Capital Punishment (44): The Retribution Argument Against Capital Punishment

Retribution is the last refuge of those seeking to justify capital punishment, given the failure of other arguments (deterrence, incapacitation etc.). Retribution is a punishment that fits the crime: the severity of the punishment should be proportionate to the severity of the crime. Intuitively, therefore, retribution should justify capital punishment for murder. Only death is a punishment that is as severe as murder. The Latin origin of the word “retribution” indicates that something should be given back or returned: someone “gives” death and hence death should be returned.

However, in theory, retribution does not necessarily mean that the punishment has to be strictly equivalent to the harm caused by the crime: some claim that retribution simply means that we must punish severe crimes more harshly than less severe crimes. Yet we see in practice that capital punishment as punishment for murder is defended on retributivist grounds.

Retributivists, ancient and modern, have always been lured by one or another form of lex talionis. (source)

There’s often an element of desert introduced in retributivist arguments. A murderer should be put to death because this punishment fits the crime, and because this punishment fits the crime, the murderer deserves to die.

So, given this “natural” tendency of retributivists to favor capital punishment for murder, how can it be possible to construct an argument based on retribution against capital punishment, as the title of this post suggest? Thom Brooks has made a highly interesting attempt here. It’s based on a decision by Judge Jed Rakoff ( in US v Quinones):

What DNA testing has proved, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases. In each of the 12 cases of DNA-exoneration of death row inmates referenced in Quinones, the defendant had been guilty by a unanimous jury that concluded there was proof of his guilt beyond a reasonable doubt; and in each of the 12 cases the conviction had been affirmed on appeal, and collateral challenges rejected, by numerous courts that had carefully scrutinized the evidence and manner of conviction. Yet, for all this alleged “due process”, the result in each and every one of these cases, was the conviction of an innocent person who, because of the death penalty, would shortly have been executed (-some came within days of being so-) were it not for the fortuitous development of a new scientific technique that happened to be applicable to their particular cases. (source)

This should even convince retributivists that capital punishment has to be rejected. Even if you adopt the moral rule that murderers deserve to die you, shouldn’t apply the death penalty in practice because you can’t be certain that a particular defendant is really guilty of the crime and hence deserves to die. And there’s no point arguing that the systematic use of DNA testing gives you this certainty: first, it’s not always possible to use DNA tests, because the crime has to be of such a type that DNA traces are potentially available, and even if they are potentially available they may not be actually available; and second, we don’t know if DNA testing is accurate enough and won’t be discredited in the future.

You could also argue that the same lack of certainty is the case for all types of crime, and that rejecting capital punishment because of a lack of certainty implies rejecting criminal punishment tout court. Not quite: all other types of punishment allow for the possibility to correct mistakes resulting from uncertainty. Capital punishment rules this out.

And there’s another kind of uncertainty that militates against capital punishment and that should convince retributivists to reject it. The desert of a criminal is usually based on more than mere physical evidence of his actions. Intent also plays a part. Take the case of someone who caused the death of someone else by his actions – and let’s assume that we are certain about this, e.g. we have DNA evidence and we know that no future scientific developments will cast doubt on this evidence – but did not intend to kill. Many would argue that he doesn’t deserve to die. However, intent is impossible to prove because it requires reading someone’s mind, and hence we can never be certain that someone intended to kill. A desert based argument for capital punishment is void if desert includes intent.

What is Democracy? (52): Predictability or Uncertainty?

Why would this question be even remotely interesting? Well, I can see several reasons. Maybe not in the West but elsewhere in the world democracy is often rejected because it supposedly undermines predictability and hence economic performance. A strong central government that doesn’t have to worry about the next election is said to be more efficient, economically speaking, because it can apply long term planning. Talkative democracies with their frequent elections, rotation in office and often federal structures are simply unable to plan and are forced to pander to the short term interests of a lot of small groups because elections are at stake. Also, people seem to prefer predictability over uncertainty in general, not just because of the economy.

