The death penalty is so deeply rooted in the history of humanity that it will not be possible to abolish it any time soon, together with its ancestral models, such as lynching, stoning and torture. There is little use in appealing to absolute ethical values or to juridical principles held to be universal. A realistic approach suggests a careful consideration of the function the death penalty performed – and still performs – in the structures of political (...) power and in the hierarchical and repressive logic of religions, be they transcendent or nontranscendent. The struggle against the death penalty cannot but coincide with a wide-ranging political and cultural battle against the philosophies and ideologies that venerate “temporal idols” and demand an absolute faith tirelessly decreeing absolute punishments. The supreme punishment has always been a “religious penalty.” The supreme and definitive punishment is founded on a supreme and definitive certainty. The dogmatic certainty of the supreme judge knows no compassion – knows not the feeling of humanity’s common suffering and unhappiness; such certainty makes no provision for the misery, fragility and vulnerability of the human condition. Capital judgment upsets the only indisputable human solidarity – our solidarity against death. (shrink)

In death penalty debates, advocates on both sides have advanced a staggering number of arguments to defend their positions. Many of those arguments fail to support retaining or abolishing the death penalty, and often this is due to advocates pursuing a line of reasoning where the conclusion, even if correctly established, will not ultimately prove decisive. Many of these issues are also interconnected and shouldn’t be treated separately. The goal of this paper is to provide some (...) clarity about which specific issues really determine whether the institution of capital punishment is morally permissible. The issues can be broadly grouped into three categories: substantive; procedural (comparative); and procedural (noncomparative). Substantive debates regard the inherent moral status of the death penalty, while procedural debates regard how the death penalty is applied in practice, with two types of injustice that can result. Substantive issues have the potential to be the most decisive, for if the death penalty is inherently immoral there’s no need to even raise procedural questions. However, it appears difficult for either side to make a clearly compelling argument on substantive grounds. In regards to the procedural arguments, the concerns of noncomparative justice lead to stronger arguments than the comparative concerns, for the irrevocable nature of the death penalty can play a role in the former but not the later. Overall, abolitionists have a clear advantage in this debate, as they only have to make their case on one of these fronts, while supporters must defend themselves on all three fronts. (shrink)

Two distinguished social and political philosophers take opposing positions in this highly engaging work. Louis P. Pojman justifies the practice of execution by appealing to the principle of retribution while Jeffrey Reiman argues that although the death penalty is a just punishment for murder, we are not morally obliged to execute murderers.

This paper looks at the recently published text of Derrida’s 1999–2000 Death Penalty Seminars, reading it alongside a key text from the early 2000s, Derrida’s address to the Estates General of Psychoanalysis. Tracking Derrida’s insistent references to psychoanalysis in his writings on the issue of capital punishment, I argue that the deconstruction of the death penalty, in its full scope, can perhaps best be approached in the terms emerging out of Derrida’s engagement with psychoanalysis in this (...) period. If this is the case, it is because the way psychoanalysis conceptualizes cruelty ultimately opens onto to a particular thinking of life that will come to serve as a crucial lever in Derrida’s treatment of the death penalty. What emerges in Derrida’s engagement with psychoanalysis in this period, then, I argue in conclusion, is the radical thinking of finitude and mortality at the core of the deconstruction of the death penalty. (shrink)

"In this newest installment in Chicagos series of Jacques Derridas seminars, the renowned philosopher attempts one of his most ambitious goals: the first truly philosophical argument against the death penalty. While much has been written against the death penalty, Derrida contends that Western philosophy is massively, if not always overtly, complicit with a logic in which a sovereign state has the right to take a life. Haunted by this notion, he turns to the key places where (...) such logic has been established - and to the place it has been most effectively challenged: literature. With his signature genius and patient yet dazzling readings of an impressive breadth of texts, Derrida examines everything from the Bible to Plato to Camus to Jean Genet, with special attention to Kant and postWorld War II juridical texts, to draw the landscape of death penalty discourses. Keeping clearly in view the death rows and execution chambers of the United States, he shows how arguments surrounding cruel and unusual punishment depend on what he calls an 'anesthesial logic, ' which has also driven the development of death penalty technology from the French guillotine to lethal injection. Confronting a demand for philosophical rigor, he pursues provocative analyses of the shortcomings of abolitionist discourse. Above all, he argues that the death penalty and its attendant technologies are products of a desire to put an end to one of the most fundamental qualities of our finite existence: the radical uncertainty of when we will die. Arriving at a critical juncture in history - especially in the United States, one of the last Christian-inspired democracies to resist abolition - The Death Penalty is both a timely response to an important ethical debate and a timeless addition to Derridas esteemed body of work"--Unedited summary from book jacket. (shrink)

