Should professors make accommodations in their courses for disabled students or others with special needs? Of course they should. Should professors be required to make accommodations? No, they should not. A university that can direct professors’ teaching is a university that does not respect academic freedom, and a university that does not respect [...]]]> Mark Mercer

Should professors make accommodations in their courses for disabled students or others with special needs? Of course they should. Should professors be required to make accommodations? No, they should not. A university that can direct professors’ teaching is a university that does not respect academic freedom, and a university that does not respect academic freedom is not an institution of liberal learning.
The above questions are not merely theoretical. It happens here Saint Mary’s, if only occasionally, that a professor fails to accommodate a student and that a dean corrects her. The second wrong does not put things right.
Professors differ in teaching styles and in the goals they set for themselves. Two professors teaching different sections of the same course might assign different texts and use different grading schemes. They might emphasize different elements in the subject matter or seek to cultivate in their students different skills or attitudes.
My department, for instance, runs three or four sections of introduction to philosophy a year. Some professors who teach it assign readings from the history of philosophy, others contemporary readings; some use primary sources, others texts written for beginning students. Some of us are keen to help students to develop the analytical and argumentative skills of our discipline, some of us are keen to get students excited about the play of ideas. Some of us mostly lecture, some of us mostly break the class into discussion groups. Some professors grade class participation, some don’t.
Professors differ also in their techniques of classroom management and the goals they mean their techniques to serve. Unprepared students, disengaged or, even, disruptive students, absenteeism, lateness—we all have an approach to these problems. Some professors are concerned to involve and teach as many students enrolled in their course as possible; for my part, I’m concerned to protect the serious students from the harm causal and disengaged students can inflict on them.
One reason professors should be free to teach as they will and for whatever goals they will is that professors have different talents, different strengths, different weaknesses. What works well for one might not work at all for another. Another, more important reason, is that good teaching is itself a matter of enquiry, and enquiry requires the freedom to experiment. Neither of these is the central reason, though.
What is at the heart of academic freedom in teaching is simply what is at the heart of academic freedom generally: the commitment to live and work guided only by the pressure of evidence and argument. The very point of rules and sanctions, on the other hand, is close off and shut down discussion. Restrictions on freedom of teaching are inimical to our identity and mission. Rules and sanctions give us reasons to behave one way rather than another that are reasons neither of evidence nor of argument.
If one of our tasks as professors is to help our students to become independent critical thinkers, able to enjoy and contribute to a free society, we must fail in that task if we cannot model for our students the behaviour of independent critical thinkers, able to use our freedom well.
So suppose, then, that a professor denies a disabled student the use of some technology that would help the student to learn. What is to be done, if the professor is free to ban this technology from her classroom?
Criticism and discussion is what is to be done—public criticism and discussion. What are the professor’s grounds for her denial? Are they good grounds? What are the professor’s pedagogical goals? How can they be met without denying the student the use of his technology?
At the end of the day, though, even if the denial has been well shown to lack merit, the professor must not be forced to relent. If she doesn’t change her mind (even if she does, but refuses to relent anyway), she needs to able to do as she pleases.
But what of the student, who now will either withdraw from the course or learn less in it than she is capable of learning? The plight of disabled students is not to be brushed away. Professors who would be happy to accommodate disabled students often do not know how to do so, and some professors, tragically, aren’t interested in accommodation in the first place. I’ve been told that some professors don’t wish to teach the disabled at all, as they feel that the presence of the disabled demeans their discipline.
This is where university administrators have a powerful argument for policies and sanctions that would require all of us to make standard accommodations, or perhaps to make the accommodation in a case that an expert deems appropriate. Students will go without what they have paid for; moreover, the world will be poorer for the absence of the disabled from positions of responsibility in the wider community.
The response to this argument is that it is premature. It is premature because the liberal education alternative has not actually been tried, at least not at Saint Mary’s. Sadly, we as a community of intellectuals and apprentice intellectuals rarely engage in the public discussion and criticism of our methods and goals. If, thorough critical discussion, we gave less slack for rules and sanctions to take up, administrators would have less reason to want to impose rules and sanctions.
That means we need to start talking about what we are doing and trying to do.
Wouldn’t frank discussion violate confidentiality, though—of both professors and students? Yes, but teaching and learning are not areas where confidentiality should matter much to us. Whether professors are teaching well should, for us, be of the widest public interest and concern.

