceit and deceptiveness and invaliditation. It is deceptive and deceit in

the sense that killing to death is pretended and presumed to be a punishment.

4. This is a form of quadruplicatingpurposefully brought together as to appear to be rightand valid. What is absolute cannot be conceived as conditional; what is conditional

cannot be projected as absolute. Linking death which is absolute, with punishment which

is conditional implies a strong derogatory use of politics of power tactics rather than a

Head & Associate Professor,Dept of Philosophy, Arul Anandar College (Autonomous), Karumathur, Madurai

625514, Mobile: (0)9566477696.


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matter of legality. Is it not an absurdity to play politics in law and law to gain political

supremacy?

5. Death is natural whereas death-punishment is against-natural:Death or Mortality isnatural which constitutes the very nature of the natural world of human beings. Death is

not a matter of arbitrariness and someones choice. If so, it is inappropriate to assume that

someone has the power/capability to pronounce and cause death and that too as form of

punishment. is it not absurd to hold a law that someone is empowered to pronounce

death to somebody else when s/he find him in disagreement? None has any right to cause

the end of the natural by means of an unnatural act namely punishment (even if it said

legal). Between the natural and the unnatural, is there an impassable gap. The legal

system seems to be invested with or inflicted too much of power to the extent of

causing death-punishment. Is this not only absurd but atrocious? Hence, to consider

death as a form of punishment is inconsistent and irrational.

6. What is the response of religions world viewswith reference to Death-Punishment?6.1.

One can perceive how the cultural histories of various religions and theirhierarchical leaderships have practiced death-punishments against those who

contested or opposed their religious pronouncements. For instance, church

history, Islamic orthodoxy and Hindu caste configurations contain innumerable

instances of killing or death-punishing those who opposed or violated their

canonical territories. Their so-claimed spiritualities are not spiritual in absence

of shedding the blood of their opponents. Therefore one cannot unwittingly

position that the culture of religions promoted crusades against death-punishment.

In fact and infectiously religious orthodoxies were the alpha and practitioners of

death-punishment. For instance within the Church history the description/naming

of those who do/did not accept the church-canons were dumped to be variants,heretics, sinners iconoclast; blasphemous, Satan, devil and hence condemned to

be punishable by church laws if need be by death-punishment. St. Thomas is a

vociferous supporter of death punishment and he wrote in his Summa Contra

Gentiles,Book 3, chapter 146: 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. 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 by death from the society of men." (Being part of such sinful

system is equally sinful without repentance and probably that is what is meant by

we as humans are carriers/vehicles of holy sin; that is a different story

altogether). Of those who were death-punished by the ruling States (Roman

History) the church differently described them as martyrs, witnesses of truth,

crusaders, saints, etc. if people opposed they are named heretics and atheists and
http://www.google.co.in/url?sa=t&rct=j&q=heretics&source=web&cd=1&cad=rja&sqi=2&ved=0CC4Q_SooBDAA&url=%2Fsearch%3Fbiw%3D1092%26bih%3D533%26q%3Ddefine%2Biconoclast&ei=89z3UdHwCsnsrAeZ5oCgCw&usg=AFQjCNEkumRwlX3MD-8AN6BVOvVkUn2Pswhttp://en.wikipedia.org/wiki/Summa_Contra_Gentileshttp://en.wikipedia.org/wiki/Summa_Contra_Gentileshttp://en.wikipedia.org/wiki/Summa_Contra_Gentileshttp://en.wikipedia.org/wiki/Summa_Contra_Gentileshttp://en.wikipedia.org/wiki/Summa_Contra_Gentileshttp://en.wikipedia.org/wiki/Summa_Contra_Gentileshttp://www.google.co.in/url?sa=t&rct=j&q=heretics&source=web&cd=1&cad=rja&sqi=2&ved=0CC4Q_SooBDAA&url=%2Fsearch%3Fbiw%3D1092%26bih%3D533%26q%3Ddefine%2Biconoclast&ei=89z3UdHwCsnsrAeZ5oCgCw&usg=AFQjCNEkumRwlX3MD-8AN6BVOvVkUn2Psw


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tradition. What is required is to see the irrationality between these two events as if one

causes the other the crime causing its punishment. One does not necessarily cause the

other. We could treat them separately. Legal intelligence I believe needs to be rationally

equipped rather than acting in the manner of causal or equal retaliation. If cause-effect

relation is ascribed, then it would be a chain of action-re-action events ad infinitum, a sort

of revenge in continuum. I believe, by becoming more humanizing society we need to do

away with this sort of retaliating, revenging, causally connective type of laws that are not

only inhuman but deep down logical absurdities. Should the crime be treated as the cause

to produce the effect called death-punishment? Are they not separate human actions? The

one be the criminal and the other by legalized criminal? Can both not be prevented? The

point of argument is that the event or action namely crime is not necessarily related to

produce the effect namely death-punishment. Such tactful-legal is therefore is illegal,

arbitrary, and a matter of culturally transmitted infectious sickness (constructions) rather

than a matter of democratic law.

8.

Intentionality of Death penalty is killing not punishing:Meaning is not only matterreference to certain prescribed code of law rather it is intentional. Death penalty serves

the purpose of intentionality to end the life of an individual but unfortunately treated as

referential to a set of laws in the constitution. The ethics of intentionality rather than the

practice of preferentiality to a set of legal administration. Death penalty is but putting an

end to life is but a premeditated, well-planned act of killing and not necessarily an act of

punishment in the sense of inflicting some pain in order that the victim is either reformed

or has choice to resist his death penalty. Death /capital punishment is an intentional,

premeditated act of killing, or ending life and it cannot treated as a punishment for

punishment is a sort of inflicting harm for reasons of corrective measures and

reformation. Death penalty cannot be decided by opinion poll or by the so-called juryslegal intelligence and capability to the point of proving the case against the culpable, for

it is the question of pronouncing death and not announcing life and hence I believe, death

penalty if at all to be legal code should have a strong rationale and moral basis.

9. The law stands in need of liberation from its criminality:This means that the legalpractice of Death punishment calls for a very serious rationale. Hence the question is

what is that solemn rationale our legal system provides for such hazardous act of law

called death-penalty. In other words, on what grounds death punishment is justified or

justifiable by the court of law?What are the moral-rationale on the base of which death

penalty is built upon?These are intriguing issues require sufficient exposition?

9.1. Prima facieDeath penalty cannot be law as such and it cannot be an ad hoc issueto be considered by an ad hoc committee as a matter of ex post facto. To begin

with let me make a distinction between a rule and a law. A rule for instance one

has to kick the ball by foot in foot ball is a rule of football game. It is not a law

like what we have in the court of law. A rule is not a matter of moral

consideration. If you do not kick the ball by foot, it is only a fault. There are no


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moral grounds to say that it is morally good to kick the ball by foot. But the

issue of law, I believe, is different. A law should have necessary moral

governance and underpinnings. It is morally right and good stop the car on the

sight of the red-light is more than just a rule because if you do not stop the car,

you are bound to create injuries to other persons. There is moral issue involved

here. A rule is different from law; a rule need not have any moral justification.

Death penalty cannot be treated like that of rule to kick someone out of the

football court because he disobeyed the rule. It is a question that demands

necessary moral grounding. Death penalties is not a matter of capably quoting

certain laws and argue that someone has disobeyed this-and-that laws as per the

constitutional acts/laws and therefore be judged to death-punishment. A law gains

its status quo not because it a rule but by its moral ground or

justification/sanctification.

10.The legal vs. ethical: We need to take into account the fact the legal is distinguishablefrom the ethical. What is legal is not necessarily ethical. An act may be legal but it isnot necessary it is ethical. Abortion may be legal but necessarily ethical. The Legal is

not unconditional but conditional. What is conditional is only relative and not absolute

and therefore the conditional cannot be universal or universalized. What is legal is only a

matter of relative agreement but not necessarily an absolute moral principle. Therefore

death punishment is unjust.

