The word ‘capital’ has a Latin origin in the word ‘capitalist, which means ‘regarding the head’, i.e. execution by beheading. There are essentially two campaigns concerning the legitimacy of capital punishment: the campaign of abolitionists and the other being the campaign of retentionists. the former proposes abolishment of the death penalty, whereas the latter insists on its validity in society and existence. The primitive support of the death penalty comes from the philosophical idea and theory of retribution[2]. Jurisprudence as a subject is all about studying the law in its entirety. When seen from a jurisprudential aspect, capital punishment needs a wider scope and perspective of analysis in all sorts of ethics, moral, economic, and legal that impact the debates upon the dilemma of whether capital punishment should be implemented or not. This research paper aims at analyzing the perspectives of both the concept of naturalistic and positivistic viewpoint[3].

Naturalistic and Positivistic ideologies

Natural law is a code of truths that paves the way for morality and justice to pour in. The naturalistic approach accepts what is ethical and morality just in society. This approach gives us a set of rules that an individual should follow in order to lead a flourishing life. This school of thought rejects ethical subjectivism and advocates for ethical and moral objectivism. The ideology focuses upon the fact that moral reasoning is much more valid, reasonable, and verified than any other mode of reasoning[4].

Positivism adheres to the view that only “factual” knowledge gained through observation (the senses), including measurement, is trustworthy. In positivism studies, the role of the researcher is limited to data collection and interpretation in an objective way. Positivism adheres to the concept that solely “factual” data gained through observation (the senses), together with calculation, is trustworthy. In positivism studies, the role of the man of science is restricted to information collection and interpretation in an objective manner[5].

It is evident from the concepts of positivism and natural law that natural law advocates for a link between the law and morality whereas the positivistic approach call for a separation of law and morality.

Proponents of the Naturalistic approach

In terms of the proponents of the naturalistic approach, they believe that society works on the principle of morality and justice. If the Almighty has provided us with life, we have not been given the authority to take away someone else’s life because it cannot be reversed then. It is immoral, hence, they propose that for whatever reason it might be, capital punishment should never be imposed. It is argued that the state should remember that whether one is subjected to such punishment on what basis. It should be remembered that not all but solely a few offenses of the gravest nature can carry with it the execution or capital punishment, the prime example being the murder of another[6].

Right to Life

Right to life is the foremost human right provided to each and every individual. Capital punishment is alleged by abolitionists because of the worst violation of human rights. It is regarded as ‘the ultimate irreversible denial of human rights since it deprives a person of his right to life. It was insisted that the right to life is preserved by every individual once they come into a state, and so, the state has no right to take their lives. Even international covenants have recognized that the right to life is the most prominent right of an individual and is an inalienable form of human life[7].

Naturalistic views of great philosophers

Natural law is a philosophy that finds a connection between law, justice, and morality. The thinkers of this very school of thought believed in the notion that any law that does not follow the path of morality and ethics can never be considered as a valid law in society. Though this kind of naturalistic philosophy was extreme in the earlier days when natural law was mostly at its peak, however, some naturalist thinkers such as Thomas Aquinas were not entirely against the implementation of the death penalty. For example, he believed in the notion that necessity is bigger than any other nation in the society therefore if a surgeon finds it a necessity to amputate one hand of a patient, fearing that the poison might spread to all the parts of the body, becomes valid. Applying a similar analogy he further added, assuming the state to be a body and poisoned hand to be the person whose existence in the society might make it a hell for others to live. Hence, the political authority to kill the person becomes valid and morally just.

John Finnis advances his proposition in complete acknowledgment of the Natural law theory. He bases his views on the factor of natural rights. He calls these rights the basic values of life which must be protected and enshrined in every legal system.

Proponents of Positivistic Approach

Positivist theory opposite of what natural law theory proposes. Positivistic ideology is based upon law being the supreme most where people are obliged to obey the law irrespective of their moral and ethical objective in their lives. In many of the cases of success of the successful implementation of capital punishment was seen. The question arises whether capital punishment is something that is “ought” to be implemented. Even though, the positivistic approach premise relies on the “what the law is”, the question proposed here is within the “ought to be” kind and therefore it needs a solution within the appropriate “ought” form. In accordance with the concept of legal positivism. Therefore, a positivistic approach caters to the fact that since the right to life has been ensured by the state, the state has the authority to take it away only through desired, reasonable, and genuine rationale.

Right to Life as a Will