Sunday, November 19, 2017

Reply to Brugger and Tollefsen (Updated again)


UPDATE 11/21: Part 3 has also now been posted.

UPDATE 11/20: Part 2 has now been posted.

In a recent series of articles at Public Discourse, E. Christian Brugger (here and here) and Christopher Tollefsen (here and here) have criticized By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.  This week, Public Discourse is running my three-part reply.  Part 1 has now been posted.

My reply to Robert Fastiggi’s most recent Catholic World Report article will also appear this week at CWR.  Replies to Paul Griffiths’ review in First Things and David Bentley Hart’s review in Commonweal are also forthcoming.  Stay tuned.

91 comments:

  1. Ed, judging by the quality of the objections, I don't know that your opponents know what to do about your work. Could it be too much to hope that you may change some very serious minds?

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  2. From DBH's article:
    "To cultivate pity (or at least concern) for those who deserve no pity—even those justly condemned of monstrous evils—is not sentimentality but charity, the chief of all Christian virtues."


    This right after he accuses Feser of a lack of imagination. I feel that comment is fitting towards DBH in this excerpt. Or maybe DBH is suffering from too much imagination considering he imagined out of thin air the idea that Feser scorns pity as being baseless sentimentality; or that pity and advocating the death penalty are exclusive of each other.

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    1. I indeed do pity the punished- as I will that they be given just punishment.

      For am I not called to love all men?
      And is the loving of a man not the willing of his good?
      And is the good of the criminal not that he be justly punished?

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    2. Interesting quote. DBH seems to be inadvertently conceding the point that capital punishment can be both just and deserved, in which case it is *not* intrinsically evil.

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    3. "And is the good of the criminal not that he be justly punished?"

      So is willing mercy not the willing of his good?

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    4. I pity him concerning his eternal prospects, and seeing that the just sentence of death could wake him up from his sinful slumber, I wish that he receive it so that he might enjoy the only life that matters.

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    5. "So is willing mercy not the willing of his good?"

      No. Depending on what's meant. If by mercy, you simply mean discernment amongst possibly just punishments and picking the least severe, it's not incompatible with his good provided it be truly proportional. But this is just what's meant by the Prudential judgment that capital punishment should be rarely employed: it's not in fact wrong but you might rightly judge to choose a lesser punishment in most circumstances.

      But if you mean not pushing the deserving at all, no. God seems to do so only in one particular respect, by Supernatural means, and he does not in fact mitigate temporal punishment but only spares the punished from eternal separation from him.

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    6. scattered DBH seems to be inadvertently conceding the point that capital punishment can be both just and deserved, in which case it is *not* intrinsically evil.

      Insofar as I can see, Hart is not arguing about whether capital punishment is extrinsically or intrinsically evil or even whether it's evil at all. Hart has a different dispute: Killing is not a Christian thing to do. It's un-Christian even as in allegedly proportionate punishment after careful consideration, because this makes it a pre-meditated killing, whereas e.g. Sermon on the Mount invites Christians to forgive endlessly.

      In such a case, Feser's correct tactic would be to accuse Hart of changing the topic, because the book defends a Catholic (probably distinguishable from Christian) doctrine. Hart's review is on the mark if, for Feser, Catholic and Christian are the same thing (on this given point at least), otherwise it misses the mark. At the same time, Hart is not Catholic in the first place, so naturally he has no concern for the integrity of Catholicism, only for (some other) Christianity.

      The way I see it, this is a dispute between a natural law theorist and a theologian, and if both stay in their respective characters, it's irreconcilable. Thomistic natural law may be applied to everyone and everything, so there naturally arises the question whether to permit capital punishment and, if yes, then how to do it, but a theology that takes seriously scriptural passages like "You have heard 'You shall not murder,' but I tell you..." cannot even begin to consider capital punishment as a thing for the Church and Christians to practise. Secular authorities may practise it whichever way they want, or not, that's what makes them secular authorities.

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    7. iwpoe,

      I indeed do pity the punished- as I will that they be given just punishment.
      For am I not called to love all men?
      And is the loving of a man not the willing of his good?
      And is the good of the criminal not that he be justly punished?


      By God as God judges. Not by us. There is nothing in Christ’s message that says “Because of love punish your neighbor justly”.

      On the contrary, Christ tells us:

      “Blessed are the merciful, for they shall receive mercy.

      and

      ”You have heard that it was said to those of old, ‘You shall not murder; and whoever murders will be liable to judgment.’ But I say to you that everyone who is angry with his brother will be liable to judgment; whoever insults his brother will be liable to the council; and whoever says, ‘You fool!’ will be liable to the hell of fire.

      and

      You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also.

      and

      Judge not, that you be not judged. For with the judgment you pronounce you will be judged, and with the measure you use it will be measured to you.

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    8. Sean Killackey,

      I pity him concerning his eternal prospects, and seeing that the just sentence of death could wake him up from his sinful slumber, I wish that he receive it so that he might enjoy the only life that matters.

      Do you believe that the evil criminal who receives no mercy whatsoever is likely to wake from “sinful slumber”? It seems to me exactly the opposite is the case.

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    9. E. Seigner,

      In such a case, Feser's correct tactic would be to accuse Hart of changing the topic, because the book defends a Catholic (probably distinguishable from Christian) doctrine.

      Are you saying that Feser’s correct tactic is to argue that the Catholic Church is not a Christian church - for its doctrine need not be Christian but may be distinguishable?

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    10. @Danielos
      Another correct tactic would be to say something like "Dr. Hart changes the subject/creates a strawman/misses the point" but that would be a brief and uninteresting response.

      Dr. Hart is not a Catholic, so from his point of view he can easily denounce a Catholic doctrine as un-Christian. If Dr. Feser takes the route of repeating that "all the popes in the past and the Church (Roman Catholic Church of course) have always taught..." he could just as well be talking to a wall. It would be more interesting if he engaged with Dr. Hart's point that Christianity is about turning the other cheek instead of calculating proportionality as in an eye for an eye.

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    11. Do you believe that the evil criminal who receives no mercy whatsoever is likely to wake from “sinful slumber”? It seems to me exactly the opposite is the case.

      Some might be resentful at the justness of their punishment, but the criminal is also apt not to realize the gravity of his offense, horror at it, and then repent. If death isn't going to break the hold sin has on him, is 'mercifully' lounging about in prison with other depraved men going to do it?

      Consider the man next to Christ. His execution seemed to be very good for him.

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    12. E.Seigner,

      Fairly ungenerous read into Feser's approach.

      "Dr. Hart is not a Catholic, so from his point of view he can easily denounce a Catholic doctrine as un-Christian."

      You toss this out as if it's some profound insight; while ignorant to the fact that it cuts both ways <>.... but how sad a debate if that's what it boiled down to. Yet you're the one giving Feser's approach the least gracious reading possible.

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  3. Griffith wrote a serious response, the first one I've read thus far, but from my experience with both de Maistre and Donoso Cortes, they would not fit the Catholic moral tradition in the context of the natural law and are something quite different, their premises are not the premises of Aquinas in many aspects, their politics actually being the most radically apart from him. For Cortes and de Maistre society isn't at all the natural outgrowth of man as the social animal, but are much closer to Augustine, society is a tool of God for keeping vice in check. Violence is the song and rhythm that is felt throughout their work in a way no other philosopher captures and that violence is only kept in check by ritual and the irrational, blind conformity and total obedience to the God appointed sovereign. If this difference was noticed by Griffith I reckon the way he would build up his article would change a lot. This is why one cannot simply take Cortes as some basic Catholic position of the death penalty, the only consistent one where punnishment not in proportion, but equal to the crime is absolutely necessary, virtually the same as Kant and Hegel in practice, but for different reasons.
    But, it is true that By Man Shall His Blood be Shed was not long enough in my opinion, I would have loved to see a lot more detailed exposition of the natural law and Church Doctrine, which would have made it 700-800 pages long. It would because of that be a lot less successful at starting this whole conversation, but the hows and whys would have been a lot harder to attack, confusion of Aquinas with Cortes would not have been possible.
    I also find the taking up of Derrida as an authority on the subject highly questionable and it may have been what lead to the confusion about the premises.
    One other thing, I find it quite strange that the exposition on the natural law and the death penalty in Whose Justice Which Rationality of Alsadair MacIntyre is not mentioned a lot more.

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  4. We beg you, Dr. Feser, for a mindfull and heartfull consideration of this:

    https://www.commonwealmagazine.org/christians-death-penalty

    Be very carefull, much is at stake!

