Wednesday, September 19, 2012

Justice or revenge?


I have, in various places (e.g. here, here, here, here, here, and here), defended capital punishment on grounds of retributive justice.  And I’ve noted (following the late Ralph McInerny) that what many people who object to capital punishment really seem to find off-putting is the idea of punishment itself (capital or otherwise), smacking as it does of retribution.  A reader asks what the difference is between retributive justice and revenge.  It seems, he says, that there is no difference.  But if there isn’t, then it is understandable why many people object to capital punishment, and even to punishment itself.

I think the reader is correct to suggest that the perception of a link between retributive justice and revenge is the source of much opposition to capital punishment, and of suspicion of the notion of punishment itself.  The thinking seems to go something like this:

1. Revenge is bad.

2. But retribution is a kind of revenge.

3. So retribution is bad.

4. But punishment involves retribution.

5. So punishment is bad.

The trouble with this argument, some defenders of punishment might think, is with premise (2).  But while I would certainly want to qualify premise (2), the main problem in my view is actually with premise (1).  “Revenge” (and related terms like “vengeance” and “vindictiveness”) have come to have almost entirely negative connotations.  But that is an artifact of modern sensibilities, and does not reflect traditional Christian morality.  For there is a sense in which revenge is not bad, at least not intrinsically.  Indeed, there is a sense in traditional Christian morality in which revenge is a virtue.  What is bad are certain things that are often, but only contingently, associated with revenge.  Hence those who reject punishment on the grounds just summarized are not wrong to see a link between retribution and revenge.  Rather, they are wrong to assume that revenge is inherently bad.

Let me explain.  Or rather, let me allow Thomas Aquinas to explain:

[V]engeance is not essentially evil and unlawful….

Vengeance consists in the infliction of a penal evil on one who has sinned.  Accordingly, in the matter of vengeance, we must consider the mind of the avenger.  For if his intention is directed chiefly to the evil of the person on whom he takes vengeance and rests there, then his vengeance is altogether unlawful: because to take pleasure in another's evil belongs to hatred, which is contrary to the charity whereby we are bound to love all men.  Nor is it an excuse that he intends the evil of one who has unjustly inflicted evil on him, as neither is a man excused for hating one that hates him: for a man may not sin against another just because the latter has already sinned against him, since this is to be overcome by evil, which was forbidden by the Apostle, who says (Romans 12:21): "Be not overcome by evil, but overcome evil by good." 

If, however, the avenger's intention be directed chiefly to some good, to be obtained by means of the punishment of the person who has sinned (for instance that the sinner may amend, or at least that he may be restrained and others be not disturbed, that justice may be upheld, and God honored), then vengeance may be lawful, provided other due circumstances be observed. (Summa Theologiae II-II.108.1)

You might say, then, that vengeance just is retribution, and is lawful so long as it is carried out in the right spirit and in the right manner.  Indeed, as other moralists in the Thomistic tradition make clear, it is more than merely lawful.  For example, Prümmer’s Handbook of Moral Theology, once a standard reference work in the subject, classifies “revenge” as among the “virtues related to justice.”  Similarly, Volume II of McHugh and Callan’s Moral Theology: A Complete Course devote a section to “the virtue of vengeance” (sec. 2381).  

Of course, that does not mean that such authors would approve of the sorts of thing we usually think of these days as paradigm instances “revenge” or “vengeance” --  Michael Corleone shooting Sollozzo and McCluskey in The Godfather, say.  On the contrary, they would condemn these as acts of murder.  For one thing, only lawful authorities, and not private individuals, can legitimately inflict a penalty of death on someone who has merited it.  Of course, there are forms of revenge or vengeance that don’t involve the taking of life, and which might in principle be carried out by private individuals.  But even here, there is, as Prümmer notes, a danger that “excessive love of self or even hatred of the neighbor” may motivate an otherwise lawful act of vengeance, and that what presents itself as the virtue of revenge might in fact be its corresponding vice of excess, “cruelty or savagery.”  As McHugh and Callan add, such vicious excess can manifest itself in either “the quality or the quantity of the punishment.”  

But if there is a vice of excess corresponding to revenge or vengeance, there is also a vice of deficiency, namely what Prümmer calls “excessive laxity in punishment” and which McHugh and Callan say “rewards crime, or allows it to go unpunished, or imposes penalties which are agreeable to offenders, or not a deterrent, or not at all equal to the offense” (sec. 2383).  

Now what we have here is, obviously, in part a matter of semantics.  Words like “vengeance,” “revenge,” and “vindictiveness” have to some extent merely come to be used in a way that connotes what is really just a corruption of vengeance or revenge rightly understood.  Hence in the entry on “Vengeance” in Roberti and Palazzini’s Dictionary of Moral Theology of 1962, we are told on the one hand that:

In a general sense, the infliction of physical punishment upon someone as retribution for injury caused to another is called vengeance.  If done for good and just motives, e.g. love of justice, or preservation of the juridico-social order, or the correction of an evildoer, by a competent authority, according to laws, vindication, of itself, is a good act.

On the other hand, we are told:

However, if punishment for an evil deed is inflicted out of an ill-feeling toward the one who has offended, ill-treated, or caused suffering to another, or simply to satisfy one’s ill feeling toward his enemy, or for the pleasure of payment in kind, vengeance is an evil act, opposed to that precept of charity which prescribes that Christians love their neighbor even if an enemy.  The latter form of vindication is properly called vengeance.

Vengeance is a sin, and opposed to the precept of the Divine Master to love everyone, even enemies, and to pardon sincerely any offense or injury.  One of the main characteristics of vengeance is punishment of an offender beyond proper limits, with disregard of the laws which prohibit acts of vindictive justice by private individuals.

So for the Dictionary, in the “general” sense of the term -- that is to say, when used to refer to the sort of thing Aquinas, Prümmer, and McHugh and Callan have in mind -- an act of vengeance is “of itself, a good act.”  But what is “properly” called “vengeance” is the abuse of what Aquinas, Prümmer, and McHugh and Callan have in mind -- namely, retribution that is carried out in a spirit of hatred, or is excessively harsh, or is carried out by those without authority to punish.  Here the Dictionary seems to give a nod to contemporary usage while agreeing in substance with the earlier authors.

Still, the issue is not merely verbal.  For it seems that what are in fact perfectly innocent and indeed honorable motives on the part of those who defend capital punishment are often wrongly assimilated to the dishonorable motives condemned by the authors I’ve quoted.  Hence those who sincerely believe that some offenders simply deserve to die given the enormity of their crimes, that justice would not be served unless they were executed, that they would in effect be “getting away with” their crimes were they not executed, etc. are sometimes characterized as “vindictive,” “vengeful,” or the like.  If these words are meant in the sense in which Aquinas et al. would use them, then the claim is true but is not a criticism, or at least not a criticism that doesn’t simply beg the question; for vindictiveness or vengefulness in that sense is just a desire that retributive justice be carried out, and that is, all things being equal, a good thing, or so defenders of capital punishment would claim.  But if what is meant instead is that those who think murderers deserve the death penalty, that justice requires it, etc. are necessarily motivated by a spirit of hatred, then the charge is false; while if those who make the charge are claiming that the punishment is excessive, then they are (once again) simply begging the question.

No doubt those who advocate severe punishment for horrendous crimes very often really do (quite understandably, if wrongly) hate the offender.  Outrage at injustice can easily degenerate into hatred of the unjust, just as amorousness can degenerate into animal lust.  But it would be fallacious to assimilate amorousness to animal lust, and it is no less fallacious to assimilate the desire for just punishment to hatred of the offender.  They are distinct, however commonly conjoined.  

It is also worth emphasizing that the mercy and forgiveness that many would pit against retribution in fact presuppose retribution.  It is only if someone deserves punishment that you can show mercy to him by not inflicting it.  And forgiveness is quite empty if the one you forgive does not merit the ire you would otherwise direct toward him.

Needless to say, a critic might reject the moral and metaphysical presuppositions of the view of justice to which I’ve been giving expression.  Defending those presuppositions is a separate task.  The present point is just that merely to characterize that view as “vengeful” or the like is to offer precisely nothing by way of rational criticism of it.  

But all this revenge stuff can get pretty heavy, so let’s end on a lighter note.  For a look at the fun side of vengeance, I give you the fetching Cobie Smulders chewing the scenery in a now famous clip from the gag reel of The Avengers

83 comments:

bgc said...

Excellent and valuable piece - thanks.

But surely it is nonsense to state: "For one thing, only lawful authorities, and not private individuals, can legitimately inflict a penalty of death on someone who has merited it."

Most injustice occurs in everyday life amd does not, and should not, concern the state/ legal authorites.

Further, in many/ most societies there are NO lawful authorities.

Perhaps the best way to understand it is to acknowledge that an individual person, the person who suffered injustice, may be a lawful authority, and entitled to revenge.

Obviosuly, the situation is open to abuse, but so are all human arrangements including legal systems, and including a prohibition on private individuals exacting revenge.

The fact that a situation is open to abuse does not mean that private and individual acts of revenge are intrinsically unjust in all situations; nor even that they should be assumed to be unjust.

rank sophist said...

Love the clip. And it almost seems like a cover from The Punisher would have been appropriate up there, given the subject matter.

Although I am sympathetic with these arguments, I must say that, every time I see a new headline about a black man getting the chair on spurious evidence, based on some alleged crime from 20 years ago, I lose more and more faith in the practical use of the death penalty. In theory, it seems great; but, in practice, it seems to invite heavy, institutionalized sins against justice.

Tony said...

bgc, there are in fact many daily small injustices that are punished outside the legal system: within a family, the parents punish children who disobey the rules or who act wrongly. However, within the family the parents ARE the proper authority.

Also, within other non-political entities, such as employers and voluntary associations, there are certain forms of "wrongdoing" for which the organization itself does have legitimate authority to punish: acts that are against the organization's own rules. But in these cases, the punishment can only extend to matters of good and evil within the organization's own sphere: demotion or withholding of employment, or withholding of the benefits of membership, for example.

