Saturday, June 29, 2024

Hobbes and Kant on capital punishment

Thomas Hobbes and Immanuel Kant both had an enormous formative influence on modern moral and political philosophy, and on liberalism in particular.  But their approaches are very different.  Hobbes begins with what strikes the average reader as a base and depressing conception of what individual human beings are like in their natural state, and sees society arising out of an act of cold, calculating self-interest.  Kant, by contrast, seems committed to a lofty and inspiring conception of human beings, and regards society as grounded in a respect for the dignity of persons.

Contemporary opponents of capital punishment often appeal to a Kantian conception of human dignity, which they suppose naturally entails such opposition.  And it might seem like advocacy of the death penalty would have to reflect something closer to Hobbes’s grim realpolitik.  Yet when we consider the actual views of Hobbes and Kant themselves on the matter of capital punishment, we find that something closer to the opposite is the case – Kant being enthusiastically (indeed excessively) favorable to capital punishment, and Hobbes, if not utterly opposed to it, at least significantly more negative about it.

This is no accident, for each of these positions on the death penalty in fact fits quite naturally with the premises from which Kant and Hobbes respectively derive them.  And this, I submit, teaches us something about the conception of human beings that modern opponents of capital punishment – and indeed many citizens of modern Western liberal democratic societies in general – are really operating with, at least implicitly.  Modern people like to think of themselves as cuddly Kantians, when they are in fact closer to coldhearted Hobbesians.  And their hostility to capital punishment reflects, not a robust conception of justice but, on the contrary, an aversion to such a conception. 

Hobbes on the death penalty

For Hobbes, the state of nature is essentially a state of amorality.  Everyone has a perfect liberty to do what he likes, not because there is some moral imperative on everyone to allow others to do so, but on the contrary because there are no moral imperatives at all.  If you find your bliss in writing poetry by moonlight, you are perfectly free to do that.  And if some other person finds his bliss in beating up people who write poetry by moonlight, he is perfectly free to do that.  There is no objective fact of the matter about what either you or he ought to prefer, but merely facts about what you and he do in fact prefer, and such individual preferences are bound often to be at cross purposes. 

This, of course, is why for Hobbes the state of nature is “a war of all against all,” with life inevitably “solitary, poor, nasty, brutish, and short.”  It is to avoid this frightful situation that rational individuals will, in Hobbes’s view, agree to leave the state of nature by giving up their liberty to do whatever they wish and consenting to being ruled by a sovereign.  It is only at this point that rules of morality come into being, and they are essentially just whatever laws the sovereign decrees.  But they are binding on individuals only because they have consented to being governed by them.

Now, Hobbes famously draws an absolutist political conclusion from this, but what is relevant for present purposes is this.  For Hobbes, the default position is liberty to do whatever one likes; what makes it rational to give up some of that liberty is that, otherwise, one would lose all of one’s liberty in slavery or death; and we are obligated to follow rules that limit liberty only insofar as we consent to them.

That brings us to what Hobbes says about capital punishment.  Unsurprisingly, given his absolutism, Hobbes does not deny that the sovereign may resort to capital punishment in order to uphold the law.  Interestingly, however, this does not for Hobbes entail any obligation on the part of the condemned criminal to go along with such a punishment.  In chapter 21 of Leviathan, Hobbes writes:

Covenants, not to defend a man’s own body, are void.  Therefore, if the sovereign command a man (though justly condemned) to kill, wound, or maim himself; or not to resist those that assault him; or to abstain from the use of food, air, medicine, or any other thing, without which he cannot live; yet hath that man the liberty to disobey

In case a great many men together have already resisted the sovereign power unjustly, or committed some capital crime, for which every one of them expecteth death, whether have they not the liberty then to join together, and assist, and defend one another?  Certainly they have: for they but defend their lives, which the guilty man may as well do, as the innocent.  There was indeed injustice in the first breach of their duty; their bearing of arms subsequent to it, though it be to maintain what they have done, is no new unjust act.  And if it be only to defend their persons, it is not unjust at all.

This makes sense given Hobbes’s account of the basis of morality.  If the default position is liberty to do whatever I want to do, and I can lose this liberty only insofar as I consent to losing it – and if I can rationally consent to losing it only because I would face death otherwise – then it is clear why Hobbes would conclude that I cannot lose my liberty to preserve my own life, not even if I consent to doing so.  For, again, it is precisely the desire to preserve my life that is the only reason I could rationally consent to give up any liberty at all.

As Leo Strauss remarks in Natural Right and History, this introduces a tension into Hobbes’s system.  If it would in some cases be just for the sovereign to punish me with death, how could I justly resist?  Or if I can always justly resist, how can it be just for the sovereign ever to inflict such a punishment?  As Strauss writes, “this conflict was solved in the spirit, if against the letter, of Hobbes by Beccaria, who inferred from the absolute primacy of the right of self-preservation the necessity of abolishing capital punishment” (p. 197).  Hobbes’s account of morality in fact entails this abolitionist position even if he only got halfway to it himself.

