It is hard to know what to think about Kant's ‘passionate sermons’ on capital punishment. Kant clearly feels that it is one of the most important punishments in the state's arsenal. But his vehement insistence on the necessity of execution strikes many readers as philosophically suspect. Critics argue that Kant's embrace of the death penalty is incompatible with, or at least not required by, the fundamental tenets of his moral and legal philosophy (Schwarzschild 1985; Merle 2000; Potter 2002; Hill 2003). These arguments typically employ one of two strategies. The first is to deny that execution is required by retribution in even a prima facie sense; arguments along this line typically question the coherence of Kant's doctrine of the ius talionis (Sarver 1997). The second is to show that there are inviolable moral principles that render the death penalty illegitimate; this criticism typically appeals to the value of human dignity or the right to life (Radin 1980; Pugsley 1981; Schwarzschild 1985; Merle 2000; Potter 2002). There is a third strategy that could be used to criticize Kant, although it is not aimed at him specifcally. This strategy invokes legal principles of fairness or due process. It asserts that, regardless of capital punishment's moral appropriateness or legitimacy, capital punishment is unjust due to the fallibility of legal actors and institutions (Nathanson 2001). Someone adopting the third strategy might claim that, while Kant's justifcation may be acceptable in principle, it fails to justify the death penalty in the world we live in.
Against Capital Punishment offers an innovative proceduralist argument against the death penalty. Worries about procedural injustice animate many popular and scholarly objections to capital punishment. Philosophers and legal theorists are attracted to procedural abolitionism because it sidesteps controversies over whether murderers deserve death, holding out a promise of gaining rational purchase among death penalty retentionists. Following in this path, the book remains agnostic on the substantive immorality of execution; in fact, it takes pains to reconstruct the best arguments for capital punishment and presumes the appropriateness of execution in limited cases. At the same time, the book contends that the possibility of irrevocable mistakes precludes the just administration of the death penalty. The heart of Against Capital Punishment is a philosophical defense of the well-known irrevocability argument, which analyzes the argument’s premises, establishes their validity, and vindicates them against objections. The central claim is that execution violates the principle of remedy, which requires legal institutions to remedy their mistakes and to compensate those who suffer from wrongful sanctions. The death penalty is repellent to the principle of remedy by dint of its irrevocability. The incompatibility of remedy and execution is the crux of the irrevocability argument: because the wrongly executed cannot enjoy the obligatory remedial measures, execution is impermissible. Against Capital Punishment also reveals itself to be free from two serious defects plaguing other versions of proceduralism: the retributivist challenge and the problem of controversial consequences.
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