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The Absurdity of Absolute Punishment: From Redistribution and Deterrence towards Restoration

S. Lourdunathan

1. Death and Punishment are contradictory in any conceivable possibility. Death is an end whereas punishment is not an end, but a process towards, a means for something better. The problem of death punishment is a problem of tactfully conjuring both an end and a means as if death and punishment as one and the same as Death Punishment. Is it not absurd? 1.1. Since Death-punishment is enforcing an end-to-life, an end itself, but punishment cannot be considered as an end itself rather a process-towards. As a processtowards, punishment is to be considered as a method of/for correction/reformation/progression. How on earth, once ending life can be punishment? There is a world of difference between both. It is like feeding the deadly poisonous snake at home still claim that it not bite and even if it bits it will only bite the criminals who enter the house. Is there any guarantee the house owner himself be not bitten by it or the house owner legally arrange it in such a way that the snake bites the vulnerable and conspired ones? Should the snake be killed or let the victim to be killed to death? Is it not absurd that Indian democracy still retains death-punishment as legal? 2. Means cannot justify its Ends: This is one of the positions that our honored national father Gandhi himself notably considered it. If X needs money or wealth (let us say an end) it is not legal and not moral that s/he can assume that it is right to steal the money from another person to achieve his/her end i.e., money. The end being death, an absolute end to life, it cannot be conceived as a matter of ones achievement through punishment, I think it is a legal-fraud to bestow death as punishment. Something is seriously missing here. That is why I call Death-Punishment is absurd. 3. Death (dead-end) is absolute where as punishment is conditional: Bringing together mutually contradictory concepts i.e. death vs. punishment, as death-punishment is there a serious sense of deceit and deceptiveness and invaliditation. It is deceptive and deceit in the sense that killing to death is pretended and presumed to be a punishment. 4. This is a form of quadruplicating purposefully brought together as to appear to be right and valid. What is absolute cannot be conceived as conditional; what is conditional cannot be projected as absolute. Linking death which is absolute, with punishment which is conditional implies a strong derogatory use of politics of power tactics rather than a

Head & Associate Professor, Dept of Philosophy, Arul Anandar College (Autonomous), Karumathur, Madurai 625514, Mobile: (0)9566477696.

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matter of legality. Is it not an absurdity to play politics in law and law to gain political supremacy? 5. Death is natural whereas death-punishment is against-natural: Death or Mortality is natural which constitutes the very nature of the natural world of human beings. Death is not a matter of arbitrariness and someones choice. If so, it is inappropriate to assume that someone has the power/capability to pronounce and cause death and that too as form of punishment. is it not absurd to hold a law that someone is empowered to pronounce death to somebody else when s/he find him in disagreement? None has any right to cause the end of the natural by means of an unnatural act namely punishment (even if it said legal). Between the natural and the unnatural, is there an impassable gap. The legal system seems to be invested with or inflicted too much of power to the extent of causing death-punishment. Is this not only absurd but atrocious? Hence, to consider death as a form of punishment is inconsistent and irrational. 6. What is the response of religions world views with reference to Death-Punishment? 6.1. One can perceive how the cultural histories of various religions and their hierarchical leaderships have practiced death-punishments against those who contested or opposed their religious pronouncements. For instance, church history, Islamic orthodoxy and Hindu caste configurations contain innumerable instances of killing or death-punishing those who opposed or violated their canonical territories. Their so-claimed spiritualities are not spiritual in absence of shedding the blood of their opponents. Therefore one cannot unwittingly position that the culture of religions promoted crusades against death-punishment. In fact and infectiously religious orthodoxies were the alpha and practitioners of death-punishment. For instance within the Church history the description/naming of those who do/did not accept the church-canons were dumped to be variants, heretics, sinners iconoclast; blasphemous, Satan, devil and hence condemned to be punishable by church laws if need be by death-punishment. St. Thomas is a vociferous supporter of death punishment and he wrote in his Summa Contra Gentiles, Book 3, chapter 146: For those who have been appropriately appointed, there is no sin in administering punishment. For those who refuse to obey God's laws, it is correct for society to rebuke them with civil and criminal sanctions. The common good of the whole society is greater and better than the good of any particular person. "The life of certain pestiferous men is an impediment to the common good which is the concord of human society. Therefore, certain men must be removed by death from the society of men." (Being part of such sinful system is equally sinful without repentance and probably that is what is meant by we as humans are carriers/vehicles of holy sin; that is a different story altogether). Of those who were death-punished by the ruling States (Roman History) the church differently described them as martyrs, witnesses of truth, crusaders, saints, etc. if people opposed they are named heretics and atheists and
