Comments on: Volokh on capital punishment and cruel and unusual punishment

By: Nicholas Weininger

Nicholas Weininger — Thu, 17 Mar 2005 19:47:48 +0000

Just in hopes of putting a sock in the speculative psychoanalysis of libertarians here, let me point out that Volokh is
(a) very clearly not a libertarian by any reasonable definition of the word, no matter what he calls himself
(b) has not been so at least since that nonsense about how we can’t let captured terrorist suspects have due process of law because then millions of frivolous lawsuits would divert all our resources from the War Effort.
He’s a usually interesting and intelligent nonreligious conservative. That’s really a very different thing.

By: Bruce Wilder

Bruce Wilder — Thu, 17 Mar 2005 19:34:57 +0000

Volokh, who justified his silence on Bush torture policy on the grounds that the very idea depressed and sickened him, appears to have some taste for cruelty, after all. Am I surprised? No.
Volokh is arguing not just for cruelty, but for overthrowing the rule of law. The rule of law makes certain conduct, per se, illegal. What the Iranian authorities did to the convicted serial murderer should be illegal for the same reason that what the serial murderer did to his child-victims was wrong and illegal. The view that what you did (to me and mine) was so heinous, that I am, morally and legally, released from any constraint against doing the same to you, is the foundation for the Bush Administration policy on torture and imprisonment without trial. It is necessarily authoritarian, because the notion that what I do to you is justice, and what you do to me is crime, can only be maintained by force alone, and not by abstract reasoning and rules.
It is not just the atavistic blood-thirstiness exhibited by Volokh and the vicious Right, but their authoritarian committments, which frightens me. But, maybe the bloody stuff will attract attention to the more abstract, authoritarianism.

By: Russell Arben Fox

Russell Arben Fox — Thu, 17 Mar 2005 19:12:49 +0000

My take on it all.

By: abb1

abb1 — Thu, 17 Mar 2005 17:42:03 +0000

You are welcome to suggest it, but I don’t know if you’ll get anyone here to buy it.—Dave

But why, Dave? I look around and see enlightened constitutional monarchies and barbaric backward democracies. In Switzerland women were not enfranchised on the federal level until the 1970s; in one especially democratic canton, where they still vote by raising their swords on the central square, they were eventually forced by the federal government to allow women to vote in the 1990s, IIRC. – Why aren’t you buying it?

By: Jack

Jack — Thu, 17 Mar 2005 17:29:27 +0000

Katherine, I’m just trying to see how a libertarian could be attracted by state inflicted violence.
Most libertarians seem so far removed from their utopia that they are not forced to resolve the contradictions of their beliefs when confronted with the status quo. So if the ideal libertarian process of justice would be spontaneous cooperation to apprehend the actually guilty criminal and place them at the mercy of the victim who happens to be a paragon of libertarian self-reliance and fair mindedness, some punishment at the hands of the victim might be expected. The cruelty that the victim’s visceral reaction to the crime might militate towards would be to some extent mollified by the reaction of those loyal to the culprit to a disproportionate revenge. That being the case the murderer might have been deterred by knowledge of the personal nature of the punishment they would likely face. Gun control is anathema to a broad stream of libertarians after all.
If allowing victim participation in the punishment makes the current system more like that, even if it ignores the, IMO, critical limitations of the process of attribution of guilt and the unpleasant facto of state enforcement of consequences of the same, it might prove attractive to a libertarian. After all the libertarian is free to object to that process as well.
The fact that this nullifies the aspects of libertarianism that I find most attractive does not mean that it should be surprising to find a libertarian who feels that way. I can’t think of anyone who really thinks that the places closest to libertarian ideals, Somalia with its lack of a state for example, are good for actually living in.

By: Matt McGrattan

Matt McGrattan — Thu, 17 Mar 2005 17:21:12 +0000

You know on one level I am shocked and stunned that this debate, and the one on torture, is even taking place.
Something is seriously wrong.

By: Katherine

Katherine — Thu, 17 Mar 2005 16:53:26 +0000

“I experience less cognitive dissonance than Katherine with the idea of a libertarian advocating such a policy. In some ways involving the victim in the punishment is a diminution in the interference of the state with the natural consequences of crime.”
It doesn’t really.
Supporting this means trusting that the state will inflict such cruelties only when they are deserved. Texas can’t manage that. They’re executing the innocent, and executing people based on how good a lawyer they could afford rather than the heinousness of their crime. And as little I trust Texas to get it right, I trust Iran a hell of a lot less.
There’s certainly a moral intuition that the murderer who inflicts needless additional pain and torment on his innocent victim is worse than a murderer who doesn’t. If you know that any state that practices the death penalty will do it to kill an innocent, and you support the infliction of pain as part of an execution—well then. You are recklessly allowing the torment of innocents of their deaths rather than intentionally causing it, and you are farming out the dirty work to the government instead of doing it yourself. But if the gratuitous inflicting of pain on the innocent is wrong, it is always wrong.

