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Stopping Power — Why 70 Million Americans Own Guns
A Book by J. Neil Schulman
If Execution Is Just, What Is Justice?

The following article appeared, in edited form, in the September, 1992 issue of Liberty — JNS.

Democracy has no more sensitive gauge than the public opinion poll, and the recent Los Angeles Times poll which shows that four out of five Californians favored the execution of murderer Robert Alton Harris tells us everything we need to know about the political will of the people on this subject.

But while the voice of the people may be the final word regarding our political decisions, few could argue that it disposes of moral questions, or even that such a political will is unchanging. At various times in human history, the voice of the people has favored slavery, the execution of blasphemers, and the Divine Right of Kings. Obviously, both a public moral sense, and the political will which follow from such feelings, are subject to revision.

The largest single reason, given by those who supported the decision to execute Harris, was “Justice/Eye for An Eye.” I find it both refreshing and comforting that moral, rather than merely utilitarian, considerations are at the forefront of most people’s consciousness.

Still, the question remains to be asked: on what basis does one believe that retribution — “an eye for an eye” — is a valid principle of moral justice?

Is it primarily an emotional, rather than an intellectual, reaction based on empathy to the victims? What, then of the revulsion felt by others to the premeditated killing of a hogtied man?

Is it a sense that something which was codified four millennia ago in the Code of Hammurabi must be right because of its age? What, then, of that code’s literal call for retaliations including putting out eyes and cutting off hands?

Is it because the Old Testament tells us that God told Moses that He was ordering us to execute murderers? First, how do we know that early authors didn’t do some rewriting, or even that Moses — a politician — wasn’t lying when he said the code was written by God? Second, if we are using the Book of Exodus as our legal code, why are we not executing people who curse their parents, or witches, or those who commit bestiality, or those who make sacrifices to any other deity? Third, if we take the New Testament as updated orders, do we obey Jesus when he says he who lives by the sword dies by the sword, or when he tells us that he who is without sin shall cast the first stone? And fourth, what business does a secular state have enforcing a religious code in the first place?

If we answer that we do not decide what is moral or just based on emotions, or tradition, or ancient religious writings, then there remain only two other ways to derive moral premises: direct revelation or human reason. Either our moral premises are personally dictated to us by a Superior Power — and that claim must be backed with incontrovertible proof or it has no merit — or we must use our own powers of reason to figure out morality for ourselves.

Perhaps such a rational inquiry can begin by asking why it is right for the State — a secular organization acting as agent for ordinary individuals — to do that which is universally despised when done by any of those individuals? Does the State act from practical, utilitarian considerations alone — in which case such utility must first be subjected to moral limitations — or can it justify its killings on the basis of moral premises which can be derived without reference to sectarian religious documents?

The State of California finds it fairly straightforward to define justifiable homicide for the private individual. According to the California Department of Justice’s booklet California Firearms Laws 1991, “The killing of one person by another may be justifiable when necessary to resist the attempt to commit a forcible and life-threatening crime, provided that a reasonable person in the same situation would believe that: a) the person killed intended to commit a forcible and life-threatening crime; b) there was imminent danger of such crime being accomplished; and, c) the person acted under the belief that such force was necessary to save himself or herself or another from death or a forcible and life-threatening crime. Murder, mayhem, rape, and robbery are examples of forcible and life-threatening crimes.”

For the private person — or even the police officer — the instant the threat ends, the grounds for justifiable homicide end.

Strictly speaking, the State is no more than a group of individuals acting for common purpose. It is hard to imagine how it may rightly do more than the sum of the rights of the individuals comprising that group. How, then, does this transformation — whereby homicide is justified long after the threat has ended — occur? Does mere group procedure sanctify killing? If so, how many individuals must be in a group before it earns a license to kill? What moral premise distinguishes the state criminal justice system from the lynch mob?

The obvious answer is that in the absence of a Divine Ruler anointed by God, there is no moral basis for the State to do anything which it is not right for the private individual or group to do. Logic dictates that if it is morally justifiable for the State to kill in just retribution, then it must likewise be morally justifiable for other individuals or groups to do so as well — the Mafia, the Crips, and the Bloods included.

If it seems obviously wrong to you that private individuals have a right to retaliate — if California’s definition of justifiable homicide seems to you to be based on a valid moral premise — then you must come up with a moral justification for the State to do that which none of its principals may do.

For me, I answer that it is wrong to punish murderers with death, because it far exceeds the scope of human justice. Human justice is based on the concept of seeking repair rather than further destruction. The religious concept of just retribution — punishment, by another name — is mere tit for tat, not derivable from principles of reparative equity and therefore thoroughly irrelevant to justice or moral behavior as it may be enforced by a legal system. The allure of legal punishment is to adrenaline rather than reason.

Consequently, I see no possible justification for the State, as an agent of the people, to claim a moral right to do that which none of its principals may do. If we have learned anything in four millennia of limiting the role of government, it is that if civil justice is to exist in a secular society, it means limiting equity among individuals to reparation of wrongful harms.

If one believes, as I do, that killing a murderer has no moral basis, it does not logically follow that one is advocating that murderers should continue to enjoy a pleasant life at the expense of their victims. The principle of reparation derives the object that murderers should labor hard until the end of their days, and all that they produce beyond their mere subsistence should be paid to the heirs of their victims. There is no reasonable moral basis for the practice of murderers spending their days being supported as privileged wards of a welfare state. Such false humanitarianism is gravely offensive to those who remember the murderer’s victims, and such offense is possibly the basis for much of the emotion behind calls for state executions.

To those of religious precepts, I must argue that it is quite enough for the institutions of a non-theocratic society to place immovable walls between murderers and the rest of us, and extract what value can be obtained for their victims’ benefit. That is all safety and equity calls for. That is all that we — as individuals or as a group — are entitled to. Beyond that imperfect human institutions should not go, and what perfect vengeance is required must be left to God, who in His own good time disposes of all lives as He sees fit anyway.


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