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if people who are opposed to the State that opposed church were called martyrs/crusaders. Here lies the politics of naming people as believers vs. unbelievers (the story of French revolution is the story of invention and abolition of guillotine) (well I do not go into the details of this history). The point is that Church or the politics other world-religions are equally good practitioners of death-punishment. Therefore given to the historical evidence (factual and unlike fictional sermonic interpretations), churches and religions were promoters of death-punishment. 6.2. Ethical claims of religions is against death punishment: However (but still) the moral-claims of various religions propel love thy neighbor non-killing, compassion vegetarianism etc are vulnerable positions to defend the possibility that religions given to these interpretative orientations do not and cannot promote death-punishment. Hence we can possible infer that we who profess various religions and adhere to the alleged religious moral-claims are oppositional to death-punishment. There are palatable theological defenses provisioning the concept of God as protector, liberator and savior. In other words, deathpunishment is antithetical to the ethics of any religion. 6.3. Scriptures of world religions counteract death penalty: Since most scriptures do not approve any death punishment and since many of us adhere to such scriptural traditions it follows we do not ascribe to any forms of Death Punishment. Taking recourse to scriptural passages, the religionists would claim that death punishment is anti-religious act, and not justified scripturally. 7. The legalist dilemma: Beyond the Causal and the Equivalence between Crime and death-punishment: Death-punishment is assumed or inflicted with the idea of causal and equivalent relation. As if the crime is the cause to produce the effect i.e., deathpunishment. Is it necessarily true that the crime-committed by the accused is the cause for pronouncing the effect, death-punishment? Are both these actions causally connected? The heinous crime is a separate event, though condemn-able where as the pronouncement of the death-punishment is another separate event. Both the crime and the deathpunishment are not causally connected. They do not correspond to each other as if one producing another by kind of necessary relation. The two actions are not equivalent; they do not correspond to each other. It is unfortunate that these two separate events are conjoined together (by legal habituation) as if one causing another, as if the crime causing the death-penalty. The same idea (though foolish) is imprinted in the culturalmind of the public, that the effect namely death punishment (as if) caused by the crimecommitted. I think, we need to perceive and place them separately. One does not necessarily and need not cause the other as if both the so-called cause-event is the reason for effect-event i.e., death-punishment. The matter of reason here is a matter of intrusion and infringement rather than any necessary rational connection. The relation between these two events/issues is not causal but a matter of cultural-legal imposition by
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tradition. What is required is to see the irrationality between these two events as if one causes the other the crime causing its punishment. One does not necessarily cause the other. We could treat them separately. Legal intelligence I believe needs to be rationally equipped rather than acting in the manner of causal or equal retaliation. If cause-effect relation is ascribed, then it would be a chain of action-re-action events ad infinitum, a sort of revenge in continuum. I believe, by becoming more humanizing society we need to do away with this sort of retaliating, revenging, causally connective type of laws that are not only inhuman but deep down logical absurdities. Should the crime be treated as the cause to produce the effect called death-punishment? Are they not separate human actions? The one be the criminal and the other by legalized criminal? Can both not be prevented? The point of argument is that the event or action namely crime is not necessarily related to produce the effect namely death-punishment. Such tactful-legal is therefore is illegal, arbitrary, and a matter of culturally transmitted infectious sickness (constructions) rather than a matter of democratic law. 8. Intentionality of Death penalty is killing not punishing: Meaning is not only matter reference to certain prescribed code of law rather it is intentional. Death penalty serves the purpose of intentionality to end the life of an individual but unfortunately treated as referential to a set of laws in the constitution. The ethics of intentionality rather than the practice of preferentiality to a set of legal administration. Death penalty is but putting an end to life is but a premeditated, well-planned act of killing and not necessarily an act of punishment in the sense of inflicting some pain in order that the victim is either reformed or has choice to resist his death penalty. Death /capital punishment is an intentional, premeditated act of killing, or ending life and it cannot treated as a punishment for punishment is a sort of inflicting harm for reasons of corrective measures and reformation. Death penalty cannot be decided by opinion poll or by the so-called jurys legal intelligence and capability to the point of proving the case against the culpable, for it is the question of pronouncing death and not announcing life and hence I believe, death penalty if at all to be legal code should have a strong rationale and moral basis. 9. The law stands in need of liberation from its criminality: This means that the legal practice of Death punishment calls for a very serious rationale. Hence the question is what is that solemn rationale our legal system provides for such hazardous act of law called death-penalty. In other words, on what grounds death punishment is justified or justifiable by the court of law? What are the moral-rationale on the base of which death penalty is built upon? These are intriguing issues require sufficient exposition? 9.1. Prima facie Death penalty cannot be law as such and it cannot be an ad hoc issue to be considered by an ad hoc committee as a matter of ex post facto. To begin with let me make a distinction between a rule and a law. A rule for instance one has to kick the ball by foot in foot ball is a rule of football game. It is not a law like what we have in the court of law. A rule is not a matter of moral consideration. If you do not kick the ball by foot, it is only a fault. There are no
