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A Change of Tune

Eugene Volokh took a lot of flack for his "cruel vengeance" post, but now he's done the unthinkable and actually changed his mind -- a practically unheard-of event, not only in the blogosphere but, frankly, in our broader political culture. Mark Kleiman has the sordid details.

March 19, 2005 | Permalink

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He didn't change his mind, he just realized he made an unrecoverable faux pas by admitting what he really thinks.

Posted by: Tuttle | Mar 19, 2005 10:15:54 AM

Hooray for rational, courageous, HONEST debate. Way to go everybody!

Posted by: yesh | Mar 19, 2005 10:22:51 AM

He just saw his chance of being appointed a federal judge going down the toilet and is now trying to save it. But if he does get nominated, I can't wait for the Senate hearings!

Posted by: Dan the Man | Mar 19, 2005 10:28:17 AM

Volokh only realized that his views were becoming dangerous to his career prospects, and the recantation is extremely unconvincing - mainly, he admits that such torture would be to expensive and complicated to administer. Morally he is still the same sadistic monster.

By the way, Matthew's recent post on corporal punishment strikes me as further evidence that the USA, including so-called "liberal" posters, have lost all moral and historical bearings and are inexorably sliding towards the abyss of barbarism and intellectual/moral decay. There is a certain morbid fascination to watching this process in real time, even as it makes one increasingly nervous and depressed about human nature in general. Do try to get a grip on yourselves, if you still can.

Posted by: European | Mar 19, 2005 10:29:20 AM

He didn't change his mind, he just admitted it would be too hard to implement. Governers might not be willing to sign "torture to death warrants" and the only juries we would be able to seat would be a bunch of Nazi skinheads and UCLA law professors who think torturing people to death is a good idea. Can you imagine the voir dir? "If the defendant is found guilty would you be willing to be personally flay his skin, roast him with a blowtorch, and crush his testicles with a pair of vise grips if the state requested it?"

One of many things that really bothered me about Volokh's whole arguement is that he is a law professor at one of this nations top tier law schools (or at least high second tier), clerked for a Supreme Court Justice, yet apparently does not know the difference between punishment and retribution. He is either a complete idiot or is being deliberately dishonest, knowing that most people won't notice his obvious conflation of two entirely different concepts.

Posted by: Freder Frederson | Mar 19, 2005 10:34:17 AM

I'd hold off on the congratulatory embrace of the self-correcting nature of blogospheric opinions. The meat of his admission is that seeking the sort of punishments he wants would "logjam the criminal justice system and the political system," and "impose huge costs on the legal system." That sounds suspiciously like, "I still think we should do it, but it's probably too much of a pain in the ass." Which itself is a cousin of his previous admission that we don't have the political will to do this right now. So basically, he came up with a new first sentence, and then said roughly what he's said before.

Posted by: SomeCallMeTim | Mar 19, 2005 10:43:41 AM

He only changed his mind when persuaded by his friend. His friend had previously defended Volokh even when Volokh deserved all of the vitriol that had been heeped upon him. It's not a triumph of the blogoshpere or rational argument. It's a triumph of civil discourse and diplomacy.

Posted by: elliottg | Mar 19, 2005 11:00:10 AM

A relevant comparison is Bork's suggestion that the First Amendment applies to political speech only, so that censorship of artistic and scientific publication would be constitutional. His defense wasn't that his doctrine is incorrect, but that it would be difficult to implement, since scientists could so easily cheat by throwing in some policy or political application in their publications. Sie wollen beten indeed.

What is surprising in both cases is that there is a general understanding that in the century or two before 1789 there was a change in the status of the dignity of the individual, reflected in the constitutional limits on governmental power in the use of violence (the Cruel and Unusual clause), criminal proceedings and censorship. I had naively believed that this was a Good Thing, and that it was a core belief of people with the background and authoritative position of Bork or Volokh. It is unexpected for them to adopt the slogan "Fuck the Enlightenment", and to be supported by so many.

Posted by: Roger Bigod | Mar 19, 2005 11:11:48 AM

It's not a triumph of the blogoshpere or rational argument. It's a triumph of civil discourse and diplomacy.

Rational argument--blogospheric or otherwise--can only take place within a context. Where that context is civil and diplomatic, it can actually succeed. Mr. Kleiman deserves substantial praise for making an enormously level-headed objection; Mr. Volokh deserves credit for listening. If such behaviors actually guided America's politics these days, we would be in a much better spot.

Posted by: bobo brooks | Mar 19, 2005 11:15:37 AM

Well, I would suggest y'all go and read Mark Kleiman's latest post on Eugene Volokh and the "torture" issue again. As I take it, Kleiman's tongue is so far in his cheek with this one, it's liable to get stuck in his ear. And also, while you're at it, read Prof. Volokh's various rejoinders and follow-ups to his original post.
The most he can be said, IMO, to have "changed his mind" on the issue of deliberately painful executions is that he admits (in paraphrase):

"I still think some criminals should be tortured to death, but the System won't allow it, so there we are"

Some recantation!

