a philosophy blog

On being blotted out

the point of the death penalty

The meaning of capital punishment—insofar as it has a meaning and is not a reflex—is concerned with the distribution of responsibility. The field of responsibility is limited to moral agents. Constituted authorities are not moral agents. Individuals, who are, may or may not be missing the requisite nerve. Usually, they will be.

—Luno

Editor’s note

This piece is a rare attempt by Luno to write something approaching a formal essay. It features footnotes that sometimes either leap far afield or seem more pertinent to the point than what is being glossed. And in the main body of the text, there are elliptical passages that seem more like footnotes. But the compact discourse serves to show why any conventional literary form cannot fully contain his apparent need to make connections across the whole of human experience even when addressing an ostensibly narrow subject. In addressing capital punishment, he offers asides on, and enlists corroboration from, Kantian ethics, radical feminism, theories of the political state, the nature of moral experience, ancient rituals of sacrifice—all rather abruptly. He is, at times, even hard put to restrain himself from the philosophy of art. The conviction behind the attention the subject of judicial killing gets from him is that it is an emblem of all that is wrong with a system of justice. What usually only festers at lower reaches here is in full bloom.

Those familiar with his other commentaries will perceive through the parataxis how integrated the conclusion reached here is with his more comprehensive view of what ethics is and the role it plays in human experience. Specifically, we mean his view that the whole of human experience is radically bifurcated into feminine and masculine realms each with their proprietary rules. The Weiningerian premise has vast implications for moral theory in general, but here we see the fallout of analysis on these terms of one particular problem in practical ethics: if, when, how, and why taking the life of a person may be moral.

For Luno the political and legal contingencies of the subject are always secondary to the moral. If the practice is in no case moral, whatever may be legitimate viewed from these other—at best, derivative—institutions would be of little philosophical interest. If the practice is immoral and these other frameworks, nevertheless, find excuses for it, the occasion will serve only to deepen his cynicism or harden his conviction that the moralist, not the philosopher, has his work cut out for him. The former is concerned with getting people to do the right thing, the latter with understanding why it is right. The moralist will have the harder, perhaps impossible, task.

Luno’s relation to Kant on the topic is quite striking. While he seems to take for granted that Kant’s is the moral theory to contend with—dismissing consequentialism as well as various virtue and rights based ethics out of hand (though elsewhere he provides more argument for their accessory nature), he should be read not as prescribing Kant. He simply thinks Kant came closest to describing human moral phenomenology correctly—one half of it, which is perhaps more, he likes to say, than he can grant any other philosopher. The other half is the view from the feminine. This other half revealingly bears no application to the question of capital punishment. “The feminine relation to life is an entirely amoral one.” “Amoral” in the claim means adiaphorous on a masculine scale of values: there is no relevant sex-blind scale.

For another angle on this Weiningerian claim and its enormous implications one might read Luno’s writings on abortion. Again, these discussions help show how interwoven the question of capital punishment is with other questions of life and death. On the question of abortion this symmetry disqualifies masculine morality from proper opinion. (Luno finds even Hobbes and Kant dimly in agreement with him about that.) For the same reason that retributive justice has little application to women, masculine pronouncements on the sanctity of life are misplaced. The preventing or taking of life are respectively feminine and masculine defining moments. Each sets up a limiting case of a moiety of moral experience. The rules of one are not the rules of the other.

Where Luno comes out on the substantive question of the penal use of death is almost an afterthought. His position may be summed up by saying we don’t have the epistemic and moral wherewithal for this use of death. The question paints a particularly glaring picture of the tenuous role of reason in human practice.

 

On being blotted out from the catalog of the living*

I will say straightaway that I oppose capital punishment for the simple reason that we are unable to do it right. And being unable to do it right in this case, unlike many, is a reason for not doing it all. How we fail in its administration should emerge from an argument that will recommend a procedure for carrying out the penalty correctly. The shortcoming I address does not refer to some technicality in the procedure we [in some parts of the United States and a few other countries] use to execute people. It is that the question of who carries out the execution is essential for its legitimate characterization as retributive punishment. (And no other conception of this as “punishment” is coherent.)

