Friday, July 7, 2017

Briggs on By Man Shall His Blood Be Shed

[A] book so thorough and so relentless that it is difficult to imagine anybody reading it and coming away unconvinced by the lawfulness and usefulness of capital punishment…

Experts on this subject may be assured that Feser and Bessette have covered every facet with the same assiduity of a lawyer preparing a Supreme Court brief.


  1. Hi Ed,

    I'm wondering if you would care to respond to the bad review you got on Amazon. I cut out the first part which is just an ad hominem.

    The philosophical arguments are mostly just assertions, not compelling arguments. There is a concept of natural justice that is almost coherent, if you believe in something like the lex talionis as a standard for judicial equity. But even that is badly argued.

    He doesn't say how it is badly argued, he just asserts this (seems like the pot calling the kettle black here). But is law supposed to be based on lex talonis?

    More to the point, it has nothing to do with Christian teaching, which has nothing to do with preserving natural equity or retributive justice.

    I find this hard to follow. Jesus died for our sins, yes, but even should an ax murderer make a good confession, the priest would still require the penitent to confess their crimes to the authorities.

    As for the biblical arguments, they are like bad parodies of fundamentalist proof-texting from the Old Testament. The authors are unaware not only of patristic and later treatments of these passages, but of the Apostle Paul's teaching on the relation between law and the gospel of Jesus. They literally seem unaware that neither the Noachide laws nor the Mosaic law are regarded as incumbent on humanity redeemed in Christ, and that the higher law of mercy has caused the wrath of the law "to vanish away."

    Hummm - It seems to me that Jesus told the rich man that he must follow the ten commandment to enter into the kingdom of heaven. Then there is Romans 13:4 "For the one in authority is God’s servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer." I think there is a bit more to this.

    And then they seem not to know how the teaching authority of the church works. The Catholic magisterium has become very clear on this matter. There may be cases, in primitive circumstances, where public safety requires killing a threat to the community, this is never permissible where mean of incarceration and possible reformation are available. And all other criteria for capital punishment the church clearly deems illegitimate. It does not have to be doctrine to be binding on the conscience of the faithful--it only has to be magisterial teaching, which it is.

    Sigh - Despite the fact that Cardinal Ratzinger himself said that this was a topic that one could legitimately disgree with the magisterium over. I wonder if there is such a thing as magistrial fundamentalism?

    I suppose if you spent your time responding to every crack pot who makes a comment, you would never get anything done. :)


    1. Why bother? The review is entirely rhetorical. The author gives no support or even detail to his assertions.

    2. >Jesus died for our sins, yes, but even should an ax murderer make a good confession, the priest would still require the penitent to confess their crimes to the authorities.

      This isn't true. Correct me if I am wrong (but I am not), but a priest cannot require a penitent to disclose his sins, as part of a penance or in any other way.

      "Can. 983 §1. The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason."

      Requiring a penitent to turn himself in would be a manner of betraying the penitent, thus "absolutely forbidden".

    3. Edward, I don't think you quite have it right. It is absolutely forbidden for the priest to do it; it is never forbidden for a penitent to disclose his own sins. If a penitent does it, the penitent does it. The (valid) objections to requiring the penitent to disclose his sin are circumstantial and not related to the absolute prohibition on the priest. Canon Lawyer Ed Peters, quoting 2 pre-Vatican II sources canon law commentaries:

      “As for whether a public penance as sacramental satisfaction can be imposed on a penitent, under current law, it seems that such should be entirely rejected, for that would be to oblige a penitent to manifest his sin, something too burdensome and unreasonable. One could except the case where it is necessary for the public repair of scandal properly so-called, in which case the penitent is bound to repair this scandal publicly even if the confessor did not impose it as a sacramental penance.”
      The characterization “too burdensome and unreasonable” is a far cry from the incredibly severe censure of the canons against a priest disclosing a confession, which can result in excommunication. And from those canons there could be no exceptions for the “repair of scandal” case, either. So I don't think the prohibition is absolutely against the penitent himself revealing his sin due to the confession.

      A priest can withhold absolution if he has specific reason to doubt that the penitent is contrite, but he is not allowed to be arbitrary about this, and a presumption of contrition is applicable. Nevertheless, a priest might use hypotheticals and circumstantials to plumb the matter, and might propose a hypothetical such as “suppose an innocent person were to be tried for the crime, what would you do? Would you alert the police to evidence that would exonerate him, even that it put you in danger of being discovered as the culprit?” Like the repair of scandal case, natural law itself demands that a penitent do what he is able to prevent yet ANOTHER innocent person be harmed by his crime, which would certainly happen if an innocent person were to undergo trial and possibly be convicted.

      Like with other sins that bear concrete damage, the willingness to repair the damage is not foreign to the accepted practices for penance. Peters again:

      Others rightly suggest performing works of mercy, restitution of stolen goods, retraction of slanders, and so on. CCC 1459-1460; McAreavey, op.cit., 535.

      Restitution of stolen goods can reveal the original culprit, and this might be a reason to be cautious about the matter but so far as I can see the natural law that the stolen goods be returned is more fundamental and obligatory than the “right” of a penitent sinner to be secure from being found out by his own acts. So, even if the priest didn't demand it as a condition of penance or not, the priest's making clear the obligation to the penitent would be consistent with a good confession.

      In any case, it does look like Daniel's comment is not valid across the board.

  2. Hey Ed.
    Somewhat OT, but Amazon has your Five Proofs book set for an August 18th release. Is that a dummy date, or is it, so far as you know, pretty close? Thanks!

  3. Hi Ed - Or anyone else who cares to respond :),

    Is this book a good place to get a firm grasp on the principles of natural law? Or would you recommend another book where a more full account is made?

    For example, as a Canadian, I find myself having philosophical debates that, more and more, depend on my making arguments based on natural law. For example, regarding transgenderism, homosexuality, and so on.

    I find these discussions are not merely speculative, but apologetic in nature. My understanding of natural law seems to equate to the concept of essentialism, but how does that become a foundational principle in a legal argument? Especially when I live in a legal system that leaves such concepts as "Human", "Rights", "Man", and "Woman" so undefined....


    1. I would HIGHLY recommend the old manual (which Dr. Feser has actually mentioned on this blog several times, and even cites in By Man Shall His Blood Be Shed) "The Science of Ethics" by Cronin. It is in the public domain, you can find it pretty easily online for free, and from what little I've read of it (the first couple hundred pages) it is a very clear-headed and idiot-proof guide that explains the metaphysical and psychological bases of natural law in a slow and methodical way that covers all bases.

      I would not particularly say that By Man Shall His Blood Be Shed is a good introduction to natural law. Yes, the elements are all there, mainly in the first chapter, but the important stuff is presented in a very condensed form, in which the less obvious implications of each step are easy to miss.

    2. Thanks for the recommendation Edward. Cronin covers a lot of ground!

      So, I gather that natural law is grounded in what we own in justice to God. And that one of the key premises of this is that God is provable by reason alone, that all religions (including native and polytheistic religions) in some way recognize this dependence on God or gods or some higher powers.

      So what are we to make of laws that make no reference to God in the formulation of their laws? For example, in Canada, we have the charter of rights and freedoms, where concepts like Humanity, right, and so on, seem to come out of nowhere and their definitions are merely presupposed? How an atheist of a secular humanist defines these terms is very different from how most religious people would define these terms. And yet, it appears that the reading of these documents by the Canadian Supreme court is primarily on secular humanistic and atheistic grounds.

      What seems to be needed is a return to natural theology and natural philosophy, that is broad enough in scope to get support from all religious people regardless of creed.

  4. Hello

    I would be interested to know how one should think about arguments that people became bad because of their circumstances (eg abused by family) or that they have a form of mental illness that is not recognised by the legal system. Thank you, Alex

    1. My $0.02, FWIW: People who make those kinds of arguments generally presuppose some sort of materilism/scientism. They pride themselves on not believing anything for which there is no emoirical evidence. So ask them for their evidence. They might cite socio-economic or psychological statistics, but all that can prove is that socio-economic environment, family dysfuction, or what have you increase the chances of certain behaviors. If even one person experiences those environments and behaves differently, that person falsifies a deterministic relationship between the environment and the behavior and provides empirical evidence that choice is real. Alternatively, they might try to argue from the fact that certain types of brain damage change behavior. That also is easily refutable. True, brain damage can cause changes in behavior just as leg damage causes changes in walking. But by your interlocutor's reasoning, there is no difference between a man who doesn't walk because his legs are broken and a man who doesn't walk because he's lazy. That assumption begs the question by presupposing the very materialism it is supposed to prove. They may try to argue from fMRI studies, but there are several problens there. First, all an fMRI can show is that there is activity in certain areas of the brain when the subject claims to be having certain experiences. Assuming the subject is being truthful (which there is no way to empirically verify), correlation does not necessarily mean causation. Even assuming a causal relationship between the brain activity and the experience, an fMRI cannot, even in principle, establish the direction of causality. Am I in love because there is activity in my brain, or is there activity in my brain because I am in love? An fMRI, by its very nature, cannot answer that question. The assertion that the direction of causality is from brain activity to experience and not vice versa again assumes (and again without empirical evidence) the very materialism it is supposed to prove.

    2. Augustine says he would not have stolen the pears alone. In human morality, being as we are social animals, it's the rule rather than the exception that one becomes "bad" through the influence of others.

      Becoming "bad" through the influence of adverse circumstances or other people is just what it is to be a "bad person". A man is morally responsible for whatever his will consents to, whether the ideas come from outside himself or inside.

      As for mental illnesses, well... Just my opinion, but inabilities caused by physical brain/neurological damage excepted, most "mental illnesses" aren't real. Or rather, they are real, but there is no real difference between most "mental illnesses" and vice which is the result of repeated sin.

      I say "most" because I know nothing about mental illness and I am talking out of my posterior. But still. Metaphysically, I see no difference between "a flaw in the way my mind works that makes me behave violently/slothfully/lustfully" (mental illness) and "a habit of my soul that inclines me toward violent/slothful/lustful behavior" (vice).

