UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 5, No.1FALL 1981
Capital Punishment and the Right to Life: Some Reflections on the Human Right as Absolute
Peter J. Riga(fn*)
Introduction
The right to life of the person and its various applications in different political situations is one of the most debated subjects of our day. This question is important today for a number of reasons: the widespread demand for abortion, the drive for the right to die, and the challenge to capital punishment. The debate seems at times to be confused: those opposing all forms of war and capital punishment seem to approve of abortion; while others vehemently opposed to abortion, approve of war and capital punishment. But this inconsistency disappears once an absolute view of man's right to life is recognized. Under an absolute view of man's right to life, capital punishment is never justified.
This article hopefully contributes to the philosophical-moral debate on the question of the human right to life. It first examines various international covenants and philosophical schools and their ambiguous conceptualization of man's right to life. The article, in the context of capital punishment, then develops a theory of man's absolute right to life. The right to life is considered absolute because it is necessary to maintain two essential characteristics of man, his mystery and his priority-setting ability. Because capital punishment denies these essential characteristics, it is never justified.
I. The Non-Existence of the Absolute Right to Life in Public International Documents and Philosophical Schools
Documents of various world-wide and multi-national regional conferences and assemblies concerned with the human condition are ambivalent in their treatment of the problem of when the life of a human being may be taken. These covenants and conventions do not justify the right to life by any philosophical understanding of life, at least not explicitly. Some documents couple the phrase "right to life" with the term "inalienable," or with some other derived right. These documents seem to be self-contradicting. They describe the right to life as inalienable and then proceed to specify conditions allowing the death penalty. In other words, although the documents speak of the inalienable right to life, they permit the taking of human life under certain circumstances and after certain legal procedures. This contradiction results from a tension between the moral principle of right to life and the right's application or underlying policy(fn1) in various circumstances. A brief examination of some of these documents demonstrates the tension between this moral principle and the right's application.
The Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the United Nations in 1948 recognizes the right to life. Article 3 provides: "Everyone has the right to life, liberty and security of person."(fn2) The Article does not say that the right to life is inalienable; it says simply that each person has such a political right, similar to that of the American Declaration of Independence. It is a statement of a general moral principle incorporated into a political document binding those who belong to the UN. Yet, each nation is free to apply its own meaning and interpretation of this general moral principle by domestic legislation. Article 3 does not recognize an absolute or inalienable right to life per se as distinct from other types of rights.
In some United Nations Educational, Scientific, and Cultural Organization (UNESCO) documents preparatory to the Universal Declaration, however, there was a statement attempting to establish the basis of the declaration by calling attention to the right to life per se.(fn3) These preparatory documents attempt to explain that the right to life is the foundation of all other rights as well as the condition of their existence,(fn4) but they do not demonstrate a jurisprudential or moral basis in any philosophical concept of the person. As articulated in the UNESCO preparatory documents, such a right to life is a dubious foundation for all the other human rights because the right to life is not demonstrated. If we cannot establish the right to life as foundational, all other rights of the person flowing from the right to life, are nonfoundational as well. The difficulty is establishing a basis for the right to life. Of course, there is not universal consensus on the meaning and importance of the person. It therefore comes as no surprise that these international documents did not try to specify the foundation underlying man's right to life. Yet, without a philosophical analysis of the concept "person," all rights become the arbitrary giving or retaining by the covenant-community, the State, even if by all states. For if the State may define or give human rights, it may just as logically take them away at some time in the future. Because these UNESCO documents fail to establish a philosophical foundation for man's right to life, thus implying that the State has the right to define the right to life, these documents are unsatisfying. Indeed, although these documents represent a forward movement politically, they are morally and philosophically dangerous.
Another document, The International Covenant on Civil and Political Rights,(fn5) was s(fn5) ubmitted to the United Nations General Assembly by the Economic and Social Council and approved by a 106 to 0 vote in December, 1966. Its purpose was to elaborate and make more specific the UN's Universal Declaration of Human Rights. Part III, article 6 of The International Covenant specifies that "[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."(fn6) It is significant that the right to life is to be protected by law, yet, the right finds its basis in life itself, in the person himself. This is significant because the foundation of this right resides in the person and not in the law; the law only guarantees this right. But the term "inherent" is not further developed. Thus in a period of twenty years, we may note some significant progress in understanding the nature of the right to life as well as other rights. Whereas The Universal Declaration of Human Rights gave only the general moral imperative of the human right to life, the International Covenant places the source of the right to life in the human person himself. The International Covenant does not confer the right to life; under the Covenant, the right resides in the very nature of the person.
The document goes on to say that the right to life cannot be "arbitrarily" taken away and then specifies when life can and cannot be taken. The document adopts an approach, similar to due process analysis, to prevent a capricious or arbitrary taking of human life without protection of law.(fn7) Life can be taken for serious crimes, but only according to proper procedures. But, the document does not specify what constitutes serious crimes; it leaves this task determination to individual countries and the domestic law.
Another regional document, the Convention for the Protection of Human Rights and Fundamental Freedom,(fn8) was signed in Rome in November, 1950, by the participant Western European nations, and entered into force September 3, 1953. Section I, article 2 of the document provides:(1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. (2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.(fn9)
This article specifies that persons have a right to life but does not explain or justify this right. It further elaborates that life can be taken only for an action the domestic law of the country labels as meriting the death penalty and only upon sentencing by a court of proper jurisdiction. The article sets limits restricting the taking of life, but assumes, once again, that human life may be legally taken by public authority if certain conditions are met..
The Convention for the Protection of Human Rights and Fundamental Freedoms recognized that an individual's right to life, not an individual's life, is to be protected by law. This distinction is significant in determining whether a right is conceived to be naturally an accompaniment of the person or whether it is a stipulation of law constructed by society. The difference is not minor. In the first case, the right to life would inhere in the very person, whereas in the second case, the right can be given as the State sees fit only if the State follows the proper procedure. In other words, the distinction is whether the right inheres in the very "nature" of the person or whether such a right exists only as an appendage of positive law.
The last paragraphs of the article have yet to be interpreted, and thus raise a subsidiary question to the basic right to life question: whether public authority can take life when...
