Jennie human life. Secondly, it is impossible to

Jennie
Kim

January
29, 2018

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PHIL
106

Final
Paper

 

Capital Punishment is a penalty to permanently
remove the criminal from the society by depriving the criminal’s life.  It is also referred to as the ‘death penalty’
or the’ maximum penalty’ (extreme penalty). Theoretically and academically, the
abolition of the death penalty seems more persuasive. To a significant portion
of the population, society without the death penalty is perceived as the better
society. Most industrialized countries except a few including United States and
Japan have abolished the death penalty, so there is a biased perception that
abolition of the death penalty leads to becoming an advanced nation. However,
this logic is not that simple. Firstly, the death penalty is inhumane as a
national murder that deprives the noble human life. Secondly, it is impossible
to recover from misjudgment. Third, the death penalty can be abused as a means
of suppressing political, racial and religious minorities. Fourth, the death
penalty is one in which there is no deterrent against infamous crimes.

The process of
justifying something is inherently associated with the process of persuading
someone to accept it. When
attempting at justifying a certain belief, the intention is to demonstrate
reasonable grounds for people to believe it. It is easy to understand to whom we justify
punishment when that punishment is administered by, for example, issuing a
parking ticket. In this case, we persuade violators to pay the fine by bringing
to their attention the harm that they have caused, harm which needs to be
compensated. While we often generalize this process to include people in
general or society as a whole, the process of justification would not work
without convincing the people who are directly concerned, at least
theoretically, that this is a justified punishment, despite their subjective
objections or psychological opposition. In other words, in justifying the
application of the system of punishment, we should satisfy the condition that
each person concerned is aware of having no grounds to reasonably reject the application
of the system, even if they do in fact reject it from their personal,
self-interested point of view. For example, terrorists might not understand the physical treatment inflicted on
them in the name of punishment as a punishment at all. Rather, they might
interpret their being physically harmed as an admirable result of their heroic
behavior. 

The death penalty system has to be
implemented on the grounds of the following arguments. Firstly, there is a
maxim that ‘an eye for an eye, a tooth for a tooth’.  My idea is as same as this contention. A
person who has committed a homicide deserves certain death.  Those who are insisting on the abolition of
death penalty saying that it is infringing on the human dignity must recognize
the criminal has already infringed on the human dignity with his/her own hands,
which is an illogical contradiction on the matter of human dignity and so
forth.

In addition, the claimants of the
abolition of the death penalty are also raising the “possibility of misjudgment.”
Conversely, misjudgment should not be limited to not only in death penalty
but in all punishments.  Of course, this is a directly connected to
the human life, but there is little doubt that a case of unjustifiable conviction
for the rigorous trial that requires evidence to be convinced of guilt is rare.  Also, even if a misjudgment is made, it is
impossible to abolish the system itself due to a small number of misjudgments.

If you do so, you will have to abolish all penalties, police, prosecutors, and
courts that suppress crimes as well as death penalty because you are afraid of
misappropriation or investigation abuse, which is impossible.

Since punishment can be successful
only if those who are punished understand the event as punishment, this context
only conforms to a “person”, who is regarded as the moral and legal individual
and is conscious of the responsibility of his or her actions, including crimes. Therefore, when punishment is legally imposed on
someone, the person to be punished must be conscious of the punishment as a
punishment; that is, the person should understand the event as a justified
imposition of some harm. However, the issue at hand that arises in particular
for the death penalty is to whom the death penalty is justified by. Some may
say that it should be justified to society, however, the justification of the
death penalty must also involve the individual penalized. The condemned convict
must understand the justification because, then, to be executed would not be
considered a punishment but rather an extermination of a dangerous being. This paper examines death
penalty in the view of ethics, especially Kant and Hegel, and reflects on its
implications with regard to the current debate on death penalty.

Kant and Hegel, like the
abolitionists of death penalty, find the meaning of human dignity in autonomy
(reason, morality, or person-hood). However, they differ from the abolitionists
in that Kant and Hegel think death penalty is the only way to respect a
murderer’s autonomy while the abolitionists consider death penalty violates a
murderer’s right to life. Consequently, Kant and Hegel argue that death penalty
is necessary for respecting a murderer as a human being. In terms of
law, human dignity is the ideology or goal of national action as the highest
constitutional principle of the Constitution. Philosophically speaking, human
dignity is the ultimate end of all human values ??and the reason for existence.

The degree of the realization of human dignity is also the ultimate criterion
of human progress. For this reason, human dignity is also at the center of the
human rights concept that is recognized as the best value of modern society.

The implementation of human dignity will be judged as a standard for judging
all the mental and material progress of humanity, in addition to law,
philosophy, and sociology. The
principle that Kant and Hegel rely on for their argument is the principle of
equality/proportionality (equality provision) of retributive punishment. It is
a categorical imperative or justice that we punish a murderer by following this
principle exactly.

