On the death penalty in 3 and a half thoughts …

by Jeremy Fernando

Some lives are grievable, and others are not; the differential allocation of grievability that decides what kind of subject is and must be grieved, and which kind of subject must not, operates to produce and maintain certain exclusionary conceptions of who is normatively human: what counts as a livable life and a grievable death.

— Judith Butler, Precarious Life


Perhaps, the question is not so much whether the death penalty is good or not.

Not so much because that is moot, but precisely because those who are for and those who are against it hinge their argument around the same premise: that

life is sacred.

Proponents of the death penalty argue that since one has taken a life, one must then pay for it — one must be accountable. And since life is sacred, there is no other way to pay than through one’s own life. Thus, one must die. [1]

Opponents argue that since life is sacred, one must not take it: and that, as Margaret Atwood elegantly and powerfully argues in Cat’s Eye, « an eye for an eye only leads to more blindness ».



Thus, an impasse.
Or, if you prefer: an aporetic situation.

Not because either side is wrong, but perhaps, as Albert Camus has taught us, « Prometheus is both just and unjust, and Zeus who pitilessly oppresses him also has right on his side. Melodrama could thus be summed up by saying: ‘Only one side is just and justifiable’, while the perfect tragic formula would be: ‘All can be justified, no one is just.’ This is why the chorus in classical tragedies generally advises prudence. For the chorus knows that up to a certain limit everyone is right and that the person who, from blindness or passion, oversteps this limit is heading for catastrophe if he persists in his desire to assert a right he thinks he alone possesses. »

But what would « prudence » mean here.
After all, there has been a death — quite possible a senseless one.
One that the law not only has to judge, but to also address grievances, to meet out punishments, to deter even; en bref, to bring balance back to the system.

All whilst continuing to protect, as it were, the sacredness of life itself.



Which might precisely be the problem.
For, if life is sacred, then it remains beyond materiality, beyond matter;


And it is precisely the focus on the death penalty that allows one to look at life as an idea whilst missing all the death around us: to look at the forest and miss the trees, miss the fact that most of the trees might already be missing. This is, for instance, what allows vegans to argue until they are blue in the face about how eating animals violates life whilst ignoring the death of the plants they are consuming: all they have done is to decide what counts as a life.

Perhaps then, instead of abstracting life, we might attempt to think of the immanence of the living. Which means that every living being is unique, singular, aeconomic, non-exchangeable. Which then also opens up very uncomfortable, potentially disconcerting, notions: such as the fact that every meal is a murder.

Thus, « prudence » is not so much a middle-ground — or, even worse, a moral high ground where one can wash one’s hands clean — but the very opposite. That one bears in mind, along with all the weight that it brings, that one is only able to live, that is only living, due to the death of countless others.

And one’s very responsibility lies in the fact that every moment of living is an act of choosing who, and what, one kills.



[1] Which might well be why many idealist philosophers are such fans of the death penalty: for, they argue that to be a good citizen one has to submit oneself to the law all the way to the end: thus, one has to submit one’s life itself to the law. And, should one break the law, one should not just resign oneself to the punishment, one should in fact rejoice that one would be punished — for that would mean that one finally acknowledged the truth of the law itself.

Oh yes, the state can have its poetic moments too.

For, one has to bear in mind that just because we’ve cut off the heads of kings doesn’t mean we’ve gotten rid of the notion of the divine origin of both the state and authority.

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