Getting *Really* Medieval

Another person sides with the Ayatollah Khomeini instead of with James Madison:

Here we have James Madison, George Washington, and company:

Amendments to the Constitution VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Here we have Eugene Volokh:

Eugene Volokh: I am especially pleased that the killing... was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years.... I am being perfectly serious, by the way.... [S]ome forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness.... And, yes, I know this aligns me in this instance with the Iranian government.... [T]he punishment is proper because it's cruel.... I would therefore endorse amending the Cruel and Unusual Punishment Clause.... I think the Bill of Rights is generally a great idea, but I don't think it's holy writ handed down from on high....

[...]

A couple of people pointed out the risk of error.... [L]ocking up the wrong man for life isn't much better in my book than executing the wrong man.... I don't see it as much of an argument for a painless execution as opposed to a painful one...

Just don't let this guy near the carving knife at UCLA faculty dinners. That's what I'm saying.

Even the simple arguments--like that giving victims' relatives a leading place in the process increases the likelihood of error; or that if you let your rulers torture, you will soon find that you have rulers who like to torture--elude Volokh. There is a choice between Justice Coke and Judge Lynch, and we have chosen the Justice Coke side for very good reasons.

---

UPDATE: Eugene Volokh sees reason:

The Volokh Conspiracy - : Mark Kleiman's Extremely Sensible Post Has Persuaded Me that much as some monsters... deserve a deliberately painful death, our society's legal system (no matter what constitutional amendments there may be) can't provide it.

Comments

[Anderson]

The silence thus far of fellow Conspirators is especially interesting. Let's see if Orin Kerr follows Jacob Levy and Tyler Cowen off the island.

That said, I think blogs are places to toss out ideas that seem good at the time, and Volokh shouldn't be deemed a moral imbecile for doing so. Anyone who thinks about his children being the victim of a sex murderer must have at least some empathy with his feelings.

What remains to be seen is whether his post turns out to be his considered opinion ... and whether any of his co-bloggers have the guts to say "whoa, Eugene, gotta disagree with you there." *That* is what measures the decline of the VC.

[Anderson]

"His feelings" being Volokh's, not the sex murderer's. Damn pronouns! Where's an inflected language when you need one?

[enfant terrible]

Obviously, the writer's visceral impetus is much stronger than his intellect. We shouldn't criticize him for this shortcoming; it is not his fault that he was endowed with too much adrenaline and too little ratio. We should just recommend him a career more appropriate for his talents, such as a professional boxer or a meatpacking plant worker.

[alex]

The Volokh Conspiracy used to a regular read of mine, because I'm a law student. But you're absolutely right, the quality of writings, topics, and opinions is in steep decline over there.

[alkali]

I dunno. I disagree entirely with E.V.'s position, but I think he was fairly trying to provoke a discussion, which he has (see Yglesias and others). Given that the issue is mostly hypothetical, I won't slam E.V. for being candid.

[dogfacegeorge]

I'm giggling already thinking about what the Medium Lobster's take on this might be.

[enfant terrible]

"I won't slam E.V. for being candid"

That is very noble, but would you be consistent and apply the same standard to statements like "Blacks are intellectually and morally inferior to whites." or "Women are too emotionally unstable to be given leadership responsibilities."? There are lots of people who would simply be candid if they made those statements, and they would be sure to provoke discussion.

There must be some threshold at which one is simply declared an idiot.

[Anderson]

Maybe E.V. *is* the Medium Lobster.

[sm]

Some of you seem to be soft on this guy, perhaps because of previous interesting and sensible things he may have written. (I don't know him.) But this is someone who has considered one of the best clauses of an important and historic document and rejected it, and thus opted for barbarism over civilization.

Let's be honest here.

[Hamilton Lovecraft]

[L]ocking up the wrong man for life isn't much better in my book than executing the wrong man....

This is the line I find truly astounding. When the error is determined a year (or 5 or 10 or 20 years) after sentence is passed, there is a subtle, but distinct difference between the two.

[sm]

Separately, let me point out that parts of the clause in question (not the part about cruel and unusual punishment) go back to Magna Carta, a medieval document if there ever was one.

In the Middle Ages, people were cruelly punished. Some people insisted on due process, and others subverted it.
All these statements can be made about the present. Some people are "medieval" and some are not. Chronology and the retrospective naming of eras does not determine this behavior.

[marky]

This post of Volokh's reinforces my belief that Law professors are the stupidest people in academia---outside of the Ed. departments, of course. Not an original thought, I'm sure.

I guarantee there is no full professor at UCLA in the sciences who is as stupid as Volokh.

[FMguru]

{I am especially pleased that the killing... was a slow throttling, and was preceded by a flogging.}

Why do I suspect that Prof. Volokh's dry cleaning bills will be slightly higher than usual this month?

[John Emerson]

I think that a lot of conservative opinion is explainable by a compulsive, insensate need to offend liberals and disagree with them about everything.

Maybe, if we can convince Volokh that breathing air is a liberal idea, the savage little weasel will suffocate.

[marky]

Zizka,
You might be onto something .. but instead of air, why not emphasize that liberals are against mercury pollution. Maybe Volokh will swallow some mercury just to prove how stupid and wrong-headed liberals are.

[Tad Brennan]

Just when you think they're sore about Clinton, or the Sixties, or the New Deal, something like this comes along to show you the real battlelines: they want to roll back the Enlightenment.

Gary Wills op-ed (NYTimes, Nov. 3 '04) had it just right.

[dilbert dogbert]

At first I thought that some snarky bastard had hijacked E.V. blog so I went over and damn! there it was. Then I went back a bit later and it was still there.
I had been disapointed by E.V.'s decision not to comment on the torture in Iraq. I assumed that he was so horrified by it that he couldin't comment rationally. Now his cover has been blown. I also remember some comments in his blog, before the photos came out, about when one could torture. I did not connect the two but now I do. I think E.V. had some prior notice of the torture and was testing the waters. Maybe he was consulted on this by the pentagon?

[alkali]

enfant terrible writes apropos of me:

"... would you be consistent and apply the same standard to statements like 'Blacks are intellectually and morally inferior to whites.' or 'Women are too emotionally unstable to be given leadership responsibilities.'? There are lots of people who would simply be candid if they made those statements, and they would be sure to provoke discussion."