According to Kant, following the
principle of equality is not to treat an offender as a means but to respect him
as an end. It is to respect reason and autonomy of the offender and to ask his
responsibility of his action. Kant’s retributive justice embraces the
core principle of the lex talionis,
the principle of equality between crime and punishment. his principle
emphasizes the balance between criminal activity and punishment as a criterion
for determining the quality and quantity of punishment. It is true that Kant thinks of the lex
talionis as being an exact, precise standard that ideally at least allows
zero tolerance. Punishment according to the proper standard of the categorical
imperative should be neither too little nor too much. The failure to carry out
appropriate punishment is a violation of a duty to
oneself, which would reflect a lack of inner integrity or self-respect. To fail
to punish to the proper degree is to fail to have an adequate hatred of
criminal conduct; such an idea, which seems implicit in Kant, brings him close
to being an exponent of the expression theory. Kant thinks
that punishment cannot be less than the lex
talionis requires, perhaps because such a punishment would reflect a lack
of equal respect for the crime victim, and also a lack of adequate hatred of
the wrongdoing being punished. In
Kant’s use of this principle, a new emphasis is on only criminal behavior. He
sees it as a way to respect criminals,
and calls for the execution of a proportional punishment as a moral law,
taking into account only criminal activity.

Likewise, for Hegel, punishment
is to respect the offender’s reason and freedom because his crime realizes his
reason and freedom/autonomy. Punishment is a right of the offender because his
crime already involves it and he is respected by it. The criminal act
itself is conceptually punitive; there is already a penalty in the criminal’s
will and conduct. In other words, criminal acts embody the reason and freedom
(autonomy) of criminals. Therefore, punishment is to respect his reason and
freedom. It is also in this context that punishment is the right of the
offender. According to Hegel, human beings with reason and freedom should claim
punishment as a right.

Meanwhile,
Van den Haag
proposes an interesting argument based upon uncertainty specific to the
deterrent effect of the death penalty. He assumes two cases, namely, case (1),
in which the death penalty exists, and case (2), in which the death penalty
does not exist. In each case there is risk or uncertainty. On the one hand, in
case (1), if there is no deterrent effect, the life of a murderer is lost in
vain, whereas if there is a deterrent effect, the lives of some murderers and
innocent victims will be saved in the future. On the other hand, in case (2),
if there is no deterrent effect, the life of a convicted murderer is saved,
whereas if there is a deterrent effect, the lives of some innocent victims will
be lost in the future.

However, there is
a major flaw in Van den Haag’s argument. That is, it mistakenly regards the actual death of convicted murderers as being on a par
with the possible death of innocent victims in the future. Any arguments supporting the death penalty
in terms of its deterrent effect seem to presuppose a causal relationship between the
existence of the death penalty and people not killing others. This
presupposition is extremely hard to confirm, because the effect of this causal
relationship is not a positive, but rather a negative event, which is the event
of not killing others. This has something to do with the philosophical problem
of how to understand negative properties. For instance, how could we understand
the negative description of an action, ‘I am not killing others’? Was this
caused by the existence of the death penalty? Kant says that criminals
must be punished just because they committed a crime because of the act of
‘crime’. He makes it clear that punishment imposed on criminal activity should
not be used as an external means for society or for anyone. It is said that
doing so respects the criminal’s original personality. The first thing to think
about the usefulness of prevention, rehabilitation, or punishment is to use
criminals. Reducing or eliminating the punishment of criminals for the sake of
happiness implies the disappearance of justice. Because justice is the meaning
of human life, the disappearance of justice means a loss of meaningful life.

Kant argues that “all punishment itself has justice in itself, and justice
is the essence of the concept of penalty.”

Following the principle of
equality (practical equality provision), death penalty is the only legitimate
punishment for murder because the victim’s life cannot be irreparable with
anything in the world. In this principle of equality, only a murder action has
to be considered for the sanction and any notion of the utility of punishment
is excluded. In this way, the murderer is not treated as a means. On the other
hand, for the murderer killing a victim is just the same as killing himself
because he willfully universalizes his ethical maxim to himself when he commits
a murder crime. This is why Hegel says this: The murderer has universality of
his action although committing murder is a presentation of his personal will.

In brief, only death penalty is a logical consequence to a murder crime, and
very this death penalty is to realize human dignity by respecting his autonomy.

Of
course, someone may say that
what matters in this context is a statistical correlation between the number of
executions and the number of homicides, which could be confirmed in an
empirical way. However, causes of a reduction or increase in the number of
homicides can be interpreted or estimated in various ways, considering
confounding factors, such as education, economic situation, urban planning, and
so on. Therefore, in principle, there always remains the possibility that the
apparent correlation between the death penalty and the reduction of homicides
is merely accidental.

Nonetheless,
the death penalty should continue to be legalized. Retributive punishment or the
principle of equality/proportionality (practical equality provision) of Kant
and Hegel is considered as an application of a universal moral rule (the golden
rule) addressing “you deserve what you do to others.” This golden rule
functions when people ask for death penalty for a cruel murder crime as a
punishment corresponding to it. The hardest barrier that the abolitionists must
overcome is this golden rule lying in retributive punishment. In the
perspective of ethics, it seems to be extremely difficult that the golden rule
is abandoned because it is very difficult for people to stop an application of
the golden rule for a cruel murder crime. Therefore, we should approach to the
matter of death penalty in the way of finding a substitutive punishment.

Perhaps, “a restrained death penalty used strictly at minimum” can be adopted
until we find a substitutive punishment for death penalty satisfying the golden
rule.