Tuesday, November 21, 2017

Reply to Fastiggi


In a recent article at Catholic World Report, Prof. Robert Fastiggi defends the claim that the Church could reverse her traditional teaching that capital punishment is legitimate in principle.  My reply to Fastiggi has now been posted at CWR.

Meanwhile, all three of my articles replying to Brugger and Tollefsen have now been posted at Public Discourse.  Next on the agenda: replies to Griffiths and Hart.  Stay tuned.

28 comments:

  1. The replies have been great. It's awesome to have you and the frenemies explore the objections so openly and accessibly. It must be exhausting because it seems you're having to repeatedly make the same points for different sites or audiences.

    Thank you for all your effort, I really appreciate it! Hopefully we're all learning something -- I know I am.

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  2. Though you deal with New Natural Law theory in the book to a degree, I would love to see a comprehensive (full article length) rebuttal of the NNL theory from you at some point.

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    1. I would recommend Steve Brock's "Practical Truth and Its First Principles in the Theory of Grisez, Boyle, and Finnis," Steven Jensen's Knowing the Natural Law, Michael Pakaluk's "Is the New Natural Law Thomistic?," and Michael Augros and Christopher Oleson's "St. Thomas and the Naturalistic Fallacy".

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    2. There are a series of responses from a (classical) Natural Law standpoint to the NNL approach in the National Catholic Bioethics Quarterly from 2013, to which our gracious host contributed. The preface to it is here but the article themselves are behind a paywall at the Philosophy Documentation Centre.

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  3. I can't wait for your response to Hart.

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  4. Couldn't there be a way to argue against capital punishment from a new natural law perspective? I am not entirely convinced that NNL necessitates this position. Finnis himself was not against the death penalty in the beggining.

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    1. I meant "to argue IN FAVOR of capital punishment".

      If not, I think Grisez's conclusion that intentional killing in war is not acceptable would function as some kind of reductio ad absurdum for our practical purposes. How will a country defend itself?

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    2. I think Finnis' early position will not really work on the principles of NNL.

      NNL implies that human life can never be destroyed intentionally. Capital punishment just is the administration of death as a punishment.

      What NNL will have to hold, though, is that there could be punishments, which are not literally capital punishment, but which look for all the world like capital punishment. The requirement will just be that death is not intended.

      To see what they would have in mind, it is worth dwelling on intentional killing in war. It is true that they also hold that no one should intentionally kill in war. But this does not make war impossible, they think. Soldiers can shoot each other and drop bombs on each other without intending death; I might drop a bomb on an enemy target, hoping to incapacitate the enemy by vaporizing them. As a matter of fact, vaporizing a person always kills him, but 'vaporizing' and 'killing' do not mean the same thing, so I can intentionally vaporize without intentionally killing, on this view.

      So when something that looks like capital punishment is permissible, NNL holds that it is actually a form of self-defense. If we lived in a society which literally did not have the resources to keep murderers in jail, then we might find separating their heads from their bodies to be a salutary method of incapacitating them and protecting society. This has the consequence, which we must regard as unfortunate, that instances of the basic good of life are destroyed, but this is not intended.

      This still wouldn't be capital punishment, though, and it is still in tension with the Catholic tradition.

      On the other hand, it does seem to me that one could argue from NNL to the view that we could, say, administer injections which are in fact lethal for crimes that presently are taken to merit the death penalty. NNL still acknowledges a principle of desert; the criminal is supposed to be punished in proportion to his assertion of will against the common good. And if his assertion of will was to murder someone, say, then he has at least totally destroyed one person's liberty. By stopping his heart permanently, we can take away his liberty; and this punishment is justified, because anything less would be less than proportionate. It is true, again, that the basic good of life will be destroyed in the administration of this punishment, which is unfortunate but unintended, and after all, the basic goods are incommensurable.

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  5. QUOTE"There are two fundamental theological questions that arise in Catholic discussions of capital punishment. First, is capital punishment legitimate at least in principle? Or is it always and intrinsically wrong? Second, is capital punishment advisable in practice? Or are there moral or other reasons for the state to refrain from inflicting the death penalty, even if in theory it has the right to do so?