The hanging of Captain Wirz
The hanging of
Captain Henry Wirz

I am going to propose that when we decide to sanction the killing of a human being because he1 is being held responsible for a grievous crime we should also require that the killing be done by a responsible party.2 This, perhaps contrary to common supposition, is not the case in any community that I am aware of where the punishment is used. My modest proposal is that if we are going to insist that the unjust3 taking of life is something for which the taker should forfeit his life then we should be consistent about it.

I do not argue that capital punishment is barbaric. It is. But what of that? Barbarians lack grace but they need not lack morality.

Nor that it does not deter. I don’t know if it does. Suppose it does, contraception and abortion deter crime, too. Even war does—or at least redefines it. If deterrence were sufficient for the morality of the punishment, so would many other less costly techniques. The selective abortion of male children, for instance.

Nor that it does not express—better than anything else we might do to the murderer—the disvalue we place on his worthiness. Torture is more eloquent. I am inclined to think our expressive needs irrelevant to the morality of punishment. Retribution, as I interpret it, is not expression. It is a recognition of a serious and necessary consequence of the kind of being we are, one capable of moral agency. The consequence is not a contingency, even a universal one, of being human.

Or even that innocents are sometimes sacrificed to it. They are. And this possibility, as we shall see, will be at the heart of our (not the punishment’s) failure. But those who appeal to it are often too quick to come to a negative conclusion about capital punishment. This, even though their conclusion may be correct.

Others have made those objections clear enough. I suggest, instead, that the logic of retributive justice requires a protocol we, apparently, are not willing to implement. If we were willing to implement it, the practice could be salvaged with an intellectual integrity it does not now have.4

The idea is simple: that a responsible human hand carry out the last act that ends the life of a duly convicted perpetrator of a capital crime. Understood is that the criminal knew what he was doing, intended it, and was capable of doing otherwise (insofar as any of us are capable)—but did his crime anyway. Understood, also, is that a system of justice comprised of third parties has expended every effort to determine that the person to be executed is the same one that committed the crime. “Beyond a shadow of doubt,” the phrase goes. My suggestion will put teeth into that sometimes too lightly held aspiration.

The key word is “responsible.” Here’s what I take it to mean: that just as we are holding the duly convicted responsible for the heinous crime of murdering an innocent5 by robbing him of his right to live we would hold anyone similarly responsible for a similar act, including his executioner. The executioner is or ought to be in exactly the same position vis-à-vis the act of taking life as the original criminal. The original criminal, we must be assuming (otherwise why would we have found him guilty?), knew that his act would deprive another of life, knew that this is perhaps the greatest evil one human may visit upon another, and knew there would be a grave price to pay for it. He made his calculations as any rational agent, decided that it was worth doing, and did it. Perhaps in his calculations, he heavily discounted the possibility that he would actually have to pay the steep price. Or the enormity of it. Or even that, knowing full well all this, what he hoped to gain through the act or in the act itself was so great as to be well worth the risk of paying this price. After all, aren’t such lucid criminals precisely the ones for whom the punishment is designed and most justified? This is Kant’s view: that this lucid criminal quite frankly implied through his desire to commit the crime the punishment that went with it. To desire one without the other is either irrational or the mark of rational incapacity (in the latter case, we shouldn’t be talking about punishment at all). Irrationality and immorality are intimately connected. Otto Weininger put it most clearly when he wrote, “logic and ethics are one.”6 So we honor the capital criminal’s rationally expressed wish, we treat him as an end, in putting him to death for a crime that entails it. The penalty is defined by and entails death.

The Gas Chamber
Robert Priseman,
The Gas Chamber

Anyone in the position to put someone to death should know this. If there is a difference between the executioner’s position and that of the original murderer it is that the original murderer knows, in most cases, that his victim is an innocent. Or does he? Perhaps, in the eyes of a third party the victim is innocent, but is it often the case that a cold-blooded murderer really believes his victim innocent? Again, we are concerned with lucid criminals in the context of capital crimes. So we must assume that our criminal doesn’t blame his victim for anything in particular, may even admit the victim is as pure as driven snow. The victim’s innocence is simply irrelevant to the murderer’s purposes. The victim’s life stands in the way of some goal or desire of the murderer. The bottom line is that the murderer has no special reason to raise the question of the innocence of his victim. So let the third party judgment on the matter fill this void: murderers’ victims can be assumed to be innocent, and few, even murderers, will question this. For all the difference it makes to him, his victim is innocent.

