Homicide in the Context of Killing (USP)

A legal perspective on killing Starting from the legal perspective on killing we find the law-abiding citizen who does not pose a legal problem, at least not in criminal law, and we find the disobedient citizen who violates a law by either negligence or intent or error of judgment and whom the law tries to lead back on the right track - if necessary, by some more or less benevolent sanctions. He might also be a denizen or a non-citizen or an outright enemy bent on destroying the community. In his case, the sanctions might be really severe punishments designed to incapacitate the offender and to neutralize or eliminate the danger flowing from him.

There are, of course, a lot of behavior types defined as criminal offenses - from property crimes to murder. The act of murder has always been considered a very serious breach of the very social contract, since it always entails the risk of retaliation and a spiral of violence endangering the very foundations on which social life is built. No wonder, then, that murder has attracted much attention in both theory and practice, and that the most spectacular trials are murder trials and the most spectacular punishments have always been the public judicial executions of murderers.

From its very beginnings, criminology has also been interested in - we can even say focused on - the phenomenology of murderers. Just think of Cesare Lombroso's criminal anthropology and subsequent works of etiological criminologists all the way to Robert Ressler's work on sexual homicide and the mutual interest of criminologists and the larger public in the phenomenon of serial killers, profiling, and the like.

From the legal perspective, killing are problematic to the extent that they are illegal. For legal scholars it is evident that prevention and prosecution of all kinds of Illegal killings - from manslaughter to first degree murder - must be done, and that the prosecution of homicide has to be a priority of criminal justice. From this perspective, the human being as such is basically a good and peace-loving citizen, but there are some individuals who for whatever reasons get out of control and have to be dealt with accordingly in order to protect the public peace, law, and order. This order is seen as something inherently peaceful and non-violent.

To a certain extent, we are all jurists, and we all believe that most people observe not only the letter of the law, when it comes to killing, but also the 5th commandment: Thou shalt not kill.

A cool observers' perspective on killing A cool observer might be surprised to see that things are not quite what they seem, though. The observer may start with the assumption that human societies are rather peaceful and non-violent, because they have this double safeguard against killings: for one thing, there is the religious taboo - "Thou shalt not kill" - very strong, very clear, and quite intimidating; and then there is the legal prohibition to kill, similarly strong, clear, and intimidating, considering that the sanction for violations of this norm are the most severe ones, and in some cases it is tit for tat - whoever kills must be killed. Kant argues that whoever kills must die (and it is a categorical duty, not a hypothetical one) and 'no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there can be no equality of crime and retribution unless the perpetrator is judicially put to death.

But how will a cool observer proceed? He will look at the exact meaning of the word "to kill", and she will then search for phenomena that fit this meaning. To kill, of course, means to put an end to the existence of an organism. We can kill humans, animals, and plants, not stones. We kill plants, like, e.g., trees, by chopping them to sell the wood and to make place for farm land, but we also kill plants by harvesting potatoes, cereals or other food-stuff. We kill animals mostly for producing food for us humans, and we kill humans for many reasons. We kill humans in self-defense and in anger, jealousy. We kill because of greed and hate, and sometimes people kill themselves. We also kill because we are told to do so, because we are members of a hierarchy, a cartel, a gang, a militia, a group of mercenaries, or regular soldiers. The most important reason, why people kill other people, is not deviance and non-conformity, it is not an anti-social personality disorder, but rather the contrary. The most important reason to kill is obedience. There are, of course, the so-called crimes of obedience (Kelman), but those only account for a minority of killings. Most killings are legal killings of obedience. From a legal point of view, they are not worth mentioning, because they are juridically unproblematic. From a cool observer's perspective, though, the legal killing of hundreds of thousands of civilians and of combatants in wars and civil strife is remarkable.

Add to this the killing of animals in slaughterhouses and the killing of trees and plants, and find out that the human animal is not as peaceful as it seems, but that the position on top of the food chain means to be a killer, a great killer. Not all animals kill also members of their own kind, but the human animal does, and in that sense it is "worse" than many other animals, but not "the worst" (José María Gómez et al. 2016).