ELSA KCL 2024/25 Essay Competition Winning Entry
Essay question: Evaluate the ethical implications of the death penalty and similar harsh punishments (whipping and caning in Singapore for example) in criminal systems in relations to basic human rights principles. Should such measures be abolished?
Whipping Justice into Shape: A Debate on Corporal Punishment
1: Introduction
“There are plenty of people who deserve to die, but I have not met anyone who deserves to kill”, Pete Buttigieg. The death penalty and other harsh punishments, such as judicial caning and whipping, are heavily controversial methods of criminal justice. These measures, often defended on the grounds of deterrence, retribution, and cultural significance, are criticised for violating fundamental human rights and ethical principles. The ethical implications of these practices derive from international human rights law, namely, Articles 3 (life, liberty, and security), 5 (freedom from torture), and 7 (equal treatment before the law) of the Universal Declaration of Human Rights (UDHR) and Articles 6 (right to life) and 7 (no one shall be subjected to torture) of the International Covenant on Civil and Political Rights (ICCPR). This essay contends that such measures are ethically indefensible, incompatible with human dignity, and counterproductive in achieving justice.
2: Ethical Implications of Harsh Punishments
2.1 The Right to Life: An Inviolable Ethical Principle
Arguably, the most undeniable conflict to human rights brought about by the death penalty is the right to life—an objective principle set out in Article 3 of the UDHR and Article 6 of the ICCPR. No individual should be deprived of their life arbitrarily or without due process of law. The death penalty violates this fundamental right by allowing the state to take life in situations where the possibility of error cannot be ruled out. Allowing the judicial system to overrule this reduces the value of human life to what can be described as a mere commodity. [1]
.The ethical question is whether the state has the moral authority to take life in the name of justice. Immanuel Kant argued that punishment should be a form of retribution—imposing a penalty proportionate to the crime committed—commonly known as “ do the crime, pay the time”, [2] Despite appearing straightforward and logical, this theory ignores the possibility of human error, systemic injustice, and the irreversible nature of execution. It is practical in law but not in fact. [3] The ethical implications of the death penalty are further exemplified in Herrera v Collins, [4] where a wrongful conviction led to the killing of an innocent, highlighting the irreversible nature of the death penalty. Approximately 4.1% of U.S. death row inmates are likely innocent, [5] proving the fact that no judicial system can guarantee 100% accuracy in its judgments. John Locke’s theory of natural rights similarly emphasises the inviolability of life, positing that the right to life is fundamental to liberty and any infringement must meet the strictest scrutiny. Allowing the state to take life, particularly in the face of human error, undermines the sanctity of human life and reveals the inherent wrong behind capital punishment. Simply put, the inability to reverse a wrongful execution stands as an indelible flaw in the capital punishment system: any system that allows for such irreversible harm undermines its own moral credibility.
2.2 Human Dignity: The Dehumanizing Impact of Harsh Punishments
Dignity is not just a right to be free from physical harm; it is a right to be recognized as a person of inherent value, regardless of the wrongs they have committed.[6] This is established in both the UDHR (Article 1) and the ICCPR (Article 10), which affirm that all human beings are entitled to be treated with respect and dignity. This doctrine stands in direct opposition to capital and corporal punishment, which reduces offenders to mere objects of the state’s will.
Michel Foucault [7] explores how punishment systems are used not merely to inflict pain but to mark the body and mind of the individual, reducing them to an object for the state’s will. He argues that punishment serves as a mechanism of control, a power (all too large) which should not be granted to the state. Judicial caning, as in Singapore, is such an example; it is not simply a method of punishment but a public act designed to humiliate the individual, reinforcing the power of the state over the offender’s body. The ethical question remains: can any form of punishment that seeks to degrade and dehumanize ever be justified in the name of justice?
The European Court of Human Rights in Soering v United Kingdom [8] found that the psychological suffering involved in awaiting execution on death row amounted to a violation of the prohibition against inhuman or degrading treatment. This is because the experience of being subjected to execution and its prolonged periods of waiting can be a form of torture in itself, causing lasting harm to an individual’s mental and emotional well-being.[9] Similarly, judicial caning leaves long-lasting physical and psychological scars and diminishes the dignity of the individual in a way that contradicts modern ethical understandings of justice.