Posted by: Jay C | Mar 19, 2005 11:18:20 AM

Mr. Kleiman deserves substantial praise for making an enormously level-headed objection;

Mr. Kleiman's argument was weak and practical, not moral. The good and proper arguments against Volokh are moral and philosophical, not based on some weak argument that "as much as we may want to do this, it's just not going to work".

People jumped all over Ward Churchill for calling some people working in the WTC "little Eichmans". Volokh was calling for torturing people to death, and said he would like to do it! He is a constitutional law professor at a major university! He is arguing that one of the most cherished amendments of the Constitution, the 8th amendment, was a mistake. What other amendments doesn't he believe in? To think that a prominent professor at a prominent university would advocate repealing the 8th amendment to the Constitution and people would not only defend him but not be concerned that he had suffered kind of psychotic episode is beyond belief.

Posted by: Freder Frederson | Mar 19, 2005 11:32:59 AM

"He didn't change his mind, he just realized he made an unrecoverable faux pas by admitting what he really thinks."

Ding! Ding! Ding! We have a winner!

Posted by: Tom DC/VA | Mar 19, 2005 11:44:14 AM

He is arguing that one of the most cherished amendments of the Constitution, the 8th amendment, was a mistake.

So what? I think the Second Amendment was a mistake, but I'm willing to live with it. Cherish, shmerish.

Posted by: bobo brooks | Mar 19, 2005 11:54:29 AM

Changing people on feelings, preferences & prejudices, core moral distinctions is really really hard, folks. The vast majority of individual moral beliefs are not rationally sourced. Starting the conversation:"Yo bad" ends the conversation. The best you can probably do is explain the consequentialist implications of a moral belief so as to force the mistaken person into a dilemma and choices of action. The South did not abandon its prejudice 1955-75.

Kleiman's institutional and consequentialist argument was more far-sweeping that commenters have stated above, and could be developed. It was not simply difficulty in enactment, but the necessity of stacking the entire gov't with pro-torture indivduals, and then finding a route to fair trials.

Posted by: bob mcmanus | Mar 19, 2005 11:55:07 AM

Could be that Volokh and Matt made the mistake of uttering in a public forum things that have some intellectual merit but should be discussed in private with trusted associates, purely as an exercise.

When a public figure strays too close to the borders of civility, he runs the extreme risk of awakening the beast that lives in the hearts of all men and very near the surface in far too many.

That is a significant reason for the success of the 'conservative' movement for the last couple decades. It is all too easy to appeal successfully to the baser instincts such as greed. Sadism wrapped in morality,arrogance, and fear has a long history, it needs no encouragement.

Posted by: Michael7843853 | Mar 19, 2005 11:59:02 AM

I concur with sentiments expressed here. Far from courageously admitting his error, and knowing what he did wrong, like a weasel Volkoh has come up with a technicalty to sneak out.

And, lo and behold, in the spirit of the brotherhood of speculators above the fray, has gotten a pass from Kleinman and here, with an admithe is wrong spin.

The guy has reconfirmed he is an obtuse weasel,and gets credit for it.

The "left" is still bringing know it all smug to a nuke fight.

Posted by: razor | Mar 19, 2005 12:12:34 PM

In the post after the linked post, Volokh seems unable to distinguish between vengeance and justice. There are reasons for going after aging Nazi besides to hurt them really badly or discourage future war criminals, but he seems creepily unaware of that.

"It would be impractical" isn't the very worst of objections, but the fact that he doesn't flinch at the possibility of mistakes (if executing an innocent person is a terrible mistake, what would enthusiastically torturing and *then* killing an innocent person be?) or the thought that the State's endorsement of and participation in such practices would unavoidably coarsen the culture in a way that far outstrips any minor wardrobe malfunctions seems rather disturbing.

-Dan S.

Posted by: Dan S. | Mar 19, 2005 12:13:09 PM

Good that Volokh has seen the light. Civilized people know that causing harm to sadistic serial killers is WAAAY out of bounds. The only person who civilized people are happy to torture to death is a half-brain-dead semi-comatose woman championed by Christians -- now THAT'S the type of person who deserves torture.

Posted by: Al | Mar 19, 2005 12:29:18 PM

A relevant comparison is Bork's suggestion that the First Amendment applies to political speech only, so that censorship of artistic and scientific publication would be constitutional. His defense wasn't that his doctrine is incorrect, but that it would be difficult to implement, since scientists could so easily cheat by throwing in some policy or political application in their publications.

Yeah, again, the right has things completely backwards. We all know that artistic and scientific speech deserve the highest level of protection, but political speech should be completely regulated. I mean, the LAST thing we want is political speech that might be completely unregulated by the government, right? Just ask McCain and Feingold!

Posted by: Al | Mar 19, 2005 12:33:29 PM

There are reasons for going after aging Nazi besides to hurt them really badly or discourage future war criminals

Such as?

Posted by: Al | Mar 19, 2005 12:35:09 PM

I'm willing to assume that Volokh actually changed his mind when confronted with some rather obvious arguments. The problem is, these arguments are, well, obvious. Did someone who makes a living as a law professor at a real law school actually not think of them before shooting his mouth off? It would be one thing if he had thought of them and not found them persuasive, for whatever reasons, but if EV is to be believed, he just didn't think of them.