    Both of these issues are addressed at length in By Man Shall His Blood Be Shed. But in my most recent Catholic World Report articles I have been addressing only the first issue, and that is also the issue I am addressing in the present article."END QUOTE

    That sums the whole thing up neatly. Anti-Capital Punishment Fundamentalists will try to muddy the waters on this conflating the advisability of Capital Punishment vs it's moral status in essence.

    Mark Shea & my ex-friend Pete Vere are notorious in this regard.

    They waste everyone's time virtue signaling how they are not "blood thirsty" and that Dr. Feser's work is nothing but fodder for "right wingers" who get off on frying people in the electric chair and love President Trump.

    They could care less about the doctrinal integrity of the Faith.

    Also they accuse Dr. Feser of Pope bashing as if his respectful, sober, & restrained criticism of the Holy Father's statements was somehow morally equivalent to that of extremist Radtrads who attribute the worst motives too the Pope?

    I am not having any of it!

    Deal with the issues or go home.

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  6. Off topic. Prof. Feser, do you plan to publish a philosophy of nature, or even an Aristotelian logic book? I have really enjoyed your books, as I have also enjoyed D.Q. McInerney's series from FSSP press, and think they complement each other quite well. Thanks from someone who has been trying to understand St. Thomas all his life.

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  7. Dr. Feser,

    I think Fastiggi and others like him are actually arguing that capital punishment is not wrong in principle, but is wrong in practice given contemporary circumstances, and since it is wrong in practice there is no legitimate reason to politically advocate for its use.

    The counter argument really should be that it is not wrong in practice even today, mainly because of the retributive nature of it. There is absolutely nothing that could happen developmentally in civilization that will ever do away with the retributive aspect of capital punishment.

    I will grant you however, that I do think deep down none of these people accept capital punishment even in principle. In their minds it was always wrong, but society is only now sufficiently advanced and Christ-like to finally see the truth. Which of course, to anybody who is not a liberal progressive, is a load of hog-wash. But as far as their public arguments, I stand by my first two paragraphs. Their arguments are focused on practice and contemporary circumstances. They know there is no other way to argue against it. I almost think when we continue to distinguish between practice and principle for them we are only helping them out. Meet them head on, refute the claim that it is wrong in practice in modern society and they are left with nothing.

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    1. In other words like I said above they are trying to muddy the waters conflating the advisability of Capital Punishment vs it's moral status in essence.

      If they feel so strongly that capital punishment is wrong in practice given contemporary circumstances then they should stop dicking around and just concede up front that it is in fact permissible in principle.

      But too many of them would rather virtue signal then deal with the issues. Which is ironic because I am open to believing Capital Punishment might be wrong in practice. I don't at this time but I am open minded but I am closed to contradicting the Church's teaching.

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    2. I think Fastiggi and others like him are actually arguing that capital punishment is not wrong in principle, but is wrong in practice given contemporary circumstances, and since it is wrong in practice there is no legitimate reason to politically advocate for its use.

      Fastiggi is not careful to distinguish the two questions of whether capital punishment is ever permissible and whether capital punishment should be used today. He often just speaks of "support for the death penalty," which is ambiguous on this point.

      I am inclined to read him as answering both questions negatively. He is contesting, for instance, Feser and Bessette's view that Scripture teaches the "legitimacy" of capital punishment. In so doing, he is taking the view that Catholics are free, and do not contradict Scripture or the tradition, in holding that capital punishment is morally illegitimate. That is most plausibly understood as "wrong in principle."

      He considers the following question: "Does not Pope Francis’ position on the death penalty mean that prior popes who accepted capital punishment (e.g. Innocent I, Innocent III, Leo X, and Pius XII) were wrong?" He says this is a "simplistic" way of understanding the matter, but his answer seems to be: "Yes, but it was acceptable for them to be wrong." But they could not have been wrong about contemporary circumstances, because they did not live under contemporary circumstances. They were wrong, on Fastiggi's view, about whether the death penalty could ever be used.