2.3 The Ethics of Retribution and the Question of Proportionality
Retribution is often cited as a justification for the death penalty and corporal punishment because they serve as a moral response to inhumane crimes. Proponents argue that these punishments are necessary to restore the balance of justice and give offenders their "just deserts." However, Cesare Beccaria [10] argues that punishment should never exceed the necessary measure to secure justice. Beccaria claims that the purpose of punishment is not to enact vengeance but rather to achieve deterrence, rehabilitation, and the protection of society. Retribution, when it becomes excessive or disproportionate, violates the ethical principle of proportionality and risks becoming a form of state-sanctioned violence.
Furthermore, Kant’s theory of justice [11] suggests that punishment should be a means of upholding moral order, not a way of imposing suffering for its own sake. Through the lens of proportionality, the ethical critique of harsh punishments becomes clear: they are not only morally excessive but also counterproductive, as they perpetuate cycles of harm and suffering rather than healing or reform.
3: The Ethical Case for Abolition
3.1 The Inadequacy of Deterrence
A central ethical argument in favour of harsh punishments like the death penalty is their supposed deterrent effect on crime. However, empirical studies consistently fail to provide conclusive evidence that harsh punishments such as the death penalty are more effective at deterring crime than other forms of punishment. The National Research Council (2012) and Nagin (2013) have both concluded that there is no evidence to suggest that the death penalty has any significant deterrent effect. The ethical constraint lies in the assumption that harsher punishments act as stronger deterrents to justify the infliction of severe suffering. However, the absence of clear evidence supporting this claim calls into question whether the state should continue to engage in practices that cause severe harm to individuals, particularly when such measures do not achieve their intended deterrent effects.
Philosophically, the moral justification for deterrence rests on the idea that society should use its power to prevent future harm. However, this must be balanced with the recognition that punishment cannot simply be about deterrence at any cost. When the state engages in practices that cause disproportionate harm—especially despite inadequate evidence of effectiveness—it risks prioritizing the pursuit of deterrence over the dignity and rights of individuals.
3.2 Rehabilitation vs. Retribution
The focus of criminal justice should shift from retribution to rehabilitation. Modern ethical theories, such as those proposed by John Rawls, [12] emphasize that justice should focus on the well-being of individuals and the fair distribution of opportunities for reform. An example of this is Norway’s criminal justice system: the country has one of the lowest recidivism rates in the world, credited to its focus on rehabilitating offenders through education, vocational training, and psychological support. [13]
When the justice system focuses on punitive measures, it perpetuates cycles of harm and fails to address the root causes of criminal behaviour.[14] Rehabilitation, by contrast, allows offenders to reintegrate into society, providing a more humane and constructive approach to justice. This rests on the belief that offenders are more likely to reform if treated with respect. Alternatively, restorative justice, which involves the victim and the offender in the process of reconciliation and healing, has shown promise in reducing recidivism and promoting long-term societal reintegration, such as the case of reconciliation villages post-Rwandan genocide (which has inarguably enabled society to progress from the tragedy).[15]
4. Addressing Counterarguments
4.1 Justice and Closure for Victims
Proponents of harsh punishments argue that they provide justice and closure for victims’ families, allowing them to move on from their trauma. The desire for justice is valid, understandable, and human. However, victims’ families experience higher levels of emotional resolution from restorative justice processes than from retributive justice measures.[16]
4.2 Cultural and Religious Justifications
Cultural and religious traditions are often invoked to defend the use of harsh punishments. For example, Sharia law prescribes corporal punishment for certain crimes, and many proponents argue that these practices reflect divine will or cultural authenticity. [17] While cultural practices should be respected to the extent that they do not infringe upon fundamental rights, international human rights standards establish a universal ethical framework that transcends cultural relativism. Traditionalism supersedes actual values in most cases, as religions tend to hold values of mercy, compassion, and forgiveness as core values. For example, Islamic scholars have increasingly advocated for restorative justice as a means of aligning legal practices with broader spiritual and ethical principles. [18]
4.3 Public Safety
Advocates of harsh punishments often claim that they are necessary to ensure public safety, particularly by incapacitating dangerous individuals. While the ethical goal of protecting society is legitimate, how this goal is pursued must also align with ethical principles. Life imprisonment without parole offers a comparable level of incapacitation without the irreversible harm caused by the death penalty. In fact, by endorsing harsh punishments, states risk normalizing violence within society and risk desensitizing society to the use of force, ultimately eroding respect for the rule of law and human dignity.
5. Conclusion
The abolition of the death penalty and corporal punishment is not only an ethical necessity but a moral imperative. Society must prioritize justice systems that respect the inherent dignity of all individuals, regardless of their actions. Such systems should seek to heal rather than harm, to reintegrate rather than exclude. Real justice doesn’t carry a whip.