Let’s just bracket the question whether or not uncertainty is in general a bad thing, and whether or not we want to limit it (uncertainty is and always will be a fact of life so limiting it is all we could do if we decide that that is what we want). Those are not questions I’m particularly interested in since the answers can reasonably go both ways (planning can be good or bad, certainty can be comforting or stifling etc.). I’ll focus on the relationship between democracy and uncertainty. Is it true, as some authoritarians claim, that democracy promotes uncertainty? Yes, for some reasons, and no, for others.

There are indeed some forces that compel democratic politicians to favor the short term. Elections need to be won, and voters naturally value short term benefits more than long term benefits, even if these long term benefits are much larger (this is called time preference). They have some good reasons for this: maybe they think that they won’t be around in the long term (or that the probability of being around decreases when the time horizon is further in the future), or maybe they don’t believe in the long term: since life is unpredictable, especially in the long term, it’s better to count on short term benefits, even if they are small in comparison, than on large but unlikely long term benefits. If that is how voters think, then they will favor politicians who focus on the short term. Democracy therefore exacerbates life’s inherent unpredictability.

Also, voters are correct in thinking that politicians have more power over the short term than over the long term, which is another reason to favor politicians who promise short term benefits. This “short-termism” may be misguided for other reasons – especially when the short term benefits are detrimental to long term benefits (e.g. driving SUVs) – but it’s indeed to some extent a fact of life in a democracy, and one which, by definition, produces uncertainty because it makes long term planning very difficult if not impossible.

It’s also true that some non-democracies have proven themselves to be better long term planners, although most non-democracies have been short term kleptocracies that ruined their national economies. Dictatorships have also shown that long term planning doesn’t need to be benevolent: the long term planning they engaged in mostly focused on the long term survival of the ruling class, not the long term benefits of the people or of business. Predictability then means eliminating opposition and dissent. And even if prosperity is the motivation, the result is often the destruction of freedom.

Another reason why democracies are particularly unpredictable is the game of action and reaction. In a democracy, the majority has to take into account reactions of the minority and reactions of a future majority. (Democratic minorities have some power, e.g. their rights cannot be violated by the will of the majority). When people react to what you’re doing, you can never be certain that the actual consequences of your actions correspond to the imagined ones. A carpenter working in isolation can be quite sure that the table he’s making will look a lot like the one he imagined. A democratic politician will most often see things happening quite differently from the way he or she expected them to happen. The plurality of a democracy means that many different kinds of reactions can interfere with actions. As a result, there’s unpredictability. Goals will not be achieved exactly the way they were intended, or will not even be achieved at all.

A democracy does not try to suppress or eliminate reactions and contradictions. It tries to ritualize them, soften them and take the violence out of them, but it needs them. It needs conflicts, opposition, criticism, plurality, rotation etc. Democracy is a game of action and reaction that is institutionalized and accepted as an inevitable fact of life in a community with different people and different goals. It cannot exist without events initiated by some and reacted upon by others. Hence democrats embrace uncertainty and unpredictability, however unpopular this may be. They don’t accept that there is necessarily a purpose, a clear plan unfolding in history, an evolution toward a certain goal, a plan or a process that can be known in advance and implemented in a predictable way. They are weary of planning because they don’t believe that planners can have the necessary knowledge to plan and because of the tyrannical nature of planning: planning has to result in the exclusion of reaction.

However, let’s not exaggerate. Non-democracies can also be quite unpredictable, and beside the fact that short-termism isn’t an exclusively democratic vice there are other things that disprove the claim that democracy is especially bad for certainty and predictability. Democracies are rule based, and much more so than dictatorships. They favor the rule of law, which means that public policy is much less impacted by changing individuals. Governments can only do what the laws allow them to do, and their actions are therefore much more predictable. You could say: so what, they can always change the laws. True, but only within the confines of a constitution which is incredibly hard to alter. Judges in a democracy have the power of judicial review and can undo acts of legislation that violate the fundamental rules of a democracy.