I thought about that. Your hypothetical statements are different in a couple of respects.

First, those hypothetical statements are based on claims of fact I believe to be clearly false. I can't say the same about E.V.'s suggestion. I disagree with it but not because I think he's wrong about some testable proposition of fact.

Second, I think it's nasty to say those hypothetical statements, because they hurt people's feelings. (That's not to say that people should be thrown in jail for saying those things; I'm saying that I, Random Blog Commentor, will think less of people who say those things.) Maybe someone's feelings are hurt by what E.V. had to say (Charlie Manson?) but it's not something I really worry about.

Third, I also think it's nasty to say those hypothetical statements because there is some risk, however small, that people will take action based on them -- a black person or a woman won't get a job, etc. Not the same with E.V.'s statement, which is pretty unlikely to ever be effective. If we as a society were really a hair's breadth away from torturing convicted criminals to death, I'd be more upset with people who advocated for that position.

Consider by analogy here the case of Peter Singer, the philosopher who argues that there's no moral case against killing newborns: anti-abortion types go crazy about him because they really think that killing newborns might be legalized. I can't imagine that ever happening, and I'm not worried about babies reading Peter Singer and feeling bad, so I can't bring myself to be too outraged about him.

[Jonathan Goldberg]

Tad:
For further evidence of "Just when you think they're sore about Clinton, or the Sixties, or the New Deal, something like this comes along to show you the real battlelines: they want to roll back the Enlightenment." check "Nino Scalia, by Grace of God Justice and Lord", posted by our host recently.

John:
"Maybe, if we can convince Volokh that breathing air is a liberal idea, the savage little weasel will suffocate." shows that while Hunter Thompson's body is a'mouldering in the grave, his spirit lives on. Just don't follow TOO closely in his footsteps.

The problem here is not merely that Volokh is a moral imbecile or that he's opting for barbarism or whatever. If you read his post you'll see that he's engaging in a sadistic fantasy- he really gets into the idea of "slow throttling" and the rest of it. This guy is a truly perverse little creep.

[rea]

". . . E.V.'s statement, which is pretty unlikely to ever be effective. If we as a society were really a hair's breadth away from torturing convicted criminals to death, I'd be more upset with people who advocated for that position."

With all due respect, you haven't been following the news much lately, have you? After all, we just confirmed an attorney general who thinks the Geneva Convention is "quaint." Our troops have been found to have tortured terrorist suspects to death in Afghanistan and Iraq. Etc., ad naseum, and I do mean nauseam.

[P O'Neill]

Is it Volokh's revenge on his critics that Atrios linking to Crooked Timber's critique of him was probably the final straw that caused CT to crash?

[Bruce Wilder]

I wish I shared alkali's trusting belief that this exhibition of Volokh's viscera was so certain to be inconsequential.

Considering the present Administration's penchant for torture of those not convicted, what stands in the way of torturing those, who have been convicted?

I connect Volokh's sentiments with those of Justice Scalia, as reported on http://www.firstthings.com/ftissues/ft0205/articles/scalia.html
and I see a startling, authoritarian potential for some really appalling, official behavior. Scalia seems to think God authorizes the State to kill criminals, while he blames the advent of democracy for undermining the death penalty; he even derides the current teaching of the Catholic Church as so much non-traditional, Enlightenment-inspired error. Oh, yeah, and "the Constitution is dead", didn't you know? An "enduring" corpse, where the meaning of "cruel" is forever a matter of 18th century "standards."

[sm]

It's great when your moral righteousness enables your sadistic fantasies! Great Witch Hunt, here we come!

[Lee A. Arnold]

Mr. Volokh is having what is called an "emotion," and he may find out that he has others, from time to time. He should be encouraged to investigate them further, because he will actually learn things about himself. And if he experiences enough, and applies himself, he may one day write something about them that is worth reading.

In a brief (and usually hopeless) aside, he should be forewarned that if he develops, he will come to a moment where he finds it quite impossible to move further when attending to the infliction of pain on others--but this is a fact about the spiritual path, and at the present stage, it is unlikely that Mr. Volokh can actually hear this. (We might try to point out to him that the Sufis--the higher path's general practitioners in the society under observation--follow the same precept: "negative emotions" are OUT, baby!)

Moving past the purple prose, Mr. Volokh touches upon the topic of serial killers. Since they appear to always go on, and never to end, I think he may be wrong about their incidence. I read somewhere that law enforcement believes there is at least a handful of them operating at any moment in the United States (I don't have the reference and I can't remember the exact estimate.) And psychopaths in general may make up one or two percent of our population, although not all of them are serial killers (but almost all of them can be dangerous); while perhaps not all sexual killers are genuine psychopaths. One unanswered question is, how are these conditions generated? Another question is, how do we go about finding out?

Some conservatives these days are turning back to the existence of "evil" as a general explanatory principle. We can go round and round on this of course, but it seems highly unlikely here, given the existence of so many specific and recurring traits of psychopathy (a good pop introduction--and a book almost everyone should read for their own protection!--is "Without Conscience" by Robert D. Hare.) A beginner's question for Mr. Volokh is, since psychopaths don't feel emotions or suffer, while some sexual killers already suffer in hell, exactly what purpose does a cruel death serve?

Finally, the part of Mr. Volokh's post I really don't understand in rational terms is a completely different part, which Hamilton Lovecraft mentioned above, as well: that Volokh is not persuaded to be against the death penalty, because of the possibility of convicting the wrong man! He writes, "That's a decent argument against the death penalty generally, though I'm not persuaded by it," although he does not elaborate. While I do not wish to put words in his mouth, the usual tack of people who are against this argument is to make a rather hopeless, partly-emotional/partly-statistical appeal, in claiming it is for the "greater good": "into every omelette, a few eggs must be broken."

Well then, we can only hope that Mr. Volokh himself is wrongly convicted, to understand exactly how little we care about fools! (Although he will, unless we can get him extraordinarily rendered, have a fairly painless execution.)

[JR]

Lee Arnold's interesting post points out something that's been implicit in many posts- that Volokh's comments are juvenile. Volokh shows himself to have no self-knowledge and no perception of how his presentation of self affects others. This is to say nothing of the casual ugliness of his prose. How did someone with the moral and aesthetic sensitivity of a fourteen-year-old become a professor of law at a great university?

[Dubblblind]

The worst part about Mr. Volokh is that he speaks for others, many others, and I'm talking about people who think of themselves as red-blooded Mericans.

[cw]

I guess he doesn't want to ever be a judge.

[Julian Elson]

Cesare Beccaria wrote about this 240 years ago. He developed a theory of utilitarian justice a few decades before Bentham.

http://www.constitution.org/cb/crim_pun.htm

The thing is, people have been calling for the end of the death penalty for several centuries now. They've been calling for a system of justice based on social good rather than desert for several centuries now. I don't get the feeling that Beccaria's ideas are any more mainstream now than they were in 1764.

[shah8]

man...it's been awhile since I last heard beccaria in criminology...

Anywayz, I do have one point.

Remember Mr. Delong's comments about Ward Churchill? This is why commenting on Churchill's words is so bad. It contributes to the noise and potential equivalency that liberals are just as bad. Churchill may be scum, but he's pond scum, speaking off the top of the pool. Eugene Voloch, like Alan Dershowitz is the radioactive, glowing stuff with a bunch of iridescent colors in the pond, where you *know* all of it is deadly poison.

but hey, guess who got the noise and who got the silence from the general media? We should reserve comments on liberals or "liberals" unless they are truly egregious. Michael Moore's labeling of George Bush as a deserter is insignificant. Any number of conservative commentators, and Matthew Yglesias when his rich kid origins gets a little too exposed, have made much more fundamentally horrible comments, and we need to keep the powder dry for those...

[Movie Guy]

It sounds like Volokh has been talking to Cheney.

[praktike]

I miss Juan non-Volokh.

[Mark Kleiman]

I strongly disagree with Volokh on this one. But the level of vitriol in the comments above is truly dismaying.

No one who knows Volokh would recognize him from these characterizations. He has less anger in his makeup than almost anyone I know, and certainly less than those above who speculate adversely, and of course without any evidence whatever, on his mental health. I very much doubt that the person who questioned Volokh's intelligence is within two sigmas of him cognitively. (Volokh, having graduated from college extremely young, made a bundle writing software before going into law.)

Is it truly impossible to criticize an argument without making false and vicious personal remarks, or have we decided to adopt the Instapundit standard of discourse as our own?

[modus potus]

Mark,

It's the sadism of Volokh's remarks, not their anger, that seems to be eliciting the vitriol. I'm not sure there is much of a correlation between people with bad tempers and people who are sadistic (and at least in my limited experience, such correlation would be a negative one).

I don't know Dr. Volokh, though I've known a few other intellectual prodigies. A certain emotional naivete seems almost the rule. It's as if the intellect hubristicly ignores its emotional underpinnings in all their animalistic glory. Us less-gifted folks seem more likely to have confronted the darker parts of our natures, and either overcome them or at least learned to respect their influences on our judgement. There are some aspects to learning about our life as human beings which aren't easily accelerated. Dr. Volokh's mastery of the intricacies of the law's history and structure are unquestioned. But there are other aspects which fall under the rubric "wisdom" that his experiences and education seem to have shortchanged him.

[P.M.Lawrence]

How is this in any way incompatible with Washington and his ilk? In their day hanging with the short drop and flogging were both quite usual and aceptable. In fact Washington himself ordered precisely those and worse, like the wooden horse.

As for comments on times changing, on the one hand they haven't in Iran, and on the other there is no inherent obstacle to them reverting either. The US constitution is not a bar of any sort.

But then, I really for the life of me do not see how anyone can claim the US constitution as an authority rather than a record of where people were coming from, a precedent rather than a source. Morally there is nothing there but a sort of cod-Helvetius and an exposition of past practices without providing justifications. Different justifications could perhaps have been provided, at the price of not satisfying everyone as well as those motherhood statements.

[Tom Doyle]

Here's a different view:

"During way stay in Paris, the sight of a public execution revealed to me the weakness of my superstitious belief in progress. When I saw the head divided from the body, and heard the sound with which they fell separately into the box, I understood, not with my reason, but with my whole being, that no theory of the wisdom of all established things, nor of progress, could justify such an act; and that if all the men in the world from the day of creation, by whatever theory, had found this thing necessary, it was not so; it was a bad thing, and that therefore I must judge of what was right and necessary, not by what men said and did, not by progress, but what I felt to be true in my heart."

- Leo Tolstoy

http://flatrock.org.nz/topics/prisons/methods_of_capital_punishment.htm

[liberal]

Julian Elson wrote, "They've been calling for a system of justice based on social good rather than desert for several centuries now."

I don't think that's quite right, if by that you mean that retribution shouldn't be part of punishment, which I think it should be.

The biggest problem with the situation as described by the BBC report is that family members were involved with inflicting the blows. It's the same fundamental problem with the so-called "victims' rights" movement.

To wit: the ancient Greek playwright Aeschylus showed in his _Oresteia_ trilogy, written over two millenia ago, what happens when justice is meted out as personal revenge: a degeneration into familial blood feuds. The answer to this dilemma is a system of justice where crimes are committed _against the State_.

Which is why, when someone is on trial for a murder charge, it's "The People of State X versus John Doe," not "Survivors of Victim Y versus John Doe."

[liberal]

Mark Kleiman wrote, "I strongly disagree with Volokh on this one. But the level of vitriol in the comments above is truly dismaying. ... No one who knows Volokh would recognize him from these characterizations. ... I very much doubt that the person who questioned Volokh's intelligence is within two sigmas of him cognitively. (Volokh, having graduated from college extremely young, made a bundle writing software before going into law.)"

It's pretty simple: say stupid, despicable things, and people will come to the quick conclusion that you're stupid and despicable.

[Roger Bigod]

PM Lawrence,
In evaluating Washington, you'd need to consider the circumstances. Sherman ordered collective punishment and actions that led to starvation of noncombatants, but only for a limited time and after the provocation of a long, bloody war. Clearly, public sadism was common before the Eighteenth Century and was disapproved after that time in the West. Washington was somewhere in the middle of this process. He wouldn't have invlicted the punishment of William Wallace on anyone. But some of his punishments would have been outside the norms of later military law.

