27/01/2020 The Philosophical Case against the Philosophical Case against Capital Punishment - Public Discourse

Philosophy

The Philosophical Case against the Philosophical

Case against Capital Punishment

January 8, 2018 By Michael Pakaluk

It’s three times more likely that you’ll die of lightning than that Aquinas will
turn out to be wrong about something. The same cannot be said of New
Natural Law philosophy.

According to a recent comment by Robert Fastiggi, if we bracket the

question of capital punishment (and set aside mistaken science taken from
Aristotle), St. Thomas Aquinas was wrong about two things: he held that
the Virgin Mary was cleansed of original sin in the womb, not from the
moment of her conception; and he said that, although a priest received
new spiritual powers, a priest did not receive a new character on his soul
when he was promoted to a bishop.

It seems a clear case of the exception proving the rule. If we suppose that
each corpus and each reply to an objection expresses an opinion, then
Aquinas expresses about 20,000 opinions in the Summa Theologiae alone.

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Mathematically, that means that it’s three times more likely that you’ll die
of lightning than that Aquinas will turn out to be wrong about something.

On the two matters where he was wrong, he was pretty close to the truth.
Then too, they involved fairly recondite spiritual questions, not matters
central to human life such as criminality, punishment, and the death
penalty. Of course, when he opined on the death penalty, Aquinas was
following every saint before him, every philosopher, every jurist, and every
wise and prudent statesman. On this matter, he speaks with as great an
amassed authority as is possible in human a airs.

In thinking, we all begin by weighing authorities. So, if someone presents

me with an argument that purports to show that Aquinas was gravely
mistaken about the death penalty, I antecedently expect that it is hardly
likely that the argument can be correct. If I then nd that the argument has
wild implications and badly supported premises, I regard my initial
expectation as con rmed, even if the argument can be patched by its
defenders with epicycles and eccentrics, as any bad argument can.

New Natural Law and Capital Punishment

This is how I approach Chris Tollefsen’s “Philosophical Case against Capital

Punishment.” Tollefsen puts his argument this way:

(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.

The argument rules out too much. If “an instance of the basic good of
human life should never be destroyed,” then it is likewise never right to kill
in self-defense, or to kill in war. The argument immediately and plainly
implies an extreme paci sm.

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Tollefsen and the New Natural Lawyers will try to patch the argument by
invoking the Doctrine of Double E ect. They say that, in those other cases,
the destruction of a human life is incidental to intention. Although this
reply has some plausibility for self-defense, it doesn’t for warfare: generals
certainly make their aim the destruction of as many enemy soldiers as
possible, to end the war; and who, after all, acts with greater deliberation
than a sniper? Or, if these directly destructive actions somehow prove to be
permissible—because, against appearances, they are incidental to
intention—then how do we know that capital punishment isn’t also
permissible, on the grounds that it is merely incidental to upholding
justice?

Basic Goods

Even more serious problems arise when we look carefully at the notion of
“basic goods.” A basic good, Tollefsen says, is any good appealed to when
we give a “terminal” reason for an action, that is, a reason that requires no
further reason. Life is a basic good because, as Tollefsen puts it,

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 gives us a reason for action that does not require a further reason to
be intelligible.

And yet aren’t animal life and vegetable life also basic goods by this
criterion? We can choose to become veterinarians simply in order to
promote and protect animal life. We can choose to become gardeners
simply to promote and protect vegetable life. Animal and vegetable life
clearly “give a reason for action that does not require a further reason to
be intelligible.”

But if these are basic goods, and “no instance of a basic good should ever
be destroyed as an end or a means,” then no cow can be slaughtered for
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garden, no bacterium eliminated by an antibiotic. Or will Double E ect be

hauled out to show that all of these destructions are incidental?

Tollefsen and the New Natural Lawyers say that there are eight or so basic
goods, including, for example, “play” and “skillful performance.” It’s easy to
see why they hold this. A question like “why did you play in that pick-up
basketball game” can be answered, “terminally,” with a reason along the
lines, “because it was a good play of the game.” One doesn’t need to give
any more of a reason than that.

But the principle that “no instance of a basic good should ever be
destroyed as an end or a means” holds for any basic good, not simply the
good of life. Thus, corresponding to each of the eight or so basic goods,
there must be a moral absolute against its destruction, analogous to “thou
shalt not kill.” What could these possibly be?  Must we a rm such precepts
as that “no one should ever break up a game” or “no one should ever
interfere with a skillful performance”? Apparently we must, on Tollefsen’s
argument. The police o cer can no more stop the loud trumpeter from
playing outside my window at night, it seems, than society can execute a
murderer.

What has gone wrong is that the New Natural Law was laudably devised to
explain why contraception and abortion should never be done whatever
the consequences. It seems to show that the proscriptions are moral
absolutes. If we think only of human life as a basic good, then the theory
seems to give the right results. But since the theory, in its developed and
full form, asserts multiple basic goods, it simply generates too many moral
absolutes.