This “hard-coding” of the constitution shows that a democracy, like any form of government, wants to be certain of its survival. In that sense, it needs predictability, but not predictability of policy. A democracy tries to eliminate only anti-democratic reaction and opposition, not opposition to policy. An entrenched constitution is one way it does this; asking people to promise respect for it is another way. Promises produce some certainty, a certainty and predictability based on freedom. Promises imply freedom, because a promise is only valid if it is voluntary. This kind of certainty is therefore radically different from certainty produced by the elimination of reaction. In a tyranny, everybody is certain – to some extent – that the regime will survive because nobody can or dares to react, or because indoctrination and propaganda have conditioned people in such a way that they do not even contemplate reaction. In a democracy, there is relative certainty because enough people keep their promise to respect the regime, and because there are institutions enforcing respect for the basic rules. Those promises are the rationale behind the so-called “pledge of allegiance“.

Of course, this does not mean that everything in a democracy is free and voluntary. There has to be some coercion because some people will not make or keep the necessary promises. There will be coercion, not of promises, but of reactions. Promises cannot be coerced. Anti-democratic reaction is the only type of reaction that is eliminated in a democracy. Every other kind of reaction is cultivated.

An anti-democratic reaction is somewhat of a contradiction in terms. It is because of democracy that reaction is possible: democracy softens and hence promotes reaction. If reaction becomes an activity without risk, as is the case in a democracy, then reaction blossoms. Reacting against democracy is not only ungrateful, it is self-destructive.

But apart from this predictability of the institutions necessary for unpredictable political life, it is clear that the focus of democracy is on conflict, contradictions, opposition, reactions, unpredictability and uncertainty. Freedom does not always go hand in hand with control, although on an individual level this may be the rule. An individual is free if he controls his life. But a society is not free if people try to control consequences and the future. Unpredictability does not mean that people are not free to choose their future. They are just not certain that the future will be the one they have chosen.

The freedom to react disappears when politicians want to be certain of their goals. They want to be like a lone craftsman who makes a product without much interference from other people and other goals. Society is in need of a blueprint and a makeover. Reality has to be made in order to conform to the plan or the model. It is no longer the uncertain and unpredictable result of human action and reaction but the product of a plan and of the concerted efforts to realize it. Freedom is replaced by the execution of a plan and of the orders of those who best know the plan and the means to realize it. (Arendt was one of the first to make this argument).

Politics becomes a goal producer, and is no longer the platform on which different goals can be shown, can interact and can fight peacefully for supremacy. People become a means for the realization of the plan, instruments or material for the creation of society. And if they are resistant material they are forced into line, or perhaps they are even “waste”. In any case, the application of force to the materials is necessary in order to shape them. If you want to create society, you have no other means but people. People will have to be transformed. Their thinking has to be conditioned by way of education, propaganda, indoctrination, punishment, forced labor or genetic manipulation. Perhaps even selective abortion, euthanasia or simply extermination. Some materials do not allow transformation or improvement.

However, it is far from certain that the elimination of reaction is possible. It may be counterproductive and create more reaction than initially anticipated. Plurality is probably unavoidable, and therefore uncertainty as well.

More on the future here and here. More on democracy here.

The Ethics of Human Rights (41): Human Rights of Past Generations?

In a previous post I discussed the claim that future generations of people have human rights claims against those of us who are currently alive. I argued that they probably have. The “sister-claim” is, of course, whether the same is true for past generations. Obviously past generations had human rights, just like you and me and everyone who comes after us. The question however is whether current generations can violate the rights of past generations.

For starters, it’s obvious that past and future generations should be viewed differently. Future generations can incur harm following our actions, and can therefore, prima facie, invoke rights claims against us (namely for those types of harm that are rights violations). Past generations, on the contrary, can’t be harmed by current actions, since they are dead (assuming, theologically, that deceased people are gone; if you believe that your ancestors are in heaven watching you, your actions may still harm them in some sense, although I doubt they need human rights in heaven).

If past generations can’t be harmed by current actions because they are dead, then current generations shouldn’t and even can’t adapt their actions so as to respect the rights of past generations. However, perhaps we should carve out an exception here. Maybe there are cases in which we can convincingly speak about harm done to people in the past.

