The UK government’s decision to waive objection to the death penalty in the case of two Islamic State fighters facing trial in the US led to calls for a revival of the Treason Act of 1315. Edward Winters looks at the morality of the death sentence and why restoring the Treason Act would be dangerous.

A friend of mine recently received a Facebook comment. It came in the form of two paragraphs with sweeping assertions designed to humble the recipient from the commentator’s superior vertiginous height. It concerned the UK government’s decision to waive the request for assurance that two Britons would not receive the death penalty if convicted in the USA for acts of terrorism.

Alexanda Kotey (left) and El Shafee Elsheikh were captured by Syrian Kurdish forces

Sajid Javid’s Home Office is being urged to look into the possibility of reviving the use of the original Treason Act of 1351, which remains on the statute book. That would enable the UK to imprison for life, if convicted, those Britons who take up arms against the state. In the case in point, we are talking about the last two  Islamic State so-called ‘Beatles’, Alexanda Kotey and El Shafee Elsheikh.

Under such a revived law, there would be no need to send suspects of terrorism to the USA and hence no need to waive (or not) the clause that would exempt the alleged offenders from the death penalty, if found guilty.

Here are the two Facebook paragraphs my friend received:

There’s no such thing as an unbendable moral value. Morality isn’t objective.  And- if it were objective- what makes you think that it’s a fact that the death penalty is wrong?

To say that opposition to the death penalty is an unbendable moral principle is to say that morality is fixed That there are immutable moral facts. But that view is nothing more than a prejudice.

My friend sought advice. What might be said?

Moral realists believe that there are moral facts. So that, for every moral assertion, there is a truth value attached to it: True/False. No one, even the moral realists think it’s easy to provide truth conditions for moral assertions – to decide which assertions are true and which false. Moral realists remain in the minority; but not so moral objectivists, a far broader category.

What needs to be discussed is the nature of the objectivity if it doesn’t reach as far out as moral realism.

Objectivists look at moral intuitions and try to get some inkling of their measure, weighing one intuition against another and hoping to come to some sort of agreement upon which ‘we’ can settle. This looks on the face of it to be merely pragmatic.

But philosophers try to persuade by argument that certain features of morality are hierarchically structured so that there are principles (arrived at) that we take to be more central than (or higher up than) others. This way of structuring (or building) a system of moral precepts is objective in that it is tried and tested – but not infallible. Objectivists are not obliged to go that far.

Now, if we engage moral objectivists of this stripe, we shall find that there is something like, but nothing more than, settlement upon matters moral; and from that settlement we can establish principles. Those principles are, to repeat, at the centre (or higher up the hierarchy).

Security minister Ben Wallace provided a statement to the House of Commons.

Nearly all the opposition questions (and some Tory liberals) were concerned with the matter of principle and its being broken. That is the worry. Since, if you renege on an obligation that you count as central, then the repercussions of that are much stronger than if you tinker about with your intuitions at the edges. You know, ‘Should I have gone through that red light in my hurry to get to the hospital?’ (Who cares?) ‘We should never condone the implementation of the death penalty,’ looks much more principled. It is.

The concern expressed by parliamentarians is with principle. Should we waive the request that these Britons are not subject to the death penalty? The waiving of a central principle is dangerous for the moral structure of our conception of ourselves.

That is why the Home Office is considering the revival of the Treason Act. But we should be careful. This is a swing to the right and it is regressive in nature. And, further, it is another step in the march toward nationalism.

It is but a few years since anti-terrorism legislation gave us the Regulation of Investigatory Powers Act (Ripa). Not long after the Telegraph printed a worrying piece under the heading, ‘Half of councils use anti-terror laws to spy on “bin crimes.“‘ Local councils were using anti-terrorist measure to police the abuse of council by-laws. We should worry about the threats to our freedom from such envisaged legislation.

The question arises as to whether the two accused men are Britons in any case. Rumour has it they have had their citizenship revoked. Wallace sought shelter in this shadow at one point.

Treason, as conceived in the 14th century, contains a conception of a state as sanctified by divine proclamation. The wickedness of treason is sinful, and punishment is seen as purgation, rather than as earthly justice. Do we want to think of the criminality of two such as these, in terms borrowed from medieval faith?

Is it not better, in post-enlightenment times, to think of these crimes in terms of justice seen and measured according to secular reason?

Perhaps, ideally, these stateless men should be treated as prisoners of war; and tried, not for their hostility to the UK, but for their crimes against humanity

The morality of stateless individuals should be considered from an international perspective, which the idea of treason contrives to invert by putting nationalism above the international consensus we might hope (and expect) to bring settlement to such matters.

The revival of the Treason Act is worrying on at least this account.


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