I agree that the Bill of Rights is only a record of where people were coming from. One reading is that it is a list of rights recent enough not to be embedded in the Common Law (property, some elements of due process) but important enough to be explicitly protected. It is perhaps easier to see w.r.t. slavery. The absolute moral arguments are timeless, and slavery was no more right or wrong in 1850 than 1600. But the sensibility of most people in the West had changed. People in the US South just didn't get it. (I believe Mr. Marx called attention to the connections between the means of production and the values of a society.) People in the North thought that white Southerners were moral monsters for supporting slavery, and some of us have the same visceral responses to torture.

[rea]

"How is this in any way incompatible with Washington and his ilk? In their day hanging with the short drop and flogging were both quite usual and aceptable."

Except both those things became no longer acceptable, within the lifetime of some of Washington's younger contemporaries. And during Washington's own lifetime punishments became notably less cruel--almost a hundred the losers of the Jacobite Rebellion in 1745 were hung,drawn and quartered in the old medieval style, but the punishment was inflicted only 4 times therafter . . .

[Keith M Ellis]

"It's the same fundamental problem with the so-called 'victims' rights' movement."

Yes, but interestingly there is a lot of support on the liberal side for "victims rights". Maybe more so on the conservative side, but quite a bit on the liberal side.

The bottom line here is that probably a majority of Americans, not to mention all people, have the sense that criminal punishment is mostly or significantly retributive. I'm not really inclined to defend Volokh, but I strongly suspect he was following a line of thought that I could elicit from an unwary person--liberal or conservative--quite easily. Most people think this way. Most of *us* think this way. When a commenter above condemns Volokh for being overly emotional and irrational, they might first consider that a sign of mature reason is to discover the principle of the thing and not to respond to mere visceral reactions. The *principle* Volokh is defending is widely held, it is "just" that his comments were, in a word, sordid. That the character of his argument is "sordid" is a rational defense of his extreme vilification? No.

It's true that in the past Volokh has written some very reasonable and, in the context of being considered a conservative blogger, courageous things. He wrote frequently and at great length defending gay marriage and criticizing a great deal of bad scholarship regarding homosexuality. I stopped reading VC a while ago--not really because of him, but because some of the other VC bloggers were much more partisan and vitriolically conservative. Perhaps Volokh's degenerated since, I don't know.

But even so, this near hysterical outrage concerning his post would be more appopriate if we lived in a world where the *principle* he's defending weren't widely held. We don't.

[sm]

"The thing is, people have been calling for the end of the death penalty for several centuries now."

In some countries, this goal has been accomplished.

[enfant terrible]

Keith:

"The *principle* Volokh is defending is widely held"

Correct. And that is exactly why what he wrote is dangerous.

The "principle" that Jews are generally bad was widely held in Germany (and most other "civilized" countries) in the 1920s and early 1930s. Had that view been just a rare abberation, Hitler would have painted postcards (and prison cells) all his life.

[John Emerson]

Mark Kleiman --

As I said, I had the feeling that Volokh was being loathesome strictly for the purpose of baiting me and my kind -- that he was demeaning and lowering himself strictly for the purpose of being offenseive.

This is a feeling I've often gotten during the last 10-20 years, but usually it's from drunks in bars and the like. It bodes ill for the US when respected opinion leaders show that kind of aggressive nastiness.

I imagine that he draws the line at raping someone's sister because he raped your own sister, but maybe he hasn't finished his investigation of the wisdom of Islamic customary law yet.

His software-writing is pretty irrelevant in the present context. He may have done the all-time best score in Space Invaders too, but geeks probably should stay out of serious policy issues.

[Vache Folle]

Perhaps Mr Volokh is positioning himself for a high level opening in the DOJ.

[enfant terrible]

alkali:

Your response is thoughtful, but I must disagree to some extent with most of it.

First, my hypothetical statements, for the most part, do not contain verifiable (or falsifiable) statements of fact. I don't know how you could test "emotional instability" or "moral inferiority". And when it comes to "intellectual inferiority", you get the gigantic bar brawl that Mr. H. and Mr. M. started, but almost all patrons eagerly entered. There may be claims of fact in those statements, but they are buried deep; mostly, they are just rationalizations of emotions and instincts.

Second, I acknowledge that most people will probably find your argument of hurt feelings valid, but I reject it completely and in principle. I strongly believe that arguments in rational discussion of policy proposals has to be completely free of censorship, which necessarily implies that it must be unconcerned with hurting someone's feelings. (This decicedly does NOT mean that I advocate lack of compassion - the effect of the RESULTS, i.e. policies, on people's feelings should be considered; but not the effect of ARGUMENTS.)

That said, I also think it is inconsistent to completely disregard the feelings and interests of criminals, and dangerous to disregard the interests and feelings of those who are accused (possibly wrongly) of crimes. (And it is interesting that you mention Manson - that case was, and still is, a blatant violation of the Constitution.)

Finally, your third comment seems to me as a naive misperception of facts. Namely, affinity for revenge is almost certainly more prevalent and more deeply ingrained in our psyche than either racism or sexism. As I responded to Keith above, it is precisely because Volokh's view is indeed very popular that is so dangerous.

[David in NY]

To Eugene Volokh, I say: Love America or Leave It! (Except he's afraid to enable comments on his blog.) If our Constitution is not good enough for you, then get out! The Founders knew systems where horrible punishments had recently been the norm, and they decided firmly against them. If you don't like it, please move to Iran, where the policies suit yours.

And, moreover, since you don't believe that professors have the protection of the First Amendment for statements like this, then I dearly hope your fellow faculty and students take up the cause of seeking your removal for your un-American statments. It would serve you right.

[Richard Hausman]

I try to keep myself from getting emotional about issues, especially if there are a significant number of people who hold views which I oppose. But when it comes to inflicting prolonged mental and physical agony on any other human being (or any being capable of such suffering) I have to ask people to tap into whatever is decent in themselves and join me in strongly condemning such an awful practice.

[liberal]

Keith M Ellis wrote, "The bottom line here is that probably a majority of Americans, not to mention all people, have the sense that criminal punishment is mostly or significantly retributive."

