JF Stephen once remarked that the degree of moral loathing of the offence of murder is a reflection of the fact that murderers are hanged for the offence. That reflection has interesting implications for jurisdictions which abandon mandatory penalties for murder.
I do not think that one can provide a general answer to this question- it is highly culturally specific. In common law jurisdictions we distinguish between different types of murder (e.g. premeditated) and the sentencing (punishment) guidelines reflect these divisions.
Some European jurisdictions, e.g. Belgium, do not sentence people to life in prison, even for multiple murders.
Labelling someone a murderer may not mean they are in either law of fact. For example, some people consider abortion murder, even if it legally permissible where they live.
It is true, as you say Rachel, that this differs from culture to culture. The Brits do not use the language of "manslaughter" vs. "homicide" which we use. Yet they have the ability to make the same distinction through different means. I believe that to take someone's life with "malice aforethought" is a good basic definition of murder. Samuel Pillsbury points out that "a number of legal scholars hold that in order to be deserving of serious punishment a person must (1) have acted to commit serious harm, (2) have acted with a blameworthy or culpable mens rea, (3) have acted without significant coercion from outside sources, and (4) have been rational at the time of the action." (Judging Evil, 1998, p. 36). If someone, with malice aforethought, takes the life of another, and does so while meeting all four of these criteria then I believe they are, all things being equal, deserving of punishment to the fullest extent of the law.
In Dworkin's "The Philosophy of Law" (he is the editor) H.L.A. Hart states that “Laws against murder...would be of little use if they were not supported by a widely diffused conviction that what these laws forbid is also immoral.” (p. 85) The fact that some cultures do not sentence multiple murderers to prison probably says more about the state of those cultures than it does about the wrongness of murder and the degree to which it should be prosecuted. I would hold that a culture which permits multiple murderers to walk free is a culture in serious legal and judicial decline.
The definition of murder is not based on malice aforethought. While malice aforethought may help prove a reason why the murder occurred but is not required for a conviction. There must be the act of killing someone and the intent to do so. Furthermore, many states also have a category called Felony Murder where if certain violent crimes are committed and during the crime any person other than the felon(s) is killed, the criminals are subject to the same penalties as an intentional murder, Therefore intent to kill does not have to be proven. Rather, the intent to commit one of the included crimes must be proved,
Cathie I am aware of what you say here. I should mention that I am a fan of the notion of denoting first degree murder from other sorts of murder. If you prefer the term "depraved heart", that is also acceptable to me, but I think we need to, in some fashion or another, denote malice in the case of someone performing an act intended to take another's life. It seems to me that if we do not do so then we lose the notion of a comprehensible motive. When someone takes lives without reason and treats human life as cheap, to my way of thinking that denotes some level of mental illness.
Bill,
I totally understand what you are saying. I was simply referring to the basic legal requirements. For example, a robber shoots and kills his victim. This would not necessarily be malice aforethought. If a spouse takes out a life insurance policy on the other and two weeks later that spouse is murdered, the taking out of insurance could be used to show malice aforethought. I am strictly speaking about legal requirements not theory.
These are all interesting answers. But the question which remains, for me, is the inarticulate relationship between the price the murderer must pay and the definitional prerequisites for the legal label or brand name of 'murder'. Bill does seem to have in in mind some ideal linkage between the penalty and the definition of the offence. Cathie and Rachel add some helpful remarks about the definition of the offence, but leave the question of penalty out of discussion. To digress for a moment and take up one of Cathie's points, JF Stephen argued that the mandatory death penalty for murder in Victorian England provided the best reason for eliminating the felony murder rule: that rule made the definition of the offence over inclusive and resulted in murder verdicts which were not (morally) justified on the facts of the case. But let me return to my central theme. What arguments might be advanced against a legislative proposal to define murder very broadly, so that (Model Penal Code) recklessness was sufficiient as a fault element and all partial defences (provocation, diminished responsibility, excessive self defence) were all to be abolished - but the penalty was at large, so that some murderers might be released on a good behaviour bond while others (the wicked or callous) would be sentenced to life imprisonment? The sentencing court, which is not constrained by the usual rules of evidence or burden of proof, would sort the wolves from the goats.
Dear Ian,
Your question has three elements that needs to be looked into for arriving at a composite answer.
First - define murder: Indian Penal Code (IPC) (Ss 300, 302, 307) primarily deal with both definition and punishment. The elements of crime are that an act was committed by the accused; he committed the act intentionally; he was aware that his act would either cause death or cause such grievous injury as would result in death of the victim.
Second - penalty: The IPC hands out death, life imprisonment or imprisonment upto 10 years along with fine for various circumstances.
Third - Moral label of Murderer: IPC, on conviction labels the accused as 'murderer'.
It is true that the cultural context may affect the definition of murder. But, even in the most primitive societies (I really wonder if there are any now), intentional killing of another human for private motive or gain has never been accepted as 'acceptable'. The State may 'murder' - through its Armed Forces or Riot Police or Special Forces. That is a condition that all nations and societies accept as legitimate. Individual members of the society however have been denied the choice of taking someone else's life at their will for reasons that are obvious - to avoid chaos and anarchy. The moral label for murderers therefore can not be construed benignly.