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  5. DBH lands one solid argument against Feser in that article, that Feser's "unanimous teaching of the Fathers" isn't unanimous, as he trots out several seeming problem cases, i.e. Fathers who taught otherwise and early Church practice contrary to Feser's thesis. DBH also says that Feser's readings of some of the Fathers' comments is out of context.

    It would be necessary to run through each of his claimed points in detail to see if his position holds water, just as it would be necessary to go through (in detail) each of Feser's references to those Fathers that DBH says Feser read out of context, to see if Feser got them wrong. I cannot do that here, of course. But I will just note that DBH more than once exaggerates or claims more than he delivers on - such as his comments about Genesis 9:6. So I, at least, am not willing to just assume that his claims are as sound as he makes them out to be.

    The bulk of his article is empty rhetoric, polemics, and mere assertion rather than argument. It's unfortunate that DBH put his quite excellent ability to turn a phrase to such poor use, but there it is. It is endemic of opponents DP that they spend far more energy on inconsequentials instead of addressing the actual arguments at hand.

    The heart of DBH's thesis is, of course, far more plausible to those Christians who simply don't cotton to the natural law as a principle of human morality. The notion that the reign of Jesus means the triumph of mercy over justice would - in his hands, at least - imply that justice becomes in all cases and in every sense a dead letter. For DBH, a Christian nation would not have penal laws (or any law, for of course there is no point in making laws if there is no enforcement of them), nor would a Christian family have punishments. It's hard to see how there could even be such a thing as "society", but I suppose that's a small price to pay for following Christ's example. But wait: Christ said "I come not to abolish the Law, but to fulfill it."

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    1. "The heart of DBH's thesis is, of course, far more plausible to those Christians who simply don't cotton to the natural law as a principle of human morality"

      hmmm, didn't DBH put "But, as is often the case when natural-law reasoning is asked to bear more weight than it can"

      https://en.wikipedia.org/wiki/Jan_Hus#/media/File:Jan_Hus_at_the_Stake.jpg

      There's Jan Hus at the Stake. Ever heard of?

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    2. Since DBH has effectively no respect at all for natural law theory, and since he does not actually argue the issue of how Feser puts more weight on the natural law than it can bear, his comments on this amount to nothing more than mere complaint. It is all quite unconvincing, at least to anyone who thinks natural law is an important piece of the moral landscape.

      There's Ted Bundy. Ever heard of? To every suggestion of an example of a bad execution I would offer an example of an execution that was just. So? The conclusion to be drawn is: do executions that are just, not unjust.

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    3. Ask any Czech how they see if you compare Jan Hus to Ted Bundy.

      Ask Pope John Paul II. Quite respected man among all Christians.

      I suggest you should read about Hussite wars and Albigensian Crusade.

      Maybe, just maybe, the modern Popes both understood natural law, knew about the bloody history (and were shamed of it) and had few glances in the Bible.

      Maybe, just maybe, they saw what can be the dangerous outcome once CP is loydly supported by the Church.

      Your conclusion is that do executions that are just, not unjust.

      Those executions and crusades were just at their time according to Catolic Church and its teachings and leaders.

      Nice outcome, happy?

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    4. Ask any Czech how they see if you compare Jan Hus to Ted Bundy.

      For crying out loud, I was contrasting them - as VERY different. Very different, and therefore justifying very different thoughts about them.

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    5. Whether or not the crusades or capital punishment as employed in in times past was largely justified or no, it is quite clear that executing child rapists and murderers is justified.

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    6. Sean, do you mean child rapists who are murderers? Because I would say it isn't necessarily just to execute child rapists who aren't'. As awful a crime as rape is, it seems disproportionate to execute someone for it.

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    7. It's not a stretch to say "while not all of the Fathers of the Church spoke directly about the death penalty, all of those who did allowed for it in principle... therefore you can claim unanimous consent of the Fathers." What's a real stretch is to say, "even though all of the Fathers who spoke of the death penalty allowed for it in principle, since there are a few who did not mention it, the death penalty is wrong."

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    8. As awful a crime as rape is, it seems disproportionate to execute someone for it.

      I don't see why it matters one way or the other for this discussion. We agree that it is proportionate for murder, that is sufficient common ground.

      It is effectively inevitable that different people will draw the boundary line in different places, because the truth is that there is some room for judgment about whether crimes that are worse than X but not as bad as murder fall should fall into the category "capital crimes" or not. Child rape is clearly even more of an outrage than rape of an adult, but not as grave as murder. If (as many people think) premeditated rape deserves a sentence of life in prison, does rape of a child deserve an even worse punishment?

      There will ALWAYS be boundary cases where people disagree - and still be reasonable, that is. That's the nature of the reality, and it isn't limited to capital crimes, it applies to ALL crimes. Does grand theft auto deserve 3 years in prison, or 5? Whose sense of justice shall decide this? How can they "be sure" that 5 years is more appropriate than 3? That there is gray area, room for judgment, and disagreement on boundary cases just comes with the territory of allocating just punishments - just as there are in other types of allocations for the sake of justice.

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    9. Rapist-murders, yes. It seems pretty clear that if anyone deserves death, these are such people. I belive Ohio executed such a man, in July. Apparently he didn't show any remorse until the day of his death. Whether that rose to repentance, who can say?
      http://m.cleveland19.com/story/35972980/execution-set-for-child-rapist-murderer-ronald-phillips-ohios-1st-in-more-than-3-years

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    10. Tony,

      The heart of DBH's thesis is, of course, far more plausible to those Christians who simply don't cotton to the natural law as a principle of human morality.

      I’d say there is only one principle of human morality, namely its ground in God’s character as revealed by God incarnate in Jesus of Nazareth. All other reasoning about morality turns on this axis and this axis alone.

      To the degree Aquinas’s natural law theory clarifies Christ’s ethical message or empowers people to realize it, to that degree that theory gives good fruit. But to the degree this theory confuses Christ’s commands or even justifies disobedience to them it is a spirit of deception.

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    11. Fine. Christ said

      The scribes and Pharisees sit in Moses’ seat. So practice and observe everything they tell you. But do not do what they do, for they do not practice what they preach.

      They were prescribing following the Law, which includes within as a major facet the basic layout of the natural law. Christ says

      I come not to abolish the Law, but to fulfill it

      The point, then, is to obey the natural law, not with fear and distaste and anger and lust hiding underneath your obedience, but to enter into the law and to obey with love. In the Psalms we have

      I will meditate on Your precepts And regard Your ways. I shall delight in Your statutes; I shall not forget Your word. ...Let Your hand be ready to help me, For I have chosen Your precepts. I long for Your salvation, O LORD, And Your law is my delight. Let my soul live that it may praise You, And let Your ordinances help me

      St. Paul says

      So then, the Law is holy, and the commandment is holy, righteous, and good.

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  6. Hi Ed,

    When I first read Hart's review, my impression was that it had landed quite a few solid blows. On closer inspection, I am not so sure.

    Re the Church Fathers: Avery Cardinal Dulles' 2001 article in First Things is well worth reading. Broadly, it supports Ed's position, and its observations on the O.T., the N.T. and Church tradition are particularly telling:

    "In his debates with the Pharisees, Jesus cites with approval the apparently harsh commandment, 'He who speaks evil of father or mother, let him surely die' (Matthew 15:4; Mark 7:10, referring to Exodus 2l:17; cf. Leviticus 20:9)...

    "The early Christians evidently had nothing against the death penalty. They approve of the divine punishment meted out to Ananias and Sapphira when they are rebuked by Peter for their fraudulent action (Acts 5:1-11). The Letter to the Hebrews makes an argument from the fact that 'a man who has violated the law of Moses dies without mercy at the testimony of two or three witnesses' (10:28)....

    "Turning to Christian tradition, we may note that the Fathers and Doctors of the Church are virtually unanimous in their support for capital punishment, even though some of them such as St. Ambrose exhort members of the clergy not to pronounce capital sentences or serve as executioners."

    So when Hart writes the following, he is misreading the evidence:

    "The general view of the early Church Fathers was essentially that of Ambrose: the Sermon on the Mount’s prohibitions of retaliation are absolutely binding on Christians, in both the private and the public spheres, for on the cross Christ at once perfected the refusal of violence and exhausted the Law’s wrath."

    An excellent article on the early Church's position by Andrew Greenwell can be found here: http://lexchristianorum.blogspot.jp/2012/03/church-fathers-and-capital-punishment_03.html

    Greenwell points out that St. Ambrose acknowledges the lawfulness of the death penalty in his letter XXV to the magistrate Studius - see here: http://www.tertullian.org/fathers/ambrose_letters_03_letters21_30.htm#letter25

    Interestingly, Ambrose even quotes Romans 13:4 in support of the State's authority to wield the sword against evildoers.

