Doing The Right Thing

There is a fundamental distinction in ethics that I have never seen anyone make  — not even the professional philosophers who study the subject. That is the distinction between what is right and what a person would actually be likely to do in a given situation. Indeed, I have seen professional philosophers quibble with Kant, for example, and dismiss his entire ethical edifice on the grounds that no one could possibly act that way in fact. But, as Kant himself said many times, he was not doing “anthropology,” he was doing philosophy. And the job of philosophers in ethics is to try to determine what is right, not what people would actually do. We can take it as a given that people don’t always do the right thing.

Take the case of capital punishment, which I posted about in a recent blog. If my wife or child were killed and the police caught the killer who was then tried and found guilty I would almost certainly want that person drawn and quartered. That’s what I would want — because I am angry and resentful. But I have never seen an argument yet that persuaded me that capital punishment is the right thing to do — especially, as my friend BTG points out, now that DNA tests are showing how often we find the wrong person guilty. All of the arguments, including Francis Bacon’s pithy statement quoted recently about revenge being a sort of “wild justice,” tend the other way: capital punishment is institutionalized revenge. It is brutal and may make us feel good — “give us closure,,” as we like to say — but it is not right.

Admittedly, the attempt to determine in a given case whether an act is right or wrong is immensely difficult. It is so difficult that many intelligent (and especially unintelligent) people shrug their shoulders in dismay and then abandon the effort. But the attempt to determine right and wrong is like a jury trial: there is a correct answer (the defendant is either guilty or he is not, he can’t be both guilty and innocent) and we simply need to think about it until we can see what the correct answer is. Similarly, a given act is either right or wrong, it cannot be both. We will never reach the plateau of certainty in ethics — as Aristotle famously said it is the mark of an educated person to look for the degree of precision that the subject allows — but we can reach a tentative answer that stands up to criticism. That’s the best we can do, and it is a hellova lot better than shrugging one’s shoulders and giving up, resorting to a sort of mindless relativism where all ethical answers are matters of opinion: you have yours and I have mine.

This sort of relativism, as I have noted in previous blogs, leads us away from the challenge of trying to find the right answer — like raising one’s hand and excusing oneself from a jury trial. If we stay around and weigh the evidence, look at the issue from both sides, and think about possible courses of action, we might reach a level of confidence that seems solid and assured, at least until further examination. From where I sit, capital punishment is wrong — even though I may want to see it done if someone close to me were murdered. What I want and what is right are two entirely different things and the two only coincide perfectly in the case of the Saint. Or, perhaps, Immanuel Kant.

Sweet Revenge

I have blogged in the past about the inherent problems with capital punishment — chiefly the fact that humans who are inherently fallible make the decisions that determine whether another human will die for a presumed crime. But the recent conviction of Dzhokhar Tsarnaev, 22 year-old found guilty of participating in the bombing of innocent victims in the Boston Marathon in 2013, raises the issue anew. This is especially the case since the young man was found guilty and sentenced by a jury in Boston, Massachusetts, presumed to be a liberal and enlightened city in these United States.

Recall with me a quote from Francis Bacon who said at the turn of the seventeenth century:

“Revenge is a kind of wild justice, which the more man’s nature runs to the more ought the law to weed it out.”

The presumption Bacon makes here is that the law should “weed out” the human tendency to revert to revenge, that revenge is not something we humans ought to be motivated by and it can and should be inhibited by civil law. And yet what possible justification can there be for capital punishment, even in the case when it is crystal clear that that human has taken another life, or lives, except revenge, pure and simple? The usual problem with capital punishment, that human beings are prone to error, especially in moments of stress, cannot be raised here. There is no question of Tsarnaev’s guilt in this case. Three people were killed and many more injured seriously. The question is whether death by injection, as ruled by the court, is called for in this case in a country that prides itself on being humane and civilized.

As Bacon suggests, revenge is a kind of “wild justice” and certainly not worthy of rational, civilized persons who claim to be obedient to the rule of law. Presumably the civil law is consonant with the moral law and if it is not we have no obligation to obey it — as Martin Luther King reminded us many years ago. It is precisely the civil law that is supposed to help civilize us and make us more amenable to the softer virtues of compassion and sympathy for our fellow humans. And, if Bacon is to be believed, law also ought to curb our desire to get revenge on those who do us harm. When we ignore these tenets we lower ourselves to the level of those who live by “wild justice.” Revenge may be sweet, but it is not something we ought to lower ourselves to if in doing so we risk doing irreparable damage to ourselves in the process. Toward that end, law ought not to encourage capital punishment; it ought to “weed it out.”

At a time when those who are pledged to protect and serve the cities in which we live are charged with unfettered and unjustified violence toward, in many cases, innocent civilians, we naturally begin to question the legitimacy of civil law. But there is a difference between respect for those laws when they promote the common good and the human beings who occasionally abuse the privilege of enforcing them. For myself, I think those who abuse the position of protectors of law and order should be punished and punished soundly. But we cannot turn our backs on the law itself when it is precisely that which separates us from brutes — which is what we become when we insist that revenge is lawful. Bacon was right.