The executioner, on the other hand, is in a different place with regard to the innocence of the one whose existence he is going to blot out. He is assured the murderer is not innocent. He is allowed to rest in the conviction that everything humanly possible has been done to guarantee this. In all overwhelming likelihood the convicted is guilty and is deserving of, even honored by, the punishment.7 Being in a different place, he may perhaps act to execute with less apprehension with regard to the morality of his act assuming the original murderer himself suffered any. The executioner, after all, has the full juridical backing of the community. It has apprehended, tried, convicted, and detained the murderer. It has certified the conviction and now presented the executioner with all the trappings necessary to see that retributive justice is done. He need only push the button, flip the switch, or pull the lever and the closure demanded by so grievous a rent in the moral fabric that sustains us each in a community of rational agents is achieved. So far so good.

But the executioner is also in the same place as the original murderer in this one important respect: he or she is a member of the same greater community of rational agents to whom the law of retribution applies. Kill an innocent unnecessarily and you will forfeit your right not to be killed yourself. The lack of innocence in the one you kill must be a true lack, not just one so in your opinion or your opinion buttressed by evidence and the solidarity of your community. After all, a professional hitman who believes his victims guilty and whose criminal community backs him up in this judgment is not thereby relieved of moral responsibility should his victims actually be innocent. (He may even think that an occasional dead innocent is of little moment in the larger project of making sure those who should be dead get dead.) Kill one lacking in true innocence and you have done justice a service. Make a mistake and you have played Russian Roulette. If you, yourself, do not meet the same fate, it will be, as far as you are concerned, but for the grace of God.

An executioner must be very, very brave in the scheme I propose. If he or she pushes the button, flips the switch, or pulls the lever on the wrong man,8 he—the executioner—will be both in the same position and not in the same position as the original murderer. The same insofar as he has killed an innocent—just as innocent as the original victim (for when it comes to this punishment there are no calibrations of innocence) and, like the original murderer, the executioner deserves to die because he intended the killing of an innocent, never mind that the executioner believed the executed was not innocent, for this was manifestly not a situation of duress, the one case where we excuse killing or, at least, proceed with the fewest qualms.

Which leads to the glaring difference: we have every reason to believe the executioner’s act was at least as, if not more so, premeditated, as cold-blooded, as calculated as the years will permit, the years between the original murder and the execution—compassing the conviction, the appeals, the final certification of the highest authority, during which bureaucratic sluggishness conspires with “justice for all,” in its concern to make sure no one acts in haste without ample opportunity for consideration and reconsideration. When the executioner pushes the button, flips the switch, or pulls the lever he knows what he is doing. He is taking a chance, however slight

…that the earthly machinery of justice has not erred. His role is to act as guarantor of this.

The executioner commits no crime if he refuses this role. The duly convicted will rot in jail for life. Or until such time as a mistake, if there was one, is uncovered and corrected. The situation is one in which the convicted, through his conviction, has forfeited his right to live. One may forfeit a right yet have it honored anyway. There may be other considerations in a community of rational agents apart from any right to live (or to die) he may have that will steer his fate…

Such considerations as: our executioner’s right to express a wish not to stoop as low as the original murderer. His right to express the arrogance of having transcended a reflex, or his right to admit his reflexes are not strong enough. Or his right to instantiate a principle for the inspiration of others. Or his right to insist that he will not allow the act of another to define his actions and thereby his life for him. Or merely his right to finish living his life less this one risk.

Lethal Injection Attack Droid
Christopher Conte,
Lethal Injection Attack Droid

The risk that, for all the surety of his community of rational agents, for all their faith in the thoroughness of their induction, they are wrong and this person is innocent. Even if that possibility alone did not frighten him in itself, there would yet be the prospect that his own life would be forfeit.

Our executioner, we propose, should have the option to avoid the bother.

And, having demurred in the exercise of the singular privilege and responsibility, there is no one else to take it on.

That means, not the state, the community collectively, nor any agent on its behalf, nor anyone else not invested as a certified aggrieved survivor may step in. Why?

