Tuesday, October 18, 2011

Tollefsen channels Rawls

Over at Public Discourse, Chris Tollefsen has replied to my most recent contribution to our ongoing exchange over the death penalty.  (Go here for links to the earlier parts of the exchange.)  Tollefsen claims that I have not adequately addressed his arguments against capital punishment.  Echoing liberal political philosopher John Rawls’s conception of justice as “political, not metaphysical,” Tollefsen insists that just punishment, in particular, ought to be construed as political rather than metaphysical.  That is to say, it is a means of “restor[ing] a kind of equality between citizens that the criminal’s overly self-assertive act(s) of will had disrupted,” and not a matter of inflicting on criminals something that they “deserve… in some absolute sense.”  The trouble with my position, Tollefsen says, is that it is metaphysical, a matter of looking at justice “from the point of view of the universe, not of the state.”

Writes Tollefsen:

A political conception of retributive punishment makes somewhat softer claims about merit and proportionality than Feser does.  Merit is… necessary in this sense: punishment should only be done to those who are guilty of the assertion of will that punishment redresses.  Hence, if not deserved (merited), punishment should not be inflicted.  Proportionality, too, is somewhat softened by contrast with Feser’s account.  Feser supposes there is a precise, or specific, amount of punishment that is merited by the criminal and that ought, barring practical considerations and considerations of mercy, to be exacted.  The cosmic scales are finely tuned.

But political scales—not so much.  The degree to and way in which a criminal’s will ought to be restricted does not seem, even in principle, subject to such a fine-grained assessment… 

Now, this gives the impression that the difference between Tollefsen and me is this: I (so Tollefsen implies) am defending the claim that the state should strive to realize cosmic justice, which is why I defend capital punishment.  Murderers and the like deserve death in an absolute, metaphysical sense; the state is supposed to inflict on offenders what they deserve in this sense; so the state ought to execute murderers and the like.  Tollefsen, by contrast, regards punishment as a means of upholding what he called in an earlier piece “a political community” which is “constituted by an ordering of the wills of the community’s members.”  Since it has a merely political, this-worldly end, punishment is for Tollefsen not concerned with inflicting on wrongdoers what they deserve in some absolute metaphysical sense, but merely with restoring the order of the political community.  And capital punishment (so the implied argument might seem to go) is not necessary in order to realize this political end.  Since I did not address these differences over political philosophy in my earlier essays, Tollefsen complains that I have not adequately addressed his arguments.

Now Tollefsen and I do indeed deeply disagree over matters of general political philosophy.  I regard the state as a natural institution rather than as something “constituted” by “the wills of the community’s members.”  (Tollefsen here makes what many of us traditional natural law moralists regard as an unnecessary and unwise accommodation to Kantian liberal orthodoxy.  In fact such accommodation is not atypical of the so-called “new natural law theory” that Tollefsen represents, but that is a subject for another time.)  But getting into these matters is not in fact essential to the dispute between us, as the rest of Tollefsen’s latest essay makes evident.  That (together with the fact that I was laboring under a word limit!) is why I did not address them in my Public Discourse articles.

Tollefsen does, in any event, distort my position.  I do not claim that the state ought, in general, to try to realize cosmic justice.  Nor do I deny (contrary to the impression Tollefsen gives in his latest article) that there are aspects of the law that ought to be determined by “custom, prior commitment, or other considerations.”  My position is rather that what Tollefsen calls “metaphysical” justice is a necessary condition for just punishment, even if it is not a sufficient condition.  The state cannot perfectly realize cosmic justice and should not try to; all the same, the state should not inflict a punishment on a wrongdoer unless in some cosmic or metaphysical sense he does deserve it.  

So, consider, on the one hand, a murderer, and on the other hand, someone who routinely lies to his spouse and friends.  Both of them deserve punishment in an absolute sense.  Now the state obviously has a reason to punish murderers (whether or not we think they should punish them with death) because murder is destructive of the very possibility of a political order.  But the state has no business punishing ordinary liars as such (except in cases of perjury and the like, where what is against the law is not lying per se but a specific kind of lying), because doing so is not necessary to maintaining political order and would even undermine it, given how draconian enforcement would have to be.  So, desert in an absolute sense is not a sufficient condition for the state’s punishing someone.  But it is a necessary condition -- the state can punish a murderer only because he deserves punishment, even if considerations additional to desert also play a role.

