Humans are composition of diverse and enrich instincts. The infinite manifestations of these instincts leads to an overall individual and social expression, evolution takes place by relative will and desire of each society but however happens at a snail’s pace. The existence of law is imperative to any society even if that society is a co-habitant of barbarians in a jungle. The nature of law if fails to match a particular community it attempts to govern will sweat away from its surface. In this contemporary world of globalisation and ripen International law, impact of each legal system on others allows the dependant growth of every legal system. From here an individual surpasses his communal, social, religious, racial and national barriers and attempts to become a “true” human instead. The common values, rights and legal guarantees he shares at large with every human then becomes an “International legal responsibility.” To this endeavour every municipal law not only provides a code of conduct but also certain set of universal objectives and goals to be achieved. Thus modern legal systems allow an inbuilt “legal evolution” process in their constitutions.
Since the supreme function of law is merely to provide set of rights and duties, it is then viable to comprehend as to when the same law provides limitation to the disposal of these obligations. An uncontested right which appears vibrantly in all legal codes pertain to “right to life” of a person. The unending nag for most social scientists and jurists happens to be as to when this “right to life” of a person ceases to exist. To those who label it as an “inalienable right”, capital punishment creates vigorous qualms and anxieties. Whether a death caused by a legal machinery pains us more or the one perpetrated by one person to another? This defines at least one pattern of our present discourse. Interestingly the capital punishment does not confine itself as a consequence of only a homicidal crime or a murder, but also results as a disciplinary action to many named “crimes” of state or sovereign. Arguments forwarded by those in “total abolishment” camp in true sense never outweigh those points, which favours its existence. A third group providing a visible mediation talks about “Abolishing liberal use of Capital Punishment”. It is still interesting to observe that whether this faction actually favours capital punishment or provides another benchmark in the evolving legal system whose ultimate aim is its complete elimination?
The utility of this discourse is nevertheless immense as it amounts to new legal relevancies and provides breathing space to conventional views on “theories of punishment.” The present study instead of focusing entirely on the views of both groups of the debate will elaborate perspectives on the present issue. This will not only allow us to comprehend both views but help us understand the significance of this debate, route it has taken and what seems to be its probable future. Countless theories on this issue haven’t been individually dealt but their views will appear continuously without specific mentioning. The conclusion will only signify my personal inclination on this issue instead of an absolute opinion favouring each side of the subject.
Historical Experience
The history of a man is also the history of capital punishment. The infliction of death penalty has been used as a consequence from “regicide” to “pick pocketing”. It cannot be denied that “death penalty” also has its political motives and its usage historically has been frequent against any form of adversary. In each circumstance its presence was considered inevitable for any criminal code. The answer to “What to do with the criminal or adversary?” was readily provided by capital punishment. Both Hammurabi and Justinian legal manuscripts never engulfed the death penalty; later in the religious Divine volumes existence of capital punishment fuelled its exercise. A positive impact was also however achieved and which related to the limitation of its use. In Europe several monarchs and other “bloody codes” ascertained the capital punishment. Even in the era of “enlightenment”, apart from few jurists capital punishment never became a vibrant riddle to be tackled. Voltaire so vehemently stood for total abolishment of capital punishment but grund-norms only stirred conservatively. Later the effort to eradicate capital punishment shifted the discourse from legal bear pit to literary zone. French Victor Hugo provided rationale for its abolishment. His continuous insistence was that only an experience with “death” would force people to make a sound decision.
In the other parts of the world strongest advocacy for eradicating capital punishment came from people like Leo Tolstoy and later Mohandas K Gandhi. Their approach towards the issue made a considerable boost at a social front. By late 19th Century with “freedom” taking a new meaning capital punishment had disgust impact on several societies. A great leap surprisingly came from South America where Venezuela became the first modern nation state to abolish death penalty for all offences in 1863. The World War I made a great overhauling of the subject and it was seriously considered again. The experience of “human misery” and zeal to strive for a “civilized” world contributed much to the abolishment movement. Interestingly across the Atlantic in United States which also inherited English “bloody code” of 17th century and many states acceded to suspension of capital punishment earlier, reemployed it in 1920s.
The development of International law continued at the other front and finally at the end of World War II certain civilized norms were globally recognized. If not so inherently then impliedly Universal Declaration of Human Rights 1948 further mobilized the efforts to demonise capital punishment. Post World War II also produced famous legal decisions, which shaped the debate. Ironically major came from US Supreme Court. Furman v Georgia (1972) asked for official suspension of death penalty but soon in Greg v Georgia (1976) it was overturned. The capital punishment acquired the premises of human rights and by the end of 20th century most western countries have already done away the task of total abolishment.
In the other parts of developing world and Asia, capital punishment remains a weapon, which so strongly regulates the criminal code. It is rather unfortunate to observe the advocates of capital punishment so tacit and broken in their voice. Though evidently they fear the charge of being “uncivilized”, recent historical events and grave happenings are forcing the westerners to have some appetite for capital punishment.
Development of theoretical discourse and a Retributive exercise
The demand for total abolishment was never chased initially. However a deep urge was there that petty or unmatched crimes were not followed by capital punishment. The list of crimes resulting in capital punishment was long enough to terrify any society. With redefining the purpose of state discourse gave rise to civil liberties, the “death list” was thus screened and short-listed in the mean while. It reached a stage where revolutions, constitutional remodelling, military takeovers, wars and above all economic systems provided both conscious and unconscious development of the cause. In each case taking of life by the state was not considered gruesome but the practice itself was loathed. Human rights activists vehemently disregarded the infliction of “pain” in any form to any citizen and later to any person by the state. It was an established norm for any criminal system that some sort of a physical or mental pain exists for those involved in a crime. On another front when technologies and scientific advancement created new modes of “execution” and “torture”, debate mobilized itself and movements in western countries were all active that the worst of worse criminal is after all a human. An alteration in the mind set was possible where libertarians defined the course of society completely and to be civilized was the ultimate aim at the brink of “space age”.
