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Comparative Human Rights Law$
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Sandra Fredman

Print publication date: 2018

Print ISBN-13: 9780199689408

Published to Oxford Scholarship Online: December 2018

DOI: 10.1093/oso/9780199689408.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 August 2021

Capital Punishment

Capital Punishment

(p.153) 6 Capital Punishment
Comparative Human Rights Law

Sandra Fredman

Oxford University Press

This chapter applies the cross-cutting themes in Chapters 1–5 to the highly contested issue of the death penalty. It begins by considering the differences in constitutional texts, and particularly the ambiguity as to whether the death penalty is permitted. This requires judges to apply their interpretive theories. Original intent, natural meaning, and living tree approaches have all been relied on to achieve a mosaic of different and vehemently contested approaches. The chapter then considers how courts in different jurisdictions have addressed three main issues: whether a fair procedure can be found which justifies the death penalty; whether there are good penological justifications; and the role of substantive values, such as human dignity. The chapter highlights the ways in which courts approach the demarcation between judicial and legislative power; their use of comparative materials; and the increasing interconnectedness of the approach of different jurisdictions to the death penalty.

Keywords:   death penalty, due process of law, fair procedures, deterrence, dignity, judicial borrowing, original intent, right to life, cruel and unusual treatment, inhuman or degrading treatment punishment

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