Just Violence: An Aristotelian Justification of Capital Punishment

Sarah Tischler Aikin

California State University at Chico


Just Violence: An Aristotelian Justification of Capital Punishment

In the United States today, criminal homicide is the only crime legally punished by death.[1] Historically, common law defined murder as “the unlawful killing of another human being with ‘malice aforethought’.”[2] While the terms, such as “malice aforethought,” included in this definition have undergone scrupulous analysis, legal scholars have devoted less attention to understanding the theoretical justification for capital punishment. The lack of debate regarding the justificatory aspects of the death penalty in the law is most likely the result of a ruling by the Supreme Court in 1976 upholding the constitutionality of the death penalty.[3] The task of moral justification has been left to philosophers who continue to debate the permissibility, based on ethical principles, of punishment by death.

            The most common sources of theoretical justification for capital punishment are Immanuel Kant’s theory of retributivism and John Stuart Mill’s consequentialist approach. Both philosophers explicitly address the issue of capital punishment as a moral obligation in their ethical writings.  Significantly less attention has been given to alternative moral theories as potential sources for theoretical justification for punishment by death. The most prevalent of these is perhaps Aristotelian ethical theory. While Aristotle does not explicitly argue for death as just punishment for murder, the principles found in his theory of justice in rectification lend themselves to a principled justification of the death penalty for crimes of murder, at least in a limited number of cases.[4] In what follows, Aristotle’s theory of rectificatory justice will be explicated. On the basis of this theory an Aristotelian justification of capital punishment will be offered.

Theory of Justice

Aristotle’s theory of justice suggests the death penalty as a fitting punishment for acts of murder in some cases where an agent has acted voluntarily and viciously. His theory is developed and expressed in a manner that leaves room for adjustment according to the particular details that vary across time and culture.[5] This flexibility is important, in particular, because it allows a system of justice to fit death penalty judgments to the particular circumstances of individual cases. According to Aristotle the ultimate authority for truth and meaning are the virtuous individuals who analyze and act in ways that resonate with both rationality and emotion. For this reason, Aristotle looks to the ways virtuous people commonly behave as justification for his theoretical claims.

             The practice of abiding by societal laws is one of the most prevalent aspects of Aristotelian justice. Aristotle assumed that in an ideal democracy, legislation would embody the values that the society held as reflective of virtuous action.[6] Along with the general practice of law abiding, Aristotle describes two additional components of justice—equality and fairness.[7] Equality asserts that each person ought to receive equal (1) respect and (2) possession of the goods that she deserves. Fairness must be further analyzed into constituent terms of desert. One who pursues only the goods or burdens that she deserves and avoids the goods or burdens that she does not deserve is considered fair, and justice requires that others are awarded or restricted in the same way. These core concepts are crucial to the theory of punishment described by Aristotle in his theory of rectificatory justice. 

Theory of Rectificatory Justice

The basis of Aristotle’s theory of justice in rectification is that justice requires restoration of the fair balance of goods when one agent wrongfully takes what belongs to another. On Aristotle’s view, every case of voluntary injustice is seen as a case of one person wrongly taking some sort of good from another. If an agent commits a wrongful act against another, justice requires that a system of justice rectify the situation by restoring the goods that have been wrongfully taken.[8] Rectificatory justice operates on the basis of certain assumptions made by Aristotle that together provide the prerequisite for a just society.

Rectificatory justice as conceived by Aristotle embodies certain assumptions regarding the nature of a just society. It is assumed, first, that members of a just society rightfully or fairly possess certain goods.[9] If one agent takes some of these goods from another without the latter agent’s consent, some principled justification is required if the act is not to be unjust. The only available justification would be that the act is one of rectification: i.e. the return of goods that have been unfairly taken to the agent who has a rightful claim to them. By means of such a rectification, claims Aristotle, the overall balance of goods is restored. Thus, the basis of Aristotle’s theory of justice in rectification is that justice requires restoration of the fair balance of goods in cases where one agent has wrongfully taken what belongs to another.[10]

This process of justice in rectification constitutes Aristotle’s conception of punishment. Punishment is the name given to the process of taking back what goods were wrongfully acquired so that they may be given back to the agent from whom they were taken, restoring to balance the fair distribution of goods that existed prior to any unjust transaction. One must keep in mind that this conception of punishment is perhaps drastically divergent from the contemporary understanding of punishment where acts that are wrongfully committed must be reacted to on a pedagogical level. In contrast, Aristotle conceives of punishment in purely restorative terms, where just punishments take only the amount of good from the offending agent in proportion with the original good that agent took unfairly. Ideally, no agent is meant to be any worse off than he or she was prior to the unjust interaction once the system of justice has inflicted the appropriate punishment.

