The death penalty is, as we say, “the ultimate penalty.” Both its friends and foes alike acknowledge this.
Traditionally, the debate over capital punishment has involved the notions of deterrence and retribution.
Those proponents of capital punishment who are of a utilitarian bent argue that the ultimate penalty is necessary in order to deter others from committing capital offenses. Their rivals, on the other hand, contend that the death penalty, at least in practice, has failed to fulfill this function.
But by accepting the utilitarian premise that actions are right or wrong depending on their consequences, the death penalty’s opponents have walked into a trap. If the death penalty can be shown to deter, they implicitly concede, then it would be permissible. Yet while the current administration of capital punishment might make it difficult to substantiate the argument from general deterrence, the argument from specific deterrence encounters no such obstacles. In other words, the proponent of the death penalty responds, even if it can’t be proven that the death penalty deters prospective offenders, it is certain that it deters the offenders themselves from repeating their offenses.
The utilitarian enemy of the death penalty does indeed have a response waiting in the dock. Unfortunately for him, though, he can appropriate it only at the expense of abandoning his utilitarianism.
In the final analysis, he can say, the death penalty is not about deterrence. As the great philosopher Immanuel Kant famously said, it is never permissible to use people merely as a means to an end. However, regardless of the circumstances or the issue, this is exactly what a utilitarian sensibility demands.
This line, though, doesn’t promise to be particularly fruitful for the opponent of the death penalty, for it was Kant’s vehement rejection of utilitarianism that provoked him to support capital punishment. Retributive justice, Kant asserted, requires that all murderers die.
Justice is about giving people their just desserts. In putting murderers to death, Kant argued, we affirm their personhood—their moral standing as “ends,” not “mere means”—by giving them what they deserve. Even if the death penalty deterred no one, even if with each execution the murder rate increased, justice would still demand the execution of murderers.
There are, of course, other considerations that have been invoked against the death penalty.
For instance, it may be argued that while ideally Kant is right and murderers do deserve death, in the real world, we should still eliminate capital punishment on the prudential ground that innocents may be mistakenly executed. Though not without some plausibility, DNA testing and a host of legal safeguards against wrongful conviction conspire to render this argument unconvincing.
It has also been said that the death penalty is “racist” because blacks are executed in disproportionately higher numbers than whites. Now, this position is ridiculous for a variety of reasons. At present, we need only consider that, as Ernest van den Haag observed decades ago, the distribution of those being punished (or rewarded) has absolutely no bearing upon the moral worth of the punishment (or reward) itself.
The death penalty is indeed just. That is to say that Kant is correct: it is just because of its retributive function.
There are, however, two points to Kant’s position that I would like to add.
First, while only those specific individuals should be executed who deserve to be executed, we ought to maintain the death penalty because of the critical social function—the utilitarian function—that it serves. Whether capital punishment deters prospective offenders from becoming actual offenders is not at issue here. In fact, I am invoking neither the argument from general deterrence nor the argument from specific deterrence.
Rather, in a society like our own, a society defined by its commitment to the ideal of the rule of law, the ultimate penalty must remain available. Citizens (as opposed to “subjects”), are constituted by, and related in terms of, the law. Infractions against the law, then, must be punished—quickly and decisively.
And the most egregious transgressions of the law must be met with the most exacting of penalties.
This brings me to my second point.
Kant’s position—shared by most of its contemporary proponents—that the death penalty should be reserved only for murderers is inadequate. This reasoning fuels the absurd notion that there should be some physical parity between a crime and its punishment. Its objectors have certainly read it this way. If a person who takes a life deserves to have his life taken in return, they reply, then arsonists deserve to have their property burned, torturers deserve to be tortured, rapists deserve to be raped, etc.
Murderers deserve the ultimate penalty, yes, but not because there is some material equivalence between murder and execution. It is, rather, the moral seriousness, the gravity, of murder that demands the death penalty. But there are other crimes whose gravity is comparable to that of murder. To these crimes, death is a fitting response.
For an association like our own, a civil association held together by law, to dispense with the ultimate penalty is for it to take the first step toward suicide.
Jack Kerwick, Ph.D.
