Wednesday, March 30, 2011

Catholicism, conservatism, and capital punishment

Catholic teaching on the death penalty – or rather, yet another simplistic and misleading presentation of the Church’s teaching – is in the news again.  I plan to write up a blog post on this latest controversy, but in the meantime I thought it would be worthwhile reprinting the lengthy treatment of the subject I wrote for the old Right Reason group blog back in 2005.  (The original post and the combox discussion it generated can still be found here via the Wayback Machine.  But Wayback Machine links are temperamental, so it will be useful to give the post a new home.)

Chris Tollefsen has given a very clear presentation and defense of the anti-capital punishment position, from a point of view that is avowedly Catholic and natural law-oriented. My point of view on these matters is also avowedly Catholic and natural law-oriented. And yet, on this issue, I think that he is very gravely mistaken. Chris says that capital punishment "is always and everywhere wrong." I maintain that such a claim is utterly impossible to reconcile either with natural law or with Catholicism. How can people who seem to have the same premises reach such diametrically opposed conclusions? To answer this question, I want first to make a few remarks about natural law and Catholicism before turning to capital punishment itself. The upshot of my discussion will be that the natural law and the Catholic tradition both entail a view of capital punishment that is unmistakably conservative (rather than "liberal and progressive," as Chris says his own view is).

This will be a somewhat long post, and for that I apologize. But the topic is extremely important, the background issues are complex, and the confusions on the part of many readers – especially regarding natural law theory and Catholic teaching on this subject – might, I fear, be many, so I think a somewhat detailed treatment is called for.

The first thing to be said is that while both Chris and I would use the expression "natural law" to describe our respective approaches to moral questions, it is evident that we do not use it in the same way. Those who are unfamiliar with recent developments in Catholic moral thought might not realize that there are (at least) two general theories going under the name "natural law" these days, and they are very different. On the one hand, there is what we might call the "traditional" or "classical" natural law theory, one of the key assumptions of which is that ethics crucially depends on certain traditional metaphysical theses, such as realism about universals (of the sort historically associated with Plato and Aristotle), a belief that there are final causes in nature, and so forth. On the other hand, we have what has come to be known as the "new natural law theory," which tries to reconstruct a broadly natural law approach to ethics without appealing to any of these metaphysical assumptions. For the older, classical natural law theory, the "natural" in natural law alludes both to human nature, in terms of which the content of morality gets defined, and to the fact that knowledge of at least the basic moral truths is accessible to us naturally (as opposed to supernaturally), through pure reason (as opposed to divine revelation). For the "new natural law theory," by contrast, "natural" has only the second connotation, and advocates of the theory tend to eschew making metaphysical claims about human nature of the sort associated with the classical approach.

The classical or traditional approach to natural law is probably more in line with what the average non-expert thinks of when he hears the expression "natural law" (though I should add that the average non-expert’s idea of the theory is also usually riddled with several very serious misunderstandings of it, as I have tried to show in some previous posts). This is only to be expected given that this is the approach to natural law that prevailed in the Catholic Church for a very long time prior to Vatican II, and was reflected in the standard manuals of moral theology that were once in common use. The "new natural law theory," by contrast, is a very recent invention, and was developed by thinkers (most notably Germain Grisez and John Finnis) who seem impressed by various standard objections made by modern philosophers against classical natural law (such as the appeal to the so-called "fact/value" distinction) and/or are unwilling to rest their moral arguments on metaphysical premises that are far more controversial today than they were in previous centuries. These thinkers also seem inclined to take on board certain moral concepts that derive more from modern (and especially Kantian) thinking than they do from the historical natural law tradition.

Now while the classical approach takes the basic truths of morality to be accessible to pure reason, this by no means entails that it excludes theological considerations from playing a role in ethics. Indeed, the existence of God and the immortality of the soul are, from the classical natural law point of view, metaphysical truths no less capable of demonstration than is the existence of formal and final causes and the like. So for the classical view, there is no reason to ignore these truths when reflecting on morality. Indeed, it would be irrational to do so, for if there really is an Author of nature, then His intentions can hardly fail to be relevant to a proper understanding of our moral obligations, and if human beings have immortal souls, then this is hardly something that can reasonably be ignored when determining for moral purposes what the final end or good for man is.

