Ding! Your Baby is Dead: Defining Crime Rationally

This story raises an interesting question: Should it be a crime to microwave your baby to death?

On first impression, I would say, “Sure! Easy question! That’s a bad thing to do; it ought to be a crime.” Further consideration, however, makes me question that conclusion.

First, setting aside preexisting definitions of murder, why should something be a crime simply because the rest of us think it’s a bad thing to do? Why should my personal, gut-level, moral reaction provide a normative rule? Even if almost everybody has the same personal, gut-level, moral reaction, why should that be the basis for defining crime? We should be more reasonable than that.

If we, as a society, are going to mete out criminal punishments, then those punishments should be retribution for offenses against our society, not retribution for offenses against our morality. In other words, in choosing whether to define a particular act as a crime, we should look to the effects of that act on the stable functioning of our society, not to the effects of that act on our individual or collective moral sensibilities. (If the effects of an act on our individual or collective moral sensibilities adversely effects the stable functioning of our society, that may be reason to define that act as criminal, but we should be worried if our moral sensibilities can so affect the governance of our society. E.g., if your society is so fragile that when you are morally offended by gay marriage it causes your entire society to self-destruct, gay marriage is probably the last thing you should be worrying about; you might want to criminalize shoddy reasoning at that point.)

So look at the act under consideration: a woman killing her own baby in a microwave oven. But we should clean that up a little. The part about the microwave oven is really just a red herring; it’s ghastly because the juxtaposition of so ordinary and pedestrian a device with something so out-of-the-ordinary and, for most people, morally repulsive, but that does not really affect the substance of the underlying act: a woman killing her own baby.

The irrelevant question here is, “Are your moral sensibilities offended by a woman killing her own baby?”

The relevant question here is, “Does a woman killing her own baby so disrupt the stability of our society that such an act deserves criminal punishment?” (I will ignore the deeper, even more relevant question: “Are criminal punishments effective and reasonable means of preventing acts that disrupt the stability of our society”)

I do not see a clear, easy answer to that question.

First, it would be helpful to know why a woman would kill her own baby. If some women are genetically predisposed to kill their offspring, then allowing them to cut of their own gene line should not be a problem. (Call that the eugenics objection, if you like.) If some women try to kill their offspring for reasons of psychological disturbance, then criminal punishment hardly seems appropriate. (Call that the therapeutic objection, if you like.)

Second, aside from moral revulsion, what are the concrete effects on our society when a woman kills her own baby? It is difficult to say that the baby has a stake in staying alive; it has no legal rights or duties, it cannot recognize and ponder its own existence; it cannot make decisions about itself; it is completely dependent upon adults for its continued life. Next in line for direct effects would be the mother, who may or may not be presumed to have rationally consented to her baby’s departure from our society. After the mother comes the father, who may be emotionally distraught, angry, and especially reactive. He may seek violent retribution via self-help, which would certainly not be socially acceptable. There may be similar effects in other family members. Beyond the family, it is difficult to see much social upheaval as a result of a mother killing her own baby. The most disruptive effect I can imagine would be ostracism of the mother.

Clearly, the best candidate for potential social instability is the chance of violent self-help retribution. The other effects do not rise to the level that requires criminalization, in my opinion. If we criminalized everything that tended to cause anger, emotional distress, and ostracism, then almost nothing would be legal. Each of those effects, along with violent self-help retribution, flows from a natural subjective emotional or moral response, but only violent self-help retribution is dangerous enough and difficult enough to control that it merits consideration as a factor leading to the criminalization of the act that triggers it.

Should we criminalize acts that are likely to trigger violent self-help retribution, on the grounds that such effects are socially destabilizing? Perhaps, but again I see no clear and easy answer. If we define a criminal act solely on potential responses to that act, then we have opened the door to criminalizing all sorts of other trigger acts. Why not simply criminalize the socially destabilizing response? (One might object that murder is a criminal act in no small part because it is likely to trigger murderous responses, which may escalate into blood feuds and power struggles that threaten the authority of the State. But in that case, where the responsive act is substantially the same as the triggering act, it is not unreasonable to criminalize both. Here, however, the responsive act would be substantially different from the triggering act, so there is a colorable argument for only criminalizing the responsive act.)

Again, no clear and easy answers emerge. I could probably sit here all night going back and forth with different arguments. However, moral revulsion and outrage will remain at the foundation of our retributive justice system for a long time. Most people are not ready to consider the possibility that our system is fundamentally irrational. Nor are they ready to distinguish between disruptions of their personal moral sensibilities and disruptions of the social fabric in which they live. But I’ll keep throwing these things out now and then. Maybe somebody will catch on.