According to this theory, all people are considered equal in the sense that we all equally deserve not to be burdened wrongfully for the benefit of another. The legal system is designed to facilitate a means by which an agent who has been wronged may have the goods that have been taken returned and the benefits that have been wrongfully enjoyed by another be taken away. A punishment is considered just when it takes from an offending agent the proportion of goods that agent has wrongfully taken from another. These goods (or an equitable substitute if returning the actual goods is impossible) must be returned to the agent from which they were originally taken. In this way the fair balance is restored to a society. A system of justice then, must require that wrongful acts do not go unpunished.

The Problem Of Rectification for Murder

The extrapolation of theoretical justification for capital punishment based on Aristotle’s ethical system faces a specific complication. There may exist a concern, in instances of murder, as to how a system of justice can determine the correct course of action when faced with the task of restoration of balance between two agents, one of whom is dead. This difficulty turns on Aristotle’s reliance on balance in his theory of rectificatory justice. In order to provide legitimate and valid theoretical justification for capital punishment based on Aristotelian theory, one must confront this difficulty.

As mentioned above, just rectification is achieved by punishing an agent who has acted unjustly, both voluntarily and viciously. The punishment is meant to restore to the offended agent the good he or she unjustly lost. The punishment is said to be just when it is proportionately and qualitatively equal to the amount of harm inflicted. While this sort of punishment may be easily achieved in cases of theft, in cases of murder, restoration is not possible, as the justice system cannot give life back to the agent who has lost it. The requirement of balance achieved through restoration is undermined by the reality that no literal rectification is possible.

Recall that justice demands that agents should receive the goods that they deserve as well as not receive goods they do not deserve. While some responsibility rests on the justice system to ensure that no agent may enjoy a benefit acquired unjustly, one might argue that the dominant goal for the system of justice in rectification should be that the goods of the offended agent be restored. The impossibility of the system to achieve its literal purpose of restoring life to the victim, does not support taking a guilty agent’s life as punishment for acts of murder as this punishment will not rectify the injustice or serve justice in rectification.

The inability to restore the life of a murdered agent complicates the rectificatory argument for capital punishment. Obviously, this complication does not eliminate the need for some principled response on the part of the justice system for crimes of murder. The fact remains that crimes of this sort result in the unjust interaction between agents held equal under a system of justice resulting in an unfair burden on the agent killed. A society that values theoretical justice as the principled basis for penal law cannot forgo rectification without forgoing the demands a system of justice imposes. While the need for action on the part of the justice system of some kind is not controversial, Aristotle leaves the difficulty of determining which action the system should take open. In order for justice to be served, the system must have some means of reacting to underserved death of an agent in the form of just punishment.[11] This aim might be achieved through the use of the death penalty.

The Proportionality of Punishment by Death

While Aristotle does not offer an explicit argument for capital punishment, he does mention murder in his discussion of rectificatory justice. While the omission of any prescriptive guidance on this circumstance may complicate the issue, it is nevertheless the case that the lines of thought expressed throughout his theory of justice lend themselves to the specific justification for punishment of death.

If put in terms of benefits and burdens the argument is as follows: An agent chooses to kill another voluntarily and viciously. When a blameworthy act is committed against another individual, the offending agent is responsible for the burden inflicted on the harmed agent. Justice demands that we exact a proportionately equal punishment by taking back what the agent has taken unjustly. In the cases of murder, a life is gone and cannot be returned. Justice demands that we exact from the offending agent a proportional loss. Taking the life from the murderer is the only means by which balance between the agent harmed and the agent who harmed can be reached.

