Wednesday, January 25, 2006

Can we face up to life's ugliness?

Dubber--I just realized his name is Markus D. Dubber, which explains all his references to German criminal codes and Hegel--cites in his casebook his own article "The Pain of Punishment," 44 Buff L Rev 545, discussing how we shift responsibility for the death penalty and its incredible violence by dividing the jobs up and selectively choosing our focus.

Juries say they are "bound" to impose the penalty if certain criteria are met, disclaiming responsibility; the jury must believe on the other hand that the criminal had complete discretion and free will when he commited his crime. Judges are viewed as interpreters of the law, rather than focusing on what they do, and what consequences flow from their words. (See especially the incredible article by Robert Cover, "Violence and the word," 95 Yale L J 1601, and his book, which I should read, on how judges legitimized slavery despite its obvious evil: "Justice accused: anti-slavery and the judicial process".) Tasks are broken up into parts, none of which is sufficient, but each of which is necessary, so that personal responsibility can be diffused (remember Kitty Genovese).

This is all very true, and very painful. But it lacks the argumentative final step to make it damning. Why does dividing responsibility to avoid direct moral contact make some activity necessarily bad? Calabresi has often noted that we just don't want to know about the weighting that companies do with our safety. Not to say they shouldn't do it; just that the knowledge itself is corrupting of our value of human life. Why can't an execution be viewed as similarly corrupting? A prosecutor must individually review child pornography evidence to convict the perpetrator--but why not divide when the task is divisible? Why are we required to face the magnitude of an execution full on, when wielding such horrible power can harm us? Bravery is a virtue, but can prudence in institutional design lower the burden on those who are not heroes?

Perhaps a more direct analogy is that of seeing your cow on its way to becoming a steak. It's not pleasant; but there is a colorable argument that the process is not immoral either. It is an easy position to say that everyone should have to make a trip to a slaughterhouse before they can eat steak. What's the backing for this, though, besides an intuition about fully understanding our life? Would most of us choose full understanding, like Faust, no matter what the consequences?

I can think of one powerful reason why allowing the shifting of moral responsibility is wrong: the reason is that the argument above is too dangerous. We can't be trusted with this shifting; it can let us perpetuate institutions that would cease if we were forced to confront them.

But it also might destroy institutions that are too difficult to bear, but that are valuable, right? Slavery is a clear case of moral distance enabling moral harm; slaughterhouses are perhaps a case of moral distance enabling good meals; and the death penalty is somewhere in the middle. Again, we are forced back to discuss substance when a salvo turns out to be contentless.

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