Another problem with Tollefsen’s argument is that it makes all destructions

of a basic good equivalent in heinousness. In particular, any killing is wrong
precisely as “the destruction of an instance of a basic good” and for no
other reason. That is the kind of wrong that it is. Thus, capital punishment
is as heinous as brazen murder of an innocent, and for the Church to have
approved of the former is the same as if it had encouraged the murder of
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Please remember that we have to judge an argument by what it does imply,

not by what we might want it to imply. But these are the absurd
consequences that ow immediately from Tollefsen’s argument, in the
language in which he presents it.

The Incommensurability of Goods

Tollefsen’s argument for his premise (B) fares no better upon examination.
The various basic goods, he says, are “incommensurable,” in the sense that
none of them can provide, in any instance, all of the goodness and more
that is distinctively found in an instance of some other of the basic goods.
Even take all the basic goods except one: no matter how much you
increase these, you never get a compound good that provides all the
goodness and more found in any instance of that basic good that you left
out.

Therefore, he says, we can never have a reason for destroying a basic

good. To have such a reason, he says, it would have to be the case that, by
destroying that basic good, we later got as much of it or more, by getting
some other basic good, or some aggregate of other basic goods. And yet
that is never the case, because the basic goods are incommensurable.

But this argument is obviously awed, for two reasons. First, people often
act to “destroy an instance of a basic good,” in order to get as much and
more of the same basic good, not some other basic good: such as the
mother who aborts her baby ostensibly to promote the lives of her several
living children, or the escaped convict who kills an accoster to extend his
own life further. The relevant goods in that case would presumably be
commensurable. Tollefsen’s argument about the incommensurability of
di erent basic goods counts not one whit against this kind of reasoning.

Second, there is no reason why incommensurable goods may not be

ranked, just as ordinal numbers are di erent from cardinals. I don’t
suppose that the goodness of attending Mass, for example, can be
construed as any multiple of the goodness of playing golf, yet it is easy to
see that a round of golf, when it interferes, should without hesitation be
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sacri ced in favor of Sunday Mass. Or brute animal life is ordered to

human life (as someone may believe), so that humans can “destroy
instances of animal life” for their food.

By the way, once we a rm the incommensurability of the basic goods,

then additional absurd consequences follow from Tollefsen’s argument.
For example, since no basic good is better than any other, as they are all
incommensurable, then the destruction of no basic good is worse than that
of any other. Thus, an abortion is not worse than breaking up a football
game.

So Tollefsen fails to give any support for (B), nor should we be surprised if a
premise that generates such unwelcome conclusions cannot actually be
supported. As we saw, his argument leads to multiple absurd conclusions.
So our antecedent expectation has been con rmed.

Why New Natural Law Goes So Disastrously Awry

It would be possible to probe more deeply and explain why the arguments
of the New Natural Lawyers must go so disastrously awry. In the old
natural law, being and goodness are convertible. If one were to speak of
“basic goods” at all, one would say that beings who were basic for action
would also be basic goods, such as God, the most “basic” source and end
for us; the human soul, which is the “basic” principle of life; and the virtues,
which are the “basic” way that we become good and like God. But it is not
possible to consider goods in this way, without placing them in a
reasonable order, as for example, to hold that the good of the body is
ordered to the good of the soul, or that the common good is greater than
the good of an individual.

The New Natural Lawyers reject this way of looking at things, because, they
say, conclusions about goodness cannot be drawn from claims about
existence. So they turn instead to human practical reason, and assert that
to call something a good, is just to say that it serves as a reason why we
act.
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Not that they don’t inevitably rely on the same approach as the old natural
law. Look again at Tollefsen’s sentences: “We can choose to become
doctors or scientists simply in order to promote and protect human life. . . .
life gives us a reason for action that does not require a further reason to be
intelligible.”

When he says, “We can choose…” he does not mean that some people, as a
matter of fact, do choose in this way, as that would be a mere fact of
psychology which goes nowhere. In particular, that observation would not
justify “life gives us a reason for action that does not require a further
reason to be intelligible.” Well, as a matter of fact, there are even some
people, bad men, who choose to kill simply because it pleases them, and
yet it doesn’t follow that “death gives us a reason for action that does not
require a further reason.”

No, Tollefsen is implicitly relying on the old, teleological idea from Aristotle
that a good person, who has the virtues and therefore is the best
realization of human nature, serves as a standard for judgment and action.
The right approach to natural law is to embark on that philosophical path
deliberately and explicitly.

