Romantic or Classical

Matthew Arnold’s â€Å"The Function of Criticism at the Present Time† is a criticism in itself of what great literary artists could have done and what literature could have become. In depth, Arnold’s work discusses his critical and personal perspectives on the role of criticism in consequentially transforming not only literature but also the landscape of society positively and constructively as well.Furthermore, Arnold sought to strengthen his arguments on the matter and present a rebuttal of the various criticisms put forth against his ideas and points of view, and prove that criticisms are of great importance in fuelling creativity and fostering the advancement of literature. However, Arnold implicitly distinguished differences between the positive and constructive types of criticism as compared to the off-putting and unconstructive nature of some criticism.Arnold argued that â€Å"a critic may with advantage seize an occasion for trying his own conscience, an d for asking himself of what real service, at any given moment, the practice of criticism either is or may be made to his own mind and spirit, and to the minds and spirits of others. † (pp. 414) Arnold’s arguments on the ideal nature of critics formulated his perspectives on how and when criticisms may be considered valuable.Under the pretexts of Arnold’s arguments, we realize that unless criticisms are aimed towards the greater good – that is, to present censures and critiques for the purpose of fuelling creativity, fostering change and advancement, and ultimately to affect a change that would positively and constructively change the lives of man and the landscape of society – they are deemed ineffectual or inadequate. Arnold also discussed creativity under the context of developing literature.Arnold said, â€Å"It is undeniable that the exercise of a creative power, that a free creative activity, is the highest function of man; it is proved to be so by man’s finding in it his true happiness. † (pp. 414) The multifaceted structure of the human mind allows man to express creativity in so many ways and create different outcomes out of it, such as the expression of creativity through developing criticisms and then consequently formulating good literature.The excerpt from Arnold’s â€Å"Sweetness and Light,† he explored the dynamics of culture based on the motivations that constitute a part of its bases or foundations. Arnold said, â€Å"Culture is then properly described not as having its origin in curiosity, but as having its origin in the love of perfection; it is a study of perfection. It moves by the force†¦ but also of the moral and social passion for doing good. † (pp.427-248) Since Arnold has framed the origins of culture not on mere curiosity, but on man’s desire to seek and create perfection, he said that culture then serves a greater purpose to creative positive and constr uctive change, accomplish human needs, and foster the convalescence of human nature. By and large, the arguments of Arnold meet the standards and dynamics of romantic aesthetics and poetry. Based on Wellek’s discussions on the Classical and Romantic movements, classical poetry was defined as â€Å"poetry for the dead† while romantic poetry was defined as â€Å"poetry for the living.† (pp. 259) The primary difference between the Classical and Romantic movements that set the distinction between the nature of classical and romantic poetry lies in the major themes that constitute the dynamics of each style. Wellek said, â€Å"Ancient religion and the life are past and gone, and hence classical, while for instance, America, discovered in modern times, is romantic. † (pp. 260) Since Arnold’s perspectives and arguments were related to the development of the present time, the society, and expansion of human nature, his views on poetry are romantic in natur e.2. Abram’s Theories of Art Abrams’ theories on art were primarily tied to the modernist perspective of criticism. In the discussion on the â€Å"Orientation of Critical Theories,† which were attributed to art, the modernist perspective of viewing, realizing the significance, and interpreting art focused on a single perspective, and that is of the artist, and not on the many factors that exist in art’s external environment that contribute criticism and interpretations to it.The aesthetic theory, as Abrams defined, â€Å"displays its full measure of rhetoric and logomachy which seem and inseparable part of man’s discourse about all things that really matter†¦ Its aim, however, is not to establish correlations between facts which will enable us to predict the future by reference to the past, but to establish principles enabling us to justify, order, and clarify our interpretation and appraisal of the aesthetic facts themselves. † (pp.2) Abrams’ definition of the aesthetic theory of viewing art leads us to understand that interpreting and labeling meanings on pieces of art should be based on established principles of aesthetics. On the other hand, the critical theory of viewing art â€Å"has its own kind of validity†¦ Such a criterion will, of course, justify not one, but a number of valid theories, all in their several ways of self-consistent, applicable, and relatively adequate to the range of aesthetic phenomena. † (pp.3) If the aesthetic theory of poetry lies in the principles and nature of aesthetics as seen on the perspective of the artist, the critical theory of viewing art is dependent on the existence of standards and decisive factors, which literally and actually define the features that make up art and the pennants that define aesthetics. Another theory of art criticism discussed by Abrams is the view of art within four elements or coordinates – the universe, the work, the artist , and the audience.In this theory, the interpretations of art are oriented in the perspectives of one of the factors within the external environment of art. The pragmatic theory, as opposed to the aesthetic and critical theories of viewing art sees art as a vehicle for the artist’s accomplishment of a higher goal or objective. Art, in this case, becomes a tool utilized to achieve something meaningful to the artist, or even the factors that constitute art’s external environment.If the pragmatic theory sees art as an instrument to do something, the expressive theory on the other hand, sees art as a vehicle to express the artist’s thoughts and emotions. Art, in this case, is personal that results from the artist’s thoughts and emotion translated to a concrete piece of art. Another theory defined by Abrams is the objective theory of viewing art. This particular theory focuses on the facts and standards of art.The act of viewing art is by looking at the art in itself, and not considering the thoughts and perspectives contributed by the factors existing in its external environment. Art, in this case, is seen and interpreted as is. Based on the definitions of Abrams of the different theories of viewing art, Eliot’s poetry subscribes the orientation of perspectives and interpretations of art to the four factors elements of coordinates of art, specifically the perspectives and interpretations of the audience, while Hulme’s poetry subscribes to the expressive and pragmatic theories of art criticism.Eliot himself defined the views and perspectives of art as something that should be personal and experienced by the audience, that is because the audience â€Å"enjoy the poetry† and not because the audience â€Å"acquired the scholarship† to appreciate art. (Scofield, pp. 1) Hulme’s poetry, on the other hand, was defined as an instrument to express language that is real, affecting or appealing to human emotions. (Comentale & Gasiorek, pp. 98) 3. Abram’s Theories in Virginia Woolf’s â€Å"Modern Fiction†Virginia Woolf’s â€Å"Modern Fiction† is an exploration of the features of art and literature from the past until present time, which sets apart classical art and literature and the modern representations of art and literature. Woolf discussed the two arguments on the difference between the concrete art and literature materials that constitute the classical and modernist perspectives, but ultimately admired the simplicity yet timelessness of classical works on art and literature.Woolf said, that the works of classical artists or writers â€Å"certainly have a strange air of simplicity† but were representations of â€Å"accomplishments that we can scarcely refrain from whispering that the fight was not so fierce for them as for us† considering the complexity and the demands of writing in our modern world. (Woolf) Certainly, there is something a bout the features of the classical perspectives on art and literature that allow them to withstand the passage of time and modernity, that is â€Å"the flesh of their work has a living, breathing, everyday imperfection which bids us take liberties with it we choose.† (Woolf) Woolf continues to set the distinction between the classical and modern literature in order to construct the framework of the foundations of modern literature that makes it incomparable to the eminence and distinction awarded to classical arts and literature. However, Woolf ascertained one thing, and that is, the dynamics and position of modern literature is still uncertain as compared to the solid standing of classical literature.After all, Woolf said, â€Å"We only know that certain gratitudes and hostilities inspire us, that certain paths seem to lead to fertile land, others to the dust and the desert, and of this perhaps it may be worthwhile to attempt some account. † (â€Å"Modern Fictionâ₠¬ ) By this, Woolf meant that art and literature is something unprompted and natural, which are borne out of the creativity of artists or literary writers. At this point, the foundations of modern literature have been presented as something that is compliant and accommodating to the artist or literary writer.While on the other hand, classical art and literature remains as forceful and influential because it talks about the realities of life. This feature or characteristic of classical art and literature seem to blur the standing or position of modern art and literature because its dynamics cannot be contained in a single word of definition due to its compliance to various factors, and that is on the varying perspectives of modern artists and writers. Woolf said, â€Å"this may be, the problem before the novelist at present, as we suppose it to have been in the past, is to contrive means of being free to set down what he chooses.He has to have the courage to say that what interests him is not longer ‘this’ but ‘that’: out of ‘that’ alone must he construct his work. † (â€Å"Modern Fiction†) In simpler terms, the desire and inclination of modern artists and literary writers to present something that deviates from established classical arts and literature become the problems and difficulties that challenge their courage and capability to present artistic and literary works set against the backdrop of our modern world.Based on the thoughts and points of view discussed by Woolf in â€Å"Modern Fiction,† we realize that it subscribes to the expressive theory and the coordinates of art criticism, specifically on the varying perspectives of art and literature from the viewpoint of the artist, the audience, and society or the world. Woolf has comprehensively discussed how modern literature constitutes the individual and unique expression of the artist or the writer, according to his personal perspectives and interest that deviate from established standards from the classical movement.4. Modernism The emergence of modernism as a trend in arts and literature, which consequently influenced the changes in the cultural and aesthetic identities in the West, was as Lewis put it, â€Å"has been gradual and imperceptible. † (â€Å"De Descriptione Temporum†) However, as a means to discuss how the world has suddenly witnessed the inception of modernist perspectives, Lewis explored the fusion between the Medieval and Renaissance movements that have brought about changes in the culture and aesthetic identities of society as a whole.Lewis said that although the force and influence of modernism was unnoticed by many, it may be felt or realized by contrasting society’s culture and aesthetic identities with the culture and aesthetic identities of the past. Lewis continues to reiterate that the changes and transformations that we see at present time were borne out of the continuous e volution of the past. Therefore, it was safe for Lewis to say that our culture and aesthetic identities at present time were a fusion between the Medieval and Renaissance movements that evolved and continually changed through the passage of time.As Lewis said, â€Å"nothing is quite new; it was always somehow anticipated or prepared for. † (â€Å"De Descriptione Temporum†) From Lewis’ discussions, we understand that between the periods of time as defined by the author, that is in a metaphorical sense â€Å"Between Jane Austen and us, but not between her and Shakespeare, Chaucer, Alfred, Virgil, or the Pharaohs, comes the birth of the machines.