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The following article appeared, in edited form, in the
September, 1992 issue of \Liberty\. This file contains
the original, unedited, and complete text. Reproduction
on computer bulletin boards is permitted for informational
purposes only. Copyright (c) 1992 by J. Neil Schulman.
All other rights reserved.
IF EXECUTION IS JUST, WHAT IS JUSTICE?
by J. Neil Schulman
Democracy has no more sensitive gauge than the public
opinion poll, and the recent \Los Angeles Times\ poll which shows
that four out of five Californians favored the execution of
murderer Robert Alton Harris tells us everything we need to know
about the political will of the people on this subject.
But while the voice of the people may be the final word
regarding our political decisions, few could argue that it
disposes of moral questions, or even that such a political will
is unchanging. At various times in human history, the voice of
the people has favored slavery, the execution of blasphemers,
and the Divine Right of Kings. Obviously, both a public moral
sense, and the political will which follow from such feelings,
are subject to revision.
The largest single reason, given by those who supported the
decision to execute Harris, was "Justice/Eye for An Eye." I find
it both refreshing and comforting that moral, rather than merely
utilitarian, considerations are at the forefront of most people's
consciousness.
Still, the question remains to be asked: on what basis does
one believe that retribution -- "an eye for an eye" -- is a valid
principle of moral justice?
Is it primarily an emotional, rather than an intellectual,
reaction based on empathy to the victims? What, then of the
revulsion felt by others to the premeditated killing of a hogtied
man?
Is it a sense that something which was codified four
millennia ago in the Code of Hammurabi must be right because of
its age? What, then, of that code's literal call for
retaliations including putting out eyes and cutting off hands?
Is it because the Old Testament tells us that God told Moses
that He was ordering us to execute murderers? First, how do we
know that early authors didn't do some rewriting, or even that
Moses -- a politician -- wasn't lying when he said the code was
written by God? Second, if we are using the Book of Exodus as
our legal code, why are we not executing people who curse their
parents, or witches, or those who commit bestiality, or those who
make sacrifices to any other deity? Third, if we take the New
Testament as updated orders, do we obey Jesus when he says he who
lives by the sword dies by the sword, or when he tells us that he
who is without sin shall cast the first stone? And fourth, what
business does a secular state have enforcing a \religious\ code
in the first place?
If we answer that we do not decide what is moral or just
based on emotions, or tradition, or ancient religious writings,
then there remain only two other ways to derive moral premises:
direct revelation or human reason. Either our moral premises are
personally dictated to us by a Superior Power -- and that claim
must be backed with incontrovertible proof or it has no merit --
or we must use our own powers of reason to figure out morality
for ourselves.
Perhaps such a rational inquiry can begin by asking why it
is right for the State -- a secular organization acting as agent
for ordinary individuals -- to do that which is universally
despised when done by any of those individuals? Does the State
act from practical, utilitarian considerations alone -- in which
case such utility must first be subjected to moral limitations --
or can it justify its killings on the basis of moral premises
which can be derived without reference to sectarian religious
documents?
The State of California finds it fairly straightforward to
define justifiable homicide for the private individual.
According to the California Department of Justice's booklet
\California Firearms Laws 1991\, "The killing of one person by
another may be justifiable when necessary to resist the attempt
to commit a forcible and life-threatening crime, \provided\ that
a reasonable person in the same situation would believe that: a)
the person killed intended to commit a forcible and life-
threatening crime; b) there was imminent danger of such crime
being accomplished; and, c) the person acted under the belief
that such force was necessary to save himself or herself or
another from death or a forcible and life-threatening crime.
Murder, mayhem, rape, and robbery are examples of forcible and
life-threatening crimes."
For the private person -- or even the police officer -- the
instant the threat ends, the grounds for justifiable homicide
end.
Strictly speaking, the State is no more than a group of
individuals acting for common purpose. It is hard to imagine how
it may rightly do more than the sum of the rights of the
individuals comprising that group. How, then, does this
transformation -- whereby homicide is justified long after the
threat has ended -- occur? Does mere group procedure sanctify
killing? If so, how many individuals must be in a group before
it earns a license to kill? What \moral\ premise distinguishes
the state criminal justice system from the lynch mob?
The obvious answer is that in the absence of a Divine Ruler
anointed by God, there is no moral basis for the State to do
anything which it is not right for the private individual or
group to do. Logic dictates that if it is morally justifiable for
the State to kill in just retribution, then it must likewise be
morally justifiable for other individuals or groups to do so as
well -- the Mafia, the Crips, and the Bloods included.
If it seems obviously wrong to you that private individuals
have a right to retaliate -- if California's definition of
justifiable homicide seems to you to be based on a valid moral
premise -- then you must come up with a \moral\ justification for
the State to do that which none of its principals may do.
For me, I answer that it is wrong to punish murderers with
death, because it far exceeds the scope of human justice. Human
justice is based on the concept of seeking repair rather than
further destruction. The religious concept of just retribution
-- punishment, by another name -- is mere tit for tat,
underivable from principles of reparative equity and therefore
thoroughly irrelevant to justice or moral behavior as it may be
enforced by a legal system. The allure of legal punishment is to
adrenaline rather than reason.
Consequently, I see no possible justification for the State,
as an agent of the people, to claim a moral right to do that
which none of its principals may do. If we have learned anything
in four millennia of limiting the role of government, it is that
if civil justice is to exist in a secular society, it means
limiting equity among individuals to reparation of wrongful
harms.
If one believes, as I do, that killing a murderer has no
reason-derived moral basis, it does not logically follow that one
is advocating that murderers should continue to enjoy a pleasant
life at the expense of their victims. The principle of
reparation derives the object that murderers should labor hard
until the end of their days, and all that they produce beyond
their mere subsistence should be paid to the heirs of their
victims. There is no reasonable moral basis for the practice of
murderers spending their days being supported as privileged wards
of a welfare state. Such false humanitarianism is gravely
offensive to those who remember the murderer's victims, and
such offense is possibly the basis for much of the emotion behind
calls for state executions.
To those of religious precepts, I must argue that it is
quite enough for the institutions of a non-theocratic society to
place immovable walls between murderers and the rest of us, and
extract what value can be obtained for their victims' benefit.
That is all safety and equity calls for. That is all that we --
as individuals or as a group -- are entitled to. Beyond that
imperfect human institutions should not go, and what perfect
vengeance is required must be left to God, who in His own good
time disposes of all lives as He sees fit anyway.
****
J. Neil Schulman is a novelist, screenwriter, and host of a
weekly program on the American Radio Network.