The “anyone else” is easy enough to explain. The system, just as it stands, already has this figured out. There are members of the community who might pretend to the status of aggrieved survivor and would jump at the license to kill.

Why not the state in all its celebrated impartiality? Because of that very impartiality. Either it has it or it does not. Here’s what it would mean to have impartiality: then moral outrage would not become it. The notion of lex talionis—devised as it was to fit the nervous system of individual members of a biological species—is out of place applied to an abstract community which has no nervous system though it may have predictable patterns of behavior that have metaphorically, sometimes, appropriated the idea of a mass psychology. The notion that a collective may have a soul may be a useful way to compass the behavior of aggregates of individuals, but one thing it does not import from its original application to individuals is moral responsibility. Whole groups cannot be held responsible for what they do. Individuals in the groups can. The group designates such individuals. In ancient rituals, individuals were picked out for sacrifice for precisely this reason. If Aztec Gods demanded a still-beating heart ripped from the chest of a perfectly chaste and hapless virgin, it was because the whole culture can never bring itself to sacrifice itself, exactly what this individual is able to do for it. This individual is sacrificed so that the system may live. That is exactly what happens now when our legal system countenances the “isolated” execution of innocents. Our method of selecting who will be sacrificed is, at best, only slightly more rational. We at least pay lip service.

When innocents are sacrificed under current systems no one pays. No one has to pay. But that is as far from a moral view of the human world as we can imagine. Natural forces kill without discrimination daily. The communities we create aspire to this level of adiaphorousness. Whole nations may kill with impunity just as tornadoes, typhoons and earthquakes. Their only checks are other aspirants, other nations… in all this morality goes begging. A community puts this one to death because in its best judgment what he or she has done is, in an individual, intolerable. Only nature and the state may kill with impunity.

But while this is true, the state is not driven to kill, unlike an individual in extremis. It may demur and yet survive because it has no nervous system and it has other resources at its disposal that the individual does not. It may protect its existence by corrigible incapacitation such as definite or indefinite confinement. For all the difference it can make to the state, this is adequate.

Or, if it is driven to kill, it is so because it is not abstracted enough from the vagary of individual nervous systems. It is a flawed state, one that does not do what a state is supposed to do: filter individual passions through its concern for long term tenability of institutions. If it stifles these passions, it is to increase opportunities for indulging others, less destructive of its end of survival. This is not a moral impulse, survival. It scarcely needs help from that direction. The state is morally neutral, like a pleasantly sunny day or a natural catastrophe. Or, if we want to speak of these as good and bad, it is a matter of art, not ethics. The state couldn’t be moral if its very survival depended on it. Fortunately for it, it never does.

If the state bows to the will of the people when the will of the people merely comprises the whim or outrage of the people, unfiltered through prudence and sustainability, when it could easily have defused these passions with its powers of obfuscation and outright confoundment (if not through opportunities for edification) that no state worthy of the name is without, then it has been highjacked. Most states, most of the time are.

But, aside from promoting its own survival, canny or not,9 there is a constructive role the state may play. Insofar as individuals, who are morally obligated, unlike states, may shape the policies of their states and communities, they should urge them to play it. The state should do what it with its resources may do best: ascertain its best approximation of guilt in crime in order to protect its citizens with the least moral overhead. Since, as a well-behaved state should know, it, itself, is not morally responsible, when moral responsibility is in the balance, it must defer to those who indeed may be, that is, individuals.

When an individual has made himself so (ir)responsible that he deserves execution, a morally responsible individual (usually a different one), if there is any sufficiently driven to see that the morally right thing gets done, should carry it out. If there isn’t such a person, the morality of the scene shall have to go wanting. Morality is the responsibility of individuals after all. What the state may not do is compound the moral enormity of what is, in the first instance, not its proper business.

If there is such a person, the state will do its part to circumscribe a forum and an occasion for the enactment of a ritual of moral responsibility. If error occurs, the state having done all it could to prevent it, it will be the privilege of another autonomous individual to continue the ritual and so on until the blood lust of individuals is exhausted.10 In this way the state performs its edificational role, the only salutary one it may assume in this matter.

