Academic journal article Journal of Buddhist Ethics

Buddhism and Capital Punishment: A Revisitation (1)

Academic journal article Journal of Buddhist Ethics

Buddhism and Capital Punishment: A Revisitation (1)

Article excerpt

1. Introduction

In the Raja-parikatha-ratnamala, the second century C.E. Mahayana philosopher Nagarjuna advises king Udayi with regard to the death penalty:

Once you have analysed the angry
Murderers and recognised them well,
You should banish them without
Killing or tormenting them. (v. 337; cited in Harvey 2009, 54)

Nagarjuna describes at some length (verses 330 to 336) how "punishment should be enforced with compassion" (v. 336); indeed, he advises to "[e]specially generate compassion/ For those murderers, whose sins are horrible" (v.332). Nagarjuna presents a view that underlines the general ethic of ahimsa, which characterizes the inception and growth of Buddhism, and confirms the first precept in its prohibition of harmful acts. Echoing texts such as the Arya-bodhisattva-gocara, Nagarjuna's view typifies the Mahayana extension of compassion (karuna) in the context of punishment to a degree that, to proponents of capital punishment, might be seen as unreasonably charitable and misjudged for the worst crimes. (3)

While an appeal to a superlative compassion is laudable in a Buddhist context (as for many outside it), it does not present obvious grounds for the exercise "[o]f compassion from those whose nature is great" (v. 332) beyond the cultivation of the bodhisattva norms informing Nagarjuna's Mahayana worldview. Moreover, if Buddhists themselves have often politically and judicially failed compassion in this case, then compassion alone is not always sufficiently compelling reason for abolition.

There is thus cause to engage reasons other than affective ones that might bolster Nagarjuna's advice to the king. In pursuing these I intend to offer philosophical ballast to his claim by assessing preventive arguments for capital punishment. In order to consolidate the Buddhist norm expressed by Nagarjuna, for purposes again of clarifying the Buddhist position as a critique of the (neo-)Kantian one, the paper thus engages a critical dialogue between two contrasting intellectual traditions, with reference to one intentional form of lethality: lethal retributivism (hereafter LR).

Its justificatory claims centrally rely on the principle of just requital (or desert) for lethal crime, and the death penalty as the proportionate satisfaction of requital. Both claims feature in recent Western as well as Buddhist-ethical accounts (Bedau 2005; Fink 2012; Glover 1990; Harvey 2009, 2018; Loy 2000; Sitze 2009) of retributive (including lethal) punishment. After distinguishing between forms of preventive punishment--that is, as deterrent and obstructive--below, in section 2, I examine the claims by which lethal retribution proponents, on the other hand, defend its case, considering a neo-Kantian retributivist defence (Sorell, 1987) of capital punishment as justified punishment. In section 3, invoking sources in the canon, their commentaries and recent secondary scholarship, I contextualise and criticize those claims on Buddhist grounds. That discussion converges in conclusion with a common concern for a Kantian emphasis on the moral-legal sovereignty of the just state as well as with the Buddhist qualification that, in Nagarjuna's words, "unworthy sons are punished/ Out of a wish to make them worthy/ So punishment should be enforced with compassion" (v. 336, op. cit., cited in Harvey 2009, 54).

1.1. The legal sanction of state execution

Killing by sanction of the state (as punishment, war-combat or for other purposes) is not legally or ethically equivalent to criminal killing. The first honors and enforces state law, the second (unintentionally) disregards or (intentionally) repudiates it. The first aims to redress or deter crime and so uphold the good of justice while the second defies justice by wrongful misadventure. Yet both lethal acts fully intend, despite these differing conditions, to take life, yet one is punished for it where the other is not. This appears prima facie to present at least an axiological tension; how is it that one and the same act of the deprivation of the primary good of life is condemned in the one case, but sanctioned in the other? …

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