Originally published in The Cranky Professor column, The Journal, the campus newspaper at Saint Mary’s, Issue 8, 28 March 2012, p. 14.

Department of Philosophy
Saint Mary’s University
mark.mercer@smu.ca

“Queen’s Bands” is the name of the marching band and associated cheerleaders and cavorters at Queen’s University, in Kingston, Ontario.

The Bands performs at campus activities and local and national events. Queen’s Bands has been noted throughout its long history more for spirit [...]]]> Mark Mercer
Department of Philosophy
Saint Mary’s University
mark.mercer@smu.ca

“Queen’s Bands” is the name of the marching band and associated cheerleaders and cavorters at Queen’s University, in Kingston, Ontario.

The Bands performs at campus activities and local and national events. Queen’s Bands has been noted throughout its long history more for spirit and merriment than music—which isn’t to imply that its members aren’t serious musicians in other venues.

The Bands was suspended last November after some of its in-house materials found their way to the office of a university administrator.

As a result of the suspension, Queen’s University cancelled scheduled appearances by the Bands at an alumni dinner and the Kingston Santa Claus parade. The university also required members of the Bands to take Human Rights and Equity training.

The suspension, made jointly by the students’ association at Queen’s, which oversees Queen’s Bands and other student societies, and the university administration, is punishment and warning for the vulgar and sexist songs and writings some members of the Bands had been distributing among themselves. Vice-Provost and Dean of Student Affairs Ann Tierney said that the “materials, and the behaviours they promote, are unacceptable. They point to a sub-culture within the Bands where explicit, disrespectful and degrading language marginalizes community members who may remain silent for fear of exclusion.”

The language Dean Tierney has in mind includes “Mouth raping your little sister since 1905” and “I will rape you with a lamp.”

The suspension is also to affirm that Queen’s University values inclusion and to assure students that the campus is welcoming and safe.

Now if I were a Queen’s University student, I’d transfer out and ask for my money back. This latest episode makes it pretty clear that its administration isn’t much concerned that Queen’s be a place of education.

First of all, to punish people for what they say is to violate their freedom of expression. Freedom of expression should especially be valued on a university campus because it is central to what we are as intellectuals: we are concerned to think and say what we want only for what we judge to be our own good reasons, and not out of fear of official sanction.

In sum, by punishing the members of Bands for what some of them said or sang or wrote, Queen’s University is acting against its mission to foster a free and responsible intellectual community.

Of course, the administration and the students’ association don’t see it that way. They maintain that the behaviour of members of the Bands tends to marginalize and silence people in the Queen’s community.

If they are right, though, the behaviour cries out for public discussion, not punishment. That members of the Bands have been singing obnoxious songs among themselves provides Queen’s with an opportunity to discuss and debate publicly issues of sexism and the hurtfulness of exclusion.

By opting instead to punish the Bands, Queen’s university is failing in its task to educate its students to take their place in a free society. Those students offended or hurt by the fact that Bands had this material have now learned that when one is offended, one should appeal to an authority to deal with the offenders. This lesson is contrary to a university’s mission to help students to become critical thinkers and autonomous agents.

The requirement that members of Bands undergo Human Rights training is likewise inconsistent with Queen’s status as a university. Rather than simply provide students with opportunities to engage in discussion and argument, which might well result in changed attitudes among members of Bands, Queen’s is seeking to re-educate some of its students into the preferred attitudes. They will not learn anything about sexism or exclusion from this training (“learn” in the sense of freely accept on the grounds of reasons), except that saying the wrong thing will get them punished.

Queen’s University is engaging in bullying for the sake of anti-bullying and exclusion for the sake of inclusion.

Something similar to the Bands’ case happened at Harvard a couple decades ago. It’s instructive to contrast the reaction of administrators and student politicians at Queen’s to the reaction of administrators there.

