Thursday, September 29, 2011

In defense of capital punishment

I have a new piece up over at Public Discourse responding to a recent critique of capital punishment by Christopher Tollefsen.  (In earlier posts I have defended the legitimacy in principle of capital punishment from the point of view of traditional natural law theory and Catholic moral theology.  In this post I criticize the failure of some churchmen to present the entirety of Catholic teaching on this subject, and to convey thereby the false impression that the Church’s attitude toward capital punishment is “liberal.”  In this post, I criticize an earlier piece by Tollefsen.)

54 comments:

Matthew G said...

While I don't have a problem with capital punishment in principle, I think that it faces practical problems, the most obvious being wrongful execution.

Alfredo said...

Excellent post, Ed. Have you seen Steven Long's reply along different lines (defending St. Thomas) at thomistica.net?

jack bodie said...

I’ll second Alfredo in saying, excellent piece, Dr Feser. Thank you.

I must say I find your stance on dignity and punishment by a rightful authority is an extremely strong and important one: ie, in sinning a man may indeed harm his dignity, removing himself from the realm of reason, but in punishment his human dignity is re-affirmed because he is receiving his just deserts as a man.

Were he to be instead killed by a mob to prevent his further crimes, say, the mob would be treating him permissibly and reasonably (on account of his falling to the slavish state of beasts) but he would die as less than a man.

So your position seems to me a good thing (cue: howls about what a terribad Christian I am), and practically intelligible support for State sanctioned capital punishment. As does the idea of stopping a criminal before he “multipl[ies] his enormities”, as Coppens would put it. Whether this means preventing, say, a murderer from killing again, or persuading a bank robber to use a replica gun during his robbery so as to avoid the greater (capital) offence of armed robbery if he is caught – capital punishment has had a practically intelligible effect.


And yet I'm struggling with answering one of Tollefson’s practical examples: if you or anyone here has the time to answer, I’d be very interested.

Tollefson uses the example of adultery, I’m assuming, along the lines of: If you asked a moral man “Would you rather I made you dead or made you immoral?” he would rather be dead. So the harm done to him by the murderer is less than the harm done to him by his seducer. In principle it seems both deserve punishment, and following from proportionality, if the murderer dies, so should the seducer.

That such a conclusion seems wrong intuitively would seem to mean either I’m so morally debased my intuitions can no longer see the obvious, or that the harm done by the seducer is less than loss of life. The latter seems correct to me (which may be more evidence of the former!) but, if it is, in what way is the harm done by the seducer less? If it comes down to making amends in some way, couldn’t one argue that that option is also open to the murderer?

Neil Parille said...

Matthew,

I understand the concern about executing an innocent person, but it is considerably less likely today.

Ed,

Nice to see your posts on the subject. Regardless of one's position on the death penalty, the church's teaching should not be misrepresented as people like Mark Shea do.

Incidentally, here's an organization called Catholics Against the Death Penalty --

http://www.cacp.org/

I don't know anything about them, but look at the two quotes on their home page --

_____

Capital punishment feeds the cycle of violence in society by pandering to a lust for revenge. It brutalizes us and deadens our sensitivities to the precious nature of every single human life.
--Most Rev. David B. Thompson, Bishop of Charleston, S.C., December, 1998
_____

And:

_____

We cannot teach that killing is wrong by killing. Catholic Bishops, 1994.
______

These are blatant misrepresentations of the Church's teaching by people who ought to know better.

Anonymous said...

Poor Christopher and the NNL's (not that there's anything wrong with that).

http://www.anamnesisjournal.com/issues/2-web-essays/13-the-good-the-right-and-theology

"Everyone's attempt to engage (talk down to) the mindless perverted liberal traditionalists is no one's business but their own"

Anonymous said...

Neil Parille,

Why do you say a wrongful execution is "considerably less likely today?"

The Innocence Project has freed several innocent people from death row in the last 5 years.

Anonymous said...

"Succession needs to be put on the table" (if they decide modus vivendi is unacceptable to them (bastards)"

DNW said...

I glanced at the Tollefsen piece you linked to at the Witherspoon Institute's Public Discourse site.

I will read your response in a little bit, but I am puzzled by Tollefsen's use of term the "Essential Dignity View".

How does he really ground such a concept, other than by free floating pronouncement?

Because, seemingly it is conceptually undocked from both, " ... a more deeply theological account of human dignity, which holds that our dignity comes from our origin in divine creation" and from the traditional (I guess late classical and Scholastic) notion of natural or intrinsic rights.


My question is: Where and by whom is this non-theological and non natural rights related view of "Essential Dignity" formulated?


Sorting through the categories of philosophical schools that spring readily to my mind, I am having some difficulty seeing who would argue for such a view, and what "essential dignity" unrelated to intrinsic rights, could possibly mean.

If Ayer's emotive theory of moral propositions was proved to be inadequate when tested against distinctions capable of being drawn by both ordinary language philosophers and Aristotelians, it would nonetheless seem to nicely apply in this particular case at least.

