Understanding Morality

Topic: Death Penalty

1. General theory overview
Utilitarianism will check the outcome that results from punishing the criminals and whether it is the greatest happiness for the greatest number of people. The theory of social contract is supported by Hobbes. He argues that the state of nature is “the life of man would be solitary, poor, nasty, brutish and short.” His solution is to come together and agree to a social contract, whose aim is to protect people from harm by others as well as to guarantee all the parties can keep the agreement. Kant says we need to act out of duty of moral rule. When we treat criminals, the only reason to be regarded as praiseworthy must be nothing else than the crime itself. Then we should consider the 1st form of categorical imperatives, which says “act only on the maxim that you can will as a universal law”. Next, we must take the 2nd categorical imperatives into account. It says “always treat humanity whether in your own person or in that of another, never simply as a means, but always at the same time as an end”. On the retributivist view, legal punishment is justified as a means of making those who are responsible for a crime or harm pay for it. According to the retributivist view, payment must to be made in some way that is equivalent to the crime or harm done. There are two arguments, proportional equivalency and egalitarian equivalency. For proportional equivalency, one is required to pay back something proportional. Egalitarian equivalency which is another view of retributivist holds that what is required in return is something identical or almost identical to what was taken.

2. First particular case to be examined (Case 1)
2.1 Case description The Second Sino-Japanese War (1937-1945) was a military conflict fought primarily between China and Japan. After the Japanese attack on Pearl Harbour in 1941, the war merged into the greater conflict of World War II as a major front of what is broadly known as the Pacific War. The Second Sino-Japanese War was the largest Asian war in the 20th century1. After surrender in 1945, the International Military Tribunal for the Far East (IMTFE) was convened, trying the leaders of Japan for three types of war crimes. "Class A" crimes were reserved for those who participated in a joint conspiracy to start and wage war, and were brought against those in the highest decision-making bodies. "Class B" crimes were reserved for those who committed "conventional" crimes against humanity; "Class C" crimes were reserved for those in "the planning, ordering, authorization, or failure to prevent such transgressions at higher levels in the command structure2. Finally, seven defendants who were sentenced in “class A” were put to death by hanging for war crimes, crimes against humanity, and crimes against peace. 2.2 Thesis People should be responsible for what they have done in the war. If they are against humanity initially and the crime they committed was serious, they deserve death penalty. 2.3 Detailed arguments in favour of thesis Social contract: The theory of social contract is supported by Hobbes. He argues that the state of nature is “the life of man would be solitary,
1

Bix, Herbert. (1992), "The Showa Emperor's 'Monologue' and the Problem of War Responsibility", Journal of Japanese Studies 18 (2): 295–363 2 International Military Tribunal for the Far East, Retrieved April 16, 2013, From http://en.wikipedia.org/wiki/International_Military_Tribunal_for_the_Far_East.

poor, nasty, brutish and short.” His solution is to come together and agree to a social contract, whose aim is to protect people from harm by others as well as to guarantee all the parties can keep the agreement. We need to consider whether the Japanese government protects its citizens or not in the war, so we should consider the nature of the war. If the war is aggressive, which means a country actively attacks another one, it is not regarded as protecting people from harm. However, if a country is defending, we can say the aim of the war is to protect people from harm, because if the government does not defend, the invader may harm innocent citizens by committing robbery or murder. When it comes to the reason why Japan attacked China in 1930s, different parties hold different opinions. From the Japanese perspective, the war happened because they would like to help China keep good order. “Conducting military exercise eventually caused the war” said Mamoru Shigemitsu the Minister for Foreign Affairs of Japan. 3 However, as Japan is one of the parties involved in the war, we should consider the third party’s opinion. According to Walter H. Mallory, if we give a cursory glance at China's mineral resources, we find that although China has many important minerals, it has not yet developed the means of using them. He says, “As a matter of fact, China exports nearly all its iron ore — about a million tons annually. Japan is the principal buyer and secures a third of its total requirements from China.” 4 Mallory argues that Japan attacked China because it wanted to occupy fruitful natural resources. In the case, according to Walter H. Mallory’s analysis, we can say the aim of waging the war by Japan is to invade China and make full use of its natural resources, so the intention of waging the war by Japanese government is not to protect its citizen from harm, but to occupy the natural resources in China, which can be regarded as an aggressive war. Besides, Japanese government orders the arm to invade China. Hence, the government did not protect citizens from harm, but made them get into danger because soldier’s death is inevitable in the war. In addition, Japan
3 4

Shigemitsu Mamoru. (1953). Shōwa no dōran: The upheaval of the Shōwa era. Mallory, W. Japan Attacks: China Resists. Foreign Affairs: Vol. 16, No. 1 (Oct., 1937), pp. 129-142, Published by: Council on Foreign Relations.

suffered several air attacks in 1945, causing hundreds of innocent citizens losing their families. The reason why Japan was attacked was that the Allies such as U.S, China and Soviet Union counterattacked. Based on the above, I can say that Japanese government was waging an aggressive war and they did not protect the citizens but making them in danger. As a result, I draw a conclusion that the Japanese government breaks the social contract initially. In terms of social contract’s theory, if the government does not protect its people from harm, it violates the social contract initially. So people have right to overthrow the government, punishing the leaders. If the criminal violates the social contract, he will be punished in any way. Therefore, I summarize that social contract supports executing death penalty to war criminals who make the final decision in the war. Kant: When we treat criminals according to the principles of Kant’s ethics, we need to consider the motivation. Kant says we need to act out of duty of moral rule. In this case, when we treat criminals, the only reason to be regarded as praiseworthy must be nothing else than the crime itself. If we treat criminals by any other reasons such as political influence or maintaining social peace, it is not praiseworthy. That is, not because of any end we believe we will achieve by treating criminals, but because of our duty. If we have other reasons, it is not morally praiseworthy. Then we should consider the 1st form of categorical imperatives, which says “act only on the maxim that you can will as a universal law”5. It means act on such a way that you want your principle behind your action to become a universal law. Thus, we should punish war criminals proportionally to the seriousness of the crimes they commit. We should not put all the war criminals to death penalty. Only those who have committed serious crimes will be put to death. Suppose the maxim is that it is good to sentence all the criminals to death. Then it will lead to no criminals left in the prison, so we cannot put any more criminals into death. This will become a contradiction. As a result, punishment should
5

Rachels, J. (2010). The Elements of Moral Philosophy. New York: The McGraw Hill Companies.

be proportionate to the crime. Otherwise, it will not pass the 1st categorical imperative. In this scenario, only those who committed serious war crimes deserve death penalty. Speaking more specifically, mere "Class A" criminals who participated in a joint conspiracy to start and wage war, and were brought against those in the highest decision-making bodies should deserve capital punishment because they are free to make final decision. Next, we must take the 2nd categorical imperatives into account. It says “always treat humanity whether in your own person or in that of another, never simply as a means, but always at the same time as an end”. In this case, the reason why we should punish war criminals should not be changing that person or preventing more crimes. If our aim is to prevent more wars in the future, we use those people as a means instead of an end because we do not respect their choices. If we want to change that person, we also treat him as a means because we violate his autonomy. Thus, when we treat war criminals, we can only regard it as an end. That is to say, we treat them as a responsibility of their action. Specifically, when we treat them as a responsibility of their action, we think they are autonomous people because they can make free decisions. In this case, these leaders of Japan are free to make decisions (i.e. whether to wage a war against China or not). After they make free decisions, they should be responsible for it. Because these criminals have already broken the peaceful environment between two countries, leading to hundreds of people death and financial loss, they should be responsible for what they have committed. So, to treat them with respect is to treat them as responsible for their deeds. In a conclusion, according to the principles of Kant's ethics, our motivation should be only crimes itself and the punishment should proportionate to the seriousness of the crimes they commit. Besides, we must only put those who have committed serious crimes to dearth.