But Tollefsen, it seems, essentially agrees with this.  For he goes on to write:

Of course, such determinations [of what punishments are allowable] must be made within the scope of what is otherwise morally permissible, what the natural law requires; and if the natural law, as a matter of deduction, and not determination, requires that one never intentionally kill, then that choice is ruled out of the range of determinations one might make regarding punishment.

The real reason Tollefsen objects to capital punishment, then, is not that it plays no role in a purely political conception of justice.   It is rather that he thinks it is wrong in an absolute sense (indeed, we might say a cosmic sense).  Tollefsen believes, no less than I do, that questions of politics and punishment must be settled within boundaries set by natural law, even if we disagree about the grounds and content of natural law.  All the “punishment is political and not metaphysical” stuff is thus really irrelevant at the end of the day -- which, again, is why I ignored it in my earlier pieces.  

So, why in Tollefsen’s view is capital punishment inherently wrong?  Yet again, it seems to me, he fails to give us a non-question-begging answer.  Tollefsen says, rightly, that a murderer does wrong even if he does not succeed in killing his victim.  The reason he does wrong, I would say, is that he has willed to kill an innocent person, and such willing is bad intrinsically, even if the murderer’s will is frustrated.  Tollefsen says that the reason he does wrong is that he “wills contrary to the good of life.”  And that, of course, is why Tollefsen thinks capital punishment is intrinsically wrong, for it too involves willing contrary to the good of life.

But why is it always wrong to will against the good of life?  Tollefsen writes:

Here is a core aspect of my approach to ethics that seems to differ from Feser’s: I think that morality is ultimately a matter of the heart—of the will of the agent.  What is the standard by which that agent’s will should be guided and measured?  It is the standard provided by the various basic or fundamental goods of the human person, those goods that are constitutive aspects of every human person’s well-being and fulfillment, such as life, knowledge, or friendship.  That standard, when reason considers all the goods, in their bearing on all beings who, like us, are fulfilled in those goods, is one of openness: agents should promote and protect as possible all the goods in all persons; and agents should never will contrary to the goodness of those human goods, by a choice deliberately to damage or destroy an instance of one of those goods in a person.

All of this presupposes Tollefsen’s “new natural law” approach to ethics, which, as a traditional natural law theorist, I reject.  But even apart from that, there is the question of why no instance of what “new natural lawyers” call a “basic good” can be damaged or destroyed.  I argued in my previous piece that the principle of proportionality itself gives us reason to conclude that the good of life can, even if basic, legitimately be taken from someone if he is guilty of serious enough crimes.  Tollefsen does not really answer this point.  He gives the impression in the first part of his current article that drawing a distinction between political and metaphysical considerations suffices to answer it, but as we have just seen, it does not.  For Tollefsen himself agrees that questions about what forms of punishment can and cannot legitimately be employed for the sake of upholding the political order must be answered within the absolute boundaries provided by natural law, which (I assume Tollefsen would agree) are deeper than the political order.  

Now, I would say that the principle of proportionality is itself part of the more fundamental, natural law framework, not merely part of the political order to be built within this framework.  Hence, if he is satisfactorily to answer my argument, Tollefsen owes us an explanation, either of how his position on capital punishment squares with the principle of proportionality, or of why that principle should not be considered part of the natural law framework but only part of the secondary, political order constructed within it (if that is what he believes).

Tollefsen also tells us that there is in both Christian thought and natural law theory a presumption against killing, so that “intentional killing requires a special justification.”  I agree, but I also hold that the principle of proportionality shows that that presumption can be overridden.  Tollefsen’s response is that “the presumptive starting point is one of absolute opposition to intentional killing of beings created in the image of God, for which exceptions must be earned.”  But there are two problems with this statement.  First, it is false, or at least question-begging.  As Tollefsen himself would have to admit, the Christian and natural law traditions have historically almost universally supported the legitimacy of capital punishment, at least in principle.  Tollefsen thinks they are wrong to have done so, but he can hardly present his own absolutist opposition to capital punishment as if it represented “the” natural law and/or Christian position, at least not without begging the question.

Second, Tollefsen’s assertion here is in any event simply nonsensical.  If there is a presumption of “absolute opposition” to capital punishment, then by definition there is going to be no way to “earn exceptions” to it; while if exceptions can be earned, then the presumption is not in favor of absolute opposition!