Strauss makes another crucial observation.  Hobbes’s account only works if death is indeed the worst fate possible.  But “in many cases the fear of violent death prove[s] to be a weaker force than the fear of hell fire or the fear of God” (p. 198).  Naturally, such fear could change the whole calculation even for those in Hobbes’s state of nature.  Perhaps, if people feared God and damnation most of all, they would resist the sovereign far beyond what Hobbes would allow, choosing to risk offending the state rather than to risk offending God.  Or perhaps, in a penitential spirit, they would submit even to punishments like enslavement and execution, looking forward to a reward in the hereafter.

To make his account of morality and politics work, then, Hobbes requires a social context that is secularist rather than otherworldly in its basic orientation.  For only in such a context can the fear of death be more vivid than the fear of eternal damnation, and thus do the work Hobbes needs for it to do.  As Strauss writes:

The whole scheme suggested by Hobbes requires for its operation the weakening or, rather, the elimination of the fear of invisible powers.  It requires such a radical change of orientation as can be brought about only by the disenchantment of the world… Hobbes’s is the first doctrine that necessarily and unmistakably points to a thoroughly ‘enlightened’, i.e., a-religious or atheistic society as the solution of the social or political problem.  (p. 198)

In short, Hobbes’s system of ethics and political philosophy entails an abolitionist position on capital punishment because of its radical individualism and secularism.  In particular, it holds that limitations on the individual’s freedom to do whatever he wants are justifiable only if he consents to them, and that no individual could consent to being executed because death is worst of all fates.

Kant on capital punishment

Kant takes the fundamental principle of morality to lie in what he calls the categorical imperative, the second formulation of which is: “Act in such a way that you always treat humanity, whether in your own person or in that of any other, never simply as a means, but always at the same time as an end.”  The idea here is that human beings, as rational beings possessing intellects and free will, have by nature a kind of autonomy or self-determination that non-human animals, plants, and inorganic things do not.  When we treat human beings as nothing more than resources for the realization of our own ends (the way we might treat a sub-rational being of one of the kinds mentioned) we thereby fail to deal with them in a way that is appropriate given their nature.  This formulation of the categorical imperative is thus taken to give expression to the idea of the special dignity of the human person, and of the special respect we owe such persons given their dignity.

Now, in recent decades this notion of “the dignity of the human person” has been deployed, especially in certain Catholic contexts, to criticize capital punishment, harsh and humiliating punishments more generally, and the idea that retribution is the central function of punishment.  Interestingly, though, Kant himself drew exactly the opposite of these conclusions, at every point. 

Hence, consider his treatment of the topic of punishment in The Metaphysical Elements of Justice.  In the name of respect for persons, many today suggest that retribution is not an appropriate motivation for any punishment, and that instead it can only be inflicted if it is needed to protect society or to promote the rehabilitation of the offender.  But here is what Kant says:

Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the objects of the Law of things.  His innate personality [that is, his right as a person] protects him against such treatment, even though he may indeed be condemned to lose his civil personality.  He must first be found to be deserving of punishment before any consideration is given to the utility of this punishment for himself or for his fellow citizens.  The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it.  (p. 100, Ladd translation)

Note first of all that Kant argues here that to punish someone merely for the good of society (which would include protecting it from him) or even for the sake of some utility it may afford him (which would include rehabilitation) violates the categorical imperative, because it treats him merely as a means rather than as an end in himself.  The only motive for punishment that respects his nature as a person is the motive of simply giving him what he deserves – in other words, retribution – and only with that motivation first in place can any thought be given to what might promote the good of society or of the offender.

So far, this is just the traditional understanding of the purposes of punishment, and corresponds to traditional Catholic teaching from Genesis to Thomas Aquinas to the Catechism, at least as Pope St. John Paul II left it.  (See By Man Shall His Blood Be Shed, my book co-written with Joseph Bessette, for a refutation of the claim that John Paul II changed Catholic teaching in this respect.)  But Kant’s position is even more austere than that, ruling out considerations of mercy that in Catholic teaching balance out considerations of justice.  For Kant’s view is not merely that, when we punish, we must have retribution in mind first and foremost.  He holds that we must punish an offender.  In his view, respect for human dignity not only allows the state to inflict on a criminal his just deserts but requires the state to do so.  And he takes this to follow precisely from the fact that respect for persons – which includes holding them responsible, and thus worthy of punishment, for the bad things they do – is a categorical imperative, commanding unconditionally. 

Exactly what kinds of punishments must be inflicted?  Kant answers as follows:

Any undeserved evil that you inflict on someone else among the people is one that you do to yourself.  If you vilify him, you vilify yourself; if you steal from him, you steal from yourself; if you kill him, you kill yourself.  Only the Law of retribution (jus talionis) can determine exactly the kind and degree of punishment... [This is] the retributive principle of returning like for like. (p. 101)

This is sometimes referred to as the principle of proportionality, and here too Kant’s position corresponds to traditional Catholic teaching from the Old Testament to the Catechism of John Paul II.  For example, echoing Kant’s point that it is ultimately the offender who inflicts on himself whatever he does to others, Pope Pius XII taught:

Even when it is a question of the execution of a condemned man, the State does not dispose of the individual’s right to life.  In this case it is reserved to the public power to deprive the condemned person of the enjoyment of life in expiation of his crime when, by his crime, he has already disposed himself of his right to live.

Here too, though, Kant goes further than the traditional view.  It is not merely that proportionality gives us a criterion for determining what punishment to inflict whenever we do punish.  It is that we must, as far as we are able, return like for like.  He notes, for example, that “the imposition of a fine for a verbal injury has no proportionality to the original injury” (p. 101).  Instead, he says:

The humiliation of the pride of such an offender comes much closer to equaling an injury done to the honor of the person offended; thus the judgment and Law might require the offender, not only to make a public apology to the offended person, but also at the same time to kiss his hand, even though he be socially inferior.  Similarly, if a man of a higher class has violently attacked an innocent citizen who is socially inferior to him, he may be condemned, not only to apologize, but to undergo solitary and painful confinement, because by this means, in addition to the discomfort suffered, the pride of the offender will be painfully affected, and thus his humiliation will compensate for the offense as like for like. (pp. 101-2)

Notice that here too, Kant draws precisely the opposite lesson from human dignity that many today who appeal to it do.  It is often claimed today that it is contrary to human dignity to inflict harsh or humiliating punishments.  But as Kant argues, in reality, if the offender has himself treated others in a harsh or humiliating manner, then he deserves such treatment in return, and inflicting it on him thus respects his dignity as a person precisely by holding him responsible as a free and rational agent. 

For this reason, Kant even argues that justice requires that, as part of their punishment, thieves must be forced to labor (p. 102).  For they have stolen from others, and if, while in prison, they are fed and sheltered at state expense, this only compounds their unjust taking of resources that rightfully belong to others.  Hence, while it is widely taken for granted today that penal servitude is contrary to a Kantian respect for persons, Kant himself argued that respect for the dignity of persons requires penal servitude if the offender has done something to merit it.  (Here again, Kant goes beyond what became standard Catholic teaching, which holds that while penal servitude can for the reasons Kant gives be justifiable in theory, in practice it should not be used, because it has a tendency to degenerate into chattel slavery, which is intrinsically immoral.)

This brings us at last to Kant’s position on capital punishment.  He writes:

If, however, he has committed a murder, he must die.  In this case, there is no substitute that will satisfy the requirements of legal justice.  There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is also no equality between the crime and the retribution unless the criminal is judicially condemned and put to death.  But the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it.  Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of legal justice. (p. 102)

In endorsing the idea that the principle of proportionality justifies executing those who are guilty of murder, Kant is, once again, echoing traditional Catholic teaching.  But here too he goes well beyond it by insisting that the moral law not only allows, but requires, the execution of murderers. 

Kant adds some further remarks that reinforce how radically different his position is from that of Hobbes.  Suppose for the sake of argument that the law were to allow a murderer to opt, instead of the death penalty, for the lesser punishment of penal servitude.  Kant comments:

I say that a man of honor would choose death and that the knave would choose servitude.  This is implied by the nature of human character, because the first recognizes something that he prizes more highly than life itself, namely, honor, whereas the second thinks that a life covered with disgrace is still better than not being alive at all (animam praeferre pudori).  The first is without doubt less deserving of punishment than the other. (p. 103)

For Hobbes, death is the worst thing that can happen to us; for Kant, dishonor is worse still.  For Hobbes, reason tells the offender facing execution to do what he can to avoid it; for Kant, reason tells the offender to accept execution, precisely because, as a free and rational agent, he has done something to deserve it.  For Hobbes, there is no injustice in resisting execution, even though the offender has done something to deserve it; for Kant, for a murderer to resist execution only makes him even more deserving of it.

Unquestionably, here too Kant, though going beyond what traditional Catholic teaching strictly requires, is much closer to it than Hobbes is.  Consider, for example, the Good Thief, who while dying on his cross said to his fellow criminal that “we are punished justly, for we are getting what our deeds deserve” (Luke 23:41) – and to whom Christ went on to promise paradise.  Or consider the original 1992 version of the Catechism of the Catholic Church promulgated by Pope St. John Paul II, which, after reaffirming the legitimacy in principle of the death penalty for sufficiently grave crimes, goes on to say that “when his punishment is voluntarily accepted by the offender, it takes on the value of expiation” (2266).

Hobbesians in Kantian drag

As I’ve said, many today, especially in Catholic circles, claim that the notion of human dignity put at the center of modern moral philosophy by Kant requires softening the traditional approach to punishment, and capital punishment in particular.  Yet, ironically, Kant himself essentially argued that respect for human dignity requires taking a harsher approach than the traditional one.  Of course, one could try to argue that Kant was wrong, and that respect for human dignity does in fact require moving away from the traditional view.  But as Bessette and I show in our book, none of the arguments to this effect that have been offered succeeds.

Moreover, to the extent that they emphasize the unique awfulness of death and the way punishment affronts the freedom of the offender, contemporary abolitionist arguments are much closer in spirit to Hobbes than to Kant.  The rhetoric may often be Kantian, but the substance is Hobbesian.

And that is a second irony, when the abolitionists in question are Catholic.  For Hobbes was, of course, a great enemy of the Catholic Church, which, in Leviathan, he portrayed as the chief agent in what he called the “kingdom of darkness.”  The moderns simply cannot give Catholic modernizers what they want.  Kant cannot do so, because his view on matters of punishment is more traditional than modern.  And Hobbes cannot do so, because while his position is modern, it is the opposite of Catholic.

60 comments:

  1. I must admit, this post forced me to consider something that had never entered my mind before. At no point of my life until now have I thought of Immanuel Kant as 'cuddly'.

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    1. Maybe Edward Feser is busy designing a Hell like the unenlightened king Ashoka.

      In the narrative, Ashoka made a pact with Girika that he would never allow anyone who entered the palace to exit alive, including Ashoka himself. The torture chamber was so terrifying, that Emperor Ashoka was thought to have visited hell so that he could perfect its evil design. In the Biographical Sutra of Emperor Ashoka the palace is described by the sentence: 'Emperor Ashoka constructed a hell'.

      Source: Ashoka's Hell

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    2. So what you're saying is you didn't know what cuddliness lurks in the hearts of men?

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  2. The way I see it:

    The death penalty, as conceived of by Hobbes and Kant, is individualistic justice. And individualism is always Freak.

    The personality type of individualism and the personality type of justice never, ever belong together. For any reason: possible or not.

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  3. This is a very informative post ! I'd just add though that for Aquinas, as Peter Koritansky showed, the principle of proportionality pertains to the degree to which the offender perverted his will in committing thr crime. Not exactly a like for like scenario. Amd he specifically distinguishes this conception from the Kantian conception.

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    1. Degree is the central point: the degree to which the criminal made up his will contrary to the orderly obligation to submit for the sake of the common good of society, to that DEGREE should a punishment be suffered that is contrary to what would ordinarily (absent crime) be for his good.

      By making the punishment match in degree and not in kind, you are allowed to separate out punishments that are reasonable while being like in kind, from those that are UNreasonable if done as like kind. Just for example: if you have a rapist, to subject him to rape would be for the punisher to do an intrinsically immoral act. And if he has defrauded someone, how could the state defraud him in return? If he has slandered by disseminating lies, should the state reply by disseminating lies about him? Doing so is intrinsically wrong. There is a reason why so many punishments have resolved to fines or prison: the are amenable to wide variation in degree and are NOT intrinsically immoral to impose.

      (Nevertheless, there are many, many good reasons to depart from a strict equality for something a little less punishing, in individual cases. Justice is one of the goods pursued by the state, but not the only one.)

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  4. Logically speaking, capital punishment and life in prison without the possibility of parole both result in the same thing: assured death in a prison complex. The debate is really about how long the time should take.

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    1. That is not "logically speaking" correct because the experience of dying naturally is different from the experience of being executed.

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    2. Not at all. Both punishments do result on a dead prisioner, but capital punishment* allows the State the power to kill the prisioner. It is one thing to lose one freedom, but to lose one life is another loss.

      For instance, a older sibling can punish his younger brother who behaves badly by taking away his games, TV, toys or not letting he go play on the streets, but he can't beat his brother like their parents can, not even the threat he can use. Touching one belongings is one thing, one body is another.

      *which i find at least in principle fine and good

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    3. @Talmid

      What you said didn't make a lick of logical sense.

      Death row and life in prison without parole do not differ in the end result of the process. They only differ in how long the process takes.

      Therefore, it follows that the subject of controversy is how long the process should take. That is, whether the state should expedite it or not.

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    4. Life imprisonment does not cause the death of the prisoner. Old age does.

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    5. "Death row and life in prison without parole do not differ in the end result of the process."

      Agreed.

      "They only differ in how long the process takes."

      Nah. The process is quite, quite diferent.

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    6. That’s like saying going to prison and going free, the only difference is the amount of places you have access to (since even a free man cannot access any place he likes, such as a woman’s locker room).

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    7. This reminds me of an interview with the actor John Malkovich in which he said that he didn't see what the whole furor over the death penalty was about: 'We're all going to die anyway, so it should be called the 'early death penalty!'

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    8. @The Great Thurible of Darkness

      To use the language of St. Thomas Aquinas, life in prisonment without parole and the death penalty differ in efficient causality, but do not differ in final causality. :)

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  5. That was quite a informative post, Kant position truly is as harsh as i had heard. It truly is funny that Hobbes view is way closer to our modern views on the State power than the absolutists governments he saw as good. Reading De Cive i truly agree that a secularist government was his goal way more that a strong king.

    So, when did that shift on kantian views on punishment happened? It clearly has to do with the comtemporany disdain for retribution as a legal consideration.

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  6. A long and learned blog that is really irrelevant to our current judicial system, which I have worked in. Prosecutors don't like DP cases because they take up scarce judicial time and resources
    .

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    1. I can't question your experience as to the practicalities, but surely you would agree its highly relevant to the Justice system whether the death penalty is morally legitimate?

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  7. To continue my post, unless a murder is especially heinous and has caused a huge public outcry, prosecutors most often use the DP as a bargaining chip to get a defendant to plead out to a life sentence. I have been inside prisons, and unless you belong to a gang that can protect you, a quick and painless execution is preferable to life imprisonment.