    Hart also claims that "Origen unequivocally stated that the law of Christ forbids all killing." Greenwell decisively refutes this assertion in another online essay, quoting at length from Contra Celsum VII.26: http://lexchristianorum.blogspot.jp/2012/02/church-fathers-and-capital-punishment_26.html

    Hart makes a number of very curious assertions in his review:

    "...[T]he Gospel does not admit the authority of proportional justice, as either a private or a public good. The whole of the Sermon on the Mount, for instance, is a shocking subversion of the entire idea...

    "As Paul says in Galatians, the Law is inherently defective, having always been communicated only by an angel, and then through a mere human intermediary...

    "[Christ] repeatedly 'fulfills' the Law precisely by negating the literal understanding of its prohibitions and punishments....

    "On the whole, the Gospel is probably not a very good formula for protecting public safety."

    Nevertheless, I think he scores points in his exegesis of Romans 13:4, and his objection concerning the death penalty for heretics, which at one time had unanimous theological support.

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    1. It seems to me that his points on the death penalty for heretics just shows that we can still ignore things that are awkward for the public, which we shouldn't do. If there's good ground to support it in principle and if it something defended by various popes in magisterial documents we must not shy away from it.

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    2. Vincent, I agree that DBH does score a few points, but while his exegesis of Romans 13:4 is interesting, I think it is not a particularly strong point. That is, I suspect that it can be answered without much difficulty. (Which doesn't dispense from the need to actually address it eventually - it is a fair point.)

      I think DBH's only real positive argument of his own (that DP is illicit) is fatally flawed, in that his take on the Gospel (such as the Sermon on the Mount point) is hopeless: DBH would eradicate ALL punishment, not just DP. And eradicating punishment would do away with human society.

      His "not a very good formula for protecting public safety" is rather an understatement, and requires a completely different take on the whole of Catholic teaching, not just the DP. Since DBH is not Catholic, he can well claim that the Catholic Church got major things wrong without upsetting his own apple cart. But I doubt that the Orthodox Church would be any more comfortable with a theory that says Christians are not allowed to punish at all because the Gospel replaces justice with mercy, and what that does to public safety. At least, I am pretty sure that in older days the Orthodox were perfectly comfortable with the notion that the Christian state punishing malefactors was good.

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    3. Mercy isn't a catch-all idea that you apply indiscriminately across the board. That is a false sense of mercy.

      True mercy is the foregoing of the application of justice for the spiritual betterment of the individual.

      Those who had full knowledge of their crimes and show no repentance should receive no mercy as it wouldn't be to their spiritual betterment. Thus they should get their just deserts.

      Those who had no knowledge may receive spiritual benefit from the application of mercy.

      The thing is, if the person had little knowledge of the immorality of the act and/or did not freely consent to it and thus was not very intentional about it, our justice system works to determine this and the courts would give them a lesser charge e.g. a charge for manslaughter vs murder.

      Thus someone receives a murder charge in a strong case can't claim ignorance or lack of volition. Thus that just leaves repentance as a criteria for the application of mercy. My understanding is that the courts in part take repentance into account when sentencing.

      Even here, I would say that in the natural order of justice, people should get their just deserts (in part) and in the supernatural order of justice God will apply mercy (in full), if repentant.

      Obviously, a convicted murderer who by that conviction was determined to act with volition and knowledge and is not repentant should receive the application of justice, not mercy.

      How is this controversial on DBH's view.
      Does he believe in false mercy?
      Does he believe in punishment as a legitimate concept?

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    4. Considering he implies that it's wrong for a Christian to be a soldier on the same ground he attacks the death penalty, all self defense would follow as illegitimate. He has a very Tolstoy-like argument to me.

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  7. Hi Mr. Feser,

    Here is a friendly suggestion on adding a new link to your sidebar.

    BigPulpit.com

    Maybe under "News, politics, and culture" or "Catholic websites"?

    In Jesus, Mary, and Joseph,

    Tito Edwards
    Editor
    BigPulpit.com

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  8. David. B. Hart has also criticizes "By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment."
    https://www.commonwealmagazine.org/christians-death-penalty

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    1. Feser has that one in the OP.

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  9. One of the highlights of Hart's review is where he refutes Feser and Bessette's sociological arguments by pointing out that Dallas has a higher murder rate than Sweden.

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  10. Great work, Dr. Feser.

    @Greg: And Sweden (1.15 per 100k) has a higher murder rate than China (0.74), and a much higher murder rate than Japan (0.31).

    There are all sorts of factors that need to be taken into account.

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  11. There are two issues here. Can the Church "develop" doctrine into a clear contradiction and teach CP is intrinsically immoral?
    (Short answer:No!)

    Second issue: Granted that CP is morally correct in principle should we have it?
    (Short answers: Maybe or maybe not.)

    You have to watch for people who conflate these two distinct arguments.

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    1. Second issue: Granted that CP is morally correct in principle should we have it?
      (Short answers: Maybe or maybe not.)


      Depends on who "we" are. If Christians, then the answer is absolutely not, because "Thou shalt not kill" etc. But if "we" means the state, then whatever goes.

      Next question: Is papacy a secular authority (which makes it okay to employ executioners) or spiritual? If both, then how far do these two powers mix unproblematically, if at all?

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    2. Depends on who "we" are. If Christians, then the answer is absolutely not, because "Thou shalt not kill" etc. But if "we" means the state, then whatever goes.

      "Thou shalt not kill" has never been taken to forbid all killing, since the ancient Jews weren't all a bunch of vegetarian pacifists.

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    3. The next step is trying to deny Just War. You know it's coming. There are already extreme pacifists calling for the pope to unilaterally condemn war in every way, google it.

      Thousands of years of history, Christians who were much better people than us, and infused in much more christianized cultures, have always held capital punishment to be acceptable in principle; same for a just war. But now 21st century christians seem to believe everyone had it wrong.

      What's next? "Thou shalt not kill" forbids self-defence, I guess. "Better not risk killing the assailant!!!"

      The good news is that truth does not change; as mankind has always understood, war is not always unacceptable, and capital punishment is not immoral in every case.

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    4. It seems to me that most 21th century christians do not think heresy, e.g. deserves capital punishment, yet several "christians who were much better people than us" held capital punishment to be acceptable for heresy.

      That is not to say that there isn't a difference between holding something acceptable in principle and holding something acceptable in this or that case, but it does show that not everything that was held in the past by christians is right.
      As for "thou shallt not kill" forbidding self-defence, I think that there is a huge difference between defending yourself with the unfortunate side-effect that somebody gets killed in the process and really intending to kill somebody. Accetance of the former does not entail acceptance of the latter.

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    5. Gaius, "Thou shalt not kill" has never been taken to forbid all killing, since the ancient Jews weren't all a bunch of vegetarian pacifists.

      Are you saying Christians are just another bunch of Jews? Anyway, look at the expansion of "Thou shalt not kill" in Matthew 5:21ff. It's not a point about vegetarianism, but about forgiving. And also about not paying back by the same measure. This is the main point that Hart makes, in my opinion. But Dr. Feser's book is all about calculating a proportionate punishment, which belongs to another world, namely to the world.

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    6. The next step is trying to deny Just War. You know it's coming. There are already extreme pacifists calling for the pope to unilaterally condemn war in every way, google it.

      Miguel, you are absolutely right. And you don't have to go looking very far afield: Pope Francis, along with scads of bishops, have had a refrain for years that war is wrong, and another that "defense of the victim nation" could be undertaken without war, if we only wanted to. They have this idiotic notion:

      the Holy See does not cease to recall the principle of humanitarian intervention, that is not necessarily a military intervention, but every other kind of action aimed at “disarming” the aggressor”

      They seem to think that the UN could "disarm" Egypt and Syria 4 days into the 6-day War, or that they could disarm ISIS right now, WITHOUT warfare. It's nutcase thinking. Pope Francis's recent remarks about killing included vague but suggestive indicators that Just War Theory is also going to be thrown out.

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    7. Are you saying Christians are just another bunch of Jews?

      No, I'm pointing out that nobody considered "thou shalt not kill" to forbid all killing.

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    8. @E.Seigner

      Judaism is Proto-Catholic Christianity before the coming of the Messiah. Christianity is Judaism now that the Messiah has come.

      "Thou shall not kill" is more accurately translated "Thou Shall not Murder".

      Murder being the unlawful taking of human life.