In 1992, Dean of Students Archie C. Epps III became troubled by what he perceived as increasing racial tensions among Harvard College students. Among other incidents, someone had hung a Confederate flag in a dorm. (I know of this case from Harry R. Lewis’s book Excellence Without a Soul, about the continuing decline of commitment by universities to liberal education.)

Epps responded by assigning all incoming students Ralph Waldo Emerson’s essay “Self-Reliance.” Epps had students meet with professors in small discussion groups. His goal was to encourage students to understand themselves as individuals rather than to see themselves as particles of an identity group. With luck, he reasoned, students would come to be able to offer and receive ideas and criticism without either hectoring others or taking offence. The key to community cohesion, Epps proposed, was individual self-reliance.

Dean Tierney at Queen’s is no Dean Epps.

One is that extra-curricular activities that contribute to academic development are already recognized on students’ transcripts. Anything that contributes [...]]]> One of the actions in the proposed academic plan is to create “co-curricular transcripts recognizing extra-curricular activities that contribute to academic development.” Creating such a thing is a bad idea for a whole host of reasons.

One is that extra-curricular activities that contribute to academic development are already recognized on students’ transcripts. Anything that contributes to academic development will do so by having a positive effect on a student’s ability to concentrate, for instance—or on her ability to follow complex trains of reasoning, on her ability to write well, her ability to see fallacies, her ability to appreciate an insight, or on her ability to stay on topic. If something isn’t contributing to one of these abilities, it isn’t contributing to her academic development. But the abilities I’ve listed are just what a student needs to do well in her courses. Thus, a student’s participation in extra-curricular activities that contribute to academic development will be recognized in that student’s higher grades.

Put the other way, if participating in an extra-curricular activity makes no positive difference to a student’s grades, participating in it doesn’t contribute to that student’s academic development.

Of course, the abilities I described above give just my view of academic development. Others might have a different view. That fact points to a second reason co-curricular transcripts is a bad idea. Just about anything a student does outside of classes could, in someone’s mind, count as contributing to her academic development, whether in fact it contributed or not.

The action is framed as having to do with academic development, but its effect will be to bring onto the transcript whatever those who compile it are keen to see on it. “Contribute to academic development” is just window dressing.

Third, certainly among the activities favoured by whoever compiles the co-curricular transcript will be volunteer activities: helping out at a food bank, say, or reading to children. But it’s not a volunteer activity if it is done to earn an external reward. Those who really mean to volunteer their time and effort can, of course, simply not have the activity recorded on a transcript. And then they can compete for jobs with those whose volunteer activities are on display for all potential employers to see.

The point is that recognizing volunteer activities on co-curricular transcripts devalues true voluntarism and encourages students to take a mercenary attitude toward helping others.

Each of these three criticisms is, I think, sufficient for removing co-curricular transcripts from the academic plan. But let me explain a fourth strong criticism.

Some things we do in order to obtain a reward (or to avoid a penalty), other things we do for their own sake. No one does laundry for the joy of doing laundry, but lots of us play hockey just for the sake of playing hockey. Some of us write poetry for the sake of writing poetry, some of us engage in conversation for the sake of engaging in conversation, some of us feud and fight for the sake of feuding and fighting. It’s what we enjoy.

Psychologists have noticed something interesting that often happens when we are encouraged by the promise of a reward to engage in something we think we should value, or that we might have enjoyed, for its own sake. They’ve noticed that our motivation flags, that we find we don’t value or enjoy it for its own sake.

Some call this phenomenon the over-justification effect. Quite often, a person who enjoys gardening but then begins to receive money or praise loses interest in it except as a source of money or praise. A person who used to enjoy helping out doesn’t enjoy it so much once it’s the source of an external reward. Children who like to read don’t read as much once they can earn stars or quarters for reading.

The effect doesn’t always attend the introduction of an external reward, and sometimes (very rarely) a person will find herself enjoying for its own sake something she was tempted into by an external reward.

Yet when the effect appears, it is destructive. It robs people of a sense of what really matters to them.

The move to have Saint Mary’s introduce a co-curricular transcript is an invitation to the over-justification effect. It’s bound to affect badly the sense students have of what really matters to them.

One might respond that we’ve got external rewards all over the place already. Students are looking for good grades on papers and in courses, they’re looking for approval from peers, they’re looking to get on the Dean’s list, they’re looking for credentials, and on and on. That’s true, and all of it is worrying.