The point on which we may however differ, after labelling the accused as murderer through due process of law, is whether we should take a life to avenge a life? Well, this is a huge debate. From hanging to lethal injections to electric chairs, Rights activists feel that these practices are as barbaric as the murder itself. On the other side, we have the victim and the society that say that blood for blood is the only justice that can be dispensed. There are lots of debates in India, where death penalty is legal, over a recent case in which the Supreme Court mitigated death penalty to imprisonment considering the extreme poverty of the 'murderer's family and the fact that he was their only bread winner!!
It is quite difficult therefore to define the relationship that you have posed in your question.
Perhaps, as Srinivasan suggests, I did not fully appreciate the difficulty of the question posed at the outset of this discussion. To some extent, at least, the difficulty arises from my insistence on the link between the penalty for murder and the definition of the offence. The tendency to compartmentalisation of the legal mind often obscures the relationship between definition and penalty. I may be able to clarify the relationship a little by a comparison between the Indian Penal Code and the Australian Commonwealth Criminal Code provisions on murder. The penalty for murder in the Indian Penal Code is a mandatory sentence of death or life imprisonment. These are severe penalties indeed, though executions for murder are mercifully rare. There appears to be an interesting corollary of this severity in punishment. The Indian code is quite exceptional in recognising no less than five 'exceptions', or partial defences, when an intentional killing will not amount to murder, but the lesser offence of 'culpable homicide' for which there is a maximum but not mandatory penalty. If the penalty for murder was not one of mandatory severity, would this exceptional generosity in the provision of partial defences be necessary on either pragmatic or moral grounds? Compare, for example, the Australian Commonwealth Criminal Code which makes no provision for any partial defences at all and leaves the penalty for the offence at large, with a maximum of life imprisonment. Those five exceptions to murder in the Indian Code are, at most, sentencing considerations that will bear on the penalty for murder in the Australian Code. I should perhaps add three things more: first, that the 'definition of murder' must be taken to include its defences and partial defences, second, that the comparison is not intended to favour the Australian definition of the offence; I have some doubts on the question whether the social and moral capital embodied in the label 'murder' can be preserved if the penalty is not both mandatory and severe and, finally, I should add that severity does not necessarily connote death or imprisonment for life. A mandatory penalty of, say, 25 years imprisonment would qualify as exceptionally severe for most murderers.
In German criminal law, Mirder is 'mayhem with qualification'., that is the conscious kiiling of a person under certain circumstances or in order to achieve something.
E.g. killing a person in order to commit or to hide another crime (rape, burglary, etc) is always murder. Or killing a person abusing her trust in your protection (e.g. your child or another relative, a good friend)
In German criminal law, there is a minimum penalty for murder, and it is not possible not to go to prison for it.
It seems that a current concern is with the less tractable questions involved in determining what should be done with those individuals whose homicidal behavior the criminal and who are thus rendered amenable to compulsory treatment. It Will be recalled that they are individuais with whose behavior the criminal law ought to concern itself for either or both of these reasons: (1) that it is behavior of the sort which it is desirable and possible to deter; (2) that it usually indicates that the actor is more likely than the generality of men to behave in undesirable ways in the future. On the analysis of the criteria of responsibility previously advanced, the homicidal behavior of irresponslble offenders is not significant for the first of these reasons; the internal character of their behavior and their own psychological nature are such that it is relatively futile to treat them with a view to deterring potential ofenders. Hence, no difficulty is experienced in such cases in concentrating on the incapacitation and reformation of actual offenders as the ends of their treatment; the problem is only that of ordering those ends in relation to one another and of seeking appropriate means.
Marcelo: You ask '[W]hat should be done with those individuals whose homicidal behaviour [is] criminal and thus rendered amenable to compulsory treatment'? My original concern, when I asked the question that opened this string, was very much narrower. I was concerned with the question: Which among the different varieties of criminal homicide should be called 'murder'? It was a question about 'labelling' or categorizing the offence and about the relationship between the definition and penalty for the offence. (Currently, in Australia, there are six or more different kinds of criminal homicide, distinct from the offence of murder. Moreover, the definition of murder varies from jurisdiction to jurisdiction and is the subject of ongoing legislative reconsideration.) It seems reasonable to expect that the penalty for murder will affect the definition of the offence. If the penalty is mandatory and severe, as for example imprisonment for 25 years or more, one would expect the definition of murder to be more restrictive than it would be in a jurisdiction where there was no mandatory minimum, so that a conviction for murder might be followed by a short terms of imprisonment or even a non custodial alternative. Legislative adoption of the second of those alternatives, where the severity of the penalty is discretionary and variable, might be expected to have a profound effect on the public understanding of the moral condemnation involved when an offender is convicted of 'murder'.
My concerns with labelling do have a bearing, I think, on your discussion of deterrence, incapacitation and rehabilitation. In jurisdictions where the penalty for murder is mandatory, the sentence imposed for the offence may sometimes exceed anything that could be justified on grounds of deterrence, incapacitation or rehabilitation: the severity of the penalty in these cases will be a simple consequence of the label, 'murder'.