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Mikhail on the Universality of Homicide Prohibition

By Lawrence Solum

John Mikhail (Georgetown University Law Center) has posted Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law (Brooklyn Law Review, Forthcoming) on SSRN. Here is the abstract:

Whether moral universals exist is one of history's most widely debated topics. Virtually everyone has an opinion about it, and much ink has been spilled over the matter. For serious researchers, one might expect that broad and vaguely defined questions like this would give way to more focused inquiries; for example, whether any specific acts, such as murder, are universally prohibited, and if so whether the content of these prohibitions is largely uniform across cultures or varies significantly among different societies. Hardly any systematic research has been done to examine this question, however. The leading social scientific studies of homicide contain valuable insights, but they do not squarely address the existence of substantive moral universals or their codification in positive law. Although anthropologists have undertaken to study the role of intent, causation, and other elements of blame and responsibility in different cultural contexts, the ethnographic record is likewise largely devoid of the kind of detailed analysis of mens rea, actus reus, and available defenses or their civil law counterparts that might uncover the precise structure of a universal prohibition against homicide or its basis in human cognitive capacities. As a result, even answers to relatively simple questions, such as whether every known society utilizes an intent requirement or recognizes some kind of insanity, necessity, or mistake of fact defense, remain elusive and unavailable.

Drawing on several years of research, this paper offers the first systematic comparative analysis of homicide norms in a large number of geographically and culturally unrelated jurisdictions. It draws on a unique database still being assembled of how the homicide prohibition is codified in several hundred jurisdictions around the world, including all 204 member-states of the United Nations and the Rome Statute of the International Criminal Court. The initial picture that emerges from this research is that legal systems and thus individuals throughout the world recognize that intentional killing without justification or excuse is prohibited, and that self-defense and insanity, and to a lesser extent necessity, duress, and provocation, can sometimes be potentially valid justifications or excuses. These are noteworthy generalizations that go far beyond anything in the existing legal or scientific literature in uncovering the properties of a specific universal or near-universal norm against homicide. The database itself will likely be useful to anthropologists, cognitive scientists, legal scholars, and other researchers by improving our understanding of the structure of human moral intuitions and the biological and cultural processes that generate and support them.

The paper is scheduled to appear in a Symposium Issue of the Brooklyn Law Review on the topic, Is Morality Universal and Should the Law Care? It is the first installment in a series of reports growing out of this research project, which bears directly on the question of moral universals and marks a potentially significant turning point in our understanding of this topic.

Mikhail's research program, which lies at the frontier of empirical and experimental jurisprudence, is exciting and important. Highly recommended. Download it while its hot!

Full post as published by Legal Theory Blog on March 23, 2010 (boomark / email).