Capital Punishment

Capital punishment is the legally sanctioned execution of a person convicted of a serious crime, typically murder or treason. Conservatives have defended the practice as the proper retributive response to the most grave offences and as an affirmation of the moral seriousness with which a society regards human life. The opposing view, dominant in contemporary Western Europe and ascendant elsewhere, treats execution as incompatible with human dignity and with the limited authority of the state over life. Conservatives writing within the natural-law and retributive traditions have argued that abolitionism rests on a sentimental anthropology and a thin account of justice.

Key Takeaways

• Conservative defenders of capital punishment ground the practice in retributive justice, drawing on Thomas Aquinas and Immanuel Kant rather than on deterrence claims that empirical work has not settled.
• The natural-law tradition treats execution as proportionate to the gravity of the offence against a person’s life, not as state vengeance.
• Abolitionist arguments emphasise the irreversibility of error and the dignity of even the most depraved offenders; conservative replies stress the dignity of victims and the moral weight of retribution.

History And Context

Western legal codes treated execution as the standard penalty for grave offences from antiquity through the eighteenth century. Cesare Beccaria’s On Crimes and Punishments (1764) opened the modern abolitionist case on utilitarian grounds; the practice nevertheless persisted across most of Europe and North America into the twentieth century. The Second World War and decolonisation accelerated abolitionist sentiment: France abolished the guillotine in 1981, the United Kingdom suspended hanging for murder in 1965 and abolished it for all offences in 1998, and Canada abolished the federal death penalty in 1976.¹

The United States is the principal Western outlier. After a four-year moratorium following Furman v. Georgia (1972), the Supreme Court in Gregg v. Georgia (1976) held that capital punishment is not categorically prohibited by the Eighth Amendment. Thirty-eight states retained the penalty in some form at the post-Gregg peak; as of 2026, twenty-seven states authorise it and a smaller subset carry out executions in practice. Conservative legal scholars including Walter Berns and Robert Bork wrote in defence of capital punishment during the constitutional debates of the 1970s and 1980s and continued to do so afterwards.²

The Conservative Position

The conservative case is retributive rather than deterrent. Thomas Aquinas, treating the question in the Summa Theologica, argued that the civil authority may lawfully execute malefactors when their crimes threaten the common good, comparing the removal of a corrupted member to the amputation of a diseased limb that imperils the body.³ The argument turns on proportion: the gravity of the punishment must answer to the gravity of the offence, and certain offences against innocent human life admit of no lesser proportionate response.

Immanuel Kant’s defence is more austere. In the Metaphysics of Morals (1797) Kant argued that even if a civil society dissolved itself by the consent of all its members, the last murderer remaining in prison would first have to be executed, so that “everyone will duly receive what his actions are worth and bloodguilt will not cling to the people.”⁴ For Kant, execution is not a means of social hygiene but a debt the murderer owes to the moral order; to remit it is to insult both the victim and the offender, the latter by treating him as a creature unable to bear responsibility.

Walter Berns developed the retributive argument for an American audience in For Capital Punishment: Crime and the Morality of the Death Penalty (1979). Berns argued that a society which refuses to execute its worst offenders fails to register, with appropriate gravity, what murder is. Abolition signals that human life is precious only to a point; retention says that the deliberate taking of innocent life forfeits the offender’s own life. Conservative writers in this lineage tend to be sceptical of deterrence claims, treating them as a secondary and contingent benefit rather than the foundation of the practice.

Differing Positions

Beccaria’s utilitarian objection — that execution adds nothing to deterrence beyond what life imprisonment supplies — remains influential in policy debate. The modern abolitionist case foregrounds the irreversibility of error: where life imprisonment can be commuted, execution cannot. The Innocence Project and similar organisations have documented exonerations of death-row inmates by DNA evidence, and several American states have cited error risk in their abolition statutes.

The Catholic Church’s position has shifted. Evangelium Vitae (1995) restricted the licit use of capital punishment to cases of strict necessity for public safety; Pope Francis amended the Catechism in 2018 to call capital punishment inadmissible. Conservative Catholic commentators including Edward Feser and Joseph Bessette have argued that this amendment cannot be reconciled with the prior magisterial tradition and represents a prudential rather than doctrinal change.

Classical liberals split. Hayek treated criminal punishment as outside the core of his work; libertarians of the Rothbardian school have generally opposed state execution on the grounds that the state cannot be trusted with such finality. Conservative-leaning legal scholars including Cass Sunstein and Adrian Vermeule have published technical work suggesting deterrence effects may be real but not large.

References

1. Hood, R., and Hoyle, C. The Death Penalty: A Worldwide Perspective, 5th ed. Oxford: Oxford University Press, 2015.
2. Berns, W. For Capital Punishment: Crime and the Morality of the Death Penalty. New York: Basic Books, 1979.
3. Aquinas, T. Summa Theologica, II-II, Q. 64, A. 2. Trans. Fathers of the English Dominican Province.
4. Kant, I. The Metaphysics of Morals (1797), trans. Mary Gregor. Cambridge: Cambridge University Press, 1991, p. 142 (6:333).