This paper aims at bringing a new philosophical perspective to the current debate on the death penalty through a discussion of peculiar kinds of uncertainties that surround the death penalty. I focus on laying out the philosophical argument, with the aim of stimulating and restructuring the death penalty debate. I will begin by describing views about punishment that argue in favour of either retaining the death penalty (‘retentionism’) or abolishing it (‘abolitionism’). I (...) will then argue that we should not ignore the so-called “whom-question”, i.e. “To whom should we justify the system of punishment?” I identify three distinct chronological stages to address this problem, namely, “the Harm Stage”, “the Blame Stage”, and “the Danger Stage”. I will also identify four problems arising from specific kinds of uncertainties present in current death penalty debates: (1) uncertainty in harm, (2) uncertainty in blame, (3) uncertainty in rights, and (4) uncertainty in causal consequences. In the course of examining these four problems, I will propose an ‘impossibilist’ position towards the death penalty, according to which the notion of the death penalty is inherently contradictory. Finally, I will suggest that it may be possible to apply this philosophical perspective to the justice system more broadly, in particular to the maximalist approach to restorative justice. (shrink)

Comment on "The ethical 'elephant' in the death penalty 'room'". Arguments in defense of the death penalty typically fall into one of two groups. Consequentialist arguments point out beneficial aspects of capital punishment, normally focusing on deterrence, while non-consequentialist arguments seek to justify execution independently of its effects, for example, by appealing to the concept of retribution. Michael Keane's target article "The ethical 'elephant' in the death penalty 'room'" should, we believe, be read as (...) an interesting new consequentialist defense of physician involvement in capital punishment. (shrink)

“What if the death penalty were a drug?” This question opens the essay and is pursued through two very different kinds of texts. On the one hand, Derrida's 1999–2000 Death Penalty Seminar is brought to bear for its analysis of what is called there the “anesthesial logic” of capital punishment. This logic, Derrida argues, has determined both pro– and anti–death penalty discourses since at least the mid-eighteenth century. On the other hand, the essay gathers (...) evidence of events that led, in 2010, to the unavailability in the United States of sodium thiopental—the anesthetic component of the three-drug protocol of the lethal injection—which forced many death penalty states to halt executions. Current events thus confirm the philosopher's analysis that anesthesia is indeed the lynchpin of the apparatus of state-sanctioned executions. But the analysis of this anesthesial logic also leads one to pose the further question of who is being anesthetized by this protocol and its discursive devices: the sentenced or the sentencers? (shrink)

This article examines distinctive American political institutions that contribute to explaining the continued use of the death penalty. In the light of wide popular support for capital punishment, strong political leadership is considered to be a principal channel for the abolition of capital punishment. The dilemma of the US death penalty, however, lies in populist features of political structures that greatly limit the political leverage and possibilities available to leaders. The institutional arrangements in the United States (...) allow public support for the death penalty to influence political decision making more directly than it can in the European counterpart. A strong receptiveness of US political leaders to the public also implies that once public opinion changes, political leaders are likely to respond to the public’s new attitude. Unlike most countries, which abolished the death penalty through political initiatives that were counter-majoritarian, the United States may abolish it only after a change in public opinion. (shrink)

In this newest installment in Chicago’s series of Jacques Derrida’s seminars, the renowned philosopher attempts one of his most ambitious goals: the first truly philosophical argument against the death penalty. While much has been written against the death penalty, Derrida contends that Western philosophy is massively, if not always overtly, complicit with a logic in which a sovereign state has the right to take a life. Haunted by this notion, he turns to the key places where (...) such logic has been established—and to the place it has been most effectively challenged: literature. With his signature genius and patient yet dazzling readings of an impressive breadth of texts, Derrida examines everything from the Bible to Plato to Camus to Jean Genet, with special attention to Kant and post–World War II juridical texts, to draw the landscape of death penalty discourses. Keeping clearly in view the death rows and execution chambers of the United States, he shows how arguments surrounding cruel and unusual punishment depend on what he calls an “anesthesial logic,” which has also driven the development of death penalty technology from the French guillotine to lethal injection. Confronting a demand for philosophical rigor, he pursues provocative analyses of the shortcomings of abolitionist discourse. Above all, he argues that the death penalty and its attendant technologies are products of a desire to put an end to one of the most fundamental qualities of our finite existence: the radical uncertainty of when we will die. Arriving at a critical juncture in history—especially in the United States, one of the last Christian-inspired democracies to resist abolition—_The Death Penalty_ is both a timely response to an important ethical debate and a timeless addition to Derrida’s esteemed body of work. (shrink)