And though I have no reason to impute to Tollefsen any personal intellectual incoherence, since I do not know where exactly he derives (i.e., by what logical mechanism and anthropological predicate) he derives his concept of "inalienable" essential dignity, it certainly seems clear that the people who might be self-identified as political progressives in our culture would by and large be intellectually incoherent in making the same reference.

No essences, no essential anything ...

DNW said...

Edward Feser writes:

"The late philosopher Ralph McInerny once noted that when probing the thinking of some students who were opposed to capital punishment, “what I detected, rightly or wrongly, was an animus against punishment as such.” This makes a kind of sense, for as I have argued, the legitimacy of punishment per se and the legitimacy of capital punishment in particular stand or fall together."

You are probably correct in your surmise, though I doubt that anyone would challenge the notion that the psychological reasons - or logic for that matter - behind a perceived animus against punishment might well be extremely varied. Dawkins' view that it doesn't make sense to kick at a machine probably provides quite a different context for opposing punishment compared to the sublimated sexual masochism of a Quaker or run of the mill modern political progressive.



" I presume that Tollefsen would agree that punishment is legitimate and that it ought to be proportional to the offense. What is doubtful is whether he can have any reason for doing so."


"What is doubtful is whether he can have any reason for doing so."


I could have saved myself the trouble of commenting earlier simply by having quoted that sentence.


Just a comment on the topic of "punishment and retribution" in general.

One of the more puzzling aspects of this whole debate as far as I am concerned, is the unstated presuppositional context that seems to permeate virtually all positions, including the most radically left-wing anti-essentialist ones.

That presumption - seen even among philosophical anti-essentialists - is the axiomatic insistence that the malefactor can never be alienated from his right to the human community.

By that I do not mean a right to be considered as a typologically human organism rather than a subhuman, that say, deserves the torture the figurative wanton child reserves for the fly, but rather the malefactor's supposed unconditional "entitlement" to a presumption of fellowship and solidarity, no matter how broken or perverse he may be.

To rephrase their rule, the other is never to be considered as radically other and outside the moral pale no matter what the offense. It seems to be an article of faith even among the faithless.

Thus the one "punishment" a certain class of people have always seen as being worse than death, is expulsion, permanent and irrevocable.

Socrates typical of them, seemed to prefer death to banishment; extinction, to an end to his ability to pester and annoy.

Daren Redekopp said...

While I agree with capital punishment, it seems to me that like eating meat (which I heartily embrace), my sheltered state from the killing itself impoverishes my perspective.

Anonymous said...

My main opposition to the death penalty is not because I think no crime is too heinous to warrant execution (I can think of plenty of such crimes), but because once it's done, it's done.

Since it's beginning, the Innocence Project has exonerated 273 people, 17 of which had been sentenced to death.

Simply put, you can bring an innocent man out of jail, but you can't bring him back from the dead.

Mark said...

So, where can I find the best (of just yours) presentation of a positive argument for the claim that capital punishment is morally permissible?

Mark said...

Also, is the claim that, 'capital punishment is morally permissible', is part of the Catholic faith? Could one be a good Catholic and reject it?

cheyinka said...

"To claim that no crime could justify capital punishment--to claim, for instance, that a cold-blooded genocidal rapist can never even in principle merit a greater punishment than the lifelong imprisonment inflicted on a bank robber--is implicitly to give up the principle of proportionality and, with it, any coherent conception of just punishment."

Is that really the case, though? Suppose we have two serial killers, but one committed three murders and the other thirty, and the one who committed thirty murders also delighted in torturing his victims before they died. You suggest that by saying, "We must not kill either of them," we're implicitly saying, "We can't treat them any worse than a bank robber," but unless we're going to make the second murderer suffer a more painful or prolonged death, we're going to be treating them the same way, even though torturing thirty people to death is clearly worse than killing three people, just like killing three people in cold blood is worse than accidentally killing one person in the course of robbing a bank.

At some point we're either going to seem to consider everything except the most heinous crimes we can imagine equivalent to the least heinous crime that still warrants life imprisonment, or we're going to seem to consider the least heinous crime that would still warrant execution equivalent to the most heinous crimes imaginable. This is true no matter where the line between life imprisonment and execution is drawn, no matter whether there are five or fifty crimes that warrant execution. Removing execution as a possible punishment doesn't seem like it would make this situation any worse - there's always going to be a most terrible and a least terrible offense that warrant the same punishment.

James said...

[Y]ou can bring an innocent man out of jail, but you can't bring him back from the dead.

Registering agreement. But even aside from the practical (and non-trivially extant!) issue of faulty conviction, carrying out a death sentence unilaterally removes any redemptive opportunity. Uncommon though it may be, nevertheless it is by no means impossible — or unheard of — for even very perverse moral senses to be gradually repaired over time.

The CCC states that

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically nonexistent.”

This seems quite reasonable to me. I don’t know whether or not the death penalty is morally permissible, but it seems obvious to me that its use should, in each case, be justified with real and undeniable safety concerns.

Miles Mariae said...

My goodness,

Capital Punishment is absolutely essential to Catholic teaching on morality. It is a question of when it is appropriate not if.

Fundamentally Capital Punishment gives man dignity in the sense that it gives him what is his due. The will is capable of meritting eternal damnation with a single act. The will, the will is so awesomely powerful- this is a truth of the faith. The same will that merits reward from man, society and God in performing good acts deserves a threefold punishment for evil.