The “new natural law theory,” however, prefers to emphasize purely secular (in the sense of “worldly”) considerations. To be sure, its proponents typically list “religion” as among the several “basic goods” from which all our moral obligations derive, but this seems to be intended in a kind of anthropological or psychological sense rather than a metaphysical one. For the “new natural law” approach, it isn’t that determining the content of morality crucially depends on knowing whether there really is a God or whether we really have immortal souls (though of course the theory’s advocates don’t deny either the existence or the knowability of God or the soul); rather, what is crucial is that we have a need for religious fulfillment of some broadly defined sort, a need which might in principle be recognized even by someone who doesn’t believe that there is any objective metaphysical reality corresponding to the object of religious belief. The other “basic goods” listed by new natural law theorists – life, knowledge, “play,” and the like – similarly tend to get defined in decidedly “this worldly” terms rather than in metaphysical ones. It is, you might say, from the subjective perspective of the person rather than from the objective ontological perspective that the content of the basic goods gets determined. There is nothing in them that requires appeal to formal and final causes, or anything else of that sort.

Now Chris, I gather, is more or less of the Grisez-Finnis school of thought. I, on the other hand, am quite firmly of the old school. And this, I believe, is surely a large part of the reason for the difference between us regarding capital punishment (and, as some earlier exchanges on the Right Reason blog indicate, regarding other issues too). That does not mean that I think that the case for capital punishment necessarily has to rest on any of the specific metaphysical premises I mentioned, including the theological ones. In fact I think that as good a case can be made for it on purely secular grounds as can be made for any other moral claim. Nor do I believe that the “new natural law” approach itself actually entails an anti-capital punishment position. I do think, however, that an adherent of that view is at least more likely to fall into that particular error (as I see it) than a classical natural law theorist would, for reasons I will explain in a moment.

More puzzling to me is why Chris thinks, as he seems to (from his most recent post and earlier ones), that Catholic teaching favors his view of capital punishment. Presumably the reason has something to do with Pope John Paul II’s statements on the matter, and of course, I do not deny that the pope was opposed to capital punishment. But as is well known, John Paul II’s views on this subject were a departure from traditional Catholic attitudes, which have always upheld not only the in-principle legitimacy of the death penalty, but also its appropriateness in many practical circumstances. (See this important article from First Things by Avery Cardinal Dulles – who is himself in agreement with John Paul II’s views – for a survey of the history of these attitudes which shows just how unanimously they were held in the Church until very recently.) And in Catholic theology, traditional teaching, especially where it is long-standing (as the traditional view of capital punishment is, going all the way back to the Bible) is normative. A pope’s primary obligation is to preserve the traditional teaching of the Church in matters of faith and morals, and anything he says that concerns faith and morals must be interpreted in the light of tradition. This is enough all by itself to rule out any absolute condemnation of capital punishment of the sort Chris seems committed to (though there is, as we shall see, much more to be said).

None of this conflicts with the Catholic view of papal infallibility or with the pope’s authority to issue binding moral instruction to the Church and its members. Infallibility pertains to the normal day-to-day reiteration of the Church’s traditional teaching in matters of faith and morals (the “ordinary magisterium”) and to acts in which the pope explicitly declares and defines ex cathedra some teaching as binding on Catholics (the “extraordinary magisterium”). It also applies only to matters of general principle, not to concrete applications of principle to contingent circumstances (known among Catholics as “prudential judgments”). So, for example, if a pope were solemnly to declare and define that “just war” doctrine is authoritative and binding on all Catholics, his teaching would, from the Catholic point of view, have to be regarded as infallible. But if he were to issue a statement to the effect that some particular war (such as the Iraq war) either did or did not meet just war criteria, his judgment would not be infallible. Now the pope certainly never made any ex cathedra statement about capital punishment; and the ordinary magisterium of the Church, understood (as it must always be) in the light of the teaching of two millennia, if anything supports the defenders of capital punishment rather than its critics. The only possible way to interpret John Paul II’s statements on this matter, then, would seem to be as prudential applications of moral principle. Even though the death penalty is, from the Catholic point of view, not intrinsically evil – something that John Paul II not only did not deny but explicitly re-affirmed – it was, in his prudential judgment, better to refrain from using it if we can effectively “protect people’s safety from the aggressor” by locking him up instead.

And yet, Chris says that capital punishment “is always and everywhere wrong, not just prudentially wrong here and now.” How he would square such a claim with the Church’s consistent teaching of 2,000 years, or indeed with John Paul II’s own expressly stated teaching, I have no idea. But perhaps he was speaking incautiously. Perhaps what he really meant to say was merely that any use of capital punishment for some purpose other than that of “protecting people’s safety from the aggressor” would be wrong. In particular, maybe he means to deny that it can ever be legitimate to apply capital punishment as a means of securing retributive justice. This does, in fact, seem to be the view of some Catholics opposed to capital punishment, who would defend their view on the grounds that John Paul II emphasizes the protection of the innocent, rather than retribution, as a justification for capital punishment under some circumstances.