By: Elliott Oti

Elliott Oti — Thu, 17 Mar 2005 16:47:52 +0000

“Though the scales could never be balanced, what is to prevent the mob from demanding the imbalance be reduced as much as possible by making the torture and execution as horrific as ‘humanely’ imaginable? That is where Volokh’s logic leads [...] ”
A metaphor is not even an analogy, but when you start calling metaphors “logic” my insides hurt really bad ….

By: Joshua W. Burton

Joshua W. Burton — Thu, 17 Mar 2005 16:43:44 +0000

In any case, my point stands—I don’t see how the ‘social satisfaction’ over what was done to the killer in this case could comes close to balancing social outrage over the offenses and suffering of his victims—how could the relatively short and relatively mild (by the standards of the Inquisition) episode of torture and execution possibly balance the snuffing out of a large number of young lives in the most horrific circumstances?
That’s the essential distinction between retribution and expiation. Retribution fails because we can’t make the culprit suffer enough (or suffer at all, if he’s a psychopath): the goal is “yes, I see now what I did,” and that may be unattainable.
Expiation can accept a token penance, and in fact will always do so in practice, because the bloodlust of ordinary decent people, even in the mob, is frail and easily slaked. You can stop when the last stone is thrown. But as I noted before, even when sickened by their own vengeance, the mob will feel unsatiated in a different way, because the culprit was unworthy of his starring role. We don’t need to tally the price, so long as a price was paid—but was it paid in good coin?

By: Anderson

Anderson — Thu, 17 Mar 2005 16:31:10 +0000

On the “visceral,” Volokh-has-no-argument aspect, I’m not sure we can fault him there. What argument do we have against torture? Volokh’s moral intuitions may simply differ from ours, different in degree but perhaps not in kind from the difference between ours and Gacy’s. (Assuming Gacy had any such.)
I don’t think morality can be separated from this kind of pre-rational feeling; civilization, I guess, is to educate our sentiments so that we don’t feel like Volokh does (or says he does).

By: jlw

jlw — Thu, 17 Mar 2005 16:28:26 +0000

Steve LaBonne sez:
.

“It’s hard for non-Americans to comprehend the mass insanity that took hold of this country after 9/11. When people living in a dream world of imagined security get a rude awakening the results are predictably not pretty. I myself became unbalanced sufficiently and for a long enough time to fall hook, line and sinker for Bush’s Iraq / WMD claims, a fact of which I am now ashamed (as I hope is former Secretary Powell, among others.)”
.

Mass insanity, sure, but it wasn’t spontaneous by any stretch. The mass of Americans were gaslighted into their psychosis by a cruel, manipulative cadre with a hidden, pre-existing agenda.

By: Strange Doctrines

Strange Doctrines — Thu, 17 Mar 2005 16:25:26 +0000

I just read a remark by Ken Taylor (the context is the philosophy of art) that somehow seems apposite:

I wouldn't go so far as to say [evil] lurks in us all, but I do think we overestimate our own distance from it.

By: mw

mw — Thu, 17 Mar 2005 16:22:34 +0000

The point is not to make the culprit’s suffering balance that of his victims, but to make society’s enjoyment of his suffering balance society’s outrage at the suffering of his victims.
In any case, my point stands—I don’t see how the ‘social satisfaction’ over what was done to the killer in this case could comes close to balancing social outrage over the offenses and suffering of his victims—how could the relatively short and relatively mild (by the standards of the Inquisition) episode of torture and execution possibly balance the snuffing out of a large number of young lives in the most horrific circumstances?
Though the scales could never be balanced, what is to prevent the mob from demanding the imbalance be reduced as much as possible by making the torture and execution as horrific as ‘humanely’ imaginable?
That is where Volokh’s logic leads, and it doesn’t even really require a ‘slipperly slope’ to get there.

By: John

John — Thu, 17 Mar 2005 16:16:36 +0000

I’m just amazed that anyone claiming to be a social scientist can even discuss the issue in these terms. The death penalty isn’t about justice and never has been. Don’t you guys read Foucault or Thompson or Linebaugh or…

By: Jack

Jack — Thu, 17 Mar 2005 16:09:47 +0000

Isn’t there a conservative argument against introducing such a policy? There are many possibilities for dealing with murderous criminals and still some debate over which ones are best. However many have been tried and rejected and the current settlement is at least a good approximation of the gained wisdom so that claims that an alternative approach, even if attractive on some level, may prove to be, or indeed may have been proved to be, undesirable. Therefore changes to the current system, particularly those with predictably horrible consequences, should be viewed with vigorous skepticism.
I experience less cognitive dissonance than Katherine with the idea of a libertarian advocating such a policy. In some ways involving the victim in the punishment is a diminution in the interference of the state with the natural consequences of crime. The utopia of the libertarian is one of gangs, clans and blood feuds after all. Indeed if the state were not to interfere further by protecting the victim there would be the moderating force of fear of reprisal from the family/gang/clan of the accused.