CAPITAL

PUNISHMENT AND
HUMAN RIGHTS:
Contrary or
Complementary?
Research proposal submitted under the guidance of Prof.
Mousumi Guha

Torsa Chakraborty
Ph.D. Jadavpur University
 CONTENT

1. Introduction

2. Research Question

3. Methodology

4. Probable List of chapters

5. bibliography
1. INTRODUCTION

Rationality is what distinguishes human beings from the other living beings. This
thinking ability, among other key concepts, includes moral judgment. A lot has been said about
the rightness of our actions. The moral or ethical judgments are as such that change in respect to
different timeframe and society. Hence, the existing ethical theories need an evaluation from
time to time. In the following research proposal, my primary area of interest would be in ethics.
More precisely, applied ethics.

We are faced to new challenges in the field of ethical judgment everyday with emerging social
trends and practices. Capital punishment and human rights are such two theories which are
discussed a lot now-a-days. Death penalty is a primitive component of justice in human
civilization. On the other hand, the concept of human rights is relatively novel. In my thesis, I
would like to work on these two theories and draw a conclusion on their correlation. My project,
hereby, is to find out whether these two practices can coexist in the social structure or not.

Capital punishment involves the deliberate killing of a supposed or actual offender for an
offense. Throughout history and across different societies, criminals have been executed for a
variety of offenses, but much of the literature is devoted to examining whether those convicted of
murder ought to be executed, and this discussion will be similarly focused. We are, however,
well acquainted with the legal aspect of capital punishment. From the ancient time, the ruling
bodies have used death penalty as a powerful tool for justice. From guillotine to modern electric
chair, capital punishment has been the mark of retaining justice in the social structure. Though,
current human civilization and its law deal the capital punishment with utmost humanitarian
outlook. Many countries have already abolished the practice e.g. Venezuela, Canada, France,
Australia, Germany, Russia etc. But it is somehow prevalent in some other countries. For
instance, in India itself, there had been three cases of death penalty just within the last two years.

There are majorly three theories of punishment, namely retributive theory, deterrent theory and
reformative theory. The former two theories advocate the capital punishment, whereas the
reformative theory is a staunch opponent of the practice. A combination of utilitarian and
retributive considerations is usually invoked in an effort to justify the execution of murderers.
The centerpiece of most arguments in favor of capital punishment is retributive: Murderers
deserve to be put to death. This is usually argued for along Kantian lines: By deliberately causing
an innocent person’s death, the murderer has rendered himself deserving of death. Utilitarian
considerations generally play a large role as well. Proponents argue that the threat of capital
punishment can deter potential murderers. Since many human beings’ greatest fear is death, the
intuitive plausibility of this claim is clear. In addition, proponents point to the fact that capital
punishment is the ultimate incapacitation. Clearly, if a murderer is dead, then he can never harm
anyone again. It is not easy to say in one word whether capital punishment is acceptable or not.
There are many an arguments both in favour and against death penalty. But lately, there is a
strong movement against capital punishment by the human rights activist. Human rights are
commonly understood as inalienable fundamental rights to which a person is inherently entitled
simply because she or he is a human being. Human rights are thus conceived as universal and
egalitarian. These rights may exist as natural rights or as legal rights, in local, regional, national
and international law. Human activists always hold up the value of life and advocate that the
fundamental rights should equally applicable to everyone. Hence, for them, the capital
punishment can in no way be justified. Human rights activists condemn the capital punishment in
all the form and situation. As a result, we have seen, there were huge debates even regarding the
death penalty of terrorists e.g. Afzal Guru or Ajmal Kasav. It has been held by the activists that
the capital punishment is against the human rights as it violates the value of human lives.

On the other hand, the advocates of the capital punishment may argue that the capital punishment
is a tool for retaining human rights only. It helps the affected people or their family to have their
right to justice. Also, one who violates the right of others forfeits his own rights. Thus, in a way,
the capital punishment complements the concept human rights.

It is clearly evident that none of these arguments can be accepted or rejected wholly. For both of
the views have their justifications. In the current socio-political structure, it is desired that we
should be aware of our fundamental rights. Hence, this is also of prime importance that we
question our legal system by the means of our rights and duties. Also, it would be of the
academic as well as social interest that we evaluate an existing legal and social practice in terms
of new moral concepts.
2. Research Question

The object of my thesis can be summed up in one question: Does Capital punishment violate or
retain human rights?