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  12. @Son of Ya'Kov: Even so, if Hart is going to make random comparisons that happen to suit him, without going into the numerous factors that affect a place's homicide rate, like Dallas vs Sweden, then we can also compare Sweden with China, Japan, Singapore, Taiwan, Indonesia, Bahrain, United Arab Emirates and Oman, all of which are places that use the death penalty and have a lower homicide rate than Sweden.

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    1. where to look for those stats?

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  13. As I read him, Tollefsen is using the rape objection to point out that he can accept the entirety of that 6-point argument without conceding your position.

    For the argument to be valid, that is, one has to read "public authorities have the right, in principle, to inflict" univocally in (5) and (6). But rapists deserve a punishment proportionate to the crime of rape, which seems to mean that they deserve to suffer the violence and humiliation involved in rape. Hence, from (5), public authorities have the right, in principle, to inflict that violence and humiliation on rapists.

    Tollefsen's point, as I take it, is that one can concede all of that and still not have the conclusion that there has been, is, will be, or could be a public authority who is permitted actually to inflict that violence and humiliation on rapists. So if that conclusion is allowed to follow, then so also the conclusion of the argument about the death penalty is too weak; it doesn't mean that anyone has been, is, will be, or could be permitted to administer the death penalty.

    This point, that the conclusion just isn't strong enough, isn't refuted by pointing to disanalogies between the death penalty and sexual punishment of rapists.

    Of course those dianalogies might be relevant to some other argument similar in spirit. But I think it has to be built into the argument that there is a defeasible presumption that a punishment proportionate to an offence may be administered by a public authority, and then an additional premise, that the presumption is, in the case of capital punishment, not defeated, needs to be added. Those premises are essential to the argument, if it's to conclude that there could actually be a public authority which is permitted, in a particular case, to administer the death penalty.

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  14. Suppose that, for some bizarre reason, people in general started to take sexual pleasure in the act of imprisoning others. Then the act of imprisoning people would become morally problematic. It would lead jailers into incidental sexual sins as they locked up pickpockets, kidnappers, and other offenders. Perhaps Catholic moralists would conclude that we have to stop imprisoning people. The problem wouldn’t be because imprisoning people is intrinsically wrong, though. The problem would rather be that the punishment couldn’t be carried out without incidental moral danger.

    I also believe that this is wrong. Incidental moral dangers have to be taken into account, but they just aren't enough to take an option off the table. A police officer who knows that he would be tempted by pornography can watch a pornographic film in the course of an investigation. The incidental moral danger is one that is tolerable in such a case. I should think the same should be the case also if people began taking sexual pleasure in imprisoning people.

    I am very much on board with the theological argument of BMSHBBS, but I have not been able to endorse the philosophical argument. There are a lot of very interesting philosophical questions lurking around here. There is a great deal of plausibility to the NNL view that goods are all cleanly divided into intrinsic and instrumental. I think this is wrong, but the way in which real goods are arranged in a hierarchy remains a very interesting one.

    Similarly, I do think that concerns about the dignity of the criminal can qualify punishment; I just don't think (mostly for theological reasons) that capital punishment is among the punishments that should be taken off the table.

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    1. Here is Anscombe:

      There is a special worth and dignity in being a human. The following will bring this out. ... [A]ngry vengeful killing may not be eo ipso a violation of human dignity. This is not meant to suggest that it is an OK sort of thing to do. But here the killer may have an answer to the question: 'For what did that person have to die?' an answer which says 'He deserved it'.

      To regard someone as deserving death is very definitely regarding him, not just as a human being but as endued with a dignity belonging to human beings, as having free will and as answerable for his actions. I am not defending the murderer I am imagining; he has not the right to kill his victim. But I am
      contrasting him with the murderer who is willing to kill someone for gain or other advantage, to kill as getting rid of this human being suits his plans. He is not respecting in his victim the dignity of a human being at all. ...

      Capital punishment, though you may have reason against it, does not, just as such, sin against the human dignity of one who suffers it. He is at least supposed to be answering for crime of which he has been found guilty by due process.

      When capital punishment takes grisly forms,
      as it often has in various places ... then it takes on a character which means that the victim's human dignity is being violated. The ancient Hebrew Law, the Torah, shews us why in an expression restricting punishments: a man was not to be given more than forty stripes 'lest thy brother become vile in thy sight'.

      ... The Athenian cup of hemlock seems the furthest from 'making your brother vile in your sight'. A man might deserve much worse,
      but inflicting much worse upon him means making him a vile spectacle, as the Romans did those they crucified. It is doing that,
      even if you cover the spectacle up, as in America they cover the face of the victim in the electric chair with a mask because it becomes horrible to see. The spectacle may be hidden from the physical eye, but so it is emphasized for the eye of the mind.


      This is immensely interesting philosophical territory.

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    2. Greg, I agree that there is worthwhile material in what kind of punishments are allowable - which still won't get those preferring the NNL result where they want to go: death, merely as death (and not grisly death like crucifixion) just is NOT the kind of penal horror that must not be used.

      Earlier today when I read Ed's article I wondered about a modern possibility for rapists: design a robot that is anatomically adequate to (butt) rape the rapist. Since it is a robot, no human must undergo the evil of being a rapist in order for the punishment to be administered. (To make the punishment more humiliating, one can add interesting touches, such as making the robot appear generally like a very, very ugly woman - say, like a 1970 East German brawny female athlete who had been on hormones for years - now, after 45 years of time's ravages on top of the drug's effects...) Would it STILL be true that this type of punishment is forbidden, even though the primary objection has fallen away? I honestly don't have an answer. Is the humiliation of the same type if not directly administered by a human being? Is the humiliation of such a sort as to be inadmissible for any person, regardless of whether they deserve it, because it will further damage their soul?

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    3. I think such a punishment should be forbidden, though I don't have an argument for it. I was surprised that Ed did not address that argument in the book...

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    4. I think it's a mistake to think that actions of the same type as what they punish are generally proportional punishments. The typical proportional punishment for a basic ethical violation is a public rebuke; for vandalism, a fine, and perhaps a requirement of help in cleaning up; for other crimes, jailtime.

      Punishments also can't be arbitrarily varied; there are actually very few things that a state can do, because what penalties can be allowed depends on common good (and to a lesser extent custom), not on the specific characters of the crimes committed. By public rebuke you communicate what is required for common good; by a fine, or community service, you get some restoration to common good; by corporal punishments and shaming punishments, you try to get correction so that people will return to common-good-appropriate behavior; by imprisonment or exile you impede the ability of an individual to continue to harm common good; and by death you end their ability to harm the common good. Sexually penetrating people doesn't seem to do anything for common good, and it at least doesn't seem to fit any ordinary justification for a shaming punishment.

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    5. I think that's right, Brandon, and that such an account would provide one with a very principled basis for replying to the rape objection.

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  15. Hey Ed! I have really enjoyed your articles so far, but in your response to Tollefsen you assume (commonsensically) that he'll agree with you that God punishes the wicked in hell. Alas, he does not. See his article, "Morality and God," Quaestiones Disputatae 5, no. 1 (2014),59. NNL is heretical, and should be condemned precisely in proposing that there exist incommensurable basic goods, for it is from that heretical root that all of its other errors, including their intentionalist action theory, flows.

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    1. Interesting. For those interested, here is the quotation:

      But how [sic?] is God's revelation of precepts of the natural law better understood ... as a divine commanding, rather than, say, a divine reminding? One might say: because God's commands are backed by the threat of coercive sanction, the threat of hell. However, a more plausible view is that hell is the separation of the sinning self from God's presence; so hell is not an imposed punishment, and threats about hell are actually warnings. In the commandments, God reminds us what the natural law is, and what the intrinsic consequences of failure in the natural law are.

      Tollefsen wants to deny just that the punishment of the wicked is imposed; he wants to hold that they are still punished. But it seems clear that whatever is not imposed cannot be a punishment. Simply to get what one deserves is not to be punished; for punishment to occur, some authority must administer the penalty which one deserves, because one deserves it. The notion of a punishment that is not imposed is incoherent.

      One can see why Tollefsen is led to such a view. He will agree that friendship with God, which both wayfarers and the blessed enjoy, is a basic good. If hell consists, at least, in the permanent removal of that friendship, then he will have to hold that this is not something which God imposes on the damned, that is, not something which God positively intends to come about, or else there will be intentional destruction of a basic good.

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    2. Yeah, it seems to me that many people have relied so heavily on the notion of hell as a kind of "self-inflicted" punishment that they have come to see it as impossible that it should be imposed by a good and loving God. Ultimately, this entails a denial of God's universal Providence.

