This essay is part of our collection on the legitimacy of capital punishment. See the full collection here. Don’t miss Edward Feser’s response to this essay.
Capital punishment is receiving some renewed attention in the Republican primary race, largely as a result of questions put to Rick Perry in recent debates, and, additionally, as a result of the striking response by the debates’ audiences: cheers and applause when Perry’s death penalty record in Texas was mentioned. Support for capital punishment has been a traditional platform of Republicans and social conservatives, but not without some significant dissent. Specifically, those who defend the lives of the unborn, the senescent, and the severely retarded by appeal to the sanctity of human life sometimes take as their starting point for such positions the following moral claim: it is always wrong intentionally to kill a human person. And from this claim, a principled opposition to capital punishment follows.
The sanctity of life view is often accompanied by a set of claims about human dignity, namely, that human beings possess essential, underived, or intrinsic dignity. That is, they possess dignity, or excellence, in virtue of the kind of being they are; and this essential dignity can be used summarily to express why it is impermissible, for example, intentionally to kill human beings: to do so is to act against their dignity.
This view—call it the Essential Dignity View—should be distinguished from a more deeply theological account of human dignity, which holds that our dignity comes from our origin in divine creation, and from our destination in eternal life with God. While defenders of the Essential Dignity View frequently assert these additional claims, they typically hold that human freedom and reason, even if well-described as rendering us “in the image of God,” can be understood and appreciated without reference to their divine origins.
The Essential Dignity View should also be distinguished from accounts of dignity according to which dignity depends upon some achievement or some bestowal of status by others. Many philosophers who use the language of “personhood,” for example, appropriate the language of dignity, and speak of the loss of human dignity when a human being, though remaining alive, ceases to possess those properties upon which “personhood” is dependent. Similarly, one might think that dignity is a property dependent upon some form of social recognition; absent that recognition, a human being, such as a zygote, would not be “one of us.” On both kinds of view, intentional killing of some human beings would not be incompatible with dignity, for those human beings would have no dignity. Such views arbitrarily designate some members of the human family as unworthy of moral respect despite the fact that they are beings of the same kind as ourselves.
By contrast, the Essential Dignity View identifies a much deeper connection between human nature and human dignity, and warrants the claim that all human beings have human dignity, regardless of age, achievement, degree of development, or social status. It thus is a perfectly adequate way of supporting the fundamental claim of respecting the sanctity of human life: no intentional killing of human beings.
However, even among the most important proponents of the natural law tradition, and the most important articulators of the notion of essential human dignity, this inference to the Essential Dignity View has not always been drawn. For according to some such thinkers, human dignity can be lost. Here, for example, is St. Thomas, describing just this loss of human dignity in order to justify intentional killing: “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” (ST, II-II, Q. 64, a.2). Clearly, if taken literally, this claim would justify intentional killing.
A related objection to the Essential Dignity View, advocated by some in the natural law tradition, is that some human beings deserve to be killed. Although not much effort is made to distinguish this view from the view articulated by St. Thomas, there is this subtle difference, assuming that what Aquinas says is literally true: no beast genuinely deserves to die. If it were possible genuinely to alienate one’s dignity and fall into the state of the beasts, one would thereby take oneself out of the moral domain altogether; killing would not be a matter of desert, but only of, perhaps, prudence.
So I will treat the two views separately, in turn. Rebutting them does not serve, of course, to settle fully the morality of capital punishment, but it should serve to raise questions among social conservatives, including those who cheer the state of Texas’s distinguished record for executing criminals.
To begin with Aquinas’s view, it appears to border on incoherence: if “dignity” claims are intended to summarily capture certain truths about what it means to have a particular sort of nature, then one can lose one’s dignity, if one initially has it, only by losing one’s nature. But losing one’s nature just is ceasing to exist as the sort of thing one must be if one is to exist at all: it is to go out of existence altogether. This thought is impossible to sustain of a criminal who is the abiding subject of the drama of crime, investigation, apprehension, trial, conviction, and punishment, as even Aquinas’s language, which refers to “he” throughout, makes clear.
Moreover, the position seems unstable. If dignity can be lost or alienated through wrongdoing, whether through loss of nature or in some other way, why can it not also be lost by other means? That Aquinas’s view is dangerously proximate to the view according to which personhood can be lost is apparent in the work of Nigel Biggar. Biggar is no friend of those views that make personhood dependent upon achievement or status, but he resists the idea that those properties that give our life unique meaning and worth cannot be lost. Thus, he writes, of cases involving severe brain damage or unrelievable pain, that “it could be morally permissible to intend to take human life because, that life having lost its unique preciousness—its sacred value—the intention would not be malevolent.” Most natural law thinkers would resist this strenuously; their ability to do so is compromised, I believe, to the extent that they are committed to Aquinas’s view about criminals.
Finally, there are questions of gradation here. Not every crime is of equal gravity, but possession of a nature, or of essential dignity, is an all-or-nothing thing. What constitutes the dividing line between those crimes that, while wrong and degrading in some sense, are nevertheless insufficiently severe to cause us to fall to the level of the beasts, and those crimes that are so severe? It is difficult to imagine a principled account here.
Now let us turn to the second view and the question of desert. One could hold that some human beings—criminals guilty of extremely great wrongs—are still in possession of their nature as free and equal, and thus still subjects of essential dignity, yet hold that these human beings deserved death. Thus, intentional killing of these human beings would be permissible.
It is clear that the conclusion of this argument does not follow from the premise, even if we grant it. Perhaps some human beings do deserve death; that need not be enough to warrant the permissibility for anyone of killing that human being. It could well be that no human being has the authority to warrant intentional killing, even of the guilty.
Moreover, the ranks of those deserving death might be greater than many think. Looked at from a certain point of view, none of us is so without sin and wrongdoing on our conscience that we could guarantee our own immunity if desert were made the sole criterion for a right to life. And while as a legal matter, we in the West are inclined to think that life should only be taken for the taking of life, it is not obvious why this should be so. Does the adulterer really not deserve death if the murderer does? Again, it is not clear why not. Justifications that rest on the idea criminals deserve death are thus doubly problematic: there are difficulties both with the claim to authority, and with the boundaries of those who deserve to die.
Here, though, is the deepest reason to be opposed to capital punishment. From the practical perspective of an agent reflecting on those human goods that give point to human action and that underwrite possibilities of human flourishing, such as the goods of life, friendship, marriage, and personal integrity, we should recognize the following: each of the basic goods, in each of its possible instantiations, considered just in itself, only gives us reason for action, only is capable of motivating us for action on its behalf, and only is an aspect of genuine human well-being. Just in itself, action directly (intentionally) contrary to any human good makes no sense, is void of practical intelligibility. The same is also true of action against the life of even a seriously degenerate criminal. Insofar as he is a human being, his life gives us reason, and only gives us reason, for its protection and promotion.
It does not seem to me, then, that the Essential Dignity View should be accompanied by the claim that dignity can nevertheless be alienable or be overridden for those who deserve death; the Essential Dignity View and the sanctity of human life thus naturally go hand in hand.
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.