Take the following example. It’s reasonable to assume that past generations – like all generations – valued the future and posthumous state of their society or the world. For example, if freedom was important to them when they were alive, they may have felt distressed about the possible prospect of a posthumous totalitarian world government. They may have been distressed because they valued freedom and/or because they were concerned about the fate of their descendants. The harm to one’s descendants is typically viewed as something of concern to oneself. We all care about the fate of our children’s children’s children, even if we may never see them. So, past generations can be harmed by current (or future) generations if the latter are seen as a threat by the former.

However, I object to calling this harm a rights violation. The harm we’re discussing here may be immoral and even unjust, but the infliction of distress still isn’t a human rights violation. The actual totalitarian government and the harm it does – as opposed to the threat – are imposed on living generations, not past generations. So unless someone comes up with a better example, I guess it’s indeed useless to speak about present generations violating the rights of past generations.

More posts in this series are here.

The Recession, the Economics Profession, and the Prediction of the Future

The current economic recession has cast a shadow on the economics profession. Economists are blamed for not having foreseen the recession. There’s for example this famous article by Paul Krugman.

Whereas many economists undoubtedly have encouraged wrong policies and harmful trade practices, I think it’s unfair to criticize them for failing to predict the future. Contrary to the natural sciences, human sciences (or social sciences) such as economics are constitutionally unable to predict the future. The reason is their subject matter: human beings. Contrary to celestial bodies, atoms or DNA, human beings have free will, which means that we can decide to change our goals and plans. And this kind of decision cannot be foreseen because the decision is our own free choice, a choice therefore that isn’t determined by other factors. Moreover, because we live in society with others, there’s necessarily interaction between people’s goals. Other people have different goals which interfere with our own goals. And because of their own goals, they often do not wish to cooperate with us or even actively oppose us.

There is therefore an uncertainty and unpredictability inherent in our goals. This seems to be an unavoidable fact of social life. An action causes reactions, and that is why the consequences of the action are often different from the ones we intend, expect, predict or desire. Consequences are often unknown beforehand, or at least uncertain. You never know if the result of your action matches your intentions, if you will reach your goal and if things turn out as planned, as foreseen, as initially desired.

That is also why you cannot and should not be held legally or criminally responsible for all the possible consequences or results of your actions. Only for those consequence which could reasonably have been foreseen. Part of the legal definition of a mentally ill person and one of the reasons why such a person’s criminal actions should be punished in a different way (if at all) is this person’s inability to judge the consequences of his or her actions.

Reality often does not live up to expectations. Events are not always anticipated events. Many events escape the power of those who have initiated them or wish to guide them.

“Siramnes the Persian replied to those who were amazed that his enterprises turned out so badly, seeing that his projects were so wise, by saying that he alone was master of his projects while Fortune was mistress of the outcome of his enterprises . . . What he undertakes is vain if a man should presume to embrace both causes and consequences and to lead the progress of his action by the hand”. Michel de Montaigne

We all have the experience that the future is not completely determined by the will of an individual or a group. The unexpected and unwanted is part of social history because history, and even many different parts of history – many “stories” – are the result of both action and reaction, of a game of action and reaction over which no one has complete control. This is the inevitable result of the plurality of social life. Demanding prediction and predictability – as is now done of economists – means neglecting plurality. Only in the absence of plurality can predictability be conceived, because only when there is one goal will there be no action and reaction.

Hannah Arendt has lambasted the equation between history and production. History is not made by man in the sense that an artifact, a cultural object or a technological application of scientific knowledge is made by man. It is not written beforehand like a blueprint or a production procedure. History, and every social story involving different actors, is written afterwards, in retrospection, and often not even by those who act in it but by an outsider. Everybody is the author of his own actions or reactions, but not of the complete story. The complete story – all interconnecting actions, reactions and consequences – becomes clear only when it is more or less finished, afterwards, when we can know how it was and what the reactions and consequences have been.

In the words of Hegel: the owl of Minerva, the symbol of wisdom, only flies out at dusk. The actor, contrary to the author, looks forward or better tries to look forward, and by definition knows less than the author of history. It was Kierkegaard who said that life can only be understood backwards, although it must be lived forwards.

