On 9 February last year, the then-deputy chair of the Conservative Party, Lee Anderson, called for the return of capital punishment to the UK. “Nobody has ever committed a crime after being executed,” he said. “You know that, don’t you? 100 per cent success rate.” Six months later, the former nurse Lucy Letby was convicted of seven counts of murder and six of attempted murder for babies in her care. A poll taken soon after suggested that two thirds of the British public supported the return of the death penalty in cases such as Letby’s. Not for the first time, the idea of capital punishment was back on the agenda. But in some sense it has always been there.
Although the last execution in Britain took place in 1964, it was not until 1998 that capital punishment was finally abolished, with the remaining two instances – for treason and piracy with violence – replaced by life imprisonment. (Astonishingly beheading, from where we get the phrase “capital punishment”, the removal of the head, was still the punishment for treason as late as 1973.)
In truth, Anderson was on safe electoral ground in refloating the idea. UK polls have consistently shown majority support for capital punishment when it comes to certain crimes. These crimes have changed over time depending on particular social issues – having fallen below 50 per cent overall support in 2015, fear of terrorism seems to have pushed the figures back up, as the Yorkshire Ripper did in the 1980s, and child murders in the 2000s. The perceived merits of the most severe form of retributive justice seem to be a reaction to social events, at least for what we might sardonically call “swing voters” on the issue.
Capital punishment has, as a legal practice, been with us for millennia. The Babylonian Code of Hammurabi, composed between 1755 and 1750 BCE, calls for any man who burgles a home to be hung in front of the place he burgled. Later, the Old Testament lists a series of crimes requiring the death penalty, including murder, violating the Sabbath, sorcery and blasphemy, while in Ancient Greece the first recorded lawmaker Draco – from whom we get the word “draconian” – produced a written code setting out a number of crimes for which death was the punishment.
Famously, one of those who would be executed under Ancient Greek law was Socrates. Convicted in 399 BCE of “impiety” and “corrupting the young”, he carried out his own execution by drinking hemlock. If we grant that western philosophy as we have come to know it is born with Socrates, then we can see that its relationship to capital punishment is more than merely intellectual. The two are enmeshed just as surely as the death penalty is with western religion, via its other most famous victim, Jesus Christ.
In fact, the final Socratic dialogue by his student, Plato, is not far removed in tone from the Scriptures as they describe the last days of Jesus. Both, in their own ways, explore questions around the immortality of the soul. Both supply moving accounts of the victim’s last moments, their final words. And both argue that it is a corrupt and corrupting society which has led to this outcome, and that the “soul” of humans needs this purification.
More dramatically, in each case the “victim” in some sense offers themselves up to their fate. Jesus knows Judas will betray him, and accepts the kiss. In the case of Socrates there may even have been an option to name his own punishment, as the classicist Paul Cartledge argues in Ancient Greek Political Thought in Practice. At first Socrates joked he should be rewarded instead of punished. Not seeing the funny side, the jurors – 501 citizens of good standing – voted for the death penalty, which Socrates accepted immediately. He said, as Cartledge puts it, that “he owed it to the city under whose laws he had been raised to honour those laws to the letter.”
In this, Socrates was not simply invoking the law, but also the religious strictures of his society. He was not against the state’s right to kill. By taking this position he established support for the death penalty as part of the western philosophical tradition.
Arguing for abolition
In a series of seminars given between 1999 and 2001, the French philosopher Jacques Derrida was startled to find support for capital punishment running through western thought, held by some of its leading lights – from Plato to Kant, Hegel to Nietzsche. That a discipline which for the most part believes itself humane could show constant support for what many would regard as the least humane of acts is remarkable. But it must also mean something, Derrida argued. Perhaps only about philosophy, but more likely about all of society and life.
Derrida himself thought the death penalty was wrong. He talks with genuine anger about George W. Bush’s use of it as governor of Texas. But merely to say it is wrong, Derrida argued, is unhelpful. If one is to argue for abolition, one must do so as effectively as those who argue for its use.
Leaving aside Anderson’s argument about the death penalty’s “100 per cent success rate”, the traditional contemporary argument for the death penalty tends to be that it acts as a deterrent. To kill is to be killed. But there is little solid evidence to support the idea that an individual who has reached a point where they wish to kill, due to passion or dispassion, will reconsider in light of the possible consequences. While some philosophers have proposed this as a sound argument, for most this has not been the central concern.
For Socrates and Plato, for instance, one argument for the death penalty was that it provided society with a form of expiation. Here we have the idea of the scapegoat, not unfamiliar to Christian or Jewish scholars, its antecedents in some societies predating written law. In English, the term “scapegoat” is derived from the Book of Exodus, describing an ancient Jewish practice on Yom Kippur where a goat was literally driven away to die, taking the sins of society with it. We can see that the way a society designates its current threats, real or imagined, brings out the desire to scapegoat. The only way to avoid “all against all” is to make “all against one”. We hide our animus towards everyone by aiming it at someone in particular. Thus we bond. It is easy to see how this can be used for political power.