      I am a bit confused by his comments on Pope Francis:

      Pope Francis has not definitively and infallibly condemned the death penalty, but he has taught that “today the death penalty is inadmissible” (Hoy dia la pena de muerte es inadmisible; AAS 107 [2105], 363). He has also taught that it is “per se contrary to the Gospel” (Address of Oct. 11, 2017). He has not yet condemned capital punishment as intrinsically immoral, but his mind and will on the subject are sufficiently clear in various expressions of his ordinary papal magisterium. Papal speeches or allocutions are expressions of the ordinary papal magisterium, especially when they appear in the AAS. (cf. Msgr. Joseph C. Fenton, “The Doctrinal Authority of Papal Allocutions” American Ecclesiastical Review Vol. 134 [1956] 109–117). Catholics are obliged to adhere to teachings of the ordinary papal magisterium “with religious assent, which though distinct from the assent of faith, is nonetheless an extension of it” (CCC, 892; cf. Lumen Gentium, 25).

      This sentence is a bit confusing in particular: "He has not yet condemned capital punishment as intrinsically immoral, but his mind and will on the subject are sufficiently clear in various expressions of his ordinary papal magisterium." Is he saying that Pope Francis has not explicitly said that capital punishment is intrinsically immoral but it's clear that he believes that? The 'yet' seems to suggest this reading; he hasn't taught it 'yet', but it's clear that the natural development of what he has said is that capital punishment is intrinsically immoral. And so, on this reading, we owe our religious assent to that future teaching which is implicit in Pope Francis' remarks.

      But I suppose you could also read that sentence just as saying that Pope Francis has not condemned capital punishment as intrinsically immoral, but he has condemned it quite strongly, and has insisted not just that it is wrong in some particular circumstances, but has been wrong in every case that it has been used.

      I am not sure whether Fastiggi thinks we all ought to believe that capital punishment is intrinsically immoral, or if we are just bound to believe that it is "per se contrary to the Gospel," where this means something else but still suggests that capital punishment is always wrong.

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    3. I don't think that Fastiggi is clear enough to mean this, but perhaps one possible way to read Francis's comments is this: the DP is not intrinsically wrong, i.e. it is not wrong in its species so that it must necessarily be wrong in every time and place. However, with the New Dispensation by Jesus in the Gospel, He has forbidden our using it, and since the time of Christ it is "inadmissible", because it is contrary to the Gospel.

      This would actually fit rather well with DBH's comments.

      It would still appear to contradict St. Peter, St. Paul, and the teachings of the popes, Fathers, Doctors, and the theologians since the early Church, so it's still not a position that is uncontroversial or easily defended.

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  8. God is perfect justice and mercy.

    Many today seem to forget about the justice.

    Genesis 9:6
    Whosoever shall shed man's blood, his blood shall be shed: for man was made to the image of God.

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    1. Wouldn't "whoever" also include the executioner?

      Another thing. If God is ultimately simple, God's (perfect) justice is God's (perfect) mercy.
      There should not be a conflcit betweden justice and mercy. Justice should be based on mercy.
      So, it doesn't seem to be a matter of forgetting about justice, rather people who defend the DP seem to be forgetting about mercy.

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    2. Executing the just penalty does not preclude the one forfeiting his right to life through egregious crime God's mercy. In fact, his immanent demise might focus his attention on attaining eternal life by seeking God's mercy before the fateful hour. The temporal realm is the theater through which God in his providence brings us to seek Him and life eternal with Him. I don't see how the DP itself cannot supply a means for man to seek God's mercy, and receive it.

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    3. I do not claim that the DP cannot supply a means for man to seek God's mercy, but I don't think the DP is necessary as a means for man to seek God's mercy.

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  9. Justice should be based on mercy.

    Walter, you give no reason for saying this, and I cannot come up with a reason for putting it this way rather than the opposite way: mercy should be based on justice.

    One of the simple, basic ways of defining justice and mercy is this: Justice is giving someone what is their due. Mercy is giving someone what they do not have due, e.g. a gift.

    Obviously, if I owe someone $5.00, I cannot reasonably give them more than is their due, until I have first MET the due amount of $5. So, if I want to give them a gift of money, my mercy must first regard the amount due, the $5 which must be paid, and then the mercy can be piled on top as an addition. Mercy (in that case, at least) would be "based on" or at least BUILT on justice.