11.There are usually two important moral principles of justification that augments thelegality of death punishment. They are said to be:

11.1. The moral principle/idea of retributive justice and11.2. The moral principle of deterrenceGenerally these are the moral-legal that seems to justify death-penalties in the court of

law. The question is, to what extent of how these moral grounds or principles are

justifiable to uphold death penalty. This is the question I think that needs to be considered

seriously. Do these principles suffice to provide defensible grounds for

enacting/continuing death penalty? I argue that they are not.

11.1.The principle of retributive justicepresumes the idea that specific criminal acts

be paid-by-deathand it is good that some people deserve death for their crimes. The

principle of retributive justice assumes that death-punishment is an equal burden of

treatment meted out to the criminal. As a moral theory of justice, it considers death-punishment is in proportion to the crime that is committed by the offender. This means

that the qualitative measurement of the crime is in equal measure of the punishment.

The reason why I claim that the retributive principle as distributive of justice is not fair

because (i) the principle presupposes and takes for granted the idea that death punishment

is an equal/fair treatment/in proportion with the crime that is done as a way of retaliation.

More than an equal treatment, the principles is founded upon or operates on the basis of


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retaliation (lextalionis) rather than a form of distribution of justice. The point is, even if

the crime is so heinous/dreadful, there is no qualifying measuring scale on the base of

which justice can be re-distributed equally to the tune of the gravity of the crime

committed. The principle that death punishment best fits into the crime of the murderer

turns out to be extremely difficult to decide or interpret. Hence such authorized-killing is

in a sense an authorized criminal (justice) system. Since the justifying moral ground i.e.

the principle of justice as retributive, by/in itself is unjustifiable, the principle of justice as

death punishment unjustifiable and unjust. What is not rationally justifiable is not legal

and what is not legal is not necessarily moral. Thus the principle of Justice as death

punishment is self-defeating for one cannot qualitatively measure the equal proportion on

par with the crime that is committed. Moral restrains, prohibit from trying to enact

executions perfectly retributive. However the issue is: -to make someone suffer for a

criminal act is different from the idea that someone must be put to death.

11.1. 1. Moreover, the principle of retributive justice as distributive of Death punishment

is inclusive of the idea of taking revenge, a kind of vengeance; can pay-by-death be a

distributive of justice by means of revenge? Can a State or Nation inflict death and that

too as punishment in the sense of taking vengeance or revenge? If yes, can we say that

the so-called civilized nation as yet-not-civilized? Can we say that though we claim civil

society we basically refuse to be civilized by the court of law & order? That is to say,

the theory of retributive justice is but a theory of vengeance legalized. An act of

retaliation cannot be an act of justice and retributive of justice. If so, death punishment in

letter as a theory of justice but in actuality it is a legalized/standardized practice of

violence/violation against the life of the individual. If agreed, shall we say that death

punishment is an official, bureaucratic design to eliminate the defenseless person(defenseless of to prohibit ones death (as punishment) against the mega-machinery

called government. A state and its governance in a civilized society, is a social contract

whose primary function is to protection of the individual by sufficient means of

prevention rather than pronouncing elimination or death of the individual. The state has

to protect its citizens from forms of violations and discriminations. If the State violates,

what kind of death punishment that has to be meted out then? The principle of justice as

death punishment at any strength of its argumentation cannot be said either in terms of

protectiveorpreventiveacts. On the contrary, the theory of justice as death punishment is

legally-performative of killing. So, the rationale of this principle is irrational and

groundless. On what account the so-called death punishment is equally re-distributive ofequality is still an unsettled within the legal theoretical platforms.

11.2. The principle of deterrenceis the other major moral concern that on the base of

which Death Punishment rests upon. The supporters of the idea of deterrence argue that

death punishment must be retained in order that such punishment is deters/prohibits

potential criminals from committing death-crimes. Deterrence is the use ofpunishment as
https://en.wikipedia.org/wiki/Punishmenthttps://en.wikipedia.org/wiki/Punishment


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a threat to deter people from offending. Deterrence is often contrasted withretributivism,

which holds that punishment is a necessary consequence of a crime and should be

calculated based on the gravity of the wrong done. Does this position justify death

punishment?

11.2.1. The principle of deterrence may sound intuitively right the right to kill in orderthat potential/possible criminals and death-crimes could be restrained from; the argument

cannot be justified as it assumes that the present condition be the same in future, a way of

deciding the future events on the basis of the past. Put it differently it is like saying that

humans are mortal so far and hence humans will be mortal in future. If not, State is

authorized to bring about mortality by authorized means of making the living humans as

immediately-mortal. Though intuitively the argument sounds strong but de facto is it

agreeable on rational grounds? What is the guarantee the future be the same as that of the

past. Moreover the empirical evidences do not tell that we have legally caused death-

punishments to the effect that there will not death-crimes in future? Such a position

remains ridiculous if not moral. It is like saying one kills his dog in order that other dogs

will not bite him and it is done as a warning so that any other dog would not to bite. By

killing or death punishing one person does not in any way guarantee that crimes and

criminals be controlled. Death punishments so far did not deter death-crimes and

criminals and this means that death punishment as deterrent principle is a malfunction

and therefore it ought to be annihilated and deterred. The powerful-enough escape capital

punishment

Heinous criminals are the second category of death row inmates who should not have to

wait any longer for their punishment. In fact a large number of heinous criminals are

repeat offenders? Some have also done a repeat offence while on bail? If the enactmentof deterrence does not deter the crimes/criminals, what is utility of such legality of death-

punishment except enacting organized/authorized legal practice of killing or taking away

of the life of people. This means that both the victims and victimizer do not have any

strong rational and moral ground either for death-crimes or death punishment. By

imploring death directly any civil society cannotclaim that it is an indirect way of

inducing fear from the possible criminals. Is punishing to death a resource to

prohibit/prevent any further or future death-crimes? The sociological or empirical

evidences do not say so.

12.Since death punishment is neither sufficiently retributive of justice norpreventive/deterrent of death-crimes death-punishment suffer from any serious rationale

and moral grounding. If justice is considered as fairness, then it is not fair to bring an end

to life by the weakest possible amplification of both retribution and deterrence.

13.Social Activist and the victims perspective13.1. Sociological and empirical evidences of death punishment so far, are mostly

enacted against those who do not possess the political/legal/economic
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power/capital to bargain against their death punishments, i.e. among the number

of those who have been vindicated of death punishment, the powerless have been

imposed of death punishment whereas those who posses power often escaped or

legally protected themselves from any death punishment though they are

criminals to be punished of death punishment. The victims of death punishment

are in many cases are the vulnerable, the minority, the poor, and the socially

disadvantaged. Capital punishment seems to be very active on those who lack any

capital to buy the system. This amount to raise doubts: -Does it mean that the

rich and the politically powerful are not death-criminals? It does mean that those

who do not have the capital do not have the capability to resist death penalty and

hence they are subjected to capital punishment as defenseless. The noose most

often is tightened on the necks of the powerless who cannot afford to buy or pay

lawyer and they are paid by death penalty.

13.2. The persons who are accused of death penalty go through long process of trial,isolation, inhuman ill-treatment, separation during when s/he is forced to suffersevere psychological trauma and mortification-towards death and repeatedly

threaded to be judged to death. Through process of pre-meditated process s/he is

finally hanged to death, by that time the so-called criminal is half dead. The

painful process itself seems to be retributive of justice for the crime.

13.3. For the same case, the empirical facts state that there are diverse conclusionsarrived by Individual judges; the juries/benches had given different verdicts in

similar cases. This only projects the weakness and fragility of the legal

judgments and its allied legal codes. This means that one cannot play with the life

of the individual with a fragile legal code. When the legal instrumentality itself

is so weak to attribute different possible conclusions, the issue is at whose cost,such fragile legality is practiced; it cannot be done to the extent of forsaking ones

life and on what/whose authority death penalty is pronounced

14.Being a modern civil society means abolition of death penalty:If we constitutionallyclaim that human society is modern and we are the members of s civil society then it

directly means that we are part-takers of modernity and its hard-earned democracy.

Modern society is not a primitive society that decides death penalty for any offender.

15.Beyond primitiveness:We have moved away from the primitive types of punishments,we have moved away from the killing-instinct of the fellow-humans for reasons of

survival of the fittest. Humanity has evolved from crude brutal forms of living to a more

civilized way of living. Taking away life-for-life is canonical offshoot of the an eye for

an eye typeof punishment. The principle of an eye for an eye being a practice of the

primitive traditional form of society, the modern society should not exhibit such wicked

practice in being a civil society. Being democratically rationally and scientifically

modern does not mean state-organized killing or death punishment. Any modern

democratic State is constituently grounded on the premises of certain fundamental values


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(irrespective of our abhorrence towards the heinous crimes that individual commits). The

state is a configuration of individuals and their corporate will through social contract

which upheld the principles and ethics of humanism, right to live, protection of the life of

the individual.

16.Against the pri nciple of r ight to l ive:Since death punishment in a very strong sense issort of primitive authoritarian butchery, the modern state cannot afford to still hold death

penalty in its legal culture. Death penalty, as I said earlier, is planned murder, even if the

State authority pronounces it, it is representative of the collective will of the individuals

in the State. Legal representation is to protect through prevention not by annihilation of

the life. There should be other modern ways of preventions of dreadful crimes and

criminals and not necessarily by enacting an absolute irrevocable, cruelty called death-

penalty. One needs to resist the system which does not represent the collective will of the

society; one need to resist the programmes of the system which is anti democratic; one

need to protest against the system that is antithetical to the law of the protection of the

right to live of any individual. The modern state is built on the historical defense ofhuman rationality, autonomy and self-worth. Death penalty then is an erosion of the idea

that humans are autonomous ego. What right is there for the State legality to go against

such basic principles of a modern state?

17.Against the principle of equali ty and fai rness:On the similar grounds of a democraticnation, one can position that Death Punishment is against the principle of equality and

justice i.e. guaranteed by any democratic nation. It is against the principle of equality, the

principle that all are equal and equal rights to life. By imposing death punishment, the

legal governance is antithetical to the principle of equality and thereby purportedly

promotes inequality.

18.In the model of the other democratic nations:Perhaps this could be one of the weakestdefenses against death punishment: (i) Many European countries abolished death

punishment and they have done so after careful considerations, and hence it follows that

country like India whose democratic constitutional is modeled after many modern

European democracy, has to deliberate an amendment to the effect that death punishment

be abolished. Instead of premeditating to pronounce death the state legality could very

well premeditate on the ways of means of protection of individual lives. (ii) Those who

are grounded on ideologies like humanism, secularism, even veganism ascribe to the

position that death punishment is anti-humanistic, anti-secular and it is a legalized

murder (killing the life for life is dignified). Therefore death punishment must be

dissuaded. The irony is one of the Indian cultural pride is that of vegetarianism and it is

paradoxical to hold human butchery which is projective of plant vegetarianism. Where

from and from which culture have we still retain or inherit this vicious legality.

19.From reduction of pain towards restoration of life: In India, over the last threedecades, the issue regarding death penalty is encircled on the issue of reduction of pain

at the moment of execution/death sentence rather that removal of the Capital


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Punishment. There is world of difference between reduction and removal. The

distant/difference is between primitive society and modern civil society. The difference is

between animalism and humanism. The Buddha icon about which the Indian State is

proud, knows very well that Buddha, the enlightened upheld the fundamental principle

i.e., the principle of annihilation of pain. Perhaps we have taken it to mean so literally

that our legal monsters continue to discuss on pain-reduction philosophy rather than a

philosophy of restoration of life.

20.On the emotional grounds, there are those who claim that death punishment is just andemotionally gratifying if and when it is enacted on those persons (criminals) who killed

his or her dear ones. What is emotional is not necessarily legal and what is moral need

not be moral. They are mutually distinguishable issues. Should our legal be emotional?

How long and at whose expense is the question that needs deliberation rather than the

legal practice of judgment based on laws?

21.Restoration of lifenecessarily means abolition of absolute/death penalty absolutely givento its incredulity due its fragile foundations. The Buddha when speaking of annihilationof suffering alternatively implores restoration and protection of life. Rather than

specializing on criminology I belief it is better to specialize on the issue of de -

criminalization invested in our criminal-laws. As members of humane society we

believe that humans should neither be the victims of death-penalty nor be executioners of

death penalty.

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Capital Punishment S. Lourdunathan

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