Execution and the Human

Abstract

r Intertcxa, Vol. 3. No. 1,1999 E x e c u t i o n a n d t h e H u m a n Allan Stoekl P e n n s y l v a n i a S t a t e U n i v e r s i t y I People who favor the death penalty often argue that their opinion is based precisely on their respect for human life. Because murder is the most serious crime, it must be punished in the only way that corresponds to its seriousness: durough execution. But if human life is so sacred, why must we end it? The death penalty is seemingly paradoxical in that it is justified by the very thing it contradicts. Its proponents would argue that life is the most sacred, the most serious, the highest thing there is: to take it is there¬ fore the most serious crime. For that very reason the most serious, the most incontrovertible sentence is necessary: death. Executing acriminal is radi¬ cally different from murdering an innocent person, death penalty propo¬ nentswouldargue;itisnomoremurderthanisself-defense.Nevertheless, death is what was seen as the most terrible in the first place. Indeed this seofdeath (andtheconsequentparadoxofthedeathpenalty)has only been underlined in recent years, with the elimination of virtually all crimespunishablebydeathexceptformurder.Asthefocusofthedeath penaltyhasbeennarrowed,asitpxmishesonlymurderandnothingelse,so tooitsparadoxbecomesmoreevident:ifkillingistheworstcrimeimagin¬ able, how does it justify more killing? There is, of course, an answer to this paradox, one provided by Im¬ manuelKantinhisMetaphysicalElementsofJustice.Andthesolutiontmns aroundthecategoryofthehuman.Herewemightbesurprised:humanism wouldseemtobe,andismostoftenused,asthebasic^gumentagainstthe deathpenalty.Ifallhumanlifeissacred,howcanwekillforjustice?But,as any reader of Foucault knows, humanism is aprotean thing, capable of twistingandturningtosuitagivenargumentorlineofthought.Capital punishmentandhumanismcanbeveryeasilyreconciled^indeedthehu¬ man can be seen to be afunction of execution. Kantbaseshisjustificationforpunishmentingeneral,andoncapital punishment in particular, on the affirmation ofhuman freedom. He writes: Freedom(independencefromtheconstraintofanother’swill),insofaras it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity. {Metaphysical Elements n o u s n e s s 3 4 I N T E R T E X T S But what is freedom? Simply put, it is the right not to be coerced—in other words, to be in oneself not ameans (to someone else’s end) but sim¬ ply an end. Interestingly enough, this status of man as end and not means is inseparable from honor. Kant cites the Roman jurist Ulpian, who held that one must “be an honorable man,” and goes on to state: Juridical honor consists in asserting one’s own worth as ahuman being in relation to others, and this duty is expressed in the proposition: “Do not make yourself into amere means for others, but be at the same time an end for them.” {Metaphysical Elements \1) This is, as Kant puts it, a“right of humanity in our own person {lex justi).” So honor is tied to human worth, and the latter is associated with freedom. If this is the case, however, how can we justify any sort of punish¬ ment, which obviously will restrain or eliminate the guilty person’s free¬ dom? The answer lies in the fact that the guilty will have used his or her freedom in such away that the freedom of others is violated; in other words, the other will have been made use of as ameans, rather than ac¬ cepted as an end. Coercion—imprisonment, execution—will then be justi¬ fied if it counteracts another coercion. Coercion, however, is ahindrance or opposition to freedom. Consequently, if a certain use of freedom is itselfa hindrance to freedom according to universal laws (that is, is unjust), then the use of coercion to counteract it, inasmuch as it is the prevention of ahindrance to freedom, is consistent with freedom according to universal laws; in other words,thisuseofcoercionisjust.{MetaphysicalElements36) Coercion is therefore an activity that is an expression of freedom, but itsexpressioncancithergoagainstsomeoneelse’sfreedom,oritcanaffirm the latter freedom by counteracting the pernicious, coercive freedom. The only way to confront and end coercion, it would seem, is through coercion itself. And the only way to end the use of persons as means—rather than their recognition as ends...