Just Violence 1
Just Violence: An Aristotelian Justification of Capital Punishment
Sarah Tischler Aikin
California State University at Chico

Just Violence 2
Just Violence: An Aristotelian Justification of Capital Punishment
In the United States today, criminal homicide is the only crime legally punishable by death.
1
Historically, common law defined murder as “the unlawful killing of another human being with ‘malice aforethought’.” 2
While the terms included in this definition such as “malice aforethought” have undergone scrupulous analysis, efforts in the legal realm have been less devoted to understanding the theoretical justification for capital punishment. The lack of debate regarding the justificatory aspects of the death penalty in the law is most likely the result of a ruling by the Supreme Court in 1976 upholding the constitutionality of the death penalty.
3
The task of moral justification has been left to philosophers who continue to debate the moral permissibility, based on ethical principles, of punishment by death.
The most common sources of theoretical justification for capital punishment are
Immanuel Kant’s theory of retributivism and John Stuart Mill’s consequentialist approach based on utility. Both these philosophers explicitly address the issue of capital punishment as a moral obligation in their ethical writings. Significantly less attention has been given to other moral theories as potential sources for theoretical justification of punishment by death. The most prevalent of these is Aristotelian ethical theory. While Aristotle does not explicitly argue for death as just punishment for murder, the principles found in his theory of human action and justice in rectification lend themselves to a principled justification of the death penalty for crimes of murder in a limited number of cases.
1 Hugo Adam Bedau, ed., The Death Penalty in America- Current Controversies (New York: Oxford
University Press, 1997), 6.
2 Joshua Dressler, Cases and Materials on Criminal Law, 3 rd ed. (St. Paul, MN: West, a Thomson Business,
2003), 229.
3 Bedau, 16.

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In what follows, Aristotle’s theories of human action, moral culpability, and rectificatory justice will be explicated. On the basis of these theories and the principles that support their assertion, an Aristotelian justification of capital punishment will be offered.
Theory Of Action
Aristotle offers an analysis of human action in which each distinct act is judged based on the intent of the agent who commits the act and the situational conditions in the environment.
The intentions of the acting agent alone are what distinguish the vicious act from the involuntary.
Culpability is not determined on the basis of merely physical contributions of an agent in terms of his or her role in causation. The inclusion of intent and external circumstance in the theory provides a set of criteria specifying which members in society are eligible for capital punishment by determining which types of acts render an agent blameworthy for the effects of the action.
Aristotle identifies three types of human action: voluntary, involuntary, and nonvoluntary.
4
Under analysis, the motivation of every human act will fall into one of these three categories. Since voluntary action is most easily understood once the parameters of involuntary and nonvoluntary actions have been set, it is best to start with these.
Involuntary Actions Due to Force
Aristotle distinguishes two types of involuntary action: forced action and actions done in ignorance of particulars.
5
This distinction is based on the difference in origin of the action. In
Aristotelian terms the origin of all action begins with some initiating component.
6
The impetus is called the principle of action
7 and can be understood in terms of the initial circumstances or
4 Aristotle, Terence Irwin, trans., Nicomachean Ethics, (Indianapolis: Hackett Publishing Company, Inc.,
1999), 30-33. (All subsequent references to Aristotle will refer t this work).
5 Aristotle, 30-31.
6 Conceptually, “action” must be distinguished from “behavior” or “movement.” Aristotle does not consider movement without intent to be action.
7 Ibid., 36.