I also noted in my recent piece that Tollefsen gives us no good reason to think that freedom (which he admits can be taken from a wrongdoer) is not as basic a good as life, and thus no good reason to think that taking a wrongdoer’s life is any less legitimate in principle than taking away his freedom is.  In response, Tollefsen distinguishes between “the capacity for freedom” and “the exercise of freedom.”  The former, he says, can never legitimately be taken away, but the latter can be, and that is, he thinks, sufficient to explain why a wrongdoer’s freedom can be taken away while his life can never be -- and thus to save his position from the arbitrariness of which I accused him.

But there are two problems with this move.  First, it has implications that I suspect Tollefsen would not be happy with.  Suppose it were suggested that instead of executing murderers, we put them into suspended animation, as in the movie Demolition Man.  Neither their lives nor their capacity for free action would be destroyed.  It is merely their exercise of that capacity that would be taken from them.  Or suppose we kept them in solitary confinement in a small space for the entirety of their lives -- again, thereby preserving both their lives and their capacity for freedom, and taking away (at least to a very great extent) only the exercise of the latter.  It would be interesting to know whether Tollefsen would regard such harsh punishments as intrinsically wrong and contrary to human dignity (as I suspect he would).  If so, it is hard to see how he could defend such a claim, given that it is only the capacity for freedom, and not its exercise, that we can never in principle destroy.  

Nor would it do for him to suggest that such punishments would be intrinsically wrong insofar as they frustrated the pursuit of other “basic goods,” such as skilled work, play, aesthetic experience, and the like.  For one thing, ordinary imprisonment frustrates the pursuit of these goods at least to a great extent, but Tollefsen is not opposed to ordinary imprisonment.  For another, even though (unlike ordinary imprisonment) suspended animation or solitary confinement in a small space would completely or very largely prevent the pursuit of these goods, it is still only their pursuit and not the capacity for their pursuit that is taken away.  And if preserving a capacity while frustrating its exercise is not intrinsically wrong in the case of free action, it is hard to see why it would be intrinsically wrong in the case of work, play, aesthetic experience, etc.

(It would be helpful in determining what exactly he thinks is and is not consistent with human dignity if we knew whether Tollefsen holds, as some other opponents of capital punishment do, that even life imprisonment is contrary to human dignity.  But though I raised this question in my earlier piece, Tollefsen has not answered it.)

A second problem is that Tollefsen’s distinction between the capacity for freedom and its exercise does not seem to sit well with other arguments typically given by “new natural lawyers.”  For example, such writers argue that masturbation, fornication, homosexual acts, etc. are intrinsically wrong because they are contrary to the “basic good of marriage,” as that is defined in new natural law theory.  But if Tollefsen is right, it seems that we could distinguish between the capacity for the basic good of marriage and the exercise of that capacity.  And while acts of the sort in question are contrary to the exercise of this capacity, they leave the capacity itself intact -- in which case, by analogy with what Tollefsen says about freedom, they would not be intrinsically wrong after all (or at least not intrinsically wrong by virtue of acting against a basic good).  

Now Tollefsen might reply that such acts indirectly damage the capacity itself insofar as they make it psychologically more difficult to exercise it.  Our capacity to realize the “basic good of marriage,” he might say, will be damaged by indulgence in acts of the sort in question.  But something similar could be said of taking away a criminal’s exercise of freedom, insofar as imprisonment can make one less capable of independent action.  Being directed by and dependent on others, the prisoner’s capacity for self-direction will at least be blunted, in some cases seriously.   (Think of the fate of the character Brooks in The Shawshank Redemption -- a movie no doubt beloved of opponents of capital punishment.)  And yet Tollefsen does not deny that imprisonment is legitimate.  

In short, it seems the capacity/exercise distinction can help Tollefsen get out of the difficulty freedom of action poses for his critique of capital punishment only by leading him into problems elsewhere in his overall “new natural law” program.

As most readers no doubt realize, in the area of sexual morality, I do in fact agree with the conclusions that the “new natural lawyers” defend; I just don’t think their arguments for those conclusions are any good.  (The right approach to sexual morality is in my view the traditional, Scholastic natural law approach, which I summarize in chapter 4 of The Last Superstition.)  Unfortunately, in the case of capital punishment, they don’t get even the conclusion right.


  1. The other problem is they can't really explain sin. Since sin for a new natural lawyer is an act that per se aims at destroying one of the basic goods. Obviously it can not consist merely in rejecting one basic good for another which all admit is moral (I decided to pray rather than play for instance). But the problem with this is no human act aims at evil as such but always under the aspect of good even if it is not the moral good but merely an apparent good. It is choosing the apparent good and in doing so making that one's ultimate end with the implicit rejection of God in that choice that makes it evil.