In social life, we can legitimately "punish" someone for social wrongs by social remedies, such as giving them the cold shoulder, or ostracizing them. We can hold up for public shame (well, we could if our public believed in shame anymore). These are the natural remedies for wrongs that are outside the law - but they do not really fall under the most proper meaning of "punishment", for they are mainly a matter of not granting to someone a benefit that they have no just claim on - your good favor. That's not a penal imposition of an evil. For most wrongs that are done that are illegal, we as individuals have no standing to pursue punishment. For most wrongs that are not illegal, we have no authority to actually impose a penal suffering.

Harry said...

As a matter of interest, what happens if there is no proper lawful authority to dispense justice when it comes to serious crimes (murder, rape etc)?
I'm thinking of Sci-Fi situations- for example, post-nuclear war where the government is simply gone. Or a massive disaster of some kind- asteroid, alien invasion, whatever. Basically a situation where anarchy reigns, and society is so destabilized that it no longer makes sense to talk of individuals as those subject to legal authority. In such a context, how would one proceed?

Sean Robville said...

Once you've done it, you can't undo it.

Eduardo said...

Of course you can undo it... just now I wrote something wrong on Word and there was this UNDO button!!!

u_u sorry, I am really bored folks.

Bill said...

We can always find instances of mis-carriages of justice. However, bad cases do not make for good law, that is the job of applying principles.

Using the argument that it can't be undone is like saying nothing should be done without proof it is harmless. Life involves risk--always. The real challenge is to balance the risks with the results. If not having the death penalty leads to no fear of committing murder, then this is most likely an improper result due to risk avoidance. From an anecdote told my by a colleague that did a static electricity demonstration in a prison, convicts are very much aware of the death penalty. This implies that it is a deterent simply because of its existence.

As for certainty, there are some murderers for whom guilt is as certain as we can believe. In those cases I have no problem at all with execution. We do the best we can to prevent miscarriages and that is sufficient.

Josh said...

Evelyn Waugh, when asked "So, for instance, you would not be in favour of capital punishment," said, "Indeed I would, I think it’s one of the kindest things you can do to the very wicked, to give them time to repent."

But what is “properly” called “vengeance” is the abuse of what Aquinas, Prümmer, and McHugh and Callan have in mind -- namely, retribution that is carried out in a spirit of hatred, or is excessively harsh, or is carried out by those without authority to punish.

A nice practical case: an incident in the life of Jan Wiener, a Jewish man who fled from Nazi-occupied Czechoslovakia in 1940:

In August 1945, Wiener returned to Czechoslovakia. It was here he won his real victory, when he encountered a Czech Nazi collaborator named Havránek who had been one of his past tormentors.

"I left there with a white flame of hatred burning within me which made me want to live to kill him after the war," Wiener said.

But when he finally had the opportunity, gun drawn and all, he didn't.

"A huge weight lifted from me. I would not have to live the rest of my life with such a foul deed on my conscience. And that was when the war ended for me," Wiener said.

Mr. Green said...

Sean Robville: Once you've done it, you can't undo it.

Well, that's true. About everything. (Unless perhaps you have a time machine….)

jhall said...

It seems one of the greatest misconceptions surrounding capital punishment is that it exists solely (or at least primarily) for deterrence. Oderberg, in his book Applied Ethics, argues that this particular straw-man is what flavors the majority of political controversy and debate. So, instead of addressing capital punishment on the basis of justice and the morality of its retributive capacity, it’s seen as a mere Consequentialist tool for the reduction of crime or some similar notion (though Consequentialists will typically disapprove of capital punishment in general).

For Oderberg, there are three purposes. The first is necessary in all cases as it directly relates to the application of justice and correlative punishment, and that is its retributive function. Secondly, we have deterrence, and finally correction (or what is commonly called "rehabilitation" by well-meaning people). While the fist factor must always be present (given the nature of justice), the other two may not be; a combination is possible given the circumstances. I will not get into the arguments concerning each factor, but the point is that capital punishment, like most politically controversial subjects (abortion, euthanasia, etc.) is painted far too simplistically in the majority of cases.

Oh by the way, Rank, I know you're a fan of Oderberg - have you read his two books on moral theory? They're quite good. A number of objections he covers:

4.4.1 What if an innocent person is executed?

4.4.2 Capital punishment is irreversible. [here's to you Sean]

4.4.3 Capital punishment is not a deterrent.

4.4.4 Capital punishment is just state sanctioned murder.

4.4.5 Capital punishment is cruel and inhuman.

4.4.6 What about mercy and compassion?

4.4.7 Capital punishment fails to respect persons.

Pattsce said...

"...though I am sympathetic with these arguments, I must say that, every time I see a new headline about a BLACK man..."

Whenever I see someone do that, I get so annoyed. While I don't necessarily disagree that there may be prudential arguments against capital punishment (though I think these arguments are incredibly overexaggerated---especially in the U.S.), injecting race into the whole discussion makes it emotional, ridiculous, and distracting.

I was once in a law school class where the professor asked how much a person should be punished for brutally raping a woman. The good, liberal law school students wanted blood because of the obvious sexist abuse of the woman by the evil, dominant man. Many weren't convinced that death wasn't appropriate for such types of rape against poor, abused, defenseless women.

But then the teacher added that the rapist was Black! Oh no, what were they going to do? They were just calling for the blood of a black man! Which liberal cause is more important! Oh no! The class sat there silent. It was embarrassing.

I know it seems petty to point this out, but just stop. It has nothing to do with the issue. And even it was just a small part of your point, you still put it in there. On purpose.

Anonymous said...

Professor Feser,

Love your work. I'm just curious how we are to understand Christ's command to 'turn the other cheek' rather than to demand an eye for an eye?

rank sophist said...

Whenever I see someone do that, I get so annoyed. While I don't necessarily disagree that there may be prudential arguments against capital punishment (though I think these arguments are incredibly overexaggerated---especially in the U.S.), injecting race into the whole discussion makes it emotional, ridiculous, and distracting.

It doesn't have anything to do with injecting race into the debate. I'm talking about practical applications of the death penalty, and racism is a huge issue in the US justice system. 13.6% of the US population is African-American; but they make up more than 40% of death row inmates, if I remember correctly. These days, you get headline after headline related to blacks up for execution on lousy, probably false evidence.

Like I said, I'm not trying to spark a race debate or anything. It's just a fact that death row is disproportionately black, and that US police engage in racial profiling--which was particularly bad in the '80s, when many of the current people up for execution were sentenced.

I have nothing against enacting the death penalty sparingly and carefully, but it gets abused in this country.

Oh by the way, Rank, I know you're a fan of Oderberg - have you read his two books on moral theory? They're quite good. A number of objections he covers:

4.4.1 What if an innocent person is executed?

4.4.2 Capital punishment is irreversible. [here's to you Sean]

4.4.3 Capital punishment is not a deterrent.

4.4.4 Capital punishment is just state sanctioned murder.

4.4.5 Capital punishment is cruel and inhuman.

4.4.6 What about mercy and compassion?

4.4.7 Capital punishment fails to respect persons.


I wasn't aware that he'd done moral theory books. Interesting. Might have to check these out--thanks.

Daniel Smith said...

Ed: For one thing, only lawful authorities, and not private individuals, can legitimately inflict a penalty of death on someone who has merited it.

But aren't there exceptions for self-defense and protecting others from immediate danger?

Harry: As a matter of interest, what happens if there is no proper lawful authority to dispense justice when it comes to serious crimes (murder, rape etc)?
I'm thinking of Sci-Fi situations- for example, post-nuclear war where the government is simply gone. Or a massive disaster of some kind- asteroid, alien invasion, whatever. Basically a situation where anarchy reigns, and society is so destabilized that it no longer makes sense to talk of individuals as those subject to legal authority. In such a context, how would one proceed?


That type of scenario is what I immediately thought of as well.

Tony said...

As a matter of interest, what happens if there is no proper lawful authority to dispense justice when it comes to serious crimes (murder, rape etc)?

Harry, it isn't so fictional, it happened in most newly-settled territories to some degree. Particularly when it was a matter of just a few trappers and pioneers. The Virginian tackles exactly that question.

I am OK with a conclusion that where there is no practical political authority, individuals take on a role that we normally ascribe to the state, including punishing grave crimes. But it is difficult, almost impossible, to distinguish between putting a rapist or murderer to death for penal reasons as such by individuals, as opposed to their putting him to death simply to take away the danger of leaving him alive - given that they have no capacity to incarcerate him.

Anonymous said...

But aren't there exceptions for self-defense and protecting others from immediate danger?

A private individual, acc. to St. Thom., is warranted only to use as much force as is necessary to deflect the attack without directly inflicting harm on the assailant (think not about gunplay but swordplay where a defensive move results in the attacker getting stabbed); however, in the absence of a lawful authority, the innocent citizen can be considered to be "deputized" and take the place of the lawful authority in the situation (thus the importance of the virtue of gnome).

MarcAnthony said...

I am not against the death penalty in the U.S.A. in principle, and at one time I was for it whole hog, but after hearing more than a couple stories of innocent people who are either on death row and released or executed, I've changed my tune.

For that reason (the possibility in a country as large as the U.S.A. of incorrect convictions) and that reason only I oppose the death penalty in the U.S.A.

Tony said...

I am not against the death penalty in the U.S.A. in principle,

For that reason (the possibility in a country as large as the U.S.A. of incorrect convictions) and that reason only I oppose the death penalty in the U.S.A.

MarcAnthony, what you are saying is that you are in principle only in favor of the death penalty when God puts it into practice, because only God is sure not to put an innocent people to death. It doesn't matter *how big* the country is, people make mistakes, and innocent people suffer. It can (and does) happen in tiny countries too.

You are also "in principle" blowing off Dr. Feser's whole argument, without arguing against it - rather, just by implying that you can't stomach the result that innocent people might die. Well, innocent people also die when we DON'T kill the guilty - does that turn your stomach too?

And you are ignoring Bill's point - again without arguing the matter, just claiming a position without basis.

Anonymous said...