If God will punish mortal sin with damnation it is clear that every mortal sin merits the eternal death sentance.

There is true justice and God will not be mocked.

All this stuff about 'building the earthly city' of Vatican II, it surely applies to the death penalty as well. We want to make earth as it is in heaven.

The question is of when death is an appropriate penalty, not if it is acceptable.

Esse Participatum said...

jack bodie said

"Tollefson uses the example of adultery, I’m assuming, along the lines of: If you asked a moral man “Would you rather I made you dead or made you immoral?” he would rather be dead. "

I think, the moral man would consent to neither. If it is not in his power to stay alive, be it so. But it is always in his power to be moral. This is not in the power of the seducer. And this he would choose.

If he chooses to be immoral, it is his responsibility. Then it is a question of how grave the immorality is, and how culpable he is, as to what punishment he deserves.

But if he chooses to stay moral and gets therefore murdered, then it is the responsibility of the murderer.

So, the reason why the moral man gets killed is because he chooses to be moral and because he does not want to harm himself, and not because the seducer does more harm to him.

Esse Participatum said...

One clarification:

An action is moral only if it is freely choosen and consented to. Therefore, by definition, the only one who can make you immoral is yourself. Nobody can deprive you of your free will.

jack bodie said...

Esse Participatum,

Thanks very much for your replies.

Forgive my lack of clarity. In discussing capital punishment and adultery, I understood that it was the seductress that was put to death as opposed to the seduced man. I think I recall the execution of the seductress being justified along the lines of:

A murderer deprives her victim of his life, while a seductress deprives her victim of his goodness. Now any right thinking moral man would rather be killed than be persuaded into immorality and so the loss of goodness must be a greater privation than loss of life – if this is right it follows that the corrupter, the seductress, deserves a greater punishment than the killer.

But is that right? My intuition says “no, taking another’s life must be worse than tempting someone into sin”; but my intuition has been calibrated by today’s cultural mores and so may be faulty.

And if it’s not right then I’d love to understand properly (ie, beyond intuitive feeling) how adultery is the lesser crime?

Esse Participatum said...

jack bodie said

"I understood that it was the seductress that was put to death as opposed to the seduced man. "

I understood this too.

"A murderer deprives her victim of his life, while a seductress deprives her victim of his goodness."

This is what I deny. Nobody can make you loose your goodness but yourself.

Esse Participatum said...

"Now any right thinking moral man would rather be killed than be persuaded into immorality "

Yes, because it would be his responsibility, if choosed immorality.

"and so the loss of goodness must be a greater privation than loss of life"

It is.

"if this is right it follows that the corrupter, the seductress, deserves a greater punishment than the killer."

I dont think this follows, because the seductress has not deprived him of his moral goodness. So I think this particular argument fails.

jack bodie said...

Thank you, Esse. I understand now.

StoneTop said...

For me the deciding argument against Capital Punishment is the possibility of executing an innocent person (coupled with the bias in the system against people on the lower economic rungs).

Further I have yet to see any supporting statistical evidence that Capital Punishment impacts the crime rate (just the occasional anecdotal tale).

Tony said...

Further I have yet to see any supporting statistical evidence that Capital Punishment impacts the crime rate (just the occasional anecdotal tale).

Oh, brother.

And yet, we have anecdotal numbers supposedly forming a reason to shy away from the death penalty:

Since it's beginning, the Innocence Project has exonerated 273 people, 17 of which had been sentenced to death.

That's mere data, not information. We don't know how many people they got "exonerated" on technical grounds versus actual - you know -INNOCENCE, as such.

But aside from that controversial aspect that cannot be quantified, we are unable to compare it to how many people are right now dead because of the lack of effective death penalty: prisoners dead because murderers in prison got at their fellow prisoners; prison guards dead because murderers got at them with a shiv; outsiders dead because murderers got out of prison (on parole, or escaped) who killed again; AND FINALLY, innocent people dead solely because every rapist, robber, and such knows that "dead men tell no tales" and rape doesn't get you a lot more time that rape + murder. How many people is that? But that's just the tip of the iceberg compared to the number of people who pursue evil because the state doesn't intend to achieve justice as such in its punishments, and they are damaged in their sense of justice in every aspect of their lives.

Simply put, you can bring an innocent man out of jail, but you can't bring him back from the dead.

You can let an innocent man out of jail, but you cannot give him back his 25 years behind bars, his family, his wife, his respected status in his profession, and his peace of mind lost from being FALSELY accused, wrongly tried, and unjustly imprisoned. Therefore, it is wrong to put a man in prison.

Not.

Life is not the ultimate good. Death is not the ultimate evil. If the state makes an honest mistake and puts him to death, this is morally similar to his life being taken by an accident - a piano falling on his head, for example. It is, actually, morally understood TO BE an accident: the state didn't intend the result that an innocent man be killed. We ascribe all accidents that bring evil to God's providence, and trust that God is both totally in control of all good and evil so that no evil is permitted that He does not plan for and intend to account for perfectly. God will bring good out of that untoward accidental death of the innocent man.