2.4 Detailed arguments against your thesis and your counter-arguments 1st argument which will oppose my thesis: In this case, if we would like to use the utilitarianism theory to justify whether we should execute death penalty or not, we must consider both the happiness from the criminals and victims. However, it is difficult to calculate the happiness from victims directly by measuring duration, intensity, fruitfulness and probabilities because the population involved in the war is too huge to calculate. Instead, utilitarianism will check the outcome that results from punishing the criminals. We should balance the happiness of putting criminals to death and the actual unhappiness by sentencing them to life imprisonment. Utilitarianism claims that in reality, the process of executing a capital punishment lasts only few minutes so that the criminal will not suffer huge pain before they die. However, if we put them in jail for 50 years, it is more likely for them to burden more pains because they must have time to rethink about their behaviours and atone for what they have done. War criminals are completely different from normal criminals in daily life such as stealing because criminals who steal goods from shops must have a strong motivation. For example, criminal will say that he is too poor to afford anything while war criminals do not have personal motivations. Thus, it is more likely that if we give those war criminals a strong punishment (i.e. life imprisonment), other people will learn lessons from these criminals and be more careful before they wage a war. As death penalty lasts only few minutes and after the execution nothing happens anymore, it is not as harsh as life imprisonment. As a result, utilitarianism will support to punish them publicly and severely like life imprisonment and they are against death penalty. My counter-argument: If the reason why we sentence the war criminals life imprisonment instead of death penalty is that we want other people learn lessons from the case and we want to prevent a war in the future, we totally treat those criminals merely as means. Kant will say that since human beings are the creators of value, we should respect people’s autonomy. If we treat those war criminals only as means, we are not

morally good. We should punish those criminals because of his crimes and treating them the same way as they treat victims in the war instead of preventing wars in the future. 2nd argument which will oppose my thesis: As we all know, only the loser (Japan) in the war were brought to trial in the court while the winner party did not face any criminal responsibility for war crimes even though they actually committed. As a result, it is unfair to put the loser to death only—that is called victor’s justice. My counter-argument: I will admit that we cannot punish the winner party in the war even if they commit war crimes because they are powerful enough so that no one can put them into trial. However, suppose if we do not penalize the loser party, no one will be responsible for the war. Comparing the two options between penalizing nobody with punishing the loser party only; the Consequentialism will support punishing the loser party rather than let everyone free because the outcome is better, that is to say, at least the loser party are responsible for the war. As a result, I can summarize that we need to penalize Japanese leaders who make decisions in the war. Those who committed serious crimes deserve death penalty. 3rd argument which will oppose my thesis: Some people may claim that since the leaders of Japan should be responsible for the war, those soldiers who killed innocent citizens in China should be treated in the same way because they directly committed crimes in the war. My counter-argument: Probably we cannot put those soldiers to death because they are not free in the war. In the war, those soldiers only executed command from their supervisors. Otherwise, they would be killed by their supervisors. The leaders, however, are completely different from soldiers because they are free to make final decisions in the war, so they should be responsible for what they have done. 4th argument which will oppose my thesis: Some of the criminals who were sentenced death penalty claim that at that time, the existing evidence might show that they commit a war crime. However, after several years, the conclusion may be overthrown due to new evidences. If they are

executed death penalty, the lives lost are irretrievable. My counter-argument: I agree that people should be cautious when they put war criminals to death because the lives are valuable. Thus, once the evidence collected by the court is sufficient enough, those Japanese leaders who committed serious crimes in the war deserve death penalty. For example, according to the Judgment in International Military Tribunal for the Far East6, “Organized and wholesale murder of male civilians was conducted with the apparent sanction of the commanders on the pretence that Chinese soldiers had removed their uniforms and were mingling with the population. Groups of Chinese civilians were formed, bound with their hands behind their backs, and marched outside the walls of the city where they were killed in groups by machine gun fire. More than 20,000 Chinese men of military age are known to have died in this fashion.” As the evidence is irrefutable, the sentence can’t be dismissed in the future.

