Friday, September 30, 2016

Robert P. George on capital punishment (Updated)


Mark Shea and I have been debating Catholicism and capital punishment.  (See this post and this one for my side of the exchange and for links to Shea’s side of it.)  Shea has been talking to “new natural law” theorist Prof. Robert P. George about the subject.  He quotes Robbie saying the following:

In fact, the Church can and has changed its teaching on the death penalty, and it can and does (now) teach that it is intrinsically wrong (not merely prudentially inadvisable). Both John Paul II in Evangelium Vitae and the Catechism reject killing AS A PENALTY, i.e., as a punishment, i.e., for retributive reasons. Rightly or wrongly (I think rightly, but the teaching is not infallibly proposed—Professor Feser is right about that—nor was the teaching it replaces infallibly proposed) the Church now teaches that the only reason for which you can kill someone who has committed a heinous crime is for self-defense and the defense of innocent third parties. You can’t kill him AS A PUNISHMENT, even if he’s Hitler or Osama bin Laden, once you’ve got him effectively and permanently disabled from committing further heinous crimes. There is no other way to read Evangelium Vitae and the Catechism. The interesting debate, I think, is about the status of the earlier teaching and what kind of assent, if any, it demanded of faithful Catholics…

End quote.  This is a common interpretation of John Paul II’s teaching among those committed to the “new natural law” theory invented by Germain Grisez in the 1960s.  Joseph Bessette and I critique this and other aspects of the “new natural law” approach to capital punishment at length in our book By Man Shall His Blood Be Shed: A Catholic Defense of the Death Penalty, forthcoming from Ignatius Press.  For now let me briefly summarize some of the very serious problems with the view Robbie expresses.

First, it is at best extremely misleading (indeed, I would say simply false) to assert flatly that the Church “has changed its teaching” in the way described.  The very most that can be said is that some moral theologians claim that this is the right way to interpret John Paul II (mainly those moral theologians influenced by Grisez’s “new natural law” theory, which was independently heavily invested in the idea that capital punishment is intrinsically immoral long before Evangelium Vitae appeared).  There are many other prominent Catholic moral theologians who reject this interpretation, such as the late Cardinal Avery Dulles and Prof. Steven A. Long.

Second, a major difficulty for Robbie’s assertion is that then-Cardinal Ratzinger, speaking as head of the CDF and the Church’s chief doctrinal officer, explicitly denied that John Paul II had made any change to the Church’s teaching on capital punishment at the level of doctrinal principle (as opposed to prudential application of principle).  In a letter responding to an inquiry from Fr. Richard John Neuhaus about whether the teaching of Evangelium Vitae and the Catechism represented a doctrinal change, published in First Things in October of 1995, Ratzinger said:

Clearly, the Holy Father has not altered the doctrinal principles which pertain to this issue as they are presented in the Catechism, but has simply deepened the application of such principles in the context of present-day historical circumstancesIn my statements during the presentation of the encyclical to the press, I sought to elucidate these elements, and noted the importance of taking such circumstantial considerations into account.  It is in this sense that the Catechism may be rewritten, naturally without any modification of the relevant doctrinal principles. (emphasis added)

That’s about as clear a rejection as there could be of the thesis that the teaching of Evangelium Vitae and the Catechism represents a change in doctrine rather than merely a change in prudential application of doctrine. 

Third, the thesis that Robbie (wrongly) attributes to John Paul II – that the execution of a criminal cannot be regarded any longer as a matter of penalty, punishment, or retributive justice, but instead only as a kind of defense – is extremely morally problematic.  If the pope really were saying that it is legitimate to execute someone merely because he poses a danger and that retributive justice has nothing to do with it, then this would in principle allow the killing even of the innocent.  For example, suppose someone is dangerous to others, not because he freely chooses to harm them, but because he has a severe mental illness and can’t control his violent impulses.  According to the thesis Robbie attributes to the pope, such a person could in principle be sentenced to death merely for the sake of keeping others safe.  But this is surely not what the pope intended to teach, and indeed it contradicts his explicit teaching that the innocent may never in principle be intentionally killed. 

(Those who oppose the very idea of retributive justice – the principle that an offender deserves a punishment proportionate to his crime – often fail to realize that this principle protects the innocent and much as it threatens the guilty.  The traditional case for capital punishment holds that only those who deserve death can be executed, not those who are innocent, including the mentally ill.  To reject the principle of retribution is implicitly to accept the principle that it is not what people deserve that should determine how we treat them, but rather some other criterion, such as consequentialism, that should do so.  It is thus the defenders of the retributivist view, and not its critics, who truly uphold human dignity.)

