British Journal of American Legal Studies, 1 (1), 2012, 173
16 Pages Posted: 6 Apr 2012 Last revised: 28 May 2012
Date Written: April 5, 2012
Initially, I provide a formal characterization of Locke's argument for the death penalty, observing that the language of his Second Treatise on Civil Government subtly allows for restraint in the use of capital punishment. This observation is then augmented by attention to specific themes in his treatise, which collectively weigh against his affirmative conclusion. After this, I introduce an argument against the death penalty, one drawn entirely from Lockean assumptions and new to the literature on capital punishment and social contract theory. This argument, I urge, better reflects the prevailing tenor of his treatise and appears to be on more secure footing within the general framework of his theory of the social contract. Finally, I follow my analyses with a discussion of the relevance this negative argument may have for two public policy issues that have garnered attention recently in the American debate over capital punishment. In a concluding note, I suggest this argument may have merit as a basis for a new strategy by appellants and supporting amici in capital cases on appeal to the United States Supreme Court.
Keywords: John Locke, social contract, death penalty, natural law, right of compensation
JEL Classification: K41
Suggested Citation: Suggested Citation
Sarver, Vernon Thomas, A Lockean Argument Against the Death Penalty (April 5, 2012). British Journal of American Legal Studies, 1 (1), 2012, 173. Available at SSRN: https://ssrn.com/abstract=2034952