Even this weaker claim is flatly incompatible with traditional Catholic teaching, though. The constant teaching of the Church has always been, not only that capital punishment is in principle legitimate, but also that it is in principle legitimate precisely as a means of securing retributive justice. There is nothing in anything that John Paul II ever said that contradicts this, and again, anything he did say necessarily has to be interpreted in the light of this traditional teaching. This is not the opinion merely of those Catholics who support capital punishment, but also of some who oppose it. For example, Avery Cardinal Dulles – surely a theological authority of considerable stature – has concluded on the basis of his study of the Catholic tradition that:

“If the Pope were to deny that the death penalty could be an exercise of retributive justice, he would be overthrowing the tradition of two millennia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture (notably in Genesis 9:5-6 and Romans 13:1-4). I doubt whether the tradition is reversible at all, but even if it were, the reversal could hardly be accomplished by an incidental section in a long encyclical [i.e. John Paul II’s Evangelium Vitae] focused primarily on the defense of innocent human life. If the Pope were contradicting the tradition, one could legitimately question whether his statement outweighed the established teaching of so many past centuries.” (National Catholic Register March 24-31, 2002)

Accordingly, Dulles concludes that John Paul II’s view must be interpreted as a prudential judgment (with which, again, Dulles happens to agree) – a fallible application of traditional principles to contingent circumstances, not a denial of traditional principles. Further support for this judgment is provided by an even more authoritative source – the current pope, Benedict XVI, who while still a cardinal wrote, in a now famous letter from just last year regarding the duties of Catholics in public life, that:

“Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.” (emphasis mine)

Now, not to put too fine a point on it, but if the pope himself would be “overthrowing the tradition of two millennia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture” if he were to deny the legitimacy of retribution as a ground for applying capital punishment, how can Chris’s view possibly be characterized as a “Catholic” view of capital punishment? How, if Chris is right, could a Catholic who supports capital punishment possibly present himself in good conscience for Holy Communion, given that he would in that case be guilty of advocating something intrinsically evil? How could Catholics legitimately disagree about the death penalty, but not abortion and euthanasia, if, as Chris seems to think, these are all equally violations of human dignity? Either the traditional teaching of the Catholic Church is wrong, or Chris is.

I realize, of course, that many readers would just shrug and say that it is the Church that is wrong. But the point is that I don’t see how Chris can do this, given that he has described himself on this blog [i.e. Right Reason] as a “traditional Catholic,” one who acknowledges the authority of the traditional teaching of the Church in matters of faith and morals. The very core of the Catholic view of this authority is the idea that God would not allow the Church to teach a fundamental error regarding faith or morals for 2,000 years – that’s the very point of an institutional Church, as an infallible guarantor of doctrine. To suggest that the Church has been wrong about capital punishment implies that Catholicism – which claims infallibility for the Church on basic principles of faith and morals – is false. Obviously Chris wouldn’t want to say this, but then it seems to me he cannot consistently take the view he does regarding capital punishment.

Let me turn now to the philosophical grounds for supporting the legitimacy in principle of capital punishment as a matter of retributive justice. The basic argument is actually quite simple. If we accept that people can deserve to be punished for their offenses and that a punishment ought to be proportional to the offense, then it follows that the worse the offense is, the worse is the punishment deserved, and that the worst offenders deserve to get the worst punishments. That “the punishment ought to fit the crime” doesn’t just entail that jaywalkers shouldn’t be given a penalty of a month in jail; it also entails that bank robbers shouldn’t be given (merely) a month in jail either. The former offense deserves a lesser punishment, the latter a greater punishment. But a murderer deserves a worse punishment than a bank robber does; and a mass murderer, or a murderer who also rapes and tortures his victims, deserves a greater punishment still. If serial bank robbers, kidnappers, and (according to even most death penalty abolitionists) one-time murderers deserve life in prison, then, worse criminals deserve an even worse punishment. And it would be absurd to deny that at some point that punishment is going to be death. Where exactly an offender crosses the line from deserving less-than-death to deserving death (one murder? two? twenty? murder plus rape? murder plus torture? murder while using a racist, sexist, or homophobic epithet?) is a question we need not settle here. What matters is that at some point that line is going to be crossed. This suffices to show that capital punishment is sometimes justifiable in principle as a matter of retributive justice.

It also suffices to show the worthlessness of most of the stock objections to capital punishment. For example, the bumper sticker question “Why do we kill people who kill people to show that killing people is wrong?” assumes falsely that what death penalty advocates (or most people for that matter) think is wrong is “killing people,” full stop, so that they are caught in a contradiction. In fact, what they think is wrong is killing innocent people, people who do not deserve to be killed. And when we phrase the question with this is mind – as “Why do we kill guilty people who kill innocent people to show that killing innocent people is wrong?” – then it is obvious that there is no contradiction at all. Of course, this question has its defects as a bumper sticker slogan, and since simple-minded bumper sticker sloganeering is par for the course with opponents of capital punishment – and also since the answer to this new question is blindingly obvious (i.e. “Because justice requires us to kill them”) – it is no surprise that they prefer not to ask it.