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  16. NNL is heretical, and should be condemned

    Charles, more and more I have been thinking just the same thing. It's not just a "new way of stating the old truths", or something like that. It's out and out heresy. It's running head-on opposition to the Catholic doctrine on the licitness of capital punishment is just one facet. The whole structure with its "basic goods" is false.

    I also suspect, though I have not read enough NNL to know for sure, that the root of its error lies somewhere in the Nouvelle Theologie (which is, ultimately, a lipstick-on-a-pig version of the modernist heresy), and its fascination with novelty. Theologians should always shy away from novelty as being inherently suspect and problematic, and yet they willingly name their approach "nouvelle". I don't know that this is the source of the errors of NNL, and maybe I am wrong about it, but I just feel like there is an odd conformity between them - even more than that both have "New" right in the name.

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    1. I don't think the roots of it are in the Nouvelle Theologie. Grisez' seminal article shows that what he was really concerned with was the "per se nota" status of the first principles of ethics, so he was trying to explain how ethics could have first principles that were underived from any other knowledge. On one strain of neo-thomist thought, which so far I've only traced back as far as the 17th century in the work of Alemanni, no practical science can be subalternated to a speculative science, and I think that Grisez was probably influenced by that strain of Thomism, but certainly goes way beyond what Thomists of that stripe said or taught.

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    2. I agree with Charles.

      I don't think that the new natural lawyers are devoted to novelty as such. There was a question during the '60s of how the Church's teaching that contraception is immoral could be sustained in the wake of the pill. The thought, as Anscombe put it, the thought that contraception is wrong because it involves "unnatural vice”" was plausible so long as "contraception took the form of monkeying around with the organs of intercourse or the act itself":

      But this plausibility diminished with the invention of more and more sophisticated female contraceptives; it vanished away entirely with the invention of the contraceptive pill. For it was obvious that if a woman just happened to be in the physical state which such a contraceptive brings her into by art no theologian would have thought the fact, or the knowledge of it, or the use of the knowledge of it, straightaway made intercourse bad. Or, again, if a woman took an anovulant pill for a while to check dysmenorrhea no one would have thought this prohibited intercourse. So, clearly, it was the contraceptive intention that was bad, if contraceptive intercourse was: it is not that the sexual act in these circumstances is physically distorted.

      Grisez wanted to use his theory to show why contraception involved a "contra-life" intention and was therefore wrong, even where the act was "physically" identical to some act which was permissible.

      I think the new natural lawyers are very concerned to preserve the Church's teachings on a couple culture war topics, like abortion and sex. They've developed a theory that is rather simple; you can describe what the view is in a few sentences. I think they were simply willing to bite bullets in other areas by adopting views to which their theory really commits them, but over time the bullet-biting became something of a sport.

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    3. Charles, you may be right, I don't claim sufficient detailed knowledge of it. I only got halfway through Grisez's seminal piece, and stopped out of, well, 'disgust' is probably too harsh a term, but close. It was partly, I think, trying to understand why he would have been trying to solve that exact riddle the way he tries to solve it that I thought maybe he was being influenced by the Nouvelle Theologie types. Again, this is totally tentative.

      In any case, a true Thomist should be extraordinarily uneasy in coming to a "solution" to such a puzzle that requires you to re-interpret half of what St. Thomas says in all of his secondary and tertiary conclusions on morals into things that are, rather obviously, strained readings. But I suppose that once you have convinced yourself that the solution you have come up with is "necessary", all the rest (the strained readings) are "necessary" too.

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  17. Tony writes:

    ”DBH would eradicate ALL punishment, not just DP. And eradicating punishment would do away with human society.”

    Hart argues that capital punishment is intrinsically evil. Full stop. I don’t see what in Hart’s argument only as much as suggests that he proposes the eradication of all punishment. So as it stands this looks like a red herring.

    On the other hand I do understand Tony’s worry, and it troubles me too. The worry I take it is this: What would happen to society if people in general or the authorities in particular were to start taking seriously the Sermon on the Mount? And if very bad things would then happen, should we not be against an argument like Hart’s which proposes that the Church reverse an age-long doctrine based to a large degree on Christ’s Sermon on the Mount?

    My own answer to this worry is that at least a slow advancement in moral praxis, both in the personal and the state setting, towards the ideal of the Mount Sermon would not do any damage and on the contrary would greatly benefit society. Indeed it may be a prerequisite for the survival of human civilization and perhaps of the human species itself.

    In any case I think that Tony’s worry makes more sense than what appears to be Feser’s primary worry, namely the consequences to the Catholic Church’s authority should it reverse this doctrine (consider for example the first sentence in the first two paragraphs in the first part of his reply to Brugger in The Public Discourse). Speaking for myself (and I think for many Christians who find state executions to be morally abhorrent and a remnant of a barbarous past), the authority of the Catholic Church’s would actually increase. Because my trust before anything else she follows Christ would increase. Given the weight of tradition I understand it would take courage to reverse that doctrine, so this would increase my admiration for her too.

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    1. Hart argues that capital punishment is intrinsically evil. Full stop.

      Nope. His argument is that even if the death penalty is naturally just, Christians should not administer punishments in accordance with natural justice.

      He rejects the philosophical argument that Feser and Bessette give. I don't see him saying anywhere that the death penalty is intrinsically unjust, though. In a sense, Hart's view of how Christianity changes things would seem to depend on the death penalty's being humans' natural response to some crimes; an order of natural justice can only be abrogated if it is there to start with.

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    2. I suspect, moreover, that Tony had these passages in mind:

      Let us grant, for argument’s sake, that the death penalty is indeed a just and proportionate response to willful murder. So what? That has never been the issue for Christians, for the simple reason that the Gospel does not admit the authority of proportional justice, as either a private or a public good. The whole of the Sermon on the Mount, for instance, is a shocking subversion of the entire idea. Christ repeatedly and explicitly forbids the application of such punishment, even when (as in the case of the adulterous woman) this means contradicting the explicit commands of the Law of Moses regarding public order and divinely ordained retribution. According to Paul, all who sin stand under a just sentence of death, but that sentence has been rescinded purely out of the unmerited grace of divine mercy. This is because the full wrath of the Law has been exhausted by Christ’s loving surrender to the Cross. Again and again, the New Testament demands of Christians that they exercise limitless forgiveness, no matter how grievous the wrong, even in legal and public settings. And it insists that, for the Christian, mercy always triumphs over judgment. In a very real sense, Christian morality is nothing but the conquest of proportional justice by the disproportion of divine love. So Feser and Bessette need to explain, before all else, why they imagine that Christians have any vested interest in the naturally just retribution for sin.

      And:

      Even if it would make the world a much safer place to kill off as many violent criminals as possible—and I think we can assume that it would—that still would not mean that it is something Christians are permitted to do. On the whole, the Gospel is probably not a very good formula for protecting public safety.

      Hart says Christians have no business inflicting proportionate punishments on criminals; he even insists that expediency cannot justify doing so.

      What then does he hold about all punishment? He doesn't say. There would seem to be good arguments available committing him to rejecting punishment as such.

      For he could try to hold that, though Christians reject proportionate punishment, they can administer less than proportionate punishments. But it would make very little sense for Hart to hold that view. First, he would have to read the Gospel as making a distinction between proportionate and non-proportionate punishments, which it would seem hard to do; in finding such a distinction there, he would have to agree that the notion of a 'proportionate punishment' is an intelligible one.

      Moreover, if the reason for administering a less than proportionate punishment were still retributive, then it is hard to see how Hart could allow it, if he thinks the Gospel abrogates retribution. He cannot say that society needs to fine thieves, imprison rapists, etc.; "that still would not mean that it is something Christians are permitted to do."

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    3. (Realistically, Hart's Christians are free riders. If given power, human civilization would fall apart; but Hart has a very idiosyncratic notion of Christianity, so devotees of Hart will never be given power, so they may continue to decry the civilization they depend on.)

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    4. Greg, you have just exactly hit the nail on the head, I think.

      Dianelos, I respect your thought on the possibility of a gradual adjustment of society from one that uses punishment to one that instead uses the "law" of mercy and the forgiveness of the Sermon on the Mount. It is a reasonable question.

      I do not think it would work, for 3 reasons: First, we have the evidence of the (small) society of the family. DBH's theory applies to families just as much as to civil society. But there could be no sound and holy family where the parents did not punish wrong-doing. Every child, being born not fully in tune with spiritual perfection, needs to learn the meaning of self-less behavior, and needs to be shown definite boundaries that are clear to a child's mind. But definite boundaries are, just exactly, "what you get punished for if you violate them". Indeed, one of the purposes of God-given parental authority is to teach the child the virtue of OBEDIENCE as such, because this helps the child learn obedience (submission, conformity) to God's will, in which holiness lies.

