28/01/2020 Capital Punishment, Dignity, and Authority: A Response to Ed Feser - Public Discourse

Culture, Natural Law

Capital Punishment, Dignity, and Authority: A

Response to Ed Feser

September 30, 2011 By Christopher O. Tollefsen

Nothing that a man does can change his nature as man, and so, considered
in himself, it will always remain wrong to kill him. This should be the nal
judgment of practical reason when brought to bear on the question of
capital punishment.

I am grateful to Ed Feser for his response to my Public Discourse essay on

capital punishment; he makes some interesting points and arguments that
are worth addressing.

Privacidade - Termos

https://www.thepublicdiscourse.com/2011/09/4045/ 1/7
28/01/2020 Capital Punishment, Dignity, and Authority: A Response to Ed Feser - Public Discourse

Feser assumes that I am not against punishment as such, and this is

correct. But in laying out this assumed ground of agreement, Feser
articulates an account of punishment with which I disagree. Perhaps not
surprisingly, we would both give the same name to our di ering accounts
of the essential purpose of punishment, namely “retribution.” Feser’s
understanding of retribution is that a criminal deserves to have some harm
in icted upon him, and this is the purpose of punishment: to in ict that
harm.

By contrast, I think that retributive punishment takes as its starting point

an awareness that a political community is constituted by an ordering of
the wills of the community’s members, an ordering that is shaped in
accordance with the authoritative requirements of the law. This ordering
requires, for the sake of the common good, various restrictions of the
freedom that citizens might otherwise have, the freedom to do as they see
t. The ordering also requires, for the same common good, those
restrictions demanded by the moral law on the freedom of persons to act
maliciously against the good of others. By such an ordering and even
disciplining of wills, citizens are provided a space in which they may safely,
and in an e ectively coordinated manner, pursue their well-being in
community with others.

A criminal acts beyond the limits on wills so established: he takes more of

the freedom that is mutually allotted to citizens than he has in fact been
allotted. This is a wrong against the community, distinct from the wrong
against any particular person that he might commit, such as the taking of
another’s life or property. It is this wrong against the order of the
community that the criminal law of the state endeavors to address through
retributive punishment, by taking away from the criminal the ability to act
as he pleases to a degree that restores, as much as possible, the imbalance
that the criminal’s self-assertion created.

This account of punishment, about which much more could be said, does
not converge with Feser’s claim that in punishment a criminal is
intentionally harmed, at least not if that harm is understood as: intentional
Privacidade - Termos

https://www.thepublicdiscourse.com/2011/09/4045/ 2/7
28/01/2020 Capital Punishment, Dignity, and Authority: A Response to Ed Feser - Public Discourse

harm to a basic good or goods of the person. Rather, instrumental goods,

especially liberty and money, are rightly targeted as part of the project of
taking away freedom in proportion to the freedom that was unjustly
exercised. The ensuing damage to an instrumental good might also have,
and usually does have, as a side e ect a negative impact on basic goods
such as knowledge, friendship, or health. But by my account, it would be
permissible to ne, to imprison, and perhaps to shame, but it would not be
permissible, for example, to maim, to kill, or otherwise deliberately to
attack a basic good in the person of the criminal.

Feser makes a principled argument for the permissibility of capital

punishment, which he summarizes as follows: “But since a human being
can deserve punishment, and a punishment ought to be proportional to
the o ense, it follows that he can deserve death if his o ense is grave
enough.”

Unlike Feser, I do not think this follows at all, for the underlying
presupposition behind all just punishment is that the form of punishment
in question is not an intrinsically wrong act. That is, not just the general
practice of punishment, but the particular form of punishment, must be
permissible in any given case.

Feser seems to lose sight of this point when he discusses punishments

such as rape that are out of bounds, writing that “Sometimes in icting such
punishments would be impossible (a mass murderer cannot be executed
multiple times), or would do more harm than good.” But neither of these is
the reason rape is excluded as a legitimate form of punishment: rape is
always and everywhere wrong, and is not available as an option for
punishment, regardless of its feasibility or the proportion of goods to bads
it might bring about.

As I argued in my earlier essay, I believe capital punishment falls into this

category. As a basic, or intrinsic, human good, human life, just in itself,
gives us only reasons for its pursuit, promotion, and protection, and no
reason for its damage or destruction. By contrast, a merely instrumental
good gives us no reasons for action in itself; yet reasons for action can be Privacidade - Termos

https://www.thepublicdiscourse.com/2011/09/4045/ 3/7
28/01/2020 Capital Punishment, Dignity, and Authority: A Response to Ed Feser - Public Discourse

generated by one’s ends, either for the promotion or the intentional

destruction of the instrumental good in question. So there is nothing
intrinsically wrong with destroying money, or tools, or a house, if we have
good reason to do so.

But what could justify the intentional destruction of a basic good, an

intrinsic aspect of human well-being, such as human life? The idea that
human beings have intrinsic dignity suggests that the answer is “nothing.”
Perhaps human life could be intentionally destroyed if the evil of its
destruction were outweighed by the good achieved. Yet such outweighing
also seems ruled out for those who think that human life has a sacred or
inviolable quality to it. And so the norm against intentional killing seems
well-grounded.

