Monday, November 28, 2005

A Fundamental Question in Basic Political Philosophy

When is it appropriate for the state to do something it forbids its citizens from doing? I think about this question constantly in the context of the death penalty. I am deeply opposed to the death penalty, and I once invented a rationale that I thought was beautiful in its simplicity: the death penalty was wrong, because it undermined the integrity of the law. How could the state engage in an act of violence, of killing, especially since most of the time the death penalty was meted out to murderers? How could this possibly teach the respect for life which was embodied in the legal prohibitions against murder?

Since I’m not an absolute pacifist, I even thought through a justification for killing in war. Wars occurred between nations (not, one hoped, within them—although this too is common enough), and this meant that, in a very real sense, the existence of international law and the laws of war notwithstanding, they were activities outside of the law. In a functioning legal system, where it was possible to maintain the public safety by putting violent criminals in prison, there could be no justification for state-sanctioned killing. Self-defense is, to my way of thinking, a special exception, but it too represents a breakdown of civilization, because we would (or, at least, should) prefer to have the police there to disarm and arrest the dangerous. And self-defense is, for the most part, state sanctioned but not executed by the agents of the state. Sure, in the midst of danger police sometimes kill, but there is, or ought to be, a sense that this act represents a failure. It would be better to try the individual, to convict him after due process of law and sentence him to an appropriate punishment. It’s plenty common to see people mutter under their breath after some publicized shoot-out, “Well, at least we saved the cost of a trial.” But this always makes me shudder with some disgust. Self-defense of this sort may be necessary, but it can never be the preferred outcome.

But for many (and not just in Texas or Virginia) death seems to be the preferred option, the punishment of choice. And when we impose a sentence of death, deliberated on by a jury or judge, and marked with the authority and force of the entire legal system, something qualitatively different from self-defense is happening. And I think that that something is wrong, because it is not an action committed under duress, in the heat of passion, or in war.

I feel this distinction in my bones. And yet, sovereign states do things that individuals are not allowed to do all the time. They can force people to sell their property for public use; they can confine people involuntarily following whatever constitutes something as nebulous as 'due process of law'; they can force their citizens to pay them money, i.e. taxes--and unless you are a pure libertarian, you accept all of these things as being of the nature of governments.

So, here’s the question, when is it morally justified for the state to behave in ways that would not be tolerated if they were acting as individual citizens and how do you draw the line?

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