The fact is, we cannot as an institution do without systems of external rewards. Still, whenever we think to introduce a new one, we need to be careful that it not diminish the student experience. Right now at Saint Mary’s, as our university in ethos and commitment becomes an institution concerned primarily to prepare graduates for the work force, we don’t need anything else to come between us and what matters to us for its own sake.

From ‘The Cranky Professor’ in The Journal, the campus newspaper at Saint Mary’s, issue 5, February 8, 2012

Mark Mercer
Department of Philosophy
Saint Mary’s University
Halifax, NS B3H 3C3
(902) 420-5825
mark.mercer@smu.ca

Adam Gopnik, this year’s Massey Lecturer, has a good article in this week’s New Yorker on the American prison system, which you can find here.

It’s hard not [...]]]> I’m a little hesitant to post this, as I’m wary of conflating American issues with Canadian — but with that caveat in mind:

Adam Gopnik, this year’s Massey Lecturer, has a good article in this week’s New Yorker on the American prison system, which you can find here.

It’s hard not to be outraged by the American justice system. I don’t want to suggest Canada’s prison or justice system is good (that’s an argument I never want to make) but I’m comfortable suggesting it is better than America’s. I bring the comparison in only because some of the more egregious flaws of the American justice system are in the process of being legislated in Canada at the moment. The omnibus crime bill (The Globe has a summary here) contains many ‘American’ provisions criticized in the article; including the expansion of mandatory minimum sentences, and harsher punishment for youth and non-violent crime. There are doubtless parts of the bill worth implementing; but there are others that strike me as dangerous, if not entirely ethically vacuous.

That the primary source of effective opposition to this bill is concerned with its cost is a little hard to stomach.

Calum

Recently, the police collected around [...]]]> That a few teenagers are taking, distributing, and collecting naked pictures of each other is, I suppose, something parents should be a little concerned about (“Teens on notice,” Chronicle Herald, 11 December 2011). That the Cape Breton Regional Police are in any way concerned about it, though, is terrifying.

Recently, the police collected around 700 pictures taken by teens. Some of them, the police say, meet the Criminal Code definition of child pornography. Each of creating, distributing, and possessing a picture that meets the definition is illegal, and so taking, sending, or having one of these pictures could fetch a teen jail time as a young offender.

The Cape Breton police haven’t yet charged any teens under our child pornography laws, but they are warning teens to cut it out or they will.

Parents have good reasons to advise their teens not to pose naked and not to take pictures of their friends naked. We all have at least a modicum of interest in how others perceive us, and a teenage boy or girl might be embarrassed should a nude photo get around. Worse, teens can be manipulative and cruel, and parents want neither their children to be hurt nor their children to hurt others.

But how is this any business of the police? Nothing reported in the Chronicle Herald suggests that teens have been coercing their peers to pose naked. Nothing suggests the teens pictured were unknowing victims of a peeping tom. Finally, nothing suggests even that the pictures were being distributed or viewed against anyone’s will.

Apparently, the police are involved just because some of the photos count as child pornography. A lot of the fault, then, resides with the Criminal Code.

The point of having laws against child pornography is surely to protect children and teens from coercion and assault. To use the law against teens themselves in the absence of coercion or assault, then, would be, ironically, to use a law meant to protect them to harm them.

Children, maybe even more than the rest of us, require strong protections from coercion and assault. That’s why it can make sense to criminalize the buying and selling of child pornography. If the production of child pornography tends to involve coercion or assault and penalizing people for having child pornography will reduce the demand for it, then penalizing possession might well reduce the number of cases in which children or teens are coerced or assaulted.

The child pornography sections of our Criminal Code are, however, a blunt instrument. They don’t distinguish between purchasing child pornography and getting it without paying, which would seem a relevant consideration, as only those who pay can be encouraging the production of child pornography. Moreover, according to the Code, merely copying a picture is an instance of producing child pornography. As well, the Code doesn’t distinguish between representations of actual children and photo-shopped pictures or drawings. It even includes written depictions of children and sex. But if no children were involved in the production of an image or story, no children could have been hurt or harmed.