Now, the “new natural lawyers” also think the innocent may never intentionally be killed.  Indeed, they think that no one, not even the guilty, may ever intentionally be killed.  So, it might seem strange for them to attribute the thesis in question to the pope.  But there is a larger motivation here, because what the “new natural lawyers” want to be able to do is to argue that the teaching they attribute to the pope is really just a stepping stone on the way to the further conclusion that all execution, even as defense, is always and intrinsically wrong.  But the thesis that all intentional killing, even of those guilty of the worst crimes, is always and intrinsically wrong, was not John Paul II’s teaching and it is not the Church’s teaching.  It is merely Germain Grisez’s teaching, which his followers would like the Church to find a way to take on board. 

Fourth, the thesis that the execution of criminals is legitimate even in principle only as a matter of defense and never as a matter of punishment or retributive justice would not (contrary to what some Catholics falsely suppose) be a mere “development” of previous doctrine.  It would (as Cardinal Dulles pointed out) in fact be an outright reversal of previous doctrine, a contradiction of previous doctrine.  For scripture, the Church Fathers, the Doctors of the Church, and various popes throughout history not only teach that capital punishment is legitimate in principle.  They teach that it is legitimate in principle even when carried out merely for purposes of retributive justice

Fifth, contrary to what Robbie asserts, this previous teaching is in fact infallible.  Every Catholic must assent to it.  The First Vatican Council solemnly teaches that:

[T]hat meaning of Holy Scripture must be held to be the true one, which Holy mother Church held and holds, since it is her right to judge of the true meaning and interpretation of Holy Scripture.

In consequence, it is not permissible for anyone to interpret Holy Scripture in a sense contrary to this, or indeed against the unanimous consent of the fathers.

The Council of Trent taught the same thing.  Now, many scriptural passages teach not only that capital punishment is legitimate, but also that it is legitimate even just for purposes of securing retributive justice.  (Cf. the examples Joe Bessette and I cited in our recent Catholic World Report article.)  And the Church, from the Fathers onward, has always understood these passages this way.  The various contemporary attempts creatively to re-interpret such passages simply cannot be squared with the principle that scripture must be understood to mean what the Church has always “held” it to mean.

Even Christian Brugger, the “new natural law” theory’s point man on the biblical and theological side of the capital punishment debate, admits that certain key biblical passages (such as Genesis 9:6) are very difficult plausibly to interpret except as a sanction of the death penalty.  He also admits that the Fathers, even those who opposed the use of capital punishment in practice, are unanimous in their view that capital punishment is sanctioned by scripture and thus legitimate in principle.  But interestingly, execution for the sake of “defense” is the one purpose of capital punishment that we do not find much if at all discussed in scripture or the Fathers.  The purposes they almost always emphasize are retribution and deterrence.

Now, if scripture is infallible on faith and morals, and scripture teaches that capital punishment can in principle be legitimate even just for the purpose of retribution, then it is a straightforward logical deduction that it is infallible teaching that capital punishment can in principle be legitimate even just for the purpose of retribution.  This is one reason why there is simply no other way to interpret recent popes’ tendency toward abolitionism except as a prudential judgment (and specifically what I have elsewhere called a category 5 magisterial statement, with which Catholics are at liberty to disagree).  There is no “wiggle room” here whatsoever.  (Brugger’s tortuous attempt to get around this problem is given a detailed and thorough refutation in the forthcoming By Man Shall His Blood Be Shed, in which all the other points summarized here are also developed at length.)

This is why Cardinal Ratzinger, despite his personal opposition to capital punishment, made the statements he did about the subject during his time as head of the CDF, i.e. to the effect that John Paul II’s teaching was prudential rather than doctrinal and to the effect that a good Catholic could disagree with it.  This is what Ratzinger’s famous “hermeneutic of continuity” with past teaching – and thus the very credibility of the magisterium of the Church – strictly requires.

Those of us who make this point are, accordingly, not “battling the Church” (to use a phrase Shea keeps repeating like a mantra).  On the contrary, we are, like then-Cardinal Ratzinger, defending the Church’s claim to have preserved the Deposit of Faith whole and undefiled.

[For further discussion of capital punishment, including criticism of other aspects of the “new natural law” position, see the posts and articles collected here.]

UPDATE 10/1: I've noted in earlier posts that views like the "new natural law" position on capital punishment give aid and comfort to Protestant critics of Catholicism, who falsely accuse the Church of manufacturing novel doctrines and contradicting scripture.  The Calvinist blog Triablogue cites Prof. George's remarks as confirming evidence for this accusation.

33 comments:

Anonymous said...

"Mark Shea and I have been debating Catholicism and capital punishment."

You've been discussing and Shea has been emoting.

-NP

Jeffrey S. said...

