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Kaivan Shioff

Capital Punishment vs. Wai as Punishment


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Soveieign states aie empoweieu to punish theii citizens in oiuei to achieve theii
soveieign goals. uiven that a funuamental element of soveieignty is a monopoly on the
means of violence, the state may opt to use violence eithei as a ueteiient oi ietiibutive
foim of punishment. Issue aiises, howevei, in oui cuiient Westphalian global oiuei of
multiple nation-states - each piesumably with equal iights of soveieignty. The question
becomes whethei oi not these inuepenuently soveieign entities have the moial oi legal
authoiity to punish one anothei. I asseit that while lawful killings unuei the ueath penalty
aie a moially justifiable foim of punishment, wai may not be useu as punishment in a
similaily justifiable way. The ueath penalty is both a ueteiient anu ietiibutive foim of
punishment that enfoices the iules of a just society. Beyonu this moial aigument, the ueath
penalty is a legal anu theiefoie legitimate use of foice by a soveieign, which wai as
punishment can nevei be. In the enu, the key uistinction between the two methous of
punishment by a soveieign state is that one is executeu within a societal context, while the
othei is not.

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In assessing the moial justifications of punishment anu waifaie it is fiist impoitant
to uiscuss the piopei iole of the soveieign anu the nation-state. Conceptions of soveieignty
uictate the piopei iole of the nation-state, anu so uictate unueistanuings of moiality anu
justice both intianationally anu inteinationally. Thomas Bobbes famously uesciibeu
soveieignty anu the cieation of a commonwealth as an escape fiom the state of natuie in
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which life woulu otheiwise be "solitaiy, pooi, nasty, biutish, anu shoit" (Bobbes, 619). The
puipose, in Bobbes' view, of coming togethei to cieate a commonwealth oi society is to
escape a wai of "all against all" (Bobbes, 619). Essentially, society is foimeu unuei the
agieement oi covenant ".that a man be willing, when otheis aie so too.to lay uown his
iight to uo all things; anu be contenteu with so much libeity against othei men, as he woulu
allow othei men against himself" (Bobbes, 621). Bobbes explains that as a means of leaving
the state of natuie, mankinu must foim a covenant to limit theii iights against one anothei
because this will piomote peace. Bowevei, ".the valiuity of covenant begins not but with
the constitution of a civil powei, sufficient to compel men to keep them." (Bobbes, 62S).
Foi Bobbes, the soveieign exists as the powei that enfoices the covenant maue by the
people to limit theii agency against one anothei, in the name of peace anu piotection. The
ultimate chaige of the soveieign is to pioviue "...peace at home, anu mutual aiu against
theii enemies abioau (Bobbes, 6SS). In summation, the Bobbesian soveieign's sole
puipose is to piotect it subjects anu pieseive the commonwealth. The soveieign has the
powei to execute any actions to this effect. If the sole function of the nation-state anu the
soveieign is to piotect its citizens, this function necessaiily shapes assessments of moiality
with iegaius to punishment anu the appiopiiate use of violence. The assumption holus that
the soveieign is acting moially in woiking to achieve the goal of the society that cieateu it -
piotection - whatevei the punitive violence iequiieu to achieve that enu.
A somewhat contiasting view on soveieignty anu the nation-state is that offeieu by
Bannah Aienut. Foi Aienut, powei is not founu in soveieignty but iathei community.
Aienut makes a funuamental uistinction between powei anu violence. Collective will
bieeus powei anu achieves its goals without violence. violence only comes into play when
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goveinments stait to lose theii legitimacy thiough powei anu must iely on violence as an
aitificial way to meet theii enus (Aienut, 42). In this way, punitive violence potentially falls
shoit of the iole anu span of a successful soveieign anu nation-state.
Foi the puiposes of this papei, howevei, analysis will iely laigely on a Bobbesian
unueistanuing of soveieign powei anu the nation-state.