    In his relation to us, God cannot build mercy on justice in THAT way, because we cannot even begin to exist and be owed anything until God gives us existence, which is more than we could deserve (before we exist). But once we exist, we have a relationship to God in which we owe him our gratitude and love. We were unable to meet that obligation, due to being in sin, until Jesus paid the debt of sin for us, and in mercy applies the merits of his obedience to the Father on our behalf, after which we CAN meet our obligation of gratitude and love. But this highlights the difference between the Creator and the creature: the Creator cannot owe anything to a creature except with a predecessor gift or mercy, whereas the creature must necessarily owe to God everything, and cannot possibly give to God more than what is owed to him.

    But between creature and creature, mercy and justice are actually distinguishable, and mercy seems to presuppose justice.

    Some people have proposed that by allotting to a man a punishment due for his offense, that justice in the temporal order presents an opportunity for mercy in the supernatural order: by repentance and accepting his just punishment he can expiate his sins here in this world, he can be made whole in reference to God and the eternal order, which is better than he actually deserves. Like with God (in a sense), being just can also be an act of mercy, when you consider different orders.

    The civil authorities also can be merciful in another sense in exacting the death penalty: in many cases, such as repeat rape / torture / murderers, they deserve many deaths, and indeed they deserve those deaths with extreme pain - but the authorities limit themselves to exacting just one death (as if they had a choice!) but also without extreme pain.

    There is no reason to assume that exacting the death penalty means not being merciful.

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  10. Tony

    I did give a reason for saying that justice should be based on mercy, namely that per divine simplicity, (perfect) justice is (perfect) mercy.
    And since, as you put it, mercy is usually defined as something "more" than mere justice, a kind of extra gift.
    But since divine justice and divine mercy are the same, divine justice too must be a gift.
    The very fact that God gave us existence, which is more than we deserve, means that God's mercy has "priority" over his justice.
    Of course, if two things are the same, one cannot really have priority over the other, which means that justice and mercy are the same but mercy is a better way to describe God's "property" than justice.
    That's what I mean.
    I am well aware that civil authorities can be somewhat merciful by only executing once and not twice or by trying to avoid extremely painful ways of executing, but exacting the death penalty in and out of itself is not perfectly merciful. Hence, I can understand why the Pope and other Catholics are against the death penalty.

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  11. Hence, I can understand why the Pope and other Catholics are against the death penalty.

    Yes, if one refuses to try to take nuance and secondary principles into account, one might readily trump justice with mercy and just say "we are supposed to be merciful, and nuts to justice." However, as has been said repeatedly now, this approach means that ALL punishment would go away, not just hard ones like the death penalty, and in ALL cases, not just civil law but also in the family, in civic organizations, on teams, etc. And then you would have a failure of society itself.

    Until someone who says "mercy, not justice" attempts to show us how and where the limits of that lie, and why not "mercy and justice both", and how to make them fit into a single whole as being aspects of "the whole good" without one eradicating the other, I will go on being skeptical that there is such a solution that truly does mean no DP across the board.

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  12. Tony

    I do say "mercy and justice both" but i also say that per divine simplicity, mercy and justice are the same. Hence they both are what is imlied in the stronger of the two, which is mercy.
    And no, this does not imply saying nuts to justice and no, this does not mean that all punishment would or should go away.
    It just means we should be as merciful as possible while also being as just as possible.
    The important question here is whether justice can be served without the death penalty.
    If it can, then the death penalty is indeed intrinsically evil. And I would also agree that if justice can be served without any punishment, all punishment is intrinsically evil.
    The point i think the Pope and other opponents of the Dp are trying to make is that the former can be reasonably argued, while the second can't.

    BTW, I am not arguing here that proponets or the death penaly are wrong. I am trying to take nuance into account by examining both sides.