Jack Bodie, another aspect of your question is this: in a state, the state has care of the common good under SOME aspects, but not under all aspects (it does not run the religion, for example). Therefore, it is possible for a very grave evil to be an offense against God, but not harm the common good gravely with respect to the aspects of the common good under the care of the state. In such a case, the state would be able to say that it is up to other authorities to take care of the offender, since it belongs to other authorities to have the care of the common good in those aspects.

Joshua said...

Someone above made a comment to the effect that the death penalty lacks any medicinal value, that it excludes repenting

I don't think that is the case, especially (as we are talking about principle, not de fact what is the case now) in a thoroughly Catholic culture.

The current Catechism repeats the traditional teaching that to willing accept punishment as expiatory value. According to St. Thomas, to accept the death penalty has full expiatory value. So if someone repented of mortal sin and accepted the punishment, he also expiates all temporal punishment

As far as opportunity to repent goes, St. Thomas addresses that. The very fear that should follow from being sentenced to death is itself a great conducer to repenting and if a man does not even then, it is very unlikely that he will ever. We must keep in mind that God's exercises providence here...repentance is an unmerited grace. If the State is acting justly, then there is no reason to fear on this point. It doesn't hurt that, historically, there were even whole orders dedicated to serving those in prison and to be executed

Tony said...

The really weak element of Tollefsen's article: whence this "essential dignity". Actually, to be more precise, in what consists this dignity? What is it about this dignity that implies that killing a guilty man offends this essential dignity? I know what human nature consists in: man is rational animal. But that isn't self-evidently equal to "man absolutely must never be killed". So, what in that nature implies the conclusion? Nobody ever tries to say, they just wave their hands and pretend that it's "obvious". Well, it isn't evident. Tollefsen's problem is that he doesn't articulate it in the least, because without classical natural law, the "essential dignity" has no moorings, and cannot be presented intelligibly.

I'll give you the foundation for man's dignity: "Let us make man in our own image". Now I'll show you how to protect that dignity properly: "Whosoever shall shed man's blood, his blood shall be shed: for man was made to the image of God." (Genesis 9:6)

God Himself tells us that using the death penalty UPHOLDS human dignity. Who are we to say killing the guilty is offensive to human dignity? Anyone who wants to suggest that there is something about human dignity that presents an ULTIMATE and ABSOLUTE protection against being killed (even when guilty) needs to reckon with God, because He doesn't seem to agree.

claudio said...

If we do not follow a purely biological definition of human being, then it is maybe posible to consider that someone who has comitted certain kind of acts is not a person anymore, he or she has put him or herself out of the community of human beings, in the way the ancient roman called sacer.
In that way, capital punishment, when properly used, is not inflicted in a human being.

Anonymous said...

Tony,

Oh, brother, indeed.

It seems to me, from reading your response, that you are conflating the moral ideas about the death penalty with the reality of the system itself.

How many accidents have to take place before you declare something broken and in desperate need of fixing?

My brother is a paramedic, and he can tell you, as he's told me, that not all accidents are created equal. Some are genuine products of circumstances conspiring against the participants (a tire blows out at the wrong moment) while others are the result of malicious apathy towards the safety of others. Most of them lie somewhere in the middle.

So when it comes to the issue of innocent people, I think the problem, and I apologize if I'm inferring incorrectly that you are a supporter of capital punishment, is that many on your side don't seem to look at how the system is broken and what is the best way to fix it aside from the death penalty not being administered "effectively."

So, ball is in your court, what would make the system "effective?"

Tony said...

@ Anonymous

Let us grant that "the system" is badly awry. I agree with that. We have one starting point in common.

I could present you with a entire arena of improvement measures. I have thought of dozens over the years. Among them are methods that would vastly reduce the size of the prison population to begin with. But each and every possibility can be debated endlessly, and I don't see the point.

Instead, let me just say this: NO POSSIBLE FIX will work if "the system" does not have, as its inherent, fundamental objective, to restore justice. Justice was thrown out with the bathwater over the course of 50 years of adjusting the "justice" and penal systems to reflect a liberal mindset that abhors the very concepts of truth and justice as knowable objective reality. We are now reaping what we have sown.

I don't know for sure how to get from here to there, there are a million moving parts, and it is possible that a "fix" in one area will damage another area.

But to speak about the end-goal, we cannot in principle rule out the death penalty because by doing so we would in principle be demanding that justice be forsaken. Ed's thesis is about the principle of the matter, not about practical application. Even if it were to be shown rather forcefully that in our (damaged) situation no death penalty should be used, that would not speak universally. In an ideal political order, the death penalty would be available in principle even if it is only used once every generation or so. Would you agree to a system that limits the death penalty to cases of self-confession of crimes of assassination and mass murder? In other words, do you think that even such a limited death penalty role would still be morally objectionable?

rmac said...

Prof. Feser,

You write: “But since a human being can deserve punishment, and a punishment ought to be proportional to the offense, it follows that he can deserve death if his offense is grave enough. The fact that he, through his own freely chosen actions, has come to merit capital punishment is precisely what gives sense and intelligibility to the act of inflicting this punishment on him.

