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Capital Punishment as a Problem for the Philosophy of Law


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									                       Capital Punishment
                       as a Problem for the
                        Philosophy of Law
                                                  Adam Sitze
                                                  Amherst College

     Do we want the debate on the death penalty to be anything other than a
     discussion on the best punitive techniques? Do we want it to be the occasion
     for and the beginning of a new political reflection? Then it must take up the
     problem of the right to kill at its root, as the state exercises that right in
     various forms.
                                                    —Michel Foucault, “Against Replacement Penalties,” 1981

In the book that Gilles Deleuze called a “new philosophy of law”
(1995 [1990], 94), François Ewald suggests that the primary task for the
philosophy of law is to inquire critically into the conditions under which
various societies problematize their own juridical experience (41–43). Capi-
tal punishment is a particularly interesting matter for the philosophy of law
so construed. The elimination of the death penalty was not posed as a serious
question by any of the Abrahamic religions, by classical political philosophy,

CR: The New Centennial Review, Vol. 9, No. 2, 2009, pp. 221–270, issn 1532-687x.
© Michigan State University Board of Trustees. All rights reserved.

                                                                                                              ● 221
222 ●   Capital Punishment

   or even by the modern political philosophies that otherwise broke so deci-
   sively with both religious tradition and classical political philosophy (Camus
   1959 [1957], 44–47; Bobbio 1996 [1990], 140–41, 144, 149–50, 160; Derrida 2004,
   202–3). Only when thought within the horizon of eighteenth-century politi-
   cal economy, where its wasteful ineffectiveness could suddenly be raised as a
   problem for the government of the emergent modern state, did the abolition
   of the death penalty emerge as a distinct juridical possibility (Bobbio 1996
   [1990], 128–30).
       This ostensibly simple fact has important implications for the way we
   think about the abolition of the death penalty today. Deleuze argues that
   modern political philosophy’s definitive difference from classical political
   philosophy consists in its reversal of the relation of the Good to Law: whereas
   in Plato the Law depends upon the Good, in Kant it is the Good that depends
   on the Law (Deleuze 1985 [1963], ix–xi; 1991 [1967], 82–84). Yet if modernity is
   understood as the specifically political philosophical aspiration to produce
   a culture 
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