† (â€Å"De Descriptione Temporum†) I believe that beyond Lewis’ thoughts and perspectives on the matter, the persistent creativity and conscious and curious nature of human beings have progressively influenced the shift in the culture and aesthetic identity in the West. In Scott’s book â€Å"Re figuring Modernism: Postmodern Feminist Readings of Woolf, West, and Barnes,† the author’s definition of modernism was similar to Lewis’ discussions on how the continuous evolution of culture and aesthetic identities through the passage of time have been the precursor to modernism.According to Scott, the inception of modernism is similar to a spider web. â€Å"The spider’s actions of repeatedly attaching, launching out into the unknown, and landing for the next anchoring point suggests agency, poly valence, and the ability to make selective use of existing structures, or to seek new ones – not all of them man-made. † (Scott, pp. xv) What Scott meant was that growth and development is a natural part of life. Man is continually learning, which consequently influences the introduction of new theories and ideas that are integrated into man’s way of life and nature.Therefore, the changes in culture and aesthetic identities are brought about the desire of man to make something more out of art and his creativity. This same inclination of human nature to change and look to transform culture and aesthetic identities have been the same reason for the formation of different periods in time, from the Medieval to the Renaissance in the West, and so on. Lewis said, â€Å"our assumption that everything is provisional and soon to be superseded, that the attainment of goods we have never yet had, rather than the defence and conservation of those we have already, is the cardinal business of life.† (â€Å"De Descriptione Temporum†) The transformation of the Old Western Culture and aesthetic identities during that period of time to modernism, may then be defined as a fusion of man’s desire to reveal or express change that is meant to overpower the existing cultural, social, and political landscape of society during that time to develop a more progressive and vanguard culture and aesthetic identity that sets itse lf as a better society than the past.Works Cited Comentale, Edward P. & Gasiorek, Andrzej. T. E. Hulme and the Question of Modernism. Ashgate Publishing, Ltd. , 2006. Lewis, C. S. â€Å"De Descriptione Temporum, an Inaugural Lecture from The Chair of Mediaeval and Renaissance Literature in Cambridge University, 1954. † In C. S. Lewis, They Asked for a Paper. London, Geoffrey Bles, 1962, pp. 9-25. Retrieved from The University of Cincinnati. 06 May 2009. Scofield, Martin. T. S. Eliot: The Poems. Cambridge University Press, 1988. Scott, Bonnie Kim. Refiguring Modernism: Postmodern Feminist Readings of Woolf, West, and Barnes. Indiana University Press, 1995. Wellek, Rene. A History of Modern Criticism 1750-1950. CUP Archive, 1981. Woolf, Virginia. (2004). Modern Fiction. Retrieved from [email  protected] 06 May 2009.

Culture and Communication Essay

According to new research done in the field of linguistics and cognitive science, the balance is starting to tilt again in favor of linguistic relativity. This concept proposes that there is a systematic relationship between the nature of the language a person speaks and the way the person understands the world. Although, it is still not known how much influence language wields over thought, it is now agreed that it does affect the way we perceive and understand the world. At an individual level, we take for granted the role language plays in our thought processes. But, every time we formulate a thought, we almost subconsciously express it in a tongue we are most comfortable with. Language has, over our growth period (especially the formative early childhood years), become intertwined without cognitive faculties. A majority of our thoughts and memories employ language as an expression tool. As such, one must agree that it most influence our thought processes to a certain extent. The intricate features of any language such as grammar and the role of gender to play a significant role on how we perceive the world. Although this influence plays a lesser role when it comes to tangibles like objects for instance, it does have a significant influence on abstract concepts such as time, space and even political concepts. For example, Dan Slobin of the University of California in Berkeley tells us in Alison Motluk’s article You Are What You Speak that while a third of the world’s languages describe locations in absolute terms, many Pacific Islanders use phrases such as â€Å"north of that tree†. Benjamin Whorf, one of the pioneers of linguistic relativity, in his famous analysis of the differences between English and Hopi language, claimed that a Hopi speaker would find relativistic physics easier to understand that an English speaker due to the structure of Hopi language. This facet of language becomes even more important when it comes to worldview and religion. As both of them are in essence, abstract concepts, it can be understood that language does have a significant relationship with them. One can for instance compare how the same religion is interpreted by groups with different languages. Also, once we consider the use of metaphors in languages, we can see how they relate to people’s culture. As the worldview of a people is formed due to the shared experience of a people and the sharing of this unique experience largely employs language, it can be understood that language wields an influence over it. Coupled with the effect of language on an individual basis, one can clearly see the significance a person’s language plays on not only his/her own thought processes, but on the formulation of grander systems of thought. Therefore, one can conclude that language helps shape a people’s worldview and their understanding of religion. The diversification in religion can then potentially create new religions due to conflicts with other prevalent interpretation. The extent of language’s influence can still be argued and should be argued until a conclusion can be reached. But all languages in general should be preserved as we never know when a particular language’s insight might come in handy for resolving modern problems. How has the internet changed global communication? What effect might this have on cross-cultural communication? The Internet probably ranks among one of greatest inventions man has yet made. A relatively young invention, it has revolutionized global communication, and yet, its true potential remains to be seen. It has transcended geographical borders and provided people with a forum to convey their thoughts to the world, unfiltered and unregulated. It has led to the rise of new social groups, ones which have no need for proximity, and given rise to whole new cultures. Although global communication has existed for centuries, never before has it been observed at such an unprecedented scale. With the advent of the internet, rapid information sharing became possible and at virtually no cost. Today, one can find material of any nature on the internet and can access it almost anywhere in the world. One can share information of any nature, be it audio or video or plain text. The fact that it’s unregulated allows people to channel their thoughts in the purest form possible. Social networking sites have created new online societies with their own set of rules and cultures. Instant messaging has provided us with a facility to engage in real time conversations with people from halfway across the world. Used in conjunction with webcams and microphones, we have in essence, the next best thing to face to face conversation. As such, one can see that we are witnessing a new chapter in cross-cultural communication. The internet has the potential to bring people together, from diverse backgrounds, and to promote understanding regardless of geographical, religious, political and ethnic division. One can interact with people at an individual level and due to the vast spectrum of opinions that the internet holds, one can form a more neutral worldview. Hence, in theory, the internet should usher in a new age of global understanding and ultimately form a global worldview. But there still is a catch to it all. Yes, in theory this should all be true, but there still are factors that hamper us all from achieving this. These begin with our own preconceived notions. The internet contains a lot of unregulated information. How do we decide what is true? We use our preconceived notions and hence keep our limited understanding of the world. Furthermore, the internet provides a highly selective information and communication tool, meaning that a person can choose what he/she wants to access and who he/she wants to talk to. Furthermore, the vast majority of people in the world still lack access to the internet and of those that have access to it, a large number still lacks unregulated access. For example, countries such as China monitor internet content and limit access to sites which carry â€Å"inappropriate† material. As such, the internet is still far away from reaching its true potential. But this is no cause to lose hope. The internet is still in its infancy and it still has a lot more avenues to explore. Also, if one is to consider the rate at which the internet has grown so far, one can conclude that it will grow a lot faster in the future. Perhaps ultimately, the internet will truly let us share our thoughts worldwide and finally transcend language and cultural barriers. If so, we can then truly reach a new era of global understanding and perhaps, create more than a global worldview; we can create a collective consciousness. In conclusion, the internet is an extremely powerful tool for global communication and will have far reaching consequences on cross-cultural communication. Works Cited 1. Motluk, Alison. â€Å"You Are What You Speak. † New Scientist. 30 Nov. 2002: 34-38 2. Carroll, John B. â€Å"The Relation Of Habitual Thought And Behavior. † Language, Thought, and Reality: Selected Writings of Benjamin Lee Whorf. 1997 3. Lakoff, George and Johnson, Mark. Metaphors We Live By. 1980 4. Cass, Stephen. â€Å"How Much Does The Internet Weigh? † Discover Magazine. June 2007 5. D’Emanuele, Antony. â€Å"The Internet: A global communication tool† International Pharmacy Journal. 1995: 68-72

Against and for Capital Punishment

SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM IS CAPITAL PUNISHMENT MORALLY REQUIRED? ACTS, OMISSIONS, AND LIFELIFE TRADEOFFS Cass R. Sunstein* and Adrian Vermeule** Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment.The familiar problems with capital punishment— potential error, irreversibility, arbitrariness, and racial skew—do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent.The widespr ead failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat â€Å"statistical lives† with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law. INTRODUCTION†¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 704 I. EVIDENCE †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 10 II. CAPITAL PUNISHMENT: MORAL FOUNDATIONS AND FOUR OBJECTIONS †¦ 716 A. Morality and Death†¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢ € ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 717 B. Acts and Omissions †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 719 1. Is the act/omission distinction coherent with respect to government?†¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 720 * Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, the University of Chicago Law School, Department of PoliticalScience, and the College. ** Bernard D. Meltzer Professor of Law, the University of Chicago. The authors thank Larry Alexander, Ron Allen, Richard Berk, Steven Calabresi, Jeffrey Fagan, Robert Hahn, Dan Kahan, Andy Koppelman, Richard Lempert, Steven Levitt, James Liebman, Daniel Markel, Frank Michelman, Tom Miles, Eric Posner, Richard Posner, Joanna Shepherd, William Stuntz, James Sullivan, and Eugene Volokh for helpful suggestions, and Blake Roberts for excellent research assistance and valuable comments.Thanks too to participants in a work-in-progress lunch at the University of Chicago Law School and a constitutional theory workshop at Northwestern University Law School. 703 SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 704 STANFORD LAW REVIEW [Vol. 58:703 2. Is the act/omission distinction morally relevant to capital punishment? †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 724 C. The Arbitrary and Discriminatory Realm of Homicide†¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 728 D. Preferable Alternatives and the Principle of Strict Scrutiny†¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 32 E. Slipper y Slopes †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 734 F. Deontology and Consequentialism Again†¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 737 III. COGNITION AND CAPITAL PUNISHMENT †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 740 A. Salience †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 741 B. Acts, Omissions, and Brains†¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. 741 C. A Famous Argument that Might Be Taken as a Counterargument †¦.. 743 IV.IMPLICATIONS AND FUTURE PROBLEMS †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 744 A. Threshold Effects (? ) and Regional Variation †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 745 B. International Variation †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 745 C. Offenders and Offenses †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 746 D. Life-Life Tradeoffs and Beyond†¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦.. 747 CONCLUSION †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦ 48 INTRODUCTION Many people believe that capital punishment is morally impermissible. In their view, executions are inherently cruel and barbaric. 1 Often they add that capital punishment is not, and cannot be, imposed in a way that adheres to the rule of law. 2 They contend that, as administered, capital punishment ensures the execution of (some) innocent people and also that it reflects arbitrariness, in the form of random or invidious infliction of the ultimate penalty. 3 Defenders of capital punishment can be separated into two different camps.Some are retributivists. 4 Following Immanuel Kant,5 they claim that for the most heinous forms of wrongdoing, the penalty of death is morally justified or perhaps even required. Other defenders of capital punishment are consequentialists and often also welfarists. 6 They contend that the deterrent 1. See, e. g. , Furman v. Georgia, 408 U. S. 238, 309, 371 (1972) (Marshall, J. , concurring). 2. See Stephen B. Bright, Why the United States Will Join the Rest of the World in Abandoning Capital Punishment, in DEBATING THE DEATH PENALTY: SHOULD AMERICA HAVE CAPITAL PUNISHMENT? 52 (Hugo Adam Bedau & Paul G. Cassell eds. , 2004) [hereinafter DEBATING THE DEATH PENALTY]. 3. See, e. g. , James S. Liebman et al. , A Broken System: Error Rates in Capital Cases, 1973-1995 (Columbia Law Sch. , Pub. Law Research Paper No. 15, 2000) (on file with authors). 4. See, e. g. , Luis P. Pojman, Why the Death Penalty Is Morally Permissible, in DEBATING THE DEATH PENALTY, supra note 2, at 51, 55-58. 5. See IMMANUEL KANT, THE PHILOSOPHY OF LAW: AN EXPOSITION OF THE FUNDAMENTAL PRINCIPLES OF JURISPRUDENCE AS THE SCIENCE OF RIGHT 198 (W.Hastrie trans. , 1887) (1797). 6. Arguments along these lines can be found in Pojman, supra note 4, at 58-73. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 705 effect of capital punishment is significant and that it justifies the infliction of the ultimate penalty. Consequentialist defenses of capital punishment, however, tend to assume that capital punishment is (merely) morally permissible, as opposed to being morally obligatory.Our goal here is to suggest that the debate over capital punishment is rooted in an unquestioned assumption and that the failure to question that assumption is a serious moral error. The assumption is that for governments, acts are morally different from omissions. We want to raise the possibility that an indefensible form of the act/omission distinction is crucial to some of the most prominent objections to capital punishment—and that defenders of capital punishment, apparently making the same distinction, have failed to notice that according to the logic of their theory, capital punishment is morally obligatory, not just permissible.We suggest, in other words, tha t on certain empirical assumptions, capital punishment may be morally required, not for retributive reasons, but rather to prevent the taking of innocent lives. 7 The suggestion bears not only on moral and political debates, but also on constitutional questions. In invalidating the death penalty for juveniles, for example, the Supreme Court did not seriously engage the possibility that capital punishment for juveniles may help to prevent the death of innocents, including juvenile innocents. And if our suggestion is correct, it relates to many questions outside of the context of capital punishment. If omissions by the state are often indistinguishable, in principle, from actions by the state, then a wide range of apparent failures to act—in the context not only of criminal and civil law, but of regulatory law as well—should be taken to raise serious moral and legal problems. Those who accept our arguments in favor of the death penalty may or may not welcome the implicat ions for government action in general.In many situations, ranging from environmental quality to appropriations to highway safety to relief of poverty, our arguments suggest that in light of 7. In so saying, we are suggesting the possibility that states are obliged to maintain the death penalty option, not that they must inflict that penalty in every individual case of a specified sort; hence we are not attempting to enter into the debate over mandatory death sentences, as invalidated in Lockett v. Ohio, 438 U. S. 586 (1978), and Woodson v. North Carolina, 428 U. S. 280 (1976). For relevant discussion, see Martha C.Nussbaum, Equity and Mercy, 22 PHIL. & PUB. AFF. 83 (1993). 8. Roper v. Simmons, 125 S. Ct. 1183 (2005). Here is the heart of the Court’s discussion: As for deterrence, it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles, as counsel for the petitioner acknowledged at oral argument. . . . [T]he absence of evidenc e of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence. . . To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person. Id. at 1196. These are speculations at best, and they do not engage with the empirical literature; of course, that literature does not dispose of the question whether juveniles are deterred by the death penalty. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 06 STANFORD LAW REVIEW [Vol. 58:703 imaginable empirical findings, government is obliged to provide far more protection than it now does, and it should not be permitted to hide behind unhelpful distinctions between acts and omissions. The foundation for our argument is a significant bod y of recent evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one. 9 A leading national study suggests that each execution prevents some eighteen murders, on average. 0 If the current evidence is even roughly correct—a question to which we shall return—then a refusal to impose capital punishment will effectively condemn numerous innocent people to death. States that choose life imprisonment, when they might choose capital punishment, are ensuring the deaths of a large number of innocent people. 11 On moral grounds, a choice that effectively condemns large numbers of people to death seems objectionable to say the least.For those who are inclined to be skeptical of capital punishment for moral reasons—a group that includes one of the current authors—the task is to consider the possibility that the failure to impose capital punishment is, prima facie and all things considered, a serious moral wrong. Judgments of thi s sort are often taken to require a controversial commitment to a consequentialist view about the foundations of moral evaluation. One of our principal points, however, is that the choice between consequentialist and deontological approaches to morality is not crucial here.We suggest that, on certain empirical assumptions, theorists of both stripes might converge on the idea that capital punishment is morally obligatory. On 9. See, e. g. , Hashem Dezhbakhsh et al. , Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 AM. L. & ECON. REV. 344 (2003); H. Naci Mocan & R. Kaj Gittings, Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment, 46 J. L. & ECON. 453, 453 (2003); Joanna M. Shepherd, Deterrence Versus Brutalization: Capital Punishment’s Differing Impacts Among States, 104 MICH. L. REV. 03 (2005) [hereinafter Shepherd, Deterrence Versus Brutalization]; Joanna M. Shepherd, Murders of Passion, Exe cution Delays, and the Deterrence of Capital Punishment, 33 J. LEGAL STUD. 283, 308 (2004) [hereinafter Shepherd, Murders of Passion]; Paul R. Zimmerman, Estimates of the Deterrent Effect of Alternative Execution Methods in the United States, 65 AM. J. ECON. & SOC. (forthcoming 2006) [hereinafter Zimmerman, Alternative Execution Methods], available at http://papers. ssrn. com/sol3/papers. cfm? abstract_id=355783; Paul R. Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. APPLIED ECON. 63, 163 (2004) [hereinafter Zimmerman, State Executions]. 10. See Dezhbakhsh et al. , supra note 9, at 344. In what follows, we will speak of each execution saving eighteen lives in the United States, on average. We are, of course, suppressing many issues in that formulation, simply for expository convenience. For one thing, that statistic is a national average, as we emphasize in Part IV. For another thing, future research might find that capital punishment has diminishing retu rns: even if the first 100 executions deter 1800 murders, it does not follow that another 1000 executions will deter another 18,000 murders.We will take these and like qualifications as understood in the discussion that follows. 11. In recent years, the number of murders in the United States has fluctuated between 15,000 and 24,000. FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES tbl. 1 (2003), available at http://www. fbi. gov/ucr/03cius. htm. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 707 consequentialist grounds, the death penalty seems morally obligatory if it is the only or most effective means of preventing significant numbers of murders; much of our discussion will explore this point.For this reason, consequentialists should have little difficulty with our arguments. For deontologists, a killing is a wrong under most circumstances, and its wrongness does not depend on its consequences or its ef fects on overall welfare. Many deontologists (of course not all) believe that capital punishment counts as a moral wrong. But in the abstract, any deontological injunction against the wrongful infliction of death turns out to be indeterminate on the moral status of capital punishment if the death is necessary to prevent significant numbers of killings.The unstated assumption animating much opposition to capital punishment among intuitive deontologists is that capital punishment counts as an â€Å"action† by the state, while the refusal to impose it counts as an â€Å"omission,† and that the two are altogether different from the moral point of view. A related way to put this point is to suggest that capital punishment counts as a â€Å"killing,† while the failure to impose capital punishment counts as no such thing and hence is far less problematic on moral grounds. We shall investigate these claims in some detail.But we doubt that the distinction between state a ctions and state omissions can bear the moral weight given to it by the critics of capital punishment. Whatever its value as a moral concept where individuals are concerned, the act/omission distinction misfires in the general setting of government regulation. If government policies fail to protect people against air pollution, occupational risks, terrorism, or racial discrimination, it is inadequate to put great moral weight on the idea that the failure to act is a mere â€Å"omission. No one believes that government can avoid responsibility to protect people against serious dangers—for example, by refusing to enforce regulatory statutes—simply by contending that such refusals are unproblematic omissions. 12 If state governments impose light penalties on offenders or treat certain offenses (say, domestic violence) as unworthy of attention, they should not be able to escape public retribution by contending that they are simply refusing to act.Where government is conce rned, failures of protection, through refusals to punish and deter private misconduct, cannot be justified by pointing to the distinction between acts and omissions. It has even become common to speak of â€Å"risk-risk tradeoffs,† understood to arise when regulation of one risk (say, a risk associated with the use of DDT) gives rise to another risk (say, the spread of malaria, against which DDT has been effective). 13 Or suppose that an air pollutant creates adverse health effects 12.Indeed, agency inaction is frequently subject to judicial review. See Ashutosh Bhagwat, Three-Branch Monte, 72 NOTRE DAME L. REV. 157 (1996). 13. See generally RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (John D. Graham & Jonathan Baert Wiener eds. , 1995) (considering â€Å"risk-risk tradeoffs† on topics such as DDT, the use of estrogen for menopause, and clozapine theory SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 708 STANFORD LAW REVIEW [Vol. 58:703 ut also has health benefits, as appears to be the case for ground-level ozone. 14 It is implausible to say that, for moral reasons, social planners should refuse to take account of such tradeoffs; there is general agreement that whether a particular substance ought to be regulated depends on the overall effect of regulation on human well-being. As an empirical matter, criminal law is pervaded by its own risk-risk tradeoffs. When the deterrent signal works, a failure to impose stringent penalties on certain crimes will increase the number of those crimes.A refusal to impose such penalties is, for that reason, problematic from the moral point of view. It should not be possible for an official—a governor, for example—to attempt to escape political retribution for failing to prevent domestic violence or environmental degradation by claiming that he is simply â€Å"failing to act. † The very idea of â€Å"equal protection of the laws,† in its oldest and most literal sense, attests to the importance of enforcing the criminal and civil law so as to safeguard the potential victims of private violence. 5 What we are suggesting is that to the extent that capital punishment saves more lives than it extinguishes, the death penalty produces a risk-risk tradeoff of its own—indeed, what we will call a life-life tradeoff. Of course, the presence of a life-life tradeoff does not resolve the capital punishment debate. By itself, the act of execution may be a wrong, in a way that cannot be said of an act of imposing civil or criminal penalties for, say, environmental degradation.But the existence of life-life tradeoffs raises the possibility that for those who oppose killing, a rejection of capital punishment is not necessarily mandated. On the contrary, it may well be morally compelled. At the very least, those who object to capital punishment, and who do so in the name of protecting life, must come to terms with the possibility that th e failure to inflict capital punishment will fail to protect life—and must, in our view, justify their position in ways that do not rely on question-begging claims about the distinction between state actions and state omissions, or between killing and letting die.We begin, in Part I, with the facts. Raising doubts about widely held beliefs based on older studies or partial information, recent studies suggest that capital punishment may well save lives. One leading study finds that as a national average, each execution deters some eighteen murders. Our question whether capital punishment is morally obligatory is motivated by these findings; our central concern is that foregoing any given execution may be equivalent to condemning some unidentified people to a premature and violent death.Of course, social science can always be disputed in this contentious domain, and spirited attacks have been made on the recent studies;16 hence, we mean to for schizophrenia). 14. See Am. Trucki ng Ass’ns, Inc. v. EPA, 175 F. 3d 1027, 1051-53 (D. C. Cir. 1999). 15. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997). 16. See Richard Berk, New Claims About Executions and General Deterrence: Deja SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 709 outline, rather than to defend, the relevant evidence here.But we think that to make progress on the moral issues, it is productive and even necessary to take those findings as given and consider their significance. Those who would like to abolish capital punishment, and who find the social science unconvincing, might find it useful to ask whether they would maintain their commitment to abolition if they were firmly persuaded that capital punishment does have a strong deterrent effect. We ask such people to suspend their empirical doubts in order to investigate the moral issues that we mean to raise here.In Part II, the centerpiece of the Article, we offer a few remarks on moral foundations and examine some standard objections to capital punishment that might seem plausible even in light of the current findings. We focus in particular on the view that capital punishment is objectionable because it requires affirmative and intentional state â€Å"action,† not merely an â€Å"omission. † The act/omission distinction, we suggest, systematically misfires when applied to government, which is a moral agent with distinctive features.The act/omission distinction may not even be intelligible in the context of government, which always faces a choice among policy regimes, and in that sense cannot help but â€Å"act. † Even if the distinction between acts and omissions can be rendered intelligible in regulatory settings, its moral relevance is obscure. Some acts are morally obligatory, while some omissions are morally culpable. If capital punishment has significant deterrent effects, we suggest that for government to omit to impose it is morally blameworthy, even on a deontological account of morality.Deontological accounts typically recognize a consequentialist override to baseline prohibitions. If each execution saves an average of eighteen lives, then it is plausible to think that the override is triggered, in turn triggering an obligation to adopt capital punishment. Once the act/omission distinction is rejected where government is concerned, it becomes clear that the most familiar, and plausible, objections to capital punishment deal with only one side of the ledger: the objections fail to take account of the exceedingly arbitrary deaths that capital punishment may deter.The realm of homicide, as we shall call it, is replete with its own arbitrariness. We consider rule-of-law concerns about the irreversibility of capital punishment and its possibly random or invidious administration, a strict scrutiny principle that capital punishment should not be permitted if other means for producing the same le vel of deterrence are available, and concerns about slippery slopes. We suggest that while some of these complaints have Vu All over Again? , 2 J. EMPIRICAL LEGAL STUD. 03 (2005); see also Deterrence and the Death Penalty: A Critical Review of New Evidence: Hearings on the Future of Capital Punishment in the State of New York Before the New York State Assemb. Standing Comm. on Codes, Assemb. Standing Comm. on Judiciary, and Assemb. Standing Comm. on Correction, 2005 Leg. , 228th Sess. 1-12 (N. Y. 2005) (statement of Jeffrey Fagan, Professor of Law and Pub. Health, Columbia Univ. ), available at www. deathpenaltyinfo. org/FaganTestimony. pdf [hereinafter Deterrence and the Death Penalty].For a response to Fagan’s testimony, see generally Shepherd, Deterrence Versus Brutalization, supra note 9. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 710 STANFORD LAW REVIEW [Vol. 58:703 merit, they do not count as decisive objections to capital punishment, because they emb ody a flawed version of the act/omission distinction and generally overlook the fact that the moral objections to capital punishment apply even more strongly to the murders that capital punishment apparently deters.In Part III, we conjecture that various cognitive and social mechanisms, lacking any claim to moral relevance, may cause many individuals and groups to subscribe to untenable versions of the distinction between acts and omissions or to discount the lifesaving potential of capital punishment while exaggerating the harms that it causes. An important concern here is a sort of misplaced concreteness, stemming from heuristics such as salience and availability. The single person executed is often more visible nd more salient in public discourse than any abstract statistical persons whose murders might be deterred by a single execution. If those people, and their names and faces, were highly visible, we suspect that many of the objections to capital punishment would at least be shaken. As environmentalists have often argued, â€Å"statistical persons† should not be treated as irrelevant abstractions. 17 The point holds for criminal justice no less than for pollution controls. Part IV expands upon the implications of our view and examines some unresolved puzzles.Here we emphasize that we hold no brief for capital punishment across all contexts or in the abstract. The crucial question is what the facts show in particular domains. We mean to include here a plea not only for continuing assessment of the disputed evidence, but also for a disaggregated approach. Future research and resulting policies would do well to take separate account of various regions and of various classes of offenders and offenses. We also emphasize that our argument is limited to the setting of life-life tradeoffs— in which the taking of a life by the state will reduce the number of lives taken overall.We express no view about cases in which that condition does not holdâ⠂¬â€for example, the possibility of capital punishment for serious offenses other than killing, with rape being the principal historical example, and with rape of children being a currently contested problem. Such cases involve distinctively difficult moral problems that we mean to bracket here. A brief conclusion follows. I. EVIDENCE For many years, the deterrent effect of capital punishment was sharply disputed. 