Tony, if one of your close family members was wrongfully executed, I bet you'd change your tune.

Pretty much everyone is one emotionally heavy life experience away from the opposite position.

Crude said...

Tony, if one of your close family members was wrongfully executed, I bet you'd change your tune.

I always hear this sort of comeback, but to me it rings so hollow. Why would he be against the death penalty in that case, rather than in favor of reform regarding its use - which is not the same thing whatsoever? To hear people throw out this example, they must believe anyone with a family member who died in a DUI must be a modern prohibitionist.

As a concession, I have zero doubt that you can throw someone into a very personal, traumatized state where they no longer are thinking clearly.

Tony said...

Crude, you're right. I would want the police to get the RIGHT person, not that the death penalty be eradicated.

Anon, if the murderer had brutally raped, tortured, and killed one of your family members, I bet you would change your tune. Pretty much everyone is one life's experience away from remembering once again that vindication is an essential component of the common goods TRUTH and JUSTICE.

You see how that's done? When you've got no principle to fall back on, and it's just emotionalism, well anyone else's emotional experience is just as valid as yours.

Anonymous said...

Can I reiterate my question about how one squares the application of the death penalty with the Christian imperative to 'turn the other cheek', mercy, and forgiveness?

To me it's not a question of whether the criminal/murderer/rapist/etc *deserves* the death penalty - it seems clear to me that we can absolutely merit punishments commensurate with our crimes. The question is rather if it is better for the criminal, the victim, and the society for us to engage in the whole scale 'retributive justice' of capital punishment, or if, informed by the teachings and example of Christ, we season that justice with mercy and forgiveness.

I'd like to note that I Feser's short reflection on the relationship between mercy and retribution doesn't really do much to advance the ball. Again, I don't think the strongest argument against capital punishment denies that a criminal can *deserve* to suffer the death penalty even in principle. Instead it asks whether the fact that a criminal deserves the death penalty is a good enough reason to enact it. By way of comparison, we are told that all mankind deserved damnation because of sin, and yet Christ apparently considered it better to amend that justice with mercy.

It's also worth noting that, as far as I can tell, any justice dealt by human authority will necessarily be incomplete. If by executing a murderer you help 'balance the scales' thrown out of whack by his crime, it seems to me you remain unable to punish or 'vindicate' the crime that was committed against God, or even the wider sense in which his crime injured the human family, the body of Christ, etc.

With the furthest scope of human authority-inflicted punishment being so limited, it seems to me like you don't really lose much in the grand sense by limiting your punishment to life in prison, or something along those lines. Meanwhile you may gain much by exposing criminals and evildoers to the virtues of mercy and forgiveness, informed as they must be by truth and justice.

Anonymous said...

Tony said...

"MarcAnthony, what you are saying is that you are in principle only in favor of the death penalty when God puts it into practice, because only God is sure not to put an innocent people to death. It doesn't matter *how big* the country is, people make mistakes, and innocent people suffer. It can (and does) happen in tiny countries too. "

This strikes me as a false dichotomy. The fact that a task can not be accomplished flawlessly does not entail that any level of imperfection is therefore acceptable.

It may seem crass to sit down and ask the question "How many innocent people are we willing to accidentally execute per (say) every 100 guilty" but if you are going to be in the business of taking peoples lives in the name of justice, that's exactly the sort of acceptable ratio you're going to have to determine. Otherwise you are forced to admit that it is OK to accidentally execute (say) 100 innocent people for every 1 guilty person.

Crude said...

It may seem crass to sit down and ask the question "How many innocent people are we willing to accidentally execute per (say) every 100 guilty" but if you are going to be in the business of taking peoples lives in the name of justice, that's exactly the sort of acceptable ratio you're going to have to determine.

No, it's not. It's not as if Judge Dredd is in front of us cutting a deal along the lines of, "Okay, fine, I'll kill 300 criminals. But only if you spot me 30 innocents per year! That's the best I'll offer you, take it or leave it." The problem is not that it's crass, it's that it frames the question in the utterly wrong way that implies a transaction is taking place.

Really, just parse your own phrase. "How many people are we willing to accidentally let die" - but if it really is an accident, we haven't willed those things to take place. Now, maybe you can start to get technical and talk about criminal negligence - "Well, you know the system is imperfect, you know that this can and likely will lead to an unjust execution" - but that route's going to be trouble, because then we have to talk about what constitutes negligence and whether judging a process to be inadequate simply because it's imperfect really is a valid reason to end it altogether.

Scott W. said...

Exactly Crude. It is little different than saying that since we refuse to ban the automobile, that means we are willing that 35,00 or so people die in car crashes. It's a consequentialist argument.

Anonymous said...

In a nutshell: Lying is always wrong. Killing is sometimes good.

Crude said...

In a nutshell: Lying is always wrong. Killing is sometimes good.

In a nutshell: the owners of A&W are mass murderers, because they knowingly sell their products with bottlecaps that are proven choking hazards.

See, that's the problem. Sometimes the nutshell doesn't accurately describe what's going on, but warps it.

Anonymous said...

"Sometimes the nutshell doesn't accurately describe what's going on, but warps it."

Sometimes, but not in the lying/killing case. It's 100% accurate.

Ben Dunlap said...

@Daniel Smith and @anon 9/20 8:45am:

When a private individual uses lethal force in self-defense, his act might be morally legitimate, depending on a number of factors, most importantly that he cannot directly intend the death of the assailant.

I don't think, Anon, that the swordplay example is particularly helpful. IIRC St. Thomas does not require the defender to avoid intending harm, but simply to avoid intending death.

Whereas when a society administers the death penalty, it most certainly intends the death of the criminal as the direct and immediate effect of the act of electrocution, hanging, or whatever.

So from a moral standpoint, individual self-defense and capital punishment are essentially different (at least in the A/T tradition, in which intention specifies a moral act).

Thus there is no need to appeal to some sort of "supplied deputization", for example, because the private individual who uses lethal force in self-defense (in a morally legitimate way) is doing something quite different from what a hangman does.

Anonymous said...

Crude said…

No, it's not. It's not as if Judge Dredd is in front of us cutting a deal along the lines of, "Okay, fine, I'll kill 300 criminals. But only if you spot me 30 innocents per year! That's the best I'll offer you, take it or leave it." The problem is not that it's crass, it's that it frames the question in the utterly wrong way that implies a transaction is taking place.

You’re misrepresenting what I said. What I said was speaking to the reality that, in the process of apprehending suspected criminals, judging them guilty, and then executing them we know (or at least strongly suspect) that mistakes will be made in the process, and some innocent people are likely going to die. Now my point was that it is false to look at the unavoidable imperfection of the process and conclude that any level or error is acceptable. I specifically said that the false dichotomy is between perfection and unmitigated error. The point is not that capital punishment is unjust because an innocent must die, but in the real world the reliability of our system must be assessed to see if we, as a society, are capable of enacting capital punishment in a just manner. Note how MarcAnthony said that he was not opposed to the death penalty in principle but that he feels the inherent difficulties in arriving at true judgments in America makes the level of errors in enacting the death penalty too high for him to tolerate. Now you might take issue with his premise regarding the difficulties inherent in the American society/system, but I think that if you take his premise for granted his argument holds.

I also think that it is telling that you misquoted me in order to parse me. I did *not* say "How many people are we willing to accidentally let die" but "How many innocent people are we willing to accidentally execute. As it happens, the key distinction between these two sentences is nicely illustrated by Scott W.’s misguided analogy. He said:

It is little different than saying that since we refuse to ban the automobile, that means we are willing that 35,00 or so people die in car crashes. It's a consequentialist argument.

Now of course there is a very big difference between the moral culpability entailed by the death of someone who we decided to let drive an ordinary car, and the moral culpability entailed by the death of someone who we decided to execute as punishment for his crimes. Or perhaps it might be more helpful to point out the very big difference between what we mean by ‘’decided’ in these two scenarios. In the first scenario, ‘decided’ simply means that we refrained from frustrating the activity of another person, which incidentally led to his death. In the second scenario, ‘decided’ means that we actively pursued a course which intentionally and necessarily led to his death. Huge difference there, and if you deny it then we have a whole ‘nother conversation on our hands.

(cont.)

Anonymous said...

(cont.)


In any case, the same distinction holds true between the sentence you falsely attributed to me and the one I actually wrote. We are manifestly not simply ‘letting people accidentally die’ but are consciously and intentionally engaging in actions intended to bring about the deaths of people.

Finally, you are in any case misconstruing my argument. I am not trying to argue that because we cannot execute individuals with 100% certitude of their guilt that it is therefore immoral to execute anyone for their crimes. I am saying that, as you point out, these things do not happen in a vacuum – there is no Judge Dredd apprehending, judging, and executing all criminals simultaneously. These things happen over time, and the way the process works out allows folks like Rank and others in this thread to claim that there is evidence that our system as currently comprised seems to make a lot of mistakes. Obviously we cannot predict that “We will execute (say) 5.67 guilty prisoners for every 1 innocent prisoner and this is an acceptable ratio” but the point is not the specific numbers or ‘ratio’ or innocent to guilty executed. The point is simply that, given what we know about our success rate (in hindsight), our capacities of investigation and the various forces such as social biases that we know impact our ability to administer the death penalty correctly, it is not only possible but necessary that we make a judgment about our ability to administer the death penalty correctly in our given social/political context. This is where the ‘crass’ calculation comes in – if we look back on our last 20 years of administering the death penalty and come up with a figure of our success (killing the right person) vs our failure (killing an innocent person) we have to decide if we are doing a ‘good enough’ job to justify continue the practice given our current capacities. Otherwise you have to agree that it is possible in principle to look at our execution metrics, find out that we are somehow accidentally executing far more innocent people than guilty, and decide that is nevertheless perfectly just to continue administering the death penalty in our current society.

Donnie said...

Is it just me or does Feser's formulation

1. Revenge is bad.

2. But retribution is a kind of revenge.

3. So retribution is bad.

4. But punishment involves retribution.

5. So punishment is bad.


Seemed aimed at a straw man? Not only does he go on to re-define revenge to mean something different the what the people supposedly making this argument supposedly mean, but I don't think most opponents of the death penalty really frame their argument this way.