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    1. To the extent that a life sentence in prison is a worse future than a death sentence, to that extent you have damned our penal system of grotesque and grave disorders. Which seems right.

      But still, nearly all convicts faced with a prospect of one sentence or the other will aim for, seek, even beg for a life sentence over the death penalty. Which suggests that THEY don't think life in prison likely to be worse.

      The solution is to reform prisons. But that cannot possibly happen until we reform lawyers and judges so that they believe in retribution again. And then put to death the prisoners who make life a hell on other prisoners.

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    2. "Which suggests that THEY don't think life in prison likely to be worse." And I can tell you that many of them, unless they are prison-hardened or gang members or are wealthy and can "buy" their peace in prison, regret life in prison. Or kill themselves.

      And to reiterate , prosecutors do not have the time, resources (staff and funding) or inclination to seek the DP except in the most extreme cases. Because of the cost and length of a DP case, the criminal justice system would grind to a halt if the DP was vigorously pursued. State, city and county budgets would have severe deficits. This is true even in states like Texas.
      https://communityimpact.com/dallas-fort-worth/richardson/government/2020/03/18/experts-discuss-cost-of-the-death-penalty-amid-era-of-growing-decline/



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    3. And I can tell you that many of them, unless they are prison-hardened or gang members or are wealthy and can "buy" their peace in prison, regret life in prison.

      Good! They are supposed to regret it.

      Oh, you mean they regret begging for life in prison over the death sentence. Yes, and to the extent this is the case, you have forcefully and effectively established that prisons are very badly run. Made so by reason of the very same (effed up) principles and theories by which we have stopped treating punishment as meant to be retributive, and stopped putting people to death suitably.

      Because of the cost and length of a DP case, the criminal justice system would grind to a halt if the DP was vigorously pursued.

      The average time a person spends on death row is 12 years (might be more, now), what with all the long appeals and so on. There is a saying: "slow justice is no justice". I believe that the kinds of thinking that got us wound up ever tighter (and more expensiver) to prove beyond all doubt that the criminal is guilty and deserves death, no, we mean really guilty and really deserves death, no, we mean really, really..., is no longer productive of "justice" in the full sense. At best (and only at best) it produces a (too) narrowly specified slice of the justice that we should be aiming at, and harms other slices of that justice.

      And don't get me started on the silly, idiotic debate (and money spent) on whether X, or X+Y, or X+Y+Z cocktail of drugs is a "humane" way of carrying out executions. Just give him a dose of morphine (or fentanyl) that would kill an elephant, and be done with it! Repeat until successful. It isn't hard or expensive.

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    4. I live in Deep Red Alabama. We pride ourselves on being tough on crime. I was involved with this case. In 2004, Brent Springford beat his wealthy parents to death in their bedroom with an ax handle and then slashed their throats It was a gruesome crime scene. This was a heinous crime and attracted national attention because he had fled the state. He was eventually captured and brought to Alabama. The D.A.'s office first said they would seek the D.P., but after Springford agreed to plead guilty to life without parole, they accepted his plea deal. He died by suicide 8 years later, and as far as I am concerned, did himself and society a favor
      https://www.oxygen.com/homicide-for-the-holidays/crime-news/brent-springford-jr-killed-parents-on-thanksgiving

      You you can watch "Dateline" on Oxygen.com or on cable TV and watch or read other true accounts of murders committed around the country. Prosecutors almost never seek the DP if they can get a defendant to plead to life in prison.

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    5. Prosecutors almost never seek the DP if they can get a defendant to plead to life in prison.

      Right. And this is another indicator of a system gone bad. They shouldn't prefer that out, in crimes like the one you describe. Either it is too hard to secure convictions, or there are other vicious mechanisms blocking the will to use the DP when that's the best punishment. You mentioned the too high cost: that's just one more symptom of the degraded system.

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    6. The vast majority of crimes ,especially murder, are prosecuted under state law. Elected officials, including legislators (who make our criminal laws) prosecutors, judges (we elect our judges) and the Attorney General in my state always campaign as being tough on crime. We also pride ourselves on being a low tax state. Our governor and our legislators run on keeping
      taxes low. But running a criminal justice system costs money. It's up to the voters to change the system if they don't like it.

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    7. And I can tell you that many of them, unless they are prison-hardened or gang members or are wealthy and can "buy" their peace in prison, regret life in prison.

      I always thought the death penalty was the more merciful option as well.

      But you have to remember that according to the logic of death penalty proponents, society operates by the Force. Even though, logically speaking, life imprisonment is a stronger punishment in terms of consequences, not executing a criminal causes the midiclorians who control the Force to become angry, and so the death of the condemned is needed to mollify the midiclorians and restore order to a society long time ago, in a galaxy far far away.

      Or at least that's the best interpretation I can come up with for their backwards way of thinking. The light side and the dark side and all that dung.

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  8. Hobbes and Kant are ancient history. I wonder how members of the US high court would view their views?

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  9. Thank you for this other piece of the puzzle, it clarified a lot to me. I was wandering though why the old testament sanctioned the death penalty even for the sin of adultery.

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  10. It strikes me that Hobbes' view entails a silly gap that he simply overlooks, and it undermines the whole shebang.

    not because there is some moral imperative on everyone to allow others to do so, but on the contrary because there are no moral imperatives at all...

    It is to avoid this frightful situation that rational individuals will, in Hobbes’s view, agree to leave the state of nature by giving up their liberty to do whatever they wish and consenting to being ruled by a sovereign. It is only at this point that rules of morality come into being,


    What he overlooks is the simply, easy, obvious option to LIE when you decide to "give up your liberty" to obey the state. Then go about following the law when people are watching, and do what you will when they are not. On Hobbes' principles, there is no moral reason NOT to behave so.

    Does this undermine the civil state? Only if everyone else does the same thing. So, your best bet is to be a successful politician and persuade (lie) them to believe the tripe about "you must obey, for your own benefit, you are morally bound" and so on, convincing nearly everyone to obey out of a misguided "enlightened" altruism.

    One might make the observation that with Hobbes' view of humans, society's wheels will come off when most of society no longer believes in an objective morality. Which is EXACTLY the condition we have today, and we observe the justice / penal system flailing about in total disarray.

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    1. I suppose that most people would just be too cowardly to do much illegal stuff or, by not being born in a state of nature, be conditioned enough by culture to obey the law.

      We do find moral nihilists on our society and they do tend to behave well enough. Perhaps it is enough to Hobbes.

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    2. "I suppose that most people would just be too cowardly to do much illegal stuff ..."

      Only if they think they will likely be caught and punished.

      One of the most amazing things I have witnessed in my life over time, is the profound behavioral change in what used to be called "the mass man", once legal sanctions which prohibited behavior which formerly was assumed to be reprobated by almost all and appealing to only a few, was decriminalized. I do not say legalized, just no longer sanctioned.

      You see it in every institution secular and religious.

      Who thought they even had the appetite for it? Who would have imagined that so many people were effen crazy, had revolting and perverse appetites, were so nonchalant about the damage they do, and so in love with entropy? Just as long that is, as it sinks the boat after they have experienced their last climax or high, and segued comfortably into nothingness ...

      When libertarians contemptuously refer to the herd seeking humans as 'sheeple", I have come to believe that they may have not stated the half of it.

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    3. I would not say that the "mass man" from back them acted diferently from what we have today* just because of social pressure. One formation and culture back them would help this little creature develop a diferent apetite than what our culture and formation sadly does.

      Remember that the process you describes takes time, perhaps a generation created with worse parents and society.

      Even today, if you look at the average niihilist capacity to violence you see it appearing on special ocasions like against "opressors" and in "protests" etc, theycan act violently when the herd calls they. It was the same before, but the herd was diferently. Laws can change it as well, but they do not do all the guide of these sad beings

      *if we can call several of these "man"

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  11. WCB

    Theorists like Kant and Hobbes go by the wayside when we face things like the rise of Fascists, Nazis, Communists, drug cartels, Islamic extremists, and the like. The past with its religious wars, inquisitions, slavery and crusades has something to say to us also. Less philosophers, more historians. In good old jolly England, there was at one point a very long list of crimes that were capital crimes. It didn't really end these crimes at all, most notoriously.

    WCB

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    1. So true, because punishments don't stop crime we should stop punishments!

      "Kant and Hobbes go by the wayside when we face things like the rise of Fascists, Nazis, Communists, drug cartels, Islamic extremists, and the like." Another brilliant insight - Kant and Hobbes are totally useless when it comes to evaluating truth claims made by different groups and how they reason to them. There is no value in modern philosophers and how they birthed modern political/ philosophical movements!

      "Less philosophers, more historians." Also so true, historians are totally divorced from philosophy - interpretation of past events and what they mean is a non-philosophical enterprise after all!

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    2. Unless you have a conception of what your preferred society is going to look like, you can only get there by accident. That end goal is a question of philosophy, not history.

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    3. "... historians are totally divorced from philosophy - interpretation of past events and what they mean is a non-philosophical enterprise after all!"

      Because there actually has been an occasional commenter shouting "Attaboy!" at WCB, and because I didn't read closely, I originally missed the ironic, or some might even say deservedly satcastic tone of the sample quote above.

      From Vico, to Hegel to Marx to Collingwood and Toynbee, lie other, almost innumerable, historical researchers who've worked their discipline in the context of , or derived from it, philosophical and even metaphysical principles which they posit impact and condition the development of man's individual and social life.

      Even Marx who explicitly rejected what he called metaphysics, introduced laws of historical development and absolute anti-metaphysical interpretive principles which themselves constituted alternate first principles of reality and human interpretaion, and therefore a kind of metaphysics itself.

      And of course for anyone who has been intellectually awake during the last 30 years and "heard tell" of discussions appertaining to think tanks, neo conservativism, and purported intellectual influences ...
      https://plato.stanford.edu/entries/strauss-leo/


      Happy Independence Day. And God bless America and the Republic.