Certainly the New Natural Law, with its doctrine of basic goods, gives us no
reason for believing that Aquinas was wrong about as many as three
things. But what about what Aquinas himself says in defending the death
penalty? According to Tollefsen, two of St. Thomas’s crucial premises are
false:

[i] his claim that in sinning a sinner reduces himself to the status of a
beast and loses his dignity is false, for the sinner’s dignity is consequent
upon his nature, which does not change when he sins. And [ii] his claim
that citizens are related to the polity like parts of an organism to the
whole, and thus may be excised for the good of the whole, is also false:
the state exists for persons, and not persons for the state.

Only one problem: Aquinas actually says neither of those things that
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As regards [i], it seems that Tollefsen has gone astray by lack of attention
to the Latin. What Aquinas says is:

homo peccando ab ordine rationis recedit, et ideo decidit a dignitate

humana, prout scilicet homo est naturaliter liber et propter seipsum
existens, et incidit quodammodo in servitutem bestiarum, ut scilicet de ipso
ordinetur secundum quod est utile aliis

What this means is:

Man in sinning draws away from the order of reason, and therefore he
abandons human greatness—insofar as man is naturally free and a
being who exists for himself—and he falls in with the subjected
condition of irrational animals, in the respect, at least, that by the very
fact of his sinning he can be directed according as that proves useful to
others.

This is an extremely interesting thought. Note the ingenious and deep

progression from “draws away from” (recedit), to “abandons” (decedit), to
“falls in with” (incidit). Note that the natural freedom of man is asserted
rmly by Aquinas in a parenthetical construction, not denied. Note that a
sinner is said to be similar to brute animals only in a certain respect
(quodammodo . . . ut . . .), and note that it is in virtue of his sinning (de
[peccando] ipso) that he is said to have this aspect of similarity.

The Benzinger Brothers translation is ordinarily very good, but in this

instance it is inaccurate and super cial, and Tollefsen goes wrong by
relying on it. The standard translation gets it wrong by ignoring the limited
comparison between a sinner and beasts, and by making it seem as if
Aquinas holds that such a man permanently loses his natural dignity:

By sinning man departs from the order of reason, and consequently

falls away from the dignity of his manhood, in so far as he is naturally
free, and exists for himself, and he falls into the slavish state of the
beasts, by being disposed of according as he is useful to others.

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But is the deep thought that Aquinas actually expresses also true? Yes, it is.
We know it is true subjectively, because our experience from the shame of
sin, if we are honest, is to throw ourselves upon the mercy of others and
exclaim, “Do with me what you will!”—that is, for your good, or for the good
of others, regardless of my own good.

We also know it is true from our very practices of punishment—if we are

honest. Let’s think clearly about what even life imprisonment is. It is the
taking away from the punished person of every human good except his life.
He cannot be with his family or friends. He cannot belong to any
association. His good name is taken away. He can accomplish nothing; he
can do no good deeds for others; he can grow in nothing; he has no career;
he has no reputation. He lives, and that is all.

Now, on what basis do we treat him in this way? By what right do we strip
him of every human good—every good, because it is not clear that life
remains a good for him if every good that life is for is taken away. Not
because we are wishing what is good for him! Not because we are dealing
with him as a being existing for himself (propter seipsum existens). Rather,
we are “directing him according as that proves useful to others.”

Here is another case where Aquinas (and in this way he is like Aristotle)
may hardly seem to be saying something true, because he is saying
something so obviously true.

But, assuming that he may be directed according as he is useful to others,

how ever could it prove useful to destroy him, if necessary? Here, Aquinas
was very astute in realizing that it is a philosophical problem: how can it be
that destroying something ever proves useful to anything or anyone? But
we all admit that one good “use” of a part can be to destroy it for the sake
of a whole, as the analogy of a diseased limb illustrates. Thus Aquinas
a rms at this point, surely rightly, persona singularis comparatur ad totam
communitatem sicut pars ad totum, that is, “each individual person stands to
the whole community as does part to whole.” This also is true. As Catholic
Social Thought teaches, the common good is greater than private good.
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a decent person, not falling into serious sin, can be put to the use of the
community and “excised” for the good of the community. After all, as not
abandoning his dignity, he is a member in full standing of that very
community.

I will conclude by setting my cards on the table. I am a lover of St. Thomas

rather than a Thomist. Frankly, I am not interested in the project of
defending Aquinas against all comers. His authority, in itself, and his
reputation, in itself—these are not important to me. In this essay, I have
shamelessly used Aquinas solely as a stalking horse. I know what all
reasonable and prudent persons have believed for two millennia about the
death penalty. I know that this is what St. Thomas attempted to explain
and defend, and I have used him as a stand in.

Aquinas stands here, too, for what I have believed about the death penalty
on the merits, even before I became Catholic, and for what I have therefore
loved the Church for so rightly and consistently defending over the
millennia.

About the Author

MICHAEL PAKALUK
Michael Pakaluk is Professor of Ethics and Social Philosophy
and Associate Dean of Faculty at the Busch School of
Business in The Catholic University of America. He lives in
Hyattsville, MD, with his wife, Catherine, also a professor at
the university, and their eight children.

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