Similarly, to claim that capital punishment is “state-sanctioned murder” or “cruel and unusual” is simply to beg the question, since if the argument just rehearsed works, then the punishment is sometimes deserved, and thus cannot be inherently unjust (which murder is, by definition) or excessive in the way cruel and unusual punishments are. (See David Oderberg’s very fine chapter on capital punishment in Applied Ethics: A Non-Consequentialist Approach for a more detailed treatment of these and other objections to the death penalty.)

Now to reject the basic argument for capital punishment outlined above would, it seems to me, entail denying either that anyone ever deserves to be punished, or that a punishment ought to be proportional to the offense. But to deny these claims would be to deny the very possibility of genuine moral evaluation. It would also, incidentally, constitute another conflict with the Catholic tradition, the very foundation of which is the idea that human beings deserve to be punished for their sins and need salvation from this punishment. Indeed, what they need salvation from, according to the Catholic tradition, is a punishment which is both richly deserved and far, far worse than the death penalty, namely eternal damnation. (Which gives us yet another reason to dismiss any suggestion to the effect that Catholic teaching implies rejecting the legitimacy of capital punishment as retribution: if a person can deserve Hell, he can surely deserve a few seconds in the electric chair.)

All of this brings us back to the “new natural law” reasoning that Chris appeals to in defense of his opposition to capital punishment. Chris claims that since life is one of the basic goods that determine “the parameters of the morally permissible,” it can never be legitimate intentionally to deprive someone of his life. Now in my view the argument concerning desert and punishment outlined above suffices to show that Chris’s argument is just a non sequitur. Punishment consists of depriving someone of a good, and when punishment is deserved it follows that the person has lost any moral claim to that good. And it therefore follows in turn that when what the person deserves is, due to the gravity of his offense, the penalty of death, he has lost any moral claim to his life. So even a “basic good” like life is something a person can in principle legitimately be deprived of. This in no way entails a denial of the “dignity” of the person executed, contrary to what Chris seems to think. On the contrary, it affirms his dignity by treating him as a free and responsible individual who must be held accountable for what he does, rather than (as is common among death penalty opponents) regarding him as a mere cog in a social machine, less responsible for his own actions than is the “society” that molded him into what he is. (Hegel, following a hint of Kant’s, went so far as to say that given his dignity as a person, an offender has a right to be punished. Alas, they don’t make Kantians or Hegelians like they used to.)

(I should also note that in connection with his claims about the dignity of the offender, Chris deprecates the organic view of society that Aquinas and other traditional defenders of capital punishment were committed to, and insinuates that it lay behind “the historical record of the twentieth century” – a not-too-subtle allusion to the horrors of Nazism and Communism. Let us leave aside the fact that it is only with the greatest inattention to conceptual precision that one could hope to assimilate totalitarian collectivism to Thomistic organicism. The salient point is that what led to these horrors was surely at least in part the view that the individual human being is merely the plaything of impersonal Darwinian biological and/or socioeconomic forces, rather than a freely choosing agent responsible for his own actions – precisely the view of so many of the death penalty opponents Chris wants to associate himself with. So before Chris throws the “Holocaust” stone at defenders of capital punishment, he ought to keep in mind that the house he shares with the Sr. Helen Prejeans of the world is a glass one.)

Now if the “new natural law theory” is poorly interpreted as strictly entailing hostility to capital punishment, it is, as I suggested earlier, not too hard to see why its advocates might nevertheless be tempted to such hostility. If you limit yourself in your moral reasoning to this-worldly considerations, it is not surprising if you might inadvertently come to overestimate the value of life in this world. A classical natural law theorist, who quite consciously factors into his moral theorizing that human beings have immortal souls and an eternal destiny, is far less likely to do this. That is not to say that theorists of the latter sort underestimate the value of life in this world; after all, they are, no less than “new natural law” theorists, absolutists when it comes to the intrinsic evil of intentionally depriving innocent human beings of their lives. But when it comes to evaluating the appropriateness of various punishments for the guilty, they are not likely to think of death as a loss of such incalculably horrific magnitude that it starts to seem intuitively plausible that to deprive someone of it must always be an affront to human dignity. Life in this world cannot be a basic good, at least not in the sense required for Chris’s argument, if its point is preparation for life in the next world. It is therefore plausible to regard it as something that can be taken away for the sake of a higher good, viz. restoring a moral order that comprehends both this life and the next.

While “new natural law” theorists are certainly not atheists, and while a commitment to theism is not strictly necessary to the moral defense of capital punishment, there does seem to be at least a psychological and sociological connection between hostility to capital punishment and a kind of “practical atheism,” i.e. thinking and acting as if God did not exist. An obsessive focus on perfecting life in this world and downplaying the idea that it is properly understood only as a prelude to the next world – an attitude that is certainly understandable in atheists, but which has become very common even among Catholics since Vatican II – naturally tends to lead to a desire to extend the natural lifespan, even of murderers, as far as possible and at all costs. It is no surprise that, as Cardinal Dulles (among many others) has noted, “the mounting opposition to the death penalty in Europe since the Enlightenment has gone hand in hand with a decline of faith in eternal life.” And as he further notes, it is also “probably due, in part, to the evaporation of the sense of sin, guilt, and retributive justice, all of which are essential to biblical religion and Catholic faith. The abolition of the death penalty in formerly Christian countries may owe more to secular humanism than to deeper penetration into the gospel.”

Since I think that Dulles’s observations here are pretty obviously correct, I am mystified by Chris’s attachment to the idea, expressed not only in his most recent post but in several other posts he’s made since joining the blog, that the modern world has a deeper understanding of human dignity than previous ages did. I think the truth is precisely the opposite. The medievals regarded human beings as made in God’s image and as possessing immortal souls capable of grasping objective truth, and thus as having as much dignity as it is possible for a bodily creature to have, certainly a dignity far surpassing that of the rest of the natural world. The modern world, by contrast, sees human beings as just one animal among others, differing from the beasts only in degree, their reason being merely a more efficient instrument for finding opportunities to feed and copulate. The medievals emphasized individual guilt, and therefore individual responsibility. Moderns minimize or even deny individual responsibility or guilt, dissolving human agency into the nexus of physical causation, obsessing over our “collective responsibility” for this or that, and emphasizing “structural” rather than personal elements of justice and social life. The medievals regarded the human person as a psychosomatic whole, while moderns tend to see the locus of personhood exclusively in conscious and explicit desiring and planning, effectively obliterating the personhood and rights of the unborn, the comatose, and the mentally retarded. The medievals saw our lives as having epic significance, an arena in which a cosmic battle between good and evil is taking place, climaxing in either eternity in God’s presence or eternity in Hell. The moderns see our lives as a trivial accident which culminates in extinction. What matters, for them, is to get whatever paltry enjoyments out of it one can while it lasts, “morality” consisting of whatever rules rationally self-interested individuals might agree to for the sake of their “mutual advantage” (or something equally anticlimactic and amoral).

True, the rhetoric of “human dignity” has increased in modern times; indeed, modern people simply won’t shut up about it, even as they kill their own unborn children by the millions and live lives of depravity unimaginable to previous generations. If medieval people talked less about their own dignity, it is because they were more concerned about God’s dignity; if modern people talk more about it, it is because they are more concerned with themselves. For most modern people, talk about their “dignity” is, it seems, in reality little more than shorthand for “I can do what I want, and there is no objective or natural moral law that can tell me otherwise.”

Needless to say, the various modern attitudes I have described are far more common among self-described “liberals and progressives” than among self-described conservatives, with many (and indeed perhaps most) of the latter still beholden to something like the medieval view of human dignity and destiny. So if it is “liberals and progressives” who tend to oppose capital punishment and conservatives who tend to support it, surely that tells us something about the moral and philosophical assumptions inherent in most opposition to the death penalty. And what it tells us is the opposite of what Chris seems to think it is. That those assumptions are “liberal and progressive” I do not deny, but for that very reason it seems impossible for them to be much in harmony with either Catholicism or natural law.

26 comments:

Alan Aversa said...

An excellent article on this topic is in The Thomist: EVANGELIUM VITAE, ST. THOMAS AQUINAS, AND THE DEATH PENALTY by Steven A. Long, University of St. Thomas, St. Paul, Minnesota.

Joe said...

Thanks Dr. Feser for the informative article. Doesn't the view espoused by this Chris person, which seems pacifistic really, also entail in a strange way that life isn't divinely important? It seems to imply that no one is worth killing for, nothing worth defending with war or any physical means that may kill someone. If you can't use those means to defend people or yourself, in a backhanded sense it reduces the value placed on those things.

The Maestro said...

Dr. Feser, is it possible for there to be any cases in which the death penalty is mandatory? Just wondering. Thanks.

JMC

Anonymous said...