Just Violence 4 concepts causing some action .
Actions that are forced have some external cause as the impetus for an act. Forced actions are further divided into the two subgroups of entirely forced and mixed actions. In actions that are entirely forced the principle of action is completely external to the agent
8
. Since Aristotle does not consider this type of action a moral act, this category can be ignored for the present discussion.
Mixed Actions
The second type of involuntary action is mixed action. Mixed actions include all actions chosen under duress or as the result of coercion.
9
In these cases, the external circumstances of a situation motivate an agent’s choice to act. Aristotle seems to assume coercion to exist only in situations where an agent is compelled to act by a credible threat of serious harm to one’s self or to loved ones. In Aristotelian terms, one can be coerced by external causes of fortune
10
or coerced to act as the result of a human threat.
11 In either case, the agent acts under duress, the circumstances surrounding the action imposing pressures on the choices for action. An agent may be forced by an ultimatum, where the preferable course of action will produce the least amount of harm.
Any time that some person is killed out of self-defense, the death would be considered involuntary by Aristotle’s definition given that the threat of bodily harm was adequately severe.
These cases are obvious examples of mixed actions where the threat against some agent’s life is considered adequately coercive to warrant the act of killing. Taken out of context, actions of this
8 Ibid., 30-31.
9 Aristotle, 31.
10 The definition of coercion used here differs importantly from certain modern definitions of coercion where external circumstances from the environment are not considered coercive forces over an agent. It is clear though that
Aristotle considers one’s environmental conditions (e.g. the weather) a possible source of coercion if say, a captain caught in a storm at sea is forced to throw valuable cargo overboard in order to save the lives of the crew. See
Aristotle, 31.
11 The human threat of coercion is defined in Tom L. Beauchamp, James F. Childress, Principles of
Biomedical Ethics, 5 th ed. (New York: Oxford University Press, 2001), 94.

Just Violence 5 sort would be considered wrong. But the particular circumstances of coerced actions render the acting agent blameless when the force of the threat is adequately noxious and strong. The ultimate choice to act is made by the agent but the coercive circumstances are the reason that the action is considered choice-worthy. Understood in this light, it can be said that the principle of action originates outside the acting agent in the form of a threat. The action is considered mixed by Aristotle because the ultimate choice to act must be made by the agent and this step is voluntary. The difference between mixed actions and voluntary actions is the presence of an external threat in mixed actions. The coercive force provides the impetus for a mixed action and renders that action choice-worthy given the circumstances, without which the same action would be considered reprehensible. The external causal factor from which mixed actions originate, be it threatening weather conditions or a malicious villain, includes these acts in the class of forced actions.
Ignorance of the Particulars
While forced actions are considered involuntary because the principle of action is external to the agent, actions committed in ignorance are involuntary because the agent lacks knowledge of the particular facts associated with the action that would lead her to choose otherwise or enable her to make an informed choice at all. The relevant particulars include the knowledge of who committed the action, what the action is, to whom the action is done, with what instrument, for what result, and in what way the action will be executed
12
. An action done in ignorance is committed in the absence of only some or one of these particulars. Ignorance of
12 Aristotle, 32.

Just Violence 6 any these particulars prior to any action would suggest that the acting agent was not relevantly informed.
13
For example, some agent purchases some juice at the local super market. Unbeknownst to her, the juice is rancid and has gone toxic. If the agent goes home and gives her partner a glass of this juice, inadvertently poisoning her partner and bringing about his death, the agent is not considered morally culpable in Aristotelian terms. Her ignorance of the toxicity of the juice is a cause for pardon. In this case, the agent was ignorant of the relevant particular of the toxicity of the juice that would have allowed her to decide to commit this action.
According to Aristotle, discomfort and pain are the natural partners to involuntary action
14
. An agent who acts involuntarily due to ignorance will feel remorse for what has occurred. Ignorance that leads to the final outcome of some action is considered a mitigating circumstance. If it is clear that the same action would not have been chosen had the agent known the relevant particulars and the acting agent did not intend the result of the action, that agent would not be held morally responsible for the action committed.
While actions committed in ignorance are not considered vicious, not all acts committed in ignorance of the particulars are pardonable. If an act was committed in ignorance but the cause for that ignorance is the fault of the agent, the action may still be blameworthy, even if the agent is not. A contemporary example of this is illustrated in the ways we hold drunk drivers accountable for the damages they cause. While it may be the case that the amount of alcohol consumed hindered judgment or interfered with the ability to ascertain knowledge about relevant particulars (i.e. running a red light because one didn’t notice that the color had changed) the
13 Ignorance of all the relevant particulars involved would suggest that the agent acting in these cases was not rationally competent. These agents would include schizophrenics as individuals who cannot reliably distinguish between fantasy and reality. It would also include individuals suffering from severe cognitive deficits. Aristotle makes reference to these cases off handedly, 32.
14 Ibid., 32.

