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Thursday, 4 November 2010

Death Penalty, 4th Edition

Conrad Mbewe on the death penalty :
The basis of punishment is not how successful it will be in rehabilitating the offender but rather whether it is fair with respect to the crime committed. In other words, the basis of punishment is justice. In the domestic sphere, our punishment is really a form of corrective discipline. The parents’ chief interest is not justice but the positive changing of the character of the child. But that is not the job of the judiciary. The work of the judge is to ensure a correct interpretation of the laws enacted by the legislative arm of government, to acquit the innocent (i.e. those who continue to obey the laws), and to prescribe fair punishment on those who break those laws.

So, whether the punishment meted out will reform the convicted criminal or deter other would-be offenders is not the business of the judiciary. The one question they should ask themselves is: “Does this punishment fit the crime that has been committed?

Once we are clear about the basis of punishment, then we are ready to address the question of the death penalty. The one question we must answer is: “Is it fair to take away the life of person who maliciously takes away the life of another person?”
The first part of the argument is broadly correct. The correct basis for "retributive justice" is just punishment. The issue is not rehabilitation but whether the punishment fits the crime.

The only problem I have is that Mbewe's argument remains incomplete because "who" determines the punishment is really what has always been at stake. It is not the judiciary, but the people (as he rhetorically states at the end). Many European nations that oppose the death penalty believe, right or wrongly, that society can always decide that a life taken does not deserve another one. Since both camps appeal to the "will of the people", at this point we must then ask are abolitionist countries like Sweden less just or more just than Zambia with its death penalty? It would appear that without a common objective standard across Sweden and Zambia, both would could be deemed just.

Mbewe's argument would have been more cogent if he had argued that the residual control of life lies in the power of the Creator and therefore only he has the power to take it. Anyone who takes another life forfeits theirs. I do not believe there's a cogent case for the "death penalty" outside a theistic framework. The reason is that without a theistic framework one has to deal with a problem of subjective moral values - which renders any form of justice impossible. Mbewe tries to deal with this problem by appealing to natural law "thankfully, fairness is not a preserve of those with university degrees in law. Even a child has an inborn sense of justice". But is the child born with the sense of just punishment? The child knows when she is wronged, but she wont naturally know what the appropriate "corrective" response to that wrong is. Moreover we cannot be certain that every child will have the same view.  Therefore, justice is not some inner thing we have, it is externally generated. A gift of the Creator in the natural order. This has been ably demonstrated by Nicholas Wolterstorff.

Update (6 Nov 2010) :

Conrad Mbewe's response below, as posted in our exchange on his website :
I have ready your incisive observations on your website and was tempted to post my response to you on the Zambian Economist. However, I thought I should first do it here. I agree with you that a rational basis to uphold the death penalty finds its strongest foundation in a theistic framework because values there are absolute. For instance, in that framework you can argue for a priceless value of human life on the basis that humans are made in the image of God.

However, given that I had fifteen minutes in a context where others together had a good three hours, I needed to confine myself to that which was already common ground with the vast majority of my hearers--common sense. In my booklet, "The Death Penalty--True Justice of Archaic Folly," I work from a theistic framework and my arguments are more formidable. Again, thank you for your observation!

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