A Plea Against Death Penalty: Why do we seek retribution?

Retributive disposition rarely afflicts reasonable people in their personal lives as far as a moral or ethical (nonlegal, nonenforceable) breach is concerned. If somebody betrays us, and are not transparent, we are unlikely to betray them in return — we are more likely to seek the truth from the betrayer.

The same goes for trust — if somebody hasn’t been trustworthy, we are unlikely to in turn be untrustworthy towards them. Instead we seek to expose their lies.

If somebody has wronged us, we, personally, rarely, wish to wrong them as compensation. We might think (sometimes even hope) that bad things should happen to them, but we, ourselves, are unlikely to perpetrate it — we are afraid that that will make us no better than them. That by doing so we would face undesirable consequences resulting in a continuous game of reprisal due to which our loved ones might fail to recognise us; where we would, ourselves fail to recognise who we have become.

What we often seek to do is to find and expose the truth to other people, not perhaps for the sake of truth, but for the very instrumental role that truth can play. In the hope that they will be ostracised from all that helps them flourish, from society, from friends, and institutions, etc.

While what I have claimed is restricted to the realm of moral and ethical norms or violations of law which are relatively minor — breaking a contract, say which has personal but nonsocial ramifications, not keeping your word, breaking a promise, lying, and such. But if someone whom we love is physically hurt, we hope that the perpetrators face the consequences of their wrongdoing.

When it comes to wrongs that are primarily moral or ethical, or are minor violations of law — the truth seems to play a role in how we treat the rule breakers, but when it comes to severe rule breaking, we, as a society, seek redemption through retribution, reprisal for the sake of reprisal, infliction of pain for the sake of inflicting pain. When crimes get more severe, we tend to become vengeful. The value of truth in our minds diminishes with respect to the severity of the crime.

The motivation or the reasoning by which we come to conclusions about how the life of a murderer or a rapist ought to go is guided not so much by empirical evidences regarding the deterrence effect of death penalty, nor by the philosophical arguments concerning the virtues of reformation.

Instead, our reasoning is guided by inflicting commensurate harm for the crimes that were committed, even after the threat they pose has been neutralised. We know from empirical work that the effect on deterrence the death penalty imposes is gravely questionable regarding the subsequent rates of the commitment of severe crimes.

In a highly cited paper “Uses and Abuses of Empirical Evidence in the Death Penalty” (2006), Donohue III and Wolfers, in the context of the US, find that death penalty does not have large effects on the murder rate. Furthermore, in a very recent global study (2015) about death penalty, Roger Hood and Carolyn Hoyle, after studying the US context, reach a stronger conclusion that it shouldn’t be readily accepted that grave crimes like murder are deterred any more by death penalty than life imprisionment.

I am not aware of any such sophisticated econometric study that has taken place in the Indian context, we do urgently need one, but we can reasonably hypothesise by looking at evidence elsewhere that we might reach the same conclusions; the deterrent effect of death penalty is seriously questionable.

Regardless of the efficacy of the death sentence on deterrence, we must ask ourselves that when those individuals who have committed grave crimes remain neutralised by incarceration, by demanding that they be killed: what more are we seeking?

Image courtesy of OpenClipArt

Justices Pinaki C Ghose and R F Nariman, in a recent judgement (2017), rehearsing the 262nd Law Commission report held that the death penalty “breaches the reformative theory of punishment under criminal law”.

Contrary to the reformative philosophy that guided the aforementioned judgement, the Supreme Court in its judgement of the Nirbhaya rape case held that “deterrent punishment [must be] commensurate with the gravity of the offence to be awarded”, that the courts “should impose punishments befitting the crime so that it reflects public abhorrence of the crime”. The philosophical thrust of a true Republic is that it prohibits law to respond directly to public outrage.

The death penalty permits the State to kill threats that have already been neutralised: if law did not permit it, would we think differently? If the death penalty did not seek to appease the “collective conscience”, would we ask more questions?

Many ‘arguments’ that one sees circulate about the justification of the death penalty is a simplistic one: ‘oh but the law allows it’. In our minds, however, the question should be a counterfactual one: if the law didn’t allow it, then what would our arguments be for the State to begin allowing it?

