Is Caning Less Cruel and Unusual than Community Service?

Political cartoon from Kenya, where the answer is evidently yes.

In what was arguably the least politically correct conversation I’ve had this year, a friend and I discussed crime and punishment last night. He suggested that, in keeping with the idea of avoiding cruel and unusual punishment, we should institute public caning as punishment for petty crimes like graffiti and shoplifting.

Needless to say, I was a tad bit confused.

He reasoned that a $10,000 fine and 150 hours of community service is actually more cruel and unusual for your average young hoodlum than corporal punishment coupled with public humiliation would be. Cruel, because a $20,000 debt is enough to seriously harm someone already making somewhat stupid decisions. Unusual, because mandatory community service does not actually create the fear of the law that prevents future criminal behavior.

Aristotle argued in the Nicomachean Ethics that the state ought to cause pain for wrong actions, in order to compensate for whatever disordered pleasure perpetrators get out of them. Certainly, corporal punishment has been legally prescribed throughout most of human history. At the most basic, natural level, people want to avoid physical pain and harm to their bodies even more than monetary burdens or the loss of time.

Debate: is public caning egalitarian, natural, and effective as a punishment for petty crime? Or is it needlessly violent and cruel?

A War of All Against All: Hobbes’ Interpretation of Natural Law Share

Modern notions of the natural law differ from the classical one in two very important respects. The first is the introduction of the concept of the state of nature, which would become practically universal in the modern setting. The second is the emphasis on individual rights in the abstract, as opposed to rights among members of a community. The natural law of the modern era undergoes a fundamental shift in the thinking of Thomas Hobbes, whose formulation of the origins of the state, along with the philosophical anthropology underlying it, was to set the stage for the discussion of natural law for the next few centuries.

Outside the Fold: Natural Law, Civil Law, and Illegal Immigration

As Zach pointed out in his last piece here, the natural law authorizes positive, civil law written by humans. One of the main functions, as Zach explored, is to encourage people to do good and to avoid evil. Two other important functions of the law are to protect the weak, and to establish the rules by which people in society can predictably act.

Hammurabi’s Code, written four millennia ago, stated that it existed so “so that the strong should not harm the weak.” Virtually every other code of laws since has echoed such an emphasis on securing the rights of the downtrodden. Biblical law permitted the poor to glean leftover bits of grain from the harvest so that they could survive. Greek and Roman Republican law enshrined the notion of equality under the law, such that even rulers had to submit to the law. The constitution that Muhammad wrote for the City of Medina granted Jews, Christians, and pagans the right to bring Muslims before the authorities to redress wrongs.

The other idea, that the law exists to clarify what people can do so that they know what life will bring within the control of the authorities, seems self-evident. The very notion of a state is that it will be the ultimate arbiter between people with conflicting claims, and that it will hold up a consistent law that people cannot be punished outside of.

Sonia Sotomayor: Sophist or Justice?

When I heard of President Obamas’s choice of Sonia Sotomayor as his nominee for David Souter’s seat, I was not too surprised at all, but a bit disappointed regardless. Another activist SCOTUS justice is the last thing this country needs, when the rule of law is held to a disreputable standard and fiscal moderation has all but perished. After having read, however, some of Justice Sotomayor’s previous remarks, I’m convinced that her words can convict her of distorting the natural law, even if her convictions cannot; since one cannot affirm the existence of natural law by assertion and deny this same existence by conviction, unless one is very careless with their words — something not becoming of a U.S. Supreme Court Justice. The promulgation of a distorted natural law in positive law presupposes that there is an objective right to be distorted in its application to the laws. My request would be that Justice Sotomayor make her rhetoric match her philosophy, or disregard one for the other — and while I would prefer one to the other, I would above all seek consistency.

For too long, progressives have held there to be a distinction between facts and values. A fact is something which can be proven to be true (usually meaning by means of science); a value is something I prefer over something else merely because I prefer it. In this conceptual framework, politics are either decided on the basis of facts ‘or’ values, one or the other. There cannot be policy based on both. Since one, therefore, or the other must prevail, and because facts cannot be easily discerned in terms of moral choice, progressives have long based policy-making on the politics of preference. The only norm which exists is that norms themselves change over time, and it is the role of the lawmaker to discern when such a shift occurs, and adjust positive law as necessary to compensate for this change.

Render Unto Caesar…

As I first heard the news that Abdel Baset al-Megrahi, known otherwise as the Lockerbie Bomber, would be permitted to eschew his sentence and return home to die in Libya, I was quite puzzled and looked for a reason why Scotland would pardon such an infamous character. Yet it does not take long, at any rate, for one to arrive at the main reason for such a decision. Compassion in the hearts of those officials in Scotland is their motivation for the release of this man, the only person convicted in the Pan Am Flight 103 bombing, which claimed the lives of 270 people on December 21, 1988, including 11 on the ground as the plane crashed into the town of Lockerbie, as a veritable ball of flame and exploding gasoline.

Now as a Christian, a member of a religion which openly professes the creed of mercy and compassion to all, I am not immune to pleas that al-Megrahi should be treated in the dignity deserving of a human being. At the same time, I am reminded that Christ himself warns us, in not light terms, “Ἀπόδοτε οὖν τὰ Καίσαρος Καίσαρι καὶ τὰ τοῦ Θεοῦ τῷ Θεῷ”: “Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s” (Matthew 22:21). In the face of those who argue that the message of Jesus is that of a man convinced that this world is one soon to pass away, these words hit with the strength of boulders. They bring sobriety and a touch of reality to the believer when he is persuaded by his own arrogance to treat this world as if the Kingdom of Heaven has already come. Yes, al-Megrahi should be treated as a human being, one made in the image of God; but not as if he never did anything wrong.

Justice and the Natural Law

A common attitude associated with positive law is that when the law is carried out, it also so happens that justice is carried out as well. There are any number of things wrong with this conception of justice. Is it considered just when an unjust law is carried out? Does a man carrying out the law for unjust reasons do a just act by carrying out a just law. These questions will, I hope, illustrate the difficulties inherent in attempting to impose a conception of justice within positive law which will itself provide a satisfactory idea of what a just law is. It is only within natural law, I will argue, that one can have recourse to know what a just law is in the context of positive law.

Redemption, Shawshank-Style

This week, I finally watched the critically-acclaimed 1994 blockbuster, The Shawshank Redemption, starring Tim Robbins and Morgan Freeman. If you have never seen it and intend to, as I would strongly encourage you to, stop here: major plot elements will be revealed in this very late review!

Based on a short story by Steven King, the movie is about Andy Dufresne, a banker who is framed for the murder of his wife and sentenced to two consecutive life terms at Shawshank Prison. Over the course of the next twenty years, the plot follows Andy in a way that shows a deep appreciation for natural law.