Ethical Exception: Capital Punishment in the Figure of Sovereignty

Abstract

Philosophers and legal theorists have traditionally analyzed capital punishment as a moral or ethical problem, by asking questions like: Is capital punishment justifiable given the utilitarian or retributive goals of the criminal justice system? Is it or can it be made consistent with our commitment to the moral autonomy and dignity of the human person? And so on. In this paper I criticize the moral-philosophical approach and argue that a far more fruitful way of analyzing the institution of the death penalty is to approach it from a political-philosophical perspective - in particular, by viewing it in its relation to the concept and practice of sovereignty that undergirds our understanding of the political state. Viewed in this way, it becomes clear that capital punishment is a component of the essential attribute of post-Westphalian political sovereignty: the sovereign's right to the death of its citizens. It is the sovereign alone that has not only the power but the right to kill for violation of its edicts, and to force its citizens to sacrifice their lives in defense of its own life through military conscription. I then show that approaching capital punishment as an essential component and expression of sovereignty provides more conceptual and practical insight into the contemporary vagaries of capital punishment than does the moral perspective.

The point of departure for this critique is the recent debate in the Stanford Law Review between Cass Sunstein and Adrian Vermeule (on one side) and Carol Steiker (on the other) on the moral legitimacy of the death penalty, a debate that illuminates both the weakness of the moral philosophical approach and the unavoidability of the relationship between capital punishment and sovereignty. After showing that, in different ways, both sides of this debate depend upon underlying conceptions of the state as (in Michel Foucault's words) the entity with "the power to exercise the right to decide life and death," I go on to explicate Foucault's notion and show that his conception of sovereignty is not novel but is in fact a shared assumption of virtually all Western philosophical approaches to the political state, from the classical social contractarianism of Locke, Hobbes and Rousseau to Carl Schmitt's decisionism to Giorgio Agamben's recent elaboration of Foucault's idea of biopolitics.

I conclude by suggesting how the sovereignty perspective sheds light on a wide range of theoretical, political, and legal-doctrinal phenomena occurring within the sphere of capital punishment today that remain entirely mysterious from the moral perspective. These include, among others, the United States's stubbornly retentioninst position in the face of the accelerating trend toward abolition among other nations, the legal-doctrinal conundrums that arise when capital defendants waive their right to defend and volunteer for execution (sometimes referred to as state-assisted suicide), and the fact that the heated controversy over the use of international law in the Supreme Court's interpretation of the United States Constitution first emerged in a capital case (Roper v. Simmons, in which the Supreme Court declared it unconstitutional to employ death as a punishment for crimes committed by juveniles).

Keywords: death penalty, capital punishment, philosophy, political philosophy, moral philosophy, Foucault, sovereignty, Steiker, Sunstein, Roper v. Simmons