Eugene Volokh’s thirst for blood has already provoked a fair bit of reaction, and rightly so. Volokh says
I particularly like the involvement of the victims’ relatives in the killing of the monster; I think that if he’d killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing—and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act—was a slow throttling, and was preceded by a flogging. … I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.
Like Eugene, I have a small child and so I can understand his feelings. The monster who was tortured and killed had terrorized a region and abducted, abused and murdered many children. It was appalling. But Matt Yglesias and Brad DeLong are right. There are very good reasons, whether looked at from the point of view of moral principle or sheer social control, for keeping a tight lid on our most vicious impulses to take an eye for an eye. What is the rule of law supposed to amount to if it doesn’t deliver us from the baying of the mob? And as Matt says:
The natural result of giving official sanction and encouragement to the desire to inflict suffering beyond the amount of suffering that serves a constructive purpose within the context of criminal law will be to encourage people to act on similar impulses (and, indeed, to have the impulses themselves) in non-criminal contexts as well. The result would, simply put, be a social disaster in which individuals are encouraged to nurse grudges, indulge spite and envy, and generally speak wreak havoc upon their fellow man. Cruel vengeance has a certain grandeur about it when it comes to the sort of grevious wrongoings Volokh is concerning himself with. It exists, however, on an uncertain continuum with acts of petty vengeance and cruelty that have no such grandeur. Encouraging unconstructive acts of vengeance and cruelty will lead simply to more vengeance and cruelty throughout the social and political system. … Volokh notes that even torturing and killing a man who raped and killed dozens of children is, from a certain point of view, “ridiculously inadequate.” Which is quite right and entirely part of the point. Unleashing excess cruelty on serious wrongdoers doesn’t, in the end, solve anything, or balance out any sort of scales. Dead kids aren’t revived and they’re not really avenged, either. Family members pain and loss doesn’t go away. You’re merely telling people that they can and should try to fill the void left in their souls with the suffering of others. These are impulses that can and will easily become misdirected, turn into casual disregard for the interests of third parties, and spill over into all manner of contexts.
A characteristic of Eugene’s style of thought is his easy reach for emotivist or non-cognitivist arguments when he’s confronted with challenges to his own moral intuitions. He tends to say—as here—that “I can’t prove the soundness of my position any more than (I think) the other side can prove the soundness of its. In this area, we quickly come down to moral intuitions and visceral reactions.” Ruling out the possibility of rational argument in this way is unsatisfying and also inconsistent, as there are plenty of legal topics—from gun control to incest— where he’s happy to present arguments against the moral intuitions of others. So it won’t do to rule it out of court here, or cherry-pick the objections of opponents so that it just comes down to a matter of him feeling one way and you another.