“Always More To Do”: Capital Punishment And The (De)Composition Of Law

Abstract

Abstract To begin, or even to attempt a beginning, is already to deny the reign of finality. It may be as well to summon such reassurance at a time when progressive, rational utilitarian arguments for punishing and not punishing are very much at bay and retribution seems so conclusively resurgent. That outcome is perhaps nowhere so marked as in the revival of capital punishment in the United States. Not only has the rise of capital punishment put paid to evolutionary optimism about the meliorative history of punishment-an optimism that was hardly dented by those revisionist histories most conspicuously associated with Foucault-but it has also contributed to a sense of the futility of committed intellectual work on capital punishment, to a certain terminal perplexity. Hugo Bedau no less, while “still nursing the unconquerable hope,” pessimistically concluded a recent survey of capital punishrne.1t in the United States by noting that “more has been investigated, researched, written, litigated, and publicly argued against the death penalty in America ... than in the rest of the world combined.” And Roger Hood begins the new edition of his “world-wide perspective” on the death penalty by noting that “no one can embark upon a study of the death penalty without making the commonplace observation that from a philosophical and policy standpoint there appears to be nothing new to be said.”