Recall the earlier discussion of retributivism: the act of murder is a
universalisation by the murderer of the killing of an innocent person, such that the
murderer wills his own death. The murderer’s will cannot be allowed to stand, so
the state must reassert its will by forcing the murderer to accept the consequences
of his willing ‘that innocent people be killed’. On the face of it, this argument seems
odd: if we execute him then we are legitimating the principle ‘that innocent people
be killed’. We surely do not think the murderer is innocent, so in executing him we
are not acting out the principle of killing innocent people. Moreover, why should
the murderer dictate to us what we should do? If the state is superior to the murderer
then surely it could choose not to execute him. This second point is extremely
important and allows for a retributivist rejection of capital punishment, but some
clarification of Kant’s position is required. What the murderer wants to do is to
kill and get away with it. In executing him we are forcing him to accept the logic
of his action – it is not an eye for an eye, but an attempt to recognise the murderer
as a responsible agent and force him to accept that responsibility.
However, even allowing for this clarification, Kant’s position does seem crude,
and Hegel’s theory of punishment, which is still retributivist, can be seen as an
attempt to offer something more sophisticated. Hegel did support the death penalty,
although he welcomed the reduction in its use, but more significantly for con -
temporary retributivists he offered a way out of requiringthe death penalty on
retributivist grounds. Alan Brudner contrasts Kant’s and Hegel’s positions (Brudner,
1980: 345–8). For Kant we are required by justice to execute murderers, for to fail
to do so is unjust to the victims. Hegel allows for clemency: ‘pardon is the remission
of punishment, but it does not annul the law. On the contrary, the law stands and
the pardoned man remains a criminal as before’ (Hegel cited in Brudner, 1980:
352). To pardon is an expression of the power of the state: to be able to apprehend,
justly convict and execute a person is enough. The state need not choose to execute
the person. Justice does not require it. The authority of the state rests for Kant on
a contractual relationship between the individual and the state, such that the state
cannot disregard the rights of the victim. For Hegel, the legitimacy of the state is
more complex: the individual realises himself in the state, such that his interests are
bound up with the state. To decide not to execute murderers is not a violation of
the victim’s rights.Consequentialism and the death penalty
Consequentialist arguments for and against the death penalty come down –
unsurprisingly – to an assessment of the consequences of the practice. Popular debate
is dominated by one particular issue: whether or not capital punishment deters
murder. However, there are a number of possible consequences, starting with some
possible positives:- The feeling of satisfaction of the victim’s family when the murderer is executed.
- The popular sense of satisfaction at the death of a murderer.
- Reinforcement of a sense of legitimacy of the legal system (especially if there is
majority support for the death penalty).
But some negative consequences must also be weighed in the balance:
154 Part 1 Classical ideas