Ok this may be off topic, but anyway.
According to the Wiki on the Vatican City:
"Pope Paul VI removed the capital punishment statute from the "fundamental law" of Vatican City in 1969, along with other adaptations, four years after closing the Second Vatican Council, announcing the change only in the August 1969 issue of the Gazette, which is published in Latin." I gather this was because the Italian authorities would be responsible for enforcing laws.
Does this have any bearing on the discussion at hand? Thanks.

Anonymous said...

What about the CCC and USCCA?

Neil Parille said...

John Paul 2 was an odd duck. While pious in his own way, if you read works such as Redemptor Hominis it sounds like man, not God, was the center of his thought. Sometimes I wonder if he read too much Heidegger.

A couple of times he called for the reduction of sentences of all inmates, so contrary to what is occasionally said, he didn't think life in prison w/o parole was a good substitute for the death penalty.

Alan Aversa said...

@Mr. Parille: John Paul II was in the Personalism / Lublin Thomism school, so that's not surprising.

he didn't think life in prison w/o parole was a good substitute for the death penalty.

Yes, I have heard pro death penalty arguments say that life in prison without parole may actually endanger the prisoner's soul more, having more exposure to the moral corruption of other prisoners, especially if the prisoner was innocent. Could you please provide a source of Pope John Paul II regarding this? I have not seen one. Thanks

Ismael said...

@ The Maestro:

Yes. If a person is a danger for the community (eg he's a murderer and a very violent person) and there are no adequate ways to contain him from doing harm (such as and adequate prison system), then yes, the death penalty might be the only solution to protect the comunity.

Obviosly in the "western world", since we do have ways to contain potential dangers for society (like a maximum security prison facility) then the death penalty should not be applied.
---

Of course that's not the only example.


In a sense I think of the death penalty as an amputation: undesireble for sure, but in certain conditions necessary.

The Maestro said...

@Ismael:

Thanks for the reply. However, doesn't that presuppose that the purpose of punishment is merely for the sake of protecting the community, rather than for the sake of justice? What I'm interested in knowing here is whether the death penalty might every be mandatory for reasons of justice.

JMC

Tony said...

Obviosly in the "western world", since we do have ways to contain potential dangers for society (like a maximum security prison facility) then the death penalty should not be applied.

Ismael, your comment here is very nearly the same as JPII outlined: the DP should only be used when we cannot protect society from the criminal.

Unfortunately, both for your comment and for JPII's theory, it simply doesn't fadge with reality or with traditional teachings about justice and punishment all that well. No matter what kind of "maximum security" prison you put someone in, you are still at risk of his getting a shot a killing someone - either another prisoner, or a guard, or (at least) the doctor who comes to check him out when he fakes being comatose. If you are convinced that a murderer adamantly intends to kill if he gets a chance, then you should put him to death even in the context of modern prisons.

But beyond the sheer physical reality of safety, traditional teaching ascribes a two-fold sense to "protecting society": both preventing further crimes by this specific criminal, and deterring other people from a life of crime and thus developing a society where people respect and abide by the law even when the law isn't watching. This latter development exceeds mere "deterrence", it gets at the fact that virtue isn't the absence of external criminal acts. A society of people that only avoid crime when they fear punishment is a society that has already seen a fundamental breakdown of law and order. Protection of the innocent is then virtually impossible, because the law cannot catch everyone (that is, not everyone who is willing to break the law when unobserved). Consequently, the usual, regular, normative imposition of the just punishment (including death) for retribution is part and parcel of forming a society in which people prefer justice to personal advantage, and thus the innocent are protected.

This is also the necessary consequence of identifying retributive justice as the primary end of punishment, and safety, rehabilitation, and deterrence as secondary ends. St. Thomas explains that to be a true secondary end (as opposed to a mere accidental ride-on attachment), the secondary end must have some relation to the primary end as such: the secondary end becomes an end precisely by being in relation to the primary end. Thus, it would be quite oxymoronic to propose to achieve the secondary ends of punishment while NOT ATTEMPTING to satisfy the primary end first and foremost. It is only by reason of directing your actions to the primary end that there is any reason to believe the secondary might be achieved. For example, you achieve rehabilitation by helping the criminal to see the unjust evil of his act (so that he turns away from it), and you achieve this by imposing on him as a consequence of his act an equal evil. If not equal, then you break the basis for the sense that the punishment is on account of his own act (instead becoming merely an expression of societal displeasure). Thus rehabilitation rests on directing punishment to retributive justice.

Ed, can you comment on the nature of primary and secondary ends more?

Alan Aversa said...

@Ismael: I have heard this "containment" argument before, but is this really what Pope John Paul II meant when he said (see article in my first post above) in Evangelium Vitae 56.: "56. [...] Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent."? Are the prisons today really better at containing people than were medieval dungeons?