Just to clarify---though I assume you understood my post---I do think there's a place for retribution in punishment. (As I wrote, "I don't think that's quite right, if by that you mean that retribution shouldn't be part of punishment, which I think it should be.") There's a difference between retribution meted out by the State and retribution meted out by the victim's families.

"Yes, but interestingly there is a lot of support on the liberal side for 'victims rights'."

Maybe. But I would guess a lot of that is support for compensation of victims or their families, not as much for them inflicting punishment.

"The *principle* Volokh is defending is widely held, it is 'just' that his comments were, in a word, sordid."

It might be widely held, but it's disastrously wrong. And as I pointed out, this understanding predates the medieval period---it goes back to the Golden Age of ancient Greece.

[liberal]

enfant terrible wrote, "As I responded to Keith above, it is precisely because Volokh's view is indeed very popular that is so dangerous."

But we need to distinguish between *personal* revenge and more abstract retribution.

There's no place in a system of justice for personal revenge, as Aeschylus pointed out (at least as I interpret him). However, that doesn't mean there's no place for retribution as meted out by the State. One can add that trials should be fair, punishment appropriately proportionate to the crime, etc, of course. But most people would reject a system of justice with *no* retribution inflicted, and rightly so, I think.

[Keith M Ellis]

"It might be widely held, but it's disastrously wrong. And as I pointed out, this understanding predates the medieval period---it goes back to the Golden Age of ancient Greece."

Yes, I agree completely. But I suppose that lately I'm less thrilled with arguments that don't account for how people really are, and that we're not how we like to imagine we are.

Also, I'm troubled by what I think is a hypocrisy involving our deep moral outrage against Volokh for his position. *Moral* outrage, these deep feelings of disgust and animosity, are the very same elements at work when deeply immoral acts are committed. Commenters earlier wish that Volokh would suffocate. In one sense that is a *long* way from intellectually justifying torture. But in another...not as much as we'd like to think.

Furthermore, I'm not convinced that the *motivation* to the opposite view on such things, as exemplified by the wonderful Tolstoy quote above, isn't just as visceral and irrational. I can justify empathy intellectually. Volokh justfied sadism intellectually. I'm not sure what deep sin Volokh has commited. Is it primarily that he's vicious? Or is it that he rationalizes his viciousness?

If we are going to argue against Volokh on the level of how our rational minds comprehend virtue and the organization of a just society, then we should acknowledge that *vindictiveness* can play no part in such an argument. Or else we're really just dressing up ugly feelings in neat ideas, as Volokh is doing.

[John Emerson]

Jesus, Keith, it was a joke. And I was only suggesting that we might be able to talk him into voluntarily suffocating himself; not that we should forcibly smother him in the Comfy Chair.

[Marc]

Mark Kleimann: It is essential to have room for honest dialog in the public sphere. But there are certain things that you can say which take you out of the civilized pale. Eugene has just done precisely that. He's advocating a system of justice that predates Hammurabi. These dark sentiments live in all of our hearts. Civilized people know that we need to guard against our demons. Barbarians embrace the mob. Eugene, fancy words notwithstanding, is now a barbarian. The good news is that he has just ensured that his sadism will never be inflicted on others from the judicial bench. This is one juicy quote that will never, ever, be able to be explained at a congressional hearing.

Some good will therefore have come out of this.

[enfant terrible]

liberal:

For the record, I disagree. Retribution has no place in a society based on rational principles. Most civilized countries reject it in their penal codes, even if they fail to fully live up to that ideal in practice.

The state can have the following legitimate goals in punishing offenders: incapacitation (to prevent the same person from repeating the offense), deterrence (to prevent others from doing it), reformation/rehabilitation (to transform the offender into a productive member of the society) and compensation (to provide insurance for casualties due to crime). All of those are justified on efficiency grounds. There is no analogous rational justification for retribution, and thus the state has no business engaging in it.

[enfant terrible]

Marc:

"The good news is that he has just ensured that his sadism will never be inflicted on others from the judicial bench. This is one juicy quote that will never, ever, be able to be explained at a congressional hearing."

I wish I could be so optimistic!

[Keith]

Enfant Terrible wrote,
"All of those are justified on efficiency grounds. There is no analogous rational justification for retribution, and thus the state has no business engaging in it."

Your view that justice is grounded in efficiency seems some what cold-blooded and narrow to me, but let's go with it for the sake of arguement. Liberal correctly points out that retribution has long been a basis for punishment. If people are to live under a social contract, they need to feel that fairness is enforced. Retribution allows for victims to get some sense of closure and get on with their lives. Isn't this also efficient?

[Anderson]

Still nothing from the rest of the Conspiracy, which are interested in bankruptcy, Blackstone, and Terri Schiavo.

A "Conspiracy of silence"?

[Marc]

Keith, retribution can also lead to endless retaliatory cycles of revenge. Let us go down to where the air is less rarified and give things their proper name. Eugene is advocating that we should adopt a system of "justice" where the families of victims can slowly torture to death the people who harmed their loved ones. Do you think this is a good idea Keith? If so, do you have any idea about why 1) we don't do this now and 2) why the negative reaction to Eugene is so deep and visceral?

[liberal]

enfant terrible wrote, "For the record, I disagree. Retribution has no place in a society based on rational principles."

In addition to what Keith said (March 18, 2005 10:03 AM)...

I think this argument is spurious. The problem is the word "rational." Why? Because to some extent, what's rational is arbitrary.

Put in pseudo-technicalese, simply because it's the best way to make my point, look at an axiomatic, deductive system. The process of arriving at theorems from the axioms is "rational." But the axioms themselves are simply given.

I think it's a given that there should be retribution in punishment. Again, punishments shouldn't be cruel and unusual, and there should be a large role for the four purposes of punishment that you mention. But as Keith mentions, "If people are to live under a social contract, they need to feel that fairness is enforced. Retribution allows for victims to get some sense of closure and get on with their lives." I would say that retribution is appropriate, even if the victim isn't alive and has no survivors, close friends, etc, who feel a loss.

Of course, it's quite reasonable to point out that to a degree, there's a connection between crime and poverty, and so forth, and that this should be taken into account in the justice and penal systems. But I don't think strict "efficiency/utilitarian" grounds capture everthing about fundamental notions of fairness.

[liberal]

Marc wrote, "Keith, retribution can also lead to endless retaliatory cycles of revenge."

