A sanction fit for murderers

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The Independent Online
The political controversy that has surrounded the death penalty in the United States for the past quarter of a century has reached Britain. The efforts of Nicholas Ingram's attorney to have Georgia's law governing capital punishment declared unconstitutional has inevitably drawn public attention to the deeper question of its morality.

The undercurrent of criticism has been that the ultimate sanction is indeed immoral, even if constitutional in the eyes of the US Supreme Court. Moreover, there seems to be a confidence that only a morally deficient country could contemplate putting to death even those who commit such heinous crimes as that for which Ingram was properly convicted.

That view is simply wrong: there is a moral foundation for capital punishment, and it is one that must be defended if liberal democracies are to survive.

At least since Aristotle wrote, there has been an understanding that politics and morality are inextricably linked. By their nature, men reason about what is right and wrong, collectively deliberate about it, and make political judgements in the form of laws. To serve its function, law must carry a sanction that will reflect the moral seriousness of the offence.

Modern constitutionalism, of which the US constitution remains the exemplar, took its bearings from such English writers as Thomas Hobbes and John Locke. For them, man was born in a state of nature, where no law obtained and where, as a result, as Hobbes so memorably put it, life was "solitary, poor, nasty, brutish and short". The solution to that barbaric and primitive state was the social contract, whereby men would cede certain of their natural rights to enter into a civil society. What distinguished this civil order was law; and it was by law that men would know with certainty what was just and unjust.

The defining characteristic of modern constitutionalism is a faith in governmental structures whereby the moral sense of the people is given vent. Through public deliberation, notions of right and wrong do battle until a general consensus emerges; thus are private opinions about justice transformed into something approximating the public good in the form of legally binding rules.

For the rules to be obeyed they must be accompanied by a sanction that fits the crime. There is no crime more antithetical to the idea of a civil society of free individuals than murder. It is therefore altogether fitting that the people in their collective moral capacity should decree that those who deliberately take a life shall pay with their own. It is a legitimate expression of moral indignation, a notice that certain acts are simply unacceptable, and that those who commit them will forfeit their right to participate in civil society. Life imprisonment is insufficient.

That is not barbarism; that is not moral deficiency; that is the rule of law. It is the moral peg on which everyone's freedom ultimately hangs.

The writer is Director of the Institute of United States Studies and Professor of American Studies in the University of London.