A RESPONSE TO THE HARVARD LAW JUSTICE FORUM at http://www.justiceharvard.org/index.php?option=com_content&view=article&id=11&Itemid=8
Other Web Sites: For Heavens Sake
A. The MORAL CASE FOR CAPITAL PUNISHMENT.
1. What Is MORALITY?
Is morality merely a set of absolute laws passed down to us by God as interpreted by an individual prophet and which we are required to follow throughout
all time regardless of our understanding of the reason for those laws? Is it really possible to be able to rely upon those laws dictated thousands of years
ago and which are based in precedence, but may not adequately cover all unanticipated situations?
Or is there something more to it that requires us to do a little more thinking and use the reasoning power God had given us?
I would hope for the later to hold true. Where it is comforting to have something to rely upon that has lasted thousands of years, it may not always fit the
situation with which we are confronted. So some times, we may find it necessary to update our morality to bring it current. Notice, I did not say it is necessary
to "reinvent" our morality. There is a big difference between updating and reinventing. "Updating" would seek to maintain a compatibility with the prior, where
"reinventing" would rub out the prior.
In order to determine the morality of an act, we must establish some premises about what morality is. These assumptions are:
a. "Morality" is temporal. It must deal specifically with the here and now, not in an after-life.
b. "Morality" must be based upon fairness, ie, "what's good for the goose is good for the gander". Selfishness is not an option.
c. "Morality" must concern itself with ethical behavior.
d. "Morality requires that the "Right of Consent" is a human principle which must not be violated.
"Consent" is the agreement to abide by a pre-determined set of rules and/or an agreement to allow a specific act to be engaged in or to be done.
Consent may be freely given explicitly either in writing or verbally. Consent may also be freely given implicitly as a result of one's own actions,
this "Implied Consent" being based upon the premise "Action speaks louder than words".
The operative word here is "freely". The forcible extraction of explicit consent is not allowed, unless the subject (from whom the consent is being extracted)
has previously given his implied consent.
Individual Consent vs Societal
The Rights Of Societal Consent may be seen as the sum total of all individual consent. Morality must be defined including both types of consent.
In most cases, it would seem that Societal Consent is the basis for law, and many times Societal Consent will override Individual Consent. Therefore,
many times you will hear a judgment disallowing an individuals or group's actions based upon those actions as having "NO SOCIAL REDEEMING VALUE".
Obviously, it must be recognized that religion will play a part in setting the society's standards.
But the ever present dangers of potential demagoguery and oligarchy must be carefully watched. One may proclaim that God will punish a society for
it's sins. However in the face of that, society must determine what is best for it's neighbors and children. Love and peace is to be the law for society, not
ritual, not narcissism, not doing everything a self proclaimed prophet says.
f. The dynamics of morality must be agreed upon (ie, consented to) by all of society.
It is unethical and therefore immoral to change the dynamics of morality without the consent of society at large.
g. The time limits of consent may be indefinite if the action had an irreversible effect.
To give one's consent either explicitly or implicitly through action and then retract one's consent after an act has been irreversibly committed is
to attempt to single-handedly change the dynamics of morality without the approval of society, and it is therefore unethical and immoral.
Is it fair, just, ethical, or moral for one to give their implied consent to the morality of an act (by virtue of their own actions) and then turn around and say
"Oh, but I've changed my mind"? Certainly we as humans are allowed to change our mind. But the question must be asked, what if our actions were
gravely irreversible and denied another of ever again exercising their "Right Of Consent"? Is this not grossly unfair and immoral?
Many religious believers would argue that murder is CATEGORICALLY and ABSOLUTELY wrong, meaning it is absolutely immoral.