References
[1] Ohchr, Death penalty incompatible with right to life | ohchr 2024.
[2] Ross, The fallacies of egoism and altruism, and the fundamental principle of morality.
[3] Jouet, Death penalty abolitionism from the enlightenment to modernity 2023.
[4] Herrera v Collins [1993] 506 US 390.
[5] Innocence Project, National Academy of Sciences reports four percent of death row inmates are innocent 2014.
[6] 6McCrudden, Human dignity and judicial interpretation of human rights 2008.
[7] Foucault, Discipline and punish: The birth of the prison 1977.
[8] Soering v United Kingdom (1989) 11 EHRR 439.
[9] Reyes, The worst scars are in The mind: Psychological torture 2007.
[10] On crimes and punishments 1963.
[11] Ibid 2.
[12] RAWLS, A theory of justice 2005.
[13] First Step Alliance, Rehabilitation lessons from Norway's prison system 2024.
[14] Ibid 15.
[15] Portela, A nation without ethnicity: The Rwandan Reconciliation Model 2021.
[16] The Journal of Applied Psychology, 2012.
[17] Robinson, Understanding sharia: The intersection of Islam and the law 2021.
[18] Ibid 18.
Bibliography
Cases
Herrera v Collins 506 US 390 (1993).
Soering v United Kingdom (1989) 11 EHRR 439.
Books
Foucault M, Discipline and Punish: The Birth of the Prison (Pantheon Books 1977).
Beccaria C, On Crimes and Punishments (Public Domain 1963).
Rawls J, A Theory of Justice [2005].
Journal Articles
Jouet M, ‘Death Penalty Abolitionism from the Enlightenment to Modernity’ (2023) 71, The American Journal of Comparative Law 46.
McCrudden C, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19, European Journal of International Law 655.
Nagin DS, ‘Deterrence: A Review of the Evidence by a Criminologist for Economists’ (2013), 5 Annual Review of Economics 83.
Sorenson H, ‘Spare the Rod, Spoil the Society? The Moral Complexity of Caning in Singapore’ (2021) 1 Journal of Contemporary Sociological Issues 35.
Reports and Online Articles
Association for Diplomatic Studies and Training, ‘Spare the Rod, Spoil the Child: A Caning in Singapore’ (Association for Diplomatic Studies and Training, 2019) <https://adst.org/2015/08/spare-the-rod-spoil-the-child-a-caning-in-singapore/> (accessed 23 November 2024).
First Step Alliance, ‘Rehabilitation Lessons from Norway’s Prison System’ (First Step Alliance, 2 May 2024) <https://www.firststepalliance.org/post/norway-prison-system-lessons> (accessed 28 November 2024).
Innocence Project, ‘National Academy of Sciences Reports Four Percent of Death Row Inmates Are Innocent’ (Innocence Project, 2014) <https://innocenceproject.org/national-academy-of-sciences-reports-four-percent-of-death-row-inmates-are-innocent/> (accessed 27 November 2024).
ohchr, ‘Death Penalty Incompatible with Right to Life | Ohchr’ (United Nations, 31 January 2024) <https://www.ohchr.org/en/stories/2024/01/death-penalty-incompatible-right-life> (accessed 22 November 2024).
Portela LP, ‘A Nation without Ethnicity: The Rwandan Reconciliation Model’ (IWGIA, October 2021) <https://www.iwgia.org/en/news/4556-a-nation-without-ethnicity-the-rwandan-reconciliation-model.html> (accessed 30 November 2024).
Reyes H, ‘The Worst Scars Are in The Mind: Psychological Torture’ (The Red Cross, September 2007) <https://international-review.icrc.org/sites/default/files/irrc-867-5.pdf> (accessed 28 November 2024).
Robinson K, ‘Understanding Sharia: The Intersection of Islam and the Law’ (Council on Foreign Relations, December 2021) <https://www.cfr.org/backgrounder/understanding-sharia-intersection-islam-and-law> (accessed 30 November 2024).
Ross K, ‘The Fallacies of Egoism and Altruism, and the Fundamental Principle of Morality’ (The Fallacies of Egoism and Altruism, and the Fundamental Principle of Morality) <https://friesian.com/moral-1.htm> (accessed 25 November 2024).
Salt HS, ‘The Ethics of Corporal Punishment on JSTOR’ (JSTOR, 1905) <https://www.jstor.org/stable/2376204> (accessed 23 November 2024).
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