Of course, history is not entirely unpredictable. We can guess. We can try, on the basis of the past, to identify some trends, patterns, regularities etc., and hope that they will hold for the future. Some guesses are better than others. Also, contrary to the criticism of Arendt, there is sometimes creation or “production” in history. Some actions do not encounter reaction and unfold as planned beforehand. These stories do not result from the game of action and reaction or from a plurality of separate and contradictory desires. They result from one desire and one goal. In some instances, people have a goal, a desire, and can realize it in a predictable and controlled manner, without or notwithstanding reactions. Life would not be worth living without such stories. Sometimes, people have a grip on the future. Politics is also impossible without a consensus on a purpose.

Suppose we think of ruling as being an exercise of power. For someone to exercise power is for their wishes to be effective. So someone is a ruler if it is the case that what happens happens because it is in accordance with their wishes. If, then, the people rule, this means that the people’s wishes are effective. (source

Somebody who is in power has a desire and realizes this desire. Otherwise it cannot be said that this person has power.

However, such kind predictability is probably the exception. History in its entirety and many parts of it can never be a creation, a simple purpose or the realization of a plan, a process or an evolution. History and most of its parts are the result of different and contradictory actions, reactions, desires and goals interfering with each other. Therefore, the idea of progress has to be limited. There may be fields of progress, but these evolutions are counteracted by reactions and other evolutions. Progress is never global or certain or predictable.

Not even one’s personal history is written or produced entirely by the person in question. And since our identity is perhaps the same thing as our personal history, our identity is not entirely the product of our own actions and decisions either. It is also the product of the things that happened to us and of the actions and reactions of others. We act, we strive to achieve goals, but there is a plurality of goals. The single, uniform goal, either in overall history (e.g. the overall goal of progress, communism or democracy dragging people along) or in many small or personal histories, is a pipe dream. Plurality results in things happening to us, things that we cannot control or foresee but which shape our lives, histories and personalities irrespective of our will.

History and most of its parts are not made by man, but they are not made by any other force either. I do not believe that God or Fate or the Economy or whatever makes history. History is to a large extent if not entirely the result of consciously chosen human actions and reactions. Consequently, people remain responsible for their actions, although not for all the consequences of their actions. They cannot claim that things happen because God or Nature (the genes for example) or Race or Culture (the unconscious national character) or Fate or whatever wants these things to happen or causes people to make them happen. People are relatively free. Most of their actions are not caused by some necessary force outside of them (or inside of them, for that matter, but beyond their power).

In order to remedy the defects of plurality – uncertainty, unpredictability and the powerlessness which this implies – one can try to eliminate plurality. Reactions and contradictions are excluded (and maybe “reactionaries” are persecuted) and all actions are focused on one and the same goal. Instead of the plurality of individual projects, we get a collective project. Individuality disappears.

“Le groupe en fusion” or “la volonté générale” implies that the individual individual is absorbed by the community. Everybody’s individual goals or desires must be harmonized with the collective one. Every action is forced into a coherent whole. The individual will is discredited. It is egoistic, focused on the short term, subjective, reactionary; it is useless and powerless because of the contradictions with other individual wills; or it is futile because contrary to the trend of History or the forces of Biology etc. If the individual is only a part of a whole, then he can be sacrificed for the whole. Individual rights become less important. At best, people are interchangeable, specimen instead of unique individuals; at worst, they are eliminated.

As many successful dictators have shown, eliminating reaction will indeed make it possible to control the future, to remain in control of an action, to enforce certain consequences, to realize goals, to make history like an artifact or to write history like a novel. It makes it possible to know the future, to know how things will turn out, to put a clear purpose in history, a plan which unfolds exactly as it was contemplated beforehand, a clean process rather than a volatile and uncertain multi-directional chaos. If there are no reactions and only one general will, then all actions go in the same direction and toward the same goal, and only nature or inactivity can thwart our plans (hence the dictatorial need for “mobilization”). We can with much greater certainty predict the future and the realization of our plans. The expected consequences are the actual consequences. We are masters of the consequences and we control the future.