Perhaps the strongest card for those believing in capital punishment relates to the retribution. Since only a state can exercise retribution for a murder or homicide, to prevent further derogation of law capital punishment itself provides a breathing space to the entire edifice of legal system. An undoubted fact that club of murderers will always exist. Thus to minimize if not absolutely eradicate their existence capital punishment is a fruitful exercise. Deterrence and some sort of bulwark are also ensured by this painful exercise for the society as a whole. For “abolishers” adages like eye for an eye, tooth for a tooth, hand for a hand, life for a life or any sort of such retribution is vague. They believe that a simple retribution is unjust and only a “perfect retribution” if at all should exist. Since perfect retribution is not possible let the practice at all be abolished. An infliction of pain is never balanced even if with all the precautionary measures are followed. Another interesting point in abolishers’ camp states that some crimes are definitely not perfectly compatible. As a murder of more than one person or in case of genocide a criminal will still be put to death only once. Secondly the old adage eye for an eye limits itself in cases of crime such as rape. Indeed “rape for a rape” will not be acceptable to any community. In pursuance of capital punishment as to who should carry out “state retribution” also creates a problem. The question then vividly emerges that “Does a state really carries out an execution?” Certainly Not! State even then allows individuals to carry out the task. Executioners are ultimately allowed to take lives though on the consent of state but unfortunately become a component in a retributive chain in this process.
The contemporary world provides an interesting model of US, where each state regulates its own independent legal machinery. Statistics then emerges that all states where capital punishment has been abolished crime rate is lesser than those states with functioning legal penalty, quite clearly if the object of punishment is deterrence then at least capital punishment fails to ensure it there. Another discourse which may emerge from this pertains to the fact that abolishment is merely a call of developed states and not the developing ones. If the social and legal stature of each society varies then let its punishment tools vary too. Whether such practice is a divergence amongst nations of the world or is it a hindrance in the development of International law as a whole or even for that matter really against UN Charter is certainly unclear?
Effect of total abolishment on societies and on criminal law
Obviously abolishers fail to sketch the consequences of a worldwide pronouncement of total elimination of capital punishment tomorrow. Without the assistance of a crystal ball one can easily say that a planetary havoc will be created. A worldwide crime rate will shoot up. Criminals will take it as a formal “licence to kill”; societies prone to violence will be pushed in fire, libertarians will join hands with murderers voicing their rights, law-enforcing agents will become impotent, some level of retribution will take place by individuals against their adversaries, jails will be stuffed with countless persons with authorities unaware what to do with so many “reformers to be”, executioners will obviously be fired (lest they cannot go on strike) with their only experience fuelling up the crime rate and above all a criminal legal system will lose its charm.
Even if some of these predictions are nonsensical some of them holds truth and most legal systems will experience these problems. A rather blunt justification of capital punishment comes from economic perspective. It is certainly not economically viable to put energy on reformation or deterrence of a hardened criminal. The cheapest way is to dispose him off. The jails have its limited function and cannot be transformed into rehabilitation centres. A criminal to commit a crime is overwhelmed by the instinct and mostly oblivious of all consequences, which follows. A capital punishment if not at all stop him will at least keep the holiness of a law and will brutally follow those ruthlessly transgressors who disregard any existence of a higher code and handle other human lives cheaply. Whether they be placed behind bars till their natural death or immediately killed which ultimately remains their only goal is perhaps for some not a laborious query. It cannot be treated lightly that a total abolishment will make a criminal legal system lose its charm. Though not merely for a sake of charm it should be kept but uninterrupted historical experience of handling a criminal comes from making him experience some sort of physical pain and for ultimate criminals the execution. Another blunt political practice, which might emerge from eradicating capital punishment, will be of extra judicial killings and states in their attempt to impose their writs will extinguish their needs in such a way. The present legal systems are also laborious and lengthy enough that procedural and substantial issues vigorously contributes in a verdict that not many death penalties are announced .The figures of annual death penalties that take place in US are so low that rarely it can be justified as an active form of deterrence. A judicial bench in any developing country will obviously be more liberal in putting death to the recidivists. Secondly jurists in developing economies not placing the overall society on a plight and will be reluctant to approve the total elimination. Then perhaps it also becomes a true fact that the subject of elimination only matters in which environment one stands and the overall economic position of population around a person.
Conclusion
It cannot be denied that even in case of total abolishment right to kill will still vest with certain categories of people in certain environment. The International Humanitarian Law or Law of Wars allows military men to kill the adversary soldiers. An attempt to strive for a “perfect peace” will be impractical. However to obtain a “real peace” vibrant in nature, capital punishment provides a weeding practice to the state. A punishment greater than the crime is not wanted. Torture, other harsh means of execution will be irrelevant even if a death penalty is to stay.
Humans in an attempt to create a just world are forced to adhere to the principle of rule of law. Since primitive the human experience explains that war, battles, killing, murders, genocide and a human inability to remain humans is inevitable. Then whether abolishment or not, humans will continue to die because of humans. The future therefore will be the same except that each event will be better magnified, and will provide us with a better and more sophisticated rationale tool to examine it. Most probably in future the capital punishment will be a weapon denied by all but will be used liberally and sheepishly by all states including those who advocate it. So better not kill this animal but cautiously breed this “endangered specie” perhaps forever.