By attempting to answer this question for each and every case where the death penalty is involved, we might become more reflective on the reasons that underlie our demands for somebody to be killed. By asking this question, I think, we might come closer to truth.

This article was previously published in Indian National Interest

Another reply to Singer and McMahan

A former philosophy professor, Anna Stubblefield has been convicted of raping DJ, a man with cerebral palsy whom she was trying to help communicate.

I suppose much of this case depends upon how one thinks of DJ, the victim in this rape case. To those who think DJ has innate capabilities behind the veil of the symptoms of his condition, might be sympathetic to Anna Stubblefield. Philosophers tend to think of agency as the ability to form life goals; have preferences; and implement these goals and preferences. Those who might think that DJ’s condition does not enable him to form these preferences and goals, and provide consent, might think that Anna Stubblefield was in the wrong. Astonishingly, it seems that those who might think DJ lacks agency will demand a harsher punishment for Stubblefield than those who think otherwise.

Philosopher’s Peter Singer and Jeff McMahan weigh on the case:

I have been very troubled over the last few days about how Singer and McMahan argue about what it means if one doesn’t resist rape. They make it sound as if: if one doesn’t resist rape, it’s not rape. This is a bad patriarchal argument that’s been refuted a zillion times. Which world are they living in?

Now, Singer and McMahan write that DJ, being cognitively impaired, lacks the concept of consent altogether. But they go on to say that the fact that DJ didn’t resist rape means that he might have in fact found it pleasurable, and so as their reasoning goes: because he found it pleasure given that he didn’t resist, Stubblefield did not rape him. This sounds wrong for a reason I have mentioned above. But additionally, reading their argument, I began wondering if feeling sexual pleasure is in fact an ability, and whether this ability that DJ apparently has according to Singer and McMahan, might undermine their premise that DJ is severely cognitively impaired. Does the ability to feel sexual pleasure mean that somebody is less cognitively impaired?I have absolutely no idea, but Singer and McMahan have no idea, either; yet the base their arguments on such a weak premise. If DJ can in fact feel sexual pleasure, it seems obvious to me that he might understand the concept of consent because having the ability to feel sexual pleasure also grants one the ability to feel sexual harm, and if one can in fact feel sexual pleasure and therefore sexual harm, it seems to me that they do not lack the understanding of consent, or what sexual relations mean. This article in ‘Feminist Philosophers’ alludes to this point as well.

While reading these articles I was reminded of Shelly Kagan’s modal personhood argument that he presented at Oxford a couple of months ago. He argued that, morally speaking, our approach to animals should be hierarchical – we should all treat animals in a way that is dignified but from from a maximin point of view: animals must be ranked depending on their cognitive complexity (or agency). All humans however, must be ranked at the same level, including people with severe disabilities because they could’ve not been disabled (hence, modal personhood). I have no idea how one might treat foetuses in this scheme. One could argue that modal personhood doesn’t hold for foetuses because they aren’t people, but one could reply to this by saying that this is true only to following extent: they aren’t people yet; somebody could object that they have the potential to become persons. I have the intuitive urge to resist this modal personhood argument because it might be detrimental to a woman’s reproductive liberties.

So if you reject modal personhood, must you also reject the idea that people with severe disabilities have equal agency to those who aren’t disabled? If indeed you have to, then would you demand a much stricter punishment for Stubblefield? Should Stubblefield be punished on the grounds that DJ doesn’t have agency? This doesn’t sound right. What I am trying to say is: it’s not just utilitarianism’s fault, as this articles claims, that you might reach “repugnant conclusions”; deontology (agency, modal personhood) seems to be leading to the same horrible conclusions. Extending common moral concepts, whether utilitarian or deontological, from the ethics of abortion to animal ethics to ethics regarding disability leads to a confusing moral soup, with astounding counter-intuitive results.

One common misconception that the Current Affairs article presented on utilitarianism was that utilitarians will might be fine with majoritarianism or genocide. This is mistaken because before applying the maximisation principle of utilitarianism, these philosophers presuppose neutrality on ethical judgements – a sort of “impartial spectator”; the way you treat persons must not depend on their caste, religion, race, gender, etc. However, nevertheless, they will often get what it means to ground ethical judgements on neutral factors wrong, as Singer and McMahan’s article show. The way we do practical ethics must (probably) be thrown out of the window going by how badly we are thinking about this case.

