ymbolically, in the specific context of carrying out executions (Johnson 4).
One argument often made in favor of the death penalty basically states that the state has the right to do so. Hugo Bedau analyzes this sense of "the state has the right" and agrees to its existence. However, he first approaches the idea from the straightforward perspective from which all we mean is that some presumptively valid law gives the government the legal right to do something (Bedau 12). He calls this the legal sense of "has the right." Thus, whenever a legislature enacts a statue authorizing the death penalty for murder, he argues that it can be asserted in this sense that the state now has the right to kill convicts as their punishment. If ever this law should be repealed or nullified on constitutional grounds, then the state no longer has such a right (Bedau 13).
However, the significant matter in this debate is not whether the state has the right to use death as a punishment in this legal sense of "has the right" because, as Bedau has noted, the answer rests on fairly straightforward questions of fact (13). In the United States today, most jurisdictions have the legal right to execute convicts because at least most have a death penalty statute that has sustained constitutional challenge or death penalty statute whose constitutionality is unsettled. Only a few jurisdictions have no such statutes (Bedau 13). Consequently, Bedau argues, anyone who wants to argue over whether the state has the right to use death as a punishment must be thinking of some sense of the phrase "has the right" other than the legal sense. He calls this other
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