Perhaps, it is not too much to hope that in the fullness of time autonomous individuals may learn wisdom this way. But whatever education awaits the sentiment of individuals, a state will never have more than prudence to concern itself with.11

The execution of Mata Hari
The execution of Mata Hari

 

 

Notes

*The title of this piece was suggested by a phrase used in a speech delivered before Parliament in favor of the death penalty by John Stuart Mill in 1868: “… I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy—solemnly to blot him out from the fellowship of mankind and from the catalogue of the living—is the most appropriate, as it is certainly the most impressive, mode in which society can attach to so great a crime the penal consequences which for the security of life it is indispensable to annex to it.”

1. It is rarely not a “he.” But when the improbable happens, retributive punishment in any form, let alone capital punishment, is never appropriate. See note 8.

2. There is a tradition of absconding or diffusing responsibility in execution. Hangmen and guillotine operators are wont to wear a hood over their heads. A blank cartridge was sometimes issued to one of the members of a firing squad. In more recent practice, a system of dual switches has been instituted only one of which closes the circuit in execution by electricity. Each switch is tripped by a separate employee of the state but a computer randomizes which trip actually closes the fatal circuit so that—as in the case of the firing squad—each executioner can rest in the belief that it might not have been his action that brought about death (or so that others might weigh the possibility). Why do we have this tradition? Perhaps, it was so that no one person could be singled out for vengeance by an aggrieved survivor of the executed. I guess it might be harder to target all of the possible executioners (judge, jury, etc.: all those cast in the legal drama), but not impossible. Still, that can’t be the whole of it, for the practice seems as bent on hiding responsibility from the actual responsible person himself. (The hood serves both a symbolic and psychological function. Former Ku Klux Klan members have an easier time forgetting they ever were who they were.) I question the morality of absconding or diffusing responsibility. (I will not discuss it here but there is a related problem associated with the notion of the secret ballot.)

3. I might have added “uncharitable,” too. For, as Phillipa Foot once wrote in another context, an unjust taking may still be a charitable one. But we seem most to want to reserve this punishment for the most indefensible types of crimes such as aggravated murder of, say, a child.

4. No doubt there are, or have been, cultures, supposedly more primitive than ours, that have gotten this logic right.

5. That Capital punishment might be appropriate to any other crime such as betrayal of country is morally absurd. If mere betrayal of one human being by another is not a capital crime, how can it become that when the betrayal is defused over an entire nation? A nation may rationally destroy an individual it perceives as a threat, but that is not punishment. At best, we may say, it is self-defence. Which even in the individual case is morally dubious. If self-defence needed morality on its side, we would have vanished as a species long ago. In the case, of an entire nation, the notion rises to the level of histrionics. If I pass secrets that will help an enemy of the state I live in to physically destroy the state I live in, I am either insane (we don’t punish the insane), expressing extreme contempt for my state (only arguably a crime in a liberal state), or a cold-blooded mercenary. In the latter two cases, there may be cause for charges of attempted murder. (Needless to say, a traitor’s “success” would obviate his arraignment.) But that would be the extent of it. The difficulty of substantiating that the attempt was a truly credible attempt, would probably render null every historical case. Normally, traitors are picked out like hapless virgins for the expiation of the possibility of sin in the state. Since we cannot blot out the whole catalog of those who in their heart of hearts agree with the traitor instead we make a show of killing him or her. The mere fact that we fear the catalog rather too large for comfort is why the traitor is not outright insane, isn’t it? It never crosses our mind to meet the challenge of explaining how the actions of any given individual could bring down an entire state, even one that was ripe for being brought down. Hitler, we may want to say, brought down his state. With the help of millions of others.

6. Wittgenstein, deeply affected by Weininger, went on to extend this a little further: “Ethics and aesthetics are one.”

7. Punishment (in a sense entailed by Kant’s view) is not a bad thing: it is a desert before it is anything else, on a par with reward, that is, its phenomenal negativity counts for no less or more than the positivity of reward. It is above all an outward symptom of moral error. The error is the truly bad thing. If the punishment never happens, if our murderer dies a natural death before the punishment catches up with him or if—like perhaps most murderers—he gets away with it, viz, lives out the rest of his life unapprehended, the moral enormity is not thereby affected one way or another. Punishment is a contingent aspect of crime, capital or otherwise. Its immorality is not. Whole afterlives have been invented to round out the sharp insult to our sensibilities.