  2. Political vs metaphysical, ancients vs moderns. Leo Strauss and Allan Bloom have very good pages on that and the use of fear as a substitute for the idea of something higher and secure.

  3. Great stuff. I'm interested to see how he's going to respond---especially to your criticism of his capacity/exercise distinction.

  4. Also, I don't understand how people can seriously conceive of justice as something "political, not metaphysical."

  5. Isn't it just hopeless for a religious believer to pattern a theory of justice in Rawlsian contractarianism? For such a view seeks to *replace* metaphysical justice, not co-exist side-by-side with it. For a religious believer to accept it would bring the principles constituting the state's administration of justice into conflict with the principles of justice set down by God. And for a truly religious believer, the law of God will always take precedence.

  6. Please excuse my ignorance, but I have a basic question. I think I understand the idea of natural law moral theory, but I am not sure how it follows that “someone guilty of a grave enough offense has forfeited his right to life”.

    What’s the reasoning here? The best I can come up with is this: A being keeps one’s right to belong to the universe only as long as it fits with the natural end of the universe. The natural end of the universe is ultimately of a moral nature, or, perhaps, the natural end of the universe is ultimately such as to further and not contradict its creator’s will. Thus, if a moral agent’s free choices conflict gravely enough with the universe’s end, it’s not only the case that he loses his right to be in the universe, but even more that his removal from the universe (in short his killing) is not inherent wrong. It is in fact inherently good, because if furthers the universe’s natural end by removing from it an unnatural obstacle.

    Is something like that it? I’d be grateful for any clarification, or for any relevant links which specifically explain this point.

  7. Dianelos,

    Where does that quote about forfeiting come from? I'll second your desire to have your questions answered, as I've thought that justification of capital punishment a good one in the past. I'm taking away from Natural Law theory that one can't forfeit a right to life (which perhaps is my mistake), though, so I'd be grateful for clarifications as well.

  8. Josh,

    The quote “someone guilty of a grave enough offense has forfeited his right to life” comes from a recent post by Ed, see: http://edwardfeser.blogspot.com/2011/10/on-rehabilitation-and-execution.html

  9. How can a criminal, no matter how monstrous, be said to have 'forfeited' his right to life, given that the right to life, in the theistic view, is not granted by human beings in the first place? This seems like dangerous territory in which fallible human beings make fallible decisions on 'behalf' of God – and it is a certainty that some of these decisions will be wrong (i.e., the innocent will be executed) and that the systems responsible for making them will also be subject to abuse, prejudice, and corruption.

    Also, if heinous criminal X is captured and sentenced to life in prison (in solitary in a supermax facility, let's say), thereby removing the threat of any repeat acts, must he then be also killed to satisfy our moral outrage? Can there be no good to come out of his imprisonment (for example, his rehabilitation - perhaps he was on PCP and other drugs when he committed his terrible acts, but is otherwise largely nonviolent when not abusing drugs)?

    I tend to agree with the assumption that people do 'forfeit' their rights - but this is merely an emotional or intuitive reaction in myself. I find it questionable that it is somehow divinely justified.

  10. "How can a criminal, no matter how monstrous, be said to have 'forfeited' his right to life, given that the right to life, in the theistic view, is not granted by human beings in the first place?"

    There are some murderers who continue to murder other prisoners and warders in prison and refuse to reform their lives. Keeping such people in solitary confinement is also dangerous for prison staff. Such a person surely has forfeited his right to life.

  11. I don't know if this helps the difficult raised above, but Pius XII parsed the "right to life" in capital punishment this way

    Even when it is a question of the execution of a condemned man, the State does not dispose of the individual's right to life. In this case it is reserved to the public power to deprive the condemned person of the of life in expiation of his crime when, by his crime, he has already disposed himself of his right to live.


  12. Joshua,

    I don’t think this helps, because it only evidences that Ed and Pius XII agree on the point in question, but does not explain how natural law moral theory implies this point.

    Anonymous 1:56,

    If it is the case that someone guilty of a grave enough offense has forfeited his right to life then one must wonder how to ascertain that someone is indeed guilty of a grave enough offense, or even if one has the moral right to judge others on this. But this is a separate issue. The question I raised is why think that someone guilty of a grave enough offense has forfeited his right to life in the first place.

