Comments on: Eugene Volokh jumps the shark

By: Crooked Timber » » The Old Rugged Cross

Crooked Timber » » The Old Rugged Cross — Tue, 22 Mar 2005 20:58:23 +0000

[...] The Old Rugged Cross Posted by Henry My various thoughts on l’affaire Volokh are superannuated by now, but at least I can give a rel [...]

By: JR

JR — Tue, 22 Mar 2005 19:40:36 +0000

OT, I’ve always thought that Dukakis’ answer to Shaw (who asked what he’d do “if Kitty Dukakis were raped and murdered”) should have been, “Come up here you son-of-a-bitch and say that again.”

By: C. Schuyler

C. Schuyler — Tue, 22 Mar 2005 17:33:32 +0000

On further reflection: I would agree with Mr. Fox above that if we’re going to have retribution as some component of our system of punishment (and of course we are), participation by victims in that retribution could well spiral out of control into vigilantism pretty quickly. That isn’t a conclusive argument against all victim participation, however. It does bear saying that we do afford victims and their families some part in the retributive process by allowing them to testify at sentencing hearings (that there’s a retributive motive at work here seems to me indisputable). I don’t see a danger of vigilante action from this.

I have to respond as well to the poster named Chris: with all due respect, it’s my not very original view that retribution IS vengeance (sublimate it however you like). For many reasons, and partly because I responded so strongly to the Iranian punishment narrative, I’m thoroughly convinced that the role of retribution in punishment should be as cribbed, cabined, and confined as possible. The gloating tone that a generally reasonable and civilized man like Professor Volokh took in describing what happened, and the ease with which I could sink into similar gloating, have reminded me just how dangerous the retributive impulse is.

By: pierre

pierre — Tue, 22 Mar 2005 17:14:04 +0000

“I find the argument that the justice system should be used as a means to inflict cruelty in order to satisfy victims’ – and society’s – desire for vengeance rather appalling.”

This is the crux. Is it possible that Volokh (with many others) does not understand the category difference between individuals and the state?

It is legitimate for individuals to feel a desire for vengeance, and it is therefore permissible to discuss if, how, and when they might act on this desire. But it is not legitimate for the state for feel a desire for vengeance, and it is therefore not permissible to entertain notions of how the state might extract vengeance on behalf of individuals.

I’m surprised that no-one has yet raised the issue of the famous Michael Dukakis debate gaffe when Bernard Shaw (no, not the other one, the one from CNN) asked him what his response would be if Mrs. Dukakis were the victim of a violent crime. Michael Dukakis responded dispassionately about the proper duties of the state. However, his failure to even address the possibility violent individual passion was unimpressive in the eyes of the electorate. Or at least, that’s how it was spun afterward.

In short I think the correct answer for Dukakis would have been “Like anyone else, I’d want to kill the perpetrator with my bare hands, but that has nothing to do with our justice system, or any proper justice system”; and in my charitable moments I think Volokh was groping toward this subtlety with his shockingly ill-considered (for someone in his position) remarks.

By: bryan

bryan — Tue, 22 Mar 2005 17:04:07 +0000

did he torture this shark after jumping it?

By: asg

asg — Tue, 22 Mar 2005 15:01:48 +0000

While Volokh has now retracted his view, on grounds somewhat related to the ones nicholas weininger discusses above, it is refreshing to see that CT commenters are as predictable as ever. We get the “macho vengeance fantasies” psychobabble/slander one-two, and we get the standard pooh-poohing of retributivism as benighted and irrational (needless to say, the alternatives are simply assumed to be morally superior; no rational reason is offered for this superiority).
As a side note, one of the best articles I’ve read on the subject of retributivism was Michael Moore’s* piece, in the Feinberg/Gross philosophy of law textbook.

*: Not THAT Michael Moore, obviously.