This post really just seemed like an excuse for Feser to offer up an alternate definition of 'revenge'. It really didn't intersect with the debate over capital punishment at all.

Edward Feser said...

Donnie,

The post was not about capital punishment per se in the first place, nor an "excuse" for anything. It was, as I made clear at the beginning, a response to a specific question from a reader who said that he himself had difficulty seeing what the difference between revenge and retribution is, and that for that very reason he had difficulty with the idea of punishment as such. He also suggested -- quite rightly, I think -- that others who have a difficulty with the very notion of punishment might be motivated by a similar concern about revenge. Hence the topic seemed worth addressing. But I never said that all opponents of CP are motivated by arguments of the sort I cited. Nor was I "offering up an alternative interpretation of 'revenge,'" as if it's something I pulled out of thin air. As the quotes I gave make clear, all I did was cite a longstanding conception already there in the tradition.

Edward Feser said...

Daniel Smith wrote:

Ed: For one thing, only lawful authorities, and not private individuals, can legitimately inflict a penalty of death on someone who has merited it.

But aren't there exceptions for self-defense and protecting others from immediate danger?


I was referring in that sentence to the death penalty, i.e. intentionally inflicting death as punishment. Defense of oneself or others from immediate attack is not the same thing. In those cases, you aren't trying to exact retributive justice, and in fact you should try to avoid killing the attacker if possible. You're just trying to keep him from killing you or others. And yes, private individuals can defend themselves in that way. But that's not what is happening in cases like the Michael Corleone example.

Edward Feser said...

bgc wrote:

But surely it is nonsense to state: "For one thing, only lawful authorities, and not private individuals, can legitimately inflict a penalty of death on someone who has merited it."

Most injustice occurs in everyday life amd does not, and should not, concern the state/ legal authorites.

Bruce, it is only "nonsense" if you ignore the key word: "death." I said that the DEATH penalty, specifically, could only be inflicted by lawful authorities rather than private individuals. I didn't say that NO penalty of any sort could ever be inflicted by private individuals. Thus, if a child disobeys his parents, then of course the parents can punish the child by sending him to his room, taking away privileges, spanking him, etc. If you fail to pay your credit card bill, then the credit card company can legitimately charge you a penalty for late payment. And so forth.

Daniel Smith said...

Ed: I was referring in that sentence to the death penalty, i.e. intentionally inflicting death as punishment. Defense of oneself or others from immediate attack is not the same thing.

OK, here's another one for you: A father catches a pervert in the act of sexually molesting his 3 year-old daughter. In a fit of rage, he kills the child molester. Is this justifiable homicide - or murder?

jhall said...

Daniel Smith,

If I may briefly answer you. For the traditional ethicist (i.e. a natural law theorist), the case of the defense of others is very similar to the case of self-defense. The primary differentiating factor is the degree of obligation and duty you have towards the person by virtue of your culpability in failing to act. For example, I have no obligation to fly a plane to Africa and feed a starving man about to die of de-nutrition, though this would certainly be praise-worthy. Nor am I required to save a man choking on a piece of food in the next state over (due to proximity, culpability, personal relations, knowledge of the event, and large number of circumstances). I am however obligated to protect those in appropriate proximity, or in the proper social relation to myself (for example, close friends, family; especially one's own children!).

In the case of self-defense, we have the right to defend ourselves in order to prevent bodily injury and death, as health and life are both fundamental goods on the natural law conception. But, as you probably know, for the defense to be morally permissible, we must not intend the death of the assailant. As Aquinas was quoted above as saying, we may do him requisite harm to stop the attacker and prevent our own injury/death - if we happen to unintentionally kill him in the process (say I shoot for the leg but hit him in the head, as in a home invasion or robbery), the defender does no moral wrong, as he did not intend the man's death, though it was arguably a foreseeable consequence of using a gun for self-defense.

Now applied to your case of the father catching the pervert sexually assaulting his child, the same scenario as just described is still applicable, except now the defense is applied to your own daughter. Obviously, as you are her father and responsible for her safety, you are morally obligated to stop the attack and protect your child (stated differently, withholding action, or intentionally failing to act would be immoral). For the man to intentionally kill the attacker would then be on the same level as manslaughter as in the case of self-defense. Thus, to prevent what is certainly bodily harm to your child you would be permitted a proportional action of harming or maiming her attacker in so far as to prevent the attack and restrain him (call the police etc.). Of course, given the utter foulness of the act, it would also be emphatically understandable if the pervert were killed in a fit of rage, but that doesn't permit, in principle, vigilante justice, provided there is a legitimate legal system in place.

I hope this answer was somewhat satisfactory.

Anonymous said...

You see how that's done? When you've got no principle to fall back on, and it's just emotionalism, well anyone else's emotional experience is just as valid as yours.


Oh I agree. I think emotion will always guide reason. We're flesh and blood, not nuts and bolts, and on the big issues of God, politics, etc., we'll find a way to believe what we want.

MarcAnthony said...

MarcAnthony, what you are saying is that you are in principle only in favor of the death penalty when God puts it into practice, because only God is sure not to put an innocent people to death. It doesn't matter *how big* the country is, people make mistakes, and innocent people suffer. It can (and does) happen in tiny countries too.

Well, what I mean is that since we have what I'd term as an "okay" chance of innocents getting killed, and we have other ways of punishing people without the death penalty, and since we have ways of protecting people without the death penalty, I don't think it's worth keeping the death penalty when innocents will be executed-at least not unless we overhaul the system and cut down on the death of innocents significantly.

You are also "in principle" blowing off Dr. Feser's whole argument, without arguing against it - rather, just by implying that you can't stomach the result that innocent people might die. Well, innocent people also die when we DON'T kill the guilty - does that turn your stomach too?

I think Dr. Feser makes an excellent argument, and I agree with it-there is nothing wrong with execution of the guilty.

Of course I think it's horrible when innocent people die because the guilty isn't killed! If necessary I would be absolutely 100% in favor of the death penalty if necessary for the protection of innocents.

And you are ignoring Bill's point - again without arguing the matter, just claiming a position without basis.

I didn't go through the comments before posting, so I apologize Bill.

As for Bill's point-if the system were reformed so that innocents were very, very rarely executed, I'd be 100% in favor of the death penalty, no question.

Daniel Smith said...

j hall: For the man to intentionally kill the attacker would then be on the same level as manslaughter as in the case of self-defense. Thus, to prevent what is certainly bodily harm to your child you would be permitted a proportional action of harming or maiming her attacker in so far as to prevent the attack and restrain him (call the police etc.). Of course, given the utter foulness of the act, it would also be emphatically understandable if the pervert were killed in a fit of rage, but that doesn't permit, in principle, vigilante justice, provided there is a legitimate legal system in place.

But the argument can be made that, by killing the molester, the father has done more good for society than the legal system would - since there is no death penalty for the crime of child molestation.

The father has guaranteed that this pervert will never again molest a child. The legal system cannot do that. In fact, given the astronomical rate of recidivism among pedophiles and the inability of the legal system to keep these people behind bars forever, it can almost be guaranteed that another child will be molested if the father doesn't kill the attacker.

Tony said...

and since we have ways of protecting people without the death penalty,

What about the people killed or gravely injured in prison by criminals who deserve death - this is a more than trivial number? What about the criminals who escape prison (which is admittedly a very small but non-zero number)?

In fact, we succeed in keeping people in prison safe from serious attack quite a bit less often than we execute an innocent person. Isn't it possible that prisons would be a whole lot safer for non-murderers if we put murderers to death?

and we have other ways of punishing people without the death penalty

But we don't have adequate ways of punishing people with punishments that manifest justice because they are proportionate to the crimes, without the death penalty. To dump the death penalty altogether is to dump the possibility of attaining true justice in all the cases where death is the proportionate punishment.

I don't think it's worth keeping the death penalty when innocents will be executed-at least not unless we overhaul the system and cut down on the death of innocents significantly.

The Supreme Court in 1976 overturned the death penalty altogether, and told the 50 states that they had to re-vamp their procedures before they would accept any capital punishment as being within constitutional strictures. The states did that, and most of them re-instituted the DP with the SC's acceptance. You seem to be saying that the SC's criteria weren't good enough for you. Well, that's a judgment call, of course, and the best legal minds in the country have weighed in, and they have accepted what we have now. That's good enough for me - more or less.

That said, I think that there ARE better ways to do it, and we SHOULD improve the system, and that if we did we WOULD decrease the number of innocents executed. And I would be happy to see that happen. I would spearhead efforts to do that, if at the same time those efforts were balanced with spending the appropriate amount of energy increasing the numbers of captures, trials, and executions of the truly deserving - so _more_ innocent people are protected. In my opinion (and I admit it is just opinion) half the problems with the injustices that occur in the legal system are due to police and prosecutors' reactions to guilty people walking away from just punishment due to inappropriate processes and irrational judicially established rules. And half of the bad prison-guard behavior is due to prisons not treating criminals as human beings with moral responsibility.

Tony said...

Of course, given the utter foulness of the act, it would also be emphatically understandable if the pervert were killed in a fit of rage, but that doesn't permit, in principle, vigilante justice, provided there is a legitimate legal system in place.

When a wife or daughter is being sexually attacked, killing the perpetrator in the midst of repelling the attack not merely as pure defense but also as something more, at least like to retribution, has generally been held to be a different category than murder simply. Some states have a law that refers to such killings as "in the heat of the moment", and can variously describe them as justifiable or as a lesser crime, such as manslaughter, depending on circumstances and how the law wants to define justification. Obviously, beating the attacker for 5 minutes after you have him off your daughter is not going to go down the same way as smacking him on the head with a shovel 3 times, the last of which was unnecessary because he was dead at that point.

In practice, police who have turned into feminized departments may charge ALL victims who use self-defense and successfully injure or kill the attacker, while less castrated departments are more reasonable and look pretty carefully at the facts before deciding whether to charge the self-defender.

jhall said...

Daniel thanks for your reply. I hope I can address your concerns.

"But the argument can be made that, by killing the molester, the father has done more good for society than the legal system would - since there is no death penalty for the crime of child molestation."

The argument can be made, but I believe there are numerous problems with this line of approach. I'd start by saying you make a bold presumption, as we do not know for sure what the pervert will do, inferences from statistics aside.

Firstly it concedes a kind of Consequentialism (read Utilitarianism, they are basically synonyms) which considers only consequences or outcomes of the action, ignoring intention. For the traditional moral theorist, the intentions of moral agents are absolutely critical to moral decision making. If our only concern is maximization of X (X is the good of society in this case, let’s say), then any means can (indeed should) be used to maximize this good, including obviously morally repugnant acts. One thought experiment includes a judge sentencing, intentionally, an innocent man to death to appease a rioting, violent mob who claim they will kill many other people unless the innocent man is sentenced and executed. The fact that many others will be saved, and the greater societal good maximized, does not justify the act of sentencing an innocent man to death. Intending evil is never permitted, as the ends don't justify the means. This is just one common problem of many which Consequentialists face. Now my point in bringing this up isn't to suggest that this is your explicit position, only to highlight the dangers of taking this line of argument in the first place.

Secondly, you've already basically assumed the molester will commit a future crime (a sort of thought crime scenario). Granted, while the purpose of punishment and imprisonment is certainly in part preventative insofar as those predisposed towards criminal acts are prevented from hurting others, this cannot be used in itself as a reason or justification for additional punishment (i.e. he will probably rape again, ergo, let's kill him to prevent any future evil). He should be punished for crimes he has committed, not crimes he may later commit. You cannot be guilty of a crime you've not committed, right? Indeed, this should be the primary goal of corrective measures by the state (rehabilitation and all that does have its place).

Also, there is the issue of proportion. While sexual assault of a child is no doubt despicable, and to me represents one of the most unnatural evils imaginable, it is still arguably not on the level of the taking of a human life. In general, killing a person means he can no longer pursue other goods requisite to the good life (health, friendship, knowledge and so on). While the psychological and physical harm inflicted on a child is great, they still have a chance at recovering, healing and in general pursuing the good. Still, it is arguable that no amount of punitive justice can fully account for the torment and mental/physical trauma a child would endure. This of course doesn't mean punitive measures shouldn't be taken, only that they should be proportional to the crime. Possibly, due to the gravity and nature of pedophilia and sex crimes against children, retributive justice requiring the offender's death may be deemed permissible. I still don’t believe the father should take the law into his own hands, for the reasons noted above.

cont.

jhall said...

"The father has guaranteed that this pervert will never again molest a child. The legal system cannot do that. In fact, given the astronomical rate of recidivism among pedophiles and the inability of the legal system to keep these people behind bars forever, it can almost be guaranteed that another child will be molested if the father doesn't kill the attacker."

In principal, self-defense, or defense of a loved one just isn't the same kind of act as capital punishment (as noted by Dr. Feser in his response to you above). Provided there is still a functioning and (mostly) just legal system, a punishment as severe as death should be left to the state. Now surely we could conceive of a society where the legal system is so deranged that it is either grossly negligent or intentionally fails to dole out punishment to guilty offenders on a regular basis. In this case, perhaps vigilante justice would be morally permitted - however, the American legal system (for example) is far from this point, and is still fairly impartial; this would require a separate argument anyway. As to your primary point that there are many instances of repeat sex offenders and that they may often receive lenient sentences and punishments not proportional to the crime...well I agree! But, this again doesn't permit vigilante justice. If anything, it just means actions should be taken by the legislature and courts to enact more severe and preventative punitive measures for sex crimes. Regarding the death penalty for sex offenders, unless they have murdered their victim, I would want to see an explicit argument for this, other than that the act is unconscionable (I of course agree that it is!).

jhall said...

Tony,

I appreciate your remarks, and you make a great point. Perhaps I appear too rigid here (I don't mean to). I understand that any person who came upon their spouse or child in such a circumstance would undoubtedly be acting "in the heat of the moment". He's not going to sit and ponder the moral implications of his actions, but will repel the attacker, likely at any cost. This should be considered after-the-fact.

"When a wife or daughter is being sexually attacked, killing the perpetrator in the midst of repelling the attack not merely as pure defense but also as something more, at least like to retribution..."

I was not aware of that distinction. Thanks.

Tony said...

Also, there is the issue of proportion. While sexual assault of a child is no doubt despicable, and to me represents one of the most unnatural evils imaginable, it is still arguably not on the level of the taking of a human life.

Also, there is the issue of proportion. While sexual assault of a child is no doubt despicable, and to me represents one of the most unnatural evils imaginable, it is still arguably not on the level of the taking of a human life.

All previous societies viewed violent rape as a capital offence. Although that doesn't prove it, it is suggestive.

Second, the Bible in Exodus explicitly provides for the DP for rape. This is God's way of indicating how wrongful the crime is.

Third, molesting a child is even worse - it damages their psyche in grave ways, it damages their ability form normal sexual relationships later, and it tends to lead them in the direction of grave moral deformities. (Most molesters were themselves molested earlier.) When Christ said in the Bible "And be not afraid of those who kill the body, but cannot kill the soul; but fear rather him who is able to destroy both soul and body", arguably that includes these molesters. Yes, molestation should be a capital offence.

rank sophist said...

The looser the application of the death penalty gets, the more widely abused it will be. That's just how this stuff works, in practical terms--and it's how the US justice system has operated for a long, long time. The logical arguments in favor of the death penalty are well and good, but they do not tell us how it should be implemented, nor do they help us navigate the incredibly ambiguous cases usually presented in real courtrooms. Most believe that the average serial killer should be executed; but real life is not CSI.

Yes, molestation should be a capital offence.

All those wayward priests being executed is a pretty grim thought. This is not intended to offend anyone: it's simply an analysis of the consequences of that statement.

I'd like to add that the charge of molestation, like most, is regularly iffy when it's presented in a court of law. Also, because of its private nature, it's easy to use this charge to frame people. (Those familiar with actual details of the Michael Jackson case will understand this point.) One must always keep in mind that it only takes one biased jury to put someone on death row, but it takes decades of legal wrangling to get off of it. Courtrooms are almost never as cut-and-dried as they look on TV, and increasing the stakes of its vaguest cases is not a wise move.

These are variables that must be considered before ideological leaps are made. I agree that there is a place for the death penalty--logic tells us this much--, but, in situations like these, pragmatic concerns take precedence. If that means that the death penalty is heavily restricted, then so be it.

Tony said...

The looser the application of the death penalty gets, the more widely abused it will be. That's just how this stuff works, in practical terms--and it's how the US justice system has operated for a long, long time.

Rank, that may be true, but it's not the whole story. The rest of the story is that, for a long, long time, people have failed to administer the "justice" system as if vengeance, retribution, vindication, are intrinsically necessary ends for punishment. Along with other losses of morality, the penal system is systemically attacked by a loss of its most basic purpose. Responsible for this are primarily those who undermined belief in basic moral principles, and those in the legal world who undermined a belief in truth and justice being real, objective, and to be sought.

That's a description of the liberal mantra for the justice system. If that's what got us here, is it fundamentally unlikely that a return to sanity will require paying attention to the proportionate punishment for most crimes most of the time?

I am OK with being nuanced in difficult cases. There are lots and lots of not-difficult cases, where we STILL spend 8 to 10 years on appeals before we execute a criminal who clearly deserves it, wasting hundreds of thousands of dollars of resources on someone who simply doesn't deserve it because their case simply isn't one of the difficult ones.

Papalinton said...

There was a very good piece on BBC that considered the topic of Catholicism and capital punishment.

It is HERE

What is pertinent in the piece is the somewhat radical change that occurred in 1997:

"...... the Vatican announced changes to the Catechism, thus making it more in line with John Paul II's 1995 encyclical The Gospel of Life. The amendments include the following statement concerning capital punishment:

"Assuming that the guilty party's identity and responsibility have been fully determined, 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.
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 with the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an incapable of doing harm--without definitively taking away from him the possibility of redeeming himself--the cases in which the execution of the offender is an absolute necessity are rare, if not practically non-existent."

Pope John Paul II, The Gospel of Life"


How does one reconcile the somewhat indifferent perspective of the Thomistic tradition on judicial killing to that of JP2?
Dr Feser, it might sound philosophically rational to advocate your defence of capital punishment from a Thomist perspective, but it seems such a view is largely being relegated to history within most societies in the Western hemisphere. The community by and large is simply sweeping past any notion that adherence to catholic tradition is the proper measure of the administration of impartial justice. It renders the barbarism of the 'eye-for-an-eye' quid pro quo concept of retributive justice as nothing less than an unacceptable option within civil society. There is no doubt community sentiment is trending towards obviating any obligation on the part of the state to kill a person as the ultimate sanction. Clearly the community is not buying into the retributive or deterrence factor of the death penalty. Communities have lived with the death penalty since time immemorial and are now no longer convinced of the need for justified retributive killings in contemporary society. No matter how one tries to define it, retributive violence simply cannot wash out the stench of revenge, whether it be carried out by the state or otherwise.

Mindful of future possibilities, the re-jigging of one's neural traces may well be a possible judicial option. In the meantime, as with the recent Anders Breivik case in Sweden, civil society has no need for state sanctioned murder.

rank sophist said...

Along with other losses of morality, the penal system is systemically attacked by a loss of its most basic purpose. Responsible for this are primarily those who undermined belief in basic moral principles, and those in the legal world who undermined a belief in truth and justice being real, objective, and to be sought.

That's a description of the liberal mantra for the justice system. If that's what got us here, is it fundamentally unlikely that a return to sanity will require paying attention to the proportionate punishment for most crimes most of the time?


St. Augustine tells us, "In those years I used to teach the art of rhetoric. Overcome by greed myself, I used to sell the eloquence that would overcome an opponent. Nevertheless, Lord, as you know (Ps. 68: 6), I preferred to have virtuous students (virtuous as they are commonly called). Without any resort to a trick I taught them the tricks of rhetoric, not that they should use them against the life of an innocent man, but that sometimes they might save the life of a guilty person."

Remember that this was in the late 4th century. It has always been the job of lawyers to get their clients off the hook--this has nothing to do with a modern degeneration of principles. Perhaps lawyers have gotten sleazier in the interim, but who can say for sure?

My point is this: our legal system does not have some kind of "ideal time" to which it can return. Even if we add the death penalty to a vast array of offenses, and even if we return to an ancient understanding of justice and revenge, the courtroom will still be a place of ambiguous wrangling between lawyers with competing agendas. It will still be a place in which innocent men are executed on bad evidence thanks to biased juries, and in which guilty men are set free. All we can do is to try to limit the damage, while remaining within the bounds of reason. In my view, this means being exceedingly careful with the death penalty--even more careful than we are now.

I am OK with being nuanced in difficult cases. There are lots and lots of not-difficult cases, where we STILL spend 8 to 10 years on appeals before we execute a criminal who clearly deserves it, wasting hundreds of thousands of dollars of resources on someone who simply doesn't deserve it because their case simply isn't one of the difficult ones.

I used to have similar ideas about "open-and-shut" cases. It seems obvious that the "bad guys", so to speak, are out there and in dire need of justice. However, I have come to find out that these open-and-shut cases are few and far between, if they exist at all. The evidence shown to the jury is almost always inconclusive: it requires leaps of faith and an extremely cautious hand. Clear monsters get off scot-free (or nearly so) because of bad testimony or a lack of evidence--take, as just one example, my cousin's drug-dealing, abusive, child-beating boyfriend, who has sent multiple people to the ER with knives and bullets alike but who has never spent a day in jail, to my knowledge. It's obvious to everyone that he's done all of these things, but, in court, it just isn't that simple.

I'm skeptical of the idealists who claim to have a solution to the justice system, but who simultaneously do not seem to understand how mind-bogglingly challenging each and every case therein happens to be. The answer is not less caution but more; otherwise, we open up an already flawed system (a necessarily flawed system) to even greater errors. As Augustine suggests, we need to defend the guilty, not prosecute the innocent. The best way to do this is to take every possible precaution with our most serious penalties, so that we limit the damage when it inevitably occurs.

Tony said...

It's obvious to everyone that he's done all of these things, but, in court, it just isn't that simple.

Is it mind-bogglingly challenging because of rules of evidence that are simply irrational? Rules of procedure and concepts of law that are more and more divorced from reality and bent into a mockery of forthright truth?

Take this old case: police stop a woman driving a car (presumably for some driving infraction), get suspicious that all is not well, search the car, and find 80 pounds of pot in the trunk. At trial the existence of the pot is thrown out of court because they did not have just cause for the search. So the RULE applied absolutely throws out physical reality, demonstrable reality, and instead leaves the jury in the dark because the cop shouldn't have FOUND the physical facts. A more rational rule would be that the cop's testimony (and thus the existence of the pot) must be taken with a greater degree of caution than usual, because his mode of finding it makes it subject to such concerns. If the cop did something against the law in opening up her trunk, then he ought to be reprimanded or prosecuted for breaking the rules - but doing that does not make 80 lbs. of pot vanish into thin air.

When you have too many laws, too many rules, and too many judicial precedents that make it so that an ordinary group of 12 adults cannot just be given all the facts and let them locate what is and what is not beyond reasonable doubt, when you have to fraudulently carve up the evidence into that which is "admissible" and that which is real but "not admissible," because you don't trust the jury to see through problematic evidence, and force the jury into assessing whether the defendant's testimony is believable on only 1/3 of the real evidence, there you have justice breaking down because the system is out of whack. We - western civilization - has been running trials for 2500 years, and our current process has vastly more protection, vastly more care for the innocent than any older example. Are you saying that not only is our current system NOT CAREFUL ENOUGH even now, but that every prior system was so degraded as to be unconscionably evil? "Cause that's what seems to be to be the inevitable conclusion from your points.

"Without any resort to a trick I taught them the tricks of rhetoric, not that they should use them against the life of an innocent man, but that sometimes they might save the life of a guilty person."...As Augustine suggests, we need to defend the guilty

??? If he means that his students might save the life of someone who is guilty but not guilty in such a way as deserving of death - well, yeah, of course. If he means they might save their SOULS, well that's good too, much better than merely saving their lives. But I think your use of the quote misses the real point - it is not to use rhetoric to make sure the guilty get off without just penalty. Nobody here wants the innocent to be pursued. I simply think just punishment should be the norm. If, after a trial as fair as we can make it (within reasonable bounds), the just, proportionate punishment is death, then that's usually what ought to happen.

Tony said...

Papalinton, you apparently don't know how to construe Catholic teaching. Pope JPII re-iterated traditional Catholic teaching, and the Thomistic standard, in Evangelium Vitae:

56...The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence".46 Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime,

This is exactly what Dr. Feser said. You cannot make the Pope's further conclusions into some kind of false withdrawing from the notion of retributive redress for the crime.

It is quite true that JPII went on to attempt to constrain the use of the DP within extremely tight, narrow bounds. Cardinal Dulles explained that attempt in 2004, due to several false theories of what JPII was attempting:

In coming to this prudential conclusion, the magisterium is not changing the doctrine of the Church. The doctrine remains what it has been: that the State, in principle, has the right to impose the death penalty on persons convicted of very serious crimes. But the classical tradition held that the State should not exercise this right when the evil effects outweigh the good effects. Thus the principle still leaves open the question whether and when the death penalty ought to be applied. The Pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good. I personally support this position....1) The purpose of punishment in secular courts is fourfold: the rehabilitation of the criminal, the protection of society from the criminal, the deterrence of other potential criminals, and retributive justice.

2) Just retribution, which seeks to establish the right order of things, should not be confused with vindictiveness, which is reprehensible.


There is a very basic, extremely important distinction between authoritative, definitive teachings on principles, and the application of those teachings within prudential constraints to specific situations. The statement of personal beliefs about the prudential way to apply the principles in these specific situations is NOT authoritative, is NOT definitive, is NOT obligatory teaching, and is NOT protected from error. The Church has taught the same principles about the DP for many centuries, without change. JPII's teaching that the DP should only be used when society cannot be kept safe from the criminal is a personal conclusion about the prudential application of the principles to our times. He may be right, but he may be wrong. In either case, Catholics can legitimately argue the issue, and interpose reasons for or against his position having to do with OTHER prudential considerations that he did not discuss. Doing so is completely in keeping with the Church's own understanding of her magisterial teaching.

Daniel Smith said...

j hall: Firstly it concedes a kind of Consequentialism (read Utilitarianism, they are basically synonyms) which considers only consequences or outcomes of the action, ignoring intention. For the traditional moral theorist, the intentions of moral agents are absolutely critical to moral decision making.

Let's say that, in this hypothetical case, the father's intentions are:

A. to stop the molester from molesting his daughter.

B. To keep him from ever molesting another child again.

What then?

jhall said...

"Let's say that, in this hypothetical case, the father's intentions are:

A. to stop the molester from molesting his daughter.

B. To keep him from ever molesting another child again."

You're confusing motives (A and B) with intentions. They're not the same. So no, this doesn't work. Intentions are acts of the will, where the moral quality of the act derives from the quality of the act of will. What does the father will (intend), such that the molester will never touch another child?

jhall said...

Daniel,

I realize I slightly misspoke. I would amend my previous post to say that motives are not STRICTLY the same as intentions. Motives are sometimes referred to as "further intentions," and they do influence the moral character of the act. However, even good motives cannot make a bad act good. For example, if I agree to a friend to lie in court and commit perjury in an attempt to get him of the hook, the motive of loyally helping my friend does not turn the bad act (perjury) good because I have a good motive. This is why people with the best of intentions can still be held morally accountable for their actions (negligence, say).

rank sophist said...

Is it mind-bogglingly challenging because of rules of evidence that are simply irrational? Rules of procedure and concepts of law that are more and more divorced from reality and bent into a mockery of forthright truth?

Take this old case: police stop a woman driving a car (presumably for some driving infraction), get suspicious that all is not well, search the car, and find 80 pounds of pot in the trunk. At trial the existence of the pot is thrown out of court because they did not have just cause for the search. So the RULE applied absolutely throws out physical reality, demonstrable reality, and instead leaves the jury in the dark because the cop shouldn't have FOUND the physical facts. A more rational rule would be that the cop's testimony (and thus the existence of the pot) must be taken with a greater degree of caution than usual, because his mode of finding it makes it subject to such concerns. If the cop did something against the law in opening up her trunk, then he ought to be reprimanded or prosecuted for breaking the rules - but doing that does not make 80 lbs. of pot vanish into thin air.


Stuff like this is designed to prevent police abuse, which is already a huge problem with the laws in place. The 80 lbs. don't vanish, but, were it legal for an officer to leap over the law like that, they would get even sloppier. I once served on a jury for a domestic abuse case in which a man was arrested by three officers, but not one of them managed to read him his rights. On a similar note, it has not been uncommon for inner city police to extract confessions through physical violence, and some of these have been used to put people on death row (there's a controversy going on right now about one such case). If there were not laws in place to prevent police fraud--that is what we're dealing with, here--during investigations, we would be inviting even more rampant abuse and wrongful convictions.

The justice system is set up in large part to lessen the impact of human error and duplicity. These two things are facts of life that every court has had to deal with throughout history. But we are not careful enough.

When you have too many laws, too many rules, and too many judicial precedents that make it so that an ordinary group of 12 adults cannot just be given all the facts and let them locate what is and what is not beyond reasonable doubt, when you have to fraudulently carve up the evidence into that which is "admissible" and that which is real but "not admissible," because you don't trust the jury to see through problematic evidence, and force the jury into assessing whether the defendant's testimony is believable on only 1/3 of the real evidence, there you have justice breaking down because the system is out of whack.