MMc said...

There is a story going round town that a local boy went to Costa Rica and married a girl in a local village. (my nephew swears to it). He subsequently murdered her. The people of that "village" got ahold of him and killed and buried him.?

Question: What do you do with someone in such a circumstance when there is no way to put this murderer in any prison?

Tony said...

Alan,

I think that you are obliged to seek justice generally, including retributive just punishments. However, there can be higher or more urgent goods than that of justice, and so in pursuit of another good it may become suitable to not pursue full retribution in some cases. And this could come about in almost any single case, so it is difficult to see how a general mandate to impose just retribution could become a definitive mandate that makes it obligatory in a given case, other than by reason of the general mandate and there simply being no contravening higher goods that require setting aside full retribution.

I believe that the relationships between the central common goods makes it to be the case that you cannot expect to generally impose lesser punishments without damage to the common good, even though you may need to do so in certain cases in order to promote the common good. (This is another area in which JPII's comments give the appearance of being not very readily reconcilable with traditional teaching.)

Neil Parille said...

If society doesn't have the death penalty and doesn't have life w/o the possibility of parole, how are we supposed to defend ourselves?

Incidentally, I'd be quite surprised if anyone could find a statement from a church authority prior to JP2 which said that support for the death penalty was contingent on the type of prison system.

Alan Aversa said...

@Neil Parille: Incidentally, I'd be quite surprised if anyone could find a statement from a church authority prior to JP2 which said that support for the death penalty was contingent on the type of prison system.

Indeed, Pope Pius XII said that the death penalty's validity is not subject to cultural variation in Acta Apostolicae Sedis 47 (1955) 81-82:

"We also note that the Church in theory and in practice has kept the two forms of capital punishment (medicinal and vindictive) and that this is more in line with what the sources of revelation and traditional doctrine teach about the coercive power of legitimate human authority. One does not give a sufficient answer to this assertion, noting that the above-mentioned sources contain only thoughts that correspond to historical circumstances and the culture of the time, and that therefore one cannot attribute to them a general and always durable value." [Translated from the Italian]

Mr Mark said...

There is an excellent comparison of traditional teaching and modern thought in Romano Amerio's Iota Unum, Chapter XXVI THE DEATH PENALTY

BTW, I loved your "AQUINAS" - A very helpful book. I may even try Gilson. again.

Jeff said...

As a Mormon I have come to appreciate your perspective on the issues. While our religions do not entirely mesh, I generally find your stance to be one I regularly agree with. Your articulate manner often helps me express what is often merely a feeling that something is not right.

Alan Aversa said...

@Jeff: You might like this Pope Leo XIII quote, relevant to this post:

"The world has heard enough of the so-called 'rights of man.' Let it hear something of the rights of God." —Pope Leo XIII, Tametsi Futura Prospicientibus

Anonymous said...

John Paul II and Dignity and Justice For All
RE: " Dulles concludes that John Paul II’s view must be interpreted as a prudential judgment (with which, again, Dulles happens to agree) – a fallible application of traditional principles to contingent circumstances"

On the Contrary: It is not unreasonable to understand John Paul II's view on Capital Punishment as a legitimate development of doctrine which takes into account the teaching of the Second Vatican Council in Dignitatis Humanae Personae (which calls for dignity for all) and combines it with the traditional natural law approach (which calls for justice for all)

Consider:

1) The classic quandary on capital punishment pits the four traditional justifications for a just punishment: retribution, deterrence, defense of society and rehabilitation. against each other, with rehabilitation being the problem. (In what sense can one say capital punishment rehabilitates?) This is apparently one of JPII's chief concerns.

To quote the Catechism:
"Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people's safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party." UCCC para. 2266

2) There have been two classic solutions to this dilemma. The first is to declare retribution the only necessary justification in capital cases. The second is to take the route attributed to Samuel Johnson who pointed out that the threat of near approaching death convert some people, "Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully." (Boswell) :)

3) But, this position directly contradicts the central point of Dignitatis Humanae Personae: "The right to religious freedom has its foundation, not in the subjective disposition of the person, but in his very nature. In consequence the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it. (From Dignitatis Humanae Personae, The Second Vatican Council’s Declaration on Religious Freedom. Chapter 1, paragraph 3)

4) Even guilty capital criminals ("those who do not live up to their obligation of seeking the truth and adhering to it") have a fundamental right to be free from conversion by the sword.

First Conclusion: Therefore: There is no way for capital punishment to fullfill the rehabilitation requirement for a just punishment in a manner consistent with human dignity.
...
(to be continued)

Anonymous said...

