On Fri, 30 Sep 2005, Wojtek Sokolowski wrote:
> Second, the concept of blame does not enter my consciousness in any form,
> therefore blaming anyone, be it the victim, the perpetrator, or anyone in
> between is a pretty meaningless exercise for me. If I were to succinctly
> describe my concept of justice I would use the word "retributivist" i.e.
> "you break the law, you suffer the consequences that the law prescribes,
> your excuses if any notwithstanding" (Justin can probably provide a more
> eloquent description). That is why I am bored to tears by all the bleeding
> heart whining to selectively excuse delinquency (our thugs are excused,
> their thugs are guilty as charged).
This is a crux of the disagreement, and it's not a frivolous one, Woj: I don't believe in "you break the law, you suffer the consequences", and neither do you, I suspect. "The gun went off by accident", "He was trying to kill me and I shot him in self-defense", and so on: the evaluation of what you call "excuses" is crucial to the determination of guilt in our criminal justice system. We don't just punish people for the outcome of their actions; the question of intent is central.
Thus the problem of holding subordinates "personally responsible" for actions sanctioned and encouraged by superiors: we know from decades of research on conformity and obedience that social pressures are stronger than most of us like to admit, even in our individualist culture. Most people will violate their own moral standards when asked to do so by a legitimate authority figure (I know most of us, like Leigh, think we'd resist, but we're looking at ourselves through rose-tinted glasses: our predictions of our behavior in response to authority figures do not correspond to actual social behavior--see Milgram et al.). This makes sense, given the need for hierarchy and lines of command in bureaucratic organizations.
Given these powerful social forces, it's clearly incorrect to claim that England (or other grunts) freely chose to carry out the torture and should be punished as free, autonomous agents. To argue that "they committed the crime; thus they should be punished" is fallacious, because we don't punish people solely on the basis of the outcome of behavior; we typically take into account factors outside the control of the person in determining appropriate punishment (e.g., differences in degrees of manslaughter based on intent).
This issue should not be waived aside with "twinkie defense" bromides; we're talking about the essence of our criminal justice system here!
Miles