Monday, November 6, 2017

Pakaluk on capital punishment

Philosopher Michael Pakaluk kindly provided an endorsement for By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.  In an essay at The Catholic Thing, Mike puts forward an important defense of his own of the death penalty.  Go give it a read.  Along the way, he comments once again on By Man, calling it “the most comprehensive case ever assembled” for capital punishment.

Other recent commentary on By Man can be found here.


  1. Dr. Feser,

    I have not read By Man yet (in queue of a long reading list), but have been convinced by your blog posts that capital punishment is a just way of punishing certain crimes.

    I wonder if you comment on the adulterous woman in the Gospel of John (8:1-11) and its implications for the morality of capital punishment. If capital punishment were intrinsically evil for adultery, wouldn't Christ be obligated to say so given the direct question? The intent of the Pharisees was to trap him; nevertheless, he does an honest and unpopular answer regarding the sanctity of marriage in Matthew's Gospel. This demonstrates that Christ does not merely give witty answers to get out of trouble, but genuinely cares about their truth content. Therefore, is his lack of condemnation of suggesting capital punishment an implicit approval of its use?

    If that is the case, could any society ever justly apply capital punishment for acts less egregious than murder, even if it may be practically imprudent? (Of course we should practice mercy as Christ teaches, but would this be permissible in principle?)


    1. Technically it's reserved for the "worst crimes" so it's disputably that they be "less egregious" than murder.

    2. I think the question would be whether a given crime is "less egregious than murder". That will get debate. And keep in mind that other times and places will draw the line differently. To take one example, still usually regarded as bad as murder, there is treason.

    3. The key point is not whether it is a moral punishment or not. Jesus says not that it is wrong, but charges them as to whether they are without sin.

    4. I would love to see a complete analysis of the event, by Ed or anyone who can address it.

      For my 2 cents: Most of the common talk about what Jesus was doing here is probably off, either by 90 degrees at least, possibly by as much as about 150 degrees.

      First of all, remember the law that they were supposedly calling into play: if a man and a woman were caught in adultery, both criminals were to be stoned to death. Where was the man? Jesus was not about to let them get off the hook of killing the woman "caught in the act" but not the man, for crying out loud. Probably, the woman was a "loose woman", and many of the men were implicated in her various adulteries, and were therefore ineligible witnesses.

      Second, in order to proceed with a trial, you need 2 witnesses. Where were they? Not in evidence. In fact, the two witnesses were required not just to testify to their witnessing the crime, but also to throw the first stones.

      Jesus says "Let he who is without sin throw the first stone". Did Jesus mean "without sin" in a complete sense? Or did he mean "without sin in THIS matter"? Because if he meant the latter, he was ready to accuse every one of them of sin, for they were ready to kill the woman but not the man.

      Jesus himself was without sin, but he could throw the first stone, because he was not a witness. Similarly, when Jesus asks the woman "Woman, where are your accusers? Has no one condemned you?" and she answers "No one, Lord", he answers "Neither do I condemn you". Okay, we have already touched on this: he was not a witness, so he had no business condemning her without there being 2 witnesses eligible to testify to her (and the man) being caught in adultery. That was the Law.

      Jesus did not subject her to ANY punishment at all - because without witnesses there was no conviction. Should we understand Jesus to mean "do not punish adultery at all"? What about extending that to other crimes: was Jesus saying "do not punish crime at all"? To ask the question is to answer it: that's ridiculous. Jesus refusing to condemn her himself does not stand for the proposition "A person rightly and justly convicted of serious crime is not to be punished." That's the result you get if you assume that Jesus's own action amounts to a formal rule. It's not just that she is not punished with death, she is not punished at all.

      But Jesus never says that this constitutes a rule. He never even says anything that implies it in an indirect manner - other than his generic "follow my example". But his example is ambiguous, if you take it any other way than "He followed the Mosaic Law."

    5. Sorry, typo. Should be:

      Jesus himself was without sin, but he could not throw the first stone,

    6. Dr. Feser,

      Do you think it would be good for America overall if we changed our death-penalty jurisprudence to more accurately reflect the one taught by Moses?

      You know...stuff executing those who commit homosexuality, incest, adultery, bestiality?

      I'm an atheist, but I think for unknown reasons you and I agree on nearly everything concerning the death penalty.

      Haven't got your book yet, will order it though. Peace.

    7. @barry

      I would recommend that you look more into Jewish tradition and the application of Old Testament law. There are several parts of the Old Testament that say that a ransom instead of the death penalty is OK for any crime *except* murder. That, combined with stringent requirements passed down by oral tradition essentially made the death penalty inapplicable in cases not having to do with murder. Basically, the death penalty was on the books, but it was to show the severity of the crime, not to say that those peeps should actually be executed

    8. The context in which the death penalties for adultery and homosexuality are given, neither express nor imply that ransom was possible.