God bless you and the work you are doing.

Thanks so much for this careful and well-thought out piece Ed.

As soon as I saw Professor George's statement, I knew it was problematic.

DNW said...



I'll have to do some more reading on "The New Natural Law" but from here it smells vaguely like the kind of cake baked by John Rawls.

https://michaelpakaluk.com/2013/08/08/critiques-of-the-new-natural-law-theory/

awatkins909 said...

I think you are right on the doctrinal question. (I have immense respect for Robert P. George, but he doesn't seem to me to be the best exegete when it comes to the interpretation of Catholic pronouncements.)

With that said, I would point out that I don't think this is an essential part of the "new natural law" theory, at least if that is understood as being different from just what certain people called "new natural law" theorists hold concerning this particular question. John Finnis defended capital punishment in 'Aquinas', but seemingly changed his view later on, without comment. Whereas I don't see anything wrong with his earlier view, even with respect to "NNL" standards.

In short, I would attribute this mistake to these persons' particular failure in interpreting Church doctrinal pronouncements. But the "new natural law" theory (which is arguably not so "new"), as a theory, is still basically sound. I'd just accept that capital punishment is sometimes permissible even as an act of (and because it is an act of) retributive justice, just like the old Finnis.

Greg said...

@ Alfredo

The "no intentional killing" thesis is an essential part of NNL. If life is a basic good and the Pauline principle prohibits intentional destruction of basic goods, then all intentional killing is prohibited. Neither of those positions are ones that NNL can easily give up.

Finnis's argument for the compatibility of capital punishment with NNL is a bit obscure:

[A] person who violates the order of fairness, which can be described as a system of rights, forfeits certain of his own rights. That is to say, he loses the right that all others shall respect in his person all the basic aspects of human well-being [basic goods]. For those persons (and only those) whose responsibility it is to maintain the order of basic goods, in order to restore the order of justice he disrupted. This act of deprivation will be, in one sense, an intentional attack on or suppression of basic human goods. But . . . the deprivation or suppression will be intended neither for its own sake nor as a means to any further good state of affairs. Rather, it is intended precisely as itself a good, namely the good of restoring the order of justice, a restoration that cannot (logically cannot) consist in anything other than such an act of deprivation or suppression.

The reasoning in the previous paragraph shows why even capital punishment need not be regarded as doing evil that good may come of it, nor as treating the criminal as a mere means, nor as a choice which must be characterized as either wholly or primarily an attack (however well motivated) on a basic good.
(Fundamentals of Ethics, pp. 130-131)

It is good, Finnis was arguing, for a person who deserves death to die; the penal system intends not his death but rather just that the disorder of his injustice be restored. To accomplish the latter end, we inject him with certain chemicals or put his head on the chopping block.

As I understand it, the official NNL retraction of this view is that it is false that "the deprivation or suppression will be intended neither for its own sake nor as a means to any further good state of affairs." Because justice can only be accomplished ("logically," Finnis insists) if his death is brought about, someone who intends to accomplish justice must intend his death.

That seems to me a more plausible application of NNL than Finnis's original attempt to square it with capital punishment. If the restoration of justice for a criminal deserving death involves the criminal's death, then it seems that the executioner restoring justice is going to be killing the criminal, intentionally, as means to his end, even on the thin, purely first-personal action theory of NNL.

papabear said...

Excellent.

David M said...

On Ed's first point, "the Church" is apparently just George's shorthand for "JPII (and subsequent popes), the CCC, and EV" (which is, strictly speaking, questionable, but not entirely unreasonable).

On his second, it's not really as clear as could be. Neuhaus's comment on Ratzinger's comment is: "The above clarification should be welcomed by Catholics who may in good faith disagree over whether the death penalty is necessary for the defense of society, and by the many other people who depend upon the constancy of the Church’s teaching." IOW, the emphasis here is just what George claims: DP legitimate as defense (not as punishment). That is what seems to be referred to as the "relevant doctrinal principles" which are allegedly constant.

On Ed's third point, JPII and George claim that execution is *only* justified as a means of defence, not that it is *always* justified as a means of defence or that when it is justified as a means of defence it serves only as a means of defence and not *also* as a retributive measure.

With the rest I agree.

Vincent Torley said...

Hi Ed,

You write:

"For example, suppose someone is dangerous to others, not because he freely chooses to harm them, but because he has a severe mental illness and can’t control his violent impulses. According to the thesis Robbie attributes to the pope, such a person could in principle be sentenced to death merely for the sake of keeping others safe. But this is surely not what the pope intended to teach, and indeed it contradicts his explicit teaching that the innocent may never in principle be intentionally killed."