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moral grounds to say that it is morally good to kick the ball by foot. But the issue of law, I believe, is different. A law should have necessary moral governance and underpinnings. It is morally right and good stop the car on the sight of the red-light is more than just a rule because if you do not stop the car, you are bound to create injuries to other persons. There is moral issue involved here. A rule is different from law; a rule need not have any moral justification. Death penalty cannot be treated like that of rule to kick someone out of the football court because he disobeyed the rule. It is a question that demands necessary moral grounding. Death penalties is not a matter of capably quoting certain laws and argue that someone has disobeyed this-and-that laws as per the constitutional acts/laws and therefore be judged to death-punishment. A law gains its status quo not because it a rule but by its moral ground or justification/sanctification. 10. The legal vs. ethical: We need to take into account the fact the legal is distinguishable from the ethical. What is legal is not necessarily ethical. An act may be legal but it is not necessary it is ethical. Abortion may be legal but necessarily ethical. The Legal is not unconditional but conditional. What is conditional is only relative and not absolute and therefore the conditional cannot be universal or universalized. What is legal is only a matter of relative agreement but not necessarily an absolute moral principle. Therefore death punishment is unjust. 11. There are usually two important moral principles of justification that augments the legality of death punishment. They are said to be: 11.1. The moral principle/idea of retributive justice and 11.2. The moral principle of deterrence Generally these are the moral-legal that seems to justify death-penalties in the court of law. The question is, to what extent of how these moral grounds or principles are justifiable to uphold death penalty. This is the question I think that needs to be considered seriously. Do these principles suffice to provide defensible grounds for enacting/continuing death penalty? I argue that they are not. 11.1. The principle of retributive justice presumes the idea that specific criminal acts be paid-by-death and it is good that some people deserve death for their crimes. The principle of retributive justice assumes that death-punishment is an equal burden of treatment meted out to the criminal. As a moral theory of justice, it considers deathpunishment is in proportion to the crime that is committed by the offender. This means that the qualitative measurement of the crime is in equal measure of the punishment. The reason why I claim that the retributive principle as distributive of justice is not fair because (i) the principle presupposes and takes for granted the idea that death punishment is an equal/fair treatment/in proportion with the crime that is done as a way of retaliation. More than an equal treatment, the principles is founded upon or operates on the basis of
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retaliation (lex talionis) rather than a form of distribution of justice. The point is, even if the crime is so heinous/dreadful, there is no qualifying measuring scale on the base of which justice can be re-distributed equally to the tune of the gravity of the crime committed. The principle that death punishment best fits into the crime of the murderer turns out to be extremely difficult to decide or interpret. Hence such authorized-killing is in a sense an authorized criminal (justice) system. Since the justifying moral ground i.e. the principle of justice as retributive, by/in itself is unjustifiable, the principle of justice as death punishment unjustifiable and unjust. What is not rationally justifiable is not legal and what is not legal is not necessarily moral. Thus the principle of Justice as death punishment is self-defeating for one cannot qualitatively measure the equal proportion on par with the crime that is committed. Moral restrains, prohibit from trying to enact executions perfectly retributive. However the issue is: -to make someone suffer for a criminal act is different from the idea that someone must be put to death. 11.1. 1. Moreover, the principle of retributive justice as distributive of Death punishment is inclusive of the idea of taking revenge, a kind of vengeance; can pay-by-death be a distributive of justice by means of revenge? Can a State or Nation inflict death and that too as punishment in the sense of taking vengeance or revenge? If yes, can we say that the so-called civilized nation as yet-not-civilized? Can we say that though we claim civil society we basically refuse to be civilized by the court of law & order? That is to say, the theory of retributive justice is but a theory of vengeance legalized. An act of retaliation cannot be an act of justice and retributive of justice. If so, death punishment in letter as a theory of justice but in actuality it is a legalized/standardized practice of violence/violation against the life of the individual. If agreed, shall we say that death punishment is an official, bureaucratic design to eliminate the defenseless person (defenseless of to prohibit ones death (as punishment) against the mega-machinery called government. A state and its governance in a civilized society, is a social contract whose primary function is to protection of the individual by sufficient means of prevention rather than pronouncing elimination or death of the individual. The state has to protect its citizens from forms of violations and discriminations. If the State violates, what kind of death punishment that has to be meted out then? The principle of justice as death punishment at any strength of its argumentation cannot be said either in terms of protective or preventive acts. On the contrary, the theory of justice as death punishment is legally-performative of killing. So, the rationale of this principle is irrational and groundless. On what account the so-called death punishment is equally re-distributive of equality is still an unsettled within the legal theoretical platforms. 11.2. The principle of deterrence is the other major moral concern that on the base of which Death Punishment rests upon. The supporters of the idea of deterrence argue that death punishment must be retained in order that such punishment is deters/prohibits potential criminals from committing death-crimes. Deterrence is the use of punishment as