From a scientific angle, it seems to me that there are other troubling things that this case throws up: how might one test the scientific validity of Facilitated Communication (FC)? Are control trials the best way to proceed if the outcomes might be influenced by co-dependent factors? Assume that even if you get robust probabilities regarding the efficacy of FC, you get so only at the macro-level, using aggregated data, how then, do you assess individual cases based on macro-level probabilities? This is far from a trivial question, given that how people’s lives go depend on it. Further, should some categories of scientific evidence not be shown in a court of law at all? Scientific evidence is never perfect; so where should one demarcate?

If  you assume that FC is scientifically validated and what Stubblefield’s FC technique  was legitimate, you might conclude that DJ not only has agency to the extent that he provided explicit consent, but also that therefore Stubblefield did not commit rape. If, on the other hand, if it turns out that FC is scientifically validated (say only marginally different from autonomous typing), but the way Stubblefied went about it was wrong, then it might turn out that Stubblefield committed a very serious crime, probably as serious to the case that if it turns out that FC is in fact pseudo-science, and DJ never could provide consent.

So it seems to me that to get morally consistent views in this case, much depends on the scientific questions stated above. FC itself needs to stand trial where the judge is some philosophy of science…

Finally, this case shows that it’s not only hard to draw a distinction between two apparent dichotomies such as providing the resources to somebody else for self-determination, and on the other hand, taking ownership of somebody else. They might in fact be confused with each other.

Thoughts on “When Breath Becomes Air”

I thought I would write about this book while it’s still fresh in my mind; I don’t think I will ever forget what the book means to me, its “centre” will always be with me; I don’t think I will ever forget the current that passed through me as I read the last paragraph. But it’s still good to write. This after all, was one of the lessons of the book.

Paul Kalanithi’s life was cut short by cancer at the age of 37. He was a father, a husband, a son, a brother, a neurosurgeon – neuroscientist, a philosopher, and a writer in all these capacities. You can see all these ‘selves’ sparkling beautifully in the book. He began “when Breath Becomes Air” when he was already quite ill, so as his wife, Lucy Kalanithi, put it in her deeply touching epilogue, there are many other ‘selves’ we don’t get to see in the book. This is a book written by a person who knew his death was near at hand.

Throughout, you can see him juggling these multiple selves, and towards the end of his life, this struggle became more acute. A philosopher once said that philosophy “is to understand how things in the broadest possible sense of the term hang together in the broadest possible sense of the term”. To apply this to Paul’s story would be to caricature it, but I think there might be some truth to doing so, nevertheless. He lived his life like a philosopher (people use this term for themselves too easily these days): he was exceptionally conscious to the moral force of each and every act of his; painfully aware of the moral consequence and meaning of everything he did. He wished to perfect himself, indeed, being a neurosurgeon, he saw this as a moral requirement. To understand what he had to do, he spoke to patients about life , about who they were, who they wanted to be, and what made their life meaningful. As a neurosurgeon, he was acutely aware of the fact that the fine balance of identity that people had constructed of themselves, the lives that they had authored, lay, quite literally, in his hands. A reflection of this fact he experienced deep in his breast, for his own sake.

As a philosopher of science (which, by the way, he formally studied at Cambridge), he understood the realm at which science operates and ought to operate: we use scientific theories to manipulate the world; to reduce the  physical complexity of the external world to simple, manipulable units. But that’s about it. If we see the world only through its lens, we would miss the point about love; a doctor would look at each patient as a problem to be dealt with, to be solved, to then move on. This is a mistake he never made.

Burke against arbitrariness: Burkean liberal constitutionalism?

