March 1, 2021

Is it possible that the death penalty and democracy coexist?

The case of Pablo Ibar The debate on the death penalty has returned to the table. If we were to establish a democratic state and take human rights seriously, capital punishment would have no place in the organization of our coexistence. And if democracy means something is to set limits to power.

Democracy is often identified by voting, electing our leaders and developing laws through our representatives. And it is clear that all that is too. But it is not stressed enough that the DNA of democracy is precisely in establishing limits to power. In modern democracies, we citizens give power to Parliament so that our representatives organize collective life. Thus, the rule of the majority often prevails as regards the decisions to be taken.

But not everything should be decided like that. In a democracy minorities must also be defended. Moreover, the dignity of each and every person, human dignity, must be at the axiological center, and public authorities have an obligation to respect that dignity that cannot be violated even by a majority decision. Majorities cannot legitimately decide everything: there are limits.

Legitimize what cannot be legitimized

The question, however, arises immediately: And in which cases is dignity not respected? Or, from another point of view, in which cases is dignity not clearly respected?

Let us give rhetorical examples: Is torture legitimate? In the case of Ticking bombIf it were possible to find out by torture in what exact place a bomb was placed, would it be legitimate to torture to save the lives of hundreds of people? Is sex discrimination legitimate? Can a law that suppress women's rights be enacted? Is apartheid legitimate based on a racist hierarchy? To what extent can the rights of migrants be limited without impairing their dignity? Should the State have unlimited capacity to investigate our privacy? Can the State deny euthanasia to a terminal patient without taking into account the family's decision?

The series of questions could be infinite. The question is that Democracy, sometimes, leaving aside the norm of the majority, must have as its starting point, and even as an end point, the absolute value of dignity, and must decide otherwise. And in that respect, the culture of human rights is paramount. The value of human dignity and human rights go hand in hand. Undoubtedly, that happens in the symbolic case of capital punishment. Let's see

Punishments and customs

The organization of coexistence has numerous instruments, not only legal, for conflict resolution. We have moral, ethical and religious codes, habits, customs and all kinds of rules to guide us on what to do and what not to do in different situations of life. In addition to normative models of action, we have both formal and informal sanctions and punishments: for example, if we are exemplary people, we are rewarded by the consideration and high esteem professed by others; otherwise, we are sanctioned informally but effectively through social exclusion.

Sanctions can also be legal-formal: fines, restrictions on various rights … and in the most serious, criminal cases. Criminal sanction is a way of resolving conflicts, but should only be used in extreme cases. And within it, the prison sentence is the most severe response, applicable only in crimes of greater severity.

Crimes of maximum cruelty such as murder or sexual rape, for example, exist in almost all societies and are punished very severely. The question, however, is: How far should this punishment go and its severity? To what extent can legitimately be reached in the response to these crimes? Within a democracy, where do we put a limit on ourselves?

During the Middle Ages, the death sentence was not the most severe response to crime: there was also torture. The way to cause death could be especially cruel depending on the crime committed. There were differences in the way of causing death and in determining the severity of the punishment.

From the 18th century, with the arrival of the Enlightenment, cruelty was gradually diminishing, at least in the West, until the disappearance of capital punishment and physical punishment. On the one hand, for its inefficiency: that type of punishment did not solve the problem of crime. On the other, because it was considered contrary to human dignity and universal respect that all people deserve.

Inadmissible torture and capital punishment

There was such a cultural change that the execution of people or the application of physical punishment became inadmissible. The waiver by the State to the application of capital punishment, even in the most severe cases, was a consequence of a change in sensitivity. Because the ability to decide who deserves to live and who should not be available to the State in a consolidated democracy. And it is that the application of capital punishment implies, basically, the existence of two types of people: those who have the right to live and those who do not. But precisely there is the self-imposed limit: people cannot be classified into two groups, some with the right to life and others without it. Taking human dignity seriously prevents canceling the possibility of legally killing citizens, even when they commit very serious crimes.

The question of the limit, on the other hand, is not a mere ethical-philosophical question. Historical experience teaches us that when this limit is not respected, in addition to the great suffering that is generated, the State ends up slipping into systematic abuse.

It is enough to remember the repeated and massive violation of human dignity by the Nazi State in a sort of slippery slope that ended in the so-called genocide or final solution. And for that reason, once this one was defeated, the Universal Declaration of Human Rights (1948) and the European Convention of Human Rights (1950) as articulations that enthroned human dignity as a touchstone. Capital punishment should not, legitimately, be a faculty or power in the hands of the democratic State. Not at least if we do not want to return to that great black hole from where we began to leave approximately 200 years ago and reverse the limits that nourish and sustain democratic construction.

This article was originally published. in Basque in Campusa.

This article was originally published in The Conversation. You can read the original here.

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