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a threat to deter people from offending. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done. Does this position justify death punishment? 11.2.1. The principle of deterrence may sound intuitively right the right to kill in order that potential/possible criminals and death-crimes could be restrained from; the argument cannot be justified as it assumes that the present condition be the same in future, a way of deciding the future events on the basis of the past. Put it differently it is like saying that humans are mortal so far and hence humans will be mortal in future. If not, State is authorized to bring about mortality by authorized means of making the living humans as immediately-mortal. Though intuitively the argument sounds strong but de facto is it agreeable on rational grounds? What is the guarantee the future be the same as that of the past. Moreover the empirical evidences do not tell that we have legally caused deathpunishments to the effect that there will not death-crimes in future? Such a position remains ridiculous if not moral. It is like saying one kills his dog in order that other dogs will not bite him and it is done as a warning so that any other dog would not to bite. By killing or death punishing one person does not in any way guarantee that crimes and criminals be controlled. Death punishments so far did not deter death-crimes and criminals and this means that death punishment as deterrent principle is a malfunction and therefore it ought to be annihilated and deterred. The powerful-enough escape capital punishment Heinous criminals are the second category of death row inmates who should not have to wait any longer for their punishment. In fact a large number of heinous criminals are repeat offenders? Some have also done a repeat offence while on bail? If the enactment of deterrence does not deter the crimes/criminals, what is utility of such legality of deathpunishment except enacting organized/authorized legal practice of killing or taking away of the life of people. This means that both the victims and victimizer do not have any strong rational and moral ground either for death-crimes or death punishment. By imploring death directly any civil society cannot claim that it is an indirect way of inducing fear from the possible criminals. Is punishing to death a resource to prohibit/prevent any further or future death-crimes? The sociological or empirical evidences do not say so. 12. Since death punishment is neither sufficiently retributive of justice nor preventive/deterrent of death-crimes death-punishment suffer from any serious rationale and moral grounding. If justice is considered as fairness, then it is not fair to bring an end to life by the weakest possible amplification of both retribution and deterrence. 13. Social Activist and the victims perspective 13.1. Sociological and empirical evidences of death punishment so far, are mostly enacted against those who do not possess the political/legal/economic
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power/capital to bargain against their death punishments, i.e. among the number of those who have been vindicated of death punishment, the powerless have been imposed of death punishment whereas those who posses power often escaped or legally protected themselves from any death punishment though they are criminals to be punished of death punishment. The victims of death punishment are in many cases are the vulnerable, the minority, the poor, and the socially disadvantaged. Capital punishment seems to be very active on those who lack any capital to buy the system. This amount to raise doubts:-Does it mean that the rich and the politically powerful are not death-criminals? It does mean that those who do not have the capital do not have the capability to resist death penalty and hence they are subjected to capital punishment as defenseless. The noose most often is tightened on the necks of the powerless who cannot afford to buy or pay lawyer and they are paid by death penalty. 13.2. The persons who are accused of death penalty go through long process of trial, isolation, inhuman ill-treatment, separation during when s/he is forced to suffer severe psychological trauma and mortification-towards death and repeatedly threaded to be judged to death. Through process of pre-meditated process s/he is finally hanged to death, by that time the so-called criminal is half dead. The painful process itself seems to be retributive of justice for the crime. 13.3. For the same case, the empirical facts state that there are diverse conclusions arrived by Individual judges; the juries/benches had given different verdicts in similar cases. This only projects the weakness and fragility of the legal judgments and its allied legal codes. This means that one cannot play with the life of the individual with a fragile legal code. When the legal instrumentality itself is so weak to attribute different possible conclusions, the issue is at whose cost, such fragile legality is practiced; it cannot be done to the extent of forsaking ones life and on what/whose authority death penalty is pronounced 14. Being a modern civil society means abolition of death penalty: If we constitutionally claim that human society is modern and we are the members of s civil society then it directly means that we are part-takers of modernity and its hard-earned democracy. Modern society is not a primitive society that decides death penalty for any offender. 