Once the principles of rectificatory justice are understood, the justification for death as a punishment for murder becomes clear. In cases where the acting agent chooses to kill voluntarily, in knowledge of all the relevant particulars, and with the understanding that this action is considered unjust by the society in which he or she lives, this agent is held completely responsible for the effects of his or her action. When the result is the taking of another person’s life, we are required by justice to rectify the situation by punishing this agent in proportion with the harm caused.

In the case of murder, one person in society has wrongfully taken the most fundamental good from another without justification or consent. This good is life and justice demands rectification for the imbalance of goods caused by a murder. While it is not possible to restore the good that has been wrongfully lost to its rightful owner, it is possible to fulfill the requirement that no one may benefit from a good that has been wrongfully acquired at the expense of another. To rectify the situation, this good must be taken from the agent who committed this wrong. Capital punishment is the process by which justice is restored.

Unless a society is to suggest that the most extreme form of injustice is the point at which the a system of justice in rectification abandons justice altogether, the agent who commits murder must be treated as if the debt he or she owes is being exacted in order to restore equilibrium between the agents or find some other means by which to punish the offending agent proportionately. The principle of justice in the form of fairness demands that no agent enjoy a benefit he or she does not deserve. This component of justice is maintained even in the absence of the possibility for rectifying the wrong done in the literal sense of repaying a debt. Justice is served in the form of proportionate punishment to the agent who is available to receive what justice demands. In cases of murder, justice is perhaps only imperfectly served, but the goal of justice must be striven for to the greatest extent possible.

Life Imprisonment

 Due to the extreme nature of capital punishment, its irreversibility, and the absence of an explicit argument from Aristotle, it may be prudent to consider the possibility of an alternative theory of punishment to the death penalty, in order to determine if death is in fact the most appropriate sentence for crimes of murder in an Aristotelian system. The most obvious alternative to the death penalty is life imprisonment.[12] This option strikes many as the better alternative as it relieves society of the burden of taking a life, as well as demonstrates mercy for the murderer.  But a difficulty arises in cases where the murderer acted both voluntarily and viciously: exacting punishment proportional to the amount of harm caused is impossible.[13]

            If a murderer is punished by life in prison, the goods taken from this agent are those that are potentially enjoyed by free agents qua free agents. If we suppose that the murderer is condemned to a life without freedom but is not condemned to further punishment, harm suffered by the murderer is less than the harm he or she caused the victim. While loss of freedom is a significant harm to the prisoner, he or she retains the possibility for thought, emotion, and even forms of physical pleasure—goods that are forever lost to the dead victim. The murdering agent who is punished by a loss of only certain liberties has not received a punishment in proportion to the harm his or her action caused. [14]

Certain harms (e.g. theft, vandalism, rape) may result in inequities that cannot be exactly taken from the agent who is responsible for such injustices for various reasons, not the least of which arises from the norm of repugnance in the moral sentiments of most agents in society with respect to these actions.[15] These cases do not undermine the need or appropriateness for imposing a proportional punishment in all cases, especially for those for which a means of exacting a debt from the agent in an amount of goods equitable to the amount of harm caused is available. In cases of murder, the good exacted from the victim is the loss of all possible restoration of the good lost—life. There simply is no good short of complete loss of life that could guarantee that the amount of good exacted from the murderer be an equitable substitute.

To compound the shortcomings of life imprisonment as a just punishment, exacting freedom does not offer any restoration of or rectification for the victim’s loss. In essence, life imprisonment neither restores lost goods nor inflicts proportionate harms on the offending agent. For these reasons, a theoretical justification of punishment based on Aristotelian ethical theory must reject life imprisonment as a means by which justice can be served in cases of murder.      

Aristotle on Decency and Concerns of Practical Application

            While theoretical justification is a necessary condition for legislation if the laws enforced are to be ethically legitimate, many individuals find it difficult to consider the issue of capital punishment on a purely theoretical level; the problems of practical application have a tendency to elicit substantial solicitude. An Aristotelian justification for the death penalty based on rectificatory justice may “make sense” on an abstract level but appear overly simplified for many individuals when faced with the reality that certain individuals commit murder within the context extreme circumstances (i.e. in self-defense, a long history of abuse, mental illness, etc.). Intuitively, most people see that a strong particularization of the nature of a crime is necessary for justice to actually give what is appropriate in the form of punishment.

