As I noted in my first response to Ed Feser, our respective accounts of punishment, while both traveling under the name “retribution,” diverge in content. Feser’s most recent response to me makes the differences clearer.
Feser argues that the legitimacy of punishment requires the notion of merit, and that the idea of merit requires, in turn, that punishment must be proportionate to the crime. He believes that I implicitly deny what he calls the “principle of proportionality”—that punishment should be proportionate to the crime; I thus evacuate the idea of meriting punishment of any substance, and so implicitly deny the legitimacy of punishment, even while claiming not to—an alleged incoherence.
Feser does not address my account of punishment, which is thoroughly political in its foundations: punishment restores a kind of equality between citizens that the criminal’s overly self-assertive act(s) of will had disrupted, by taking away something of the criminal’s contrary to his will (such as his liberty of action).
Feser’s account of punishment does not appear to be rooted in political considerations, but in something, for want of a better word, more metaphysical: punishment is a harm that must be inflicted on criminals because they deserve it in some absolute sense. “Desert,” for Feser, seems to go beyond the idea, common to my account and his, that it would be wrong to punish those who were not responsible, to something stronger: punishment is the principled harming of someone, proportionate to the wrong that they have done others, because that is what they deserve. Feser makes reference to justice, but not in any overtly political sense: the justice served seems to be justice from the point of view of the universe, not of the state.
Consider, however, the sin of private blasphemy. On a plausible understanding, this could be considered the worst of possible sins, hence deserving of the greatest possible punishment. It is clear, nevertheless, on my account, why it is not to be punished by the state: it does not involve an over-assertion of the blasphemer’s will contrary to the order of wills established by law.
A political conception of retributive punishment makes somewhat softer claims about merit and proportionality than Feser does. Merit is, as I have noted, necessary in this sense: punishment should only be done to those who are guilty of the assertion of will that punishment redresses. Hence, if not deserved (merited), punishment should not be inflicted. Proportionality, too, is somewhat softened by contrast with Feser’s account. Feser supposes there is a precise, or specific, amount of punishment that is merited by the criminal and that ought, barring practical considerations and considerations of mercy, to be exacted. The cosmic scales are finely tuned.
But political scales—not so much. The degree to and way in which a criminal’s will ought to be restricted does not seem, even in principle, subject to such a fine-grained assessment; Aquinas thus considered punishment to be an example of what he called determinatio, determination of the law by decision. Such determinations are required by the natural law, for there must be a speed limit, or designated range of what is permissible. Yet the precise limit, in cases requiring a determination, is not fixed by the natural law but by choice, which can differ from place to place according to custom, prior commitment, or other considerations.
Of course, such determinations must be made within the scope of what is otherwise morally permissible, what the natural law requires; and if the natural law, as a matter of deduction, and not determination, requires that one never intentionally kill, then that choice is ruled out of the range of determinations one might make regarding punishment. This is a perfectly intelligible claim; one might, as Feser does, disagree with it, but the idea that it introduces an incoherence into my account of punishment is false.
I pressed on Feser the following argument to make the general point about the limits of punishment: just as I think intentional killing is not within the realm of permissible forms of punishment, so, I assumed, we both would accept that rape would not be within those bounds. Feser responds by dividing the wrongs of rape into those done to the victim—the wrongs of humiliation and sexual assault—and those done to the character of the rapist in and by his choosing: the “sexual perversion and sadism by which the rapist harms his own character.” By contrast, says Feser, to “take a life is, essentially, to inflict merely a single harm—the taking of the life.”
As an account of murder generally, however, this claim is also false. The murderer certainly deprives his victim of a good, and thus wrongs that victim; but the murderer also wills contrary to the good of life, and this willing is, like the choosing of sexual perversion and sadism, an intransitive harming of the murderer’s character. This can be seen in a number of ways: the attempted but unsuccessful murderer has not harmed his victim, but is morally guilty and corrupted in precisely the same way that the successful murderer is. Also, the one who accidentally kills has harmed the victim, but, in not choosing to do so, he is not guilty of an anti-life willing. His character is unchanged by the accidental death.
Here is a core aspect of my approach to ethics that seems to differ from Feser’s: I think that morality is ultimately a matter of the heart—of the will of the agent. What is the standard by which that agent’s will should be guided and measured? It is the standard provided by the various basic or fundamental goods of the human person, those goods that are constitutive aspects of every human person’s well-being and fulfillment, such as life, knowledge, or friendship. That standard, when reason considers all the goods, in their bearing on all beings who, like us, are fulfilled in those goods, is one of openness: agents should promote and protect as possible all the goods in all persons; and agents should never will contrary to the goodness of those human goods, by a choice deliberately to damage or destroy an instance of one of those goods in a person. Hence the claim on which I rest, ultimately, my opposition to capital punishment: the intentional killing of another human being is always impermissible.
