 The following article appeared, in edited form, in the
 September, 1992 issue of \Liberty\.  This file contains
 the original, unedited, and complete text.  Reproduction 
 on computer bulletin boards is permitted for informational
 purposes only.  Copyright (c) 1992 by J. Neil Schulman.
 All other rights reserved.
 
 
             IF EXECUTION IS JUST, WHAT IS JUSTICE?

                        by J. Neil Schulman
 
     Democracy has no more sensitive gauge than the public
 opinion poll, and the recent \Los Angeles Times\ poll which shows
 that four out of five Californians favored the execution of
 murderer Robert Alton Harris tells us everything we need to know
 about the political will of the people on this subject.

      But while the voice of the people may be the final word
 regarding our political decisions, few could argue that it
 disposes of moral questions, or even that such a political will
 is unchanging.  At various times in human history, the voice of
 the people has favored slavery, the execution of blasphemers,
 and the Divine Right of Kings.  Obviously, both a public moral
 sense, and the political will which follow from such feelings,
 are subject to revision.

      The largest single reason, given by those who supported the
 decision to execute Harris, was "Justice/Eye for An Eye."  I find
 it both refreshing and comforting that moral, rather than merely
 utilitarian, considerations are at the forefront of most people's
 consciousness.

      Still, the question remains to be asked: on what basis does
 one believe that retribution -- "an eye for an eye" -- is a valid
 principle of moral justice? 

      Is it primarily an emotional, rather than an intellectual,
 reaction based on empathy to the victims?  What, then of the
 revulsion felt by others to the premeditated killing of a hogtied
 man?

      Is it a sense that something which was codified four
 millennia ago in the Code of Hammurabi must be right because of
 its age?  What, then, of that code's literal call for
 retaliations including putting out eyes and cutting off hands?

      Is it because the Old Testament tells us that God told Moses
 that He was ordering us to execute murderers?  First, how do we
 know that early authors didn't do some rewriting, or even that
 Moses -- a politician -- wasn't lying when he said the code was
 written by God?  Second, if we are using the Book of Exodus as
 our legal code, why are we not executing people who curse their
 parents, or witches, or those who commit bestiality, or those who
 make sacrifices to any other deity?  Third, if we take the New
 Testament as updated orders, do we obey Jesus when he says he who
 lives by the sword dies by the sword, or when he tells us that he
 who is without sin shall cast the first stone?  And fourth, what
 business does a secular state have enforcing a \religious\ code
 in the first place?

      If we answer that we do not decide what is moral or just
 based on emotions, or tradition, or ancient religious writings,
 then there remain only two other ways to derive moral premises:
 direct revelation or human reason.  Either our moral premises are
 personally dictated to us by a Superior Power -- and that claim
 must be backed with incontrovertible proof or it has no merit --
 or we must use our own powers of reason to figure out morality
 for ourselves.

      Perhaps such a rational inquiry can begin by asking why it
 is right for the State -- a secular organization acting as agent
 for ordinary individuals -- to do that which is universally
 despised when done by any of those individuals?  Does the State
 act from practical, utilitarian considerations alone -- in which
 case such utility must first be subjected to moral limitations --
 or can it justify its killings on the basis of moral premises
 which can be derived without reference to sectarian religious
 documents?

      The State of California finds it fairly straightforward to
 define justifiable homicide for the private individual. 
 According to the California Department of Justice's booklet
 \California Firearms Laws 1991\, "The killing of one person by
 another may be justifiable when necessary to resist the attempt
 to commit a forcible and life-threatening crime, \provided\ that
 a reasonable person in the same situation would believe that: a)
 the person killed intended to commit a forcible and life-
 threatening crime; b) there was imminent danger of such crime
 being accomplished; and, c) the person acted under the belief
 that such force was necessary to save himself or herself or
 another from death or a forcible and life-threatening crime. 
 Murder, mayhem, rape, and robbery are examples of forcible and
 life-threatening crimes."

      For the private person -- or even the police officer -- the
 instant the threat ends, the grounds for justifiable homicide
 end.

      Strictly speaking, the State is no more than a group of
 individuals acting for common purpose. It is hard to imagine how
 it may rightly do more than the sum of the rights of the
 individuals comprising that group.  How, then, does this
 transformation -- whereby homicide is justified long after the
 threat has ended -- occur?   Does mere group procedure sanctify
 killing?  If so, how many individuals must be in a group before
 it earns a license to kill?  What \moral\ premise distinguishes
 the state criminal justice system from the lynch mob?

      The obvious answer is that in the absence of a Divine Ruler
 anointed by God, there is no moral basis for the State to do
 anything which it is not right for the private individual or
 group to do. Logic dictates that if it is morally justifiable for
 the State to kill in just retribution, then it must likewise be
 morally justifiable for other individuals or groups to do so as
 well -- the Mafia, the Crips, and the Bloods included.

      If it seems obviously wrong to you that private individuals
 have a right to retaliate -- if California's definition of
 justifiable homicide seems to you to be based on a valid moral
 premise -- then you must come up with a \moral\ justification for
 the State to do that which none of its principals may do.

      For me, I answer that it is wrong to punish murderers with
 death, because it far exceeds the scope of human justice.  Human
 justice is based on the concept of seeking repair rather than
 further destruction.  The religious concept of just retribution
 -- punishment, by another name -- is mere tit for tat,
 underivable from principles of reparative equity and therefore
 thoroughly irrelevant to justice or moral behavior as it may be
 enforced by a legal system.  The allure of legal punishment is to
 adrenaline rather than reason.

      Consequently, I see no possible justification for the State,
 as an agent of the people, to claim a moral right to do that
 which none of its principals may do.  If we have learned anything
 in four millennia of limiting the role of government, it is that
 if civil justice is to exist in a secular society, it means
 limiting equity among individuals to reparation of wrongful
 harms.

      If one believes, as I do, that killing a murderer has no
 reason-derived moral basis, it does not logically follow that one
 is advocating that murderers should continue to enjoy a pleasant
 life at the expense of their victims.  The principle of
 reparation derives the object that murderers should labor hard
 until the end of their days, and all that they produce beyond
 their mere subsistence should be paid to the heirs of their
 victims.  There is no reasonable moral basis for the practice of
 murderers spending their days being supported as privileged wards
 of a welfare state.  Such false humanitarianism is gravely
 offensive to those who remember the murderer's victims, and 
 such offense is possibly the basis for much of the emotion behind
 calls for state executions.

      To those of religious precepts, I must argue that it is
 quite enough for the institutions of a non-theocratic society to
 place immovable walls between murderers and the rest of us, and
 extract what value can be obtained for their victims' benefit. 
 That is all safety and equity calls for.  That is all that we --
 as individuals or as a group -- are entitled to.  Beyond that
 imperfect human institutions should not go, and what perfect
 vengeance is required must be left to God, who in His own good
 time disposes of all lives as He sees fit anyway.

                               ****

 J. Neil Schulman is a novelist, screenwriter, and host of a
 weekly program on the American Radio Network.
 