  13. Dianelos,

    I'm asking the same question (maybe less clearly): how is it that someone 'forfeits' his right to life, and how is this forfeiture determined under natural law without being merely a subjective, and therefore possibly arbitrary (or even wrong), decision made within a flawed legal framework? (I wonder if the boundary - if there is one – between subjectivity and natural law can be clearly elucidated; and if not, is there such a thing as truly 'natural' law?)

    Anon 2:52,

    Is the fact that someone is potentially dangerous, enough to forfeit their right to life? I'm likely to agree that they should be put to death, but is my agreement merely socially pragmatic (or perhaps vengeful) or does natural law truly show that this right is forfeited?

    In my scenario, at least, the person who committed horrible action X is not dangerous except when on drugs (I'm trying to offer a scenario that's not an 'easy' one a la Jeffrey Dahmer). Without being graphic, let's imagine his act was multiple homicide and rape on a single occasion while high on PCP. So his 'acts' are grave enough to warrant a death sentence. But let's say that now that he is clean, he is incredibly remorseful, bewildered that he could even commit such an atrocity (he has no prior history of violence). Let's also say he has repented and found God. Can he still be said under natural law to have forfeited his right to live? And what if our justice system decides to spare him? Is that a violation of natural law?

    Anon 1:56

  14. Anonymous,

    It is by no means automatic that natural law, as Ed is putting it forward, says "you killed and therefore you have forfeited your right to life." There are all sorts of lesser crimes of killing that may require a lesser sentence: manslaughter, second degree murder, etc. A person who killed only after taking PCP, and who had never taken PCP in the past, probably has NOT done a crime worthy of being put to death. But alternatively, a person who kills while on PCP, who has in the past ALSO killed while on PCP (and who knows it), has a will much more in opposition to the true good: what would his taking PCP again indicate but a grave lack of regard for the safety of others?

    Danielos, the state does not grant man's life, true. But neither does the state create a man's liberty either. If a evil man's committing a crime means that he has forfeited his right to liberty such that the state is now free to imprison him, what does this say about his right to life if he commits an extremely grave crime?

    Natural law says that man is by nature ordered to a social life, and that as a consequence he is ordained to live in accordance with society's rules. Thus, human law is an unfolding of natural law into a particular culture.

    It is a natural law that an organized entity repel and suppress that which violates its order: organisms do this both on a macro and on a micro level, fighting predators and disease when they can. The state's response to offenses against the law is to suppress the evil.

    Now, St. Thomas says in moral agents, crime creates a state of injustice: the criminal was obliged to obey the law for the common good in spite of his personal preference, and instead he satisfied his own will and defied the common good. The condition of injustice is repaired by returning the criminal to the order of justice. To do this fully, he is made to suffer, at the command of the state, something contrary to his will, in equal proportion to the degree in which his will contradicts the common good, the good of the common order.

    Putting a murderer in a max security prison does help suppress the possibility of future new evils from this offender. It does nothing to repair the disorder that persists in the order that is the injustice against the state. It treats the evil as an evil of an amoral nature, rather than as that of a moral agent. It treats the man as a bacteria that must be quarantined, not as a person with a free will that has corrupted the social order.

  15. Tony,

    Natural law says that man is *by nature* ordered to a social life, and that as a consequence he is ordained to live in accordance with society's rules. Thus, human law is an *unfolding* of natural law into a particular culture. It is a natural law that an organized entity repel and suppress that which violates its order

    Thanks for the answer you suggest, but I find it very problematic.

    First of all it’s easy to find counterexamples. Jesus of Nazareth was tried and executed under Roman law; does this mean that through His actions which did not respect society’s rules and violated Roman order He had forfeited His right to life?

    The laws of a society can and often are immoral themselves and thus presumably contradict natural law moral theory, so I don’t see how natural law unfolds in them. Indeed such rules can be quite arbitrary and natural law is anything but.

  16. The laws of a society can and often are immoral themselves and thus presumably contradict natural law moral theory, so I don’t see how natural law unfolds in them. Indeed such rules can be quite arbitrary and natural law is anything but.

    Dianelos, although natural law has to be applied to particulars through human determination - i.e. human law - this only means that human law is capable of unfolding natural law into concrete cultures. It does not imply that all human laws are worthy expressions of the natural law. To the extent that a human law is a violation of the natural law, the human law is only an apparent law, it is not true law at all. Or, to put it more deeply: since God is the author of natural law, a human attempt at law that defies natural law defies God's divine order, and is no law.