      Secondly, in a civil society that has no punishments, perhaps we could simply BEAR the evils of a (hopefully) small number of truly evil men who have simply chosen to turn their backs on living for others, and who are willing to steal, murder, and so on more or less openly. What we could
      not survive as a society, though, would be the slow, gradual deformation of character in which many people merely hide their small, petty grafts, corruptions, greeds, lusts, etc. Our experience of even small, careful communities (such as, for example, a monastery) where all are committed to living the rule of he Gospel and the 3 evangelical counsels is that without rules, an explicit standard, and accountability, the community cannot persist. And that's within tiny, select communities. All the more difficult for a whole civil order.

      Thirdly, the Sermon on the Mount itself includes this beatitude: "Blessed are those who hunger and thirst for justice, for they shall have their fill." I do not suggest that this settles the matter, for its interpretations is complex, but I think it is suggestive of a way of thinking about the well-ordered society that includes BOTH punishment and mercy, not one only.

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    5. Greg,

      You quote Hart:

      Let us grant, for argument’s sake, that the death penalty is indeed a just and proportionate response to willful murder. So what? That has never been the issue for Christians, for the simple reason that the Gospel does not admit the authority of proportional justice, as either a private or a public good. The whole of the Sermon on the Mount, for instance, is a shocking subversion of the entire idea. Christ repeatedly and explicitly forbids the application of such punishment, even when (as in the case of the adulterous woman) this means contradicting the explicit commands of the Law of Moses regarding public order and divinely ordained retribution.

      Exactly. So Hart is pointing out that God incarnate Himself reveals to us the moral truth that punishing others is evil. Therefore what human constructs such as natural law ethics say is irrelevant. Indeed its claimed results are proven to be false.

      Now my own view is that natural law ethics is a correct theory, indeed trivially correct, when under “natural end” one uses the true end of creation which is atonement in Christ. But the Thomistic tradition focuses on physical properties and so gets a lot wrong. It is rather impressive that despite their intellectual sophistication (or perhaps because of it, since pride often goes with intellectual prowess) Thomists failed to realize how grossly false some results produced by their physicalist fashion of natural law theory are. As used by them natural law theory would make more sense on naturalism. It seems to me Aquinas bent a good idea to fit the needs of the Church as a worldly power, and thus the need to justify punishing criminals even by execution. Although I understand the Church has always avoided to actually perform executions but handled those found guilty to the secular authorities to do the actual killing – which is kind of incongruent if executions are not intrinsically evil.

      Hart says Christians have no business inflicting proportionate punishments on criminals; he even insists that expediency cannot justify doing so.

      No, Hart is saying that to obey Christ’s commands entails to not judge and punish others. That is what the Christian must do in order to be a saint. But law enforcement officials are not expected to be saints. Indeed as Hart explicitly writes “the Gospel is probably not a very good formula for protecting public safety”. Tony above appears to agree. I disagree – not in the sense of saying that it would be a good idea to right away fully implement Christ’s ethics in the administration of society but in the sense that it is an excellent idea (indeed a matter of survival) to define this as the ultimate goal.

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    6. Tony,

      First, we have the evidence of the (small) society of the family.

      I don’t think that’s a valid analogy. Parents have the duty to guide the formation of their children. At least in the liberal Western democracy the state has not the right let alone the duty to similarly guide the individual.

      But there could be no sound and holy family where the parents did not punish wrong-doing.

      (As an aside I am not convinced that what you here write is confirmed by the science. My own view as a parent is that one should make certain one’s child experience the natural implications of her failures, as in “You weren’t dressed in time so you will not go to your friend’s party.” But punishing a child in the sense of punishment qua punishment for wrong-doing is not I think a fruitful tool. Explicitly rewarding for something well done may be.)

      Secondly, in a civil society that has no punishments, perhaps we could simply BEAR the evils of a (hopefully) small number of truly evil men who have simply chosen to turn their backs on living for others, and who are willing to steal, murder, and so on more or less openly.

      That’s the gist of the worry. This is a complex issue but I would say this:

      First we are talking about a gradual and measured process of society transformation in which nothing crazy will be allowed happen. So it’s not like criminals will be free to go around stealing and murdering.

      Secondly great emphasis will be put into good education, the second greatest thing there is after God. Good education would greatly minimize crime, as well as many other bad things such as broken families and abortion and (I am quite certain) atheism.

      Thirdly society will always be protected from criminals, and there are means to achieve this by minimizing punishment. Even today some European countries have policy to such an end. Finally, in a healthy society dangerous criminals will be mostly mentally ill people.

      Our experience of even small, careful communities (such as, for example, a monastery) where all are committed to living the rule of he Gospel and the 3 evangelical counsels is that without rules, an explicit standard, and accountability, the community cannot persist. And that's within tiny, select communities. All the more difficult for a whole civil order.

      Good point. Then again nothing good is easy. And monasteries do not educate the children who will grow to be monks.

      Thirdly, the Sermon on the Mount itself includes this beatitude: "Blessed are those who hunger and thirst for justice, for they shall have their fill."

      Right, but is certainly not meant as “blessed those who hunger for justice to be done by proportionally punishing those judged guilty” (perhaps a Pharisee in Christ’s time would argue that given the evidence His crucifixion was lawful and proportionate punishment). Given the context the meaning is “blessed are those who have suffered in an unjust society or those who hate its injustice - and hunger for a better one”.

      I do not suggest that this settles the matter, for its interpretations is complex, but I think it is suggestive of a way of thinking about the well-ordered society that includes BOTH punishment and mercy, not one only.

      Even many atheist recognize that the very idea of “punishment” is a barbarous one, and if at all punishment should only be used as the lesser evil. (By “to recognize” I here mean “to seem to perceive something with the same kind of clarity one perceives the physical world around. Our natural sense of the good is an entailment of being made in the image of God.)

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    7. Broadening the discussion I want to say that I love the Catholic Church. Indeed I love all Christian churches. I love and honor them and value their wisdom - since I recognize in them the good will to prepare for the Kingdom of God. But none of them is perfect because only God is perfect. And it seems to me that a weight that keeps them from becoming more perfect is the weight of their historic commitments. Given that they are not perfect some of their historic commitments are wrong. It is therefore their duty to let the Spirit guide their judgment and let their faith in God give them the strength to overcome the fear of change. Wrong inaction is as evil a matter as wrong action. I am not saying that the Christian churches are not already becoming more perfect, but that they advance too slowly. Because of the power of technology society is changing very quickly, and this is extremely dangerous because humanity’s power is growing much faster than its wisdom and virtue. More than in any time in the past the future wellbeing of humanity depends on the spiritual guidance which is the main duty of the church. And I find that the Christian churches preoccupation about their historical commitments hinders them from properly discharging their duty.

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    8. So Hart is pointing out that God incarnate Himself reveals to us the moral truth that punishing others is evil.

      But Hart does not say that punishing others is evil. Hart is describing the change introduced by the Gospel not as a revelation of the moral quality of a certain type of act but as a set of positive commands.

      I would typically think that these two things go together, but Hart is separating them: he is granting for the sake of argument that the death penalty is just and still saying that what matters is that it is forbidden.

      No, Hart is saying that to obey Christ’s commands entails to not judge and punish others. That is what the Christian must do in order to be a saint. But law enforcement officials are not expected to be saints. Indeed as Hart explicitly writes “the Gospel is probably not a very good formula for protecting public safety”. Tony above appears to agree. I disagree – not in the sense of saying that it would be a good idea to right away fully implement Christ’s ethics in the administration of society but in the sense that it is an excellent idea (indeed a matter of survival) to define this as the ultimate goal.

      I am not entirely clear on who is being claimed to disagree with what here, but in any case, in saying that the Gospel is not suited to protect public safety, Hart is not, I think, saying that law enforcement officials are not expected to be saints. He's rather suggesting that the death penalty should be abolished, even if that will cause more innocent people to die.

      The suggestion that morality is for Christians and not for law enforcement is one that I find shocking and offensive. Anscombe, in "War and Murder," observed that one result of the admiration of pacifism was a ruthless realism; for if you thought all war was evil, but you had to go to war, you would not set any limits for yourself. Someone who sees the ordinary activity of government to be intrinsically evil is liable to the same sort of fault, for he is going to find government necessary and thus will feel himself compelled to think it amoral.

