Or should our title recognize positions of shadows rather than shadows of positions?
On any of the contentious issues of our day, we hear advocates for each of the contending positions engaging advocates for the alternative positions. Each advocate presents the reasons for and against a given position, with whatever information, conviction and persuasive capabilities the advocate can bring to bear.
We listen to the advocates; we hear their dueling contentions; and we often are inclined to make up our minds by throwing up our hands. Inclined, yes. But dare we abandon our dignity and cede our responsibility to look with a cold eye, and gentle heart, at the facts and choices. Dare we leave unexamined the prior choices that have constrained the choices we seemingly have, as if these prior choices are a knot with threads too tight and patterns too intertwined to ever unravel? Dare we abdicate our individual responsibilities by conferring on the dueling and (occasionally) sincere advocates an expertise that stretches well beyond their expertise and lures us to accept their positions?
Let’s pause, for a moment, and consider whether all may not be as it seems. Perhaps, just perhaps, the advocates of contending views adopt their respective stances on common ground. Indeed, it would surely qualify as irony if the grounds claimed by each provided firmer terrain for the other. And through our inspection, we seize our ground and own our responsibility to face the choices and their consequences, knowing they are ours, knowing that we must and (must continually) choose, and choose again. The moment of pause is not a moment of rest.
To be concrete, we’ll take the death penalty, a gruesome spectacle cloaked in sterile metaphor and shrouded in sanitized statistics, as an example.
The contenders on the death penalty, whether in support or opposition, invoke a variety of reasons, often prioritized and weighted differently, and commonly consisting of conclusions presented as reasons:
– the death penalty risks permanent injustice if we execute an innocent person.
– the death penalty is applied in a discriminatory (racial) manner.
– the death penalty brutalizes the society that legitimizes it (and brutalizes the doctors, nurses, wardens and other “administrators” that insert the syringe, pull the switch, unleash the guillotine, erect and dismantle the gallows, and “remove” the limp, disfigured carcass that once was a body).
– the botched execution is cruel and unusual.
– the death penalty is true justice – an eye for an eye.
– the death penalty is an effective deterrent against (certain?) crimes.
– the death penalty assures that the offender will not repeat his heinous crime.
– the visible spectacle of an execution gives expression to society’s rage and thereby dissipates impulses toward vigilante revenge.
The above is an incomplete list. Many other reasons have been asserted in support of different positions. And, of course, we have not touched on side-issues that, sooner or later, take center stage: which crimes (if any) should merit the death penalty (if we were to have such a penalty); what should be the burden of proof for imposition of the death penalty; what should be the rights of appeal for a conviction; what are the permissible “techniques” for carrying out the death penalty; should there be a minimum age for eligibility to receive the death penalty; how should jurors be picked in capital cases? Further removed: who should decide the legitimacy of the death penalty? Who is the “we” in the questions above? Why should we legitimize objectionable actions (e.g., vigilante revenge) as a predicate (rhetorical or otherwise) to legitimizing the death penalty? If the death penalty violates human rights, should we seek a universal ban? Or would pursuit of such a goal squander scarce resources better spent reforming our own judicial and penal systems?
But what if it were the case that those opposed to the death penalty actually have a greater desire for revenge and punishment than those who support the death penalty? How could this (paradox?) be? One answer could be – although it may not in fact be – that those opposed to the death penalty think (feel? believe?) that locking a person in a secure cage for the rest of his life is a greater punishment. If we set aside how one measures the severities of different forms of punishment – is there a common denominator for measuring severity? – and whether the recipients (subjects) of the punishment (as well as the administrators of, and audience for, the punishment) share in their views as to severities – and what if they (or some of them?) don’t – and focus on the beliefs in and of themselves of the public contenders, then one may sense the grounds start to vibrate and shift.
Do we assume that achievement of the sought-after objective leaves all else unchanged? As if change can be effected in a vacuum. To overturn the death penalty and (thereby?) encourage increased impositions of, and increased severity of, other penalties would, one presumes, be an unintended consequence. After all, it would be the rare opponent of the death penalty who would countenance a lower standard of proof or greater procedural bars to appeals of convictions. Or so one would think. But do those of us who hold a particular view factor in the second and third level consequences? Is the posing of this question asking too much? Can our uncertainties in knowing the answers inhibit convictions in our positions? Reader, read Sarat’s Gruesome Spectacles, read the Federal bureau of statistics and then read more.
Shadows of positions? Positions of shadows?