18 In the 1970s, Isaac Ehrlich conducted the first multivariate 17. Lisa Heinzerling, The Rights of Statistical People, 24 HARV.ENVTL. L. REV. 189, 189 (2000). 18. Compare, e. g. , Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 AM. ECON. REV. 397, 398 (1975) (estimating each execution deters eight murders), with William J. Bowers & Glenn L. Pierce, The Illusion of Deterrence in Isaac Ehrlich’s Research on Capital Punishment, 85 YALE L. J. 187, 187 (1975) (finding Ehrlich’s data and methods unreliable). A good over view is Robert Weisberg, The Death SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 711 egression analyses of the death penalty, based on time-series data from 1933 to 1967, and concluded that each execution deterred as many as eight murders. 19 But subsequent studies raised many questions about Ehrlich’s conclusions—by showing, for example, that the deterrent effects of the death penalty would be eliminated if data from 1965 through 1969 were eliminated. 20 It would be fair to say that the deterrence hypothesis could not be confirmed by the studies that have been completed in the twenty years after Ehrlich first wrote. 21 More recent evidence, however, has given new life to Ehrlich’s hypothesis. 2 A wave of sophisticated multiple regression studies have exploited a newly available form of data, so-called â€Å"panel data,† that uses all information from a set of units (states or counties ) and follows that data over an extended period of time. A leading study used county-level panel data from 3054 U. S. counties between 1977 and 1996. 23 The authors found that the murder rate is significantly reduced by both death sentences and executions. The most striking finding was that on average, each execution results in eighteen fewer murders. 24 Other econometric studies also find a substantial deterrent effect.In two papers, Paul Zimmerman uses state-level panel data from 1978 onwards to measure the deterrent effect of execution rates and execution methods. He estimates that each execution deters an average of fourteen murders. 25 Using state-level data from 1977 to 1997, H. Naci Mocan and R. Kaj Gittings find that each execution deters five murders on average. 26 They also find that increases in the murder rate result when people are removed from death row Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny, 1 ANN. REV. L. & SOC. SCI. 151 (2005). 19.See Ehrlich, supra note 18, at 398; Isaac Ehrlich, Capital Punishment and Deterrence: Some Further Thoughts and Additional Evidence, 85 J. POL. ECON. 741 (1977). 20. For this point and an overview of many other criticisms of Ehrlich’s conclusions, see Richard O. Lempert, Desert and Deterrence: An Assessment of the Moral Bases of the Case for Capital Punishment, 79 MICH. L. REV. 1177 (1981). 21. See id. ; Weisberg, supra note 18, at 155-57. 22. Even as this evidence was being developed, one of us predicted, perhaps rashly, that the debate would remain inconclusive for the foreseeable future. See Adrian Vermeule, Interpretive Choice, 75 N.Y. U. L. REV. 74, 100-01 (2000). 23. See Dezhbakhsh et al. , supra note 9, at 359. 24. Id. at 373. 25. Zimmerman, Alternative Execution Methods, supra note 9; Zimmerman, State Executions, supra note 9, at 190. 26. Mocan & Gittings, supra note 9, at 453. Notably, no clear evidence of a deterrent effect from capital punishment emerges from L awrence Katz et al. , Prison Conditions, Capital Punishment, and Deterrence, 5 AM. L. & ECON. REV. 318, 330 (2003), which finds that the estimate of deterrence is extremely sensitive to the choice of specification, with the largest estimate paralleling that in Ehrlich, supra note 18.Note, however, that the principal finding in Katz et al. , supra, is that prison deaths do have a strong deterrent effect and a stunningly large one—with each prison death producing a reduction of â€Å"30-100 violent crimes and a similar number of property crimes. † Id. at 340. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 712 STANFORD LAW REVIEW [Vol. 58:703 and when death sentences are commuted. 27 A study by Joanna Shepherd, based on data from all states from 1997 to 1999, finds that each death sentence deters 4. 5 murders and that an execution deters 3 additional murders. 8 Her study also investigates the contested question whether executions deter crimes of passion and murders by intimates. Although intuition might suggest that such crimes cannot be deterred, her own finding is clear: all categories of murder are deterred by capital punishment. 29 The deterrent effect of the death penalty is also found to be a function of the length of waits on death row, with a murder deterred for every 2. 75 years of reduction in the period before execution. 30 Importantly, this study finds that the deterrent effect of capital punishment protects African-American victims even more than whites. 1 In the period between 1972 and 1976, the Supreme Court produced an effective moratorium on capital punishment, and an extensive unpublished study exploits that fact to estimate the deterrent effect. Using state-level data from 1977 to 1999, the authors make before-and-after comparisons, focusing on the murder rate in each state before and after the death penalty was suspended and reinstated. 32 The authors find a substantial deterrent effect: â€Å"[T]he data indicate that murder rates increased immediately after the moratorium was imposed and decreased directly after the moratorium was lifted, providing support for the deterrence hypothesis. 33 A recent study offers more refined findings. 34 Disaggregating the data on a state-by-state basis, Joanna Shepherd finds that the nationwide deterrent effect of capital punishment is entirely driven by only six states—and that no deterrent effect can be found in the twenty-one other states that have restored capital punishment. 35 What distinguishes the six from the twenty-one? The answer, she contends, lies in the fact that states showing a deterrent effect are executing more people than states that are not. In fact the data show a 27. Mocan & Gittings, supra note 9, at 453, 456. 8. Shepherd, Murders of Passion, supra note 9, at 308. 29. Id. at 305. Shepherd notes: Many researchers have argued that some types of murders cannot be deterred: they assert that murders committed during arguments or oth er crime-of-passion moments are not premeditated and therefore undeterrable. My results indicate that this assertion is wrong: the rates of crime-of-passion and murders by intimates—crimes previously believed to be undeterrable—all decrease in execution months. Id. 30. Id. at 283. 31. Id. at 308. 32. Hashem Dezhbakhsh & Joanna M.Shepherd, The Deterrent Effect of Capital Punishment: Evidence from a â€Å"Judicial Experiment,† at tbls. 3-4 (Am. Law & Economics Ass’n Working Paper No. 18, 2004), available at http://law. bepress. com/cgi/viewcontent. cgi? article=1017&context=alea (last visited Dec. 1, 2005). 33. Id. at 3-4. 34. Shepherd, Deterrence Versus Brutalization, supra note 9. 35. Id. at 207. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 713 â€Å"threshold effect†: deterrence is found in states that had at least nine total executions between 1977 and 1996.In states below th at threshold, no deterrence effect can be found. 36 This finding is intuitively plausible. Unless executions reach a certain level, murderers may act as if the death penalty is so improbable as not to be worthy of concern. 37 Shepherd’s main lesson is that once the level of executions reaches a certain level, the deterrent effect of capital punishment is substantial. All in all, the recent evidence of a deterrent effect from capital punishment seems impressive, especially in light of its â€Å"apparent power and unanimity. 38 But in studies of this kind, it is hard to control for confounding variables, and reasonable doubts inevitably remain. Most broadly, skeptics are likely to question the mechanisms by which capital punishment is said to have a deterrent effect. In the skeptical view, many murderers lack a clear sense of the likelihood and perhaps even the existence of executions in their states; further problems for the deterrence claim are introduced by the fact that ca pital punishment is imposed infrequently and after long delays.Emphasizing the weakness of the deterrent signal, Steven Levitt has suggested that â€Å"it is hard to believe that fear of execution would be a driving force in a rational criminal’s calculus in modern America. †39 And, of course, some criminals do not act rationally: many murders are committed in a passionate state that does not lend itself to an all-things-considered analysis on the part of perpetrators. More narrowly, it remains possible that the recent findings will be exposed as statistical artifacts or found to rest on flawed econometric methods.Work by Richard Berk, based on his independent review of the state-level panel data from Mocan and Gittings, offers multiple objections to those authors’ finding of deterrence. 40 For example, Texas executes more people than any other state, and when Texas is removed from the data, the evidence of deterrence is severely weakened. 41 Removal of the appa rent â€Å"outlier state[s]† that execute the largest numbers of people seems to eliminate the finding of deterrence 36. Id. at 239-41. 37.Less intuitively, Shepherd finds that in thirteen of the states that had capital punishment but executed few people, capital punishment actually increased the murder rate. She attributes this puzzling result to what she calls the â€Å"brutalization effect,† by which capital punishment devalues human life and teaches people about the legitimacy of vengeance. Id. at 40-41. 38. See Weisberg, supra note 18, at 159. 39. See Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, 18 J. ECON. PERSP. 163, 175 (2004). 0. See Berk, supra note 16; Deterrence and the Death Penalty, supra note 16, at 6-12. 41. Berk, supra note 16, at 320. It has also been objected that the studies do not take account of the availability of sentences that involve life without the possibility of paro le; such sentences might have a deterrent effect equal to or beyond that of capital punishment. See Deterrence and the Death Penalty, supra note 16. A response to Berk can found in Shepherd, Deterrence Versus Brutalization, supra note 9. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 714STANFORD LAW REVIEW [Vol. 58:703 altogether. 42 Berk concludes that the findings of Mocan and Gittings are driven by six states with more than five executions each year. Berk, however, proceeds by presenting data in graphic form; he offers no regression analyses in support of his criticism. These concerns about the evidence should be taken as useful cautions. At the level of theory, it is plausible that if criminals are fully rational, they should not be deterred by infrequent and much-delayed executions; the deterrent signal may well be too weak to affect their behavior.But suppose that like most people, criminals are boundedly rational, assessing probabilities with the aid of heurist ics. 43 If executions are highly salient and cognitively available, some prospective murderers will overestimate their likelihood, and will be deterred as a result. Other prospective murderers will not pay much attention to the fact that execution is unlikely, focusing instead on the badness of the outcome (execution) rather than its low probability. 