This has always been the great selling point of authoritarian government. Compared to the chaos of democracy, the “strong man” can be very efficient. I’ve refuted this here. Democracy indeed doesn’t offer predictability, precisely because it guarantees plurality. The common will of a democratic majority can be undone by reactions of the minority, by the reactions of a future majority, or by some outside force. Predictability requires unanimity rather than majority, if possible global unanimity (dictatorships are therefore often imperialistic). Only a unanimous group can have power as it was described above: power means that wishes are effective, that things happen because they are in accordance with wishes. A majority can only have limited effectiveness, effectiveness limited by future majorities and by the reactions of minorities (in a democracy, minorities have some power, e.g. their rights cannot be violated by the will of the majority). Of course, unanimity is often obtained by force: reactions are forcibly suppressed because unanimity of convictions and goals is a rare occurrence. Force then produces power, although Arendt, again, has something to say about the confusion between these two terms.

A democracy does not try to suppress or eliminate reactions and contradictions. On the contrary, it fosters them. But it does try to ritualize and soften them, take the violence out of them, because they can take a nasty turn. Democracy needs conflicts, opposition, criticism, plurality etc. It is the game of action and reaction institutionalized and accepted as an inevitable fact of life in a community with different people and different goals. It cannot exist without events initiated by some and reacted upon by others. Hence democracy embraces uncertainty and unpredictability, however unpopular and perhaps ineffective this may be.

However, democracy also needs some level of predictability. It wants to be certain of its own survival and that is why it accepts only opposition within the system. It tries to eliminate anti-democratic reaction and opposition and asks people to promise respect for democratic values. Promises produce some certainty, a certainty and predictability based on freedom and free choice, which is not the case with certainty produced by the elimination of reaction. In a tyranny, everybody is certain that the regime will survive because nobody can or dares to react, or because indoctrination and propaganda have conditioned people in such a way that they do not even contemplate reaction. In a democracy, there is relative certainty because enough people keep their promise to respect the regime. This is the rationale behind the so-called “pledges of allegiance”. Promises are based on freedom, because a promise is only valid if it is voluntary.

Of course, this does not mean that everything in a democracy is free and voluntary. Although a democracy wants to limit coercion as much as possible and tries to secure its future by way of promises, education, persuasion, judicial review etc., there has to be some coercion because some people will not make or keep the necessary promises. There will be coercion, not of promises, but of actions. Promises cannot be coerced. Coercion in this case is the use of force against anti-democratic reaction.

An anti-democratic reaction is a contradiction in terms. It is because of democracy that reaction is possible. If reaction becomes an activity without risk, as is the case in a democracy, then reaction blossoms. Reacting against democracy is not only ungrateful, it is self-destructive.

But apart from this predictability of the institutions necessary for unpredictable political life, it is clear that the focus of democracy is on conflict, contradictions, opposition, reactions, unpredictability and uncertainty. Those who want to limit the game of action and reaction are necessarily anti-democratic. More freedom and more democracy means more reaction, more plurality, more kinds of actions which can interfere with each other, and therefore more unpredictability, less control over the future, and less certainty that goals will be achieved. Democracy does not only accept the game of action and reaction as an inevitable fact of social life. It also promotes this game, as long as it remains a game and does not become violent or a threat to democracy or to people’s rights and freedom.

Counter-intuitively, freedom does not always go hand in hand with control, although on an individual level this may be the rule. An individual is free if he controls his life. But a society is not free if people try to control consequences and the future. Unpredictability does not mean that people are not free to choose their future. They are just not certain that the future will be the one they have chosen. It’s when they want this certainty that they are tempted to destroy the freedom of society. When people want to be certain of their goals and want to be in control – when, in other words, they want to be free – they need to eliminate interference from other people and other goals. Other people with other goals become a nuisance, and their freedom has to be sacrificed. However, this may not result in control. It is far from certain that the elimination of reaction is possible. It may be counterproductive and create more reaction than initially anticipated. Plurality is probably unavoidable.