The previous paragraph contains a number of points that Feser opposes in closing his essay. These points especially concern the concepts of dignity, goods, and persons, to which I now turn.
Dignity connotes an excellence, and the form of dignity that, in previous essays, I have named “essential dignity” is, I believe, the dignity or excellence of persons, of beings possessed, as Feser notes, of the joint capacity for reason and free choice. It is joint capacity, not as currently exercised, but possessed as a radical capacity by virtue of being a member of this human species, that makes a being a person and hence one of us, a member of the community of human persons to which each reader of this essay belongs.
This community is itself the community of beings whose fulfillment and well-being is to be found in the basic goods of human persons, goods that our capacities for freedom and reason enable us to pursue actively, if we have developed in the way that is characteristic but not inevitable for members of our species. To belong to that community is, therefore, to be protected by the scope of morality’s demand that we be open to the basic goods, and hence to be protected by morality’s requirement that we never intentionally damage or destroy an instance of a basic good: it is to be immune, among other things, from intentional killing.
Are the very freedom and reason that constitute us as members of the community protected by the scope of morality’s demands? Of course they are, because freedom and reason, in the sense that both Feser and I mean, are aspects of our life: to end either capacity is to end our existence as members of this species. So these capacities are to be absolutely protected against all intentional attacks.
But the exercise of freedom, particularly what Feser calls “liberty of action” is not identical to this capacity, and it can be limited without in any way damaging the capacity itself. Indeed, as I am sure Feser would agree, many forms of limitation on the freedom of action are, if only in the long run, enhancements of our ability to exercise that root capacity: such limitation is essential for proper education of children, for example.
So the limitation of liberty is very different from the intentional taking of life. The exercise of liberty, and the presence of a structured form of political freedom, are both instrumental, in a sense: they make possible our free self-constitution as persons of a certain character, and so, being instrumental, they can be limited. But the capacity itself is part of our life and, like the biological part of our life, ought never to be intentionally damaged or ended.
The notion of “dignity”—essential dignity—operates in a summary way to call all the preceding considerations about membership in the human community to mind; the undermining of the idea that this can be done, promoted by those who think of membership in the community as achieved, earned, or bestowed, has been one of the signal, if dismal, triumphs of the modern age. The “dignity” of the human being no longer carries presumptive weight against claims about the permissibility of a number of kinds of killing. This is quite at odds, however, with traditional natural law and specifically Christian thinking about this matter.
Considerations of human dignity seem to be at the root of much natural law and Christian reflection on the wrong of killing in such a way as to make the presumptive baseline position one of opposition to all killing. This presumptive baseline is only strengthened, in early Christianity, by reflection on the mystery of the Incarnation. In light of such considerations, the burden of proof, for those who accept the core idea that all human beings are persons and have essential dignity, is that intentional killing requires a special justification: these justifications typically run by reference to some special authorization to kill, divine or political, or to the loss of dignity suffered by the criminal.
It is only in the context of these considerations that appeals to desert and proportionality can and do get off the ground in the natural law tradition. These notions are not taken to be starting points, because the frame of reverence for human life is not understood in that tradition as already suffused with the relativity of circumstance that proportionality and merit import in a world in which everyone is guilty to some degree or other—particularly from a cosmic point of view. Rather, the presumptive starting point is one of absolute opposition to intentional killing of beings created in the image of God, for which exceptions must be earned.
But the traditional justifications for such exceptions seem to fail. A loss of essential dignity is tantamount to a loss of personhood—certainly not something experienced by the criminal—and the authority claims themselves seem too weak to justify intentional killing, if the criminal retains his essential dignity. Thus many full-fledged adherents to the natural law tradition and many religious, including magisterial, voices have moved continually closer to the claim that capital punishment is not just imprudent but in principle wrong.
Some believe that this position is incompatible with Catholic orthodoxy; Feser thinks the position is incoherent. I think the position is neither, and that it represents an important step in the struggle to acknowledge the worth of every human being, born or unborn, thriving or disabled, old or young, innocent or guilty.
Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a Visiting Fellow in the James Madison Program at Princeton University. He is the editor of Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle. Tollefsen sits on the editorial board of Public Discourse.