44 Few murderers are likely to assess the deterrent signal by multiplying the harm of execution against its likelihood.If this is so, then the deterrent signal will be larger than might be suggested by the product of that multiplication. Levitt’s theoretical claim assumes that prospective murderers are largely rational in their reaction to the death penalty and its probability—standing by itself, a plausible conjecture but no more. As for the recent data, it is true that evidence of deterrence is reduced or eliminated through the removal of Texas and other states in which executions are most common and in which evidence of deterrence is strongest. 5 But removal of those states seems to be an odd way to resolve the contested questions. States having the largest numbers of executions are most likely to deter, and it does not seem to make sense to exclude those states as â€Å"outliers. †46 By way of comparison, imagine a study attempting to determine what characteristics of baseball teams most increase the chance of winning the World Series. Imagine also a criticism of the study, parallel to Berk’s, which complained that data about the New York Yankees should be thrown out, on the ground that the Yankees have won so many times as to be â€Å"outliers. This would be an odd idea, because empiricists must go where the evidence is; in the case of capital punishment, the outliers provide much of the relevant evidence. Recall here Shepherd’s finding, compatible with the analysis of some skeptics, that the deterrent effect occurs only in states in which there is some threshold 42. Berk, supra note 16, at 320-24; Shepherd, Deterrence Versus Brutalization, supra note 9. 43. On bounded rationality in general, see RICHARD H. THALER, QUASI-RATIONAL ECONOMICS (1991). 44.See Yuval Rottenstreich & Christopher K. Hsee, Money, Kisses, and Electric Shocks: On the Affective Psychology of Risk, 12 PSYCHOL. SCI. 185, 188 (2001); Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 YALE L. J. 61 (2002). 45. See Shepherd, Deterrence Versus Brutalization, supra note 9. 46. Id. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 715 number of executions. 47 But let us suppose, plausibly, that the evidence of deterrence remains inconclusive.Even so, it would not follow that the death penalty as such fails to deter. As Shepherd also finds in her most recent study,48 more frequent executions, carried out in closer proximity to convictions, are predicted to amplify the deterrent signal for both ration al and boundedly rational criminals. We can go further. A degree of doubt, with respect to the current system, need not be taken to suggest that existing evidence is irrelevant for purposes of policy and law.In regulation as a whole, it is common to embrace some version of the precautionary principle49—the idea that steps should be taken to prevent significant harm even if cause-and-effect relationships remain unclear and even if the risk is not likely to come to fruition. Even if we reject strong versions of the precautionary principle,50 it hardly seems sensible that governments should ignore evidence demonstrating a significant possibility that a certain step will save large numbers of innocent lives.For capital punishment, critics often seem to assume that evidence on deterrent effects should be ignored if reasonable questions can be raised about the evidence’s reliability. But as a general rule, this is implausible. In most contexts, the existence of legitimate qu estions is hardly an adequate reason to ignore evidence of severe harm. If it were, many environmental controls would be in serious jeopardy. 51 We do not mean to suggest that government should commit what many people consider to be, prima facie, a serious moral wrong simply on the basis of speculation that this action will do some good.But a degree of reasonable doubt need not be taken as sufficient to doom a form of punishment if there is a significant possibility that it will save large numbers of lives. It is possible that capital punishment saves lives on net, even if it has zero deterrent effect. A life-life tradeoff may arise in several ways. One possibility, the one we focus on here, is that capital punishment deters homicides. Another possibility is that capital punishment has no deterrent effect, but saves lives just 7. See id. 48. Id. 49. For overviews of the precautionary principle and related issues, see INTERPRETING THE PRECAUTIONARY PRINCIPLE (Tim O’Riordan & J ames Cameron eds. , 1994); ARIE TROUWBORST, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW (2002). 50. See, e. g. , Julian Morris, Defining the Precautionary Principle, in RETHINKING RISK AND THE PRECAUTIONARY PRINCIPLE (Julian Morris ed. , 2000). 51.Indeed, those skeptical of capital punishment invoke evidence to the effect that capital punishment did not deter, and argue, plausibly, that it would be a mistake to wait for definitive evidence before ceasing with a punishment that could not be shown to reduce homicide. See Lempert, supra note 20, at 1222-24. This is a kind of precautionary principle, arguing against the most aggressive forms of punishment if the evidence suggested that they did not deter. We are suggesting the possibility of a mirror-image precautionary principle when the evidence goes the other way. SUNSTEIN & VERMEULE 58 STAN.L. REV. 703 1/9/2006 10:51:05 AM 716 STANFORD LAW REVIEW [Vol. 58:703 by incapacitating those who would otherwise k ill again in the future. 52 Consider those jurisdictions that eschew capital punishment altogether. What sanction can such jurisdictions really apply to those who have already been sentenced to life in prison without parole? Sentences of this sort may take more lives overall by increasing the number of essentially unpunishable withinprison homicides of guards and fellow inmates. 53 Many murderers are killed in prison even in states that lack the death penalty. 4 And if murderers are eventually paroled into the general population, some of them will kill again. Overall, it is quite possible that the permanent incapacitation of murderers through execution might save lives on net. A finding that capital punishment deters—and deterrence is our focus here—is sufficient but not necessary to find a life-life tradeoff. In any event, our goal here is not to reach a final judgment about the evidence. It is to assess capital punishment given the assumption of a substantial deterre nt effect.In what follows, therefore, we will stipulate to the validity of the evidence and consider its implications for morality and law. Those who doubt the evidence might ask themselves how they would assess the moral questions if they were ultimately convinced that life-life tradeoffs were actually involved—as, for example, in hostage situations in which officials are authorized to use deadly force to protect the lives of innocent people. II. CAPITAL PUNISHMENT: MORAL FOUNDATIONS AND FOUR OBJECTIONS Assume, then, that capital punishment does save a significant number of innocent lives.On what assumptions should that form of punishment be deemed morally unacceptable, rather than morally obligatory? Why should the deaths of those convicted of capital murder, an overwhelmingly large fraction of whom are guilty in fact, be considered a more serious moral wrong than the deaths of a more numerous group who are certainly innocents? We consider, and ultimately reject, several re sponses. Our first general contention is that opposition to capital punishment trades on a form of the distinction between acts and omissions.Whatever the general force of that distinction, its application to government systematically fails, because government is a distinctive kind of moral agent. Our second general contention is that, apart from direct state involvement, the features that make capital punishment morally objectionable to its critics are also features of the very murders that capital punishment deters. The principal difference, on the empirical assumptions we are making, is that in a legal regime without capital punishment far more people die, and those people are innocent of any 2. See Ronald J. Allen & Amy Shavell, Further Reflections on the Guillotine, 95 J. CRIM. L. & CRIMINOLOGY 625, 630-31 (2005). 53. See id. at 630 n. 9. 54. See Katz et al. , supra note 26, at 340. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHME NT MORALLY REQUIRED? 717 wrongdoing. No one denies that arbitrariness in the system of capital punishment is a serious problem. But even if the existing system is viewed in its worst light, it involves far less arbitrariness than does the realm of homicide.Let us begin, however, with foundational issues. A. Morality and Death On a standard view, it is impossible to come to terms with the moral questions about capital punishment without saying something about the foundations of moral judgments. We will suggest, however, that sectarian commitments at the foundational level are for the most part irrelevant to the issues here. If it is stipulated that substantial deterrence exists, both consequentialist and deontological accounts of morality will or should converge upon the view that capital punishment is morally obligatory.Consequentialists will come to that conclusion because capital punishment minimizes killings overall. Deontologists will do so because an opposition to killing is, b y itself, indeterminate in the face of life-life tradeoffs; because a legal regime with capital punishment has a strong claim to be more respectful of life’s value than does a legal regime lacking capital punishment; and because modern deontologists typically subscribe to a consequentialist override or escape hatch, one that makes otherwise mpermissible actions obligatory if necessary to prevent many deaths—precisely what we are assuming is true of capital punishment. Only those deontologists who both insist upon a strong distinction between state actions and state omissions and who reject a consequentialist override will believe the deterrent effect of capital punishment to be irrelevant in principle. Suppose that we accept consequentialism and believe that government actions should be evaluated in terms of their effects on aggregate welfare.If we do so, the evidence of deterrence strongly supports a moral argument in favor of the death penalty—a form of punish ment that, by hypothesis, seems to produce a net gain in overall welfare. Of course, there are many complications here; for example, the welfare of many people might increase as a result of knowing that capital punishment exists, and the welfare of many other people might decrease for the same reason. A full consequentialist calculus would require a more elaborate assessment than we aim to provide here.The only point is that if capital punishment produces significantly fewer deaths on balance, there should be a strong consequentialist presumption on its behalf; any argument against capital punishment, on consequentialist grounds, will face a steep uphill struggle. To be sure, it is also possible to imagine forms of consequentialism that reject welfarism as implausibly reductionist and see violations of rights as part of the set of consequences that must be taken into account in deciding what to SUNSTEIN & VERMEULE 58 STAN. L. REV. 03 1/9/2006 10:51:05 AM 718 STANFORD LAW REVIEW [Vol . 58:703 do. 55 For some such consequentialists, killings are, under ordinary circumstances, a violation of rights, and this point is highly relevant to any judgment about killings. But even if the point is accepted, capital punishment may be required, not prohibited, on consequentialist grounds, simply because and to the extent that it minimizes rights violations. Private murders also violate rights, and the rights-respecting consequentialist must take those actions into account.But imagine that we are deontologists, believing that actions by government and others should not be evaluated in consequentialist terms; how can capital punishment be morally permissible, let alone obligatory? For some deontologists, capital punishment is obligatory for moral reasons alone. 