3. Second particular case to be examined (Case 2)
3.1 Case Description On 20 February 2002, a discharged soldier, Tim Nichols, decided in despair to kill his son and then himself in a murder-suicide. His marriage was collapsing, and he felt distraught and hopeless. He killed his son, then 19 months later, but before he could kill himself he was talked out of it by friends and family in the course of a two-hour standoff with police. From then on, Nichols showed remorse and took full responsibility for his actions, pleading guilty and never making any attempt to deny or belittle what he had done. He had never been in trouble with the law before he killed his son, and was never in trouble while in prison, where he sought forgiveness for his actions in Christianity. Finally, Nichols went to his death on 22 February, aged 42.

6

Judgment International Military Tribunal for the Far East, 1 November 1948, p.1013, Retrieved April 18, 2013, From http://www.ibiblio.org/hyperwar/PTO/IMTFE/IMTFE-8.html

3.2 Thesis Death penalty should not be applied in this case. 3.3 Detailed arguments in favour of thesis Utilitarianism First of all, thinking as utilitarianism, this case has its own particularity. The father killed his son in despair which is an extreme case. If the father was not sentenced to death penalty, that may increase he and his family’s happiness. However, some problems must be considered. Firstly, the environment of prison can affect the pleasure. For example, if there are gardens, library and individual washrooms in prison, the pleasure criminals get is higher. Moreover, prisoners has relax environment, such as studying in prison or work outside in the day time. In this situation, putting criminals in prison instead of putting them to death provides more happiness because he can study or even enjoy his life in prison. Thirdly, it is also influenced by personal character. People who are eager to have a family or to be free will prefer death penalty because they will feel upset when they are put in prison for their whole lives while some other criminals who enjoy the life in prison will prefer life imprisonment. Lastly, if prisoners perform well, the punishment can be changed from life imprisonment to set term of imprisonment (e.g. around 18 years). After a fixed period, the criminal can be released with freedom, so it is better to be sentenced life imprisonment rather than death penalty. In the case, after he killed his son, he showed remorse and took full responsibility for his action, pleading guilty and never making any attempt to deny or belittle what he had done. If he had been sentenced life imprisonment, he would not hurt other people anymore, that is, he would not decrease other people’s happiness in the future. Besides, because the prison conditions in the United States in relatively higher than that in some developing countries, criminals can even study in prison, it may increase their happiness. Moreover, since the criminal was only 42 years old, even though he had been sentenced life imprisonment, he might have

chance to be given a communication of sentence, which means he might be released in his 50s. Because he has 20 to 30 years to live after release, he can increase his happiness. Therefore, utilitarianism will support that life imprisonment is better than death penalty in this case. Social contract Thinking as Thomas Hobbes, one of the principles of social contract is to protect the citizens from harm by others. Now, the father killed his son, namely, harmed his son. He broke or quitted the social contract first, so we have right to punish him. The father, however, can be punished but is not necessarily to be sentenced death penalty. Retributivist view On the retributivist view, legal punishment is justified as a means of making those who are responsible for a crime or harm pay for it. According to the retributivist view, payment must to be made in some way that is equivalent to the crime or harm done. There are two arguments, proportional equivalency and egalitarian equivalency. For proportional equivalency, one is required to pay back something proportional. In this version, we can think of harms or wrongs as matters of degree. The father killed his son in despair. After that, he showed his regret, remorse and took full responsibility to what he did. In this case, circumstance of crime is not too serious, namely, the father should not be sentenced death penalty. However, egalitarian equivalency which is another view of retributivist holds that what is required in return is something identical or almost identical to what was taken. If you make someone suffer two days, then you should suffer two days. The father killed his son so he should pay back his life. Counter-arguments: it is not possible to deliver something in like kind, for one cannot kill the murder more than one time. That is, if a murder

kills many people, how would he pay back? Obviously, he just has one life so he cannot pay back many lives. Furthermore, in this scenario, because the victim died, even if the father was put to death, whose life did he actually pay back? There are other moral problems, such as the problem with torturing the torturer and raping the rapist. Problem of retributivist view is that criminals pay back something or their life to whom. May be they pay back to victim or their family. But in this case, it is difficult to decide the object of payment.

