Re: FW: A Very Chilling Article by Scalia

[Jim Farmelant <farmelantj@xxxxxxxx>]

On Fri, 9 Aug 2002 10:53:39 -0700 "Craven, Jim" <jcraven@xxxxxxxxx>
writes:
> 
> http://www.firstthings.com/ftissues/ft0205/articles/scalia.html
> 
> Here are some choice excerpts to tempt you to read it:
> 
> The reaction of people of faith to this tendency of democracy to 
> obscure
> the divine authority behind government should not be resignation to 
> it, but 
> the resolution to combat it as effectively as possible.
> 
>                         And this:
> 
> our people are more inclined to understand, as St. Paul did, that 
> government
> 
> carries the sword as "the minister of God," to
> "execute wrath" upon the evildoer.

Also, take notice of his defense of retributive punishment
(including the death penalty).  

"Besides being less likely to regard death as an utterly 
cataclysmic punishment, the Christian is also more likely 
to regard punishment in general as deserved. The doctrine 
of free will?the ability of man to resist temptations to evil, 
which God will not permit beyond man?s capacity to 
resist?is central to the Christian doctrine of salvation and 
damnation, heaven and hell. The post?Freudian secularist, 
on the other hand, is more inclined to think that people are 
what their history and circumstances have made them, and 
there is little sense in assigning blame."

"Of course those who deny the authority of a government to 
exact vengeance are not entirely logical. Many crimes?for 
example, domestic murder in the heat of passion?are 
neither deterred by punishment meted out to others nor 
likely to be committed a second time by the same offender. 
Yet opponents of capital punishment do not object to 
sending such an offender to prison, perhaps for life. 
Because he deserves punishment. Because it is just."

Scalia is quite right in arguing that a defense of punishment
as retribution presupposes a belief in a contra-causal
free will, and that the so-called post-Freudian secularist
will be quite skeptical of this concept, precisely because
he or she will perceive the incompatibility of free will with
any sort of a scientific world-view.  (And I would add it
is not just post-Freudians who have perceived this,
people like Hobbes, Spinoza, and Hume, not to
speak of our dear friends, Marx & Engels perceived this
long ago, too).  As Scalia rightly points out in societies
where religious faith has faded, people will become
increasingly skeptical of such metaphysical, quasi-theological
concepts as contra-causal free will.  And rightly so, IMO,
because such a  belief has little rational basis despite
the best efforts of theologians and metaphysicians
over the centuries.

And while the consequences of abandoning such
a belief may seem dire to our ruling classes,
who find the notion of retribution a convenient
basis for rationalizing repression, the rest
of us need not find this to be too disturbing.
First of all, justifications of punishment
in terms of incapacitation, deterrence,
and/or rehabilitation need not be undermined.
Indeed, all these other rationales make much
more sense if we take a determinist view
of human behavior.  If human actions are
truly as capricious as the libertarian (believer
in free will) would have them, then there would
be no reason to expect deterrence or rehabilitation
to be ever efficacious.

Second, the consistent determinist would IMO
tend to give much greater weight to the necessity and
feasibility of crime prevention, which would
include altering social institutions to reduce
the criminogenic conditions of our society.
Justice Saclia argues that opponents of
capital punishment are inconsistent since
so many of them are willing to accept harsh
punishment (short of death) for even murderers
who kill out of passion.  Such murderers in
the Scalia's opinion are not likely to be deterred
by punishment, nor are they very likely to
reoffend.  Now here, I think that Scalia has
almost stumbled into a valid point.  No
doubt many opponents of capital punishment
are not entirely consistent in their philosophies
of punishment.  Furthermore, I would go further
and argue that he is probably right here, that
deterrence is probably ineffective with these
kinds of murderers and that they tend not
to reoffend.  So I will take the shocking but
consistent position, that if Justice Scalia's
presentation of the facts is correct, then
harsh punishment as a general rule for
these types of murderers is not justified.

I would also point out here, that as usual
there is a class dimension to all this.
When our murderers of passion are working
stiffs, and if they are also people of color,
they are highly likely to be charged with
committing first degree of muder, whereas,
if they are affluent petit bourgeoisie or
bourgeoisie, they have a much greater
likelihood of having their charges reduced
to perhaps manslaughter, or second degree
murder.  And these affluent defendents,
with their top notch attorneys are much
better equipped to find all sorts of extenuating
circumstances, so that judges and juries will
take a more sympathetic view of their
conduct.  In other words they are well positioned
to avoid the harshest strictures of the law,
when as a matter of course such mercy ought
to be made available to all defendents who
are in their circumstances.

In our current situation, in the US, the wealthy
can afford to buy the sort of "post-Freudian
secularist" justice that Scalia condemns whereas
working stiffs must make do with the retributive,
vengence-oriented justice that he thinks all
good Christians ought to support.

Jim F.

> 
> Jim C
> 
>

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