Sunday, November 16, 2014

xunzi: justice? revenge?

as per our discussion of the issue of death penalty (and anton's characterization as a form of revenge). take my brief response here to a complex issue as only hinting at the danger or trivializing "pro" or "con" arguments with quick, lapidary statements.   

it all begins with xunzi's advice for government:
If a man comes forward in good faith, treat him according to ritual; if he comes forward in bad faith, meet him with punishment. In this way the two categories will be clearly distinguished, worthy and unworthy men will not be thrown together, and right and wrong will not be confused.
anton asked if xunzi's philosophy authorizes the state to kill as a form of punishment. i said "yes," but it was a tentative assertion that needs justification. this is a legal & political issue. death penalty is as old as the existence of the state. the analysis of right and wrong the political/legal realm is a bit different from the ethical/moral realm. the latter concerns selves and their actions, the former comprises institutions & rules (legislations).

¿what sort of punishment will apply in the case of a murderer who killed his wife and child? (a typical, everyday, murder case).

anton's maximum allowed penalty for the criminal's transgression is life in prison without the possibility of parole.  let's call it abolitionist lemma:

no matter the degree of the murder, the state cannot kill the murderer.

let's set aside the political aspect: if this was a rule, the state would adopt it as an enactment of consensus? (see the diagram above).

of course, there is the much debated issue of "deterrence." granted, capital punishment may not stop capital crimes. but xunzi is not going for a consequentialist argument here. he would be arguing in favor of Zhong-Yong (proper balance, measure).

 the abolitionist's lemma transgresses the very limit it purports defends.

if life was sacrosant, the criminal shouldn't be spared the limit he already trespassed twice.

xunzi would defend justice in the sense of balance or proportionality. there are degrees of severity of punishment for different degrees in mens rea. for example, the 8th amendment proportionality principle, i.e., a minor who commits murder cannot be killed by the state. why? if the deterrent value of capital punishment rests on the assumption that "we are rational beings who think before we act, and then base our actions on a careful calculation of the gains and losses involved," then a teenage offender is unlikely to make this kind of cost-benefit analysis.

adults are a different story and so, the charge of "revenge" comes in.

what's revenge? the infliction of punishment "in return", retaliation. the retaliation part of revenge may seem akin to that of justice, but there is a big difference. it's clear that not all forms of retaliation are fair.

3- revenge cannot possibly cast away these two: spite and vindictiveness & justice cannot be fair and vindictive, it cannot administer fairness our of spite. what makes for the difference is proper measure.


Anonymous said...

in my opinion, the death penalty isn't a form of revenge, because its people who have no emotional connection to the death, its a group of people who know th flaw and want to do the justice thing.
a person who killed his wife and kid shouldn't get death penalty. they're not someone who is going around killing for the fun of it, or pleasure. its someone who had a lot of emotion towards the family.
now, if we talk about a serial killer, thats different. he's killing for personal pleasure, and the feeling of taking someone's life. they get a thrill. a person like that, death penalty is a fair choice.
i dont agree in killing someone who murdered a life or two. its wrong, but life in prison is fine. but someone who murdered a handful or more, they deserve this. a serial killer kills out of joy, always random people or a certain type of look, but they are mentally sick, theres no cure for it, they will always enjoy it, its in their dna. I'm all for another alternative and no justification for killing innocent lives, but I'm also all for fairness and getting rid of the bad fruits. a eye for an eye, which doesn't make the whole world blind.

Anonymous said...

I am going to have to really agree with Angie... By giving someone the death penalty just a way for some to get revenge over someone who has killed someone that may have been close to you and in this case, getting that satisfaction of knowing that the person that has killed your loved one is now going to get the death penalty is a sense revenge on that person for what they have done. But in truth it's really not going to change anything because you have lost someone that was dear to you and now someone else is going to be feeling the same way. I feel that not one person on this earth is allowed to have a say so in someone living or dying.... We were not the giver of that persons life so why is it ok for us to take it away from them, and that is the same thing for the person who was the killer first. Overall, Two Wrongs Won't Make A Right.

Anton said...

I worry that the debate of the death penalty has been sidetracked to a rather large straw man. Revenge is simply a jab at my perceived absurdity of the topic. Allow me to topple the straw man with the abolitionist's greatest ally, Batman.
Within the Batman lore a recurring theme is the hero's dilemma of why he does not simply kill the criminals he constantly pursues. Within the Nolan interpretation the major dramatic question of the Dark Knight was whether or not Batman would kill the Joker. It is the villain's prerogative to seduce the vigilante to join him in the pantheon of men who take lives. The Joker is very much an existentialist as he perceives the absurdity of life, he lives in a world where men are killed for killing and for that reason he takes the persona of a clown, to laugh at the madness he propagates. The Joker is a madman because he kills with no rhyme or reason, he even possibly takes pleasure in doing so. Batman is confronted with the fact that the Joker upon capture will escape and kill countless more again and again; however the vigilante realizes that to kill a man for killing a man would make him no different than a man who kills for the joy of it.
Another hero who neglects taking lives is Superman. In the film adaptation, Man of Steel, comic book writers who have created the lore of the hero came out in protest. In the film Superman kills the antagonist as it seems there is no alternative. Logically Superman kills to prevent further deaths. The original writers point out that the Superman of the film was not a hero, simply a very strong man who could fly. Superman is not a hero for his strength, he is a hero for always finding a solution other than murder.
Capital punishment is a utilitarian dream, however it fails to recognize the cycle which it produces. Were Batman to kill the Joker then he himself would become a villain. Is it not the responsibility of the state to deal with the most heinous of crimes without succumbing to the same fall that the criminal did?
The death penalty is not a question of revenge, it is one of reflection. When a man hangs before an audience who believes they have made the "difficult" choice in killing him, he becomes a mirror which reflects the same qualities in both the madman and those who call themselves just. In the words of Dale from the walking dead: "when the world went to shit at least I can say it didn't take me down with it."