One might argue that a blunt instrument is appropriate. Having police, judges, and juries bothering with the question whether any children were in fact hurt or harmed might get in the way of the protective intent of the law. Better to err on the side of caution than to worry about the details of individual cases.

Well, the law should never be blunt, for only those guilty of real offences should ever be punished. That important point aside, though, the Criminal Code itself is inconsistent on its purposes, for it itself lists exceptions. They include artistic merit, educational, scientific, or medical value, and promoting the public good.

It’s these exceptions that enable police forces to possess child pornography, for the sake of training police officers and lawyers. They also, fingers crossed, enable art galleries to display images that would otherwise be illegal to display.

To return to the pictures in question. Many teens are keen to explore their sexuality. Many teens have interests in self expression. Taking naked photos of themselves and allowing others to see them might well be integral to self expression and to exploring their sexuality. If the images are, in fact, illegal, as the Cape Breton police maintain, then teens are being denied important personal freedoms that others of us enjoy.

And that’s in addition to the astonishing fact that the police are threatening to harm teens by using against them a law intended to prevent people from harming them.

Parents have been known to threaten their children with the boogie man—in the interests of protecting them, of course. If we are extremely charitable, that’s how we would read the Herald editorial’s injunction to teens to heed the police warning and delete, delete, delete.

There can be no excuse, though, for the police to insist that the boogie man is real and is prepared to prosecute those who would transgress the letter of a poorly-written law meant to protect them.

Again, the fault is mainly in the law itself. It needs to be rewritten. Nonetheless, we should expect our police to act with common sense and good judgement. By threatening to prosecute those teenagers who would harmlessly and consensually take pictures of each other, the Cape Breton Regional Police are exhibiting neither.

Mark Mercer
Department of Philosophy, Saint Mary’s University

The boom in universities in the last [...]]]> The two editorials on universities the Citizen ran Saturday [22 October 2011] got a lot of things right, but they got one big thing very wrong. Whatever the problems are that plague universities in Canada these days, the solution isn’t to turn away young adults seeking an education.

The boom in universities in the last half of the twentieth century promised to create a place in a university for everyone who wanted one, and to a great extent the promise was realized. It also created a demand for education. Young people came to know that they could go to university if they wanted to, and that made them want to. The noble ideal of being an educated citizen came within the reach of just about everyone.

Canadians should be very proud of both these facts: that young people want a university education and that for most of them, they can have one. Sadly, barriers to university still exist for some people, and we need to identify and remove them. But progress to this point has been astounding.

The question now is how to provide everyone seeking a university education with a truly good one. How can we ensure that under the burden of numbers universities don’t simply start pushing students through, unconcerned with whether they are actually learning anything?

Of course, the first thing to note here is that not all universities in this country are bursting at the seams. Universities in Ontario, and especially those in and near Toronto, are around or beyond their present capacities, and the Citizen is right to be worried about increases in class size and reliance on part-time professors. And yet, there are spaces elsewhere in the country. Universities in Nova Scotia, for instance, would be happy to have students from Ontario.

The idea that the answer to maintaining high standards at universities lies in getting prospective students to wonder whether they would be better off considering a training or trade programme, the idea bruited in the first of the editorials, belies a faulty conception of what universities are for. Universities are not for job training or getting into a career. As such, they are not in competition with colleges or vocational institutions.

Universities are about education, about learning for the sake of learning. A student takes courses in English so that she might respond intelligently to works of literature. A student takes courses in history so that she might reflect intelligently on the past. She takes courses in philosophy so that she might confront philosophical perplexity fruitfully. She studies biology so that she might see the living world as a biologist does. And so on through the disciplines.

As a student working toward her bachelor’s degree, she becomes competent to pursue research or study in each of the various disciplines that make up her programme. But she also acquires the habits of mind and the tastes of an intellectual: the ability to see different sides to an issue and to evaluate claims dispassionately, the ability to withhold judgement, the desire to figure it out for herself, a taste for controversy. If all goes well, she also acquires a little protection from all the pressures to conform that continually assault her.

There’s nothing in this about preparing for a job or a career. University done rightly is great preparation for life, of course, and, thereby, indirectly it’s preparation for success in work. The goal, though, is simply to study and learn.

