Does Communicative Retributivism Necessarily Negate Capital Punishment?

Criminal Law and Philosophy, (2013) DOI: 10.1007/s11572-013-9261-6

24 Pages Posted: 23 Sep 2014 Last revised: 16 Oct 2014

See all articles by Jimmy Chia-Shin Hsu

Jimmy Chia-Shin Hsu

Institutum Iurisprudentiae, Academia Sinica

Date Written: September 22, 2014

Abstract

Does communicative retributivism necessarily negate capital punishment? My answer is no. I argue that there is a place, though a very limited and unsettled one, for capital punishment within the theoretical vision of communicative retributivism. The death penalty, when reserved for extravagantly evil murderers for the most heinous crimes, is justifiable by communicative retributive ideals. I argue that punishment as censure is a response to the preceding message sent by the offender through his criminal act. The gravity of punishment should be commensurate to the preceding criminal message, so that the offender can face up to the nature and significance of his crime. All murders are not the same. To measure up to the most evil and humanity-degrading murderous message, capital punishment should be the counter-message. Next, I argue that capital punishment does not necessarily violate human dignity. The death penalty and torture may both disrupt human dignity, yet in distinct ways. The death penalty terminates life, the vessel that holds together autonomy, while torture directly assaults autonomy. Torture is never permissible as a form of punishment. But death penalty, when used only on the extravagant evildoers, is justifiable, as life is thoroughly degraded by his own evil act. Further, I argue that mercy is integral to communicative retributivists’ theory of capital punishment.

Keywords: retributivism, communicative retributivism, philosophy of punishment, capital punishment, death penalty, evil, proportionality, repentance, human dignity

Suggested Citation

Hsu, Jimmy Chia-Shin, Does Communicative Retributivism Necessarily Negate Capital Punishment? (September 22, 2014). Criminal Law and Philosophy, (2013) DOI: 10.1007/s11572-013-9261-6, Available at SSRN: https://ssrn.com/abstract=2499428

Jimmy Chia-Shin Hsu (Contact Author)

Institutum Iurisprudentiae, Academia Sinica ( email )

128 Academia Sinica Rd., Sec. 2
Nankang
Taipei, 11529
Taiwan

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