“When the human dignity that Tollefsen rightly champions is considered in light of the principle of proportionality, it is clear that the intentional killing of a human being is not intrinsically wrong.”

I was wondering if you could elaborate on this. It seems to me that you could use a similarly-framed argument to posit that, say, it is not intrinsically wrong to punish a rapist by raping him. One could argue that ‘in light of the principle of proportionality, it is clear that raping a human being is not intrinsically wrong’ in order to justify rape as a morally permissible punishment for a rapist. But this is false since rape is intrinsically wrong irrespective of whether it is used as punishment or not, so clearly, the principle of proportionality is not the only criterion to determine whether a punishment is intrinsically wrong or not.

In other words, it seems that the principle of proportionality is a necessary but not sufficient condition to establish whether a punishment is morally permissible. In addition to proportionality, one would need to show that the action being considered as punishment is not intrinsically immoral when the action is considered in itself. Tollefson, while probably accepting the principle of proportionality, clearly believes that intentionally killing a human being is intrinsically immoral. Therefore, it seems to me that one must first establish that it is not intrinsically immoral without relying on the principle of proportionality. Once that is established, one can combine it with the principle of proportionality to show that capital punishment is just.

Thank you.

David H. Lukenbill said...

Articles like this one are refreshingly welcome in a social and political atmosphere that appears to be continually moving farther away from the essential public safety task of protecting the innocent.

As a Catholic convert understanding that capital punishment was an integral aspect of Church teaching in relation to protecting the innocent from the aggressor, and as a former criminal—thief and robber—who spent many years in maximum security federal and state prisons knowing many people well deserving of capital punishment, I was somewhat confused early in my RCIA process to read how the American Bishops were seeking to abolish capital punishment.

That led to an extensive study of the issue, culminating in my book, Capital Punishment & Catholic Social Teaching: A Tradition of Support, and it is an issue playing a central role in my apostolate work through the Lampstand Foundation.

Thank you Dr. Feser.

Mark said...

Dr Feser writes,

"But since a human being can deserve punishment, and a punishment ought to be proportional to the offense, it follows that he can deserve death if his offense is grave enough."

I take your argument to be:

I. Human beings deserve punishment for wrongdoing.
II. They deserve punishment proportional to the wrongdoing.

And in a particular case, I suppose this argument would unfold like this:

III. John performed offense S.
IV. John deserves punishment proportional to offense S.
V. The punishment proportional to offense S is being killed.
VI. John deserves to be killed.


So..I think I would just disagree with II. I don't agree that all persons deserve punishment (FROM OTHER HUMANS) proportional to the wrongdoing. And I would just disagree with this because I'm not convinced that each person who does something wrong (to the Nth degree) deserves to be punished by another human being to the nth degree.

Also, is deserving like 'rights', in these sense that we can reduce the normative claims of 'rights' talk to claims about what other people are morally required to do, or how they are morally required to treat me. Would the fact that I deserve something make it the case that any other person actually has the moral requirement to give me what I deserve?

If it does, then I would reject such a 'deserving', just on the basis of my own consideration that, 'it's not the case that person may kill other persons for wrongdoing'.

Best,
Mark

Mark said...

In my last paragraph, I said:

[If it does, then I would reject such a 'deserving', just on the basis of my own consideration that, 'it's not the case that person may kill other persons for wrongdoing'.]

I would probably qualify this. I would say that it's not the case that human beings may punish other human beings by killing them. However, I wouldn't go so far as to say that it's impossible for it to be morally permissible for one human being to kill another for the sake of punishment; there would just have to be special circumstances- God would have to tell us to do so.

However, since I add this last qualification, I am interested in what the arguments there are for the claim that God actually does tell us to punish others by killing them, or does tell us to do something which entails or includes such punishing/killing. I suppose this would involve citing the relevant passages from Scripture.

Best,
Mark

Tony said...

Mark, your issue has to do with not whether John deserves to be punished, but whether men ought to be the ones to punish. I take it that staying at the general level, you don't disagree that John deserves to be punished.

Joseph Bottum took up your point in an article at First Things about 2 years ago, I think. His argument is that while John deserves death for ultimate justice, man is not the arbiter and guarantor of ultimate justice. So there is no conclusion that it is man that ought to be the agent of John's death.

The answer comes in 2 parts: one on the level of Scriptural authority, one at the natural law level. First, Genesis 9:6 has God saying "Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man." It is not only "his blood shall be shed", but "by man" as well. Secondarily, in Romans Paul makes it clear that the state is God's delegate in punishment: "avenging" evil with the sword.

Although all authority is from God, it is FROM Him when He delegates it, and this He does with the state. In making man to be a social animal, destined for love of neighbor, and thus having such a thing as a common good, He made man need organization of society, and this requires government. Therefore, under natural law, government receives from God the duty and authority to govern society for the sake of the common good. To the extent that the government has the care of the common good, it by nature holds the authority so far as that common good can be served. God's grant of authority extends to those actions necessary to fulfill its purpose, the care of the common good under its supervision.

