The Philosophical Case against the Philosophical Case against Capital Punishment


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.

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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. 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 affairs.

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 find that the argument has wild implications and badly supported premises, I regard my initial expectation as confirmed, 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 pacifism.

Tollefsen and the New Natural Lawyers will try to patch the argument by invoking the Doctrine of Double Effect. 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 food, no cockroach killed as a nuisance, no weed pulled out to tend the garden, no bacterium eliminated by an antibiotic. Or will Double Effect 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 affirm 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 officer 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 some classes of person.

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 flow 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 flawed, 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 different 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 different 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 sacrificed 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 affirm 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 confirmed.

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.

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 Tollefsen attributes to him.

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 firmly 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 superficial, 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.

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 affirms 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. Note that Aquinas does not say, absurdly, as Tollefsen has him saying, that 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.

Michael Pakaluk is Professor of Ethics and Associate Dean of The Tim and Steph Busch School of Business and Economics at The Catholic University of America. He is also a Fellow at the Institute for Human Ecology.

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