More often, however, philosophers have seen the central question as logical rather than emotional. Does the state have the right to take the life of one of its citizens? Is it ever morally justifiable to do so? And if so, what grants the state this right?
These questions tend to be considered in two different ways, broadly aligned with the philosophical schools of utilitarianism and deontology. The former argues that we must aim for the “greatest good for the greatest number”. So if the death penalty is good for the most people, for instance as a deterrent that reduces crime, it is arguably a moral good. The latter argues there are moral rules or absolutes, applicable in all situations (“deon” means “duty”).
Deontology tends to focus on the idea of retribution – an eye for an eye. Immanuel Kant, who is often seen as the philosophical father of deontology, argued that there are moral absolutes, which he called “categorical imperatives”. It was on a principle of equality that the law of retribution was upheld. “If ... he has committed a murder, he must die,” Kant argued. “In this case, there is no substitute that will satisfy the requirements of legal justice.”
Note that Kant here only calls for capital punishment for murder. Philosophical discussion around the death penalty has increasingly coalesced around the idea that only crimes in which others are killed deserve death, and that the method of execution be as humane as possible. (No horrific tortures such as that suffered by the attempted regicide Robert-François Damiens in 1757, whose dismemberment was described in the opening chapter of Michel Foucault’s Discipline and Punish.) Perhaps disingenuously, capital punishment in philosophy texts often seems a bloodless affair. The one time that capital punishment was suspended in the US, it was over questions of cruelty of method rather than absolute right.
So absolute is Kant’s moral imperative that “even if a civil society were to dissolve ... the last murderer in prison would first have to be executed” so that nobody could be “regarded as accomplices in the public violation of justice”. The act of murder demands the death of the murderer – not for practical reasons, but for moral reasons only. It is hard to think of a position further from utilitarianism than this. The death penalty is not a means to an end; it is an end in itself, caused by the committing of the crime.
But Kant’s notion that there is equality between crime and punishment here is a difficult one to sustain. To believe it “categorically” is to believe that anyone who robs should be robbed, or anyone committing arson should have their house burned down. As Derrida has noted, no two killings can ever be the same, whether by an individual or by the state as punishment for the first, since neither the circumstances, nor the reasons, nor the consequences can be replicated. But Kant remains, at least in philosophy, the strongest and most unequivocal advocate of the death penalty. So it is against Kant that we must argue.
Of course, all the usual arguments against moral absolutism apply. Kant’s argument does not take into account the circumstances of the killer in question. It could be that the act was committed in self-defence or in ignorance. There are also cases of diminished responsibility – such as the mental capacity of the murderer at the time of the killing, or factors such as previous abuse suffered by the perpetrator. There are cases which we would now class as “manslaughter”, where the perpetrator is ruled to have acted without malice aforethought.
A question of sovereignty
But the question Derrida wants to ask is not necessarily about moral right or wrong (although he asks that too). Nor is it about whether mistakes might be made – the argument that one innocent death invalidates any number of “correct” executions. What is vital here is the structural implications of the death penalty. Not so much “does the state have the right to take a life?” as: “what does it mean if we grant the state that right?”
This is a question of sovereignty: the sovereignty of the state, and the sovereignty of our selves. In consenting to the death penalty, we have decided that our society should have the right to set the time and date of our death. But more than this, for Derrida, the death penalty is in fact the foundation of law. By establishing whether the sovereign can kill us, we build the laws and our idea of justice. The sovereign in a state with the death penalty has not only the power to kill, but the power to absolve. This means they are able to stand outside the law.
We see this in the US in the concept of the pardon – the president has the right to intervene. So the body which makes the law (the king, or the parliament, or the president) can also go beyond it. Thus the death penalty is not simply about punishment. It is also about death – all death – since we are offering the state the right to decide the limits of our mortality.
In some cases, such as the UK – our titular head of state aside – sovereignty rests with a government to which we allow certain powers, and which we limit through democratic institutions (voting, the courts and so on). The British government in the 21st century has so far resisted re-introducing the death penalty, despite widespread support from the public. Yet our laws can seem increasingly oppressive, and while the fury over the Letby murders may have died down (and Lee Anderson has departed from his role as Conservative deputy chair) there are sure to be future periods of political pressure.
It’s a decision of great importance, even if the punishment would apply to a tiny minority of cases – for the “absolute worst crimes”, as is often proposed. The death penalty is not simply another expansion of state power, but a fundamental change in the relationship between the state and each individual. It is to consent to an absolute power of the state. This in turn changes all of our relationships to death. It is no surprise that US states with capital punishment have the highest rates of homicide. Mortality becomes a plaything.
Whether to reintroduce capital punishment is not only a policy question. It is an existential one. From the time of Socrates until now, it has not only been a question about death, but about the very nature of life.
This article is from New Humanist's spring 2024 issue. Subscribe now.