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Punishment as ueteiient is peihaps punishment in its most appaient, piactical foim.
The iuea is that negative consequences will pievent the punisheu paity fiom iepeating
unuesiiable acts in the futuie anu will hopefully set an example foi otheis not to engage in
the same unuesiiable act. As explaineu by Nichel Foucault in his uiscussion of toituie as
punishment, the public spectacle of executions anu sanctions against ciiminals seiveu as a
means to asseit the powei of the soveieign anu wain otheis not to challenge that powei by
committing acts piohibiteu by the state (Foucault, 9). While punishment has tiansitioneu
away fiom spectacle anu become institutionalizeu, the existence of sanctions in eithei case
is to uetei unwanteu behaviois oi pievent offenueis fiom iepeating theii misconuuct. This
foim of punishment holus consistent with the Bobbesian unueistanuing of soveieignty in
that if violence must be useu to punish within society, then the soveieign shoulu use it to
uetei thieats to its authoiity anu maintain the commonwealth.

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A seconu foim of moially justifiable punishment is ietiibution. The Kantian school
of thought explains, "In its stiongest foim, ietiibutivism imposes a uuty to punish offenueis
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accoiuing to theii ueseit. In its weakest anu peihaps most wiuely accepteu
foim.ietiibutivism iequiies.that the uses of punishment be limiteu to situations in which
the punishment is ueseiveu by the offenuei anu is piopoitional to the offenuei's
wionguoing". In this lattei foim of ietiibutive punishment, exceeuing piopoitionality
constitutes a wionguoing in itself (Steikei, 7Su). The stipulation of piopoitionality is
funuamental to the aigument of the moiality of ietiibutive punishment, because it
uistinguishes ietiibutive punishment fiom ievenge. This impoitant uistinction is outlineu
by Baviu Luban, who ueclaies that the giounuing of ietiibution lies in its calculateu "moial
juugment that a wionguoei has uone something that ueseives punishment". It seives as an
impaitially ueteimineu sanction with the puipose of iestoiing a moial balance aftei
wionguoing. 0n the contiaiy, ievenge is baseu in angei anu bias. Luban summaiizes the
theoiy of ietiibutive justice succinctly with the olu auage that the punishment must fit the
ciime (Luban, S21). The puipose of ietiibutive punishment then potentially justifies its
use, foi it iequiies theie be piopoitionality of the punishment to the offense.

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The ueath penalty seives as both a ueteiient anu ietiibutive foim of punishment
within a just society that enuoises it. As a ueteiient the ueath penalty can be saiu to ieuuce
the occuiience of the ciimes that it is useu to punish. In assessing the moiality of the ueath
penalty, Sunstein anu veimeule even asseit that peihaps this ueteiient effect of the ueath
penalty pioves its moial necessity. In uoing so, they iely on a ieuefinition of the
actomission uistinction. They asseit that since ieseaich uemonstiates that each case of
capital punishment ueteis some woulu-be committeis of capital ciimes, it is the soveieign's
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uuty to caiiy out such punishments. The aigument suggests that the goveinment is a
unique moial agent in that it has a "uuty" to act, but its non-action (oi omission) is also a
foim of action (Sunstein, 726). It follows then that the goveinment, by omission thiough
not pioviuing ueteiient capital punishments, woulu be acting to enable subsequently
unueteiieu ciimes. This analysis seems consistent with the Bobbesian view of soveieignty
as mainly cieateu to piotect the commonwealth by any means. Theiefoie, shoulu the ueath
penalty aiu in this mission, it seems a soveieign is iequiieu (moially) to utilize the ueath
penalty as a ueteiient.
As ietiibutive justice, capital punishment is also potentially justifiable.
Retiibutivists contenu that foi the most heinous foims of wionguoing, the penalty of ueath
is moially justifieu oi peihaps even moially iequiieu (Sunstein, 7u4). That is to say that
those of this viewpoint believe that in oiuei to iesume moial balance, specific, calculateu
action against the offenuei at hanu must incluue the ueath penalty. In this case the ciime
committeu has been ueteimineu to waiiant ueath foi the peipetiatoi. It is impoitant to
note that this ueteimination is not one of vengeance, but a calculateu moial uecision that
iegaius piopoitionality in the uecision-making.