Connecticut just became the 17th state in the union to outlaw capital punishment. It now joins the company of such illustrious former colonies as my own home state,New Jersey.
This is a tragic turn of affairs.
Call me quaint, but among those figures from the past that I would love to see resurrected, and with a vengeance, is that of the dreaded “Hangman.” More so—significantly more so—than anyone else, it is he who had proven to be the most trusted and effective custodian of our liberties.
Lest I sound morbid, just consider that the Soldier is routinely thanked by his compatriots for “his service” to his country. Yet unlike the Hangman, the Soldier slaughters, not criminals, but other men who are serving their countries. These men may be as willing as is he to provide this service, or they may be conscripted. In either case, though, they are not outlaws. And although it is practically inescapable that with each war he prosecutes, the Soldier, however inadvertently, will wind up extinguishing the lives of non-combatants while causing incalculable amounts of structural damage, we still lavish praise upon him.
We erect statues in his honor, conduct reenactments of famous battles, and romanticize his exploits in cinema and television.
And we do this all for the sake of thanking him for “keeping us safe” by “defending our liberty.”
The Hangman, in contrast, targets for death only those who have been convicted of the most egregious of offenses. The concept of “collateral damage” has no application in his enterprise, for his objective is not to wreak widespread havoc but to distribute the ultimate punishment to those who have been found deserving of it. It is with the utmost care and precision that he conducts himself.
Still, he is despised while the Soldier is praised.
This is ironic.
The Criminal or the Outlaw poses a far greater threat to our liberties than any posed by the Terrorist or the Enemy Combatant. The reason for this is not difficult to discern.
The liberty that we Americans have grown to enjoy is not some universal abstraction. It is, rather, the product of law. Laws specify the obligations or duties of each citizen to another. For example, my right to freedom of association is really nothing more or less than the duty of every other citizen to refrain from preventing me from exercising this right. It is also my duty to respect the right of my fellow citizens to do the same.
The citizen is a composition of laws. As laws are weakened, so is the citizen. In the absence of laws, there is no citizen.
From this premise, a few inferences can be drawn.
First, since there can be no law without a law giver, and since government is, if not necessarily a law giver, a law enactor, there is a symbiotic relationship between citizen and government. There cannot be one without the other.
Second, since there is an inseparable connection between government and citizen, it is to the person qua citizen, and not in terms of any other persona, that government speaks.
So, the Florida prosecutor, Angela Corey, who charged George Zimmerman with second degree murder for the shooting death of Trayvon Martin, betrays an alarming ignorance of her office when she declares that she is seeking “justice for Trayvon.” Whatever prejudices accompany the other roles in which life cast Corey, insofar as she is an agent of the government, she is expected to see only citizens, each of whom is indistinguishable from all of the others.
Justice, as they say, is blind. The government exists, not to avenge this person or that, but to preserve the integrity of the law, for without the law, all citizens perish.
Finally, it is precisely because the very existence of each citizen hinges upon the law that all praise is due to the Hangman. Every single one of the Criminal’s acts, however small or large, undermines the law. Every criminal act is an attack against every single citizen.
This, of course, doesn’t mean that every act is worthy of death. But inasmuch as the death penalty remains an option for the most heinous of transgressions, the citizen, by way of his government, sends the unmistakable message that he will preserve his existence at all costs. And this, in turn, is but another way of saying that his respect for the law is such that he is willing to extirpate those of his fellow citizens who would destroy it—and, with it, the citizen himself.
Jack Kerwick, Ph.D.
One can only hope that all of this talk over the controversial issue of “the liberty” of homosexuals to “marry” will get us to thinking a little harder about marriage and liberty.
Marriage is a more vulnerable institution today than it has ever been in the past, it is true. Yet I don’t think that this has much if anything to do with recent demands for “gay marriage.” In fact, if the demand for radically reshaping marriage so as to accommodate homosexuals can legitimately be said to signal a deterioration of marriage, then it is but the latest such signal, the culmination, perhaps, of a complex of marriage-imperiling trends that Western societies have long permitted.
Divorce and non-marital sex of various forms, to say nothing of illegitimacy, are just some of the things that we have been allowing long before anyone heard of “gay marriage.”
