Who’s "innocent"?

In Slate William Saletan argues that President Bush is being inconsistent in opposing embryonic stem cell research (or at least federal funding thereof) and supporting the death penalty. According to Saletan, if Bush thinks it’s wrong to “take a life in order to save a life” he ought to extend that logic to the death penalty.

Matthew Yglesias mentions the obvious rejoinder, namely that the death penalty involves the taking of a guilty life (or at least it’s supposed to), whereas human embryos, if you agree they are fully human lives, are innocent and can’t be said to deserve death. However, Yglesias also points out that hardly anyone thinks that it’s always wrong to cause the deaths of innocents, since during war most people accept that it’s permissible to kill some number of innocent people, at least unintentionally. This, however, led to some confusion in the comments thread, with people wondering who is “really” innocent. Someone even mentioned that according to the doctrine of Original Sin, no one is really innocent.

This misses the point, though. The distinction between guilty and innocent for the purposes of just war theory has very little to do with who, if anyone, deserves death. This is why the combatant/non-combatant distinction, while not perfect, is preferable.

The point is that just war theory licenses lethal force only against those who are actively taking part in some act of aggression. This is why a conscripted soldier, who in terms of desert may be just as innocent as a civilian, is a legitimate target, but someone going to his job in a pencil factory isn’t. The goal is to stop the aggression, not to inflict punishment on those who most “deserve” it. The reason that it’s wrong to directly target the innocent (i.e. usually civilians, but also, e.g. the wounded) is that they aren’t a threat.

Granted the line can become fuzzy. One might argue that a civilian working in a munitions factory is a legitimate target. But this doesn’t show that there are no clear-cut cases. A nursing home is not a legitimate target even if all the residents support their government’s war policies and are perhaps less “innocent” than the conscript soldier.

This is different from the death penalty, though, since the offender is already in custody and presumably no longer engaged in the act which might require lethal force to stop. The death penalty is usually justified on the grounds of its deterrence effect and/or on the grounds that the offender deserves to be executed on retributive grounds. In the latter case moral guilt is obviously crucial, but that makes the case different from that of war.