I am coming to slowly appreciate the fact that the societal or institutional defences of liberalism turn out to be surprisingly counter-intuitive. While reading David Bromwich’s brilliant intellectual biography of Edmund Burke, I am beginning to realise that one of the the greatest threats to liberty and the basic freedoms of people is probably the arbitrary exercise of power. Though Burke is not thought of as a ‘liberal’ thinker, he was, however, a defender of due process established by constitutional history and precedent, added to that was his anxiety of the overreach of basic institutions: he personally disliked Wilkes, but stood for him intellectually nevertheless, because of the basic principle at stake: the overreach of the royal prerogative and the influence of the executive into the legislature. Similarly, when he fought against the Stamp Act, he was behooving the legislature to be more responsible towards their colonies; his reasons against the enforcement of the Stamp Act turned out to be similar to those that the American revolutionaries articulated against it – the peremptory exercise of parliamentary power.  Again, his attack on Hastings was a fight against overreach; against what Burke memorably called the “invention of government”; against government disguised as a commercial enterprise; and against moral corruption.

Now much has been written about Rawls but what needs emphasising  I think is his anxiety of arbitrariness in government,  Locke’s Second Treatise, some have argued, turn out to be surprisingly ambiguous  on the institutional protection of liberty, but he was, to be sure, dead against arbitrariness. In fact, one can argue, I think, that whenever Locke turned against the royal and executive prerogative his main concern was with arbitrariness. Similarly whenever Locke rebuked the legislature, though admittedly rarely, it was for the same reason: against arbitrariness. Further, the reason why people might opt out of the state of nature, according to Locke, was due to the danger of partial and arbitrary enforcement of the law of nature by way of the executive embodiment of each individual.

It’s probably a little counter-intuitive to think of Burke as a protector of freedoms, he has been, after all, deemed a ‘conservative’. To be provocative about it: It’s time that those who consider themselves liberal to revive certain constitutional traditions, and to maintain a sense of scepticism against drastic inventive action. What comes to mind immediately is demonetisation, pushing Aadhaar through as a money bill, the recent Supreme Court reading on the Representation of People’s Act, and when the SC thought it wise for people to stand-up for the national anthem before the screening of movies in cinema halls.




Brief notes on liberalism

I have been reading some literature on liberalism. Recently, I read a remarkable paper by Pratap Bhanu Mehta titled Pluralism after Liberalism? The paper is essentially a response to the sceptical turn of John Gray’s political philosophy. Essentially, I think, John Gray is troubled by the moral relativism which exists in the world, and the domineering tendency of liberalism to override this moral diversity. It reminds one of the Tacitus-ian  turn in 16th century English political philosophy, when natural law came under heavy fire from considerations of moral relativism. Hobbes comes to mind immediately.

Now, as is evident from the title, John Gray argues for broad vision of pluralism, as opposed to the homogenising tendencies of liberalism. But Pratap Bhanu Mehta, powerfully and energetically, by engaging with a substantial body of John Gray’s work critiques this argument. One cannot have a desirable sort of pluralism without liberal undertones. By expanding the concept of liberalism; by behooving Gray to accept a much more wide definition of liberalism, Mehta responds by arguing that moral relativism can only be expressed institutionally with the flexibility that liberalism provides. Indeed, liberalism precedes meta-ethics in that: discussions about the nature of moral statements can be undertaken only with a strong undertone of liberal tolerance.

Much is to be admired in this article: but the most striking thing for me personally, other than the argument about flexibility, was how Mehta conceptualised liberalism. He considers how liberalism can mix with different contexts, acquiring a flavour of its own; its own unique texture in a variety of contexts. Liberalism doesn’t have to proceed with the baggage that western political thought has bestowed on it. Groups and not just individuals, can indeed be the bearers of rights. This was striking.



Market place of ideas and considerations of social order

Last year, after the Charlie Hebdo attacks, I wrote a blog post on how we should be skeptical about absolute freedom of speech; that there are boundaries individuals should not cross even if their actions don’t  lead directly and evidently to violence. I reasoned that like the failure of economic markets; markets for ideas can fail, too: if a player in a market has too much power – a buyer or seller in an economic market, or the majority social and political group in a polity in the market place of ideas, the market would settle in a bad equilibrium. The market would fail, and harm people. In the Charlie Hebdo case, I was one of the “buts” because I thought that if a certain group has more power than another to set the narrative, the latter group becomes severely disadvantaged. In France, the white population, Christians, atheists, secularists belonging to the former and the mostly islamic, non-whites, belong to the latter. So there should be some form of regulation, I argued, not from the government, but from oneself; if one belongs to the majority group, decency behooves that one should exercise restraint.

I held on to this opinion until the sedition incident in JNU happened. But this was different, a group that was challenging power and authority, a group that did not have power in the central government, were the ones exercising their voice fiercely. I didn’t agree with most things that Kanhaiya Kumar and his group said, but surely, he had the right to say it; to challenge authority; and put forth his own narrative and theory of the Indian state. The case itself is complicated and sub judice but the smartest political commentators agree that what was said didn’t amount to sedition; that there wasn’t a direct and evident link to violence even though the slogans were offensive. I suddenly found myself defending absolute freedom of speech amongst my friends and colleagues.

There were a few other like me, too: those who condemned the violence in France but thought that Charlie Hebdo shouldn’t have drawn those cartoons that it did, and those who condemned the police crackdown on free speech in JNU. Were we hypocrites, as some accused us to be? I would like to think that I was not being hypocritical, the contexts under which my opinions were made were different. I began to investigate why I thought the cases were vastly different.

In the first case, it was the ‘majority’ that were exercising absolute freedom of speech; it was a more ‘powerful’ group, but in the latter, it was the ‘minority’ which was exercising their freedoms absolutely to challenge the mainstream. The concept of “equality” warranted different responses to the groups. Where on the one hand, arguably, the distance between the more powerful group and the less powerful group was being widened (France), in the JNU case the distance was being made to reduce.

A friend brought up considerations of social order in the context of free speech. He opined that there is a trade-off between order and liberty. I demurred when he told me this, I reasoned that if individuals didn’t take offense themselves to what was being said about their group; if individuals didn’t react violently to something that was said against them but instead responded again in speech (big assumption here: where the opportunity and space exist), then the exercise of your right itself would lead to order. If the element that caused disorder by individuals and groups was eliminated by the individuals and groups themselves and instead responded under the constraints of free speech itself then equilibrium would be reached.

I can immediately see that there is a contradiction here which  I haven’t resolved for myself: is the value of ‘not taking offense’ plus ‘assuming that the opportunity and space to say what you want to say and to be heard with patience exists’ trump the ‘value of decency and restraint’? Theoretically, as a liberal I would chose the former: I would argue that as individuals we should all imbibe the quality of not taking ourselves too seriously; of not taking offensive. This is a necessary condition for the development of individuals, and this condition might translate into achieving the propitious context under which absolute free speech will be happily exercised. I would argue, normatively, that it is healthy for individuals to be cautious of groups or to be suspicious of the ‘collective’. In the long run, I support this view wholeheartedly, but there are always immediate ‘practical’ considerations.

I suppose this is why Pratap Bhanu Mehta wrote this piece where he critiqued the liberal and conservative response to the Charlie Hebdo incident; fleshing out all the contradictions without resolving it.




Pakistan’s nationalism

Stephen Tankel in his book Storming the world stage said: “Like other countries that brought together disparate ethnicities as the colonial era came to a close, Pakistan became a state before it was a nation”

To what extent does this hypothesis make sense?

Gellner argued that many a European countries became states before they had cultural affinity and unity with one another (within a country) — state boundaries and institutions did structure a space where European nations like Germany and France came to exist. A spirit of nationalism within these countries and states were generated through the ‘social reproduction of knowledge’ via the education system whose services came to be demanded within a historical context of industrial development and colonialism. An export of this phenomena came to India in the form of the British trying to create ‘brown sahibs’ to run an administrative system of the Indian subcontinent — not of India or Pakistan or Bhutan separably and individually. Hence, in this conceptual context to say that Pakistan became a State before it became a nation is mistaken.

yet another historical category can be used by employing Gellner’s concept of nationalism to contest the understanding that Pakistan became a state before it became a nation. Now, the way Pakistan could’ve become a state before it became a nation is: a) by having certain institutions in place ( like separate electorates — which they did indeed have), and b) having instruments which could generate a sense of oneness within these institutions ( like Industrial Development and education in Europe), however, the instrument which could and did potentially generate nationalism in Pakistan was expressed through politics which impacted competition and exercise of power within these institutions of governance. Hence, the argument that Pakistan became a state before it became a nation does not seem to hold logical ground.