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0nlike capital punishment, wai is not a moially justifiable use of punitive violence,
eithei as a ueteiient oi as ietiibution. Wai as a ueteiient finus itself attempting to uetei
the futuie occuiience of wholly unique anu subjective inteinational uynamics. It is tiue
that wai may uetei futuie similai behaviois by establishing feai in othei nations oi extia-
national thiiu paities. Bowevei, this ueteiience is not unueistoou in the context of
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soveieignty oi moiality in that theie is no common goal to ieach -- such as the piotection of
a commonwealth -- anu theie aie no societal pacts to upholu. To take a mouein example,
0.S. Piesiuent Baiack 0bama iecently gave Syiia a ieuline ultimatum with iegaius to theii
chemical weapons. Be thieateneu to take militaiy action (impoitantly uistinguishable fiom
wai, but not a necessaiy uistinction foi the puiposes of this papei) against Syiia, shoulu
they not comply with 0.S. uemanus ("0bama: Chemical Weapons in Syiia Aie a "Reu Line"").
Although in this example "wai" against Syiia oi even the thieat of wai might uetei an
unwanteu action, the unwanteu action is only unwanteu by the 0.S. Fiom Syiia's
peispective, as a soveieign nation, it may piefei to uetei 0.S. inteivention in foieign affaiis.
Eithei ueteiient is, as will be uiscusseu latei, not a legitimate expiession of foice anu lacks
societal context.
Wai as ietiibutive punishment is also pioblematic. In this case, the key issue seems
to centei aiounu the piopoitionality stipulation of ietiibution uiscusseu eailiei. As noteu
by Samuel von Plufenuoif, ".to auministei ietiibution (thiough wai as punishment) you
have to win the wai, anu what it takes to win beais no necessaiy connection with
piopoitionate punishment" (Luban, S2S). Theiefoie, iegaiuless of the natuie of the initial
attack oi offense, whethei the wai of punishment iequiies taking hunuieus oi hunuieus of
thousanus of lives, it must be uone. Such is the natuie of wai: it is fought to be won.
Anothei issue with a ietiibutive wai is that it has the potential to punish the wiong people.
Luban aigues that a wai of punishment "tieats subjects as vehicles who can be killeu oi
iuineu to punish theii soveieign" (Luban, S28). Be auuitionally points out that wai is
impiecise, equating its wiath to that of a natuial uisastei such as a huiiicane (Luban, S26).
0veiall the issue is that wais tenu to cause casualties of inuiviuuals who uiu not play a pait
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in the punishable act. This is an essential point to be maue in assessing wai thiough a
ietiibutive lens, in that it is impossible to piopoitionally punish inuiviuuals who have uone
no wiong. The aigument is a stiong one, but it shoulu be noteu that it uoes iequiie a
ielaxing of the Bobbesian unueistanuing of the soveieign as the iepiesentative bouy of the
commonwealth. A stiict inteipietation of the Bobbesian soveieign, the Leviathan, might
suggest that guilty actions of a soveieign on behalf of the membeis of the commonwealth
implicate each membei of the society. This logic follows fiom the stiict unueistanuing of
the nation-state uelineateu by Bobbes: an entity leau by a soveieign that has powei as a
uiiect iesult of the people giving it to him, to act on theii behalf. Theie is a final, piactical
issue with wai as ietiibutive punishment in that it is uifficult foi nations to wage wais of
ietiibution as opposeu to wais of ievenge. While an iueally impaitial juuicial system hanus
uown ueath penalty sentences, states waging theii own wais of ietiibution aie likely to
both ovei-assess the pain they have suffeieu anu ovei-assess the punishment ueseiveu. As
a iesult, ".it is impossible to expect states to juuge the justice of theii own wais impaitially"
(Luban, S18). Essentially, the likelihoou of exceeuing punishment necessaiy foi ietiibution
on a moial basis is extiemely high in these situations, iisking gieatei moial wiongs.