The many exceptions made for the death penalty suggest that capital punishment is an undeserved burden for murderers when the punishment is required without qualification. Exceptions may be made for children, or those individuals who act out of a motivation for self-preservation. A more thorough investigation of Aristotelian ethics satisfies this need for qualification of the death penalty. Applying an Aristotelian theory of human action to the case of capital punishment may allay concerns about undeserved death by considering the inclusion of decency for particular cases when the mandates of the law do not seem to capture the just course of action.[16]

When faced with the task of enforcing laws of justice, individual agents may find that the general prescriptions of penal law do not fit the particular circumstances of the case at hand. In these instances, the right course of action may seem to diverge from legislative dictates. This discrepancy between particular requirements and the law may cause individuals to doubt the legitimacy of the penal law. In certain qualified instances the “decent” thing to do may contradict the particular rule that justice seems to demand. As in cases of self-defense or mental illness, the legal system may deem the punishment of death too extreme and implement a lesser punishment or rehabilitation as the appropriate punishment for murder committed under these circumstances.

To solve this apparent conundrum faced by those who enforce the law, Aristotle not only acknowledges the problem, but also includes decency as a particular form of just conduct in cases where the rule of justice does not fit the circumstances.  This is the meaning of Aristotle’s assertion that “[T] he decent is just and better than a certain way of being just—not better than the unqualifiedly just, but better than the error that results from the omission of any qualification [in the rule]. And this is the nature of the decent—rectification of law insofar as the universality of law makes it deficient.”[17]  In essence, decency is the way that agents compensate for the deficiencies of a system of justice that must make general rules and apply these to particular situations. One difficulty arising out of general rules is that those who must enforce these rules may face cases that do not fit the rule provided by the laws; it is impossible to encompass every particular circumstance that will ever occur in practice. In these cases, the agent responsible for judging and enforcing the law must determine the course of action that is truly just given the particular circumstances of some act.

Wrongful Convictions and the Death Penalty

Proponents for the abolition of the death penalty who have focused their efforts on publicizing what have been called “miscarriages of justice” have raised a similar concern.[18] These individuals have argued that the presence of numerous wrongful convictions and, in some cases, executions of innocents for capital crimes offer poignant examples of the fallibility of the legal system. Opponents of the death penalty emphasize the point that, while deliberate behavior on the part of the legal system leading to such mistakes is never considered permissible, if wrongful conviction leads to death then the existence of these mistakes is enough to render the death penalty, in all cases, an unacceptable option.

            The explicit arguments against the death penalty made on the basis of wrongful convictions (except in cases where those opponents take an absolutist position where intentional killing is never considered morally permissible) focus on a cost-benefit analysis of this punishment, where the cost of such possible wrongful convictions outweighs the purported benefits of capital punishment when inflicted on those who actually deserve the punishment. The stronger ethical argument seems instead to rely implicitly on the principles of justice itself.

As developed in Aristotle’s ethical philosophy, justice is implies two demands: (1) all agents deserve equal concern of justice, in the quest to ensure that all agents get what they deserve and (2) agents do not get what they do not deserve. It is this last claim that the ‘miscarriages of justice’ highlights; those agents who are wrongfully convicted are given a burden in the form of punishment by death that they do not deserve. It is this possibility that the opponents of capital punishment find morally reprehensible in accounts of the wrongfully convicted and it is this possibility that a system of justice must never commit if justice is to be served for all agents.

On the basis of Aristotelian justice in rectification, it is this issue alone that validates labeling cases of the wrongfully convicted as ‘miscarriages of justice.’ But what certain abolitionists fail to acknowledge is that while the abolition of capital punishment will eliminate the possibility of certain kinds of injustices in cases of the wrongfully convicted, this same abolition then imposes a new injustice that a system of justice must confront.

If no agent may be punished by death, those who are guilty of murder are prohibited from receiving the punishment they deserve, that is, a punishment that exacts from the offending agent harm proportionate with the burden their actions inflicted upon others. Not only would abolition of the death penalty present a system of justice with the possibility of injustice by giving those who deserve death as punishment an unfair benefit, legally abolishing the death penalty for all cases would guarantee that justice would not be served in cases where a culpable agent deserves death. By attempting to eliminate the possibility of one sort of injustice in the cases of those wrongfully convicted, abolitionists simultaneously preclude justice from being served in the cases of those who are guilty of murder and who deserve the punishment in proportion to the harm he or she committed.

