The Death Penalty in the Historical and Natural Law View

The problem of the reaction of society to the commission of a crime has been from times immemorable connected with the issue of the death penalty. The author of the essay captures in brief the historical development of the opinions of punishing crimes, or criminals, as it reflected in the several systems of the medieval legal cultures and as it manifested later in the main European penal theories and conceptions.

In respect of the two main conceptions of the death penalty policy, represented by the morticalists and the abolicionists, the essay also follows the important contribution to the development of criminal law made by the natural law theory. However, the cycle peccatus - peccator - peccatum - punitor - punitio (offense - culprit - guilt - avenger - punishment) is naturally accompamed by more than one difficult question. There is especially the question whether the social conditions have already reached the level on which the death penalty - as a protection mechanism of human society - could be definitively abolished. In other words, whether the quality of our biological community is so high that crimes resulting in violent deaths of members of the community are wholly exceptional phenomena only. In times somewhat more favorable it was expressed by Professor Masaryk in the words "My argument for retaining the death penalty does not rest in the fact that it deters, but in the fact that it contains a moral expiation: to take a man's life is an injustice so horrendous, that it may be repaired only by a ransom equally severe... I believe and I expect that it will be abolished through a higher level of education and morality of the population, through a consensus of us all."