Just Violence 7 choice to drink so heavily that this sort of ignorance would become quite likely is an action that might have been avoided 15 .
Nonvoluntary Actions
While actions done in ignorance of the particulars are sometimes pardonable, actions done in ignorance of the principle of action are neither praise- nor blameworthy
16
. Aristotle considers actions committed in ignorance of the principle of action nonvoluntary. For the agent who does some wrong but who is wholly ignorant that the action is wrong, the act itself is chosen but is uninformed on a theoretical level. Conversely, the act cannot be called involuntary since it was not caused by force, nor is it done in ignorance of the particulars. This special class of actions is relevant on the rare occasions when an agent, who remains completely oblivious to the principle, breaks some rule.
When children behave in physically harmful ways, it is usually because a child has not learned certain principles that would prohibit the action, such as “sentient beings feel pain.” If a child is found pulling the cat’s tail, a reasonable reaction might be to teach her that the cat feels pain when its tail is yanked. Rather than blaming the child, she is informed that the action of harshly tugging on the limbs of animals causes harm. Before this lesson has been learned, the child cannot be said to have understood the principle of action behind hurting the cat by yanking on its tail. If the child is ignorant of this principle, she will not have chosen to hurt the cat nor could she have chosen not to hurt the cat. In addition, she will feel no regret or remorse for the
15 While blame would certainly fall on the chronic alcoholic, it might be argued that the agent who drinks for the first time and causes harm in the same way might be forgiven. The ability to analyze the circumstances and place blame accordingly is left to those responsible for determining punishment in the cases.
16 Ibid., 32.

Just Violence 8 action she commits before she has learned this principle. Lack of regret is considered a necessary condition for nonvoluntary actions according to Aristotle.
17
Voluntary Actions
If the principle of the action is in the agent and the agent knows all the relevant principles and particulars involved, by Aristotelian standards the act is voluntary.
18
Voluntary actions that result in harm are vicious when the agent chooses them after a process of deliberation. Aristotle defines ‘choice’ as a deliberative desire to achieve a previously specified end.
19 The process of choosing itself is voluntary and requires previous deliberation.
20
As Aristotle describes the process, deliberation will always precede choice and choice is always voluntary.
Aristotle lists the objects of deliberation as actions, means, and results that might be attained through human agency
21
. The process involves determining a desired end and planning how this end can be achieved. It is a type of inquiry that includes analysis of each step required to attain a determined end. According to Aristotle’s analysis, people deliberate about what might be achievable through their own agency. As the originator of some chosen act, agents are themselves considered principles of action by Aristotle since the initial cause of the action manifests in the acting agents mind.
17 Aristotle’s description of nonvoluntary actions leaves open the question of whether or not individuals diagnosed with Anti-Social Personality Disorder, also referred to as Sociopaths, act nonvoluntarily if they act in ways that result in harm. The diagnostic criteria include “Failure to conform to social norms with respect to lawful behaviors, reckless disregaurd for the safety of self or others, [and] Lack of remorse as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another,” (DSM-IV, p. 650). Since many individuals convicted of murder have also been diagnosed with this disorder, an argument must be made that would definitively include or exclude these individuals from the class of nonvoluntary actions when murder is committed.
18 Aristotle, 32.
19 Ibid., 36.
20 While deciding to act is voluntary according to Aristotle, not all voluntary acts involve decision. For example, actions done on the spur of the moment are considered voluntary but do not involve decision to act in the relevant sense. In these cases, one may choose to act viciously but not be considered vicious in character. The act will rather be considered only incidentally vicious.
21 Aristotle, 35.