OK. So what would you do, when confronted with an innocent aggressor like that? Suppose there were no secure, reliable method of imprisoning him permanently, in the subsistence society in which you lived. What then?

James Chastek said...

Hi Ed,

Do you think the proportionality of punishment justifies drawing and quartering or breaking at the wheel? Said another way, is any crime proportionate to a particularly painful death, and if not, why not?

Don Wachtel said...

This is from Fr George W. Rutler in the National Catholic Register, March 24-31, 2002

Many Americans dismissed Alexander Solzhenitsyn when he criticized the decadence of Western Culture. Others more recently ignored his plea for a restoration of the death penalty: "There are times when the state needs capital punishment in order to save society." This is Christian doctrine. Since popes are preserved from essential error by "grace of state," none has wrongly claimed authority to call capital punishment morally evil.

"Development of doctrine" does not apply here.

As the Church's teaching on contraception cannot "develop" in a way that would declare its intrinsic evil to be good, so the right of a state to execute criminals cannot "develop" so that its intrinsic good becomes evil. For Cardinal John Henry Newman, development of doctrine involves "preservation of type." Changes in the way a doctrine is expressed and applied cannot alter its essence.

The new edition of the Catechism revises the section on capital punishment. This was not a development of doctrine. It was, however, problematic for placing a prudential judgment in a catechetical text, more problematically so than in an encyclical like Evangelium Vitae. Paragraph 2266 of the Catechism names the primary consideration of retribution, but No. 2267 ignores it.

There has been a development, not in essential doctrine, but in moral criticism. Here, I am edified by the fine scholastic logic of Justice Scalia, as when he identifies the mistaken modern equation of private morality and governmental morality.

Catholics have distinguished between peace and pacifism. They disserve systematic theology when they fail to make a parallel distinction between the dignity of life and a total ban on capital punishment. The cogency of Catholic apologetics crumbles when reason is abandoned for sentimentality in consequence of philosophical idealism and subjectivism. We also may be witnessing here some tension between personalist phenomenology and Thomist realism.

Absolute rejection of capital punishment weakens the cogency of pro-life apologetics. Some churchmen cite skewered statistics on the execution of innocent victims.

The pastoral commentary of the Church guides moral method, but the prudential calculus, in punishment as in the declaration of war, rests in the civil government whose authority pertains to natural law and is not granted by the Church. To propose otherwise under the guise of doctrinal development would be a species of clerical triumphalism that post-Enlightenment humanists claimed to abhor. Few see this as clearly as a distinguished Justice of the U.S. Supreme Court.

awatkins909 said...

Greg: You said: "As I understand it, the official NNL retraction of this view is that it is false that "the deprivation or suppression will be intended neither for its own sake nor as a means to any further good state of affairs." Because justice can only be accomplished ("logically," Finnis insists) if his death is brought about, someone who intends to accomplish justice must intend his death."

I think this is a proper interpretation of the usual NNL argument against capital punishment.

However, I do not think the statement you put in quotes is false. I think Finnis's original view, which you quote in that paragraph, is correct: That the killing is not intended per se -- only justice is, even though it is constitutive of that act of justice that a death will be brought about. (Obviously there is more to be said about what principles of morality govern acts where some harm will be brought about as a constitutive part of the good promoted; but they cannot be ruled out as intrinsically wrong always.)

"Because justice can only be accomplished ("logically," Finnis insists) if his death is brought about, someone who intends to accomplish justice must intend his death."

Certainly the mere fact that justice can only be accomplished if his death is brought about (material conditional) does *not* entail it is the intentional object of the act.

This is one of those cases where I think the notion of intention and the Pauline Principle needs to be specified in a more fine-grained fashion; admittedly, there is work to be done. (Just as a side note: Mark Murphy specifies the Pauline Principle as 'It is never permissible to intend some evil as a means to bringing about some good', leaving open whether in the case of capital punishment death is intended as a means.)

I think similar things about intention must be said about harming others in self-defense, lethal force in war, in certain seemingly legitimate sports, such as boxing and MMA, and possibly even in the case of lying. In none of these cases is the death (or harm) sought as a means toward bringing about some good, even if it seems there is a sense in which harm is "intended" in these cases.

If in my understanding of intentions and the Pauline Principle I have crossed the threshold such that I can no longer be called a New Natural Law theorist, then so be it -- the name isn't what's important; what's more important is that most of the classic NNL views about basic human goods, principles of practical reasonableness, intention, morality, the common good, justice, the law, etc. remain perfectly untouched.

awatkins909 said...

One follow up: I'm not sure what the force of "logically" is doing there above in regards to the conditional. I gather I was wrong to interpret it as even a logically necessary material condition. But if the force of the "logically" is "constitutive" rather than "as a means" then it need not be problematic.