    As for arbitrary laws: there is a difference between laws which vary from culture to culture because they reflect differences in the cultures: these are not arbitrary in effect, because they effect the application of the natural law to the particular conditions. Laws about speaking ill of kings will have a different impact in monarchies and than in democracies.

    Laws which make determinate things which are indeterminate in the natural law are not always arbitrary so much as they are contingent. It is natural that men pay collaboratively to support the services of government, but the natural law does not make determinate the specific rate of taxation, that can be 10% or 11% without harm to the natural order.

    Even when a government acts unjustly, as putting Jesus to death, that does not invalidate the principles of human law. To the extent that Pilate was bound by law in dealing with the Jews, Pilate would have been acting outside of the law, which requires evidence of wrongdoing to punish. To the extent that Pilate was acting instead like a foreign oppressor, he was acting outside of law again, because foreign tyrants overturn the law. You cannot lay Christ's death at the feet of men following the law, it was a lawless affair. Generally, immoral human laws are defective laws, and mostly they aren't really laws at all.

  17. How times change; the article on the death penalty in the authoritative Dictionnaire de theologie catholique is concerned almost entirely with defending its legitimacy.

    The new natural lawyers make a significant move in their argument against the death penalty that is rarely discussed. John Finnis talks about the basic good of life, and maintains a) that St. Thomas holds that life is a basic good prescribed by the first principles of practical reason, and b) that directly intending the death of another human being is intrinsically wrong because it acts against that basic good. The sleight of hand here is that St. Thomas, in describing life as a basic good, is referring to one's own life rather than to human life in general. Finnis and the other natural lawyers change the meaning of the basic good of life to human life in general, and use this changed meaning to argue for their position on capital punishment, without ever mentioning or defending this change. I made this criticism of Finnis in a paper in New Blackfriars in July 2002 - a long time ago now - but I never came across any reply to it; perhaps other readers can indicate if such a reply was ever made.

  18. Tony,

    Whether Pilate’s actions comported with Roman law or not is kind of an interesting historical question but irrelevant in our context, so I let it pass. There are certainly many examples of clearly immoral laws.

    human law is capable of unfolding natural law into concrete cultures.

    Agreed. And given the final causality of the world I take it natural law implies that there is a natural force which moves societies to little by little unfold the natural law into their cultures.

    To the extent that a human law is a violation of the natural law, the human law is only an *apparent* law, it is not true law at all.

    Right, but then how do we find out whether a human law is a violation of the natural law?

    Isn’t there any other argument about how natural law moral theory implies that “someone guilty of a grave enough offense has forfeited his right to life”? Because if it is only human laws we may use as a guidance, then the fact that human laws have been moving away from executions in virtually all societies (including the US) should count as evidence against the belief that people may forfeit their right to life.

  19. Right, but then how do we find out whether a human law is a violation of the natural law?

    Isn’t there any other argument about how natural law moral theory implies that “someone guilty of a grave enough offense has forfeited his right to life”? Because if it is only human laws we may use as a guidance, then the fact that human laws have been moving away from executions in virtually all societies (including the US) should count as evidence against the belief that people may forfeit their right to life.

    You mean, you cannot tell whether putting a man to death for fun, or out of hatred, or for fear of being called stupid, violates the natural law? Puhlease.

    Almost as bad is suggesting that we cannot tell what the natural law is except by polling national laws around the world. Let's see, for 4000 years minimum, nearly every human society worshiped multiple gods, so during that time worshiping one god would have been violating the natural law? Well, that's what it looks like you're saying. Make an argument, not a string of non-sequiturs, and we'll look at the argument. Since nobody has suggested that we ascertain the natural law by polling human law, I don't see what your comments lead to.

  20. Isn’t there any other argument about how natural law moral theory implies that “someone guilty of a grave enough offense has forfeited his right to life”?

    In case you failed to read either the first or the second or the third argument, let me point out: nowhere does the core account rely on the offender "forfeiting" anything at all. And my account shows that. So yes, I already answered you.

    Look, the "forfeiture" comment answers a different question than "why should the state put this guy to death".

    The forfeiture notion answers the question "why may the state put him to death given the usual standard in protection of life." The question stands with a supposition, that there is a usual sentiment in favor of life. It's answer is that the "usual standard" relies on an underlying principle that admits of 2 different results, one result is common and usual: generally, protect life, particularly innocent life. The other result it admits of is: in some circumstances, kill the guilty.

    The other question, "why should the state put this guy to death," isn't being answered by forfeiture at all. The answer to this is: for the sake of justice, which is a fundamental constitutive of the common good.