      Here's hoping the crazies and perverts who have insinuated themselves into the fibers of the state structure, and created a festering and suffocating inhuman Sodom within it, have not so eaten away the original timbers that it cannot be restored.

      "Pray" that drooling Mr.10% for the Big Guy lasts long enough to be defeated in the next election, and we can put an end to current administration freak show.

      If Xi forbears till then.

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  12. Personally, I am opposed to the death penalty. Thus I will again restate my solution.

    I offer it not on so-called humanitarian grounds, but because the miscreants [ and many are just that, quite literally] are not worth the socially distributed psychic and emotional and financial costs involved in the legal and moral theater which their execution involves.

    Exile, or rather a dumping or stranding on a remote, uninhabited, and off-limits South Atlantic island, would be preferable.

    I am certain we could force Great Britain to yield one up without too much complaint. If not the relatively salubrious South Georgia Island itself, then most assuredly one of the lesser South Sandwich islands of which there appear to be plenty.

    As we are speaking of (or I am stipulating) assured capital convictions in an age of DNA testing and universal surveillance video, the additional expense of a hoe and a bag of kale seeds - as might be appropriate for Antifa types who have merely attempted, if unsucessfully, to murder - would not be necessary.

    Of course we might expect that among this subject population the balance of their natural lives would be somewhat truncated either by their own action or that of the elements, but that is neither here nor there.

    One obvious problem potentially offsetting the obvious benefits, would be the costs involved in keeping fellow criminals, Quakers, Religion of Humanity freaks, and other masochistic neurotics from taking ship to "rescue" and reintroduce them back as predators into the former host population. [Because that is what an@l receptive masochists do]

    Thus, in trying to avoid either the socially disruptive judicial killing of the behaviorally incontinent criminals or the unjustifiable expense of their maintenance, one would confront the expense of picket ships and satellites to ensure that drug lord owned submaries, and Greenpeace type craft, were not hanging about trying to effect the return of the monsters to the victim population.

    Still it would probably be less costly than what is being spent now.

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    1. This reminds me of the fact that God told the ancient Israelites to establish "sanctuary" cities, to which a person could flee if he had killed another. First, it only applied to certain situations - not all crimes were eligible for sanctuary. And for another, it also was available for such things as accidental death, to get away from the family's vengeance.

      I have thought maybe we could do something like this in capital crimes (whether or not the prosecutor is seeking death) and some other serious crimes like rape. A person being tried can elect to go to a sanctuary installation instead, up until (say) the point where the state rests its case, or even until just before the jury has a verdict, instead of fighting for his innocence to be established by trial. But he gives up all possibility of appeal or anything else.

      I imagined these installations built as max security buildings where no inmates can get out, but they are self-contained "cities" in the sense that there are other people besides inmates - people who are willing to live side-by-side with known (or at least often) admitted violent offenders, who put their money where their mouth is about mercy to the downtrodden. These regular non-criminals would either need to live off their savings, or have online jobs, or work inside the sanctuary for their keep. (Criminals should also have to work for any benefits above bare subsistence, but their living above bare subsistence should be somewhat limited.) Except that (a) the criminal inmate population could never be more than (perhaps) 20% of the total, so if not enough non-criminals volunteer, that limits how many accused can take the offer. And (b) any violence inside the prison by an inmate, and any attempt to escape, results in an automatic death. And anyone helping him. (Not a death sentence to be carried out later after all sorts of wheels-of-justice turn: immediate death by anyone and everyone who sees him.)

      Yes, the cost to maintain would be significant. Harder still would be the cost of enforcing upon the bleeding hearts who would work to undermine the concept. One wonders just how effective (if at all) Israel found the practice of sanctuary cities. And even so, the practice was not one that removed the necessity of a death penalty - you still need that to back up refusal to abide by sanctuary principles.

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    2. Sanctuary existed in Europe too. Up until about 1600 in England you could go to a Church and plead sanctuary and you'd get exile instead of whatever punishment was imminent.

      Interestingly in societies with sanctuary, it seems like a necessary requirement for it to work is that there has to be a higher power than the state that you are appealing to and requesting forgiveness from. Why would the start give you sanctuary from itself? As a god, the state isn't big on forgiveness.

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    3. And a necessary requirement for exile is that there be somewhere that you can be ejected from here into there. Paul mentions Australia, below. There is nowhere left that is sufficiently "the wilderness that nobody claims".

      But I though churches only operated as sanctuaries in the heat of the moment, i.e. the baron's men wouldn't drag you out of the church to take you off to face justice. But that was only a stop-gap, because you still had to negotiate some further step, because you couldn't live in the church. I was under the impression that the negotiated next steps could be of all sorts, including being remanded into the custody of some other noble who might try you more justly, or to take the cross as a crusader, or to petition the king, or...

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    4. Right, Tony. I only meant to point out that a seeming important component of the concept of sanctuary is a spiritual institution with authority beyond the power of the state to mediate the sanctuary.

      The reason that sanctuary worked is because enough people in those societies believed in a power beyond the temporal governing authority that was more fundamental to whom you could in principle appeal for mercy.

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  13. I like it! Australia did not turn out so badly, did it?

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  14. Happy Independence Day!