After three or four years at university, a person, still young, can then begin her training for work. Graduate school and professional school are open to her, if she wants, but so, too, are college and the vocational schools the Citizen would have had her enrolled in before she experienced the life of the mind.

The Citizen editor who wrote that “bringing thousands more students into the system devalues each of the degrees they earn” must have been thinking that the point of a university is to bestow credentials on those who pass through it, credentials that employers look for. While it is true that the value of welding skills decreases as more people acquire them, that isn’t true of education. That someone else is educated doesn’t make my being educated any less valuable, either to me or to others.

If I were asked what stands between the student newly arrived at university and his education, I could go on at length about politicized teaching, large first-year classes, infatuation with technology, the concern that people not be offended, administrative encroachment on the prerogatives of departments and professors, teaching fads, grade inflation, the loss of academic freedom (especially by part-time instructors), standardization, conformism, creeping (no, galloping) professionalism, and disdain for the classroom (of the sort found in the second of the editorials, and in University of Ottawa president Alain Rock’s remark that the ivory tower is finished). I’d also talk about unprepared students and the high schools from which they’ve emerged, though unprepared students don’t threaten the enterprise nearly to the degree that disengaged students do.

The one thing of greatest significance, though, something that underlies many of the items on my list, is credentialism—the idea that the point of a university is to bestow credentials. Credentialism, in fact, is currently the great enemy of education.

University is for everyone, because education is for everyone. The trouble is, the universities themselves have been fostering the perception that universities are for gaining credentials, and they’ve succeeded even in fooling editorial writers. Yet, as universities come more and more to believe this line themselves, less and less will they be places of education.

Editorials:

http://www.ottawacitizen.com/opinion/More+always+better/5590337/story.html

http://www.ottawacitizen.com/opinion/Learning+about+world/5590338/story.html

Mark Mercer
Department of Philosophy
Saint Mary’s University
mark.mercer@smu.ca

The power of communication and dialogue [...]]]> Chosen by the students to be the inaugural speaker for the Fountain Memorial Lecture series, Former Governor General the Right Honourable Michaëlle Jean spoke at King’s College on Monday, to a packed auditorium and overflow room. The lecture was expansive and fascinating – I can’t attempt to summarize it all.

The power of communication and dialogue – which is, of course, of tremendous import to CCEPA – was a theme throughout. During her lecture, and in the question period that followed Michaëlle Jean sympathized with the ongoing “Occupy” protests in Canada and around the world. I would say that she also articulated the importance of actually talking and writing to your elected MPs etc. She called this process the “lifeblood of democracy.” Speaking now only for myself: I think some people may be a little too ready to accept the kind of cynical dead-end that writes ‘the system’ off as totally unresponsive or irredeemably corrupted. Democracy dosen’t only occur every few years at the ballot box; if you have an issue, you should absolutely pester your elected representative (and the brilliant thing about this is you can never ‘drive them to distraction’) – whether you voted for them or not.

This isn’t to say anything against the Occupy movement – I just hope they occupy some inboxes as well.

Another important theme was the tendency to turn our collective gaze towards foreign problems at the expense of our own; the “developing world right here in Canada.” She tried to show NO RUNNING WATER – a series from The Winnipeg Free Press. Unfortunately, there were some technical difficulties. It’s well worth a look. As she said, there are no “aboriginal problems” – only Canadian problems.

In addition to being the UNESCO Special Envoy for Haiti, Michaëlle Jean runs a charity devoted to supporting young people in Canada. Their latest project is a partnership with EQ3, GENERATION ART. Probably my favorite quote from the lecture? “Art is about saving lives.” I’ve zero artistic talent, but I’m going to make an effort to get some friends to submit.

For those interested in hearing more from Michaëlle Jean, CBC Radio has a short interview which addresses some of the themes of the lecture here.

Calum Agnew
calum.agnew@gmail.com

Olson raped, tortured, and murdered eleven children and teens back in the early 1980s. He [...]]]> The news of Clifford Olson’s terminal illness brought more than a few Canadians, including the Chronicle Herald’s Paul Schneidereit, to wonder whether we should restore the death penalty (“Of forgotten victims, dying psychopaths and the death penalty,” Wednesday 28 September).