St. Thomas explains that a crime upsets the order of justice: instead of sumbitting his will to the state (in a situation where he is obliged to do so) he has satisfied his OWN will and served his personal good. [Justice is a kind of equality, and the criminal has exceeded on one side (his own good) and allowed a deficiency on the other side (the common good) so that justice is in disarray.] The remedy to justice, then, is for the state to impose upon him something that naturally opposes his will (an evil) proportionate to the degree his will repudiates the common good. When a man opposes the common good so much as to assassinate a public official to damage the state itself, there can be no doubt that the severity of his crime warrants death. But further, there can be no doubt that the justice being served is the justice that the state has the care of. Therefore, under the presumption that God delegates to the state such authority as to give the state integrity, the state DOES have the authority to use the death penalty. It is precisely with respect to the common good, justice, under its purview that the state seeks to remedy justice by imposing the proportionate punishment of death on the offender.

This punishment belongs to the state's authority by reason of integrity: God generally wills each creature to have what it needs to fulfill its purpose. And this He revealed to us positively in Scripture.

Tony said...

rmac, until Dr. Feser comes in to answer your question, I'll give you some food for thought:

Nobody except the absolutely most extreme of extreme pacifists think that it is wrong to use lethal force to defend life, yours or another innocent life. Therefore, killing a man is cannot be considered intrinsically evil. (Compare this with the traditional teaching about rape: If a man holds a gun at an innocent victim Jill and says he will kill Jill unless you rape Betty, morality says that rape is intrinsically wrong, and I must not rape Betty no matter what that evil jerk does to Jill. Not even to save a life.) If "killing this man" was intrinsically wrong, then we could not do it even to save a life. It would be wrong regardless of circumstances, and therefore wrong even when that might save a life.

StoneTop said...

And yet, we have anecdotal numbers supposedly forming a reason to shy away from the death penalty

More then just anecdotal. The data on many aspects of the legal system show numerous instances where convictions are questionable (such as unreliable eye witnesses) show that there are serious flaws in the way we go about persecuting people.

That's mere data, not information. We don't know how many people they got "exonerated" on technical grounds versus actual - you know -INNOCENCE, as such.

True... but it doesn't fall to people to prove their innocence, it falls to the state to prove guilt. If the state fails to do so then that is the end of the matter.

we are unable to compare it to how many people are right now dead because of the lack of effective death penalty

Sure we are. We can look at the rates of such crimes between death penalty states and non-death penalty states. If the death penalty is effective at deterring the crimes you describe then the rate of such crimes should be lower in death penalty states.

You can let an innocent man out of jail, but you cannot give him back his 25 years behind bars, his family, his wife, his respected status in his profession, and his peace of mind lost from being FALSELY accused, wrongly tried, and unjustly imprisoned. Therefore, it is wrong to put a man in prison.

At least he has his life. The same cannot be said for a dead man. You also, inadvertently, bring up the issue of how our society treats former convicts.

It is, actually, morally understood TO BE an accident: the state didn't intend the result that an innocent man be killed.

Would you say the same if it were you? How about your brother/sister? How about your child?

We ascribe all accidents that bring evil to God's providence, and trust that God is both totally in control of all good and evil so that no evil is permitted that He does not plan for and intend to account for perfectly.

So "kill them all and let God sort them out"?

You are really opening up the metaphorical can of worms there... after all can someone really be doing evil if they are acting as your deity intended?

Mark said...

Tony,

[your issue has to do with not whether John deserves to be punished, but whether men ought to be the ones to punish. I take it that staying at the general level, you don't disagree that John deserves to be punished.]

You're right that I don't disagree that John deserves to be punished. However, my issue is not whether men ought to be the ones to punish.

I agree that men ought to punish men.
I don't think that my belief, 'men ought to punish men', implies, 'men may punish other men by killing them'. I mean, it's obvious that one doesn't imply the other. So, the first seems true, the the second seems just false to me.

Now, if you meant that I just disagree that men ought to be the ones to punish (when the punishment deserved is death), then you are right, sort of. I'm just not sure whether or not a person can deserve death as earthly punishment from other human beings- so I'm questioning the very 'deserving'. It would be akin to me rejecting NOT that people are not morally permitted to marry persons of the same sex BUT rejecting that there just is no right to be married to a person of the same sex.

However, when it is 'divine' punishment, the justice of God, then I'm convinced that every single person who ever committed a mortal sin deserves death. I mean, if we deserve eternal damnation, how could we not also deserve death (insofar as, we necessarily have to die in order to go to hell) ?


Whether or not the human earthly punishment and the divine justice are connected in a way that would give us good reason to think that the death penalty is morally permissible, and that we have reasonable good methods of judging when it is the case, I'm not sure. I'll need an argument to accept this. Feel free to give one.

.Mark

Mark said...

Tony,

I made a typo. The appropriate selection should have read:

[It would be akin to me rejecting NOT that people are not morally permitted to marry persons of the same sex BUT rejecting that there just is a right to be married to a person of the same sex.] it previously read, 'rejecting that there just is no right to be married...'

.Mark

Mark said...

Tony,

However, now that I correct myself, I DO also reject that it is morally permissible for persons to marry another person of the same sex, just as I also reject that, it is morally permissible to kill another person as punishment (except when it has been divinely revealed that we should).