56 But suppose, as other deontologists believe, that under ordinary circumstances, the state’s killing of a human being is a wrong and that its wrongness does not depend on an inquiry into whether the action prod uces a net increase in welfare.For many critics of capital punishment, a deontological intuition is central; evidence of deterrence is irrelevant because moral wrongdoing by the state is not justified even if it can be defended on utilitarian grounds. Compare a situation in which a state seeks to kill an innocent person, knowing that the execution will prevent a number of private killings; deontologists believe that the unjustified execution cannot be supported even if the state is secure in its knowledge of the execution’s beneficial effects. Of course, it is contentious to claim that capital punishment is a moral wrong.But if it is, then significant deterrence might be entirely beside the point. It is simply true that many intuitive objections to capital punishment rely on a belief of this kind: just as execution of an innocent person is a moral wrong, one that cannot be justified on consequentialist grounds, so too the execution of a guilty person is a moral wrong, whateve r the evidence shows. Despite all this, our claims here do not depend on accepting consequentialism or rejecting the deontological objection to evaluating unjustified killings in consequentialist terms.The argument is instead that by itself and in the abstract, this objection is indeterminate on the moral status of capital punishment. To the extent possible, we intend to bracket the most fundamental questions and to suggest that whatever one’s view of the foundations of morality, the objection to the death penalty is difficult to sustain under the empirical assumptions that we have traced. Taken in its most sympathetic light, a deontological objection to capital punishment is unconvincing if states that refuse to impose the death penalty produce, by that 55.Amartya Sen, Rights and Agency, 11 PHIL. & PUB. AFF. 3, 15-19 (1982). 56. See Pojman, supra note 4, at 58-59. As noted below, the case of Israel is a good test for such deontologists; Israel does not impose the death penal ty, in part on the ground that executions of terrorists would likely increase terrorism. Do deontologists committed to capital punishment believe that Israel is acting immorally? In our view, they ought not to do so, at least if the empirical assumption is right and if the protection of lives is what morality requires. SUNSTEIN & VERMEULE 58 STAN.L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 719 very refusal, significant numbers of additional deaths. Recall the realm of homicide: for deontologists who emphasize life’s value and object to the death penalty, the problem is acute if the refusal to impose that penalty predictably leads to a significant number of additional murders. In a hostage situation, police officers are permitted to kill (execute) those who have taken hostages if this step is reasonably deemed necessary to save those who have been taken hostage.If the evidence of deterrence is convincing, why is capital punishment so different in principle? Of course, these points might be unresponsive to those who believe that execution of a guilty person is morally equivalent to execution of an innocent person and not properly subject to a recognition of life-life tradeoffs. We will explore this position in more detail below. And we could envision a form of deontology that refuses any exercise in aggregation—one that would refuse to authorize, or compel, a violation of rights even if the violation is necessary to prevent a significantly larger number of rights violations.But most modern deontologists reject this position, instead admitting a consequentialist override to baseline deontological prohibitions. 57 Although the threshold at which the consequentialist override is triggered varies with different accounts, we suggest below that if each execution deters some eighteen murders, the override is plausibly triggered. To distill these points, the only deontological accounts that are inconsistent with our argument are those that both (1) embrace a distinction between state actions and state omissions and (2) reject a consequentialist override.To those who subscribe to this complex of views, and who consider capital punishment a violation of rights, our argument will not be convincing. In the end, however, we believe that it is difficult to sustain the set of moral assumptions that would bar capital punishment if it is the best means of preventing significant numbers of innocent deaths. Indeed, we believe that many of those who think that they hold those assumptions are motivated by other considerations—especially a failure to give full weight to statistical lives—on which we focus in Part III. B.Acts and Omissions A natural response to our basic concern would invoke the widespread intuition that capital punishment involves intentional state â€Å"action,† while the failure to deter private murders is merely an â€Å"omission† by the state. In our view, this appealing and intuitive line of argument goes rather badly wrong. The critics of capital punishment have been led astray by uncritically applying the act/omission distinction to a regulatory setting. Their position condemns the â€Å"active† infliction of death by governments but does not condemn the â€Å"inactive† production of death that comes from the refusal to maintain a system 57.For an overview, see Larry Alexander, Deontology at the Threshold, 37 SAN DIEGO L. REV. 893, 898-901 (2000). SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 720 STANFORD LAW REVIEW [Vol. 58:703 of capital punishment. The basic problem is that even if this selective condemnation can be justified at the level of individual behavior, it is difficult to defend for governments. 58 A great deal of work has to be done to explain why â€Å"inactive,† but causal, government decisions should not be part of the moral calculus.Suppose that we endorse the deontological pos ition that it is wrong to take human lives, even if overall welfare is promoted by taking them. Why does the system of capital punishment violate that position, if the failure to impose capital punishment also takes lives? Perhaps our argument about unjustified selectivity is blind to morally relevant factors that condemn capital punishment and that buttress the act/omission distinction in this context. There are two possible points here, one involving intention and the other involving causation.First, a government (acting through agents) that engages in capital punishment intends to take lives; it seeks to kill. A government that does not engage in capital punishment, and therefore provides less deterrence, does not intend to kill. The deaths that result are the unintended and unsought byproduct of an effort to respect life. Surely— it might be said—this is a morally relevant difference. Second, a government that inflicts capital punishment ensures a simple and direct causal chain between its own behavior and the taking of human lives.When a government rejects capital punishment, the causal chain is much more complex; the taking of human lives is an indirect consequence of the government’s decision, one that is mediated by the actions of a murderer. The government authorizes its agents to inflict capital punishment, but it does not authorize private parties to murder; indeed, it forbids murder. Surely that is a morally relevant difference, too. We will begin, in Part II. B. 1, with questions about whether the act/omission distinction is conceptually intelligible in regulatory settings.Here the suggestion is that there just is no way to speak or think coherently about government â€Å"actions† as opposed to government â€Å"omissions,† because government cannot help but act, in some way or another, when choosing how individuals are to be regulated. In Part II. B. 2, we suggest that the distinction between government acts and omissions, even if conceptually coherent, is not morally relevant to the question of capital punishment. Some governmental actions are morally obligatory, and some governmental omissions are blameworthy.In this setting, we suggest, government is morally obligated to adopt capital punishment and morally at fault if it declines to do so. 1. Is the act/omission distinction coherent with respect to government? In our view, any effort to distinguish between acts and omissions goes 58. Compare debates over going to war: Some pacifists insist, correctly, that acts of war will result in the loss of life, including civilian life. But a refusal to go to war will often result in the loss of life, including civilian life.SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 721 wrong by overlooking the distinctive features of government as a moral agent. If correct, this point has broad implications for criminal and civil law. Whate ver the general status of the act/omission distinction as a matter of moral philosophy,59 the distinction is least impressive when applied to government, because the most plausible underlying considerations do not apply to official actors. 0 The most fundamental point is that, unlike individuals, governments always and necessarily face a choice between or among possible policies for regulating third parties. The distinction between acts and omissions may not be intelligible in this context, and even if it is, the distinction does not make a morally relevant difference. Most generally, government is in the business of creating permissions and prohibitions. When it explicitly or implicitly authorizes private action, it is not omitting to do anything or refusing to act. 1 Moreover, the distinction between authorized and unauthorized private action—for example, private killing— becomes obscure when the government formally forbids private action but chooses a set of policy instruments that do not adequately or fully discourage it. To be sure, a system of punishments that only weakly deters homicide, relative to other feasible punishments, does not quite authorize homicide, but that system is not properly characterized as an omission, and little turns on whether it can be so characterized.Suppose, for example, that government fails to characterize certain actions—say, sexual harassment—as tortious or violative of civil rights law and that it therefore permits employers to harass employees as they choose or to discharge employees for failing to submit to sexual harassment. It would be unhelpful to characterize the result as a product of governmental â€Å"inaction. † If employers are permitted to discharge employees for refusing to submit to sexual harassment, it is because the law is allocating certain entitlements to employers rather than employees. Or consider the context of ordinary torts.When Homeowner B sues Factory A over air pollution, a decision not to rule for Homeowner B is not a form of inaction: it is the allocation to Factory A of a property right to pollute. In such cases, an apparent government omission is an action simply because it is an allocation of legal rights. Any decision that allocates such rights, by creating entitlements 59. For discussion of the philosophical controversy over acts and omissions, see generally RONALD DWORKIN, LIFE’S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM (1993); Frances M.Kamm, Abortion and the Value of Life: A Discussion of Life’s Dominion, 95 COLUM. L. REV. 160 (1995) (reviewing DWORKIN, supra); Tom Stacy, Acts, Omissions, and the Necessity of Killing Innocents, 29 AM. J. CRIM. L. 481 (2002). 60. Here we proceed in the spirit of Robert Goodin by treating government as a distinctive sort of moral agen

Culture Essay Example | Topics and Well Written Essays - 1000 words - 6