Break a Leg

I just love headlines like the one on this article:

“The Pope Tones Down His Act in Turkey”

That’s right. His act. Ratzinger even has a stage name: “Benedict XVI.” Fictional god, fictional figurehead.

Posturing

Slouch! Yeah, that’s the stuff.

Humpback Smart (the Woman is Smarter)

Here is more interesting scientific research tending (if only remotely) toward an expansion of “humanity” beyond the confines of the species.

Humpback whales have a type of brain cell seen only in humans, the great apes, and other cetaceans such as dolphins, U.S. researchers reported on Monday.

. . .

The finding may help explain some of the behaviors seen in whales, such as intricate communication skills, the formation of alliances, cooperation, cultural transmission and tool usage, the researchers report in The Anatomical Record.

I suppose it also tends toward the destruction of an exceptionalist, metaphysical conception of culture. Good, good, good.

Also, every time I see something about humpback whales, I want to watch The Voyage of the Mimi again.

Thank You, American Pharmaceutical Industry

Check out this nifty little video that was just passed along to me in my email: The Morning After Pill by Mark Day.

Crime Defined in Literature

This weekend I have been reading The Romance of Tristan & Iseult as retold by Joseph Bédier. (For some general background on the story, read the Wikipedia entry.)

Being a student of the law, wherein I ponder much the meaning of its ways, I am always interested to find tidbits of the common law, codified in literature, so to speak. Our common law derives from basic traditions and our “natural” sense of justice. Thus, if one reads literature, one can often find such principles that have also worked their way into our justice system. For instance, while reading Tristan & Iseult, I encountered this passage:

For men see this and that outward thing, but God alone the heart, and in the heart alone is Crime and the sole final judge is God.

Indeed, to this day, the essence of our criminal law is the requirement that the defendant both committed the proscribed act (called by the Latin, actus reus) and had the requisite wrongful state of mind (mens rea). An act is not criminal unless it was performed pursuant to a wrongful state of mind—we see the outward thing, but crime is in the heart.

Of course, God being a fiction, judges and juries do not rely on prayer or divine revelation to determine the guilt or innocence of defendants. In modern courts, we are bound by the rules of evidence, under which the defendant’s state of mind may be inferred from his or her conduct (which is generally that conduct surrounding the actus reus, not the actus reus itself, with the most notable exception being the felony-murder rule).

This is what happens when you are both a law nerd and a lover of literature.

Better Living through Science

Scientists have figured out a way to make wheat more nutritious. So how long do we have before the fearmongers start protesting this “frankenfood“?

I do wonder about these things, though. If this wheat “provides more protein and micronutrients,” then the elements that constitute those proteins and nutrients will have to come from somewhere. I’m not a farmer, but I’m guessing that means more fertilizer, which is just another thing for the fearmongers to complain about.

(And, as a side note, I get annoyed with people who complain about “chemicals” used in food production. Everything is made of chemicals. Chemicals are just molecular structures. You want “organic” food with “no chemicals”? You’d best be off to fantasy-land, then, because you too, my friend, are made of chemicals and if you want to survive, you’ll need to keep ingesting chemicals.)

One day, I expect, we will figure out how to take the chemicals in fertilizers and turn them into the kinds of chemicals we like to eat (i.e., food) without using dirt. The idea of “growing” food in the dirt will seem quaint.

Fiery Zeal

Oh, look. More religious people being evil. Anybody care to point me toward an instance of atheists dousing people in kerosene and setting them on fire?

Law Review: Almost Done

I am sitting in the library at school waiting for the printer to spit out six copies of the “final draft” of my law review comment, “Land Use and Agricultural Exceptionalism.”

Am I satisfied with my paper? No, not really. As my Partner pointed out, however, I will never be satisfied with it. The deadline is tomorrow, though, there is no point in tinkering anymore, especially since the editorial board have been unanimous in their praise of my last two drafts. My faculty advisor, when I last spoke with him, said that he “gets it,” but I got the impression he was not similarly satisfied with my writing style, which he called “repetitive.” Perhaps it is. When I gave my “final draft” a quick read-through before committing myself to spending $15 on 150 pages at the printer for the six copies that will go to the editors and with my research binders, I found my paper almost hopelessly boring, but that may only be the result of my having lived with it for four months now.

So that much is finished. I still need to go through my research binders and flag the specific passages in my source material that align with each footnote. (There are about 60 sources and 125 footnotes.) Then my paper and my binders will be scheduled for cite-checking by the rest of the law review candidates, who will be assigned a section of footnotes to scrutinize for faithfulness of content and accuracy of citation form. After that, if all goes well, I get published. The excitement is gone for now, though. There are too many other things to worry about.

SUVs: Not Just for Amerians

Looks like the Chinese like SUVs, too. Interesting. So when does the world start hating China for their excesses the way they hate us?