.Mark

Matthew Bellisario said...

Great article as always! I have had several discussions on this subject with Mark Shea. Shea proclaimed that anyone who did not agree with the principle laid out by JPII in Evangelium Vitae was a dissenter to the Catholic faith. He actually compares it to dissenting from the Church's teaching regarding contraception, if you can believe that. I challenged him on this matter recently on the Patheos website, where it has been announced that he will be a new member of the panel there. The link to the debate I had with him can be found below. After I pointed his error out to him, he then turned to ad-hominem attacks. I find it amazing that even after I presented to him the basic principles upon which the act of punishment rests, he still will not budge on his condemnation of fellow Catholics. As Dr. Long has pointed out, many Catholics today have a reductionist perception of EV. They take it in isolation from the tradition of the Church. Thanks for your articles Dr. Feser.

http://www.patheos.com/community/theanchoress/2011/09/28/mark-sheas-a-movin-to-patheos/

bgc said...

Capital punishment seems (very obviously) to be a spontaneous human response, in accordance with natural law - it has been the punishment for some severe crimes in all human societies until recently, and still is in most of the world.

(Another severe punishment is ancient societies was exile - seldom used now - this was de facto capital punishment in many circumstances.)

Capital punishment is, then, natural law - but is it forbidden by Christianity? Very obviously *not* - Christianity is 2000 years old, and there were Christian societies in history vastly more devout that this one - none of these prohibited capital punishment.

The evidence is really overwhelming that capital punishment is just. (And this is leaving aside all expedient arguments, which also support capital punishment).

So why the debate? Moral insanity. Our society cannot any longer even understand very obvious things, but perpetually raises incoherent objects to whatever is spontaneous and natural; and, conversely, perpetually explores and advocates whatever is unspontaneous and unnatural.

In sum, the opposition to capital punishment is anti-Good (i.e. it is evil); just as the related notion of pacifism is evil, and attacking the family is evil.

The clever trick of the anti-capital punishment lobby has been to reverse the onus of proof - so that capital punishment must be proven against all real and conceivable objections, as if it was an untried innovation. Whereas it is actually the abolition of capital punishment that is the untried innovation.

Anonymous said...

Tony,

I understand, though I don't entirely agree, with the premise that "we cannot in principle rule out the death penalty because by doing so we would in principle be demanding that justice be forsaken."

And I understand that Prof Feser's ideas in his essay deal with the principle of the matter.

But, when bringing up the idea of accidents, it caught my attention because the term is often too broadly used to have the impact it should, especially in a system where political ambitions and publicity play a role in deciding what happens in particular cases. I would argue such instances are not accidents but something else entirely.

Which is my main problem with this issue. The system appears so terribly damaged and prejudiced that I can't even begin to consider whether or not this issue is morally right until I have some confidence that the system itself is, or at least tries to be.

I'm not legal scholar, so I can't comment on your idea that the "liberal mindset" is the cause of our troubles aside from saying I'm skeptical of many sweeping generalizations, that being one of them.

StoneTop said...

Capital punishment is, then, natural law - but is it forbidden by Christianity? Very obviously *not* - Christianity is 2000 years old, and there were Christian societies in history vastly more devout that this one - none of these prohibited capital punishment.

How many of those societies also had slavery? How about provide women the right to vote (or voting at all)? How about freedom of speach? Or freedom of religion?

The evidence is really overwhelming that capital punishment is just.

Really? What evidence is that?

rmac said...

Tony,

Thank you for the response.

I agree with you that killing a man is not intrinsically wrong.

However, my point is that simply appealing to proportionate punishment isn't enough to establish this, since the same reasoning could be used to justify rape as punishment. But that's how I read Prof. Feser's argument: I took him to mean that in order to establish the moral permissibility of capital punishment it is sufficient to show that capital punishment is a proportionate to the crime. This I disagree with. (And I could also be reading him incorrectly.)

And it seems that Tollefson does indeed think that it intrinsically wrong to intentionally kill another human being (which I agree, seems to border on extreme pacifism). So I think to convince him otherwise, a reason independent of proportionate punishment will have to given.

Ian

rmac said...

Oops, I see that Prof. Feser has a new post that may address this very objection.

Tony said...

I'm just not sure whether or not a person can deserve death as earthly punishment from other human beings-

Either the "from other human beings" is somehow adding to the punishment itself, so that the punishment coming from humans is worse than coming from (??? nature?, angels?, God?, I don't know); OR, what you are not sure of is that humans have the authority to carry out the punishment, even if they have the authority to carry out other punishments.

The latter concern is SPECIFICALLY what I addressed: humans DO have that authority, both because natural law demands it and because God said so. You suggested that it must be revealed by God, He must be the one that says humans are to kill X, Y, or Z. It HAS been revealed by God. So that boxed is checked.