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Vicious Actions and Human Agency
An Aristotelian analysis describes the entire process of a voluntary vicious action as follows; Agents wish for some end. If the act is vicious, it will involve either intentional or willful disregard of the well being of some individual. The agent will deliberate and decide to act in ways that will promote that destructive end. The choices made to do and not do certain actions are the very things that define human character in Aristotelian ethics. In part he defines virtue and vice as behaviors and feelings which involve ends. Since the process by which the end is determined and also the process by which that end is obtained are voluntary human processes, so are virtue and vice considered voluntary character traits
22
.
The activities that are chosen will dictate one’s character. Those actions that are chosen and committed repeatedly will have an effect on the types of decisions each agent will make in the future. Over time, these repeated choices and actions form the character one has. While actions were at one point freely chosen and are always freely chosen if the actions are voluntary, it may become extremely difficult to change one’s behavior once acts of viciousness become habituated. One who has chronically acted unjustly may wish to change but it may be very difficult to escape a certain pattern of behavior. This difficulty in itself does not render the actions committed involuntary, since the principle of action is entirely within the agent, and has been since the advent of human agency. What Aristotle does acknowledge is the constant interplay between character and action. While he asserts that humans remain free throughout their lives, they are not free in the extreme sense where the choices made in the past have no bearing on the choices made in the present.
Human agency is also assumed when the distinction is made between those things that are the result of nature and those that are the result of agency. Aristotle notes that societies do not
22 Ibid., 37.

Just Violence 10 blame people for things that are the result of nature but do blame them for things that are the result of choice. If a person suffers from schizophrenia and acts out publicly as the result of a hallucination, people react differently than in cases where an agent voluntarily ingests LSD, a chemical known to cause hallucinations, and acts out publicly as the result. As in the afore mentioned cases, the outcome may look identical between cases where nature was the cause and those brought about by choices made by the agent. But the agent is held culpable if it is thought that the outcome might have been within that agent’s power to avoid.
In most cases, Aristotle considers people responsible for their characters. For this reason, agents can be held responsible for the ends they seek. Those with good or virtuous character will wish for apparently good things that are actually good. Those with a bad or vicious character wish for things that are apparently good but are actually bad. Since one’s character will dictate how the apparent good appears and since human character is created by the choices each individual has made, each agent can be blamed for how the good appears.
23
Given Aristotle’s account of human action, people are considered entirely culpable for any harmful results when the action is voluntary. While people are not always directly responsible for their states of mind in terms of what actions may appear choice-worthy the chosen actions in the past dictate one’s present state 24 . The relationship between choice and character renders agents responsible for their state as well. A result of interpreting human agency in the way just described is that the theory must deny the claim that vicious acts, such as murder, are always the result of some psychological disorder where the symptoms of this disorder do not include distortions in perception or the inability to distinguish fantasy from reality. If the
23 Aristotle, 39.
24 Ibid., 38.

Just Violence 11 disorder involves only the desire and choice to seek the death of another, that agent is considered vicious, not irrational and hence, culpable for the choices he or she makes.
25
Theory of Justice
Aristotle’s theory of justice offers the outline of a system. This outline suggests the death penalty as punishment for appropriate crimes. His theory is developed and expressed in a manner that leaves room for adjustment according to the particular details that vary across time and culture. The lack of rigid and specific detail is characteristic for Aristotelian ethics. It is demonstrative of the underlying assumption that right and wrong are defined by the actions and values held by the virtuous and vicious agents in a society. People come to understand the concepts of justice and injustice by observing the actions of those members of society considered by their peers to be just or unjust. The ultimate authority for truth and meaning are the virtuous individuals who analyze and act in ways that resonate with rationality and emotion. For this reason, Aristotle looks to the ways virtuous people commonly behave as justification for his theoretical claims.
One of the most prevalent aspects of justice is related to abiding by societal laws.
Aristotle assumed, in an ideal democracy, the legislation would embody the values that the society held as reflective of virtuous action 26 . Along with the general practice of law abiding,
Aristotle describes two additional components of justice— equality and fairness . Equality can be understood as the assertion that each person receives equal respect and access to the good that she deserves. Fairness must be analyzed a step further into constituent terms of desert. One who pursues only the goods or burdens that she deserves and avoids the goods or burdens that she
25 This claim relates to the need mentioned in footnote 16 for an argument that allows socipaths to receive the death penalty as agents who acted voluntarily to commit murder.
26 Aristotle, 68.