I noted in my earlier piece that even if someone did deserve death, that did
not mean that anyone had the authority intentionally to take life. Feser
notes that I did not defend this claim; however, his own defense relies
upon the question-begging argument just addressed: “But if the state has
the authority to in ict punishment per se, and a punishment ought to be
proportionate to the o ense, then what reason can there be for denying
that the state can also, in principle, legitimately in ict the death penalty for
extremely grave o enses?” Only that the death penalty is, because
intrinsically impermissible, o the table as a permissible form of
punishment.

Still, Feser is right that the issue of authority is essential. It requires more
discussion than I can undertake here, so I will con ne myself to a few
points.

As noted above, a reasonable account of political authority is that it is a

practical necessity for securing the common good: absent political
authority, and especially the authority of law, a community’s members will
be unable to coordinate their actions, defend themselves adequately
against malefactors, or provide for the needs of those weak members who
are not otherwise being adequately cared for.
Privacidade - Termos

https://www.thepublicdiscourse.com/2011/09/4045/ 4/7
28/01/2020 Capital Punishment, Dignity, and Authority: A Response to Ed Feser - Public Discourse

I do not see how the death of a human being, even of a criminal, can, just
as such, be a part of any common good. While it can bring incidental
bene ts that might contribute to the common good, death itself cannot be
part of that good, and so it does not appear to be within the authority of
one publicly charged with the protection and promotion of a common
good to seek death as such.

St. Thomas did not see things in this light. For in discussing capital
punishment he wrote:

Now every part is directed to the whole, as imperfect to perfect,

wherefore every part is naturally for the sake of the whole. For this
reason we observe that if the health of the whole body demands
the excision of a member, through its being decayed or infectious
to the other members, it will be both praiseworthy and
advantageous to have it cut away. Now every individual person is
compared to the whole community, as part to whole. Therefore if a
man be dangerous and infectious to the community, on account of
some sin, it is praiseworthy and advantageous that he be killed in
order to safeguard the common good, since “a little leaven
corrupteth the whole lump” (1 Corinthians 5:6).

Central to Thomas’s argument here is the comparison between the citizen

and the whole community, and an organ and the organism of which it is a
part. Aquinas is certainly correct that the welfare of the organism takes
precedence over that of its organs, and that accordingly diseased parts of
the organism may be surgically removed. But as many commentators have
noted, Aquinas goes wrong in his analogy, for citizens do not stand in
relation to the state as organs do to organisms.

This can be seen in two ways. First, we should note that an organism is in
an important metaphysical sense prior to its parts; the organism is
responsible for the execution of its own self-directed growth and
development, from which its organic parts emerge. Moreover, it is the
organism’s existence that makes the parts to be what they are; hence
Aristotle’s famous dictum that a severed hand is a hand in name only. But Privacidade - Termos

https://www.thepublicdiscourse.com/2011/09/4045/ 5/7
28/01/2020 Capital Punishment, Dignity, and Authority: A Response to Ed Feser - Public Discourse

neither of these points is true of the relationship between a person and a

state. Rather, persons are metaphysically prior to states: they have a real,
non-derived existence, whereas there would be no states but for the
existence of persons. Put another way, persons do, but states do not, have
a life of their own.

And from the practical standpoint, there would be no need of the state save
for the needs of persons. The state thus exists for the sake of persons,
whereas organs exist for the sake of the organism of which they are parts.
It seems to be a practical consequence of this that the state cannot
sacri ce its members for the sake of the whole; thus, the analogy fails.

Aquinas limits the “disease” for which a part of the state can be killed to the
commission of crimes. His reason for this is spelled out in the following
important passage:

An individual man may be considered in two ways: rst, in himself;

secondly, in relation to something else. If we consider a man in
himself, it is unlawful to kill any man, since in every man though he
be sinful, we ought to love the nature which God has made, and
which is destroyed by slaying him. Nevertheless, as stated above
(Article 2) the slaying of a sinner becomes lawful in relation to the
common good, which is corrupted by sin. On the other hand the life
of righteous men preserves and forwards the common good, since
they are the chief part of the community. Therefore it is in no way
lawful to slay the innocent.

Aquinas makes a crucial point in this passage, that he seems himself to

overlook; drawing attention to it will serve to bring my discussion to a
close. Note Aquinas’s rst claim: “If we consider a man in himself, it is
unlawful to kill any man, since in every man though he be sinful, we ought
to love the nature which God has made, and which is destroyed by slaying
him.” This claim presents as clear a statement of the Sanctity of Life and
the Essential Dignity views as could be hoped for: it is unlawful to kill any
man, considered “in himself.”
Privacidade - Termos

https://www.thepublicdiscourse.com/2011/09/4045/ 6/7
28/01/2020 Capital Punishment, Dignity, and Authority: A Response to Ed Feser - Public Discourse

But what it is unlawful to do to a man in himself surely trumps any

“accidental” consideration; perhaps it might seem lawful to kill a man
secundum quid—in relation to something, whether a desired end, or status,
or achievement, or the failings of the man in regard to these. Yet none of
these can change the man’s nature, or the non-instrumental value of his
life: considered in himself, it will, therefore, always remain wrong to kill
him. This should be the nal judgment of practical reason when brought to
bear on the question of capital punishment.

About the Author

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

Privacidade - Termos

https://www.thepublicdiscourse.com/2011/09/4045/ 7/7