The Language of Argument

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A n ex a m p l e o f R e c o n s t r u c t i o n : ca p i t a l P u n i s h m e n t

We can then restate this supporting argument more carefully:

(1) Very few criminals who were found guilty of crimes that are

punishable by death are actually sentenced to death.

(2) Among those found guilty of crimes punishable by death, who is

sentenced to death depends on caprice or race.

(3) It is unconstitutional for sentencing to depend on caprice or race.

(4) A punishment is unusual if it is imposed infrequently and on an

unconstitutional basis.

∴(5) The death penalty is an unusual punishment. (from 1–4)

This conclusion is part of the first premise in our original argument. Now

we can spread the entire argument out before us:

(1) An act is cruel if it inflicts harms that are much worse than what is

necessary for any legitimate and worthwhile purpose.

(2) The death penalty inflicts harms that are much worse than what is

necessary for any legitimate and worthwhile purpose.

∴(3) The death penalty is cruel. (from 1–2)

(4) Very few criminals who were found guilty of crimes that are

punishable by death are sentenced to death.

(5) Among those found guilty of crimes punishable by death, who is

sentenced to death depends on caprice or race.

(6) It is unconstitutional for sentencing to depend on caprice or race.

(7) A punishment is unusual if it is imposed infrequently and on an

unconstitutional basis.

∴(8) The death penalty is an unusual punishment. (from 4–7)

∴(9) The death penalty is both cruel and unusual. (from 3 and 8)

(10) The Constitution prohibits cruel and unusual punishments.

∴(11) The Constitution prohibits the death penalty. (from 9–10)

(12) Anything that the Constitution prohibits should be declared

unconstitutional.

∴(13) The death penalty should be declared unconstitutional. (from 11–12)

These propositions provide at least the skeleton of an argument with some

force. The conclusion does seem to follow from the premises, and the

premises themselves seem plausible. We have produced a charitable recon-

struction of the argument.

This reconstruction enables us to see precisely how opponents can re-

spond to the argument. Some opponents might deny Premise 2 and claim

to the contrary that the death penalty does serve a legitimate purpose, such

as retribution, deterrence, or incapacitation. Other opponents might deny

Premise 5 and claim that courts do have good reasons for the death sen-

tences that they approve. A more subtle objection denies Premise 7, because

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