In an order of liberty like the United States of America was originally intended to be, perhaps it is impossible for us not to allow such conduct. Yet there is all of the difference in the world between refusing to criminalize divorce and the rest, on the one hand, and, on the other, romanticizing these activities. In fact, it is precisely for the sake of conserving our liberty that we must take care to conserve the cultural prerequisites—like marriage and family—undergirding it.
And what this means, at the very least, is that we must recognize conduct that threatens those prerequisites for the poisons that they are.
But far from sounding the alarm on these kinds of actions, we not only normalize them; we romanticize them (In some instances, like that of “the romance” genre, we literally romanticize them). From the Hollywood celebrity to the person next door, Americans (and Westerners) from all walks of life have acquiesced in, when they haven’t actively encouraged, trends that have considerably weakened marriage.
Most of these trends are the legacy of “the sexual revolution.” Some of them, like the popular notions of “falling in love” and “living happily ever after,” and the idea that marriage is a “contract” (as opposed to, say, a sacred covenant) can be traced back much further.
Those on the political right are disposed to blame their opponents on the other side of the ideological aisle for marriage’s reversals of fortune. Indeed, the leftist deserves no small share of blame. After all, the so-called “sexual revolution” was devised almost single handedly by the leftist. Yet, as has been said, it has been quite some time since even the temperamentally “conservative’ has acclimated himself to the mores advanced by the revolution. Furthermore, only by the lights of a short-sighted view can marriage be said to have been sailing smoothly until the late 1960’s.
Actually, it is not a stretch to think that a certain understanding of “classical liberalism” or “libertarianism” is guilty of facilitating the decline of marriage. The cardinal libertarian principle is known as “the Harm (or No Harm) principle.” For many a libertarian, this principle is sacrosanct. Back in the nineteenth century, the English philosopher John S. Mill articulated what has since become a famous statement of it. In his essay, On Liberty, Mill wrote that “the sole end for which mankind are warranted individually or collectively in interfering with the liberty of action of any of their number is self-protection [.]” In other words, “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others” (emphases added).
If a person is engaged in self-destructive conduct, and if he is an adult of sound mind, then he must be left unmolested, free to live in accordance with his own folly.
The lover of liberty can sympathize with the thrust of the Harm principle. But once the general truth encapsulated by this principle is elevated into an abstract and absolute doctrine, it becomes self-defeating. As Mill says, the Harm principle is “to govern absolutely the dealings of society with the individual in the way of compulsion or control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion” (emphasis added).
Notice, while the inviolability of the individual requires legislators to refrain from enacting laws that undermine his self-chosen engagements, it requires as well as that his fellow citizens refrain from judging him harshly! Nor is this an idiosyncrasy on Mill’s part: because the concept of “harm” is not self-explanatory, Mill is simply drawing out the reasoning of the Harm principle to its logical end.
To put it another way, once individuality—a historically and culturally-specific disposition—is exchanged in favor of the creed of individualism, the result is not more, but less freedom. Once the individual is free from the moral constraints imposed upon him by way of the judgments of his fellows, the only thing left to control him is the government. So, more “individualism” equals more government.
And this is the problem with individualism (as opposed to individuality). By focusing on the individual in abstraction from the complex of historical and cultural contingencies that make him the concrete being that he is, we license all manner of conduct. Yet we don’t appreciate that much of this conduct is corrosive of just that delicate balance of institutions that gave rise to our individuality to begin with.
Jack Kerwick, Ph.D.
The partisan weighing in on the issue of so-called “gay marriage” has one simple choice to make. On the one hand, he can choose to either join the consensus of the vast majority of people who have ever lived by choosing to preserve the exclusively heterosexual character of marriage. On the other hand, he can choose to cast his vote in favor of the “enlightened” preferences of a minority of his contemporaries who seek to re-imagine marriage by transforming it into a bi-sexual institution.
Being a relatively low risk taker, my money is on the wisdom of the species.
Many of the most outspoken critics of “gay marriage” are certain that the decision to permit gays to “marry” promises to undermine marriage. I do not share their certitude.