In response to Thomas Dutoit's ambitious summary of the two years of Derrida's Death Penalty Seminars, I take up the following themes: the deconstruction of death, Hugo's “advance,” and “the principle of substitution” in Freud.

This paper argues that Immanuel Kant’s practical philosophy contains a coherent, albeit implicit, defense of the legitimacy of capital punishment, one that refutes the most important objections leveled against it. I first show that Kant is consistent in his application of the ius talionis. I then explain how Kant can respond to the claim that death penalty violates the inviolable right to life. To address the most significant objection – the claim that execution violates human dignity – I (...) argue that motives of honor, as Kant conceives it, require a rational person to will her own execution, were she to commit murder. (shrink)

So serious a matter is capital punishment that we must consider very carefully any claim regarding its justification. Brian Calvert has offered a new version of the “argument from arbitrariness,” according to which a retributivist cannot consistently hold that some, but not all, first-degree murderers may justifiably receive the death penalty, when it is conceived to be a unique form of punishment. At the heart of this argument is the line-drawing problem, and I am inclined to think that (...) it is a genuine challenge for the retributivist. I respond on behalf of the retributivist by formulating a line-drawing method that relies on the distinction between clearly deserving and not clearly deserving and is justified by a version of the lex talionis modified with an epistemic constraint. (shrink)

Dr. Ron Paul, leader of the libertarian movement and former Congressman, favors the elimination of the death penalty. He argues from both a moral and economic, or pragmatic, perspective against executions. The present article takes issue with his stance and defends the killing of convicted murderers, with some caveats.

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this _right-to-life argument_ emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work by Hugo (...) Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the _obligation to use nonlethal incapacitation_ (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground. (shrink)

The death penalty is like no other punishment. Its continued existence in many countries of the world creates political tensions within these countries and between governments of retentionist and abolitionist countries. After the Second World War, more and more countries have abolished the death penalty. This article argues that the major determinants of this global trend towards abolition are political, a claim which receives support in a quantitative cross-national analysis from 1950 to 2002. Democracy, democratisation, international (...) political pressure on retentionist countries and peer group effects in relatively abolitionist regions all raise the likelihood of abolition. There is also a partisan effect, as abolition becomes more likely if the chief executive’s party is left wing-oriented. Cultural, social and economic determinants receive only limited support. The global trend towards abolition will go on if democracy continues to spread around the world and abolitionist countries stand by their commitment to press for abolition all over the world. (shrink)

In this newest installment in Chicago’s series of Jacques Derrida’s seminars, the renowned philosopher attempts one of his most ambitious goals: the first truly philosophical argument against the death penalty. While much has been written against the death penalty, Derrida contends that Western philosophy is massively, if not always overtly, complicit with a logic in which a sovereign state has the right to take a life. Haunted by this notion, he turns to the key places where (...) such logic has been established—and to the place it has been most effectively challenged: literature. With his signature genius and patient yet dazzling readings of an impressive breadth of texts, Derrida examines everything from the Bible to Plato to Camus to Jean Genet, with special attention to Kant and post–World War II juridical texts, to draw the landscape of death penalty discourses. Keeping clearly in view the death rows and execution chambers of the United States, he shows how arguments surrounding cruel and unusual punishment depend on what he calls an “anesthesial logic,” which has also driven the development of death penalty technology from the French guillotine to lethal injection. Confronting a demand for philosophical rigor, he pursues provocative analyses of the shortcomings of abolitionist discourse. Above all, he argues that the death penalty and its attendant technologies are products of a desire to put an end to one of the most fundamental qualities of our finite existence: the radical uncertainty of when we will die. Arriving at a critical juncture in history—especially in the United States, one of the last Christian-inspired democracies to resist abolition—The Death Penalty is both a timely response to an important ethical debate and a timeless addition to Derrida’s esteemed body of work. (shrink)

