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 The Guardian
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 RaNdoM
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The Guardian
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RaNdoM
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I found George Smith's article on the death penalty in your November, 1996, issue interesting and provocative. As with other work of his I have read, it raised some important issues. Unfortunately, I ultimately found it unsatisfying and unconvincing. While I would prefer a dynamic discussion to clarify points, I will utilize this forum to raise objections to his argument as I understand them. I apologize in advance for any misinterpretations of his ideas I have made.
The crux of his argument against the legitimacy of capital punishment seems to be that the right to life is inalienable and thus "cannot be transferred, surrendered, or forfeited." By this, he apparently means that no conditions whatsoever can be put upon this right; that to specify any such conditions would be to render those inalienable rights subordinate to another standard and thus demote one's right to life to a secondary and unstable position in our view of justice.
The problem with this viewpoint, however, is that it focuses almost exclusively on attempting to define the adjective "inalienable" and very little on the noun "rights." While he does state he does not have space to defend a theory of natural rights, I believe he errs in not offering a definition of "rights," at all. If he were to do so, I believe that at least some of this dilemma would be resolved.
In the college communication course I teach, I present a discovery theory of concept formation. In preparing for that discussion, I always ask my students to define certain abstract words, among them "freedom." At least a few students always state that if any constraints are placed upon you (i.e., any "conditions"), then you cannot really be "free." This argument strikes me as analogous to the one Mr. Smith advances. I also believe each analysis is incorrect for the same reason.
I believe all knowledge is contextual, and thus, so must be our definitions and understanding of the concepts we use. The students mentioned above commit the error of accepting the dogmatic principle that unless some principle is applicable in any and all conceivable or possible circumstances, then the principle is simply wrong or (accepting the skeptic's reverse side of the coin) relative and changing from situation to situation. For me, "freedom" means the absence of physical coercion (directly or indirectly). As long as that condition is meant, I am free. Contrary to the collectivistic view of freedom, I am free regardless of whether I can do or say any particular thing. And, of course, by coercion or threat of violence, I mean from other human beings. "Freedom" from the vissitudes of nature is impossible. "Freedom" from the predations of animals or the effects of natural disasters or my own failures has nothing to do with the kind of freedom we are discussing here, i.e., political and social freedom.
Given the context as specified above, my right to freedom is absolute, i.e., contextually absolute, inviolable, and inalienable. That does not mean that no one can violate or deny me my freedom, of course, but only that even if unjustly incarcerated or detained or regulated or etc., I still absolutely retain that right. And, as Mr. Smith pointed out in his discussion of universality and reciprocity, every other human has the same right to freedom, i.e., the absence of coercion. If I try to maintain that I have the right to freedom but no one else does, then, of course, the concept loses its meaning. It would be an attempt to maintain a contradiction to say that I can coerce other people (violating their right to freedom) but that they must respect my right to freedom from coercion in any and all circumstances lest they deny the very idea of a universal and reciprocal "right to freedom."
It is this latter position that Mr. Smith seems to be advancing.
Whether one is discussing a right to freedom or a right to one's own life or any other right, one must first define what a "right" is. Rand defines a right as "a moral principle defining and sanctioning a man's freedom of action in a social context." (From my reading of their work, Machan, Rasmussen, and den Uyl appear to accept this in its overall thrust, though this does not imply they accept my views on capital punishment.)
If one interacted with no other people, one's "right to life" (or any other assertion of a right) would be moot. It is this use of a social context or condition in thinking about rights that Mr. Smith seems to abandon or drop. In my discussion of freedom above, if I step outside the context which defines my right to freedom, then I can hardly appeal to that contextually defined freedom to deny others the right to restrain me from using coercion.
Placing rights in a context (a condition) does not obviate them. Indeed, the concept of rights becomes meaningless if we try to tear it from its context, i.e., its function in a social environment. If we invoke rights in a non-social context, the effort is pointless. If we invoke them in circumstances that contradict their basis, the effort results in a contradiction. The "standard" to be used as a condition for defining the concept of "the right to one's life" is looking at the conditions necessary to live one's life...in a social context. In a nonsocial state, one can do anything one wants with or to one's life (that does not violate the laws of nature). In that situation, one appeals only to ethics/morality for a guideline. In a social state, however, the question becomes what principles should one use to guide one's actions. It is then and only then that the concept of "rights" becomes relevant (and necessary), i.e., how can one apply one's ethics to a social setting?
If human life is the basis for "defining and sanctioning one's freedom of action in a social context," one must then specify what actions are necessary for sustaining that life and asserting that right. The condition which satisfies that requirement specifies that one must have the "freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life..." (Rand) By the principles of universality and reciprocity, those actions must not restrict other people from acting upon their own judgment, for their own goals, and by their own voluntary, uncoerced choice. Thus, the standard which places conditions upon one's inalienable right to life is the very nature of what it means (what is required) to live as a rational, moral human being...in a social state.
