McClamrock on By Man shall His Blood Be Shed

At Today’s Catholic, David McClamrock reviews By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.  It’s a somewhat mixed review.  On the one hand, McClamrock acknowledges that:

The authors do make, and effectively support, many points worthy of serious consideration.  Among them, are in brief: Catholics are not required to favor the abolition of the death penalty.  The church has consistently taught that capital punishment is legitimate in principle, while often pleading for mercy in practice.  Death is a deserved and proportionate punishment for the worst murderers.  The credible prospect of the death penalty prevents crimes and saves lives... Numerous arguments for abolition of the death penalty are weak, ill-founded or even downright stupid…

By exploding the view that extreme anti-death-penalty absolutism is the only authentically Catholic position, the work of Feser and Bessette may be helpful in recovering a well-balanced view of capital punishment.

End quote.  So far so good, and frankly I’m pretty much satisfied by even a critical review that acknowledges that much.  Mission accomplished. 

Still, McClamrock is not entirely happy with the book.  He also writes:

If only the authors had stopped after making points like these.  Alas, they didn’t.  Not satisfied with saying that death may be a suitable punishment for the worst crimes, they assert that no punishment less than death would be severe enough as retribution for such crimes.  The authors provide no support for this claim, however.  Worse yet, despite many references to the teaching of St. Thomas Aquinas, they ignore the parts of St. Thomas’s teaching that contradict their claim.

End quote.  Before continuing, it should be noted that this is a puzzling accusation.  McClamrock has already acknowledged that we make a serious case for the claim that “death is a deserved and proportionate punishment for the worst murderers.”  But to show that death is a proportionate punishment for the worst murders just is to show that it is of the right degree of severity.  And into the bargain, we quote a passage from Aquinas in which he insists that proportionality involves an appropriate degree of severity.  So what’s the problem?

The problem, in McClamrock’s view, is that we don’t pay sufficient attention to what Aquinas says about mercy, and that we claim that death is the minimum sufficient penalty for some crimes when in fact all Aquinas thinks (according to McClamrock) is that it is the maximum appropriate penalty. 

However, while it is true that we don’t quote the specific passage McClamrock cites, nothing we say is incompatible with it.  McClamrock himself acknowledges later in the review that we do not claim that someone deserving of death must be executed.  He acknowledges that we claim only that there is a presumption in favor of execution, that this presumption can be overridden, and that it can be overridden for moral reasons, specifically, including a concern for mercy.  So, again, what’s the problem?

Nor does Aquinas actually say, in the passage cited by McClamrock, anything about whether proportionality has to do with a minimum or instead merely a maximum degree of severity.  What he does say is that “God acts mercifully, not indeed by going against His justice, but by doing something more than justice” (emphasis added).  That does not entail (contrary to what McClamrock appears to think) that justice does not in fact require death as the minimum deserved punishment for certain sufficiently grave crimes.  (After all, when St. Paul says that the wages of sin is death, he doesn’t mean merely that death will be the maximum punishment we can get for sinning.)

What is meant, I would argue, is rather this.  Securing retributive justice is subordinate to yet higher ends such as maintaining the good order of a community and securing the salvation of souls.  Now, often, making sure that retributive justice is done (including the infliction of the death penalty) is exactly the best way to realize those ends.  But there can also be cases where robotically securing retributive justice would not be the best way to realize them, so that mercy is called for. 

(There is an analogy here with the body.  There is a presumption against amputating any part of the body, because in the normal case to do so would work against the good for the sake of which the body parts exist.  However, if a body part is diseased this presumption is overridden, and refraining from amputating it would undermine rather than further the good for the sake of which the part exists.  Similarly, in general we should not give people less than what they deserve, but there may nevertheless be cases where we ought instead to show mercy, precisely because doing so would be a better way to realize the end for which the practice of giving people what they deserve exists.)

So, in showing mercy, God does not “go against” justice, because justice itself serves a higher end, and mercy is shown when it would be the best way to secure that higher end.  Mercy, in other words, is in that case the best way to realize what justice itself is aiming at.  God is doing “something more” than justice precisely insofar as he is acting in light of the end for which justice itself exists, rather than focusing merely on what justice considered all by itself would call for.

So, the question of minimum versus maximum degrees of severity simply isn’t what is at issue, and therefore there is no conflict between what Joe Bessette and I say and what Aquinas says. 

So, so far, I’m not sure that McClamrock really disagrees with Joe and me substantively.  When matters of terminology and exegesis are clarified, we might be saying more or less the same thing.  However, McClamrock also says one further, and puzzling, thing when he comments on Genesis 9:6 (“Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image”).

McClamrock says that the reference to human dignity in this passage still applies today, but not the reference to capital punishment.  Why not?

Well, first, he says that in the Old Law, we need to distinguish between moral, judicial, and ceremonial precepts, and that only the moral precepts are still in force.  So far so good.  But so what?  The sanction in Genesis 9:6 precedes the Old Law.

But second, McClamrock acknowledges precisely this. Genesis 9:6, he writes, is part of “God’s command to Noah… [which] existed before the Old Law.”  So, so far still so good.  But then, what’s the problem?  What does the Old Law, which came later, have to do with anything?

Well, according to McClamrock, just this. The command of Genesis 9:6:

was later included in the Law…, and is identical in substance to the corresponding precept of the Old Law in Exodus 21:12, “Whoever strikes a man so that he dies shall be put to death.” As the judicial precept of Exodus 21:12 is no longer in force, neither is that of Genesis 9:6, even though it was first instituted before the Law.

End quote.  Now, I have to admit that I find this argument simply baffling.  How does the fact that the command to Noah was incorporated into the Old Law entail that it is no longer in force once that latter law is no longer in force?

Compare: The precepts that murder is wrong, and that we are obliged to honor our parents, were part of natural law before the Old Law came around.  Later they were incorporated into the Old Law.  Does that mean that they are no longer in force now, no longer part of the natural law, since the Old Law is no longer in force?   Of course not.  The natural law remains in force regardless of whether or not its elements come to be temporarily incorporated into either divine law (e.g. the Old Law) or human law.  But by the same token, the fact that the command to Noah was incorporated into the Old Law simply does not entail that it is no longer in force after the Old Law is abrogated.  It too remains in force (for all McClamrock has shown) apart from whether or not it is temporarily incorporated into divine law (e.g. the Old Law) or human law.

(Note for those readers who may be wondering: Yes, responses to the latest from Brugger and Fastiggi are forthcoming soon.  Stay tuned.)