      I am not a bible-believing Christian. I find the documentary hypothesis convincing, and as such, do not believe that all parts of the currently canonical Pentateuch go back to Moses. I believe the more civilized parts come from scribes around the period of the Exile.

      And it is god's fault anyway for giving modern people an English version of Mosaic laws that reasonably looks like the death-penalty was mandatory for numerous crimes. The fact that heretics don't often "misinterpret" the faith-statements published by other churches, indicates God could have worded the bible in a far less ambiguous way and would likely have preempted the absurdly large amount of misunderstanding that currently splinters Christianity.

  2. Can anyone tell me if Ed gives a natural law argument for retributive justice in this book, or perhaps somewhere else? Or if anyone else has such an argument?

    1. Anon, Ed does deal with the question somewhat in the book, though it isn't, perhaps, the central focus of the argument. I give an argument for the position in my own post, here:

      Briefly, I argue that punishing (returning evil to) one who does (moral) evil is just as fundamental a necessity for a created order with morality built in as returning good (rewarding) one who does good. You cannot have a universe in which morality is a real part, and have rewarding good but not punishing evil. St. Thomas puts it: "the order of justice belongs to the order of the universe". Reward and punishment are co-equal moral necessities for such a system.

  3. Christopher Tollefsen has published a response to Ed and Joseph Bassette's critique of his CP position on The Public Discourse. The article can be found here:

    1. Tollefsen, Feser and Bessette appear to agree that rape is intrinsically evil, however, I don't understand how they can believe this given their bible contains several specifications that God caused pagan military men to rape Hebrew women:

      "But it shall come about, if you do not obey the LORD your God, to observe to do all His commandments and His statutes with which I charge you today, that all these curses will come upon you and overtake you: (Deut. 28:15 NAU)
      "You shall betroth a wife, but another man will violate her; (Deut. 28:30 NAU)

      13 Therefore I will make the heavens tremble, And the earth will be shaken from its place At the fury of the LORD of hosts In the day of His burning anger.
      ...16 Their little ones also will be dashed to pieces Before their eyes; Their houses will be plundered And their wives ravished.
      17 Behold, I am going to stir up the Medes against them, Who will not value silver or take pleasure in gold.
      (Isa. 13:13-17 NAU)

      Even assuming God's permissive will gets him off the moral hook, that wouldn't apply here. These prophets do not portray god as stepping out of the way and allowing pagan people to do what they chose on their own already, God is portrayed as "stirring" the pagans to do these evils (Isaiah 13:17). Shockingly, Deut. 28:63 summarizes the prior list of atrocities which had included rape (v. 30) and says God would "delight" to cause those atrocities no less than he "delights" to prosper those who obey him (v. 63).

      If you don't have problems saying God's stirring of Cyrus' heart to free the Jews justifies concluding that God was responsible for this judicial act (Ezra 1:1) then you'll have to give god equally full credit for the pagans raping Hebrew women, since Isaiah specifies that God "stirred" the Medes to do this and more.

    2. Barry, there is a standard response to this issue in the Fathers and Doctors in the Church: God, when he stirs up some heathen so as to bring punishment to the Israelites, He does so formally intending the DUE and FITTING punishment of those who offend God. He foreknows and permits the excesses and atrocities that will also accompany the punishment, and He does not formally intend the sins of hatred, anger, and so on that the heathens will commit in causing the punishment on the Israelites. The passages above can be read as God prophecying that the heathens will, in addition to bringing due punishment, also bring additional suffering that will be a result of their (the heathens) own sins, not due to God's direct intention. It is knowable in advance that the heathens, when they bring war, will also bring rape, even though such rape is sinful.

    3. But some of those "punishments" include rape of women (Deut. 28:15, 30, 63, Isaiah 13:16). Are you telling me that God seriously thinks some women "deserve" to be raped?

      I think your concern to vindicate God's goodness at all costs has blinded you to the biblical authors' actual intentions.

  4. Dr. Feser's book is so compelling that all states will soon bring back public hangings. Make America great again!

  5. Tollefsen's thesis rests on this theoretical claim from the New Natural Law:

    Here is the basic argument: (A) human life is a basic, and not merely an instrumental, good for human persons; (B) no instance of a basic good should ever be destroyed as an end or a means;

    This New Natural Law theory, never heard of before 1960, is not just novel, it is also wrong. Grisez and Finnis and George and (here) Tollefsen make really fundamental mistakes in the constructed category of "basic goods", and they make lots of other mistakes based on that. I delve into some of the problem here in my own response to Tollefsen: