I was answering on the secular challenge. It begins with the founding principle. Otherwise you aren't really asking anything more than can a social order found itself on rational principles at odds with our own. Of course, because it can then define its own terms.
This is flat out moral relativism. This is the problem when you deny that there is, in fact, such a thing as natural law. You end up being forced to say that the laws of a given society only may be evaluated in terms of their coherence with its founding principles, with the will of the people, or with some other like principle, but you end up making the laws of different societies completely incommensurate to each other.
You can have absolutely no argument, e.g., against so called "honor killings" being legal in the Middle East (presupposing that they are legal) or against forced abortions in China.
You might, of course, express typical liberal pseudo-moral outrage. But ultimately, what argument could you possibly bring against these things? We have our principles, and they have theirs, and there's no "third thing," so to speak, according to which we can evaluate both in common.
Most rules have at least the appearance of an exception while remaining what they are. Some jurisdictions allow for and other's deny the death penalty. The larger compact permits it within strict boundaries. Those boundaries are that the administration cannot be cruel and unusual, meaning the punishment cannot permit torture and/or deliberately degrading punishment.
Your claim was that the State only should use "the least severe infringement on right." Generally speaking, a judge can issue a life sentence for a criminal convicted of a capital crime which otherwise could carry the death penalty (presupposing that the jury fails to vote for the death penalty).
On this supposition, life imprisonment and death are both "acceptable" punishments, and death is more severe than life; therefore, according to your argument, the death penalty must be abolished.
In point of fact, however...
Among the arguments from necessity that make for the DP exception is that someone who has taken from another that foundational right to be cannot be entrusted with his own life for fear of compounding the act. Or, in essence, an extension of the argument for self-defense as extrapolated to include others.
How about "he deserves to die"?
It is absent your ability to disable with sufficient certainty of protecting your life. And that's a hard call for anyone to make without an inordinate skill level in administering violence, even with calm and time, neither of which tend to be present in the act and moment.
I fully agree with this.
In concreto, the distinction doesn't make a difference. Psychologically speaking, in an emergency, life or death situation, in which you must make a split second decision, the tendency is just automatically to fire at center mass.
That's why bullet proof vests work. It doesn't cover everywhere...but people generally don't shoot everywhere.
Nonetheless, if someone is sufficiently trained, skilled, etc., and, being a private citizen, and not an agent of the State...? He may use potentially lethal force to defend himself, but he may not specifically shoot to kill.
I'd say, without even approaching the penalty, that it would be an easy thing to argue against, making a party to an action, essentially, a judge in the matter. Most professions recognize the problem of even positive emotional entanglements and their impact on performance and judgment.
I don't really see the problem in this case. Does the emotional entanglement distort the spouse's ability to determine the matter of fact, i.e., that his adulterous spouse has moved, or even has proposed to move, her lover into his household?
No? In fact, it is precisely this point which has made him so enraged?
Then the rest of your point seems pretty irrelevant to me.
For what it's worth, I'd like further to point out, TH, in support of what I am saying, that, at least historically, the West has recognized so called "crimes of passion," and that things like catching one's wife in adultery constitutes sufficient provocation either seriously to mitigate, if not entirely absolve from, the legal responsibility of the spouse who has committed the so called "crime of passion."
Why? Because it is entirely reasonable for a spouse who has been offended in this way to be angry, and it's entirely understandable that his anger would rise to the level of violence, perhaps even of the lethal variety.
This is enshrined in Western law, TH.
What I'm saying isn't really too far of a jump from what the law already recognizes.
It's just that I quietly enjoy my property and person without unlawful interference. It's just that someone who attempts to abrogate my right be punished. But equating a fiscal or emotional harm with the physical is inherently subjective and arbitrary. It invites disparity and injustice.
Justice is that virtue whereby each is given according to his due. It may also be defined as proportionate equality. In the case of crime, what is just is arithmetical quality, i.e., that the offended parties be "made whole," so to speak by the punishment inflicted on the criminal.
If someone steals 5 dollars from me, the criminal owes:
1. 5 dollars to me (which is materially what I lost)
2. Punishment for the violation against me (thereby transgressing my "right").
3. Punishment for violating the law (thereby transgressing the "right" of the State).
I'm not obliged to judge a man who lived in a time without any number of advantages we enjoy today that could have afforded him a greater freedom in choosing. It's not fair to him and it's not relevant to me.
To my ears, that's just a cop-out way to say: "In point of fact, my principles are completely at variance with what Moses prescribed, but I can't admit it, because I have 'Christian' under my screen name and avatar."
And while we're on this topic of "least severe infringement on right," do explain to me why, according to the Law of Moses, witches (i.e., drug dealers) were to be burned to death rather than stoned.
But no, I am not living under the Mosaic compact. Consider this my answer on part two, omitted.
Was the Mosaic Law just? Yes or no?
The problem with proportional is that it can't be objectively arrived at outside of the literal.
I simply disagree. It may be difficult to arrive at (this is a work of prudence, which is a virtue), but it's not impossible at least to approximate proportional equality (which is the very notion or description of justice).
Yes. The easiest illustration would be found in ordering the rape of a rapist.
Not analogous. Rape is intrinsically evil. Beating somebody is not. Even you will admit this. One may, e.g., strike someone in self defense. One most certainly may not
rape someone in self defense. Again, a soldier at war may strike an enemy combatant, but he most certainly may not rape him.
If we find an action so vile that we make it a violation of law then to return the injury with a likened action is to reduce the state, however we justify it, to the same part as the violator.
I disagree with this. The State has a right of violence or a right of vengeance/punishment/retribution, whereas the private citizen does not. Your whole argument presupposes a "moral equality," so to speak between State and private citizen.
Rather, the marital relationship opens both parties to responsibilities which they may or may not choose to fulfill and which, depending on the nature and weight of those choices, may lead to the abrogation of the contract.
Again, this is a modern notion. It's not consistent with Christianity. It's not consistent with ancient philosophy. It's not consistent with ancient and medieval legal practice.
Even as late as Kant, we find him writing that the right of a husband to his wife is like that of a right which one has over a
thing, i.e.,
a piece of property, that one may rightly say of his wife "she is mine; she
belongs to me." Nor is this misogynistic; the wife can claim likewise over her husband.
I wouldn't, perhaps, speak in those terms, but the modern description of marriage simply seems too weak to me.
You've stepped into the moral realm, into the real of conscience and my answer is that she deserves what anyone does absent grace. My answer to her would be Christ's answer when those who accused her had fled the field. The rest, the legal portion, I've spoken to in my last.
As always, your words are a constant testimony to legal positivism. :nono:
