philosopherby Jonathan Dolhenty, Ph.D.

Is the imposition of the death penalty on an individual for committing certain particularly heinous crimes against society a violation of that individual’s human rights? That is the specific question I am going to discuss here in this essay. Before I begin, however, allow me to clarify a few points.

This discussion is not about the legality or constitutionality of the death penalty. Whether or not capital punishment is constitutional in light of the “cruel and unusual punishment” clause of the American Constitution is not an issue for moral philosophy or philosophical ethics to decide. The reason for this is because the constitutional matter is really a secondary issue. The fundamental issue is a moral one: Does the death penalty violate the human rights of the person on whom it is imposed? If it does not, then the constitutional issue becomes the one to be decided. If it can be shown, however, that capital punishment does violate human rights, then the constitutional question takes on a different character. The question then becomes: Does the American Constitution support an activity which is a violation of human rights and, if so, ought it do so? This specific legal issue is not of concern here.

Also, the claims made by some that capital punishment is justified because it serves to deter other individuals from committing certain heinous acts is not an issue to be discussed here. First, I don’t know how one would even gather evidence that the death penalty in fact deters anyone from committing a criminal act. Second, if it can be shown that the death penalty violates human rights, can the death penalty be used as a means of deterring others from committing heinous acts against society? This is an old debate regarding the use of an evil means for a good end. Does the end justify the means? While I stand with those who answer negatively to this question, this specific moral problem is not of immediate concern in this discussion.

Furthermore, there are those who support the death penalty on the ground that the person guilty of some particularly heinous crime, such as child rape or murder for instance, is certainly deserving of being put to death. This is sometimes referred to as the “justifiable retribution” or vengeance argument. But this is also not an issue here. The moral question to be asked, however, would be: Even if a person deserved to be put to death, would it be moral and proper to do so if it violated his human rights?

We now return to the key question asked at the beginning of this essay: Is the imposition of the death penalty on an individual for committing certain particularly heinous crimes against society a violation of that individual’s human rights? An answer to this question would, of course, have a bearing on the constitutional matter, the deterrence issue, and the retribution argument.

The Argument

In this essay, I’m going to present an argument which will challenge those, mostly of a politically conservative persuasion, who tend to be strong advocates of capital punishment, and yet support a literal interpretation of the Declaration of Independence and the Bill of Rights in the Constitution, and support a theory of natural rights. What I am going to show is this:

If we accept as true the theory of fundamental natural human rights (at least as expressed in our evolving Western tradition and in our Christian heritage), and the statements made in the second paragraph of the American Declaration of Independence, and the philosophical principles which support and justify the Bill of Rights of the U.S. Constitution, then we cannot at the same time logically and morally advocate a policy of capital punishment.

The reason we cannot logically accept a policy of capital punishment at the same time we accept our historical conception of natural rights is because the principles involved in each are contradictory to one another.

If we are to remain logical, we must accept the traditional theory of natural rights and reject a policy of capital punishment or, if we accept a policy of capital punishment, we must reject our traditional conception of natural rights.

We cannot accept both propositions at the same time as true.

The reason we cannot morally accept a policy of capital punishment at the same time we accept our historical conception of natural rights is because any violation of natural rights would be an immoral act on the part of the violator. If it were not an immoral act, our theory of natural rights and the rights themselves would have no moral status and would, therefore, be of no genuine ethical concern to us. If a state or society violates a natural right or “human” right, we generally accuse it of committing an immoral act.

Now, let’s get on with the details of the argument.

 The Traditional Conception of Natural Rights

First, we need to define two important terms in the argument. The first is “natural rights.” Sometimes these are referred to as “human rights.” There are certain rights that are ours by virtue of the fact of our human nature or that we are human beings. These rights “belong” to us, are inherited, are part and parcel of our nature. The religious person would say these are granted to us by God or the Divine Creator. The nonreligious person would probably say these are granted to us by our very nature as a human being. We will use the terms “natural rights” and “human rights” to refer to the same sort of rights.