On an explanatory note, my concern lies in finding out whether capital punishment or death
penalty is a stark contradicting practice in respect to human rights? Or it may be used a means by
the state to protect the rights of its people? Reflecting on the thought, some other questions have
also come up. They are as following:

1. What determines a capital crime?

2. Is capital punishment deterrent or retributive? Or both?

3. Can retributive punishment render justice at all?

4. Is it ethical for a democratic state to inflict capital punishment?

5. Is retributism acceptable for the present state of human civilization?

6. Can the alternative options of capital punishment pass the humanitarian test?

7. How does the egalitarian view of human rights determine the priority between the convict
and the affected?

8. What is the notion of the human right activists regarding multiple murderers or terrorists?
3. Methodology

For my thesis, I will take up the qualitative design of research. Here in my work I will try to
explore the concepts in question and interpret their correlation. The topic of the thesis is
clearly based on an emerging social issue. It involved the social and political justification of
the concepts of capital punishment and human rights and proceeds through the moral and
legal argumentations. Thus, it is also flexible in respect to its conclusion.

The best suited world-view latent in my scope of study seems to be the advocacy and
participatory world-view. This world-view holds that the research inquiry needs to be
intertwined with political agenda. And it is recursive or dialectic and focused on bringing
change in practices. It may be said that if we find out eventually that capital punishment is, as
a matter of fact, a restraint to the human rights, and then we might have to think over and
start afresh with our existing juridical procedure.

As for the research strategy I have to adhere to the qualitative strategy. In the due course I
will take up the grounded theory and case studies as my research strategies. As a case study
my research will partly be of in depth exploration of the concepts bound in time and activity
and I will try to produce ample examples of the arguments using a variety of data collection.
Also, my thesis will follow the grounded theory as there will be an abstraction of the views
of the participants, i.e. both the debating side and eventually I will try to formulate an
acceptable conclusion based on the components’ interrelations.

Further, as following qualitative method the thesis will try to bring out the participant’s
interpretations of the concepts in question and will be collaborative. And I will find scope to
incorporate my personal values and belief. I cannot firmly say that the conclusion of my
work will be able to bring about any drastic change in the society or in the moral judgment,
but I hope this will weigh in somehow in the emerging issue of human rights movement.
4. Probable List of Chapters

PREFACE

1. CHAPTER1: INTRODUCTION
2. CHAPTER2: PURPOSE AND SCOPE OF PUNISHMENT
3. CHAPTER3: WHAT DETERMINES A CAPITAL CRIME?
4. CHAPTER4: PUNISHMENT AND JUSTICE
5. CHAPTER5: PUNISHMENT AND UTILITARIANISM
6. CHAPTER6: PUNISHMENT AND RETRIBUTISM
7. CHAPTER7: CAPITAL PUNISHMENT-RETRIBUTIVE OR DETERRENT?
8. CHAPTER8: AUTHORITY OF STATE FOR INFLICTING CAPITAL PUNISHMENT
9. CHAPTER9:HUMAN RIGHTS-AN OVERVIEW
10. CHAPTER10: RESPECT FOR LIFE
11. CHAPTER11: CAN RESPECT FOR LIFE BE TAUGHT BY TAKING LIVES?
12. CHAPTER12: ABOLITION OF CAPITAL PUNISHMENT- IS IT INJUSTICE FOR
THE PEOPLE AFFECTED?
13. CHAPTER13: WHAT DOES HUMAN RIGHTS MOVEMENT PROPOSE AS THE
PUNISHMENT OF RAREST OF THE RARE CRIME?
14. CHAPTER14: IS THERE ALWAYS POSSIBILTY OF CORRECTION OR
REFORMATION?
15. CHAPTER15: EGALITARIANISM AND PRIORITY
16. CHAPTER16: EGALITARIANISM IN JUDICIAL STRUCTURE
17. CHAPTER17: HUMANITARIAN JURISPRUDENCE
18. CHAPTER18:CONCLUSION
 BIBLIOGRAPHY

 Bentham, Jeremy. The Principles of Morals and Legislation. New

York: Hafner Publishing Company, 1948

 Bedau, Hugo Adam, and Paul Cassell, eds. Debating the Death
Penalty: Should America Have Capital Punishment? The Experts on
Both Sides Make Their Best Case. New York: Oxford University
Press, 2004.

 Kant, Immanuel. “Justice and Punishment.” Trans. W. Hastie.

In Philosophical Perspectives on Punishment. Ed. Gertrude Ezorsky.
Albany: State University of New York Press, 1972.

 Beccaria, Cesare. On Crimes and Punishments. Tans. David Young.

Indianapolis: Hackett Publishing Company,1986

 Amnesty International. When the State kills: the death penalty vs.
human rights: Amnesty International Press. 1989

 Hans Nelen, Jaques Claessen. Beyond the Death Penalty: Reflections

on Punishment: Intersentia Uitgevers N.V. 2012

 Subhas C. Gupta. Capital Punishment in India: Deep and Deep

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