John Paul II and Dignity and Justice For All
Part II

Now Consider:
The other classic solution assumes that if the death penalty is just retribution for the crime committed, then that is sufficient to justify capital punishment in that case,

1) John Paul II disagrees. He affirmed that “retribution,” is a justification for punishments. He even granted its historical primacy, but he contradicted the belief that retribution alone can justify a punishment. Instead he claimed: Capital punishment is just "if this is the only possible way of effectively defending human lives against an unjust aggressor." (UCCC paragraph 2266)

2) At least for JPII, the word "primary" does not mean sufficient and it can be argued that has never been the case since, if "sufficient" was the meaning of the word "primary," marriage tribunals would make short work of cases with children.

3) Instead JPII seems to champion the natural law position that all four traditional justifications must be met for a punishment to be considered just, and if that high standard cannot be met by the most equitable punishment (i.e. a life for a life), then it is more just to revert to another equitable punishment (life imprisonment for a life) that can.

4) That theory fits JPII's position on most capital cases. "The Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.
UCCC paragraph 2267

5) This is not a new natural law theory, but it has never been particularly popular because it has a traditional objection. What about the right to self-defense? What if a murder cannot be kept in prison because he has too many followers and they will bust him out or he kills guards or fellow prisoners?

6) In these cases JPII seems to take up another natural law position. When it is literally impossible for all four traditional justifications to be met, a very conservative interpretation of Defense of Society is the justification that he appeals because this is demanded by the common good. "The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason ... Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. ... the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor." UCCC 2265-2267

7) This two step method has advantages. The most important might be that it repudiates the natural law positions which claim just retribution can be used alone to justify a punishment. Historically, it was those natural law arguments that were used to justify torture (he killed 15 people, one death is too good for him) and religious persecution (misleading a man about religion is worse than killing him, so heretics deserve to die). This may be why JPII also wrote: "The problem (of the death penalty) must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society." Evangelium Vitae

Conclusion II:
John Paul II's views on capital punishment do not have to be viewed as a prudential judgment. He could be right.

Alan Aversa said...

Cf. also Romano Amerio's chapter on the death penalty from his book Iota Unum and Antonin Scalia's First Things article "God’s Justice and Ours."

Alan Aversa said...

In 2004, Card. Ratzinger wrote: "[...] it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."

Alan Aversa said...

Steven Long, author of that The Thomist article I referenced, has responded to Christopher O. Tollefsen's "Capital Punishment, Sanctity of Life, and Human Dignity," which claims St. Thomas Aquinas's view on human dignity "appears to border on incoherence". The article, up on Thomistica.net, is: "'Goods' Without Normative Order to the Good Life, Happiness, or God: The New Natural Law Theory and the Nostrum of Incommensurability".

Alan Aversa said...

From the Iota Unum chapter: "to take away a man’s life is by no means to take away the transcendent end for which he was born and which guarantees his true dignity."

So what's wrong with killing the innocent as in abortion? Of course there is Exodus 23:7: "The innocent and just person thou shalt not put to death." But also, from the same Summa question Tollefsen quotes, albeit article 6:

"[H]e who kills a just man, sins more grievously than he who slays a sinful man: first, because he injures one whom he should love more, and so acts more in opposition to charity: secondly, because he inflicts an injury on a man who is less deserving of one, and so acts more in opposition to justice: thirdly, because he deprives the community of a greater good: fourthly, because he despises God more, according to Luke 10:16, 'He that despiseth you despiseth Me.' On the other hand it is accidental to the slaying that the just man whose life is taken be received by God into glory."

The Iota Unum chapter concludes: "[T]he death penalty, and indeed any kind of punishment, is illegitimate if one posits that the individual is independent of the moral law and ultimately of the civil law as well, thanks to the protection afforded by his own subjective moral code. Capital punishment comes to be regarded as barbarous in an irreligious society, that is shut within earthly horizons and which feels it has no right to deprive a man of the only good there is."

Antonin Scalia thinks similarly when he writes: "the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self–government."

Tollefsen commits makes this error when he says: "It could well be that no human being has the authority to warrant intentional killing, even of the guilty."
Certainly "no human being has the authority" of his own power, but that does not imply that God does not give that authority to the civil government.

Steven A. Long said...

I have responded at length to Tollefsen here: . Also, as one of the earlier comments indicated, I wrote an essay for The Thomist about this some while ago that perhaps retains its pertinence: Evangelium vitae, St. Thomas Aquinas, and the Death Penalty.

With all best regards, from Naples Florida where I teach at Ave Maria University (I left the University of St. Thomas in Minnesota a little more than six years ago)--

Steven Long

Steven A. Long said...

The address got left out of my comment. My respondeo to Tollefsen is to be found at http://thomistica.net/news/author/slong.