Olson raped, tortured, and murdered eleven children and teens back in the early 1980s. He had spent thirty years behind bars for his crimes, unrepentant and obnoxious, before dying of cancer, on 30 September, in his prison’s infirmary.

That Canadians are raising the issue makes this an especially good time to say again exactly why not even the vilest of criminals should face execution.

Now Schneidereit, it is important to note, is not calling for the return of capital punishment, at least not yet. He is, quite properly, terrified of the prospect of an innocent person losing his or her life at the hands of the state.

Olson would not have been wronged had he been executed, Schneidereit contends, and, indeed, it would have proper and good had he been. But the question, he adds, isn’t about what would have been just in the case of one man. It is, rather, whether we can trust an institution, the death penalty, to be just.

Schneidereit cautions that the death penalty is appropriate only “in rare cases combining complete certainty of guilt with the most heinous crimes imaginable.” People and legal systems being what they are, though, would prosecutors, juries, and judges consider the death penalty only in such rare cases? If I understand him correctly, Schneidereit won’t join those calling for restoration until he’s sure the risk to people who fall outside his conditions is nil.

When, though, we have to ask, does the legal system ever lack complete certainty in finding a person guilty of murder and sending him to prison? The answer is never. There cannot, in principle, be any higher standard than is officially in effect right now. Remember, should the court entertain a doubt, it will not pronounce the accused guilty.

It’s hard to see how a two-tier system of proof or certainty could possibly work, for any doubt about guilt that would save from execution a person convicted of murder would simultaneously make imprisoning him unjust.

What about the condition that the crime be of the most heinous imaginable? The problem here is that there is nothing more heinous than murder. Of any two murders, neither could be more heinous than the other.

A common mistake in moral reasoning (or, perhaps, in moral imagination) is to suppose that committing two murders, say, is worse than committing one. Really, though, each murder is a particular case of the worst thing. Two murders is not twice as bad as one, but instead is two instances of the very worst thing.

The same holds for torture or rape before murder. The murder is not any more heinous if the victim was tortured first. A murder is just as heinous when the victim is killed painlessly in his sleep. The torture or rape is itself heinous, of course, and so constitutes another heinous element to put beside the murder. It doesn’t make the murder more heinous.

The point is that if any first-degree murderer deserves to die by execution, then all first-degree murderers deserve to die by execution, for each murder is the most heinous thing imaginable. For this reason, Schneidereit’s requirement that capital punishment be reserved for the perpetrators of only the most heinous murders can make no difference. It will spare none of the lot—unless we decide to rank the lives of some victims as more valuable than those of others.

Commentators have proposed many other ways of selecting from among murderers those who merit execution—that the murderer doesn’t repent, for instance, or doesn’t seem a candidate for rehabilitation—but all proposals of which I’m aware are beset by intractable problems, either practical or ethical.

Of course, even if murderers merit execution, we might do well to incarcerate them instead. As Hamlet instructs Polonius, we should use people after our own honour and dignity (and not after their deserts, or who should ‘scape whipping?). We would not, I hope, elect to create ourselves as a nation of killers or worse.

Yet Hamlet’s way of thinking can be obtuse and self-indulgent. A teacher might think he’s being magnanimous in not subtracting a late penalty, but really he’s shirking an important duty to give the student only what she deserves. Perhaps murderers deserve execution and because of our concern for our self-image we’re shirking our duty to give them what they deserve.

Murderers certainly deserve punishment, severe punishment, and punishment that everyone understands serves as punishment, and not instead as rehabilitation or correction. A society that neglects to punish wrongdoers is certainly shirking its duty.

This is the crux of the matter, then. Murderers deserve punishment, but a person simply cannot deserve to be executed. Execution is not a toll or a penalty or a punishment, things that one can deserve to have exacted from one, for there’s no person who comes through the execution to appreciate it as a piece of punishment.

If that’s right, in an execution there’s just the terror, the intentional killing, and the corpse, and that looks an awful lot like murder.

Mark Mercer
Department of Philosophy
Saint Mary’s University

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