      On that last note, I would love to be proved wrong. It'd be nice to think that most people have lessened culpability for their sins than common sense would suggest, due to the already endless and rapidly growing list of mental illnesses known to the DSM-5, the APA, and the State of California to cause cancer, depression, suicidal ideation, etc.

    3. Another path of response, from a completely different angle, is that we humans are not required to be perfect in our information in order to act uprightly, we are required to act on the information we have to act uprightly. We should take into account things that are known to modify responsibility in assigning punishment, because the due proportionality of punishment ultimately rests both on the gravity of the good which the offence damages, and on the degree to which the offender morally adheres to that evil. But our assigning weight X to Criminal A's responsibility for an act can only be based on our best judgment of A's moral responsibility, and our best is our best. We are not able to assign a punishment based on anything better than that, and we ought to assign due and proportionate punishments as best we are able.

      Effectively, refusing to punish with capital punishment because we might have gotten the criminal's degree of responsibility wrong amounts to claiming that we should not punish at all. But this is absurd.

      (It is, also, just a different form of "we might have gotten it wrong" that is already covered in respect of "but we might have convicted the wrong person". The same answer applies: we are obliged to do the best we can do, not to be gods and do perfectly. Anybody who wants us to be omniscient and do it all perfectly is oblivious of human nature.)

  5. It is my understanding that the Church is against the use of torture to extract useful and lifesaving information, even during wartime. Is this correct?

    What is the history of this teaching in the Tradition and how does it differ, historically and in moral reasoning, from the Church's position on Capital Punishment?

    It seems to me that torture, like capital punishment, is not intrinsically evil and should be permitted if there is a sufficient reason to do so. If it is not intrinsically wrong to kill a guilty person, why is it intrinsically wrong to torture a guilty person?

    Also, in what might be a related thread, when administering capital punishment is it morally permissible to use a more brutal form, like drawing and quartering, for more serious crimes (like the rape, torture, and murder of dozens of children).

    Or should capital punishment be always carried out in a relatively quick and painless manner, e.g. hanging or lethal injection, and that is why torture is wrong, because it is anything but quick and painless and thus violates human dignity in a way that a quick execution does not?

  6. Kyle, those questions might induce a tortuous debate. Just warning you.

    In fact, I do not know of any reasonable argument that purports to show that capital punishment should be carried out as quick and painless. I have heard plausible arguments that it should not go to the extreme of torture, but there is a large range between "painless" and "not yet torture" that would be available. I would consider the recent farce of an execution stopped because of "imperfect" drugs being used to be beyond ridiculous, into the realm of sheer idiocy: it doesn't take a Ph.D. in pharmacology to inject fatal poison into someone, and if the drugs used it turns out are not sufficiently potent, ramp up the dosage until he dies. Probably (for the sake of repentance), the execution should be painful and should not be instantaneous, but should leave the person mentally cogent and capable of repenting of his evil.

    and that is why torture is wrong, because it is anything but quick and painless and thus violates human dignity in a way that a quick execution does not?

    Nothing prevents corporal punishment that is NOT torture from being morally licit in principle.

  7. All societies have the obligation to deliver justice to their members, and also to non-members who are presently within the ambit or jurisdiction of the society. No society has such an obligation toward persons who are not members of the society *and* who are outside its ambit or jurisdiction.

    To *refuse* to execute the murderer -- to *refuse* to deliver justice to her (*) victim(s) -- is to give the murderer to power to declare, by the act of the murder, that justice for the victim(s) is not the responsibility of the society. That is, it is to declare that murdered persons were not *really* members of our society and were not really within the ambit or jurisdiction of our society.

    (*) in case it's not clear, I used the grammatically incorrect "she" to mock the idiots who do it to promote "gender inclusive" leftist bullshit.

  8. ... to continue --

    Thus, blanket opposition to capital punishment is profoundly immoral. A society which refuses, as a matter of "principle", ever to execute anyone whom justice demands be executed, is a society that is profoundly unjust and immoral; such a society will inevitably *create* broad swathes of injustice.

  9. I do object in principle to capital punishment. Nor in practice in some cases (eg Nuremberg). But there are too many cases where the evidence, though compelling, turns out to be wrong, eg witness identification, DNA, confession, for me to be comfortable, so, in practice, I oppose the death penalty. I do agree that capital punishment is licit.

  10. Missed a not.

    Should have read "I do not object in principle to capital punishment." And, in some cases, the evidence is incontrovertible (Moor Murderers in the UK, Cubillos in Colombia)so could safely be carried out.

    But, just sticking to the UK, there were a series of pub bombings by the IRA in the UK in the 1970s. 21 people were murdered in two bombings in Birmingham in 1975.
    Six men were eventually convicted. Turns out that the evidence was wrong, and the confessions were beaten out of them. But at the time it seemed a solid casse. They could have been executed. But, it turns out they were innocent, wrong people at the wrong time convicted when there was huge public pressure to find the perpetrators.

    Perhaps the US is better. But, human nature being what it is, I suspect that more innocent people would have been executed than you would like.

    One option is capital punishment in obvious cases, (like Moors Murderers, Cubillos) and life without parole for the rest, but don't see how this would work in practice.