We say “honored by” the punishment. Is unadulterated vengeance ever moral? Is the outrage roiling in the heart of an aggrieved survivor of no account? Is it only a passion like any other to be quashed or managed? Does justice grant this passion on this occasion special indulgence? Are the two—human outrage and the cold balance of reason—for once in harmony? Kant thought not. Perhaps the reluctance to admit there could ever be such an alliance is why our legal system inserts the prophylaxis of ceremony and a cold, paid operator of the machinery of death between the aggrieved survivor and the killing. It is a gesture intended to express that the crime was above all one against reason (sometimes also known under the alias of “the community”) and only secondarily an injury to individual flesh and blood, and that the former is all by itself morally efficacious. That my life has been forever emptied of the possibility of joy and bitterness plagues my every waking thought, drips into the images in my dreams because someone dear to me was “brutally and senselessly” murdered is a fact that will be forgotten not long after I am gone to join murderer, victim, and witness in oblivion. Reason has its own longer term project in the interest of which it would like to channel our emotional turbulence down a quieter, more diffuse path. Hence, it speaks of honoring the criminal’s autonomy and respect for justice, downplaying any operatic urge toward prolonging the moment. It probably knows that among our feelings honor and respect are the weakest of the lot—tied, as they are, to the self-flattery in the regard we have for the capacity to be guided by reason. Their weakness serves as a segue to being dead. For all the difference it makes to reason.

8. I generally assume capital criminals will be men. Executioners will, I think—though with slightly less conviction, also be men. This is because there is a presumption that when a woman kills in any context she either has a good reason or her situation is pathological in some way that obviates the application of retributive justice which was designed from the start to apply to men whose moral compass requires it. You will find the seeds of this idea all over the history of the subject, but it is all but explicit in Kant, for whom women were not fully qualified rational creatures. It has been fashionable to take this as slighting the feminine, but I think that is not the right way to look at it. In our post-Weininger period and in the wake of the genuine insights of feminist philosophy which, we hope by now, have been sufficiently digested to extract some kernel of wisdom on the matter, our need to assert the equality of women and men in order to merely respect the status, rights and dignity of women should have subsided enough to allow for the possibility that we needn’t resort to slogans that blind us to differences, moral ones, in particular. If Kant disqualified women from moral and legal participation, we need to ask, did he intend to slight them? Or was he saying instead that men and—as far as he could tell (though no longer true, it may well have then)—only men needed such participation? One sex accounts for 94% of the population of our prisons. Guess which it is. That number in every place and time it can be determined or guessed has never been appreciably different.

If the use of death as punishment is morally problematic in the case of men, it is doubly so applied to women. Not only is the just disposition of responsibility not carried out in the act of putting women to death but in principle it cannot be. The extreme reluctance to ply the gesture, even in its flawed form, more than hints at a dim perception.*

*Editor’s note: The “reluctance” is scarcely a secret.

The day will come when we will look upon our time in history as one when barbarism operated under the banner of equality. Our justice system is flawed at its core because it assumes one size fits all. Our treatment of women in this justice system is barbaric. Weininger, that great “misogynist,” suggested rather a more an “orthopedic” approach.

9. It is not clear that a corporate state really has a conception of indefinite survival. In many ways it behaves like an individual minus a responsibility for posterity or concern for a place on the right side of an accounting. But where the individual may have a conscience perhaps attuned to a sense of heterocosmic meaning, a soul, an afterlife, a day of reckoning as certain as death, or at least the sense that the judgment of strangers and descendants matter to it, the state does not. Its sense of history, if it has one, comes closest. But it would be misleading to misconstrue morality to entail a concern for post-mortem glory. For the state is allowed the illusion that it will, unlike an individual, not suffer decline and death. Hence, it never prepares for that eventuality. The state is more usefully thought of as a vehicle for the expression of the ethics of its individual members. (“Thought of” by individuals, of course: states don’t think, they conspire.) As only a medium of expression, then, responsibility devolves to these individuals. Survival in the medium-term—longer (in the better cases) than the life of an individual, but shorter than all eternity—the corporate body prizes above all. The medium-term is pragmatic par excellance. Morality, if it has value in this context, is ornamental.