Edward Feser said...

Hi James,

First, keep in mind that my position, like that of traditional natural law theorists generally (and unlike Kant's position, which is much harsher), is not that the state must always inflict the penalty that is deserved. There may be reasons, including moral reasons, to inflict a lesser penalty than what the offender merits.

Second, yes, a person can certainly deserve punishments as gruesome as what you described, but I do not advocate inflicting such punishments. For one thing, there are grave moral hazards involved in inflicting them that are not present in a straightforward execution.

Joe and I discuss this in the book, and I have also said a bit about it in exchanges with Chris Tollefsen (who brought up the question of whether rapists should be raped), which you can find in the post linked to at the end of the OP.

Anonymous said...

Anyone else shocked/scandalized by Robert P. George's statement? It's an unbelievably obtuse statement for an apparently devout, highly educated Roman Catholic to make.

Un-freaking-believable.

awatkins909 said...

Ed,

I agree with your update: To avoid scandal, faithfulness to Church teaching is absolutely essential, *especially* for Catholics who are noteworthy for defending controversial politically incorrect Church teachings. (Protestant: "If even these guys can't get it right, then clearly the Church is all over the place.")

That said, in spite of my immense respect for George, I would not necessarily count him as an authority on the interpretation of conciliar decrees or historical papal pronouncements, and so the charge that the Church is unclear on this matter is bogus: George is an excellent lawyer, political theorist, and ethicist, and sincerely aims to be a faithful Catholic; that doesn't make him an excellent theologian or Church historian. So it is absurd for Protestants to move from the fact that he misinterprets Church teaching on this to the conclusion that the Church's teaching is unclear.

Aquinas3000 said...

Watkins, NNL theory has a very difficult time explaining why any act is a sin. This is because they say something is evil only if the evil as such is intended. The problem is not act is intended under the aspect of evil as such. There is a good discussion of this in di Blasi around p 67 in "God and the Natural Law." Best rebuttal of the theory I have seen is Steven Jensen's new book "Natural Law From Precepts to Inclinations." It blows apart the is/ought dichotomy they take from Hume.

David M said...

awatkins: "I think Finnis's original view, which you quote in that paragraph, is correct: That the killing is not intended per se -- only justice is, even though it is constitutive of that act of justice that a death will be brought about."

That sounds like rubbish to me. When you execute someone, clearly your act is per se an act of killing, bringing about death. Your further intentions that you use to justify that act do not change that. And obviously you can't intentionally kill someone (perform that act of execution) without essentially intending to kill him.

What Finnis said, however, was a bit different: the killing is not "intended for its own sake," nor "as a means to any further good state of affairs." I'm not sure what he means. If it's not intended "for its own sake," it must be intended for the sake of something else, and thus (it seems) as a means to that something else. If it is not intended "as a means to any further good state of affairs," then it must be constitutive of a good state of affairs, but then (it seems) it should be intended for its own sake.

Greg said...

@ Alfredo

Certainly the mere fact that justice can only be accomplished if his death is brought about (material conditional) does *not* entail it is the intentional object of the act.

I think something more is meant by Finnis's "logically" than the mere truth of that material conditional (which, it is right, is not sufficient here), at least in the current NNL arguments against capital punishment.

The following example is generally regarded as one of the most straightforward cases where intentional killing is required on NNL: you kill your uncle in order to collect on his life insurance. Because his death is required for the fulfillment of the contract, it is precisely his death that will have to be part of your proposal, and thus you fall afoul of the Pauline principle.

One couldn't say that one just wanted to bring it about that the contract is fulfilled. There is no way to understand how pulling the trigger while the gun is aimed at the back of your uncle's skull helps you fulfill the contract, unless his death is also part of his plan. Here the connection between your uncle's death and the fulfillment of contract is "logical" or "formal" in a way that (NNL says) the connection between the death of a fetus in craniotomy and the saving of the mother is not.

As I understand, the NNL argument against Finnis's (old, I think) position on capital punishment parallels that one. If a man has committed a crime and thus deserves death, then your killing him bears that same sort of relation to restoring justice. Unless one admits that the criminal's death is part of one's proposal, it is not intelligible to include injecting chemicals into the patient's arm, or setting his head on the guillotine, in the proposal either. There is no reason to think such means bring about justice except by recognizing that the criminal's death is a means intermediate to justice.

To put it in terms of Anscombe's "Why?" question: Suppose we interrogate the uncle-murderer and asked him why he positioned the gun just-so and pulled the trigger. He can, of course, say that he wants to collect the insurance, because he needs the money for... But it's clear that he is deceiving himself and concealing part of his plan. Asked how he thought that means adequate to that end, he is going to have to admit that the uncle's death was also part of his means.