Drawing from the works of Carl Schmitt, Michel Foucault, Giorgio Agamben, and Jacques Derrida, this article offers a theory of political theology for the contemporary Western liberal nation-state. Taking as its starting point the death penalty, it presents a triune theory of governance—what I call Trinitarian Governmentality—which exposes the thanatopolitical dimension fundamental to the very articulation of sovereign power and, as such, the theologico-political. It is thus only by conceptualizing sovereignty as Trinitarian Governmentality—composed of biopower/oikonomia, disciplinary power/theologia, and (...) pastoral power/eschatologia—that we can begin to address Derrida’s central question: how might we theorize a properly philosophical abolitionism for the present? (shrink)

In light of recent writing on politics and violence within contemporary continental philosophy, this text revisits Derrida's frequently articulated philosophical opposition to the death penalty. This essay expresses dismay at a certain theoretical discourse today that finds within itself the resources to mount a defence from within the humanities of political violence and by extension an overt justification of the death penalty. Slavoj Žižek's essay on Robespierre is unpicked as one such representative text. It is contrasted (...) to Derrida's scrupulous reading of Kant as an advocate of the death penalty. This essay seeks to name and question a new Maoist, thanato-theological current in contemporary theoretical writing and should be considered as an opening salvo in a sustained future challenge to such thought. (shrink)

It is a truism that there are erroneous convictions in criminal trials. Recent legal findings show that 3.3% to 5%of all convictions in capital rape-murder cases in the U.S. in the 1980s were erroneous convictions. Given this fact, what normative conclusions can be drawn? First, the article argues that a moderately revised version of Scanlon’ s contractualism offers an attractive moral vision that is different from utilitarianism or other consequentialist theories, or from purely deontological theories. It then brings this version (...) of Scanlonian contractualism to bear on the question of whether the death penalty, life imprisonment, long sentences, or shorter sentences can be justified, given that there is a non-negligible rate of erroneous conviction. Contractualism holds that a permissible act must be justifiable to everyone affected by it. Yet, given the non-negligible rate of erroneous conviction, it is unjustifiable to mete out the death penalty, because such a punishment is not justifiable to innocent murder convicts. It is further argued that life imprisonment will probably not be justified (unless lowering the sentence to a long sentence will drastically increase the murder rate). However, whether this line of argument could be further extended would depend on the impact of lowering sentences on communal security. (shrink)

This paper argues that Rwanda’s decision to abolish the death penalty should be viewed in a wider context rather than as a mere result of top–down pressure from the International Criminal Tribunal for Rwanda (ICTR). Part I traces the creation of the ICTR and the breakdown of negotiations as a result of the exclusion of the death penalty from the ICTR’s jurisdiction. It then outlines Rwanda’s efforts to prosecute the hundreds of thousands of individuals accused of (...) committing genocide-related crimes and notes the limited and steadily decreasing role the death penalty actually played within Rwanda. Part II discusses Rwanda’s legislation abolishing the death penalty and argues that both international pressure and local historical and political forces influenced the decision. Part III situates Rwanda’s story within a growing paradox of excluding the death penalty from international criminal tribunals for the most serious crimes while national jurisdictions maintain it. It concludes that as in Rwanda, any perceived or potential impact of international criminal law in national jurisdictions must be measured in light of local circumstances. (shrink)

In the United States at present, the death penalty is a possible sentence in 31 out of 50 states, as well as within the military and for federal cases. In the U.S., numbers of executions are declin...

Derrida's purpose in ‘Death Penalties’ (2004), is to show how both arguments in favour of capital punishment, exemplified by Kant's, and arguments for its abolition, such as those of Beccaria, are deconstructible. He claims that ‘never, to my knowledge, has any philosopher as a philosopher, in his or her own strictly and systematically philosophical discourse, never has any philosophy as such contested the legitimacy of the death penalty.’ (2004, 146) Derrida also asks how it is possible ‘to (...) abolish the death penalty in a way that is based on principle, that is universal and unconditional, and not because it has become not only cruel but useless, insufficiently exemplary?’ (2004, 137) In my paper, I examine Derrida's claim about the lack of systematic opposition to the death penalty on the part of philosophers and suggest an answer to his question concerning the possibility of a universal and unconditional opposition to capital punishment. (shrink)

This is a critical review of Death Penalties by constitutional scholar Raoul Berger. It rebuts Berger's argument that the Eighth Amendment "no cruel and unusual punishments" clause validates capital punishment.