Tony said...

rmac, I truly doubt that Tollefsen wants to say that intentionally killing a human being is intrinsically evil. If it were, then he would have given a MUCH different argument. For example, he seems to have no problem with the idea of killing murderers, as JPII put it in Evangelium Vitae, when that is necessary for the safety of others. That would be impossible to say if he thought that killing were intrinsically evil. Furthermore, he would not bother to get into all the little points he does: once you have proven that it is intrinsically evil, the rest of the article would be needless blather. Finally, such a position is squarely AGAINST BOTH the 4000 year Judeo-Christian tradition AND against John Paul II's explicitly stated position affirming that tradition as definitive. No conservative Catholic, particularly one who wants to skirt the standard traditional teaching by using JPII's Evangelium Vitae's discussion of the death penalty, is going to directly defy EV and say that intentionally killing humans is intrinsically evil.

Edward Feser said...

rmac, I truly doubt that Tollefsen wants to say that intentionally killing a human being is intrinsically evil.

Tony, that is in fact his view, and -- notoriously -- the view of other "new natural law" theorists of the Grisez-Finnis school, who go well beyond anything JP2 ever said. The implications are, of course, pacifistic, though they jump through some logical hoops and creatively reinterpret the doctrine of double effect in order to salvage just war theory. The result is totally implausible, but that is indeed their view. See Steven Long's piece, linked to in my latest post, for more details.

Edward Feser said...

You might also take a look at my earlier exchange with Tollefsen from several years ago (linked to above), in which he explicitly says that "there can be no intentional killing of anybody -- such killing would always be contrary to the good of life" and that capital punishment is therefore "always and everywhere wrong, not just prudentially wrong here and now." Again, this is standard "new natural law" doctrine. Which is one reason (among many others) that the "new" natural law of Grisez, Finnis, George, Boyle, Tollefsen, et al. has nothing to do with the classical natural law theory of Aquinas and other Scholastics.

Tony said...

Ugh. So they don't care that the Church has pretty much explicitly said "killing humans is not intrinsically evil", they are willing to defy Church doctrine. Seems no longer like an odd but interesting philosophical approach to rock solid Catholicism, but an odd approach to something no longer Catholicism at all.

Mark said...

Tony,

Whether or not natural law reveals it is just what we are discussing, so it's not much help to me if you just assert that P, and say that natural law reveals it, when you've not really given any actual argument with logical structure that supports the proposition you are saying is true.

You said it's been revealed. Since I'm in the dark about this, please show me what content of the deposit of faith necessarily entails that death penalty is morally justifiable in our current circumstances. I'm all ears.

.Mark

bgc said...

CS Lewis often pointed out the Christianity was added to and a completion of natural law and good paganism.

Therefore much of The Good, most, was taken for granted as being obvious, spontaneous, inborn.

The anciently conceived Good was a unity of virtue, truth a beauty.

So modern 'thinkers' arrive on the scene having rejected the vast submerged iceberg of the natural and the spontaneous, and having isolated virtue (ethics) from the true and the beautiful, and they tackle an issue like the death penalty by considering it on the assumption that all previous generations were evil fools and a few minutes of sensible consideration should be able to supersede them.

And so we discover that the death penalty is evil, and all of humanity before a few decades ago, and ninety something percent of humanity now, is evil...

Wow!

I look around at the world of careerists, expedience merchants and intellectual pygmies who make these amazing moral discoveries such as the evilness of the death penalty, these pundits and pub debaters who claim to have superseded the justice of the ages (the great philosophers, the Saints and martyrs)- and am simply stunned at the mismatch.

It really is bizarre that the most self-indulgent and hedonistic generations to inhabit the planet should regard themselves as *moral* experts and exemplars - of all things!

David H. Lukenbill said...

BGC Nails it:

“So modern 'thinkers' arrive on the scene having rejected the vast submerged iceberg of the natural and the spontaneous, and having isolated virtue (ethics) from the true and the beautiful, and they tackle an issue like the death penalty by considering it on the assumption that all previous generations were evil fools and a few minutes of sensible consideration should be able to supersede them.

“And so we discover that the death penalty is evil, and all of humanity before a few decades ago, and ninety something percent of humanity now, is evil...

“Wow!”

That pretty much sums it up, and Avery Cardinal Dulles, putting it into the context of Catholic teaching, wrote in 2004:

“The reversal of a doctrine as well established as the legitimacy of capital punishment would raise serious problems regarding the credibility of the magisterium. Consistency with scripture and long-standing Catholic tradition is important for the grounding of many current teachings of the Catholic Church; for example, those regarding abortion, contraception, the permanence of marriage, and the ineligibility of women for priestly ordination. If the tradition on capital punishment had been reversed, serious questions would be raised regarding other doctrines….”

(Catholic teaching on the Death penalty. In E.C. Owens, J.D. Carlson & E.P. Elshtain (Eds.). Religion and the death penalty, (pp. 23-30). Cambridge, England: Eerdmans Publishing. (p. 26)

Tony said...

Mark, if you will go back and read my Sept 30 4:21 comment carefully, you will see that I DID show the natural law basis. To repeat myself: natural law provides to the state the authority that the state needs to carry out its primary functions. It's primary function (considered in general) is to safeguard and promote the common good; considered in detail, one such common good is justice, so its primary duty is to protect justice, and restore justice when disrupted. Proportional punishment constitutes that restoration by its very nature.

Is there something about Genesis 9:6 that sounds like God limits this warrant of authority to only certain special cases?