Yes, but please see my posts above about the way around this pointed to by Aeschylus over 2000 years ago. To wit, crimes are committed against *the State*. *That's* what gets us around retaliation and blood feuds, without completely taking retribution out of the picture.

[enfant terrible]

Keith:

"Your view that justice is grounded in efficiency seems some what cold-blooded and narrow to me"

I wasn't talking about justice at all. I was talking about the law. You should not confuse the two. If you don't see the vast difference, you are a victim of demagogic deception and you may consider wishing some retribution on the politicians.

"Retribution allows for victims to get some sense of closure and get on with their lives. Isn't this also efficient?"

It is only efficient if people are so hopelessly savage in their hearts that they cannot be educated not to condition their happiness on the suffering of others. But if that is true, then the experiment in democracy will fail and the institutions of what we now view as civilized society will crumble. Under that assumption, intellectual honesty would compel me to accept nihilistic views and I am not sure if I could then find any merit in law and penal system at all.

Since I see no practical value in pursuing that path, I base my ethical reasoning on the assumption that civil and democratic society is a viable ideal, progress toward which is possible indefinitely. But then I must reject the idea of us as irreparable savages and hence reject your suggestion that retribution is efficient.

I may be wrong in my fundamental assumptions, but I am write in all states of the world that are worth caring about.

[liberal]

Keith M Ellis wrote, "But I suppose that lately I'm less thrilled with arguments that don't account for how people really are, and that we're not how we like to imagine we are."

Au contraire. I think that if someone murdered/raped/etc someone in *my* family, I'm quite sure I'd *want* to avenge them. Which is precisely the point: in the large, this would be a disaster, because as Aeschylus points out in the _Oresteia_ trilogy, blood feuds would result.

As far as I can tell, by typing those words, Volokh has gone beyond empathy with the victims and could be read as endorsing a system of retaliation by victims' families, which is (again) what Aeschylus warned against. Not to mention the other issue of cruel and unusual punishment.

[liberal]

enfant terrible wrote, "It is only efficient if people are so hopelessly savage in their hearts that they cannot be educated not to condition their happiness on the suffering of others. But if that is true, then the experiment in democracy will fail and the institutions of what we now view as civilized society will crumble. Under that assumption, intellectual honesty would compel me to accept nihilistic views and I am not sure if I could then find any merit in law and penal system at all."

You're committing the "black and white" logical fallacy. Certainly, if *everyone* is likely to commit acts of savagery, then liberal democracy will whither.

On the other hand, without some kind of psychoconditioning process found in some kind of sci-fi totalitarian dystopia, I think a fraction of the populace is going to commit savage, despicable acts, and should be punished accordingly.

[liberal]

e.t.,

Hmm...I'll have to retract some of that last post...didn't correctly read yours.

[liberal]

Amended post: I don't see why liberal democracy is incompatible with a feeling that justice should include a component of retribution.

It's not a matter of feeling "happy" that a criminal is suffering. It's a matter of feeling that justice has been served.

I could go into a longer post on freedom of the will, good and evil, etc (this all despite my own agnosticism), but, well, my utility lies elsewhere right now. ;-)

Cheers.

[enfant terrible]

liberal:

It may be hard to reach a consensus on the definition of "rational", but I think it is rather incorrect to say that it is arbitrary. At least, it is dangerous, because if rational is arbitrary, then ethical is also arbitrary and the consequence is moral relativism and ultimately anarchy. (BTW, religious revelation would not save ethics, as it is itself arbitrary.)

On the other hand, what is "fair" and "just", while also not arbitrary, is far more subjective than what is rational. Thus, in the organization of a society in a group of diverse individuals, principles based on those notions must be subordinated to those based on rationality.

I will try to submit my definition of "rational" to make it less arbitrary for the purpose of this discussion. It is, of course, a work in progress:

Rational refers to having a consistent set of goals and applying methods of acheiving those goals that, on the whole, do the most to advance those goals and the least to retard them.

There are "axioms" or "first principles" that are meta-rational, and I agree with you on that point. However, those must be truly irreducible first principles. A rule like "there should be retribution in punishment" is nowhere close to irreducible, and cannot satisfy the criteria for an axiom.

[enfant terrible]

liberal:

"Amended post: I don't see why liberal democracy is incompatible with a feeling that justice should include a component of retribution.

It's not a matter of feeling "happy" that a criminal is suffering. It's a matter of feeling that justice has been served."

I do not claim that liberal democracy is incompatible with that feeling. I was responding to Keith's thesis on efficiency created by enabling "closure". This assumes that the need for such "closure" (which is no closure at all, it is simply a satisfaction in someone's suffering) is so great and immutable that it outweighs the social costs (which include ethical inconsistency and intellectual dishonesty) involved in perpetuating such a system. If THAT is true, then our institutions are built on foundations too weak to sustain them, and cannot be expected to have a future.

This is older than Aeschilus. It is the problem Odysseus faced when he sailed by the Sirens. He knew well that he would be tempted, just like you and I know that we would want to make the SOB eat his own penis while ants are feeding on the wound left open after amputation. But he was wise enough not to want to have his choice when he is tempted, and he had himself tied to the post. He did not get any compensation other than remaining alive and human.

You and I are both advocating having ourselves tied to the mast like Odysseus. Where we differ is that you seem to think we should get compensation for that, while I think that if being alive and human was good enough for Odysseus, it ought to be good enough for us.

[marky]

Mr. Kleiman,
I was not aware of Volokh's background when I wrote my post attacking his intelligence.
Now that I do I find it all the more tragic that someone with such gifts thinks there is so much value in the midden of the human soul. And to think the man is a law professor as well. He has no respect for centuries of legal tradition and values.

He may not be a stupid man, but in that post he masks his intelligence well.

P.S.,
Your speculation is wrong,Kleiman.

[Lee A. Arnold]

EXCERPT from "Iraq: The Devastation" By Dahr Jamail, posted Jan. 7, 2005 at
http://www.tomdispatch.com/index.mhtml?pid=2109

...Sadiq Zoman is fairly typical of what I've seen. Taken from his home in Kirkuk in July, 2003, he was held in a military detention facility near Tikrit before being dropped off comatose at the Salahadin General Hospital by U.S. forces one month later. While the medical report accompanying him, signed by Lt. Col. Michael Hodges, stated that Mr. Zoman was comatose due to a heart attack brought on by heat stroke, it failed to mention that his head had been bludgeoned, or to note the electrical burn marks that scorched his penis and the bottoms of his feet, or the bruises and whip-like marks up and down his body.