Just Violence 12 does not deserve is considered fair and justice requires that others are awarded or restricted in the same way.
Theory of Rectificatory Justice
Aristotelian justice in rectification operates on the basis of a particular cluster of assumptions.
1) People existing in society are in possession of certain goods
27
.
2) If an agent takes some good from another agent, the action requires a principled justification or the consent of the agent from whom the good is taken.
3) The only justification for taking goods without consent is based on rectification, where goods that have been acquired unfairly by one person at the cost of another are taken back and equilibrium between the wronged agent and the agent who acted wrongfully is restored.
28
4) One component of justice in rectification is punishment. Punishment is the name given to the process of taking back what goods were wrongfully acquired so that they may be given back to the agent from whom they were taken, restoring balance.
5) A punishment will fit a crime when it takes from an offending agent the proportion of goods that agent has wrongfully taken from another. These goods (or an equitable substitute if returning the actual goods is impossible) are returned to the agent from which they were originally taken. In this way the balance is restored to a society.
6) A system of justice will ensure that the society operates within the confines of assumptions 1- 5.
27 What exactly constitutes a good has been a topic of debate. For the purposes of this essay a conception of goods as needs developed by Abraham Maslow is assumed. For a discussion of Maslow’s “Hierarchy of Needs” see Joseph
Lyons, James J. Barrell, “Secondary Motives: the Story of Needs and Values,” in People: An Introduction to
Psychology, (New York: Harper & Row, Publishers, 1979), 109-127.
28 Aristotle, 72.

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The basis of Aristotle’s theory of justice in rectification is that we are required to restore the balance of goods when one agent wrongfully takes what belongs to another. In these cases, if an agent commits a wrongful act against another, justice requires that we rectify the situation by restoring the goods that have been wrongfully taken
29
. Speaking in terms of goods may be a bit misleading since the theory considers the act of inflicting harm equivalent to obtaining a good on the part of the perpetrator. It may be clearer to consider the potential pleasure that comes from inflicting harm. If pleasure is found by hurting an unwilling person, this is a benefit for the individual who causes the pain. It is a burden for the person who experiences the pain. If an agent experiences pleasure at the cost of another, this pleasure is considered an unfair benefit and the pain suffered an unfair burden. Justice seeks to rectify the situation.
According to this theory, all people are considered equal in the sense that we all equally deserve not to be burdened wrongfully for the benefit of another. The legal system is designed to create a means by which an agent who has been wronged may have the goods that have been taken returned and the benefits that have been wrongfully enjoyed at the expense of another be taken away. In this way, a system of justice requires that a wrongful act will not go unpunished.
The Proportionality of Punishment by Death
Aristotle does not offer an explicit argument for capital punishment. Throughout his theory of justice, he mentions crimes of murder in his discussion of rectificatory justice but does not directly address the issue in its own right. While this may complicate the issue slightly, the lines of thought expressed throughout his theory of human action, praise and blame, and justice, lend themselves to the specific justification for punishment of death.
30
29 Ibid., 74.
30 There are those who deny that any person deserves to be killed under any circumstances. This assertion is derived in large part from the conviction that the right to life is inalienable. While the present paper will not address this issue, cogent analyses of this topic can be found in J. J. Thomson, William Parent, ed., Rights, Restitution, & Risk:

Just Violence 14
In the case of murder, one person in society has wrongfully taken the most fundamental good from another without justification or consent. This good is life. Justice demands rectification. While it is not possible to restore the good that has been wrongfully acquired to its rightful owner, it is possible to fulfill the requirement that no one may benefit from a good that has been wrongfully acquired at the expense of another. In order to rectify the situation, this good must be taken from the agent who committed this wrong. Capital punishment is the process by which justice is restored.
Once the principles of rectificatory justice are understood, the justification for death as a punishment for murder becomes clear. In cases where the acting agent chooses to kill voluntarily, in knowledge of all the relevant particulars, and with the understanding that this action is considered unjust by the society in which he or she lives, this agent is held completely responsible for the effects of his or her action. When the result is the taking of another person’s life, we are required by justice to rectify the situation by punishing this agent in proportion with the harm caused.
The agent who commits murder voluntarily has taken a human life in full knowledge of the principle of action and with familiarity with the relevant particulars; he or she has taken away everything that one can take, including the opportunity for restoration, constituting the most horrendous acts of injustice. Unless a society is to suggest that the most extreme form of injustice is the point at which the legal system abandons justice all together, the agent who commits murder must be treated as if the debt he or she owes is being exacted in order to restore
Essays in Moral Theory, (Cambridge, Massachusetts: Harvard University Press, 1986), Germain Grisez, Joseph M.
Boyle, Life and Death With Liberty and Justice, (Indiana: University of Notre Dame Press, 1979), and Arthur J.
Dyck, When Killing is Wrong: Physician Assited Suicide and the Courts, (Cleveland, Ohio: The
Pilgrim Press, 2001).