So-called “gay marriage” may weaken institutional marriage—or it may not. The point, though, is that precisely because we cannot know for sure how the adoption of such a revolutionary, historically unprecedented measure like “gay marriage” will impact this hallowed, socially indispensable institution—or any other aspect of our lives—prudence and humility counsel us to submit to the teachings of our ancestors on this score.
Marriage, though of crucial import, is but one institution in a complex of institutions. This much we know for sure: a change as radical in nature as that of “gay marriage” most certainly will have an impact, not just on marriage, but upon the web of institutions of which marriage is a component. The very fabric of our culture will be altered—even if it is quite a while before we determine either the nature or even the existence of the alteration.
In the interests of fairness, however, it needs to be said that “gay marriage” does not appear as likely to deleteriously affect marriage and the family as other forms of conduct that we, as a society, have long since sanctioned. Moreover, because of these other trends, it seems to me that the case against “gay marriage” is itself on extremely perilous ground.
In a “state of nature”—a pre-political or pre-social condition—there would be no marriage. Marriage is a legal entity, a social institution. As such, it exists for the sake, not of procuring satisfactions for those who marry, but, rather, civilizing the married and their offspring.
In the past, marriage has been viewed almost exclusively as the means by which the species can be propagated and educated. As the early nineteenth century conservative theorist Louis de Bonald put the matter: “The production of man is the purpose of the relationship between the sexes; his conservation is the purpose of the relationship between the ages, which is to say that man and woman produce the child, and the father and mother conserve it.” And there is no doubt that the production and nurturance of children remain critical reasons for society’s need to preserve and strengthen marriage.
But in the past, in advance of marriage, there was no way to determine whether prospective spouses were capable of producing children. Today, obviously, there are. Among such methods is the now commonplace practice of pre-marital sex. Thus, not only have we long permitted non-marital sexual activity; for just as long, we have permitted marriage between couples who are either incapable of or unwilling to have children.
My point here is not to criticize either of these practices. Instead, I seek only to show that well before anyone ever dreamt up “gay marriage,” heterosexuals had done much to deprive the classical justification for marriage articulated by de Bonald of much of its force.
Of course, the argument that marriage is a great civilizing institution remains sound.
Marriage demands and encourages the cultivation of a host of virtues: honesty, fidelity, patience, forbearance, perseverance, temperance, humility, and, selflessness are some of the more salient human excellences that it promotes. Ideally, marriage should endure through sickness and health, better and worse.
And it should last until death.
But the ease with which we grant divorce and the frequency with which couples avail themselves of it has rendered this ideal of marriage that much more remote. For many, marriage has become but another relationship of convenience.
It becomes increasingly difficult to argue that “gay marriage” is impermissible while permitting pre-marital sex, illegitimate births, cohabitation, and no fault divorce. If “gay marriage” should be forbidden because it threatens to weaken marriage and the family, then pre-marital sex, illegitimacy, cohabitation, and divorce must be forbidden as well. In fact, inasmuch as homosexuals claim to want to marry, the latter activities appear to pose a much clearer and more imminent threat to marriage.
Conservatives in the past were well aware of this. Take the eighteenth century German thinker Justus Moser, for instance. Moser authored a brief essay entitled, On the Diminished Disgrace of Whores and Their Children in Our Day. In it, he writes that since “matrimony is always a highly important means to check vice and preserve virtue,” states must appropriate those measures that make this institution inviting while eschewing those that marginalize it.
This being so, “It is impolitic to give the children of whores the same honor as the legitimately born, since by so doing one destroys one of the strongest incentives for marriage.” Moser makes frequent references to “our ancestors, who were guided by experience rather than by theories [.]” Past generations stigmatized illegitimate children, not because the children themselves did anything that warranted unequal treatment, but because they sought “to reserve all honor and all civic benefits for matrimony, in order to encourage it.”
It is not my intention here to argue for or against “gay marriage.” Nor is it my intention to argue for or against the criminalization, or even stigmatization, of non-marital sex, divorce, illegitimacy, or anything else.
My objective is simpler than this: I want to bring to the reader’s attention the fact that the enemies of “gay marriage” must do better than they currently have if they want to sound convincing, for they have allowed the development of trends that weaken, not just traditional heterosexual marriage, but their own case for traditional, heterosexual marriage.
Jack Kerwick, Ph.D.