Unjust laws are not Laws
In his book” Should we Execute Those Who Deserve to Die?” Stephen Nathanson defines what he calls “argument from desert” the reasoning that “murderers deserve to die and therefore that the state ought to execute them”. He also proposes two statements, and explains that if one of the two statements could be established, then the argument from desert fails (Nathanson, 1987). In my essay, I will assess and establish one of the statements that Nathanson proposes to invalidate the argument from desert.
My reasoning against the argument from desert will be based on the statement proposed by Nathanson: even if people who commit murder deserve to die, it is wrong for the state to execute them. To show that it is wrong for the state to execute them, I will argue that the Death penalty is an unjust Law that shouldn’t be held by the state. To prove my point, I will go back to the notion of Natural Law that I strongly advocate to define the term Law. According to St. Thomas Aquinas, “Law is nothing else than an ordinance of reason for the promotion of the common good”(Aquinas). Natural Law theorists believe that law pertains to reason. Aquinas explains with a deductive argument: It belongs to reason to command. It belongs to the Law to command and forbid. Therefore, law is something that pertains to reason (Aquinas). In addition Natural Law theorist believe that Law’s end is the common good. For Death Penalty to be applied as a Law, it should therefore promote the common good. The common good is promoted only if the Law protects the public from current or future threats without having to rely on violence in any sort. Natural Law theorists also believe that morality is part of the Law; that “unjust Law is not Law” (Aquinas). Also, as we have seen this semester in “Eight Ways to make Fail to Make Law”, Fuller proposes that the attempt to create and maintain a system of legal rules could be miscarried in at least eight ways. One of those ways is...
References: Nathanson, S., (1987), “Should we execute those who deserve to die?” pp. 42-59 of An Eye for an Eye: The Morality of punishing by Death, Rowman & Littlefield.
Aquinas, T., On Law, Morality, and Politics, ed. William P. Baumgarth and Richard J. Regan, pp. 11-17-52-55
The Death Penalty and Deterrence, (2012), Amnesty International, retrieved from http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence?id=1101085
Chomsky, N., (2002, July), Terror and Just Response.
Fuller, L., (1964) The Morality of Law, by Yale University, Press
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