By: Uncle Kvetch

Uncle Kvetch — Tue, 22 Mar 2005 14:55:53 +0000

Well, if no other good comes from this, Eugene Volokh has disqualified himself from holding a judgeship on the federal bench.
Perhaps, but if Alberto Gonzales has to step down for some reason, Volokh will make an ideal candidate for Bush’s next Attorney General.

By: Mithras

Mithras — Thu, 17 Mar 2005 20:48:43 +0000

Well, if no other good comes from this, Eugene Volokh has disqualified himself from holding a judgeship on the federal bench.

By: Nicholas Weininger

Nicholas Weininger — Thu, 17 Mar 2005 20:13:33 +0000

The conservative principle Volokh misses here, I think, is the value of humility as a restraint on the worst impulses in man. Suppose you adopt the most retribution-focused idea of justice, and agree arguendo (blech) that the “desert vampire” has forfeited any right to humane treatment, and put aside all doubts as to his guilt. Still the gain from having an execution-by-torture rather than the modern, solemnly pain-minimizing variety is at best trivial, and Volokh even acknowledges this.
Against that gain one must set—as Volokh fails to set—the cost of giving rein to the arrogance and bloodthirstiness of a crowd; of creating a vengeance-frenzy which is not nearly so easy to quiet as to arouse; of leaving a great big bludgeon of collective sentiment lying in the street for any demagogue to pick up. Volokh has blogged extensively on the horrors of the twentieth century. Therefore he has no excuse for ignoring the dangers of bloodlusting crowds.

By: Randolph Fritz

Randolph Fritz — Thu, 17 Mar 2005 19:44:01 +0000

“’Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.”
Nor is there any judicial proceeding so reliable that we can ever be sure that the right person is being punished. All human justice lies under that cloud, so let us abandon death and cruelty in our efforts to deal out justice.
The problem I have with people of Volokh’s persuasion—and there are many of them—is that they believe that, somehow, humans can stand in the place of god and deal out perfect justice. This is not heaven; we are not angels. History teaches us, over and over again, that legal systems which incorporate torture are invariably unjust: the wrong criminal is somtimes identified, the unpopular are punished more harshly than the popular. As in war, the desire to inflict pain overrules the will to see justice done; indeed some people who desire to inflict pain use the system to their personal ends. Deliberate cruelty corrupts: both systems, where it attracts the cruel, and individuals, who are made the more cruel by the practice of cruelty.
None of this is news. I wish there was no need to say it again.

By: Joe S

Joe S — Thu, 17 Mar 2005 19:15:24 +0000

To advert to one of the posts near the top, Volokh’s sincerity is relevant. If he is not sincere, there is not point in responding to his position. An insincere position is just bullshit, and subsequent discourse is a waste of time. Volokh’s sincerity (which I do not doubt; I have met the man) legitimates this entire thread.

By: Russell Arben Fox

Russell Arben Fox — Thu, 17 Mar 2005 19:11:51 +0000

My take on it all.

By: dave heasman

dave heasman — Thu, 17 Mar 2005 19:04:12 +0000

“Unfortunately your comment is not well-formed”
The comment system adds markup stuff, then complains that it’s rubbish. Hooray.

By: Eddie Thomas

Eddie Thomas — Thu, 17 Mar 2005 18:59:29 +0000

“The fact that Volokh actually wrote the words “I like civilization, but…” tells me all I need to know about the man.”
I guess you can write off Aeschylus’s “Euminides” and Sophocles’ “Antigone” as well then, which also bring forth the notion that civil institutions need to maintain respect for earlier, tribal notions of justice.

By: Barry Freed

Barry Freed — Thu, 17 Mar 2005 18:47:45 +0000

“You don’t understand my point at all. Volokh says he sees no moral difference between imprisoning, executing with minimal pain, and torturing to death an innocent person—that all three are about equally bad. That’s a ridiculous position; if he put himself in the shoes of that person, it would be immediately obvious.”
Cake or death?