They would say that it is solely up to God to take a human life and that society has no right to play God. They would argue that all humans have an
unconditional right to life. So let's examine the validity of that argument. To say that it is up to God to take a human life is to say that God interacts on a
daily basis with conditions here on earth, since people obviously die from natural causes everyday. But the resolution of differences between scientific fact
and Biblical teaching has resulted in the conclusion that random events, which are independent of God's will or man's will, are more prevalent than God's
interaction with the world. That being the case, God does not have a corner on the market when it comes to human death. On this basis, we contend that it is
not up to God, and never has been up to God, to be the sole taker human life. To tell the parent of a deceased child that it was God's will is one of the most
cruel things you can do, and at the same time it does not speak well of God. Presumably God has made us in His image and with a free will, ie, He has given
us the ability to make moral decisions. Therefore, it is not necessarily playing God to take another person's life, which is not to say that it is moral.
In addition, to say that we all have an unconditional right to life regardless or our disrespect for the rights of our fellow humans to live is IRRESPONSIBLE,
UNETHICAL, AND IMMORAL. There can be no such thing as unconditional morality. Morality is relative and conditional, not absolute and unconditional.
Our argument for the morality of Capital Punishment follows.
2. More on IMPLIED CONSENT.
We must now ask, what actions constitute implied consent. Who would disagree that any person who takes a perfectly healthy 1 year old child and chops
it up into little pieces has given his implied consent to have the same done to him? There are probably some who would disagree, but my hunch is there are
many more who would not disagree.
Ok. Let's take a more difficult scenario. A husband and wife are having a heated argument. The husband pulls out a gun. The wife says "I dare you. You're not
man enough". Did she give her consent or not? A dare is a challenge and an implied agreement with the action being dared. To dare (or even pay) someone to
kill someone else is an agreement with the morality of the act and therefore the giving of implied consent for one's self. If the wife says "I dare you. You're not
man enough", she has given her consent. If she says "How dare you? you're not man enough", then she has not given her consent.
3. The MORALITY OF MURDER.
a. The Religious Objection to killing: "God said, Thou Shalt Not Kill".
Reply: Every human being has killed something to survive whether they recognize it or not.
So "Thou shalt not kill" is not correct. "Thou shalt not murder" is more correct.
b. The Religious Objection to ALL Murder. "All murder is absolutely and categorically wrong".
Reply: When a sober accident occurs resulting in the unintended death of a victim, it is still murder.
But is it an immoral murder. "No" because their was no deliberate intent to take the victim's life.
So "Thou shalt not murder" is not correct. "Thou shalt not murder with intent " is more correct.
c. The Religious Objection to DELIBERATE Murder. "All deliberate murder is absolutely and categorically wrong".
Reply: Suicide is the DELIBERATE CONSENT to be murdered, either by one's own hand or someone else's hand.
It is deliberate murder.
One of the most highly recognized moral acts is for one to lay his life down on behalf of another. Whether or not we believe in Christ or God,
we all revere and honor our fallen heroes and immortalize them. They live on forever in our memory. And the fact is, they have all consented to
give their lives on our behalf which is in essence a form of morally accepted suicide.
Jesus DIED FOR YOU giving his consent to his own murder. Are you saying Jesus was immoral?
Oh I know, there is something stuck in your throat, ie, "It was God's will, not Jesus' will, that he should die".
Then consider this. We have 4 men stranded in a boat for weeks on the ocean without food or water. Knowing they will all die together if one
of them does not consent to being murdered, they elect to draw straws to determine who the unlucky fellow will be. Using the argument of
"God's will", is it any less of God's will when it is determined which one shall die by drawing straws? In effect, they subjected themselves
freely to God's will knowing they were each giving their consent to be murdered on behalf of the others. And when the other three took the
poor loser's life, they did so morally justified.
It is no different with Christ's murder, but with one exception.
By virtue of his agreement with God, Jesus gave his IMPLIED CONSENT. Does that mean it was an immoral murder?
The answer must be two-fold.
No, not from Jesus' and God's standpoint, because it was done on our behalf to convey a greater message.
And no, not from the standpoint of those who did not know what they were doing, because Jesus ask for their forgiveness.
