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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.
(I had multiple point by point paragraph answer to your comment here, but then I decided it was all pointless, repetitive bickering. Let’s just say I thought there was a lot of nitpicking in your comment, and I nitpicked back. It wasn’t funny either. Waste of our time.)
I think you’d have better luck in your search with the key words ‘retributive justice’. If punishing criminals is a goal of society , if harming defectors is moral, then the morality of the act of harming another person is dependent on that person's moral status, whether they are a victim or a defendent. Perhaps retributive justice has fallen out of fashion in your circles.
You are conflating criminal liability with criminal punishment. No one is saying that retribution is not one function of punishment. See Kansas v. Hendricks, 521 US 346 [describing "the two primary objectives of criminal punishment: retribution or deterrence."].
As I have pointed out, it has never been "in fashion" to consider the moral worth of the victim when determining the criminal liability of the perpetrator of a crime, so this is a complete non sequitur.
You never heard the 'he deserved it' defense from a wife who killed her husband?
Not in the real world, rather than on TV. Such evidence is relevant only to show that the wife actually and reasonably feared for her life, or felt that she could not escape. It is 100% NOT admissible to show that the husband deserved it.
In theory.
In reality, if you were her lawyer, you would absolutely try to give that impression.
'He started it' and 'he deserved it' will always carry moral weight, letter of the law notwithstanding. Justice is about assigning blame, and so the victim, in my view, is also on trial.
But we are not talking about what a lawyer can get away with. We are talking about the underlying premises of the criminal justice system, to which the moral status of the victim is irrelevant.
Yes that's what the law says... so back to the question, why?
We’re not making much progress here. To conclude this discussion, it’s been alright, but it remains a mystery to me why you (forget the law) think the moral status of the victim should be irrelevant, when it clearly matters to an ordinary jury and to me, and I have given a few rationales for that instinct.
Because I, like the law, think that it is only the defendant's moral culpability that matters, and hence a defendant should not get a pass because he is lucky enough to kill a bad guy. It is a very standard approach to moral judgment. See here
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