AW: Iraq Constitution
VOLOKH at law.ucla.edu
Tue Aug 30 14:12:53 PDT 2005
The difference between hunting witches and executing Hermann
Goering is that real witches don't exist. Real mass murderers
unfortunately do. Executing mass murderers reminds the victors of the
enormity of the victims' suffering, and of the obligation that it
imposes on us to punish the butchers in some way that's at least
modestly proportional to their immense crimes. It also reminds the
world, I hope, that, as I said, atrocious crimes demand stern
I realize that at some point we get down to moral axioms, and
further justification won't do much good; nor do I want to spend much
time rehashing the debate about retribution, on which a great deal of
ink has been spilled. But I want to make clear that those who believe
that the death penalty is a (rebuttable) moral imperative have not given
up the battle, or conceded that all would be better and more just if we
only avoid supposedly "dirtying" our hands with executions.
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bob Sheridan
> Sent: Tuesday, August 30, 2005 2:02 PM
> To: isomin at fas.harvard.edu
> Cc: SLevinson at law.utexas.edu; conlawprof at lists.ucla.edu
> Subject: Re: AW: Iraq Constitution
> Being a product of the WWII generation, and seeing the world
> through the
> eyes of the victors, I've had no problem whatsoever agreeing with the
> measures adopted by the victors to gain and later consolidate
> from the A-bombing of Hiroshima and Nagasaki, the carpet-bombing of
> Germany, to the trials afterwards, of Yamashita (trial criticized),
> Tojo, and Nuremburg.
> That was then, and this is now.
> It is too easy to say "Off with their heads," as though we
> around here
> were the mad queen. It's too easy to justify further killling, which
> justifies further killing.
> One of the principles of considerable importance in the
> Law that I read is that one is often duty-bound to choose the least
> restrictive means to accomplish some goal from penal, to
> commercial, to
> matters of regulating expression. Why not in the decision to take
> life? I know when the taking of life is justified in allegedly
> civilized society, domestically and internationally; I've
> been seeing it
> all of my life.
> I'd like to know what principle exists that militates against the
> too-easy taking of life. We have religious principles "Life is
> sacrosance," moral principles, legal principles, but we apply them so
> selectively that we are still able to kill an awful lot of not so
> sacrosanct lives. We have religious leaders publicly advocating
> assassination. Instead of being the last of the means to relieve the
> poor man's frustration, assassination is the first. That tells me I
> want to be on my guard when I see trained people telling me
> it's okay to
> kill someone, for after all, he's an enemy. To the Committee
> in France,
> there were a lot enemies, and an awful lot of heads rolled. This is
> fairly regarded by some as a mistake.
> My problem would be where to draw the line if you told me to start
> chopping off the heads of the enemy; I wouldn't know where to
> stop. So
> perhaps I shouldn't be encouraged to get started. I don't
> have an awful
> lot of confidence in the others either, who egged me on or
> chose to do
> the job themselves.
> So people take satisfaction in seeing heads roll?
> Great, let 'em roll.
> But don't tell me this represents progress since the time we
> hunted witches.
> What strikes me here is that a few people who are masters of legal
> strategy, interpretation, and creativity can do no better than to
> justify further head-chopping, admittedly for the deserving,
> with not a
> care what it teaches the victors. Truly this is a morality
> befitting a
> dog-eat-dog world, which I've said I see is the case, absent more
> effective international controls than I've been seeing
> recently. This
> doesn't mean that I happen to like it or don't think we should try
> harder to see that there are better international controls to
> us as well as them. I think we may need it more, considering
> our power
> and propensity to dash off on deadly military adventures,
> than they do.
> I expect high schoolers to be willing and able to justify
> I was hoping for better among the more scholarly, that's all.
> isomin at fas.harvard.edu wrote:
> >Well, yes, there are still neo-Nazis in Germany, but there are ideas
> >hardly still have anything remotely approaching the same level of
> >support as before. And I would suggest that the decline in
> support is
> >not entirely unrelated to the completeness of their defeat,
> and their
> >exclusion from power and public life after WWII. And, yes,
> also to the
> >punishment of their surviving leaders.
> >Ilya Somin
> >Quoting Bob Sheridan <bobsheridan at earthlink.net>:
> >>Somehow, I was hoping not to see any Conlawprofs suggesting
> the need
> >>to execute the old regime, whether en masse or by
> cherry-picking the
> >>most deserving. Seems to me we've been there, done that,
> and we still
> >>have neo-Nazis. If killing people killed ideas, perhaps we wouldn't
> >>have so many bad ideas. I was looking for a better idea.
> Didn't some
> >>of the leading Nazis survive for years behind bars? Which produced
> >>the better effect, the hangings or the imprisonments, I wonder.
> >>The ex post facto aspect isn't very impressive, either.
> As I recall,
> >>when Justice Robert Jackson took time off his high court duties to
> >>lead the prosecution at Nuremburg at the request of HST,
> some of his
> >>more critical colleagues thought it an exercise in expostfacto.
> >>Of course, if this is a big TRADITION, I can clearly see it.
> >>isomin at fas.harvard.edu wrote:
> >>>Of course, in case it was not clear, I did not advocate "mass
> >>>executions." I advocated "executing top Confederate
> leaders guilty of
> >>>treason." Similar to
> >>>way we executed a number of top Nazi and Japanese leaders
> after WWII,
> >>>a set
> >>>events which I think facilitated rather than prevented the
> >>>establishment of democratic constitutions in those countries.
> >>>Ilya Somin
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