Defending the 12th century since the 14th; blogging since the 21st.

Catholicism, Conservatism, the Middle Ages, Opera, and Historical and Literary Objets d'Art blogged by a suburban dad who teaches law and writes stuff.

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Who was Cacciaguida? See Dante's PARADISO, Cantos XV, XVI, & XVII.

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Friday, August 10, 2007
*Sigh* I wish I liked constitutional law professors more (as Sebastian might say). On a particular listserv that is heavy with them, in the course of a death penalty thread in which the foibles of the breed were vividly on display, I couldn't help posting the following:
Wearing my anti-death-penalty hat:
Nothing could better illustrate the dangers of consequentialism than a pure deterrence-based defense of the death penalty.

We've seen statistics in this thread purporting to show not only that the death penalty deters murder, but the exact numerical range within which each execution does so. Suppose the next study shows that the exact same effect is attained by executing perfectly innocent parties, pour encourager les autres. Licit? Moral? Of course not, b/c at that level, we're all retributivists (i.e. we link punishment to desert) and we're all non-consequentialists.

Wearing my pro-death-penalty hat:
Con law professionals have a tiresome habit of using "irrational" as an intensifier for "bad." Perhaps it comes of the (imo, equally tiresome) habit of reasoning as though we're the first generation ever to deal with a moral problem.

Rationality is a low threshold, and it has a long history. It's quite possible for something considered good for eons to be, in fact, bad. But the fact that eons'-worth of people, many of them no more irrational than most of us, thought it good, should be enough to rule out the conclusion that it's irrational. The opposite view -- that rational people always reach good conclusions, and that bad conclusions can only be irrational -- describes a species I am not familiar with.