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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | The Myth of Moral Culpability | |
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< | Is culpability a myth? At best, it is exaggerated. Holmes touches upon this is The Path of the Law, when he writes, "If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be god rid of; he cannot be improved, or frightened out of his structural reaction." Page 11. Though he attributes this idea to "men of science," there is reason to believe that he himself holds such a view. In the process of criticizing the second fallacy of the law, namely that logic is the only force within it, he concedes that "in the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason." Page 7. As I understand it, Holmes is conceding that law, like anything else in the universe, must be some combination of inevitable logic and unpredictable randomness. The fallacy of logic in the law is that we assume the law is logically deduced from inherent universal principles that hold some sort of normative value; that the logic of the law is anything more than the logic of where stones lie in a ravine. | >
> | Is culpability a myth? At best, it is exaggerated. Holmes touches upon this is The Path of the Law, when he writes, "If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction." Page 11. Though he attributes this idea to "men of science," there is reason to believe that he himself holds such a view. In the process of criticizing the second fallacy of the law, namely that logic is the only force within it, he concedes that "in the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason." Page 7. As I understand it, Holmes is conceding that law, like anything else in the universe, must be some combination of inevitable logic and unpredictable randomness. The fallacy of logic in the law is that we assume the law is logically deduced from inherent universal principles that hold some sort of normative value; that the logic of the law is anything more than the logic of where stones lie in a ravine. | | | Free Will | | | We all want to say that of course we can punish. Who would suggest that society take no action against any murderer? Thomas Hobbes wrote, "[B]y the right of nature, we destroy (without being unjust) all that is noxious, both beasts and men . . . justly, when we do it in order to our preservation." In Hobbes' view then, punishment is simply part of an extensive and transitive system of self-defense. Of course, the "right of nature" from which Hobbes draws his authority is only another way of saying "completely unsubstantiated," so we must decide on our own if this true. | |
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< | Most of agree that you have a right to defend yourself against an unjustified attacker. But the analogy doesn't work unless you can figure out who is doing the attacking. If we accept, to enough of a degree, that we are not responsible for our own character and thus our own actions, then the problem is less like a murderer attacking an innocent person and more like a sinking ship without enough vests. There are two people on the boat and one vest - is the first person to take the vest a murderer? | >
> | Most agree that you have a right to defend yourself against an unjustified attacker. But the analogy doesn't work unless you can figure out who is doing the attacking. If we accept, to enough of a degree, that we are not responsible for our own character and thus our own actions, then the problem is less like a murderer attacking an innocent person and more like a sinking ship without enough life vests. There are two people on the boat and one vest - is the first person to take the vest a murderer? | | | Someone should take the vest, but not because that person is "good" and certainly not because they have a "right of nature." If someone doesn't take the vest then they will both drown. I do not believe that our society is a sinking ship, but it does have serious problems, and most importantly it doesn't provide everyone with what they need to stay afloat. So who gets the vests? |
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