Culture - Essay Example I also realized that I belong to this cultural group because I abide by its beliefs and customs, which determines the way of life that we practice on a daily basis. Before analyzing how this culture affects my life, it is crucial to define vast aspects of our culture and how it is practiced. Firstly, the Hispanic, Mexican culture is strongly based on family matters where everyone in the family becomes his brothers’ keepers (Merrim 150). The above is depicted by the fact that the Mexican families are very wide open and largely spread outside of the cities within; thus, we care for each other and live as one society. This aspect positively affects my life because it planted a seed of care in my daily life practices. For this reason, it means that by being a part of this culture, I have become a caring person who is always concerned about issues faced by friends, family, and the entire society. Prior to living together and caring for each other as a family, we also love celebrations and feasts that occur subsequently during the year. These parties and celebrations unite the extended families, who are usually invited to the celebration venues (156). These celebrations are highly embraced because they remind us of the past times and at the same time remind us the reason for embracing values and customs. In this regard, the celebrations positively affect my sense of originality and roots because it offers me a platform of knowing who I am. More so, these celebrations increase my patriotism because it gives me the reason to love my background. The other culture that we adhere to is the family setting, where the father is considered as the head of the family, or the authority of the home (198). The mother is perceived as the home manager, who runs the home. This cultural practice has slightly been affected by globalization because women currently engage in vast

Hemi's case study Assignment Example | Topics and Well Written Essays - 1000 words

Hemi's case study - Assignment Example While under interrogation by the crisis worker Hemi responds but provide confusing details. He claims that there existed a Koro that persuaded him to try and cross the river and that he communicates with it (Cormier, Nurius, & Osborn, 2009). He has become a matter of concern with his parents in that they consider him not to well as he used to be. In the video hemi speaks to himself and mentions Koro throughout the interview. 2. Clinical Formulation: It’s an approach that combines bio-psychosocial factors. Information is viewed as either presenting, predisposing, precipitating, perpetuating and protective. They are all included in the clinical presentation of the patient by the psychiatrist (Haynes & O'Brien, 2011). Presenting factors are the major and initial concern of the patient. They assist in ensuring that one has a clear understanding concerning the patient. Hem’s situation is as a result of the death of his Koro, since then Koro has hemi has changed in behaviour. They claim he has never been the same gain since the death of his grand father who has been attributed to be very close to Hemi is the route cause of the situation, in that his activities change and is defenceless and he is limited in the support of the family due to there limited knowledge in matters to do with mental illness. Precipitating factors: The main cause of Hemi’s is his grandfathers death of with his relation and connectivity to him resulted loosing his mind. The result is him jumping into the river in the effort of feeling unsecure. He explains each statement with reference to kora. The other factors are predisposing Factors in our case the immediate surrounding has influenced the situation that Hemi is experience the fact that he has experience a change in the environment in that the fact that his Koro will never be around again has not accepted by his mind in that he feels as if she is around (Groth-Marnat, 2009). From the ignorance of the parents he is forced to delusion the matter and his status worsen with less intervention. Perpetuating Factors are those that are hindering Hemi from feeling better. His parents may be the reason as to why his situation. Although they are concerned they have played a less role in ensuring that Hemi comes in term with the death of his Koro (Rosdahl, 2008). They look confused on the situation of Hemi thus becoming a hindrance in the recovery of their son. This leads to the delusion of Hemi and he result him jumping into the river The last factors are the protective factors in which they assist in the well being of Hemi. They include the environment in that change of location away from where Koro lived may change the situation of hemi since it will help in erasing the memories of Koro. The other component is the parents who should play a supportive role and issue him with new hopes by doing so hemi will settle psychology. From both the mental and clinical formulation a set of approval and diagnoses is det ermined to ensure the whole case is found a solution (Ingram, 2011). Hemi’s case has resulted in refusal to engage in activities teenagers his age perform, like engage in outside sports. This is a result of his parent lacking inn the knowledge of his case which is as a result of adolesces. 3. Maslow’s Hierarchy of Needs 1. Basic needs: Breathable (speak in full sentence, normal

Police Ethics and Corruption Research Paper Example | Topics and Well Written Essays - 1250 words

Police Ethics and Corruption - Research Paper Example Police misconduct and indiscipline are a common phenomenon in the daily living of the police. Police should apply the integrity, which implies that when right decisions are made, the values of the society should be taken into consideration. However, the paradox is that conflicts within the set standards can lead to the so-called noble cause corruption. The police culture Police culture refers to the way of living of the police, the tasks they do, the hard work, and their relationship with their fellow officers. The police have a culture that emphasizes acting, not introspection (Pollock, 2011). In the local or international police training, the police engage in heart-felt tasks that are at times tearful. The kind of training that the police undergo totally demeans their human dignity, especially if there is a concomitant willingness to acknowledge the struggle for treatment with respect. These trainings the police undergo instill ethical conduct of a real police to them. Among the po lice, ethical standards and respect for human rights shape with time and place (Pollock, 2011). The police have influence and constrains from the broader ethical standards and expectations of the society. Therefore, they must be realistic on the limits of a human dignity-centered approach. Other factors leading to devilment of attitudes, behaviors, and perceptions that relate to the police culture reinforces their interactions. The general view of the police culture is negative. The police believe in the blue wall of silence which makes them free of being accountable of any misconduct. The professional codes of behavior or the ethical codes of the police intend to elicit the set of desired attitudes and responses to the members of the police department. The actions undertaken by the police remind us the expectation from them, that is, to provide a common vocabulary of difficult cases (Jetmore, 2005). The police reinforce and share values and militate against the adverse aspects of t heir occupation and influence. The police culture has adopted the general conduct of law enforcement. Policing the community Community policing promotes the organizational strategies, which support systemic partnership and problem solving techniques that address the immediate conditions like public safety issues, crime, disorders, and the fear of crime in the communities. The policing within the community aims to support the delivery of community confidence through personal and protective policing. It provides a strategy for future protection opportunities that build the foundations of security. The community policing reflects a collaborative efforts between the police and the community. It is founded in a close mutual benefit of the police and the community members. Generally, the community policing revolves around three factors, which are partnership between the police and the community, problem-solving methods that identify and address the concern of the community, and, lastly, t he change in the management in the police organization to accommodate the increased community involvement (Pollock, 2011). The community policing originates from the time when the citizens of the United States were themselves the police. However, this has transformed, and the police have taken these security provision roles. Value-based decision-making and the ethics of noble cause Police are the basic units of

Economics Extanded Essay, Coursework for the IB Essay

Economics Extanded , Coursework for the IB - Essay Example Irrespective of the product or service that is being studied; it is apparent that all of a sudden the information flow has become more rapid, regulatory structures more oriented to free market structures and the movement of capital and permission to access local markets freer. This has prompted national businesses to target global businesses and the global businesses to target national markets. However lumpiness in the control of market shares is seen as yet which has tended to be diluted monopoly or monopolistic controls of the past and the structures have tended to turn, in general, to oligopolistic structures. Banking industry is no exception. Main features of banking industry, irrespective of jurisdiction have been a long standing history of business, ready demands for its products and services (baring economic downturns) and specific protection enjoyed from the national governments It has experienced a more benign and structured capital adequacy regimes in the form of Basle I an d now Basle II apart from a host of other suggestive and market discipline based stipulations. Fact remains that banks enable target customers to do the essential functions of saving, investing and storing money or money equivalents and therefore banks tend to have a loyal and core segment of consumers on most jurisdictions where they have chosen to operate. Spanish banks are no exception. This has spurred market control strategies from the banks and these strategies coalesce to determine as to what exact form of market does the banking industry of a particular time looks like. Literature has often pointed out to the extent of competition in the banking industry: "Competition has become a recurrent topic in the banking literature. Specifically, during the last decade a great deal of empirical work has attempted to measure the level of competition prevailing in European banking markets. The beginning of the third stage of the Economic and Monetary Union, in January 1999, and the proj ected changeover to the Euro triggered the interest of researchers in this issue" (Rozas, 2007). This paper has the objective of examining the Spanish banking industry and to ascertain, if over the years, such an industry has come to acquire the market form of an oligopoly. This done through an in depth literature review where major arguments are sourced and analyzed and conclusion arrived ,on the basis of such an analysis, if the present day Spanish banking industry resembles a oligopolistic structure. Research Methodology Competition studies in banking industry of various jurisdictions is a very well thought out and researched topic and the literature in this area is rich with several aspects being already examined through deep empirical and theoretical research. Literature also has in store several models of depicting the shape and structure of the markets in which banking industry of a particular jurisdiction finds itself apart from listing and analysis of the various important factors that have caused the present