3.4 Detailed arguments against your thesis and your counter-arguments 1st argument against your thesis: Kant argues that the action is moral or not is depending on the motivation of the action. Kant says we need to act out of duty of moral rule. In this case, when we treat criminals, the only reason to be regarded as praiseworthy must be nothing else than the crime itself. If we treat criminals by any other reasons such as maintaining social peace, it is not praiseworthy. Secondly, Kant argues that the moral action needs to act according to the moral law. The first categorical imperative is act only on the principle behind the action that you can want to be a universal law. In this case, if a person who kills others should be punished as death penalty; there will not have any contradiction, so this can become a universal law. The second categorical imperative is that “always treating humanity, whether in your own person or in that of another, never simply treat others as a means but at the same time as an end”. Here, pushing the man to death is respecting their autonomy because we respect his choice (i.e. he kills his son). As a result, we should treat the criminal the same way as what he treats his son. Thus, death penalty can be applied. Counter-arguments: Kant’s theory only tells us that we must follow the categorical imperative, but he fails to tell us the reason why we should follow. Besides, his theory is too rigid without any flexibility so that we

cannot treat in the special cases. In this scenario, even the father kills his son; the nature of the case is different from normal murder, so we need to consider the special case. 2nd argument against your thesis: From the deterrence argument, death penalty as a kind of sanction attached to breaking these laws helps to ensure that the good intended by the laws will be achieved. This purpose is to prevent people from breaking the law and deter them from doing so. In this point of view, death penalty should be applied because it has relatively larger deterrent force. Counter-arguments: Kant would say that if the motivation of death penalty is to prevent people from breaking law in the future, we merely use these criminals as means instead of an end. Furthermore, if the motivation of capital punishment is to promote deterrence, the motivation is not praiseworthy. Death penalty treats criminals as a means to promote justice and prevent evil in this situation. Therefore, death penalty is immoral. What’s more, the deterrence argument may just a theory but not be practical in reality. Some people think death penalty does not have deterrent force, but according to The National Research Council, "fundamentally flawed" because they did not consider the effects of noncapital punishments”, which indicates that the effect of deterrence is limited. 3rd argument against your thesis: Some people may claim that comparing the death penalty with life imprisonment, killing someone quickly seems to be more pleasure than putting him to prison for whole life. Because for life imprisonment, the pain criminal suffers is more severe than death penalty. Counter-arguments: In this case, the criminal has strong desire to live and he showed repentance. We can’t put him to death because the desire to live is so strong. If we execute death penalty, we deprive the criminal’s future happiness. Without being put to death, the criminal may have

relatively nice life in some prison because the condition of prison in some countries is cosy. Because we should make judgment on each specific matter, we think the criminal is better to be sentenced life imprisonment based on the case.

4. Conclusion
To sum up, criminals who both commit serious war crimes and have rights to make final decisions deserve death penalty. Nevertheless, in some cases, whether the criminal deserves capital punishment depends on the different circumstances.

5. Reference List
Barbara, MacKinnon. Ethics Theory and Contemporary Issues. Beijing: Peking University Press, 2003. Print. Bix, Herbert. (1992), "The Showa Emperor's 'Monologue' and the Problem of War Responsibility", Journal of Japanese Studies 18 (2): 295– 363 International Military Tribunal for the Far East, Retrieved April 16, 2013, From http://en.wikipedia.org/wiki/International_Military_Tribunal_for_the_Far _East. Judgment International Military Tribunal for the Far East, 1 November 1948, p.1013, Retrieved April 18, 2013, From http://www.ibiblio.org/hyperwar/PTO/IMTFE/IMTFE-8.html Mallory, W. Japan Attacks: China Resists. Foreign Affairs: Vol. 16, No. 1 (Oct., 1937), pp. 129-142, Published by: Council on Foreign Relations. Shigemitsu Mamoru. (1953). Shōwa no dōran: The upheaval of the Shōwa era. Rachels, J. (2010). The Elements of Moral Philosophy. New York: The McGraw Hill Companies. http://www.guardian.co.uk/world/2011/sep/15/texas-executions-controver sial-cases