27/01/2020 A Philosophical Case Against Capital Punishment - Public Discourse

Natural Law, Philosophy

A Philosophical Case Against Capital

Punishment

November 13, 2017 By Christopher O. Tollefsen

Arguments against the death penalty can be made not only on the basis of
theology but also on the basis of natural law philosophy. The rst in a two-
part series.

Pope Francis recently made headlines (again!) with comments about the
death penalty: “One has to strongly a rm that condemnation to the death
penalty is an inhuman measure that humiliates personal dignity, in
whatever form it is carried out.” Francis’s remarks have led some
commenters to suggest that we are seeing a further development of
doctrine in the Catholic Church as regards capital punishment, a

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development that would conclude with a declaration that the death penalty
is intrinsically impermissible.

Few have done more in recent years to attempt to halt this “development”
than Edward Feser, who now, with Joseph Bessette, has published a long
book on the subject titled By Man Shall His Blood Be Shed: A Catholic Defense
of Capital Punishment. In their book, Feser and Bessette argue that such a
development is incompatible with revealed Catholic teaching, which
unequivocally permits the use of capital punishment. They also argue that
capital punishment is justi ed on philosophical grounds, and that there are
good reasons of political prudence to make more use of capital
punishment than many countries, including the United States, currently do.

Christian Brugger, author of an important book on Catholic moral teaching

and the death penalty, recently responded here and here at Public
Discourse to several of the theological claims made by Feser and Bessette.
In this essay and one tomorrow, I will address some of Feser and Bessette’s
philosophical arguments, including objections that they make to some of
my own previous writing on the subject.

The Argument Against Capital Punishment

It is helpful to begin with a discussion of why capital punishment should be

considered intrinsically impermissible. 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; (C) capital punishment does destroy an instance of the
basic human good of human life as a means; therefore (D) no one should
ever perform capital punishment upon another human being.

Feser and Bessette appear at times to call (A) into question. But consider:
life gives us terminal reasons for our actions: we can save a life simply
because life is at stake. We can choose to become doctors or scientists
simply in order to promote and protect human life. We can exercise and
eat a healthy diet simply to extend our life. And so on. In all such cases, life
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gives us a reason for action that does not require a further reason to be
intelligible.

The argument for (A) can be extended. Patrick Lee and Robert P. George
have shown, in their book Body-Self Dualism in Contemporary Ethics and
Politics, that you and I are essentially living organisms. And I think it is a
common belief of mine, and of Feser and Bessette, that you and I are
intrinsically valuable. But I believe as well that it borders on the incoherent
to hold that you and I are intrinsically valuable; and that we are essentially
living organisms; but that our organic lives are not intrinsically valuable.

So (A) seems secure. What about (B)? A key premise to support claim (B) is
this: With other defenders of the so-called “New” Natural Law (NNL)
approach, I think that instances of basic goods are incommensurable with
one another. This means merely that where there are real options for
choice, grounded in basic goods, no one option will o er all the good that
the others do, plus some more. (If it did, the strictly-less-good alternatives
wouldn’t remain a live option for choice after all, any more than taking a
penny is a live alternative option to taking a dollar when all you want is
money.) There is thus no sense to the phrase “the greatest good,” much
less “the greatest good for the greatest number,” where instances of basic
goods are concerned.

But this generates the following argument for (B). Suppose that one is
considering whether or not to destroy an instance of a basic good. As Feser
and Bessette quote me as saying, any basic good, including life, “gives us
no reason ever to destroy [it] but only reason to protect [and, I would say
promote] it.” Feser and Bessette claim there is no inference from this claim
to the claim that one should never destroy an instance of a basic good,
since “there may be reasons derived from something other than [the good
itself] to destroy [it] in some cases rather than protect it.”

But what could that other thing be? What kind of consideration could
su ce to show that something that was (in itself) only valuable, and (in
itself) gave us reason only to promote and protect it, could be destroyed
for the sake of something else? Only, I suspect, that the something else Privacidade - Termos

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o ered more, or greater, good than the good option in question. But this is
what is ruled out by the incommensurability thesis. And so, intending
death as a means can never be justi ed (intending death as an end seems
non-controversially unjusti ed).

Although these claims are taken by many to be characteristic of the New

Natural Law approach, similar considerations appear to guide St. John Paul
II’s discussion of moral absolutes and proportionalism in his Encyclical
Veritatis Splendor. There, the pope frames his discussion of moral absolutes
in terms of the goods of the person that are protected by such absolutes.
Acts that are directed in their object, that is as a means, against such goods
are never to be done. Nor is any consideration of the ends or good
consequences of such acts allowed by the pope to outweigh the good
against which the agent acts. So St. John Paul II also appears to accept (B).

That leaves (C); is capital punishment an instance of killing as a means?

One might hold instead that in a single act, justice is done, the malefactor’s
will is maximally suppressed, and the malefactor is killed. Only the rst two
states of a airs need be intended, the second as a constitutive aspect of
the rst; whereas the third state of a airs, the death of the malefactor,
need not be intended at all. Something like this seems to be Aquinas’s
conception of how God does lethal justice upon man, since Aquinas
believed that God intends no evil, including the evil of a human being’s
death (see St. Thomas Aquinas, On Evil, q. I, a. 3, r. 10).

But Aquinas did not think this was the case about capital punishment,
which he straightforwardly described as involving an intention to kill: the
authorities intend the death of the malefactor as a means to justice. And
Aquinas seems correct. The New Natural Lawyers have a very ne-grained
understanding of human action, but we agree with Aquinas that what
makes punishment capital is the intention to kill.

An Incoherence in the New Natural Law Theory?

Feser and Bessette believe, however, that this view is “incoherent.” For they
believe that if their principles of “desert” and “proportionality” are Privacidade - Termos

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accepted, then the legitimacy of capital punishment must logically follow. If

the illegitimacy of capital punishment is asserted, then in turn, one must
deny either desert or proportionality.

What are these two foundational principles, and do they imply with logical
necessity the permissibility of capital punishment? Feser and Bessette write
that “Punishment is a matter of restoring the natural connection between
pain and acting contrary to nature’s ends.” Punishment so described “is
inherently good or tting . . . good in itself and not just for the sake of
practical bene ts.” And, they say, “no less good . . . is our inclination to
in ict punishment.” Thus, the principle of desert asserts the goodness and
ttingness of in icting punishment on those who deserve it.

The principle of proportionality, by contrast, identi es the proper limits to

that punishment: it must correspond to fault, with lesser crimes receiving
lesser punishment, and greater crimes receiving greater punishment.

Now Feser and Bessette hold that these two claims cannot coherently be
asserted together with the proposition that capital punishment is morally
unjusti ed. But this is clearly false. For it might be the case that death is
never proportionate to a crime, even the crime of murder; or that
intentional killing is wrong and therefore never a permissible way of giving
proportionate punishment; or that no one has the moral authority to in ict
capital punishment. I here o er no opinion on the rst option; but I have
given an argument for the second option above, and if that argument is
sound, then the third claim is true as well: if some act is intrinsically
impermissible then no one has political authority to commit it. I will return
to the question of political authority in tomorrow’s essay. Here, I respond
to an argument made by Feser and Bessette about impermissible forms of
punishment.

In an earlier essay at Public Discourse, I drew attention to the claim that

rape could never be an appropriate form of punishment, even if
“proportionate” to someone’s crimes, for rape is intrinsically evil. Feser and
Bessette respond to this claim:
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This argument breaks down, however, because there is a crucial

disanalogy between rape and the taking of someone’s life. To take a life
is, essentially, to in ict a single harm – namely, the taking of the life. . .
 Rape, however, essentially involves several harms: not only the
humiliation and bodily harm in icted on the victim but also the sexual
perversion and sadism by which the rapist harms his own character.
Now, to indulge in such sexual perversion and sadism is intrinsically
immoral; and therefore rape is intrinsically immoral, even if carried out
as a punishment.

This argument is question-begging, however. For, rst of all, that rape

involves “sexual perversion” is not a free-standing fact about rape, but is
explained by the fact of the rapist’s willing in iction of humiliation and
bodily (including, of course, sexual), harm. Rape is bad for the rapist’s
character, in other words, because rape is bad and wrong.

But the same can be said of capital punishment. If capital punishment is

morally wrong, then it too is bad for the character of those who in ict it. Of
course, it is possible that some or many of those who carry out capital
sentences do so in inculpable ignorance of its being wrong, and thus do
not su er as grievous corruption of their character as do those who
knowingly do wrong. But the important point is this: Feser and Bessette
here assume that because capital punishment is not wrong, therefore it is
not accompanied by harm to the character of those who carry it out. The
argument therefore assumes precisely what it is meant to show.

Of course, rape is often motivated by independent and wicked desires such

as “sadism.” But capital punishment too can be motivated by independent
and wicked desires, including sadism. Such facts are irrelevant, however, to
the question of whether rape itself, or capital punishment itself, is
intrinsically wrong. And if either is, then on that ground alone it can be ruled
out as a permissible form of punishment.

Similar claims could be made about torture; even for those who have
tortured, it is not an appropriate form of punishment because it is always
impermissible to carry it out. And it would be an error to attribute this Privacidade - Termos

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impermissibility to the free-standing wicked motives of the torturer. While

some torturers do their work out of a sadistic desire to harm, some do so
because they are convinced of the rightness of torture under certain
circumstances. Yet they still do what they ought not to do. As with rape,
and intentional killing, sadistic desires magnify the gravity of the
wrongdoing, but do not create it.

Thus far, then, it seems that the argument against capital punishment
remains standing: it is not shown to be incoherent in the face of the desert
and proportionality principles. In tomorrow’s essay, I look at the question
of political authority and capital punishment. Is there, as Feser and
Bessette allege, “no reason whatsoever to think that the power to in ict the
penalty of death is any less delegated to the state by God than is the power
to in ict lesser punishments”? I will argue that the opposite is the case.

About the Author

CHRISTOPHER TOLLEFSEN
Christopher O. Tollefsen is College of Arts and Sciences
Distinguished Professor of Philosophy at the University of
South Carolina.

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