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Unusual but not cruel

February 23, 2016

There are serious logical and functional problems with a version of human rights law that prohibits cruel and unusual punishment as well as torture.  Capital punishment is generally considered to be a form of cruel and unusual punishment, so it is not available for use as a deterrent under such a law.  However, any reasonable person must admit that imprisonment, which would be the next choice for a standard legal penalty, is a form of mental torture and therefore also prohibited by a law that rules out torture in general.

Attempts to “cure” criminals, chemically, psychologically, or otherwise, are excluded as well. They violate a person’s right to refuse medical treatment or decline to submit to scientific experimentation, and, more importantly, his right to an identity, as criminal tendencies are part of his personality and erasing them would alter his identity.  The older solutions of enslavement and transportation are clearly incompatible with the right to liberty and the right to freedom of movement.  Similarly, outlawry would violate the right to a nationality and citizenship.

The effect of the “cruel and unusual punishment” wording, then, is to force a state or society which is both logical and genuinely interested in abiding by human rights law or principles to develop an entirely new system for coping with violations of its statutes.

Or perhaps a system that incorporates old as well as new elements.  In traditional Jewish, Islamic, and Germanic law, there are no categories of crimes against the state (lese majeste) or crimes against oneself, which make up the majority of all criminal cases in the modern era.  Within these societies, when a crime was committed, it had to be committed against another person.  There was always a victim, and resolution of the crime lay not with a judicial system, but between the offender and the victim or the victim’s community.  The possible solutions were twofold: restitution or execution.  Incarceration was never considered.

The purpose of an ideal judicial system, in theory, is not to prevent the commission of crime through threats, or to mete out punishment for crimes that have already been committed, but to restore the balance that existed before the crime and to undo whatever damage was done by the criminal.  In the case of finite crimes, where the damage was limited, the traditional solution of restitution is a practical one.  If a man breaks the window of a house, let him pay the owner for it.  If he breaks the window of a government building, he himself will pay for it in his taxes.  If he steals, let him return what he took or repay the owner.  If he injures another, let him make good that man’s loss and compensate him for his suffering.

Nonetheless, restitution is a less successful solution in the case of murder.  The victim cannot be compensated, and true restitution is in any case unlikely, as that would require the murderer to be capable of restoring his victim to life, an ability which is rare.  The victim’s family and friends may be willing to accept some form of compensation, but then again, they might not.  If they are not, the second traditional response to crime, that of execution, is prohibited by human rights law as cruel and unusual.  How is the dilemma resolved?

Without an altogether new understanding of the concepts of crime and justice, the only solution possible for a society that wishes to remain both logically consistent and humane is the bold step of removing murder from the scope of the law.  The law is intended to reestablish a balance; no balance can be restored after a murder; therefore, murder is not within the power of the legal system to adjudicate, and its resolution must be left to the individuals involved.  It is an unusual solution, but it is less cruel than the alternatives.


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