15. Beyond primitiveness: We have moved away from the primitive types of punishments, we have moved away from the killing-instinct of the fellow-humans for reasons of survival of the fittest. Humanity has evolved from crude brutal forms of living to a more civilized way of living. Taking away life-for-life is canonical offshoot of the an eye for an eye type of punishment. The principle of an eye for an eye being a practice of the primitive traditional form of society, the modern society should not exhibit such wicked practice in being a civil society. Being democratically rationally and scientifically modern does not mean state-organized killing or death punishment. Any modern democratic State is constituently grounded on the premises of certain fundamental values
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(irrespective of our abhorrence towards the heinous crimes that individual commits). The state is a configuration of individuals and their corporate will through social contract which upheld the principles and ethics of humanism, right to live, protection of the life of the individual. 16. Against the principle of right to live: Since death punishment in a very strong sense is sort of primitive authoritarian butchery, the modern state cannot afford to still hold death penalty in its legal culture. Death penalty, as I said earlier, is planned murder, even if the State authority pronounces it, it is representative of the collective will of the individuals in the State. Legal representation is to protect through prevention not by annihilation of the life. There should be other modern ways of preventions of dreadful crimes and criminals and not necessarily by enacting an absolute irrevocable, cruelty called deathpenalty. One needs to resist the system which does not represent the collective will of the society; one need to resist the programmes of the system which is anti democratic; one need to protest against the system that is antithetical to the law of the protection of the right to live of any individual. The modern state is built on the historical defense of human rationality, autonomy and self-worth. Death penalty then is an erosion of the idea that humans are autonomous ego. What right is there for the State legality to go against such basic principles of a modern state? 17. Against the principle of equality and fairness: On the similar grounds of a democratic nation, one can position that Death Punishment is against the principle of equality and justice i.e. guaranteed by any democratic nation. It is against the principle of equality, the principle that all are equal and equal rights to life. By imposing death punishment, the legal governance is antithetical to the principle of equality and thereby purportedly promotes inequality. 18. In the model of the other democratic nations: Perhaps this could be one of the weakest defenses against death punishment: (i) Many European countries abolished death punishment and they have done so after careful considerations, and hence it follows that country like India whose democratic constitutional is modeled after many modern European democracy, has to deliberate an amendment to the effect that death punishment be abolished. Instead of premeditating to pronounce death the state legality could very well premeditate on the ways of means of protection of individual lives. (ii) Those who are grounded on ideologies like humanism, secularism, even veganism ascribe to the position that death punishment is anti-humanistic, anti-secular and it is a legalized murder (killing the life for life is dignified). Therefore death punishment must be dissuaded. The irony is one of the Indian cultural pride is that of vegetarianism and it is paradoxical to hold human butchery which is projective of plant vegetarianism. Where from and from which culture have we still retain or inherit this vicious legality. 19. From reduction of pain towards restoration of life: In India, over the last three decades, the issue regarding death penalty is encircled on the issue of reduction of pain at the moment of execution/death sentence rather that removal of the Capital
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Punishment. There is world of difference between reduction and removal. The distant/difference is between primitive society and modern civil society. The difference is between animalism and humanism. The Buddha icon about which the Indian State is proud, knows very well that Buddha, the enlightened upheld the fundamental principle i.e., the principle of annihilation of pain. Perhaps we have taken it to mean so literally that our legal monsters continue to discuss on pain-reduction philosophy rather than a philosophy of restoration of life. 20. On the emotional grounds, there are those who claim that death punishment is just and emotionally gratifying if and when it is enacted on those persons (criminals) who killed his or her dear ones. What is emotional is not necessarily legal and what is moral need not be moral. They are mutually distinguishable issues. Should our legal be emotional? How long and at whose expense is the question that needs deliberation rather than the legal practice of judgment based on laws? 21. Restoration of life necessarily means abolition of absolute/death penalty absolutely given to its incredulity due its fragile foundations. The Buddha when speaking of annihilation of suffering alternatively implores restoration and protection of life. Rather than specializing on criminology I belief it is better to specialize on the issue of decriminalization invested in our criminal-laws. As members of humane society we believe that humans should neither be the victims of death-penalty nor be executioners of death penalty. --------

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