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Notes -
Thanks for expanding.
I believe you need a guilty act too. And if the victim was clearly a bad person, and he deserved it, then society suffers no damage, and there's no guilty act. Is mens rea (thoughtcrime) alone, sufficient?
Yes, of course there must also be a criminal act. In murder or manslaughter, the criminal act is causing the death of the victim. In fraud, it is making a false representation. But you are trying to import a concept ("the victim was a bad guy, so there is no crime") which is utterly foreign to Anglo-American jurisprudence. That is fine, but you obviously can't complain because, in this particular case, the system is following principles that are not only well-established but also foundational.
What about capital punishment? Is that murder, or is there no crime because the victim was a bad guy?
Murder is generally defined as an "unlawful" killing. So that is why capital punishment is not murder.
Your answer just begs the question, mine makes sense.
At least try to justify the law. Perhaps you could argue that the executioner does not have mens rea, and therefore it's fine. It's a tragedy when a convicted murderer dies, and so on.
No, it answers your question. You asked whether capital punishment is not "murder" because the victim is deemed a bad guy. The answer is no, because there is a different reason that capital punishment is not "murder": because an execution is not an unlawful killing.
As for mens rea, an executioner clearly has the mens rea required for murder: The mens rea required for murder is malice aforethought, which is usually of two kinds, one of which is actual malice, which is the intent to kill. The executioner clearly has the intent to kill, so he acts with actual malice, and so has the mens rea necessary for murder. But the killing is not unlawful, because states with capital punishment obviously provides that an intentional killing by an executioner of a person who has been sentenced to death is not an unlawful killing. Therefore, despite causing the death of a person while acting with the mens rea required for murder, an executioner is not guilty of murder.
Similarly, in California, the killing of a fetus is murder. See Penal Code Sec 187(a) ["(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."]. But, does that mean an abortion is murder? An abortion is an intentional killing, so the mens rea is satisfied. But, an abortion is not murder because the law goes on to explicitly state that an abortion is not unlawful:
The question that concerns us is why it is lawful, not whether it is lawful. For example, when I asked you earlier about the moral character being irrelevant, you understood that merely describing the law would not answer my question.
The law could define the killing of the president's enemies, redheads, fishermen, or any other group, as 'not unlawful killing' like it does for executions, and your answer would remain the same. And that's all good and well, but it doesn't answer the only interesting question, why. My answer does discriminate between the killing of random fishermen and convicted murderers.
Similarly, for the question 'Is abortion murder? ' a respectable answer might be of the form 'No, because the will of the mother takes precedence, or the fetus is not a person, etc', not 'No, the law in california says it isn't' . I couldn't care less what the law actually says, all the questions are about morality, what the law should be.
No, your question was not why is it lawful. It was whether the moral status of the victim was the determinant of its lawfulness. That, after all, is the reason we are having this discussion: because of your query re why the moral status of the victim is irrelevant to self-defense.
As I said previously, you are free to argue that the moral basis of Anglo-American criminal law is wrong. But that does not change my point, which has never been about what the law should be, but what it is, ie, that treating Neely's prior acts as irrelevant to Penny's legal culpability is 100% consistent with 100s of years of jurisprudence.
No, the why is my only question. If you are incapable of providing a justification for the difference between execution by the state and murder aside from ‘one is legal, and the other isn’t’ , then the discussion is pointless. I'm a german with a bike, the details of NYC subway jurisprudence have no real impact on my life.
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