The possibility of abolishment of capital punishment provides ethicists with a moral dilemma, one that cannot easily be resolved. It seems that either certain guilty agents will fail to receive disproportionate punishment (if the death penalty ceases to be practiced) or persons innocent of capital crimes will be punished disproportionately. Aristotelian justification provides an ethical basis for the use of the death penalty for crimes of murder but does not eliminate the real problem of a legal system too flawed to serve justice infallibly in its current practice. It might be argued that a moratorium must be called on the use of the death penalty until the questions of veracity of evidence in the courts leading to wrongful convictions for crimes of murder are adequately resolved.

Conclusion

            In this paper, an argument for the theoretical justification of capital punishment based on Aristotelian ethics has been offered. The crucial principles that support this interpretation are derived from Aristotle’s theory of human action and his conception of justice in rectification. While his argument for punishment relies heavily on the metaphor of restoration of balance between two individuals, the basic notions that serve to support this conception also provide an adequate basis for capital punishment when the justice system is forced to restore the balance of goods and harms caused by a murder. While no form of punishment can restore the goods taken by a murderer to his or her victim, it is theoretically possible to fulfill both the demands of justice that no agent get what he or she does not deserve as the result of unjust transactions, as well as exact a punishment in proportion with the harm caused.

            While this theoretical justification must face problems of practical application when individuals are charged with the task of judging particular agents and executing those found to be morally culpable for murder, these difficulties must be analyzed as problems of implementation alone. The theoretical basis for the death penalty on Aristotelian grounds is not undermined by practical difficulties alone and the task of training skilled judges and minimizing questions of veracity in criminal cases must be addressed in education, both moral and logistical.

In a more perfect world in which no agent causes the death of another, the need for punishment in cases of voluntary, vicious murder would be rendered obsolete. But the world we find ourselves in is a place where agents are killed unjustly, and a system of justice must have some means of assessing culpability and assigning just punishment based on ethical principles. Ideally, every wrong could be rectified by a system of justice. For acts of murder, this ideal can surely not be realized. Aristotelian ethical theory provides the ethical principles for capital punishment in cases where no justified alternative has been found. While the issues of application will require further investigation, the death penalty, theoretically justified in terms of Aristotle’s ethical principles, constitutes an act of just violence.    

 

 

                

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

Aristotle, Irwin, Terrence, trans. Nichomachean Ethics. 2nd ed. Indianapolis: Hackett Publishing

            Company, Inc., 1999.

Beauchamp, Tom L. and Childress, James F. Principles of Biomedical Ethics, 5th ed. New York:

            Oxford University Press, 2001.

Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York:          Oxford University Press, 1997.

Dressler, Joshua. Cases and Materials on Criminal Law, 3rd ed. St. Paul, Minnesota: Thomson       and West, 1999.

DSM-IV, 4th ed., s.v. “Antisocial Personality Disorder.”

Dyck, Arthur J. When Killing is Wrong: Physician Assisted Suicide and the Courts. Cleveland,

            Ohio: The Pilgrim Press, 2001.

Grisez, Germain and Boyle, Joseph M. Jr. Life and Death With Liberty and Justice. Notre Dame,

            Indiana: University of Notre Dame Press, 1979.

Lyons, Joseph and Barrell, James J. “Secondary Motives: The Story of Values.” In People:

            An Introduction to Psychology. New York: Harper & Row, Publishers, 1979.

Radelet, Michael L., Bedau, Hugo Adam, and Putnam, Constance E. In Spite of Innocence.

Boston: Northeastern University Press, 1992.

Thomson, J. J., Parent, William, ed. Rights, Restitution, & Risk: Essays in Moral Theory.   Cambridge, Massachusetts: Harvard University Press, 1986.

 

 



[1] Hugo Adam Bedau, ed., The Death Penalty in America- Current Controversies (New York: Oxford

University Press, 1997), 6.

