Sham Arguments and Capital Punishment
![handle is hein.journals/crimjeth16 and id is 63 raw text is: Sham Arguments and Capital Punishment / 3
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Sham Arguments and Capital
Punishment
KEITH BURGESS-JACKSON
Ad hominem arguments are not just a way of winning a dispute: a logically sound ad hominem argument does a
service, even if an unwelcome one, to its victim-it shows him that his present position is untenable and must be
modified. Of course people often do not like to be disturbed in their comfortable inconsistencies; that is why ad
hominem arguments have a bad name.'
Suppose I object to capital punishment (hereafter CP)
on grounds other than its consequences and the way it is
administered. Suppose, in other words, that I oppose
CP for intrinsic rather than extrinsic reasons.2 Does this
prevent me from appealing to extrinsic considerations
in argument? The answer is No. I can consistently
argue against CP on the basis of its arbitrary administra-
tion or inefficacy, or on some other basis, or on some
combination of bases, even if they are not determinative
for me-that is, even if they are not my reasons for object-
ing to CP. This may seem an obvious point, but it has
generated controversy. I want to explain why it should
not.
In 1978, Ernest van den Haag, a longtime defender/
proponent of CP, published an essay in which he ac-
cused three others--lawyer Charles L. Black Jr., philoso-
pher Hugo Adam Bedau, and former United States At-
torney General Ramsey Clark-of using sham argu-
ments against CP.3 According to van den Haag, these
abolitionists (his term) claimed that the death penalty
does not add to deterrence.4 Whatever the deterrent
effect of the next harshest punishment (usually assumed
to be imprisonment for life without the possibility of
parole), the deterrent effect of CP is no greater.5 This is
supposed to show the futility of the death penalty,6
and that, in turn, is supposed to militate against CP as a
form of punishment.
Keith Burgess-Jackson, author of Rape: A Philosophical
Investigation, is Associate Professor of Philosophy at The
University of Texas at Arlington.
Van den Haag implies that some of those who make
this argument, including the three named individuals,
are duplicitous. He recounts an exchange with Black
and Bedau in which he asked them the hypothetical
question Would they favor abolition [of CP] in the face
of conclusive proof of a strong deterrent effect over and
above that of alternative penalties? Both gentlemen [he
reports] answered affirmatively.7 Black and Bedau
gave the same answer-after some dodging-when
asked to assume that abolition would increase the homi-
cide rate by 10 percent, 20 percent, 50 percent, 100 per-
cent, or 1,000 percent.8 Later van den Haag elicited a
similar response from Clark, who stressed that nothing
could persuade him to favor the death penalty-however
deterrent it might be.9
The conclusion van den Haag draws from these re-
sponses is interesting. He says that
[t]hese totally committed abolitionists.., are not interested
in deterrence. They claim that the death penalty does not
add to deterrence only as a sham argument. Actually,
whether or not the death penalty deters is, to them, irrel-
evant. The intransigence of these committed humanitarians
is puzzling as well as inhumane. Passionate ideological
commitments have been known to have such effects. These
otherwise kind and occasionally reasonable persons do not
want to see murderers executed ever-however many
innocent lives can be saved thereby.10
Van den Haag believes that if one's opposition to CP is
intrinsic, as it is in the case of Black, Bedau, and Clark, it
is insincere, unauthentic, or duplicitous-a sham-to
argue against it on the basis of extrinsic considerations
such as its inefficacy.
Summer/Fall 1997](ViewImageLocal?handle=hein.journals/crimjeth16&div=12&collection=&method=preview&ext=.png&size=3)
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Sham Arguments and Capital Punishment
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