But now here comes the slight difference (ie, the exception). There were those who DID KNOW THAT WHAT THEY WERE DOING WAS
FOR THEIR OWN SELFISH REASONS AND NOT FOR THE BENEFIT OF OTHERS, BUT DID NOT KNOW CHRIST WAS GIVING HIS
CONSENT. In their mind, they were taking his life without his consent. Therefore, their act of murder was immoral.
So one cannot say without impunity that to commit suicide is ABSOLUTELY IMMORAL.
The morality of suicide depends upon whether it is for someone else or for purely selfish reasons.
And for this reason, we cannot say that all murder is categorically wrong, because moral suicide is an exception. Furthermore, we can say that
"consent" plays a big roll in determining the morality of murder. We can say very specifically that when one consents to their own death and
it is done so on behalf of others, then it is moral.
So "Thou shalt not deliberately murder" is not correct.
"Thou shalt not deliberately murder for selfish reason and without consent" is more correct.
d. The CASE FOR SELF DEFENSE and PROTECTING OTHERS.
If one is being murderously attacked, the attacker is giving his agreement with the morality of the act he is committing. This means he is
giving his IMPLIED CONSENT for the same to be done to him. Therefore, one is justified in defending oneself and killing his attacker if
need be. His actions are morally correct.
The same holds true if one , in witnessing an attempted murder, kills the attacker. It is even more morally correct.
e . A RECAP OF THE MORALITY OF MURDER..
"Thou shalt not kill" is not correct. It is too simplistic. "Thou shalt not murder" is more correct.
"Thou shalt not murder" would be a more correct statement of moral law. But again this is too simplistic.
We must consider important factors surrounding a murder, one being "Was it accidental or on purpose?".
A purposeful or deliberate murder bears greater moral weight than an accidental murder.
So "Thou shalt not murder on purpose" would be even a more correct statement.
But yet another important factor to consider is that of the victim's consent.
Did the victim consent to his own death?
So "Thou shalt not murder on purpose without consent" is even a more correct statement.
And still yet another factor is motive for the purposeful murder.
Was it done for selfish gain (discounting self defense) or was it done on behalf of others?
So "Thou shalt not murder on purpose for selfish reason and without consent" is even a more correct statement.
There are many question to be answered in determining the morality of murder.
We have been talking about morality and consent which are "temporal" concepts dealing with the here and now, not in some after-life.
"Justice" might be defined as the punishment or penalty we must pay for our immoral acts. It is an after-the-fact concept. Something unfair has passed,
and we (society) must now appraise what should be done to restore fairness. Certainly, we are all familiar with the idea that God will punish evil
in the after life, which leaves us (society) out of the equation in meeting out punishment. We'll just leave it up to God to decide the consequences and
in the meantime let the immoral action continue unabated. There is something disingenuous in dismissing an immoral act by saying "It must be God's will".
Somehow, it not only tends to relieve one's self of all responsibility, but it can also be viewed as being complicit with evil.
Rather than wait for God to act , we can attempt to define what is morally permissible in prosecuting and punishing the violator. And when it comes to acts
of murder, we find ourselves faced with what appear to be conflicting moral dilemmas.
5. The MORALITY OF JUSTICE and the DILEMA OF CAPITAL PUNISHMENT.
If murder is generally morally wrong, how can we not be violating our own code of morality by taking another person's life?
The answer, as we will soon see, lies in IMPLIED CONSENT.
a. The Religious Objection to Capital Punishment : "Capital Punishment is morally wrong".
Reply: Capital Punishment is wrong when administered to someone who has not given their explicit or IMPLICIT CONSENT.
But when Capital Punishment is given to someone who has given their explicit or IRREVERSIBLE IMPLIED CONSENT and it is done so
on behalf of others, then it is morally justified.