I visited his wife Hashmiya and eight daughters in a nearly empty home in Baghdad. Its belongings had largely been sold on the black market to keep them all afloat. A fan twirled slowly over the bed as Zoman stared blankly at the ceiling. A small back-up generator hummed outside, as this neighborhood, like most of Baghdad, averaged only six hours of electricity per day.

Her daughter Rheem, who is in college, voiced the sentiments of the entire family when she said, "I hate the Americans for doing this. When they took my father they took my life. I PRAY FOR REVENGE on the Americans for destroying my father, my country, and my life."

[caps mine]

[liberal]

enfant terrible wrote, "It may be hard to reach a consensus on the definition of 'rational', but I think it is rather incorrect to say that it is arbitrary. At least, it is dangerous, because if rational is arbitrary, then ethical is also arbitrary and the consequence is moral relativism and ultimately anarchy. (BTW, religious revelation would not save ethics, as it is itself arbitrary.)"

To clarify, I don't mean truly arbitrary, which as you say would lead to no universal principles at all and complete anarchy. All I mean is that "rational" is most clearly applied to a process and certain meta-principles (e.g., consistency). And at some point all systems must make assumptions.

BTW, I would never argue that right concepts of justice and fairness follow from religious principles, since I'm a-religious. Rather, I think they follow from intuitions flowing from our biological endowment, modified by what we've learned from history so far.

"On the other hand, what is 'fair' and 'just', while also not arbitrary, is far more subjective than what is rational. Thus, in the organization of a society in a group of diverse individuals, principles based on those notions must be subordinated to those based on rationality."

But then you have to decide what is fair, just, etc, versus what is rational.

"Rational refers to having a consistent set of goals and applying methods of acheiving those goals that, on the whole, do the most to advance those goals and the least to retard them."

Yes, but that leaves many things out of the rational domain, which is my point.

"There are 'axioms' or 'first principles' that are meta-rational, and I agree with you on that point. However, those must be truly irreducible first principles. A rule like 'there should be retribution in punishment' is nowhere close to irreducible, and cannot satisfy the criteria for an axiom."

Yes, it does.

There is no way you can prove retribution right or wrong.

Similarly, even the utilitarian principle itself must be assumed.

[liberal]

enfant terrible wrote, "This is older than Aeschilus. It is the problem Odysseus faced when he sailed by the Sirens."

No, though that's certainly a related issue---the problem of self-binding (which both individuals and governments face).

"Where we differ is that you seem to think we should get compensation for that, while I think that if being alive and human was good enough for Odysseus, it ought to be good enough for us."

But you're thinking of retribution in terms of "compensation." I'm thinking of retribution in terms of what's right. To wit: in the abstract, if one chooses voluntarily of one's own free will to commit a crime, one expects to be punished if caught, and should be punished.

[Thomas T. Schweitzer]

Re. Volokh: 60 years ago, almost to the day, I was an imate at Bergen-Belsen. It was obvious even to us us that the Nazis had lost the war (the Allied planes were freely roaming the skies , night after night Hannover was burning on the horizon), though we did not know whether we shall be dead in another hour, as was my best childhood friend who was shot in the neck at the evacuation of the Dachau camp. In the evenings I could ruminanate on what ought to be done with the hunderds of thousands of Germans who must have known about the atrocities in the camps and did nothing, becoming thereby accomplices. I came to the conclusion that nothing should be done! The brutalizing effect of mass executions was obvious to me; and the only horror worse than the by what was inflicted on us, was the danger of becoming like those who did the inflicting. Volokh, if the cap fits, wear it!

[Jay C]

Mark Kleiman:
As a blogger yourself, I am surprised that the "level of vitriol" directed at Eugene Volokh over his "torture" remarks would be "dismaying" - Brad's blog is a pretty classy place, with a fairly high level of commentary - what I have read here is FAR from the worst one can (sadly) find around in the blogosphere without much searching.
But maybe that's part of the problem: I do not personally know Prof. Volokh, and he may very well have " less anger in his makeup than almost anyone I know" - I have read his blog consistently, if irregularly for years, and he has always struck me, from his writings, as a very intelligent and articulate person. Ideology aside, his arguments are always well-crafted and rational, which makes the sort of comment he posted on the Iranian execution even more shocking and disturbing, considering the source.
If one read Volokh's commentary, which boils down to "torture the bastards bloody and kill them slowly because Vengeance Is Good" (followed up by an aside about the Eighth Amendment which, almost wistfully, suggests that he could care less if it were repealed),as coming from say, some pseudonymous spittle-troll on Free Republic, the impact would probably not, IMO, have any of the same blogospheric reaction that it has had.
From "just some guy" "out there" someplace, we don't expect much, and expressions like those Prof. Volokh posted, while awful, don't suprise one too much. From a (presumably) respected Professor of Law at a major university, their impact is all the more shocking: IOW, Volokh should know better: if these are indeed his sentiments regarding "Justice" vis-a-vis "Vengeance", then he deserves all the obloquy the blogosphere can muster to toss at him (although you are right about one thing, it's not his "mental", but rather his moral condition that is questionable).

[Keith M Ellis]

"In the evenings I could ruminanate on what ought to be done with the hunderds of thousands of Germans who must have known about the atrocities in the camps and did nothing, becoming thereby accomplices. I came to the conclusion that nothing should be done! The brutalizing effect of mass executions was obvious to me; and the only horror worse than the by what was inflicted on us, was the danger of becoming like those who did the inflicting."

Which I think is all that needs to be said on this matter. Yet, for some reason, this point is still continuously argued. And that is because for the most part, we rationalize our desires (including the darkest ones), not the other way around.

[anne]

Thomas T. Schweitzer

A stunning comment which helps me understand Gandhi in a more sympathetic way. There are times I am too impatient with Gandhi.