The same is true of the executioner. If you ask him why he injected deadly chemicals into the criminal's arm, he might say that he was aiming to restore justice. But if we ask how he thought that means adequate to that end, he is going to have to admit that the criminal's death was also part of his means.

Greg said...

I suppose I should admit that things are harder than I let on.

If one endorses a "fully first-personal account of human action," then I am not sure what is wrong with the uncle-murderer saying that what he needed was for his uncle to look dead. He knew that, if his uncle looked dead for several days, he would receive the life insurance. Unfortunately, by shooting him in the back of his head, the uncle will not just look dead but will actually be dead, but that falls outside of intention: it is not part of the agent's proposal, and it is not part of what he takes to be needful to his success.

(A standard strategy, when it is shown that some sorts of actions that seem intrinsically wrong are not, on NNL, actually intrinsically wrong, is to argue that they are still immoral. They just have to be judged so by reference to some mode of responsibility other than the Pauline principle. So making my uncle look dead, with the unintended consequence that he dies, will be said to violate the golden rule and thus be unreasonable. This won't really work as a general strategy, though, since it will be perfectly acceptable to permit my uncle's death sometimes, i.e. if we are in the same regiment in war, and I am better situated to fulfill the mission than he is, so I can go on to achieve much other good if I do something that permits his death.)

I think there are actually parallel cases, even with the current, non-Finnis-in-1983 NNL view of punishment. Punishment, they say, can only deprive criminals of instrumental goods, such as liberty of movement, or money, etc., says Tollefsen, "in proportion to the freedom that was unjustly exercised." Punishment should "tak[e] away from the criminal the ability to act as he pleases to a degree that restores, as much as possible, the imbalance that the criminal’s self-assertion created."

If I understand this correctly, it is meant that a person who steals should be restricted in liberty proportion to the value of the theft and the inconvenience it has costed, as well as for the damage done to the social and legal order generally.

A murderer has taken away someone else's liberty in toto. So this theory of punishment seems to say that it is proper to take away his liberty in toto. We can't intend to kill him. We could put him in a cell, which removes his liberty and also has the unintended consequence of prohibiting him from participating in lots of basic goods that he could participate in if he were not imprisoned. But he still has some, perhaps considerable, liberty in our modern prison system, so this is not quite proportionate.

If we inject him with heart-stopping chemicals, though, his liberty will be restricted in toto. We aren't interested in his death, of course; the stopping of the heart, like the crushing of a skull, is distinct from death, so it cannot be said that one who intends the former must intend the latter.

(It will not be plausible here, I suspect, to suggest that some other mode of responsibility will save our intuitions. For sure, his life will be lost, but so will all sorts of other goods that are lost even if we merely imprison him.)

Anonymous said...

Just wanted to note here that the best way to get the most out of this article is to read it while having a good cigar and an oatmeal stout. Just FYI.

Pete The Greek

Anonymous said...

Just wanted to note here that the best way to get the most out of this article is to read it while having a good cigar and an oatmeal stout. Just FYI.

Pete The Greek

Anonymous said...

In some ways this question of retributive punishment was explored by CS Lewis in the third volume of his space trilogy, That Hideous Strength. The agents of NICE removed all sense of retribution from punishment. Punishment was now about curing and re-educating the 'criminal'. In the absence of any standard of retribution, punishment could become life-long since there was no bounds on what was permitted since the punishment did not have to fit the crime.
Matthew

Tony said...

Certainly the mere fact that justice can only be accomplished if his death is brought about (material conditional) does *not* entail it is the intentional object of the act.


awatkins909, I fear that you may have confused what needs to be kept distinct in analyzing the human act. Classic moral treatment (and recapitulated - more or less - by JPII in Veritatis Splendor) says that there are 3 fonts of morality to the moral act: the object, the intention, and the circumstances. ALL THREE of these must be fit and correct to have a moral act; if any of the three is wrong, the act is immoral.

The object of the act of execution is "the death of the criminal". The intention is (or should be) to redress justice. The circumstances (to be a moral act) would include that he was convicted by a duly convened court, that he was sentenced to death by the judge according to the law, etc. That the good intended - the goal or end or purpose of the killing, was right and proper, is distinct from the object of the act. The object, considered distinctly from the intended purpose, must be either good in itself, or morally neutral. (If the object is intrinsically evil, then the act is intrinsically immoral).

The analysis of a moral execution is that the object - killing the convicted criminal - is of itself a neutral object. The intention - justice - is good. And the circumstances (including conviction etc, and, for instance, that the criminal remains a danger to society), are the proper circumstances for executing the person.

