Tuesday, 1 November 2011


Old arguments don’t go away merely because they are unfashionable. I could argue either way on capital punishment and the prospect of executing innocent people weighs very heavily indeed with me, but I find this argument difficult to answer too:-

A enters a corner shop, pulls out a gun and shoots shopkeeper B. A then runs off, but the whole thing was recorded on CCTV. A is caught, tried, found guilty and sentenced to life imprisonment.

C enters a corner shop, pulls out a gun on shopkeeper D and shouts "you're a dead man". He acts as if about to fire on D, but D grabs hold of C and in the ensuing struggle C is shot dead. The whole thing was recorded on CCTV. Later in court, D is judged to have shot C in self-defence.

One person dies in each scenario, but in the first scenario it was an innocent victim B and in the second it was assailant C. In other words, the wrong person died in the first scenario and the right person died in the second.

Why shouldn’t the law assume that in similar circumstances, B might have killed A in self defence? Why doesn’t the law rectify the situation whereby B’s right to self-defence was unavailable, overpowered by the assailant or otherwise not exercised? In other words why not execute assailant A as retrospective self-defence on B’s behalf?


James Higham said...

There is the philosophical point, then there is the problem of absolute guilt with execution and then there is the cost of keeping a lowlife locked up forever.

The middle one seems to have something going for it if the evidence was overwhelming. On the other hand, if A had pleaded Guilty and executed or had pleaded not guilty and because of the doubt, he wasn't executed, then that is also problematic.

Sam Vega said...

I don't think the law would say of the second scenario that C was the "right person" to be killed. To say this would, of course, be to invite the question as to why the state does not execute murderously-inclined robbers under all circumstances; which is what makes your argument work.

Currently, the law would say that C should not have been killed, but that D's actions were understandable, or constrained, or inevitable, thereby excusing him from the penalty normally associated with murder in the course of a robbery.

The same point is found in the idea that there is no "retrospective self-defence". Self-defence is exactly that: the saving of one's life, which excuses one from culpability in some respects. The same would not apply after the event. No self is being defended by judicial execution, at least in this case.

A K Haart said...

JH - yes, I have to admit I wouldn't like to be the judge. I'm not sure that incarceration for life is particularly humane either.

SV - I agree that the self is not really being defended in retrospective self-defence, but that is due to the actions of the assailant who if you like, prevented the victim's legal right to self-defence.

As in all these cases we can spin scenarios and then pick holes in them. This is just one such scenario, but as I see it, we can pick holes in them all, including the current legal situation.