10. Editor’s note: Luno’s ultimate stance on the matter, it should be noticed, is not ethical but aesthetic (or what he calls the mother of both logic and ethics). In a marginal note, he compares the punishment with the vision of a serious artist which he knows he cannot paint but can only gesture at. He must come to terms with this fact.

If Luno sometimes seems to conflate “blood lust” with “moral responsibility” with “retribution,” etc. he is not necessarily passing judgment on the matter or suggesting the ideas are somehow primitive or untoward. In fact the frequent vacillation between such “loaded” terms in his writing is quite deliberate. They are meant to defuse the moral tensions between them. He uses prescriptions against each other in hope of ending up as close as possible to pure description. (Witness his stress on the indifference of reason (or nature) to our projects.) Description in ethics is not a passive but continuous exercise in pitting one value against another. Although, especially in this “essay,” Luno appears to be making some sense of a Kantian view of what moral responsibility entails on the question of capital punishment he is not a partisan of Kant in the normal sense. Kant’s view is, he would say, “real but not true.” It is a part of the human moral landscape as undeniably as, say, compassion and resentment. But we have no reason to think the whole of human moral experience can be brought under one theory such as Kant’s. Perhaps the greater part of the feminine moral experience, for example, cannot. Nevertheless, moral experience has, he would also insist, a strikingly limited number of regularities (in the way, and for related reasons, sexual orientations are rather limited) and Kant’s is a central one of them. If we are going to give Kant’s moral theory its due—and he would say it appears we must (one way or another), Luno sees himself as a force for doing so consistently. The consistency does not require capital execution, at least not by the state. (Nevermind what Kant himself said. Kant’s legal and political philosophy was necessarily more historical, more contingent, than his moral one.) Indeed, it precludes it. For that would be to presume a humanly unattainable level of knowledge to match the moral enormity of an incorrigible punishment. (Luno writes in the marginalia to this piece: “Picture a theorist of science who proposes a new type of apodictic inference that is not deductive, but takes in evidence like induction, but purports, unlike induction, absolute validity.”) Humans have no business doing what they can’t undo. That, or if they must anyway, they, in the service of their reflective autonomy, must continue until they exhaust the appetite. What they cannot do is justify retribution morally in the same breath that they abscond responsibility for error in the manifold of an amorally constituted authority such as the state.

11. Must the state be amorally constituted? Suppose the state is the moral agent, not the individual, as some Marxists more or less imply. Individuals exist to serve the edification of the species being much as cells of our body exist to serve our corporate envelope. Of course. But then no one talks “punishment,” capital or otherwise, in the Marxist state, anymore than I do wrong to remove a wart. When such states sacrifice individuals it is unabashedly for the greater good. But exactly what “morality” would mean in such a picture of things is a wholly different subject. Such a picture may have its own worries about inconsistency but it isn’t the one addressed here. Morality in a liberal state is not a collective thing.

Rather, the Marxist quandary would be to explain how normativity—the accountable placement of value on one state of affairs over another, as opposed to impulse—can ever motivate in a corporate state or species being: if I am not born with the impulse to subsume my precious ego in the folds of the mother state and the lot of you are, the lot of you must somehow artificially instill in me what is not there or destroy me as defective and irremedial. You cannot exhort me to join you through a conception of reason grounded in my individual autonomy, first of all, because I don’t have any according to you and, second, because you don’t either. You have, on your side, the brute fact of your numbers and the power of them over me. You may condition me, if you can, or dispose of me. No semblance of anything moral is necessary. You, in your species being, are a force of nature or history and I, in my ephemeral conceit, am a short-lived blossom.*

*Editor’s note: The sense of normativity Luno has in mind is perhaps best expressed by Christine Korsgaard’s in which placed value, to count as moral, must be accountable to a rationally constructed identity that arises organically from our reflective nature. See his forthcoming commentary on Korsgaard.

I suspect the Marxist is right. The problem is that he is not convincing. (And a woman is never a rigorous Marxist.) One may be one without the other depending on who is being addressed. Just who is the Marxist talking to? And just who is the Marxist?

Posted by luno in capital punishment, Criminality, Deontology, Kant, Moral Theory, Weininger (Thursday June 25, 2009 at 9:47 am)
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