When a person takes the life of another without their consent, then through their actions that person has agreed with the morality of
the act they committed and thereby given their IRREVERSIBLE IMPLIED CONSENT to have the same done to them. This is in part the
moral justification for Capital Punishment, the other part being that it is done so on behalf of the innocent victim, if not for the good
of society. A case in point is the Fort Hood Massacre. Obviously in the case of Hasan at Fort Hood, he had no intentions of remaining
alive, because he gave all his possessions away and did not act in self defense. His actions indicate that he has given his implied
b. The Religious Objection to Capital Punishment: "Capital Punishment is Revenge".
Reply: Execution based upon irreversible implied consent is not revenge. Misunderstanding of the difference between the two leads to feuds and wars.
Revenge is committed without the other's explicit or implicit consent. An execution is committed with the implied consent of the other.
c. Response to Other Religious Objections.
For those who object to this line of reasoning on the basis of Biblical moral law, I would refer you to Leviticus and Revelations 18-6.
Also refer to For Heavens Sake
d. Bill said: I once read this on a gas station men's room wall: " Why do people who kill people, kill people only to show that killing people is wrong
Response: And that is exactly the shallow mentality that threatens to undermine all law & why I bring the question up.
We both know that this mentality has been winning it's way in the world for some time now.
Even Hitler would not receive the death penalty today.
It is understandable that there can be confusion in interpreting the bible, because I have struggled with
similar questions, ie, the justice of killing. But my own practical experience has proven to me that without
capital punishment, there is a wider spread of suffering. I have spent years looking for the answers.
I think at last I have found the answer in the Bible, and it is that killing, not for yourself, but for the greater good, is justifiable.
It is not a "show". There is more to it than that, A LOT MORE.
We ask our soldiers to kill & risk being killed so we can live in comfort & close our eyes to the horrors of the world.
How can we ask them to protect us when we are not willing to protect them from being shot in the back?
We ask our tax payers to provide food, housing & shelter for murderers for the rest of their lives.
We ask families to go ahead & let murderers kill your family, but don't do anything about it.
No, it is not a show. It is the return of evil to evil, not the return of evil for evil, & therefore it is the suppression of evil.
There are those who would point to the faulty convictions that resulted in executing an innocent person.
They have a very valid point. But do you throw the baby out with the bath water?
The answer is, don't execute unless there is an absolute certainty of guilt.
With OJ, we have good reason to "believe" he did it, but not a certainty he did it.
With Hasan at Fort Hood, who could question that he did it?
I find it amusing that he is "Alleged" to have done it. What the hell, we don't know for sure????
To those who argue it is cruel & unusual, we ask "relative to what & who?"
We can carry that argument to the extreme, ie, incarceration is cruel & unusual.
And then we can argue that "finger pointing" is cruel & unusual for the sensitive murderer.
HOW STUPID DO YOU WANT TO GET?
There are those who argue that capital punishmentt is not a deterent to evil.
I say prove to me that it is not. Witness the increased violence & shooting of children.
Witness the pedifiles who have been release countless times only to repeat their molestations & murders.
Do we not have some morbid interest in the media portraying crimes every day?
It certainly keeps the viewer ratings up. We say "OMG, this or that is terrible".
But do we ever do anything about it when it's not happening to us?
If you have a cancer, you remove it from your body. That does not mean you take it out and play with it, as some show-boaters
would have us do.
But you are killing the cancer aren't you? Why? Because if you dont, then it is not good for the rest of your body & your body will die.
By the same token if you have a cancer in your society, you should not play nurse-maid to it.
You should eliminate it for the greater good of society & to minimize the eternal suffering that ensues.
Those who argue against this are more concerned about their own greater good & not the good for society.
They would rather not be bothered with victim family sufferings & protect their own beings against
a perceived immorality. I know because I was one of them at one time.
This incident is going to be the greatest test of Obama's presidency, ie, HOW WELL DOES A PRESIDENT SUPPORT HIS TROOPS.
