Criminalizing Unto Death as Act of Judgment, Act of War: The Suicidal Rationality of the Death Penalty

Abstract

This paper attempts to establish that capital punishment is not rational and cannot be rationalized without suicidally destroying the very ground on which lawful and rational punishment bases itself. It argues that in capital punishment, just as in any lawful punishment, the criminal is both held (humanly) rational and therefore culpable. But, unlike other forms of punishment, in capital punishment, the condemned is at the same time, held as irrational and irredeemable, beyond reform, and therein outside the ambit of rationality and humanity. In this sense a fundamental aporia is reached in rationalizing capital punishment because of the contradiction between the basis of punishment (the human as rational) and its operational logic (the condemned person as beyond reform therein irrational). Expressed another way, the judge proclaims a form of infallibility in their reasoning where the incorrigibility of the judgment is horrifically demonstrated and ironically reflected (and projected) in the incorrigibility of the condemned. This broad argument is pursued in two parts; one part interprets canonical texts such as Hobbes, Hegel and Foucault, while the second part interprets the Supreme Court of India’s jurisprudence around the death penalty. While these are very different discourses it will be shown that they share much common ground in their expressing—and negotiating—the fundamental problem as described above.