R Chandrasoma Courtesy Island

No less a person than the President of Sri Lanka has spoken of the urgent need to bring back the Hangman to counter the growing tide of heinous crimes that seems unstoppable except by such horrific countermeasures. The demand for a kind of punitive vengeance that matches the enormity of the threat is understandable. Nobody in his right senses will dispute the need for urgent action to prevent murder and other foul crimes that seem to be on the rise in our troubled country.

The controversial –and morally disturbing – issue is that of Judicial Murder. We use the word ‘murder’ because the action of the state is deliberate and planned – and a life is taken. The justification for this bloody and vengeful action of the state rests on premises that can be summarized as follows – (1) The ancient moral rule of an ‘eye for an eye’- hence a Life for a Life. (2) As a fitting recompense for the harm done to the near and dear ones of the victim. (3) As a fearfully potent deterrent to those misbegotten individuals contemplating murder or other foul crimes. (4) The notion of the Law as unforgiving, inexorable and mandated from heaven. Let us take(3) first as this argument is fashionable and is much favoured by seemingly honest and conscientious citizens. Just as fearful Hells are made much of to enforce religious orthodoxy and morality, it is argued naively that the potential murderer will be deterred if the gallows are in sight.

This argument must be turned on its head – the brutalization of the coercive arm of the State will act as a model for the brutal elements that necessarily exist in any society. This is a well-established fact – that the violence of the State in upholding the Law is more than matched by the amorality and brutality of its citizens. Indeed, the most civilized states in the world are the least oppressive in the enforcement of the Law. There is no need to detail the horrors of the Law as practiced in well-known and forlorn parts of the World. Education that reaches all and a good living that is universal are the keys to social success inasmuch as these measures promote a sensitivity to a Moral Law that stands above socio-political compulsions and greatly reduces the need to punish through the use of state power.

On the ancient notions of punitive justice and right recompense for the aggrieved – it is the modern (and enlightened) view that the State plays a defensive, reparative and conciliatory role in dealing with violence and lawlessness – it cannot play God and savagely punish miscreants. However, it can take measures to defend its citizens against the pathological behavior of some of its misfits through long-term social action. For example the drug menace calls for integrated social action where priests, educators and public activists can play a role that cops and politicians are singularly unfitted to perform. To conclude, it must not be forgotten that disease – both physical and psychiatric – plays a huge role in criminal/delinquent behaviour. To view the criminal as a sick person is not popular with those righteously concerned with Morality and the Law but it is a perspective that will find an important place in future systems of Justice.