The prosecution hides evidence as much as does the defense, if not more. But the point is that I have been on a jury in the past, and I have seen their biases. Before the trial, in my case, everyone was asked whether or not they would take seriously the testimony of the children who took the stand, and they all said that they would. But, when we finally got together behind closed doors, they blew off damning evidence simply because the witnesses were children. And these were good people--I liked them.

It isn't a matter of "carving up the evidence"--it's a matter of trying to prevent police fraud and jury bias from netting us wrongful convictions. Like it or not, they're a fact of life. To return to the case of my cousin's boyfriend (a separate case, obviously, from the one in which I was a juror), I would have to agree with the jury's "not guilty" verdict for one simple reason: the testimonies were bad (they changed them several times) and the evidence was inconclusive. I have absolutely no doubt that these events occurred, but I would never send that maniac to prison based on the evidence they were given. The court simply must be as careful as possible.

rank sophist said...

We - western civilization - has been running trials for 2500 years, and our current process has vastly more protection, vastly more care for the innocent than any older example. Are you saying that not only is our current system NOT CAREFUL ENOUGH even now, but that every prior system was so degraded as to be unconscionably evil? "Cause that's what seems to be to be the inevitable conclusion from your points.

I am not tremendously familiar with the protections offered by the legal systems that existed between the time of St. Augustine and now, but, if what you say is true, then I would have to agree that they were absolutely horrendous. "Evil"? This would imply intention--and I honestly don't believe that most courts are broken of their own free will. It is a matter of circumstance.

If he means that his students might save the life of someone who is guilty but not guilty in such a way as deserving of death - well, yeah, of course. If he means they might save their SOULS, well that's good too, much better than merely saving their lives. But I think your use of the quote misses the real point - it is not to use rhetoric to make sure the guilty get off without just penalty. Nobody here wants the innocent to be pursued. I simply think just punishment should be the norm. If, after a trial as fair as we can make it (within reasonable bounds), the just, proportionate punishment is death, then that's usually what ought to happen.

My edition of Confessions (Chadwick) comes with a note after that part I quoted: "Augustine formulates the principle that an advocate should not throw dust in the eyes of the court, but is entitled to require that the prosecution prove their case, even when he may think his client guilty. He holds that it is worse for an innocent person to be condemned than for a guilty person to be acquitted."

My point was that by "defending the guilty", we protect the innocent. By being more careful with our application of the death penalty in iffy cases--which are by far the most common kind--, and by requiring utterly convincing evidence that is free of fraud or bias before an execution, we might let off certain guilty persons. But it is not justice to execute a guilty person on bad evidence any more than it is to fire randomly into a crowd of people and hit a serial killer. The problem now is that we do not follow St. Augustine's advice: we execute people (such as last year's infamous Troy Davis) whom we have not proven guilty. Whether or not these people really are guilty is irrelevant to the issue of justice and due process, despite what the ideologues might say. The execution of these men is murder whether or not they are truly guilty, because the ends do not justify the means.

Tony said...

Rank, you have to do more than simply throw accusations around. Do you have some sort of substantive basis for your claim that we do not give due process most of the time? I cannot imagine what that evidence would be, but if you have it, come forward with it. Otherwise, all you are saying is SOMETIMES the system is abused. Well, yes, sometimes it is, and in those cases bad men abuse the system to do evil things. That says nothing about the number of times it is correct.

My point about 2500 years is this: if after 25 centuries of trying to get a fair system, we STILL cannot make a system fair, then perchance what you ought to be claiming is that there is no way to make a fair trial system. So we should not be trying people - we cannot do it fairly.

Of course, that argument lands equally on all the non-capital cases. So what you would be arriving at is no justice system at all. Either we attempt to apply the fairest rules we know, or we give up. If the fairest rules we know fall short some of the time, that's not proof that they are not fair AS MUCH of the time as we can manage, and MUCH of the time simply. And the proper conclusion to "as far as we can manage" when we get a conviction is the proportionate punishment. Nothing you have said makes it inappropriate to use the DP in the cases where we are sure.

Daniel Smith said...

j hall,

Thanks for the discussion. I would just say that the distinction between motives and intentions is not enough for me to condemn the father in this case. Maybe that's "un-Christian" of me but...

MarcAnthony said...

So my fellow Catholics, what DO you think of this quote from the Catechism?

“Assuming that the guilty party’s identity and responsibility have been fully determined, 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. 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. 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.”

Papalinton said...

Tony,
Rank is reflecting the best judicial system we can hope for and on this I'm with him. There really is no justification today for the DP simply on the basis that it fits the proportionality of the said crime. Even if we wish to define it differently, retributive justice will always be a subsumed derivative of revenge, regardless of whether someone within the community seeks and carries it out or whether we allow the depersonalized anonymous State to carry it out on behalf of citizens. It is still revenge, institutional revenge.

And as Rank notes there are far too many problematic issues in imagining an eye-for-an-eye approach is appropriate even in what we perceive are the simplest of open-and-shut cases.

Civil society is genuinely reflecting on the issue and are becoming increasingly convinced that the DP is not a proper nor moral response that the community should continue to advocate going forward.

Tony said...

Papalinton, so what you are saying is that you repudiate the conclusions Feser has put forward, but you don't bother to give an argument for your position.

Like your earlier attempt: you personally don't think there is any difference between society exacting retributive punishment, and simple personal revenge - so you tried to frame your personal opinion as Catholic Church teaching. Well, the modern Church's stepping away from CAPITAL punishment has absolutely nothing to do with its perennial, constant, and STILL upheld doctrine that retributive punishment is not equivalent to personal revenge, and I showed that. It has to do instead with prudential judgment about the best way to pursue justice given defects in the system. So unlike the Church you oppose ALL punishments as retributive, and you would seek them solely to defend society from criminals. Well, that's nice, but where's your argument? It simply isn't true that "Civil society is genuinely reflecting on the issue" and coming to the conclusion that retribution is a morally defective stance. And that wasn't what Pope JPII was claiming in EV, either.

St. Thomas explains the basis for retribution: a man owes obedience to the state's authorities, insofar as he is social, is ordered to the common good, and they have responsibility to rule for the common good. So when a man freely chooses to defy the law, and satisfy his own will in some matter, he causes defect on 2 levels: he both damages the specific aspect of the common good that that specific law was intended to protect, AND he damages the general good by eroding peace and order and justice as pertaining to the whole social order by his defiance. We can (sometimes) get a repair of the specific good lost by fines and other specific remedies. But then the general ill remains: the redress consists in his suffering something contrary to his will at the hands of the state, proportionate to the degree in which his will was in opposition to the common good.

Since this is the PRIMARY purpose of punishment, all the other, secondary purposes (including reformation, deterrence, and protection of society) cannot be just without observing that defining proportionality. What you are implying - by eradicating retribution - is that there is no rationale for proportionality, so punishment can go on and on and on forever as long as you fear the criminal might be a danger, or if you feel that a stronger punishment might be even more deterring regardless of how minor the crime was. Or even imposing "punishments" as sheer example, even if a person is not guilty. For it is on the basis of retribution that punishment retains its core connection to justice.

rank sophist said...

Rank, you have to do more than simply throw accusations around. Do you have some sort of substantive basis for your claim that we do not give due process most of the time?

I did not say that we don't do it most of the time. I have firm respect for our legal system, particularly after having that opportunity to see it work from the inside. I'm saying that, every year, there remain high-profile cases in which we fail to give due process. Whether or not there is an epidemic behind the scenes, I cannot say; but it is clear from the racially-biased population of death row, and from the half-baked evidence in cases like Davis's (and others), that we are not taking enough practical precautions with the death penalty.

Otherwise, all you are saying is SOMETIMES the system is abused. Well, yes, sometimes it is, and in those cases bad men abuse the system to do evil things. That says nothing about the number of times it is correct.

Like I said, I never claimed that the death penalty was abused in 90% of cases or anything. I'm merely pointing out, based on certain facts, that it is clearly being applied sloppily and unjustly. (Also, police fraud and jury bias are age-old problems attested to countless times over the years. It is not possible to measure these things statistically, although their effects are hinted at by the racial disparity of death row inmates, among other things.)

My point about 2500 years is this: if after 25 centuries of trying to get a fair system, we STILL cannot make a system fair, then perchance what you ought to be claiming is that there is no way to make a fair trial system. So we should not be trying people - we cannot do it fairly.

This is like saying that, because we cannot live without sinning, we should just stop trying to avoid sin. Hopeful perseverance in the face of impossibility is a long Christian tradition.

And the proper conclusion to "as far as we can manage" when we get a conviction is the proportionate punishment. Nothing you have said makes it inappropriate to use the DP in the cases where we are sure.

I am not against the death penalty in such cases. As I suggested before, Thomism has convinced me of its validity--and Feser makes excellent points about its purpose. My concern is whether our current standards for its application violate justice and the principles of St. Augustine, and I believe that they do. The problem is not that the death penalty is revenge, or that it is "immoral" to kill someone, but that our country simply does not take enough care in its application. It is a practical rather than moral concern. In my opinion, the death penalty should be available but heavily limited, with greater checks and balances against abuse, so that we really do demand a rock-solid case and a fair trial. In the cases of clear murderers like those in the Beltway sniper attacks, the death penalty is clearly appropriate--even demanded. But in vague cases like many of those presented in courts, in which the evidence is inconclusive and the probability of fraud or bias greater, we need to be more far careful than we are now.

rank sophist said...

Pardon me: "far more careful than we are now."

BenYachov said...

Paps it would help if you would stop thinking politically and learn to think philosophically.

BenYachov said...

Now let me say something positive about you Paps.....

Stand bye.

Watch this space.

rank sophist said...

I would like to reiterate one more point.

If we began allowing the death penalty for molestation, we would put the innocent at risk even more than we already have. Simply making molestation a crime severe enough to warrant the death penalty will massively increase the number of accusations, the number of false testimonies and other things. Remember that it is not possible to execute someone in this country unless the offense is of a certain degree; and so molestation would have to be elevated to the level of murder. But this would have wide-ranging, destructive effects across the board. For every one actual molester, you would have five false alarms or fraudulent claims, because of the nature of the offense itself. This, to me, seems like a clear case in which we need to invoke Augustine's principle that saving the innocent is more important than convicting the guilty. Were we to begin executing people for molestation, we would put untold numbers of innocent lives at risk.

rank sophist said...