The conception of natural rights we have today has evolved over a long period of time. Our full understanding of natural rights did not occur at any single time in history. Indeed, even today we may not have a complete understanding of natural rights. Those of us who advocate a realist theory of natural rights would argue that natural rights exist whether or not they are fully understood at the present time, whether or not they are acknowledged by the state or society, and whether or not they are protected by civil law or other legal provisions.

Human beings have natural rights by virtue of being human. These rights are grounded solidly on our nature as human beings. We are not given natural rights, we possess them as part of our human nature. There is no external granting authority, such as the state or society. If we were granted natural rights by the state, for instance, then there is no sense to speaking about natural rights because they would be the same as civil rights or legal rights. We would have to throw out the terms “natural” and “human” because the granting authority would be outside our nature or our humanity. All rights would then be those granted by some external governing body who could take them away at any time for any reason.

The theory of natural rights described above, which says that human beings possess certain rights by virtue of their being human, rights not granted by any external human authority, is totally in accord with the common sense beliefs of ordinary human beings, the fundamental ethical principles of realistic philosophy, and the truths established by appeal to objective evidence. Furthermore, it is this theory of natural rights which provided the philosophical foundation for the documents creating our American constitutional democracy.

 Natural Rights as Inalienable Rights

The Declaration of Independence, our premier American document, states that all Men (including women, of course) are endowed by their Creator with certain (natural) rights such as Life, Liberty, and the Pursuit of Happiness. Most of us don’t seem to have a problem accepting this idea, although the nonreligious person might hesitate at the term Creator. This point is not, however, essential to the argument. (Use “Nature” if you prefer.)

The second term we need to note is the word “unalienable” in the Declaration of Independence. (This word should actually be spelled “inalienable” and I shall do so.) The Declaration says that not only do we have natural rights but these are “inalienable” rights. What does this mean? It means that these rights are given to us by the Creator or by Nature, not granted to us by the state or society. As a result, these rights cannot be taken away and cannot be transferred. That is the true meaning of “inalienable” and that is how the Founding Fathers interpreted it as far as we know.

Summing up briefly what is stated in our basic American document, we can say:

All human beings are endowed with certain human or natural rights, rights that are not granted by the state or society, rights that cannot be taken away or be transferred. We possess these natural rights even though we may not be able to exercise them (say, under a despotic government). Furthermore, we possess these natural rights even if they are not protected by civil law or legislation. Their existence as natural endowments gives them moral authority even though they may lack legal force or legal sanction.

(Again, for the sake of clarity, let me point out that, besides natural rights, we may also have constitutional, civil, and legal rights. These rights are granted by the state or society and are “alienable” rights. Since these rights are alienable, they can be taken away by the granting authority, which is the source of the rights in the first place. Some or all of our natural rights may sometimes be secured by constitutional means, or by civil or legal enactments. Whether this occurs or not does not affect the status of natural rights as natural rights. Constitutional, civil, and legal rights are not of concern in this discussion.)

 Rights Specified in the Declaration of Independence

There are three natural rights specifically mentioned in the Declaration of Independence: Life, Liberty, and the Pursuit of Happiness. The only right we are concerned with in this argument is the right to life. Since this natural right is “inalienable,” it cannot be taken away or transferred (or forfeited, which is the same thing). This right is not granted by the state or society and, therefore, the state or society cannot take it away, at least according to the Declaration of Independence.

And here is the dilemma for those who accept the idea of an “inalienable” right to life as declared in the Declaration of Independence and who also advocate capital punishment. If the state imposes a death sentence, is it not taking away a person’s right to life, a right that the Declaration of Independence says is “inalienable”? If the right to life is truly “inalienable,” the state cannot take it away and no person may transfer it or forfeit it. That’s the meaning of “inalienable.”