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Asiue fiom moial assessments with iegaius to soveieignty, anothei way to compaie
anu contiast the ueath penalty anu wai as punishment is thiough theii legal legitimacy, oi
lack theieof. Bans Kelsen explains that the valiuity of the legal oiuei in society is not founu
within the specific content of laws, but iathei in the societal noims that aie the ueiivation
of those laws. This uistinction is ielevant in that it sepaiates legitimate state uses of foice
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fiom unjustifieu violence. Be explains, "The noim which iepiesents the ieason foi the
valiuity of anothei noim is calleu.the 'highei' noim", but he explains that this ieasoning
chain cannot go on inuefinitely anu that justice anu the law ".must enu with a noim which,
as the last anu highest, is piesupposeu". Kelsen explains that it is this highest, basic noim,
".that constitutes the unity in the multituue of noims by iepiesenting the ieason foi the
valiuity of all noims that belong to this oiuei" (Kelsen, S9). In othei woius, the piocess of
cieating the fiamewoik of the noims is what gives them theii valiuity, not the specific
content. The ieason to follow a given noim is that it is ueiiveu fiom anothei, highei noim.
Theiefoie the content of each law is iiielevant, but the legislative stiuctuie itself is what is
valiu, anu so the laws aie justifieu. The peitinent iuea in this theoiy is that laws in society
aie valiuateu when they aie ueiiveu fiom a basic noim. Logically, howevei, theie is a flaw
in this ieasoning of noims ueiiving fiom a hieiaichical stiuctuie of noims in that the basic,
highest, noim is ueiivative of nothing. }acques Beiiiua explains the "mystical founuation of
law" in that "whoevei tiaces it to its souice annihilates it" (Beiiiua, 9S9). That is to say the
basic noim exalteu by Kelsen, itself ueiives authoiity fiom nowheie, theieby potentially
questioning its legitimacy. This issue is somewhat skateu ovei by Kelsen in that he asseits
that the basic noim shoulu be tieateu as a piesupposition.
This explanation of the legitimacy of law woiks well to enuoise capital punishment,
not in its content, but because of the piocess that leu to the punishment's cieation.
Theiefoie in the case of capital punishment, the ieasoning foi inflicting the ueath penalty is
not a moial question, but iathei a foimal one. Eithei the basic noim, oi in most cases the
constitution, suppoits the inflicting of the ueath penalty as a punishment oi it uoes not.
Kelsen explains that a law such as the ueath penalty is valiu because "it was cieateu by the
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legislatuie, anu the legislatuie, in tuin, is authoiizeu by the constitution to cieate geneial
noims" (Kelsen, 4u). Regaiuless of how the law enabling capital punishment came about, it
is a legitimate noim as long as it is ueiivative of a hieiaichy of noims that begins with a
basic noim, such as a constitution with a uelineateu legislative piocess.
Essentially, the concept of wai as punishment is pioblematic in that states aie to
iecognize the soveieignty of othei states in oui cuiient Westphalian global oiuei. The
nation-state system ielies on nations iespecting each othei's soveieignty. As such, they aie
equally soveieign, anu in that "equals have no uominion ovei equals", one state cannot
have the authoiity to juuge anu punish anothei (Luban, S14). The iuea of soveieign
equality ieflects the absence of a basic noim to holu togethei an inteinational
goveinmental oiuei that woulu potentially peimit wai to be useu as punishment. In teims
of wai as punishment, it is uifficult to assess the justice anu natuie of wais fought foi
violations of noims that uo not apply in the global context. Essentially, theie is no stiuctuie
of noims on which to justify othei noims in the inteinational spheie. While theie aie
ceitain tieaty agieements anu inteinational coopeiative effoits, they uo not holu much
legitimacy in that, unuei the Bobbesian unueistanuing, theie is no soveieign to enfoice
agieements. While theie aie ceitain guiuing piinciples foi inteinational inteiactions, none
possess the stiength anu legitimacy of a basic noim. Foi example, in teims of uses of foice
between states, it is geneially unueistoou that the "cential iule" on the issue is the
piohibition of the use of foice as uelineateu in Aiticle 2(4) of the 0N Chaitei (uiay, 67).
Bowevei, inteipietation of the statute is highly uebateu anu the geneial noim is not
ueiivative of a highei basic noim that applies on an inteinational level. As a iesult, the
legitimacy of the iule is limiteu. It becomes haiu to say in the inteinational context when
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anu wheie uses of foice aie peimissible anu when they aie not. Wais of punishment in an
inteinational context woulu theiefoie nevei be legitimate uses of foice unuei the law
because the inteinational community uoes not have a legitimate legal stiuctuie. Shoulu a
nation choose to punish anothei nation, it woulu be impossible to ueteimine the valiuity of
eithei the punishable offense oi the punishment. The lack of a hieiaichical stiuctuie of
noims escapes the inteinational iealm. As a iesult theie is no basis foi moiality anu the
stiuctuie is illegitimate.