If a person steps outside of that defining context, then the concept of "a right to life" no longer applies to him. One's right to life is not some kind of mystical, out-of-context essence that transcends and trumps any and all circumstances. (Compare this discussion with the out-of-context dogmatists and skeptics who claim that "certainty" in knowledge must be eternally never-changing or it is impossible.) Indeed, in Mr. Smith's own discussion of self-defense, he seems to accept (perhaps) the validity of immediate self-defense, which is itself a condition or limit on the other's "right" to life. Yet if self-defense is justifiable, then why can one not also specify a condition under which capital punishment is justifiable, i.e., permits one to limit another's "right to life"? If Mr. Smith rejects this as a "back door" opening for capital punishment, then how would he suggest a person fearing for his life respond to an immediate threat? If it is always wrong to kill Murphy via capital punishment, I would like to see Mr. Smith's argument justifying killing him in self-defense (and presumably from Smith's position, thus violating Murphy's right to life). I would also like something more definite from Mr. Smith explaining exactly how we should deal with first-degree murderers.
Given the proper definition of "right to life," I have no ethical (philosophical) qualms about capital punishment. I could (perhaps), however, accept its abolition from an epistemological (legal) position, i.e., that we might through error kill the wrong individual. I agree with Smith that deterrence may be a favorable secondary result of capital punishment but cannot justify it. I also agree (with Bidinotto...and Smith?) that capital punishment should be utilized (if used at all) in the interests of justice for individual victims and not for some abstract "social" good. I agree with Smith that "we literally cannot alienate our moral agency," but I believe we can alienate our "right to life" when we attempt to act outside the parameters of actions necessary for the life of a conceptual, moral being. One can choose to act counter to these requirements even if we cannot choose to have someone else think for us. Contra Smith, I believe I am defending my moral principles when I defend the morality (if not necessarily the practice) of capital punishment. The dividing line determining when one particular person retains his right to life and when he forfeits it is objectively derived from the very nature of (human) life and its requirements. One needs no permission to take any action consonant with that life...and cannot legitimately ask for such permission or have a right to act in contradiction to it. As Rand said, "Within the sphere of your own rights, your freedom is absolute." For "freedom," one could substitute "right to life" and still be correct.
I believe Smith's posited "dilemma" on p. 48 (and, indeed, the thrust of his whole argument) is an example of false alternatives arising from dropping the context of what "rights" and "inalienable" mean. He is correct that we cannot "choose when we will or will not respect inalienable rights." We can, however, choose how properly to define and understand them.
As for the slavery question, a preliminary consideration suggests a misapplication of the concept "property." Property, per se, results from production, i.e., the application of human knowledge and effort to the resources available to us in order to create something of value. This process simply does not apply to human beings. Even if a murderer loses his right to life, it is a non sequitur to maintain that he must thus become "property." "Slavery" defined as "human property" is thus an invalid concept. You might, perhaps, treat someone as though he were property, but that would not make him property. (Compare this with the riddle, "If you considered a tail to be a leg, how many legs would a donkey have?" Answer: "Four. Pretending a tail is a leg does not make it so.") By Smith's apparent usage, a prisoner who is forced to do any labor he would not otherwise choose to do is a "slave." I reject that usage. A prisoner is not a slave. A murderer who is a prisoner who kills again does not lose his moral culpability for the second murder. Losing the "right to one's life" does not imply that one can "alienate" one's moral agency and become a "nonmoral being" (see the distinction between the two made above; only the latter would entail a contradiction ). Though "slavery" can be defined as describing how certain people illegitimately and coercively limit the actions or steal the production of other noncoercive individuals, it should not be applied to a murderer (or any criminal) in a prison...nor need a murderer "be enslaved before he can be killed."
Killing a murderer is not much restitution for the surviving loved ones. That action can never bring back the dead victim. Even if such a miracle could occur, how to compensate for the emotional trauma suffered? On a lesser level, something similar could be said about restitution for property crimes. Replacing my stolen car hardly "makes us even." That material replacement does not wipe out my lost time, emotional distress, or any lingering sense of fear and distrust. But simply because complete restitution is not possible, that does not imply we should not strive for as much restitution that we can achieve. Moral retribution would also be appropriately added to the mix, i.e., reflecting back to the criminal some punishment appropriate to the level of damage he inflicted upon the victim; not letting him "get away with it." This might be capital punishment or maybe life in prison. Perhaps the victim's family should decide or, at least, help to do so. How precisely restitution is to be achieved in a case of murder is a problem for the philosophy of law. Not being able at this time to define the precise nature of practical restitution in the case of murder does not mean it is impossible or undesirable.
I thank Mr. Smith for his stimulating article even though I reject his argument.
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