Keith M Ellis

Thank you for both comments. I am however forever quoting others, as you have so well quoted Mr. Sweitzer. I appreciate your comments. Also, I posted this on the wrong thread somehow. Sorry!

[liberal]

Thomas T. Schweitzer wrote, "In the evenings I could ruminanate on what ought to be done with the hunderds of thousands of Germans who must have known about the atrocities in the camps and did nothing, becoming thereby accomplices. I came to the conclusion that nothing should be done! The brutalizing effect of mass executions was obvious to me; and the only horror worse than the by what was inflicted on us, was the danger of becoming like those who did the inflicting."

But there's a good, intermediate ground between doing nothing and vast, indiscriminate reprisals. There's a growing amount of experience in this regard (see the post-apartheid "truth commission," for example).

If not for retribution, the high-level perpetrators of crimes against humanity should be punished for purposes of deterrence (as enfant terrible wrote above at March 18, 2005 09:33 AM). This point is made in the useful book _The Splendid Blond Beast: Money, Law, and Genocide in the Twentieth Century_ by Christopher Simpson.

[liberal]

I should correct myself a bit and say that enfant terrible's point was that deterrence is a legitimate purpose behind punishment.

[Strange Doctrines]

I recently read Ken Taylor's remark: "I wouldn't go so far as to say [evil] lurks in us all, but I do think we overestimate our own distance from it."

Perhaps that's something both Volokh AND his most vociferous critics (see above) should keep in mind.

[Lee A. Arnold]

What if we UNDER-estimate our ability to be ABLE to estimate our distance from it?

[Strange Doctrines]

Lee, that's far too...too meta. (Brad: Why no html? I need ironic italics, dammit.)

[Lee A. Arnold]

What's a meta FOR?

(Use CAPS for italics--it ain't all that far from Jonathan Swift, and it gives you the added pleasure of driving some people nuts.)

[Unstable Isotope]

Thomas T. Schweitzer: you are a hero.

It looks like Volokh has found the wonders of Sharia law.

A civilized society has no place condoning torture. That's called sadism. It's no surprise coming from the moral relativist crowd that the Republicans are now.

The earlier defense of Volokh seemed to be "he's smarter than you" and "you're mean." Anyone who wrote that crap is not smarter than me. The anger and vitriol is because someone that smart should know better.

[Rees Jones-Jones]

I was under the impression that the Erinyes belonged to the old, old Old World Order.

[Keith M Ellis]

Kleiman's and Volokh's posts are a good tonic for much of what ailed the discussion here and elsewhere. The analysis and deconstruction of "retribution" is extremely important and I am disapointed that I didn't think to go in that direction.

I, prehaps wrongly, anticipate a reaction against their endorsement of retribution itself as a social good on the simple basis that to coldly and analytically consider such a thing is inhuman, or some such complaint. Or that the utilitarian basis upon which Kleinman rejects torture is weak and an example of an impoverished morality. If so, then here we get to the heart of my earlier objection to how this debate has been framed. Either we are going to "coldly" and "analytically" try to determine what is right here, or we are going to rely upon our instincts, as Leon Kass advises. I strongly disagree with Kass's premise and believe that emotional intution regarding social policy is more misleading than it is helpful. It is interesting that, when it's convenient, many people who otherwise claim that Kass's moral philosophy is repugnantly self-serving, will endorse similar arguments. The appeal to intuitive "goodness" and the derision of "viciousness" is exactly such an argument, no less than the appeal to the instinct to viciousness.

Unstoppable Isotope argues that anger and vitriol are appropriate responses to an injustuce such as someone intelligently defending torture as public policy. But if, in principle, UI believes that anger and vitriol are the morally correct responses to an injustice, he's more like Kleiman and Volokh than he is different.

[enfant terrible]

liberal:

"There is no way you can prove retribution right or wrong."

This does not make it irreducible. I agree with your post in everything up to this point. But the issue of retribution's being right or wrong is too specific and too complex to make sense as one of the first principles of a system of ethics and law. It only makes sense if you claim that retribution is an end, not a means, and that it is a worthy end in itself, regardless of what other effects it produces (if any). Otherwise, you must be arriving at your conclusion from some more basic principles.

[enfant terrible]

liberal:

"But you're thinking of retribution in terms of "compensation." I'm thinking of retribution in terms of what's right. To wit: in the abstract, if one chooses voluntarily of one's own free will to commit a crime, one expects to be punished if caught, and should be punished."

This sub-thread emerged from my remark (to Keith?) that retribution offers no efficiency gain and is therefore not a legitimate concern for the government, and his reply that it may be efficient because it gives people "closure" (which is a form of compensation).

You can argue against my point only in two ways. One is to argue Keith's point, that retribution is efficient. For that, you must assume it provides a form of compensation (and a form that is not readily achievable by other means). The other way is to argue that government may be justified in causing harm to an individual in the name of doing "the right thing" even if it is not efficient. I was assuming that you were arguing the former, as the latter is a position contrary to your name.

Anyway, your illustration does not add support to retribution. That one expects to be punished if caught, is fully captured by the goal of deterrence. That one "should" be punished, is somewhat vague. If you simply mean that the society should punish offenders, i.e., that it is better that it does punish them than that it doesn't, then this follows from my efficiency argument, and no retributive goal is needed for it. On the other hand, if you mean that punishment is a good thing in itself, rather than a cost of achieving a well-functioning society, then that would, if true, support your position, but that claim is itself arbitrary, so the argument is circular.

[enfant terrible]

"But if, in principle, UI believes that anger and vitriol are the morally correct responses to an injustice, he's more like Kleiman and Volokh than he is different."

That critically depends on where he would put the vitriol: on paper/screen, or in someone's eyes.

[P.M.Lawrence]

Roger Bigod, your points are accurate but do not address the issue. Certainly Washington was responding to exigencies and we shouldn't take a moral high horse to that.

But claims that there WAS a moral position, that the US founding fathers presented a high principle, shouldn't be backed by using them as authority figures. It was exactly their feet of clay that I was pointing out, rebutting attempts to cite their moral authority.

Rea, I covered your objection. I pointed out that times DO change, but that we shouldn't assume any sort of linear progress. We cannot use our present culture as a moral centre of the universe, even though of course we have to use it as our own point of reference. Morally, there is a clear regression from even twenty years ago.