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Punishment is a concept ueiivative of soveieignty anu society. The concept is
skeweu anu complicateu by unueistanuings of societal powei anu societal ielationships
within a global oiuei. Punishment, uepenuing on one's view of soveieignty, can moially
justify ueteiient anu oi ietiibutive violence. Absent moiality, the stiuctuie of law can be
useu to explain the legitimate use of foice by soveieigns as well. While, within the context
of a society, capital punishment can be moially justifieu to achieve the goals of the nation-
state unuei a legitimate goveining bouy, in an inteinational context, no such moiality oi
legitimacy can exist uue to the limiteu extent of inteinational community. While the woilu
is globalizeu in many senses, it is not a uniteu society to the extent that soveieignty oi
legitimate legal stiuctuies extenu beyonu national boiueis. As a iesult, states may not
punish one anothei thiough wais.



Kaivan Shioff
Woiks Citeu
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1(2%(0 (2u11): 92u-1u4S. Piint.
Foucault, Nichel. 3%4)%5'%"( +"- 67"%489 :8( ;%,<8 &= <8( 6,%4&". New Yoik: vintage, 199S.
Piint.
uiay, Chiistine B. >"<(,"+<%&"+' /+0 +"- <8( ?4( &= @&,)(. 0xfoiu: 0xfoiu 0P, 2uu8. Piint.
Bobbes, Thomas. /(2%+<8+". In *'+44%)4 &= A&,+' +"- 6&'%<%)+' :8(&,B, euiteu by Nichael
Noigan. S eu. Inuianapolis: Backett Pub Co., 2u11. 0iiginally publisheu in Naik C.
Rooks, Eu., :8( C"D'%48 E&,F4 &= :8&G+4 H&II(4 (Chailottesville: InteLex
Coipoiation, 1992).
Kelsen, Bans. 67,( :8(&,B &= /+0. Beikeley: 0niveisity of Califoinia, 1967. Piint.
Luban, Baviu. "Wai as Punishment." 68%'&4&58B +"- 67I'%) J==+%,4 (2u12): 299-SSu. Piint.
"0bama: Chemical Weapons in Syiia Aie a "Reu Line"" *;KL(04. CBS Inteiactive, n.u. Web.
21 Bec. 2u1S.
Steikei, Caiol S. "No, Capital Punishment Is Not Noially Requiieu: Beteiience, Beontology,
anu the Beath Penalty." K<+"=&,- /+0 1(2%(0 (2uu6): 7S1-9u. Piint.
Sunstein, Cass R., anu Auiian veimeule. "Is Capital Punishment Noially Requiieu. Acts,
0missions, anu Life-Life Tiaueoffs." K<+"=&,- /+0 1(2%(0 (n.u.): 7uS-Su. Piint.