Capital punishment has been analyzed in recent Anglo-American jurisprudence as a problem of moral rather than political philosophy—as a question of when, if ever, the heinousness of a crime justifies the imposition of death as a matter of retributive justice; when, if ever, the deterrent consequences of a sentence of death will outweigh the punishment's deleterious consequences from a utilitarian perspective; and so on. Yet, even the most cursory examination of the cultural, legal, and political roles of capital punishment as it is actually institutionalized (or not institutionalized) and practiced (or not practiced) around the world today demonstrates that this theoretical orientation gets it precisely backward—the most fundamental issues are neither individual nor moral but the profoundly political ones of the constitution and exercise of state sovereignty.
Beginning with Michel Foucault's discussion of capital punishment (which forms one part of his analysis of the nature of political sovereignty) and some recent work by U.S. legal academics that echoes Foucault's discussion (not always consciously), this essay attempts to show how such a shift from the moral perspective to a political-philosophical perspective might be effected and to demonstrate both the theoretical-explanatory and prescriptive-practical benefits of such a change in viewpoint.