A murderer has taken away someone else's liberty in toto. So this theory of punishment seems to say that it is proper to take away his liberty in toto. We can't intend to kill him. We could put him in a cell, which removes his liberty and also has the unintended consequence of prohibiting him from participating in lots of basic goods that he could participate in if he were not imprisoned. But he still has some, perhaps considerable, liberty in our modern prison system, so this is not quite proportionate.

If we inject him with heart-stopping chemicals, though, his liberty will be restricted in toto. We aren't interested in his death, of course; the stopping of the heart, like the crushing of a skull, is distinct from death, so it cannot be said that one who intends the former must intend the latter.


I think that Greg's lay-out of the NNL theory of a moral execution is probably the best presentation of it that can be made. I also think that the sheer implausibility of taking seriously the theory that "we intended to remove all the possible aspects of "liberty", such as the liberty of having a beating heart, a functioning brain, successfully working liver, etc, but the DEATH was not intended" ought to give anyone reason to pause before accepting NNL at all. For one thing, it would entail that nearly ALL of the ways Christians spoke of just execution, until about 1950, were actually WRONG, for nearly all spoke of it in terms like "depriving him of life" and "taking his life".

Karl said...

You wrote:

"Now, if scripture is infallible on faith and morals, and scripture teaches that capital punishment can in principle be legitimate even just for the purpose of retribution, then it is a straightforward logical deduction that it is infallible teaching that capital punishment can in principle be legitimate even just for the purpose of retribution."

I would counsel against this use of the word "infallible," which is wrongly applied here. Scripture isn't infallible. It's inerrant.

Infallibility and fallibility apply only to an agent capable of making a decision. All of us are active agents and are prone to fallibility, but a select few (pope and bishops) under restrictive conditions are capable of making decisions that cannot be anything except true--that is, they act infallibly.

Scripture itself is not an active agent. The sacred text has no power to make decisions, right or wrong. Rather, Scripture contains truth without error: it is inerrant. It is just not infallible.

This confusion of terms is common among certain Protestants, whose ecclesiology makes no room for churchly authority. For them, all authority is vested in Scripture, so they end up giving Scripture an attribute (infallibility) that properly should be given only to an active agent.

Karl Keating

Tony said...

Karl, good point. I wondered why that passage struck me as off a little; now I see why.

Greg said...

@ Tony

I think that Greg's lay-out of the NNL theory of a moral execution is probably the best presentation of it that can be made.

I'm not sure whether someone who endorses NNL would accept my account of its implications here. I do not see how it can be avoided.

In his overview of NNL, Christopher Tollefsen writes:

Gerard Bradley has attempted to extend this analysis [of justified, unintentional killing in self-defense] to the case of the killing of convicted criminals.[26] As Bradley and Brugger both point out, however, if the execution of criminals is to be justified as defense, and the criminal’s death is not to be, when permissible, intended, then such executions should not be considered capital punishment.[27]

The citation is to Bradley's “No Intentional Killing Whatsoever: The Case of Capital Punishment,” in Natural Law and Moral Inquiry: Ethics, Metaphysics, and Politics in the Work of Germain Grisez, ed. Robert P. George (Georgetown: Georgetown University Press, 1998), 155-173, which I haven't read.

That article, though, would have been written prior to Finnis, Grisez, and Boyle's "'Direct' and 'Indirect': A Reply to Critics of Our Action Theory" and to Tollefsen's "Is a Purely First Person Account of Human Action Defensible?", which are the most up-to-date articulations of the NNL action theory.

daurio said...

Finally someone says it! The Church's traditional view on capital punishment is infallible. The Church cannot change her teaching on this matter. Thanks Dr. Feser.

Edward Feser said...

Hello Karl,

Yes, but a document can be infallible in an extended or analogous sense. E.g. if a pope infallibly teaches that "X is true" in a certain document, the specific part of the document that says "X is true" is itself infallible insofar as it is the instrument by which he proclaimed that teaching. It is in that extended sense that scripture (whose authors are infallible when acting under divine inspiration) is itself infallible. Obviously nothing I said implies that scripture itself is a kind of agent.

Anyway, if this were a post about inerrancy, the inspiration of scripture, etc., then using the term "infallible" in the narrower way or not using it at all would be in order. But that's not what the post is about, and to get into all that in the present context would have been a distraction. For the specific purpose at hand I think my meaning was pretty clear.

JMC said...

One unexamined problem with the effort to ban capital punishment is that arguments used in that effort often involve sacrificing principles that will turn out to be much more harmful than the occasional execution. You may not have encountered these arguments from those with whom you debate, but they are very real among Catholics in general.