Either the Declaration of Independence is right about natural rights being “inalienable” or it is mistaken or it is not to be taken seriously. Most of the advocates of capital punishment I know are on the conservative side of the political spectrum and do take the Declaration of Independence, not only seriously, but literally. Are they not being illogical?

It comes down to this:

We either have an “inalienable” right to life, a right not granted by the state and, therefore, not to be taken away by the state, or we don’t have an “inalienable” right to life, and the right to life is granted by the state which may, of course, take it away. It seems one can’t have it both ways. Logically, it appears that we can’t subscribe to the notion of an “inalienable” right to life and advocate capital punishment at the same time.

There are those who may try an end run around this by declaring that the state is not really taking away an “inalienable” right; the convicted person is merely forfeiting the right. This won’t do, however. The meaning of the word “inalienable” (look it up yourself) clearly includes the idea of non-transference and non-forfeiture. If the right to life is really “inalienable,” the right cannot be taken away or given up. It is part of the nature of the person as a human being. And this is clearly what the Declaration of Independence appears to state.

Now some of you may want to present the following argument to get around the points made above. You may point out that, according to the Declaration of Independence, we also possess the natural right to liberty and this right is also claimed to be inalienable. If this right to liberty is inalienable, how can we then justify the fact that the state deprives certain criminals of their liberty by placing them in prison? This question arises because of the failure to distinguish between the possession of a natural right and the exercise of a natural right.

A criminal, properly convicted with due process of law, has not forfeited his natural right to liberty nor has the state taken away his natural right to liberty. What has occurred is that the criminal has temporarily been deprived of the exercise of his natural right to liberty by the commission of a criminal act. His time in prison may curtail his freedom of action while he is incarcerated, but in no way does such incarceration deprive him of his natural right to liberty. The right remains in existence during his time in prison and after he is released. After release from prison, what is restored is not the individual’s natural right to liberty, but only his fuller exercise of that right.

The imposition of the death penalty raises a totally different issue. Capital punishment takes away more than the exercise of the right to life, for it takes away life itself. It is one thing to give up or have taken away the exercise of a natural right, and quite another to forfeit or have taken away the natural right itself. After incarceration, the individual is free to exercise fully his natural right to liberty. After capital punishment is imposed, however, the individual is hardly free to exercise fully his natural right to life.


It seems we cannot logically accept the premise that the natural right to life is “inalienable” and then proceed to argue that the state can take that right away, even under extreme circumstances. It is either an “inalienable” right or it is not. The state can either take it away or it cannot.

I think it’s necessary for advocates of capital punishment to meet this issue head on and explain how they can logically subscribe to what seems to be two contradictory ideas. It may be true that certain heinous crimes are deserving of death at the hands of the state, but the fact that we feel they deserve capital punishment does not alter the need to logically justify such a procedure based on our traditional concept of “inalienable” rights.

I challenge those who believe in our traditional theory of natural rights, and its expression in the Declaration of Independence and the Bill of Rights, to show me how they can argue, on the one hand, that we possess certain inalienable natural rights granted to us by nature’s God or human nature itself (rights that cannot be forfeited or taken away), and then argue, on the other hand, that these inalienable natural rights can be taken away by the state when it wants to do so.

You cannot have it both ways and claim to be logical. Those who advocate capital punishment while still clinging to a theory of inalienable rights are, I’m sorry to say, preaching philosophical nonsense. They are under a moral obligation to respond to this dilemma and clarify their position because it involves that most basic right of all natural rights, the right to life itself.

Self-Educated American recommends: Great Books of the Western World

The late Dr. Jonathan Dolhenty was the Founder and President of The Center for Applied Philosophy and the Radical Academy, and is Honorary Philosophy Editor at Self-Educated American. Self-Educated American has adopted these projects beginning with a republishing and preserving of all of Dr. Dolhenty’s work.

Copyright ©1992 -2011 The Radical Academy. Copyright renewed in 2011 -2014 © The Radical Academy (a project of Self-Educated American).