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No, it answers your question. You asked whether capital punishment is not "murder" because the victim is deemed a bad guy. The answer is no, because there is a different reason that capital punishment is not "murder": because an execution is not an unlawful killing.
As for mens rea, an executioner clearly has the mens rea required for murder: The mens rea required for murder is malice aforethought, which is usually of two kinds, one of which is actual malice, which is the intent to kill. The executioner clearly has the intent to kill, so he acts with actual malice, and so has the mens rea necessary for murder. But the killing is not unlawful, because states with capital punishment obviously provides that an intentional killing by an executioner of a person who has been sentenced to death is not an unlawful killing. Therefore, despite causing the death of a person while acting with the mens rea required for murder, an executioner is not guilty of murder.
Similarly, in California, the killing of a fetus is murder. See Penal Code Sec 187(a) ["(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."]. But, does that mean an abortion is murder? An abortion is an intentional killing, so the mens rea is satisfied. But, an abortion is not murder because the law goes on to explicitly state that an abortion is not unlawful:
The question that concerns us is why it is lawful, not whether it is lawful. For example, when I asked you earlier about the moral character being irrelevant, you understood that merely describing the law would not answer my question.
The law could define the killing of the president's enemies, redheads, fishermen, or any other group, as 'not unlawful killing' like it does for executions, and your answer would remain the same. And that's all good and well, but it doesn't answer the only interesting question, why. My answer does discriminate between the killing of random fishermen and convicted murderers.
Similarly, for the question 'Is abortion murder? ' a respectable answer might be of the form 'No, because the will of the mother takes precedence, or the fetus is not a person, etc', not 'No, the law in california says it isn't' . I couldn't care less what the law actually says, all the questions are about morality, what the law should be.
No, your question was not why is it lawful. It was whether the moral status of the victim was the determinant of its lawfulness. That, after all, is the reason we are having this discussion: because of your query re why the moral status of the victim is irrelevant to self-defense.
As I said previously, you are free to argue that the moral basis of Anglo-American criminal law is wrong. But that does not change my point, which has never been about what the law should be, but what it is, ie, that treating Neely's prior acts as irrelevant to Penny's legal culpability is 100% consistent with 100s of years of jurisprudence.
No, the why is my only question. If you are incapable of providing a justification for the difference between execution by the state and murder aside from ‘one is legal, and the other isn’t’ , then the discussion is pointless. I'm a german with a bike, the details of NYC subway jurisprudence have no real impact on my life.
Well, if you think that we are merely discussing "NYC subway jurisprudence," then you are right that this discussion is pointless. And if you are asking why capital punishment is morally permissible, you are asking the wrong person.
But, surely in Germany there is a law against kidnapping. And surely the state something takes people who have been convicted thereof to prison, against their will. Why aren't the guards on the prison bus guilty of kidnapping? If you can answer that question, and I bet you can, then you will have the answer to your question about why an executioner is not guilty of murder.
I already told you why I don't think prison guards are guilty of kidnapping.... They are not committing a guilty act, because "the victim(prisoner) was a bad guy, so there is no crime". Same goes for the executioner, and the civilian who accidentally kills scarface.
But apparently you disagree with that reasoning. So I am once again asking for a real justification from you, one that doesn't eat its own tail.
Dude, I didn't ask why YOU think the guard is not guilty, but why the LAW says he isn't guilty. And the obvious answer is that the purpose of criminal law is to preserve order, and deeming the guard guilty of kidnapping does not serve that goal. It has nothing to do with whether the defendant is a good person or not.
And btw, under your system, what happens if it turns out 5 years later that the prisoner was wrongfully convicted? Does the guard now become guilty of kidnapping?
The law is just some guy’s opinion.
“Preserve order”, that’s the justification you’re going with? This sounds more like the prime directive of a fascist empire, but at at least you’re trying.
Seems like a surface-level justification: state murder is orderly, ordinary murder is messy. Similarly, organized crime murders are also more orderly. Murdering innocent people in an organized way would seem to be conductive to order ‘pour encourager les autres’. Anyway, we could discuss a what is ‘good for order’ all day.
I contend that the real distinction between the murderer and the executioner is that “murderers are hung with the hearty approbation of all reasonable men" (Stephen, 1863). And the moral status of the defendant is central : “Criminal law proceeds upon the principle that it is morally right to hate criminals”.
Yeah, as the old joke goes, you are trying as well: Very trying. I didn't say that preserving order is the prime directive of society. I said it is the purpose of criminal law. Do you seriously not know that all states preserve order? Isn't that a primary public service that all states provide? And that there is a reason that states that are unable to preserve order are called "failed states" and whose citizens tend to transfer allegiance to local warlords who are able to provide order? What distinguishes an authoritarian state from all the others is not that it seeks to preserve order, but that it does not recognize civil liberties.
I take it back; now you aren't trying at all. No one said anything about anything being "orderly." If you don't know the difference between "acting in a way conducive to public order" and "acting in an orderly fashion," well, you mentioned being from Germany so I guess English is not your first language.
This seems to be a claim about the morality of capital punishment. I have not said that is is moral, and in fact implied the exact opposite: "And if you are asking why capital punishment is morally permissible, you are asking the wrong person."
Yes, the moral status of the defendant's acts (not of the defendant, see below) are central. That is why mens rea requires. But that is irrelevant to the issue we are discussing, which is not the relevance of the moral status of the defendant, but rather the relevance of the moral status of the victim.
And yet, when I search Google Scholar for American cases that include that quote, I get zero hits. Ditto re searches for "morally right to hate criminals" and "right to hate criminals." "Hate criminals" turns up one hit, form 140 years ago. In contrast, there are few principles better established in American law than that a defendant's prior criminal acts are generally inadmissible to show guilt. "Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt." Michelson v. United States, 335 US 469, 475 (1948). Why? Because it relates to the moral status of the defendant: "Courts generally prohibit the admission of this evidence to protect against the jury convicting a defendant because he or she is a bad person deserving punishment." People v. Donoho, 788 NE 2d 707, 714 (Ill: Supreme Court 2003).
So, I think you are misinformed about the concepts underpinning criminal justice in common law countries. Perhaps it is different in Germany.
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