      Again, I think there's something scandalous in a Christian's taking that view. There is hypocrisy in the free riding of the Christian who seeks sanctity in his own life but expects society to be run by ruthless realists.

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    9. Greg,

      But Hart does not say that punishing others is evil. Hart is describing the change introduced by the Gospel not as a revelation of the moral quality of a certain type of act but as a set of positive commands.

      I am not sure I understand what you mean here. In giving us His commands Christ does reveal to us moral truth. Disobeying God’s commands is evil, don’t you agree?

      Now there are many levels of evil, so it’s not that I would characterize somebody as an “evil person” for not turning the other cheek. On the other hand I think it is wrong (actually I would say it is a grave sin and danger to our soul’s charity) to tell others “sometimes we may ignore Christ’s commands, they are not relevant to the issue at hand, it’s not like not turning the other cheek is really evil, consider the consequences of actually doing that.”

      I would typically think that these two things go together, but Hart is separating them: he is granting for the sake of argument that the death penalty is just and still saying that what matters is that it is forbidden.

      Right. Hart tries to move the discussion away from some theory of just deserts to the where it belongs, namely Christian ethics. So I take it he says “Let me grand that according to natural law theory of just deserts state executions are in some cases just and proportionate punishment. This is in any case irrelevant since Christ forbids it. And while we all disobey Christ’s commands to some degree, to kill somebody as punishment goes way too far. And moreover apart from some theory there is no good reason for doing such violence.”

      He's rather suggesting that the death penalty should be abolished, even if that will cause more innocent people to die.

      On the contrary it seems to me he says that we have other means to protect society and therefore killing criminals is doubly unjustified. And argues that is also what the CC teaches. Let me quote Hart: “Admittedly, the Catholic Church has never committed itself doctrinally to the abolition of the death penalty, and it is true that magisterial interpretations of doctrine are somewhat fluid and of less than dogmatic authority. Still, in the eyes of the Catholic Church, the explicit teaching of the magisterium on matters of faith and morals is universally binding on the consciences of the faithful. And as regards this question that teaching is clearly stated in the Catechism: the death penalty may be permissible solely “if this is the only possible way of effectively defending human lives against the unjust aggressor,” though today, given the facilities available to the state for detaining criminals, such cases “are very rare, if not practically nonexistent” (2267). That is quite unambiguous. The only time execution may be acceptable is when it is otherwise impossible to prevent a criminal from killing again. That means that all the other arguments advanced by Feser and Bessette have already been decisively ruled out by the magisterium as morally insufficient; and this is not going to change. If any position, then, is to be regarded as contrary to Catholic orthodoxy, it is theirs.

      I conclude that the US states that still permit executions act in a way that the CC’s magisterium considers immoral. [continues below]

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    10. The suggestion that morality is for Christians and not for law enforcement is one that I find shocking and offensive.

      But that’s not what I am saying, quite on the contrary. I am stating the obvious, namely that we don’t live in the Kingdom but in a fallen world, and that we are not a society of saints but a society of sinners. So we should not administer our society as if it were a society of saints, and neither expect the public servants whose duty it is to administer society to be saints. On the other hand, obviously, a saint would not accept a position that entails duties which are not compatible with sainthood.

      The way I see it we should all in each one’s individual capacity work for a more just Kingdom-like society. So lawmakers should try to produce more just laws, judges should apply them as justly as they can, and police should enforce them as humanely as is practical. It’s not like I am suggesting an “all or nothing” thing; on the contrary I am saying “given the bad situation let’s do the best we can inspired by Christ and moving society towards His direction”. And given that direction it’s high time for the US to follow the example of about all civilized nations and abolish capital punishment.

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  18. Ed,

    I've been reading Part 3 of your reply to Tollefsen, and I have to say it is deficient when it touches on the subject of rape.

    You write: "If the state were to inflict on rapists bodily injury proportional to that suffered by their victims, and were to cause them a similar amount of humiliation, that would not be wrong in itself... However, there is also a sexual component to the crime of rape. For example, if someone punishing a rapist were literally to rape the rapist, then the punisher would have to cause himself to be sexually aroused in the course of doing that. And that would be sinful." And that, according to you, is "the problem with punishing a rapist with rape."

    It would be easy to design a machine that could inflict rape on a spreadeagled rapist, at the touch of a button. There would be no need for anyone to get aroused. From what you've written, it seems you would have no objection in principle to such a machine.

    I think you're dead wrong here. There are certain things the State may never do to people, no matter how evil they may be. Raping them is one. Inflicting excruciating pain on them is another. In both cases, the State is reducing a human being to a subhuman state.

    Killing a person is different. A man condemned to die may be accorded great respect, right up until the trigger is pulled that will kill him stone dead. (I think death by firing squad is the most dignified way to die, myself: you're awake until the very last second, and death is instantaneous.)

    This was the point you should have made, in your reply to Tollefsen.

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    1. Vincent, I agree that Ed's response is less than it should have been. And the example of "excruciating pain" (what I would call "torture" for simplicity) is, I think, a good addition to the discussion. It is forbidden to torture a convict as punishment, even if he is convicted of raping, torturing, and murdering dozens of people. Even if we accept that he DESERVES to be tortured, it is still forbidden for us to do it. Indeed, we believe that he WILL be tortured in hell, (if he goes there), and this will be his due punishment. But we cannot do it. Why?

      I would add to your expression that in doing so "the State is reducing a human being to a subhuman state" an explanation: the human being is a rational being, he needs to be a rational being. Even in punishing, the punishment needs to be that of the punished suffering an evil as a human being, for this is how he can use the punishment as expiation for his sins. Torture has the effect of - at least in some respect - separating a person from the USE of reason, so that they are unable to act from reason. As a result, the punishment they suffer, once reason is no longer present, is effectively not the punishment of a person, a reasoning being, but just the ill-treatment of the outer shell, as it were.

      As you say, Vincent, death by firing squad does not reduce the punished to the level of a brute before his death.

      I would suggest a caution about the "humiliation" aspect of punishing a rapist by something that (like rape) is intensely humiliating. The convict ought to be ashamed of his behavior, and he ought to feel shame at "what people think of him", not out of respect for human opinion, but out of respect that decent, wholesome people will themselves reflect what GOD thinks of his behavior. He therefore deserves to be shamed. However, our experience is that some sorts of shame damages the psyche and soul, while holy shame does not. So we should take thought for what kind of punishments are going to evoke what kinds of shame in an offender. One of the reasons crucifixion involved stripping the convict was to shame them in their (appropriate) sexual modesty - this was clearly wrong. But that does not mean all forms of imposed humiliation are wrong. Indeed, one of the standard forms of non-legal social boundary-setting is to cast shame on those who violate social norms, and this is normal and wholesome - when done within reason, of course.

      Though I am sympathetic to the notion we should not have a robot 'rape' a rapist, I am hard pressed to say, exactly, why. I don't immediately see that it is analogical to torture in reducing the convict to a state where reason is left behind.

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    2. Hi Tony,

      Thanks very much for your comments. Re rape vs. torture: even if being raped does not rob the victim of the ability to act from reason, it is still a degradation so profound that most of us would be prepared to kill, in order to prevent it happening to us.

      Personally, I don't have a problem with the idea of rapists being put in the stocks and pelted with rotten eggs. But even a rapist doesn't deserve to have his bodily cavities violated. Think of it this way: if the State can do that to someone, then no-one can truly call their body their own.

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    3. A machines cannot rape, dude...

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    4. They can forcibly penetrate. And that's still degrading, whether it's done by a man or by a machine.

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    5. But It is not rape! So, you think such a machine is fine in principle?

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    6. So, we can cut off a head, or penetrate a head or heart with a bullet, but not penetrate a cavity? Why, exactly?

      Think of it this way: if the State can do that to someone, then no-one can truly call their body their own.

      Arguably, a state can forcibly require a prisoner to undergo a surgery. Manifestly, the state can forcibly require a prisoner to undergo steps to empty his stomach to get rid of pills he took to kill himself, which could entail penetrating his oral cavity.

      I think the argument would have to center rather on the simulation of a sex act, where there is no conjugal act. You might argue that not only is it wrong to make a person undergo a sex act that is not the conjugal act (i.e. true rape), it is even wrong to make him undergo a simulation of such an act. But I would need to see the argument laid out. I suspect the argument is there, something like this: it is morally corrosive (on the prisoner) to simulate sex acts that are even remotely like the conjugal act but are not moral sex acts because they are not the conjugal act. And it is morally wrong (for the prison authorities) to cause such a simulation of a non-conjugal sex act, because it is wrong to simulate such an act at all.