The question of whether a system of criminal punishment is just, in terms of morality, can be approached from many angles. More than ten points relating to the retention or abolition of the death penalty have been raised in the dispute in the West over whether the death penalty is justifiable. In my view, it is unnecessary to address this number of issues, not simply because of space limitations that would make it difficult to deal with (...) them in sufficient depth, but also because such trivial lines of reasoning can only weaken the main argument and divert us from the topic of the justifiable grounds of punishment. I shall therefore follow an established framework--the justifiable grounds of punishment--in considering the moral integrity of the death penalty from the dual perspectives of retribution and utility within the traditional theory of punishment. (shrink)

The Black Lives Matter movement has called for the abolition of capital punishment in response to what it calls “the war against Black people” and “Black communities.” This article defends the two central contentions in the movement’s abolitionist stance: first, that US capital punishment practices represent a wrong to black communities rather than simply a wrong to particular black capital defendants or particular black victims of murder, and second, that the most defensible remedy for this wrong is the abolition of (...) the death penalty. (shrink)

The two ideals referred to are the ideal of the just state and the ideal of responsible agency. The view of Kant was that not every civil state could rightfully take the life of those that commit murder because not every civil state recognises the freedom, equality, and independence of citizens in the idealised civil state envisioned by Kant. The question is whether the death penalty can be justified in a properly constituted state even if most of the (...) civil states in the world that apply the death penalty are guilty of injustice. Kant's argument does not support the death penalty for even the worst crimes if it is unjustly legislated or unjustly administered. These arguments add weight to arguments against the death penalty. The more severe the penalty, the stronger the safeguards ought to be against its wrongful imposition. In addition to the just state, the ideal of responsible agency impinges on the death penalty. People are able to satisfy the ideal of responsible agency only if they rise above the threshold for being minimally responsible or if they rise above the threshold for being able to be held responsible. They must be able to take --by claiming-- responsibility. The ideal of responsible agency governs not only the execution of intention, but also deliberation before and after the action. A willingness to take the consequences is necessary for full-blown responsible agency. The worldly ideal does not rule out the death penalty because even in an imperfect world it does not cancel out the force of the ideal of responsible agency. (shrink)

Responding to Derrida's Death Penalty Seminar of 1999–2000 and its interpretation by Michael Naas, in this paper I argue that Derrida's deconstruction of the theologico-political concept of the sovereign right over life and death in view of abolishing capital punishment should be understood in terms of the unconditional renunciation of sovereignty that dominates Derrida's later political writings, Rogues (2005) in particular. My reading takes seriously what I call the functional need for a “theological” moment in sovereignty beyond (...) a merely historicist or genealogical interpretation of the European monotheistic heritage. Further, I ask how Derrida can follow through on his goal of developing the allegedly first principled philosophical stance against capital punishment. To this end, I assemble some ingredients of this complex but “unconditional” abolitionism, one that doubts our comprehension of and active relation to death to the point of questioning the commonsense distinctions among murder, suicide, and legal putting to death. I conclude that, for Derrida, letting another die of hunger or AIDS may be understood as a form of a death sentence, so that a deconstructive abolitionism leaves no room for the development of a good conscience. (shrink)

How should the Japanese death penalty system stand in the future? While banning the death penalty has become a global trend, Japanese public opinion still supports it, and the government continues to strongly insist retention of the system. Despite worldwide criticism towards Japanese opinion, until very recently have been no reductions in death penalty sentences or executions. Both abolitionist and retentionist countries have strong arguments to support their opinions, thus there is no decisive argument (...) that overwhelmingly refutes others. Consideration for the feelings of the murder victim’s family is significant, and there are certain actions perpetrated by the criminal which seem unforgivable and for which nothing can compensate. At the same time, homicide is a violence that should never be acceptable and therefore cannot be justified, and human error will always allow for the possibility of wrongful convictions. The authors argue that the death penalty should be abolished in principle, but we cannot deny the existence of a criminal for whom the death penalty would be appropriate. Ethically, it would be questionable to accept life imprisonment without parole as an alternative. We are of the position that there is no definite conclusion concerning the ethicality of the death penalty. (shrink)

The recent murder of two schoolgirls in Soham provoked calls for a return of the death penalty. Piers Benn examines the case for execution.