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  13. The important question here is whether justice can be served without the death penalty....The point i think the Pope and other opponents of the Dp are trying to make is that the former can be reasonably argued,

    Walter, I grant the theoretical possibility that this is what some opponents of DP are trying to argue. However, this is NOT what some of them are arguing, some are arguing that DP is intrinsically evil even though a lesser punishment is not sufficient for justice. Others are explicitly saying that it simply doesn't matter whether justice would demand the DP, even if that were the case we are still obliged to apply mercy and forego justice.

    If some people (say, Francis, for example) are claiming that justice can be met entirely sufficiently without resorting to DP, they are going about it with an incredibly poor approach. Many of the arguments being used do not even tangentially get at whether full justice can be met without resorting to DP.

    Feser's book does indeed make an argument that on the whole (across the many cases a whole society presents) justice cannot be fully served without resorting to the DP. I won't state them here, they're in the book. I will just say that most of the people who DO try to claim that justice can be fully met without resorting to the DP do not take Feser's arguments seriously enough, or sometimes make unserious arguments of their own that are often not worth the electrons needed to spell them out.

    I do say "mercy and justice both" but i also say that per divine simplicity, mercy and justice are the same. Hence they both are what is imlied in the stronger of the two, which is mercy.
    And no, this does not imply saying nuts to justice and no, this does not mean that all punishment would or should go away.


    We are not God. In humans, the virtue of justice is a distinct virtue from that of mercy - even granting that mercy is the more fully "divine" virtue. Would you care to spell out, in human society, how you propose to pursue mercy in a way that allows mercy to subsume justice within itself, and yet leaves room for punishment? I should like to see it.

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  14. Tony

    I haven't read Feser's book yet, so I am not going to comment on whether in all cases whether justice can be served without the death penalty.

    The key part of your post is, I think, "we are not God", but we are supposed to be made in the image of God and try to be like God as much as possible. Hence it is our duty to be as merciful as possible.
    So I don't agree that the virtue of justice is really a distinct virtue from that of mercy.
    As to how I would propose to do this in human society, that would be too complicated to explain in a few sentences, but I think the Scandinavian model, while not perfect, is a step in the right direction.

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  15. I do say "mercy and justice both" but i also say that per divine simplicity, mercy and justice are the same. Hence they both are what is imlied in the stronger of the two, which is mercy.
    And no, this does not imply saying nuts to justice and no, this does not mean that all punishment would or should go away.


    Walter, I am sure that sorting through this would take us very far indeed away from the DP, but obviously you and I have extremely different ideas about human nature. One of them, apparently, is in what it means for a creature to be made in God's image. In God, who is utterly simple and therefore does not have distinct parts, his justice and his mercy are naturally not distinct, nor is his intellect distinct from his will. In humans, who do have distinct parts, it is necessarily true that we cannot be "right" or "perfect" by having all of our excellences be the SAME excellence, because the excellence of one part must be distinct from the excellence of another part: the hand cannot say to the eye, "I want to see as well as you." It would require making man no longer a CREATURE like God, but to be God Himself, for a man to be such a thing as the excellence of his intellect is the same thing as the excellence of his will. I am fairly confident that it would not behoove us - in order to be as much like to a God who has no parts as possible - to start lopping off as many parts as we can get away with, that this would not be human excellence.

    In any case, if you think that "the Scandanavian model" (whatever that is, I don't know what they do for a penal system) is a good way to go, you must think that somehow punishment is part of mercy or something like that. I don't need a full blown account of human nature, you could just say how it is that when they punish some criminal with 5 years in prison, why they would not be more merciful to reduce it to 4 years.

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  16. Tony

    This will be my last reply. If you want to have the final word, then you can have it, but i want to clear up some misunderstanding.
    I know that a creature being made in the image of God does not mean the creature has the same qualities as God. Of course we have parts and our intellect is not the same as our will and our justice is not the same as our mercy, but nevertheless, our mercy and our justice cannot be completely separate. So it's not that justice should be part of mercy, but rather that justice should always entail mercy.
    That's not just a consequence of divine simplicity, it is also an explicit divine order. After all, through Jesus God did command us to love our enemies and to turn the other cheek.

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  17. I have no problem with that. I also do not believe that when you require that justice should always entail mercy, that this leads to a conclusion that the DP is never to be used. One can require that justice always entail mercy and still resort to the DP.

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