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  15. WCB

    @Thunderjerky.
    The problem is, what does one do when an entire nation slips into evil? You can punish a dope peddling ring, or a stolen car ring member, but dealing with Nazis starting wars is a whole different matter. and here is where philosophy has problems. This is too big a problem for good philosophy answers to the situation. Look at Putin's Russia, or Iran's support for many terrorist organizations. Know of any good philosophers who can offer some way to deal with such situations? All that can be done really is describe these things. Philosophy has its limits.

    WCB

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  16. Half of this post is taking people to task for extrapolating from Kant’s work things that Kant never actually said, and the other half is extrapolating from Hobbes things that Hobbes never actually said. Feser is way too sharp for this self-contradiction to be an accident…and the post name-drops Strauss…clearly there is a Dangerous Truth hidden between the lines of this post, if only we can figure out what it is.

    I’m gonna be so disappointed if it’s just that Feser is an Averroist.

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    1. Half of critical analysis is extrapolating from what a person said, to see if the extrapolated positions hold up. If not, that is sometimes proof that what they said is wrong, particularly when the extrapolation is by necessary inference.

      Feser is way too sharp for this self-contradiction to be an accident

      Noting various extrapolations from what someone said is not a self-contradition. There may be poor argumentation involved, but there are a dozen argumentative fallacies besides self-contradiction.

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  17. I searched the word, averroist. Could not find a definition. Therefore, I do not know what Billy Jack is talking about. Does anyone know?

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  18. It was a nerdy, niche (attempt at a) joke. If you've read some Strauss and spent time around people who really really like Strauss, you may find it funny. Otherwise, you're probably not the audience for it.

    An Averroist would be an adherent of Averroism, or one who follows Averroes on certain important points.

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  19. Let google be your friend, Paul
    https://en.wikipedia.org/wiki/Averroes

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  20. Did Ed ever respond to Gunther Laird's "The Unnecessary Science" book anywhere, which purports to address his arguments for natural law? I'm not seeing anything in the blog search and I'd have expected a post or something if the book was at all worth talking about.

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  21. Re Kant: It's standard A-T doctrine that the thing cognized is in the cognizer. "For the thing cognizing in act is the very thing cognized in act. It is fitting therefore that sensation in a bodily and material way receive the similitude of the thing that is sensed." In II DA C377.

    But is it true that in perception we receive the copy, shall we say, of the thing that is perceived, or do our sensory faculties organize sensory data in a certain way? When I look at a table, I don't see its molecular or atomic structure. My sensory capacities filter and organize and present a "perceptum", but I don't know that this image on my "mental screen" has all the properties of the sensed object.

    I see A-T chaps denigrate Kant, but I am not seeing why. How can I say confidently with Aristotle and Aquinas that my sensory organs put the complete form of the sensed thing into my possible intellect or whatever? I don't perceive the molecules and atoms etc of the table ... but isn't that what I'd need to receive if I really am receiving the similitude of the thing that is sensed?

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    1. I guess the answer for A-T is that at least in vision, the form of the thing is received in the eye as an intention and not as the form as it is in nature.

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  22. "I searched the word, averroist. Could not find a definition. Therefore, I do not know what Billy Jack is talking about. Does anyone know?"

    Didn't feel like pulling out books on the University of Paris condemnations. Look up Stephen Tempier

    Google will get you started

    "What is the meaning of Averroism?
    [ av-uh-roh-iz-uhm, uh-ver-oh- ] show ipa. noun. the philosophy of Averro√ęs, largely based on Aristotelianism and asserting the unity of an active intellect common to all human beings while denying personal immortality. "

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  23. WCB

    The death penalty flies in the face of moral values, common sense, and history. Death sentences do not deter crime. They are disproportionately handed to people of color and have been given to numerous individuals who were later exonerated.
    Abolish the death penalty

    WCB

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    1. https://innocenceproject.org/

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    2. WCB, in your estimation is the death penalty better or worse than abortion? Please elaborate why you think so.

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    3. and have been given to numerous individuals who were later exonerated.

      Life sentences have been given to numerous individuals who were later exonerated. So have lesser sentences.

      So let's abolish those too.

      Most of the "exonerated" cases that are listed in the statistics were not exonerated in the specific sense that it was proven that they did not do the crime. Many of those released from death sentences are released for lesser reasons: the trial was flawed, the sentencing did not follow the norms, etc. Some of them are because (so a later judge found) it is not beyond a reasonable doubt that the convicted really did it. And just as often as an earlier judge might have flubbed the trial, so also an appeals judge might flub the "exoneration".

      As long as humans run the system, it's going to have mistakes. That there are mistakes is not a reason to discard the system.

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    4. You cannot undo an execution. You can undo a life sentence.

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  24. "Death sentences do not deter crime."

    They eliminate it in the case of homicidal recidivism, and free society from the secondary crime of being chained to the care of murderers.

    However as many murderers as you will agree to be permanently shacked to, I will gladly place into your care and feeding.

    "They are disproportionately handed to people of color ..."

    People of color disproportionately commit murder.


    A potential problem that can be rectified.

    How "lucky" we are that so many murders are now recorded on video.

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