A Philosophical Case Against Capital Punishment


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 first in a two-part series.

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Pope Francis recently made headlines (again!) with comments about the death penalty: “One has to strongly affirm 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 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 justified 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 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 offer 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 suffice 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 offered 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 justified (intending death as an end seems non-controversially unjustified).

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 first two states of affairs need be intended, the second as a constitutive aspect of the first; whereas the third state of affairs, 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 fine-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 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 fitting . . . good in itself and not just for the sake of practical benefits.” And, they say, “no less good . . . is our inclination to inflict punishment.” Thus, the principle of desert asserts the goodness and fittingness of inflicting punishment on those who deserve it.

The principle of proportionality, by contrast, identifies 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 unjustified. 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 inflict capital punishment. I here offer no opinion on the first 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:

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 inflict a single harm – namely, the taking of the life. . .  Rape, however, essentially involves several harms: not only the humiliation and bodily harm inflicted 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, first 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 infliction 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 inflict 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 suffer 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 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 inflict the penalty of death is any less delegated to the state by God than is the power to inflict lesser punishments”? I will argue that the opposite is the case.

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

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