Posted by: C.J.Colucci | Mar 19, 2005 12:38:00 PM

Beheading would be a practical option. It is probably quicker and no more painful than lethal injection, but gives spectators a satisfying sense of finality. Yeah, I know there was some study where someone picked up the head and detected some signs of life, but I doubt that the executee was really conscious.

Posted by: sf | Mar 19, 2005 12:47:11 PM

Perhaps its a clever political move and Volokh is laughing at us. If you describe the acts of a particularly vicious serial killer, a lot of people will be stirred to approve of inflicting pain publically, Enlightenment be damned. Anyone who objects can be attacked as weakening society's defenses against monsters.

Works for terrorism, too.

Posted by: Roger Bigod | Mar 19, 2005 12:49:56 PM

I'll take a recantation, Jesuitical or not. Now let's wait for Dershowitz.

Posted by: John Isbell | Mar 19, 2005 12:54:40 PM

One of many things that really bothered me about Volokh's whole arguement is that he is a law professor at one of this nations top tier law schools (or at least high second tier), clerked for a Supreme Court Justice, yet apparently does not know the difference between punishment and retribution. He is either a complete idiot or is being deliberately dishonest, knowing that most people won't notice his obvious conflation of two entirely different concepts.

Freder, I don't think Volokh is alone, either among scholars or ordinary people, in not seeing such a sharp opposition as you do between retribution and punishment. One fairly traditional view about the purposes of punishment is that there is such a thing as "retributive justice" and that one of the legitimate functions of punishment is to establish this kind of justice.

This was, for example, Kant's view. Kant argued that if an island society were to disband, and scatter its people throughout an otherwise unpopulated world, so that there was no longer a need to defend that society or others through preventive or deterrent measures, that society would still have a moral duty to execute every last murderer in its prisions, because murderers simply deserve to die. Justice, Kant thought, demands their deaths, and it is the duty of society to establish justice.

Retributive justice is not supposed to be the same thing as vengeance. I take it that the idea of vengeance is a legacy of an even more ancient honor-based moral outlook. The idea is that when I am defeated in any way my personal honor has been diminished; hence I must triumph over my foe to restore my honor. I suppose it is possible to build a theory of punishment on a transposition of personal honor to the social or national sphere. Indeed the need to defend national honor, apart from whatever benefit might flow from intimidating potential enemies, is among the justifications often given for war.

There is also an even more rudimentary phenomenon than vengeance at work in public discussions of punishment. When I am injured by someone, I may simply hate him as a result - all matters of honor aside. I am beset by fantasies of the object of my hatred experiencing hideous pain. I wish to harm that which I hate, and my wish is a desire that I may act on. Some have argued that satisfying this desire is one of the functions of the criminal justice system. The metaphor is that of a pent up pressure in the social works that must be let out in controlled releases; otherwise the works will explode. This sort of justification for punishment is neutral with respect to the idea of retributive justice, or even vengeance. It takes the existence of these desires as a brute fact of life and human nature, and holds that such desires must be satisfied to some extent by any government which seeks to maintain its authority and legitimacy in the eyes of its public.

Proportionality, which has come up before in this discussion, is a separate issue - as cmdicely has pointed out. No matter which function of punishment one invokes - deterrence, prevention, retribution, restitution, expression, etc. - there are issues of proportionality that arise. So the vague sense that a punishment should be proportional to the crime doesn't get us anywhere in the debate, since such intuitions are going to be present no matter what function of punishment is on the table.

Personally, I believe retributive justice is a myth - a moralized projection of the old honor-based desire for vengeance or the amoral desire to cause my adversaries to suffer. I don't believe there is really some sort of cosmic scale that is thrown out of balance by crimes, and needs to be reset.

It stikes me that the heart of the matter, from the deepest moral and spiritual perspective, is the source of hatred and the consequent desire to harm. The degree to which people feel hatred, the social classification of different hatreds as legitimate and illegitimate, and popular attitudes toward the desires prompted by hatred, seem to vary from society to society, and are clearly affected by socifalization.

I share European's worry about the decay of liberal sensibilities in contemporary American life, and the absence of a broad historical perspective on civilization and barbarism. American society, by comparison with many other materially wealthy societies in the contemporary world, seems to tolerate and even celebrate, higher than normal levels of competition and conquest, lust, revenge, anger, cruelty, vindictiveness, covetousness and impetuosity, and is plagued by higher than normal rates of violent crime. It's popular mass culture is filled with images of rage, random and rootless violence, and bloodletting. This is what some Americans call "liberty". Other societies do seem genuinely more pacific.

The cultivation of the mind or soul in America, and the elimination of barbarous impulses, is left as a private quest for individuals or groups who wish to engage in it, but is no part of the national purpose - which seems based more on the satisfaction of immediate material desires and the free pursuit of power, wealth and ambition.

Posted by: Dan Kervick | Mar 19, 2005 1:06:01 PM

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