G W Bush failed it miserably in the lesser matter of Ramos & Compean, the DEA agents who shot a drug runner & then were prosecuted.
Obama now has Fort Hood. We will find out shortly if he is worth his salt.
If he tries to stifle capital punishment, then he is worthless as a commander in chief.
Who the hell wants to fight for a country that does not back you up with justice?
Who the hell wants to fight for a country that lets illegals across the border?
Do we really have the will to be a country, or are we just playing word games?
And how it is answered will determine what our children & grandchildren can DEPEND UPON.
Is this to be a lawful society or is this to be a lawless society?
This is the real issue of our generation.
We wont be around much longer so it doesn't matter for us.
But it sure as hell matters for our children & grandchildren.
a. The CABIN BOY SCENARIO.
In the 1800's, a group of three men and one cabin boy set out on a boat trip. They ran into trouble, the boat sank, and the four were left in a lifeboat
far from any shore. They were without food or water. Days past, and the cabin boy began drinking the salt water against the warnings of the other three.
He became delirious and very weakened. Ultimately, the other three decided to take his life without his consent so that they might have nourishment.
They were ultimately rescued and subsequently tried for their deed. It is believed that they were pardoned.
The question is, was their act a moral one? Should they be subject to capital punishment or any punishment at all?
With respect to the cabin boy scenario, consent is a most important factor. Furthermore, when one murders another without their consent
and for selfish reason, then he has in effect given a defacto or implied consent. In other words, the participation in a murderous act upon another
without their consent is an agreement with the morality of the act and therefore a defacto agreement to allow the same act to be committed upon
one's self. The laws of cause and effect would be applicable.
It is possible that an individual or group may take the life of another without their consent believing in to be in the best interest of the victim.
However, it would seem apparent that any group action or decision is based upon the sum total of individual self-interest.
Therefore, by participating in such an act they would all be agreeing to the morality of the act and, therefore, implicitly be approving the same be
applied to them .
In the final analysis of the case of the cabin boy not giving his consent, I would have to equate this act to that of robbery or gang rape where a homicide
was also committed. Since all of the participants stood to gain by murdering the cabin boy, it must be presumed they were all acting out of self interest.
The question then becomes who do you hold responsible for what and how do you parse out the punishment. Because those defendants
who participated in the actual murder gave their implied consent to the morality of the act by virtue of the act itself, they essentially agreed to
allow the same act to be committed upon themselves.
Therefore, they could be held accountable for a capital offense. But because there are three persons involved, it would seem to take three lives on behalf
of one life would go against utilitarian theory. Certainly, the taking of only one life on behalf of the victim would seem justifiable. However, it might be argued
that the group acted as one body and therefore the value of three is no more than one. This would seem to contradict utilitarian theory. It is at this
point that a larger body, ie, society, must be brought into play. What produces the greatest good for the society at large in the future must be decided.
My conclusion then is that capital punishment is moral and justifiable when applied to cases of deliberate murder, excepting self defense, where the victim
did not give his consent.
b. The FAT MAN OFF THE BRIDGE SCENARIO.
This is an example of anticipation of an event. One might called it ANTICIPATORY HOMICIDE. It goes like this:
You're standing on a bridge over a train track next to an extremely fat man. You see several workers on the opposite of the bridge right in the middle of
the train track. And coming toward them from your side of the bridge is a run-away train. If you push the fat man off the bridge into the train track, you
have good reason to believe it will stop the train before it hits the workers. Is it justifiable or not?
First, what you must do is walk up to the man and ask "Have you ever killed someone without their consent?". If he says yes, problem solved, ie, you
shove him off the bridge. But if he says no, now you have a real problem.
This all may sound rather light hearted, but the fact is this is exactly what happens with policemen every day. Should they use deadly force or not? If they
kill a known murderer of non-consenting victim(s), then they are justified. But if they kill a would-be first time offender, then they've got a real problem.