And this, to me, would be an institutionalized sin against justice.

BenYachov said...

>Rank is reflecting the best judicial system we can hope for and on this I'm with him. There really is no justification today for the DP simply on the basis that it fits the proportionality of the said crime.

On the grounds of prudence this is a valid argument but it doesn't mean we must throw out or have thrown out the retributive principle.

>Even if we wish to define it differently, retributive justice will always be a subsumed derivative of revenge, regardless of whether someone within the community seeks and carries it out or whether we allow the depersonalized anonymous State to carry it out on behalf of citizens. It is still revenge, institutional revenge.

This is where you go off the rails. All legitimate Governments have a moral right by both natual and divine law to use force to make people obey the law.
No government by nature can commit revenge they can only act unjustly when punishing by using excessive force or falsly punishing the innocent.

Just as a soldier can't commit murder on the battlefield when killing a hostle combatant who refuses to surrender.

>And as Rank notes there are far too many problematic issues in imagining an eye-for-an-eye approach is appropriate even in what we perceive are the simplest of open-and-shut cases.

These are arguments from prudence as to why we shouldn't employ the death penalty.

>Civil society is genuinely reflecting on the issue and are becoming increasingly convinced that the DP is not a proper nor moral response that the community should continue to advocate going forward.

The death penalty is not against natural law thought the argument of it's prudence is an open question.

One could say the same of slavery. Paps you may want to use the search engine on this blog and read what Feser says Aquinas says on slavery.

It is morally consistant with natural law if you want to voluntarly of your own free will sell all your future labor to me and become my slave. But scholastics have argued for centuries that even thought that is the case the abuses associated with slavery are such that it should not via prudence allowed to be legal.

This post is better than your usual fair Paps.

If only you would do this more often instead of once in a blue moon.

Papalinton said...

While Aquinas and Augustine have said many things about a rationale for the DP, their advice must be considered very cautiously and with some trepidation, when one is mindful of the social and cultural context in which they lived. And while their views have serve well, it is clear that they are of questionable value in expressing how contemporary community should treat its members in the matter of capital punishment. In all Western countries, the DP is no longer an issue with its outright rejection as a measure of institutional punishment. Even Canada dispensed with the DP in 1976 and Australia much earlier. Civil society is better for it.

It is rather an anomaly that the US is the only western country practicing the death penalty. [Japan and the US are the only fully developed countries that still engage in this practice]. However that is changing as we speak. [South Korea currently has a moratorium on the DP.] At the moment capital punishment is considered constitutional by the US Supreme Court, but many states do not. Fourteen states and the District of Columbia have formally abolished the death penalty; New York has declared part of their capital punishment statute unconstitutional, and is not engaging in this practice; and there are still thirty-five states that practice the death penalty. I suspect adherence of the DP in those states is predominantly a consequence or an outcome of theological considerations.

It is clear that the thoughts of Aquinas and Augustine are of lessening importance in the discussion on how the community should conduct its affairs on the matter of not only the proportionality of punishment but the changing moral and ethical concerns related to maintaining the somewhat archaic practice.


Tony said...

Papalinton, all your catalog of countries changing their minds does is throw open a much wider question: are all these countries doing something GOOD, or something rotten? Nearly all, if not all of the countries you mention, have relaxed or abolished laws against fornication, which is manifestly immoral and manifestly a grave social evil. The fact that generally society is clearly becoming worse off in this respect means that it may be doing so also in respect of the understanding of justice and punishment as well.

And, once again, you don't propose any sort of rationale that actually DEALS with the principles involved. You don't attempt to defeat the arguments given, you simply don't like the conclusions. Well, tough. Your personal preferences are not at issue. If the principles and rational argument show that retribution is the primary purpose of punishment, then the fact that you personally oppose it is irrelevant.

MarcAnthony said...

What do you think the rationale was for the writers of the Catechism, then? Because they certainly seem to come to far different conclusions then you currently do.

MarcAnthony said...

By "you" I am referring to Dr. Feser and those who agree with him wholeheartedly.

Papalinton said...

Tony
"The fact that generally society is clearly becoming worse off in this respect means that it may be doing so also in respect of the understanding of justice and punishment as well."

How so? And you are absolutely sure fornication is a good measuring stick against which we can measure the worth of a community, right?

Tony said...

It doesn't matter whether it is a "good measuring stick" or not. It only matters that society can become degraded with respect to one aspect or another. If it can with respect to A, then it is possible with respect to B.

Tony said...

Or. to put it another way, why in the world would you applaud JPII's way of thinking about the DP, is if that thinking is so sound, and yet deplore his pointing to how society is becoming more and more degraded sexually. All western countries have seen increases in pre-marital sex, divorce, out-of-wedlock births, etc. If "what western societies are choosing" is a worthwhile measuring stick, then you would have to say that ditching old-school morals about sex is what they see as the better option, in direct contradiction to JPII and BXVI.

Anonymous said...

The negative exploitation and killing of human beings by human beings violates the heart in one and all.

Murder and revenge are inherently morally wrong and never justified. Therefore, capital punishment is morally wrong and never justified.

Murder is not a human right, revenge is not a human right, and capital punishment is not a hujman right.

People and whole societies that commit acts of either murder or revenge thereby toxify and harm, and even potentially destroy themselves. The moral integrity and the altogether human integrity of humankind is aggressively discarded and lost in acts of mirder and revenge, whether committed individually and collectively, Thus, the exercise of capital punishment violates an inherent moral law in the human depth.

To perform, or to watch, or even to condone capital punishment is, necessarily, to perform, watch, or cordone murder, blood-lust, revenge-killing, evil intention, and heart-negating purposes. Proof of this is in the fact that, virtually universally, ALL who perform, watch, or condone any kind of real physical human-to-human violence feel and unavoidable and unquenchable hurt in their hearts.

MarcAnthony said...

Anonymous on September 25 at 9:25 PM, you did nothing at all to refute Dr. Feser's argument, just made various unsupported assertations.

Tony said...

What do you think the rationale was for the writers of the Catechism, then? Because they certainly seem to come to far different conclusions then you currently do.

Good question. I am open to suggestions. In the end, we can see elements of their thinking in their arguments by which the developed their prudential conclusions. Some of them were such things as (a) the importance showing and giving mercy in a Godly way of living; (b) avoiding the coarsening and degradation in some circles bloodthirstily "celebrating" executions, like the Romans in the Coliseum; (c) the potential value of distancing ourselves from the culture of death with respect to even not-required refraining from causing death. You can add to these putatively positive reasons, probable inappropriate reasons, such as (d) an apparently conscious and deliberate refusal to allow God's words in Genesis 9:6 to be used to base man's dignity in God's image: "Whoever sheds human blood, by humans shall their blood be shed; for man was made to the image of God"; and (e) at least in the ranks of the bishops, a persistent lack of political prudence, acumen, wisdom - demonstrable from numerous sources.

Each of (a), (b), and (c) positions have answers in the order of prudential judgment. The question of which is stronger, the position for or the position against on each point cannot be definitively settled as a matter of principle - that's what "prudential issue" means.

Mr. Green said...

Tony: Each of (a), (b), and (c) positions have answers in the order of prudential judgment.

It's also worth noting that the paragraph arguing against the need for executions does so in the context of protecting the population; and it doesn't really address the issue dealt with in Feser's post. That leaves an implicit invitation to counter the a/b/c arguments in light of the opening acknowledgement that the death penalty is not intrinsically evil. But it does leave the whole section in a somewhat awkward position, leading to inevitable speculation about (d)-type reasons.

Tony said...

Mr. Green, I have made exactly that point extensively in other discussions. What JPII does is first introduce DP in the light of punishment, which falls under the arena of the common good Justice. Then he separately introduced the DP in the light of protection of society, which falls under the arena of the common good Safety. He nowhere even MENTIONS that these are two separate, irreducible elements of the common good which the state must pursue, nor does he even hint that the prudent judge must evaluate the relative pros and cons to pursuing one more specially than the other, rather than both of them together. Which (again) makes the determination one of prudence for each and every case.

If I had not seen JPII quote the second half of Genesis 9:6 (man is made in God's image) without quoting the first half, I might not have raised the point in (d). But since he did, (in EV 39), it seems a possible consideration. I am pretty sure I have never seen a single statement by a bishop in the last 40 years on the topic that quotes Genesis 9:6.

Another thing I have never seen a bishop (or other clergy) recognize is something that follows from JPII's juxtaposition of the primary purpose of punishment as retribution for justice and the limitation of DP for safety: by definition, the state that is constrained by circumstances to refrain from using the DP ONLY to those cases where safety demands it is a state that CANNOT achieve justice in full. It is a state that is degenerate in its condition, falling away from true principles of life, become so far removed from justice to not even recognize it in punishment.

Of course, this plays hob with the favorite meme of liberals: that "society is improving itself past the point of needing to use the DP, and we recognize that more and more in western countries." Nope, not if inherent in that "getting better" is a failure to even UNDERSTAND the justice meaning behind penal imposition. As exemplified by Papalinton and Anon. above. What is much more realistic morally speaking is that the very same society that is losing its virtues of industry for laziness, self-reliance for reliance on others, temperance for gluttony and licentiousness of every kind, and modesty for immodesty and pornography, is ALSO losing its virtue of justice.

Anonymous said...

What best sums up my position against capital punishment is that there have been and will continue to be innocence people on death row.
If we could obtain a 100% proof positive that every person on death row deserves to be there, I would reconsider my position from a fresh start.

Tony said...

We have innocent people in prisons. Does that turn you against prisons too? Should we abolish prisons until we have 100% proof positive that only the guilty get sent to prison?

We have parent's punishing innocent children every day, because they make mistakes about what happened and who was at fault. Should we ban punishing children until we can be 100% certain we only punish the guilty?