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We are predisposed to cooperate with each other, because living in groups gave us substantial long-term survival advantage. But we are also born cheaters, because cheating in the right circumstances gave us a short-term survival advantage. As these two conflicting tendencies tugged for our souls, we simultaneously evolved punishment behaviors—a way to dampen cheating by increasing the short-term costs to the cheater. But our punishment instincts are infected with the same conflict—our brains have been built to punish cheaters, but that punishment urge is intrinsically restrained, in no small part because we all know that we, too, are cheaters.

Is capital punishment moral? Is it necessary?

Since the late 19th century in the United States, critical responses to the spectacle of pain in executions have continued to spur ardent calls for the improvement of killing technology. One of the most prolific legal theorists of capital punishment, Austin Sarat, has concisely referred to this history: “The movement from hanging to electrocution, from electrocution to the gas chamber, from gas to lethal injection, reads like someone’s version of the triumph of progress, with each new technique enthusiastically embraced as the latest and best way to kill without imposing pain.” Recent debates over the administration of midazolam and pentobarbital, and in what dosage, seamlessly integrate themselves into Sarat’s grim progress narrative. The inexhaustible impulse to seek out less painful killing technologies puts a series of questions in sharp relief: What is, and should be, the role of pain in retributive justice? And how has the law come to rationalize the condemned’s experience of pain during an execution? While the Eighth Amendment stipulates the necessity of avoiding “cruel and unusual punishment,” in 1890 the Supreme Court decided this clause could mean that no method of execution should impose “something more than the mere extinguishment of life.” And then, in 1958, the court also determined that the amendment should reflect the “evolving standards of decency that mark the progress of a maturing society.” If we were to consider the “standard of decency” in our society today, we would be pushed to ask: By what moral order have we continued to establish the “extinguishment of life” as something “mere,” and the pain of the condemned as excessive? In other words, how has the pain experienced during an execution become considered cruel and unconstitutional but not the very act of killing itself? We should dial back to older histories of law to tap into pain’s perennially vexed role in retributive theories of justice.

A victim of childhood sex abuse was allowed to end her life under Dutch euthanasia laws after doctors and psychiatrists concluded that the woman's post-traumatic stress disorder and physical health were incurable. The death of the Dutch woman in her 20s has fuelled the ongoing debate on the ethics of euthanasia in Britain, with some MPs arguing that allowing a victim of sex abuse to die is equivalent to punishing the victim.

I think that torture is almost always morally wrong and that, for moral reasons, it ought to be prohibited absolutely in law. Torture has been used to extract confessions, to terrorize people associated with the victims, to punish presumed wrongdoers, and even to gratify and amuse sadists and bullies. These uses are always morally wrong. The only use of torture that has any chance of being morally justified is to gain important information. But even when torture is used to gain information, the torturers are usually wrongdoers seeking information that will help them to achieve their unjust aims. And even when those seeking information have just aims, their victims are often innocent, or lack the information sought, or are sufficiently strong-willed to mislead their torturers, so that the torture is ineffective or counterproductive. Still, both those pursuing unjust aims and those pursuing just aims will continue to be tempted to engage in torture if they can do so with impunity. Hence, torture has been widely practiced, though its use has almost invariably been wrong. This means that the overriding goal of the law ought to be to deter the wrongful use of torture, even at the cost of forbidding the use of torture in those rare cases in which it might be morally justified. The legal prohibition ought therefore to be absolute; for those who think that torture would be advantageous to them will always be tempted to try to exploit any legal permission to use it.

I think that torture is almost always morally wrong and that, for moral reasons, it ought to be prohibited absolutely in law. Torture has been used to extract confessions, to terrorize people associated with the victims, to punish presumed wrongdoers, and even to gratify and amuse sadists and bullies. These uses are always morally wrong. The only use of torture that has any chance of being morally justified is to gain important information. But even when torture is used to gain information, the torturers are usually wrongdoers seeking information that will help them to achieve their unjust aims. And even when those seeking information have just aims, their victims are often innocent, or lack the information sought, or are sufficiently strong-willed to mislead their torturers, so that the torture is ineffective or counterproductive. Still, both those pursuing unjust aims and those pursuing just aims will continue to be tempted to engage in torture if they can do so with impunity. Hence, torture has been widely practiced, though its use has almost invariably been wrong. This means that the overriding goal of the law ought to be to deter the wrongful use of torture, even at the cost of forbidding the use of torture in those rare cases in which it might be morally justified. The legal prohibition ought therefore to be absolute; for those who think that torture would be advantageous to them will always be tempted to try to exploit any legal permission to use it.

It seems we may all be vulnerable to moral illusions the ethical equivalent of the bending lines that trick the eye on cereal boxes and in psychology textbooks. Illusions are a favorite tool of perception scientists for exposing the workings of the five senses, and of philosophers for shaking people out of the naïve belief that our minds give us a transparent window onto the world (since if our eyes can be fooled by an illusion, why should we trust them at other times?). Today, a new field is using illusions to unmask a sixth sense, the moral sense.

The first hallmark of moralization is that the rules it invokes are felt to be universal. Prohibitions of rape and murder, for example, are felt not to be matters of local custom but to be universally and objectively warranted. One can easily say, “I don’t like brussels sprouts, but I don’t care if you eat them,” but no one would say, “I don’t like killing, but I don’t care if you murder someone.”The other hallmark is that people feel that those who commit immoral acts deserve to be punished.

Until recently, it was understood that some people didn’t enjoy smoking or avoided it because it was hazardous to their health. But with the discovery of the harmful effects of secondhand smoke, smoking is now treated as immoral. Smokers are ostracized; images of people smoking are censored; and entities touched by smoke are felt to be contaminated (so hotels have not only nonsmoking rooms but nonsmoking floors). The desire for retribution has been visited on tobacco companies, who have been slapped with staggering “punitive damages.” At the same time, many behaviors have been amoralized, switched from moral failings to lifestyle choices.

From primary school to university, I witnessed countless such public humiliations: for fighting, cheating or petty misdemeanors. Caught committing any of these offenses and you may have to stand before the student body, criticizing your own “moral flaws,” condemning your character defects, showing yourself no mercy, even exaggerating your faults. Only those who have endured it can know the depth of shame one feels.

Kaepernick refused to stand as a form of political expression—to protest, he said, the oppression of African-Americans by the police and others. The Supreme Court case arose out of a related First Amendment right—to exercise the freedom of religion. In 1943, at the height of the Second World War, the court heard a challenge by a Jehovah’s Witness family to the expulsion of their daughters, Marie and Gathie Barnette, from a school in West Virginia. The sisters had been punished for refusing to salute the flag and repeat the Pledge of Allegiance, something state law required of students.