Bushies Going Pre-Modern? 

Bushies Going Pre-Modern?

Eugene Volokh, professor of constitutional law, has prompted some discussion. (As usual, he helpfully links to related posts).

Commenting on a rather gruesome execution in Iran, directly ordered by the mullahs, you might expect him to say: that's barbarism. That's why we're fighting this war--to stop that. Instead, because the executed criminal was convicted of the rape and murder of many children, Volokh goes the other way: can we do that too, please? Even if it requires amending the U.S. Constitution?

For at least some convicted criminals, Volokh argues, it is good to draw out the execution, and deliberately make it slow and painful. Even better is to have the family members of victims take part: they're the ones who want and deserve revenge, and understand exactly what this punishment is all about.

I guess this is thinking outside the box. You don't have to be too cynical to think Volokh is beginning to suspect there are going to be a lot more stories about torture carried out by Americans--and not just to stop a ticking bomb. To anticipate the debate, Volokh is saying: not only do I favour torturing a grab-bag of towel-heads, some guilty of something, some not--but I think we should be incorporating quite a bit of torture in our legal punishments of U.S. citizens at home.

Taking Volokh at his word, however, he seems to be defending pre-modern and pre-philosophic thinking.

Hobbes and Locke both advocate capital punishment, and they would probably both allow the government to practice torture as well--particularly in war. Hobbes says:

before the Institution of Common-wealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of Punishing, which is exercised in every Common-wealth. For the Subjects did not give the Soveraign that right; but onely in laying down theirs, strengthened him to use his own....


But Hobbes adds an up-to-date wrinkle: "all evil which is inflicted without intention, or possibility of disposing the Delinquent, or (by his example) other men, to obey the Lawes, is not Punishment; but an act of hostility; because without such an end, no hurt done is contained under that name." (Both quotes from ch. 28 of Leviathan).

The one and only legitimate purpose of punishment (by government) is deterrence. The entire pre-modern or pre-philosophic desire for personal satisfaction, retribution for specific acts against specific persons, even a punishment that somehow actually fits the crime, is to be kept out of what government does.

This may be the utopian side of Hobbes's thought, and Locke is more cautious. Following Hobbes, he distinguishes punishment from reparation. He says the right of reparation belongs to the injured party--and only to that party. It is not the business of government. The "Magistrate, who by being Magistrate, hath the common right of punishing put into his hands, can often, where the publick good demands not the execution of the Law, remit the punishment of Criminal Offences by his own Authority, but yet cannot remit the satisfaction due to any private Man, for the damage he has received. That, he who has suffered the damage has a Right to demand in his own name, and he alone can remit...." Second Treatise II.11.

The parties who have suffered a private injury can seek private satisfaction: the government, just as in Hobbes, should not join in such activities, involved with such motives. Here we see the difference between civil law and criminal law. Hobbes is not as willing to say: go ahead and seek private satisfaction, probably because he thought that would re-awaken the state of war.

Locke: "[In the state of nature] The damnified Person has this Power of appropriating to himself, the Goods or Service of the Offender, by Right of Self-preservation"; civil suits might lead to indentured servitude? "...every man has a Power to punish the crime, to prevent its being committed again, by the Right he has of preserving all Mankind, and doing all reasonable things he can in order to that end." Locke defends capital punishment, which can be practiced by "every man in the State of Nature," but only by the magistrate once there is a government--but he only defends it for deterrence and security--future benefits for all, not correcting for what was done privately in the past. Victim impact statements are irrelevant at best, and at worst they might make the government deviate from legitimate thinking about public policy.

Before these passages, in II.8, Locke emphasizes that a man can come by a (lawful) power over another in the state of nature, but only when that other has committed a trasgression. There are further restrictions: "no Absolute or Arbitrary Power, to use a Criminal when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own Will, but only to retribute to him, so far as calm reason and conscience dictates, what is proportionate to his Transgression, which is so much as may serve for Reparation and Restraint." Here he still seems to include "reparation" in punishment--"retribution" as well as "restraint" or deterrence--but at the beginning of 11 he says reparation "belongs only to the injured party."

Torture by the government is not necessarily ruled out, but it certainly becomes questionable:

...every man...by the Right he hath to preserve Mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one, who has transgressed that Law, as may make him repent the doing of it, and thereby deter him, and by his Example others, from doing the like mischief.


Government can prevent that individual from transgressing again; and set an example that will prevent others from transgressing. But that is all.

In Volokh's example, I suppose it is possible that torturing child molesters to death, and allowing the relatives of victims to do so, may deter some crimes--but that is not the argument Volokh relies on. Opponents of capital punishment tell us that periods of very harsh punishments have often been periods of very high rates of crime, including violent crime; even if it is not true that violent penalties incite a general brutality, and thus endanger us all, it seems that merely having harsh penalties may not reduce crime.

I believe Locke is cautious in his apparent disagreement with Hobbes because he wants to provide an outlet for private desires for revenge--justified anger, overlapping with what the Greeks called thumos. Thumos as a part of the soul opens up Plato's Republic to dogs, war, and the problem that is classically summed up as "who guards the guardians"? The fact that real cities always want more material goods has come up just before the dogs, but the spirited dogs or soldiers are immediately necessary to fight for stuff--both what is already acquired and what has yet to be acquired. (Maybe it's all about oil! Who cares?) Thumos is partly a desire to defend ourselves and people, as well as things, that we care about. If we lack thumos, more thumotic people will take things away from us, so thumos is a necessity. Thumos seems essential for decent politics. Thumotic people who are on our side are good for our morale; giving them some satisfaction for their thumos keeps them loyal, and reinforces morale again. That's why Volokh may be correct that his desire to torture someone who rapes his child may be a sign that he is a decent person, not a monster.

When people say 9/11 changed everything, they may mean they have re-discovered the need for thumos. We can't be wimps, we've got to be prepared to fight--even perhaps, to fight cruelly, both to satisfy ourselves and to "send a message."

Aristotle says thumos is like a servant who hears instructions, but not all that well. Thumos isn't itself reasonable or objective--dogs can be very loyal to very cruel masters--and even with good training it is questionable how well it listens to reason. Insofar as ancient political philosophy defends the philosophic life against the spirited defence of mere opinion that is politics, it could be described as anti-thumotic, or skeptical of what the thumotic people say. The moderns if anything are more anti-thumotic--perhaps because they are more hopeful that politics can be rational. The whole notion of an impersonal state which is separate from religion or culture--a mechanism or tool which does certain things for us--is that it is largely free from passion. Even when it punishes, there should be nothing personal in it.

The last man presumably has little or no thumos. If Bushies think it is deeply shameful not to fight back, and to think only of one's personal pleasure at a time of war, how far back are they going?

One of Leo Strauss's lines was that Beccaria's advocacy of abolishing capital punishment was contrary to the letter, but faithful to the spirit, of Hobbes. Why would anyone agree to form a government if there is still a chance of being killed precisely by that government, which can have you completely at its mercy?

Hobbes also discouraged torture.

UPDATE: I guess I should have said somewhere: Volokh wants to get medieval on someone's ass. And so, I guess, do a lot of other people.

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