Just Violence 15 equilibrium between the agents. The principle of justice is maintained even in the absence of the possibility for rectifying the wrong done in the literal sense of repaying a debt.
If put in terms of benefits and burdens the argument is as follows: An agent chooses to kill another voluntarily and viciously. When a blameworthy act is committed against another individual, the offending agent is responsible for the burden inflicted on the harmed agent.
Justice demands that we exact a punishment by taking back what the agent has taken unjustly. In the cases where the harm committed is murder, there is no way for the agent or the justice system to return the goods that he or she has wrongfully taken and in this way rectify the situation. A life is gone and cannot be returned. Nevertheless, justice demands that we exact from the offending agent an amount in proportion with what he or she has taken. At this point, the exacting of a debt in order to restore equilibrium is done in principle rather than for the purpose of literally repaying the debt. Justice now requires that the amount of goods be restored to balance in the absence of goods caused by a murder. Taking the life from the murderer is the only means by which balance between the agent harmed and the agent who harmed can be reached.
An Important Distinction
An Aristotelian justification for the death penalty based on rectificatory justice may make sense on a rational level but appear overly simplified for many individuals. Intuitively, most people see that a strong particularization of the nature of a crime is necessary for justice to actually give what is appropriate in the form of punishment. There are many exceptions made to this rule that seem to require that capital punishment is an undeserved burden for certain people who have killed when the punishment is required without qualification. A more thorough investigation of Aristotelian ethics satisfies this need for qualification. Utilizing an Aristotelian

Just Violence 16 theory of human action in the case of capital punishment may allay the concern that the punishment of death may be applied in cases where it is undeserved.
While the intentional killing of another individual is wrong in cases where that death is a result of a vicious act of injustice, Aristotle’s theory of human action allows for a crucial distinction between the act of murder and the death penalty. An act that is voluntarily unjust is committed for the purpose of obtaining some undeserved benefit at the cost of another. This is the end that is chosen. Murder differs in kind from acts which aim at restoring justice. In cases of rectificatory justice, the goal is rectification of a wrong and equity of deserved burdens and benefits. While both acts result in the death of a human being, in the case of murder, a life is taken unjustly. In the case of death as a punishment for murder, a life is taken for the sake of restoring justice. This difference in intention allows the two acts to be considered dissimilar, just as the description of involuntary, nonvoluntary, and voluntary actions allow for a distinction between types of acts based on the agent’s intents.

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References
Aristotle, Irwin, Terrence, trans. Nichomachean Ethics. 2 nd ed. Indianapolis: Hackett Publishing
Company, Inc., 1999.
Beauchamp, Tom L. and Childress, James F. Principles of Biomedical Ethics, 5 th
ed. New York:
Oxford University Press, 2001.
Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York:
Oxford University Press, 1997.
Dressler, Joshua. Cases and Materials on Criminal Law, 3 rd
ed. St. Paul, Minnesota: Thomson and West, 1999.
DSM-IV, 4 th
ed., s.v. “Antisocial Personality Disorder.”
Dyck, Arthur J. When Killing is Wrong: Physician Assisted Suicide and the Courts. Cleveland,
Ohio: The Pilgrim Press, 2001.
Grisez, Germain and Boyle, Joseph M. Jr. Life and Death With Liberty and Justice. Notre Dame,
Indiana: University of Notre Dame Press, 1979.
Lyons, Joseph and Barrell, James J. “Secondary Motives: The Story of Values.” In People:
An Introduction to Psychology. New York: Harper & Row, Publishers, 1979.
Thomson, J. J., Parent, William, ed. Rights, Restitution, & Risk: Essays in Moral Theory.
Cambridge, Massachusetts: Harvard University Press, 1986.