[2] Joshua Dressler, Cases and Materials on Criminal Law, 3rd ed. (St. Paul, MN: West,

2003), 229.

[3] Bedau, 16.

[4] Aristotle gives an analysis of human action in which each distinct act is judged based on the intent of the agent who commits the act and the situational conditions in the environment. The intentions of the acting agent alone are what distinguish the vicious act from the involuntary. Culpability is not determined on the basis of merely physical contributions of an agent in terms of his or her role in causation. The formulation of this theory serves as the basis for determining what human actions are worthy of praise or blame. In his theory, moral culpability is not determined on the basis of merely physical contributions of an agent in terms of his or her role in causation.  The inclusion of intent and external circumstance in the theory provides a set of criteria specifying which members in society are eligible for capital punishment by determining which types of acts render an agent blameworthy for the effects of the action.

[5] The lack of rigid and specific detail is characteristic for Aristotelian ethics. It is demonstrative of the underlying assumption that right and wrong are defined by the actions and values held by the virtuous and vicious agents in a society. People come to understand the concepts of justice and injustice by observing the actions of those members of society considered by their peers to be just or unjust.

[6] Aristotle, 68.

[7] Ibid.

[8] Ibid., 74.

[9] What exactly constitutes a good has been a topic of debate. For the purposes of this essay a conception of goods as needs developed by Abraham Maslow is assumed. For a discussion of Maslow’s “Hierarchy of Needs” see Joseph Lyons, James J. Barrell, “Secondary Motives: the Story of Needs and Values,” in People: An Introduction to Psychology (New York: Harper & Row, Publishers, 1979), 109-127.

[10] Aristotle, 72.

[11] This claim is also implied by Aristotle who lists murder as an action that appropriately falls under the umbrella of rectificatory justice. (Aristotle, 73).

[12] Keeping the focus of the individual in mind, it is dubious to assume that a system of justice could transfer the debt owed to an individual caused by his or her murder to society as a whole based on Aristotelian ethical principles alone. The addition of some other normative ethical system would be necessary to support such a move. The notion of combined ethical systems is an interesting and important endeavor, however, the project at hand is not to create an amalgam of ethical principles in order to discover some new theoretical buttress for alternative punishments for acts of murder but rather to apply Aristotle’s system of ethics to actions of this kind and determine what legislation his theory implies.

[13] There are those who deny that any person deserves to be killed under any circumstances. This assertion is derived in large part from the conviction that the right to life is inalienable. While the present paper will not address this issue, cogent analyses of this topic can be found in J. J. Thomson, William Parent, ed., Rights, Restitution, & Risk: Essays in Moral Theory, (Cambridge, Massachusetts: Harvard University Press, 1986), Germain Grisez, Joseph M. Boyle, Life and Death With Liberty and Justice, (Indiana: University of Notre Dame Press, 1979), and Arthur J. Dyck, When Killing is Wrong: Physician Assisted Suicide and the Courts, (Cleveland, Ohio: The

Pilgrim Press, 2001).

[14] There are also those who have argued that the death penalty is worse than murder in that the victim is informed of the date, time, and circumstances of his or her impending death. See Albert Camus for discussion of this point.

[15] Given the argument for proportionate punishment, it is entirely feasible to demand that those who commit acts of violence such as rape and assault may receive just punishment by being raped or assaulted in an Aristotelian justice system. While these punishments may be unpalatable in practice, the theoretical basis for demanding them as just is similar to the argument for the death penalty.

[16] In particular, some may feel that Aristotle’s treatment of human agency is too universal, assuming that all people will have similar opportunity to develop a virtuous character and avoid the possibility of succumbing to vice. The present state of the world seems to demonstrate a different picture, one in which socio-economic pressures circumscribe the opportunities for education, opportunity, and even safety from harm on a reliable basis for large portions of the population. Without taking these inequities seriously, a justice system that demands all citizens in a given society be treated as if the same opportunity for moral development were available for everyone would institutionalize unfair expectations based on misguided assumptions.

[17] Aristotle, 84.

[18]             Michael L. Radelet, Hugo Adam Bedau, Constance E. Putnam., In Spite of Innocence, (Boston: Northeastern University Press, 1992)