1. The Old Testament doesn't matter as it has been superseded by the New.
2. A pope has the authority to set moral law.
3. Old teachings don't carry the same authority as new ones.
4. A reversal of doctrine can be understood as natural development.
5. Reversing long held doctrines is acceptable and does not constitute a problem.
6. The church has reversed herself on several occasions (slavery, usury...)
7. The primary objective of punishment is security.
8. Retribution is "eye for an eye" thinking which Jesus rejected.

Matthew Bellisario said...

This is not complicated. It is called Capital punishment for a reason. Its becasue it is punishment for a past crime or crimes committed that offends individuals and the entire moral fabric of the state. If you are not punishing for something that happened in the past (retributive) then what are you doing it for? Solely for something that may or may not happen in the future? Really, we are going to kill people for something they or may not do in the future? Do you have to be a genius to figure out that this doesn't work morally? You have to be dense to believe such a thing. The teaching of the Church cannot and will never officially change. Capital punishment can never be deemed intrinsically evil. This is the problem with amateur hacks like Shea espousing such nonsense. Moral theology should be left to people who actually know that they are talking about.

Steven Long said...

It is saddening to see Prof. George make doctrinal claims that imply a view of the relation between the testimony of the Fathers and the correct interpretation of Sacred Scripture that, if taken seriously, would suggest that the Council of Trent teaches falsely on the subject. It is also unfortunate that he supposes that there is only one interpretation of Evangelium Vitae, something that whilst His Eminence Avery Cardinal Dulles lived he seemed rather more reluctant to assert. Evidently doctrinal evidence is rather more politically suggestible than one had thought. Unless George thinks that Sacred Scripture is false (in which case he is a votary of the wrong faith--clearly this cannot be something he holds) or that the Council of Trent is merely a tentative suggestion with respect to the unified testimony of the Fathers in relation to Sacred Scripture that awaits the supervening genius and overarching ecclesial authority of the NNLT, his position is not tenable. In a declining culture, grave error metastatizes, and can at times materially challenge and even at times distort important aspects of the Church's life. Indifference or callow doctrinal transmutationism are such effects in Western culture today, and although they may threaten the harmony and peace of the faithful, the Church transcends them utterly and will outlive them. I am grateful to Ed Feser for his efforts in vindicating the doctrinal integrity and profound reasonability of the Catholic tradition on these points. The claim that Evangelium Vitae--which provides a list of mala in se, and quite clearly excludes the death penalty from the list--condemns the death penalty, is simply and entirely false. George is at his best in contesting certain shibboleths of secular liberalism. He is at his worst when seeming to treat the tents of an erroneous moral theory as possessed of greater certitude and authority than the consensus of the Church Fathers on the content of revelation in Sacred Scripture, than Sacred Tradition as manifest in the teaching of the Church over centuries, and than the explicit teaching of the Common Doctor of the Church, St. Thomas Aquinas. "Not A" is not a "development" of the strong and universal "A" of the tradition. One would think that a mind of such manifest intelligence and probity would distinguish development from mutation. But that involves taking the tradition seriously enough to engage it on its own terms, and not merely as inchoate yearnings for the "New"--and clearly anti-Thomistic--natural law theory.

Stomachosus said...

Dr. Feser,

I have heard the argument that the room left for the death penalty is only for "defense" before, and the claim that it is an exercise of double effect.

Of course, this would be inadmissable as double effect is traditionally understood. Prescinding from the other criteria, when double effect is at play, the death is besides my intention... a man attacks me and I, in defending myself, hit him with a statue. Whether he dies, is rendered unconscious or otherwise ceases to be a threat, my intent is fulfilled. Whereas, in the death penalty the intent is to bring about death... the act is not considered successful if the convict survives, even if rendered, say, a vegetable or paralyzed (indeed such botching would be seen as an indictment against the method, if not capital punishment itself)

Which raises an unstated, but very important, difference. Grisez, Finnis and Boyle radically redefine double effect. I am not confident enough to present their views completely, but IIRC they redefine things in term of conceptual necessity, rather than causal link. Hence, craniotomy has the intention of re-arranging the head geometry of the baby, and so may be permissible. I fail to see how, even with this strained version of double effect, they can render the death penalty, where it was employed justly, a matter of defense and double effect.

Do they address this more clearly somewhere?

Adam Charles Hovey said...

I do like much of what Mr. Shea says. Sometimes, (much like the rest of us), he can get his facts wrong. I am against capital punishment in most cases, but the catechism does not out and out forbid ALL capital punishment. And no, the Church didn't "change teaching" on this. The Church is incapable of doing this. The problem, I think, is Mr. Shea does not see what the death penalty is to be more carefully applied today. It is not, completely forbidden. I do think that it should be abolished in all but the most severe of cases, but I also recognise the right of the state to impose it.