      That's rough, but probably in the right direction. (This is, I suspect, the right direction also for the BASIC point Ed needs to make: even "real" rape of the prisoner is immoral because it is a simulation of what should never be simulated, the conjugal act.)

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    7. So, we can cut off a head, or penetrate a head or heart with a bullet, but not penetrate a cavity? Why, exactly?"
      This is like to ask "why a married couple can have sex and a non married couple can not? According to the genus of nature they do the same thing but Morally they don't

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    8. Anonymous,

      The reason why I posed the question about the rape machine was because I had recently read a disturbing report about a clan of rapists in northern Nigeria who were captured by members of the tribe they used to victimize, and who were forced to impale their orifices on wooden poles, to give them a taste of their own medicine. That's what prompted the horrid hypothetical about a machine that could inflict the same punishment, at the touch of a button. The person pressing the button would indeed be a rapist, even if he experienced no pleasure in violating another human being by remote control.

      You ask why it is never OK to inflict rape on a rapist. As I wrote above, such a punishment is inherently degrading. It destroys a person's sense that their body is their own, and not the plaything of another. It destroys an individual's ability to resist, crushing their spirit and turning a human being into a compliant slave of the rapist. Such a violation of the human spirit can never be morally justified. It's always wrong.

      Killing a murderer, on the other hand, doesn't violate their spirit, so the comparison does not hold.

      Tony,

      You write: "Manifestly, the state can forcibly require a prisoner to undergo steps to empty his stomach to get rid of pills he took to kill himself, which could entail penetrating his oral cavity."

      First, the intent here is wholly different: to save an individual's life, rather than to crush an individual's spirit. Second, there can be no comparison between forcibly penetrating a person's oral cavity and subjecting them to anal rape. The psychological effects of the two acts are completely different.


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    9. First, the intent here is wholly different: to save an individual's life, rather than to crush an individual's spirit.

      True, the intent is different. But it is not clear that the intent gets you out of the woods. As with JPII's analysis of the moral act, the species of the act is determined by its object, not by its intention. Secondly, if the prisoner swallowed a bunch of pills precisely to commit suicide, going in to empty his stomach is a complete violation of his intention. It is not clear, if intention is critical, why violating his intention is not just as much an illicit violation.

      report about a clan of rapists in northern Nigeria who were captured by members of the tribe they used to victimize, and who were forced to impale their orifices on wooden poles, to give them a taste of their own medicine.

      Pretty sure that the "impale" implies not a temporary intrusion that will be removed without causing major physical damage, but, you know, impaling the person's innards by way of his orifice. Forget the psychological effect, the physical effect is quite permanent: death.

      As I wrote above, such a punishment is inherently degrading. It destroys a person's sense that their body is their own, and not the plaything of another. It destroys an individual's ability to resist, crushing their spirit and turning a human being into a compliant slave of the rapist. Such a violation of the human spirit can never be morally justified.

      Maybe you are right, Vincent, but my sense is that you are overplaying the effect here. Part of the violation that occurs with real, standard rape of a woman by a man is that he imposes (rather than requests and receives agreement) an ACTUAL sex act that is in its physical species - like the conjugal act physically - capable in its form of generating a child, but - completely unlike the conjugal act - is from malice rather than from love, is outside of the context of a promise of permanent love of the child, etc. The psychological sense of the violation is not just from "there is force" but from TWISTING what is physically like to the conjugal act into something that is completely contrary to the conjugal act in its interior meaning, from malice.

      In our hypothetical mechanical "rape", first of all the act is NOT "like to" the conjugal act in its physical species (it could never achieve the generation of a child, due to both the agent of the act, and due to the physical species of the act that it actually simulates (which is, itself, not "the conjugal act" but a degenerate mimicry of it)). That is to say, it derivatively or indirectly bears some similarity to "the sex act" (i.e. the conjugal act) in its physical dimension, but also bears marked differences also, because it is a similicrum of something OTHER than the conjugal act.

      Furthermore, the cause of the act is to impose an evil, but not from malice, but from justice (hypothetically), so it is missing a critical part of why the act of rape is so overwhelming in its psychological dimension.

      Finally, unlike the conjugal act (which is designed to be voluntary by both parties), punishment is GENERALLY something physically imposed on the offender, something that bodily forces him into a situation he does not choose of his own will. Though the mechanical "rape" would be of a sort rather more immediately intimate than physically forcing him into a cell (or, into the showers, or into the rock-breaking yard), but it is not obvious why the difference would be treated as completely unlike the other sorts of force, and be psychologically overwhelming precisely when the "act" forced is lacking some of the features of a real rape that do make it psychologically overwhelming."

      Though, just on that score alone, since it is "not exactly like rape", it is also not obviously a good match as punishment.

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    10. A good one, Tony. Thats exactly what I wanted to say.

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  19. A lot criticisms here seem to take the form of society would collapse or we might perish. Is not this an implicit appeal to Utilitarian concerns? The Christian if such stripe might well bite back by asking so? If it’s a choice of committing an immoral deed or letting the world burn then one must let the world burn.

    Natural Law, as a smaller subsection of essentialist ethics, is orientated towards Aristotlean polis making. Other ethical imperatives (does Hart think the moral code Christians follow can be naturally known?) may not conflict with this aim but there is no a priori reason why they must conform to this.

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    1. OA Police, I don't think you are placing the "but society would collapse" in the larger framework. Classic Natural Law (CNL) is saying "we punish to achieve justice, which is a good". The DBH crowd says "Christians should aim instead at mercy, and forgive." They are not arguing that the DP is an "immoral deed" of its own nature, only that it is no longer allowed because Christ called us to forgive instead of punish - i.e. (in their claim), a higher good. The CNL response is where we have your point: We do not believe that Christ is calling us to simple forgive all wrongdoing and forego punishment, because doing so would undermine society (and for other reasons too, such as pursuing mercy is not supposed to repudiate justice, it certainly did not in Jesus' case). They therefore disagree with the claim that "Jesus called us to forgive" is to be taken as applying to all cases of crime and wrongdoing, and applying in the sense of not punishing at all.

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    2. @Tony, from that article at least I don't think DBH accepts Natural Law reasoning as providing a justification for capital punishment (see the fourth paragraph)or for moral reasoning in general. The most he admits is that there is a concurrence on the basic level between divinely revealed moral truths and morally truths reached by natural reason.

      In the next paragraph he makes a show accepting their reasoning is sound for the sake of the argument. Yet if the point in the above paragraph about revealed and natural morality not conflicting with one another this is just a tactical sop to allow him to discuss scripture and the Fathers, a firmer ground for him. What he should do is come out honestly and attack Feser's theory of natural law.

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    3. I suspect that Hart rejects natural law theory and holds that the full moral code Christians follow cannot be determined by natural reason alone. He does have to hold, I think, and his comments on the natural and moral orders suggest this, that we can learn something about the moral order through natural reason.

      And while he does not accept Feser and Bessette's philosophical argument for the death penalty, he does, again, I think have to hold that punishment in general (even if Christians may not do it) has its own form of intelligibility, albeit an intelligibility that is superseded by Christian revelation.

      What I mean is this. He thinks that arguments that the application of a punishment is just are not relevant for Christians, because Christians have been called to show mercy. But you cannot show mercy to someone who has not done something wrong, who does not deserve more than you are giving him. So whatever Hart's theological account is, he will have to preserve the thought that punishment of wrongdoing is what natural justice calls for.

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  20. One can see why Tollefsen is led to such a view. He will agree that friendship with God, which both wayfarers and the blessed enjoy, is a basic good. If hell consists, at least, in the permanent removal of that friendship, then he will have to hold that this is not something which God imposes on the damned, that is, not something which God positively intends to come about, or else there will be intentional destruction of a basic good.

    I don't know enough about New Natural Law to say but could not one make the case that God wills the punishment of the damned for their immoral actions, just ad he does to those in Purgatory, but he does not will their separation from him. The fact that the damned are punished is intended but the fact they are seperated is the fault of their own action.

    (This might have the consequence that the specific suffering for punishment is finite in duration, the infinite part of Hell being the eternal anguish at the soul's separation from God. Need that worry a Catholic though?)

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    1. I do not think that it is open to new natural lawyers to say that. "Punishment," or even "proportionate punishment," just is not sufficiently determinate to exhaust one's intention. The punishment consists in their being separated from him, and you cannot punish someone without intending to give him what he deserves. (As I said earlier, it is part of the notion of punishment that it is imposed, that one is getting what one deserves, because one deserves it. A consequence of this point is that the getting of what one deserves must be the aim of the minister of the punishment.)

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