This essay is part of our collection on the legitimacy of capital punishment. See the full collection here.
Feser assumes that I am not against punishment as such, and this is correct. But in laying out this assumed ground of agreement, Feser articulates an account of punishment with which I disagree. Perhaps not surprisingly, we would both give the same name to our differing accounts of the essential purpose of punishment, namely “retribution.” Feser’s understanding of retribution is that a criminal deserves to have some harm inflicted upon him, and this is the purpose of punishment: to inflict that harm.
By contrast, I think that retributive punishment takes as its starting point an awareness that a political community is constituted by an ordering of the wills of the community’s members, an ordering that is shaped in accordance with the authoritative requirements of the law. This ordering requires, for the sake of the common good, various restrictions of the freedom that citizens might otherwise have, the freedom to do as they see fit. The ordering also requires, for the same common good, those restrictions demanded by the moral law on the freedom of persons to act maliciously against the good of others. By such an ordering and even disciplining of wills, citizens are provided a space in which they may safely, and in an effectively coordinated manner, pursue their well-being in community with others.
A criminal acts beyond the limits on wills so established: he takes more of the freedom that is mutually allotted to citizens than he has in fact been allotted. This is a wrong against the community, distinct from the wrong against any particular person that he might commit, such as the taking of another’s life or property. It is this wrong against the order of the community that the criminal law of the state endeavors to address through retributive punishment, by taking away from the criminal the ability to act as he pleases to a degree that restores, as much as possible, the imbalance that the criminal’s self-assertion created.
This account of punishment, about which much more could be said, does not converge with Feser’s claim that in punishment a criminal is intentionally harmed, at least not if that harm is understood as: intentional harm to a basic good or goods of the person. Rather, instrumental goods, especially liberty and money, are rightly targeted as part of the project of taking away freedom in proportion to the freedom that was unjustly exercised. The ensuing damage to an instrumental good might also have, and usually does have, as a side effect a negative impact on basic goods such as knowledge, friendship, or health. But by my account, it would be permissible to fine, to imprison, and perhaps to shame, but it would not be permissible, for example, to maim, to kill, or otherwise deliberately to attack a basic good in the person of the criminal.
Feser makes a principled argument for the permissibility of capital punishment, which he summarizes as follows: “But since a human being can deserve punishment, and a punishment ought to be proportional to the offense, it follows that he can deserve death if his offense is grave enough.”
Unlike Feser, I do not think this follows at all, for the underlying presupposition behind all just punishment is that the form of punishment in question is not an intrinsically wrong act. That is, not just the general practice of punishment, but the particular form of punishment, must be permissible in any given case.
Feser seems to lose sight of this point when he discusses punishments such as rape that are out of bounds, writing that “Sometimes inflicting such punishments would be impossible (a mass murderer cannot be executed multiple times), or would do more harm than good.” But neither of these is the reason rape is excluded as a legitimate form of punishment: rape is always and everywhere wrong, and is not available as an option for punishment, regardless of its feasibility or the proportion of goods to bads it might bring about.
As I argued in my earlier essay, I believe capital punishment falls into this category. As a basic, or intrinsic, human good, human life, just in itself, gives us only reasons for its pursuit, promotion, and protection, and no reason for its damage or destruction. By contrast, a merely instrumental good gives us no reasons for action in itself; yet reasons for action can be generated by one’s ends, either for the promotion or the intentional destruction of the instrumental good in question. So there is nothing intrinsically wrong with destroying money, or tools, or a house, if we have good reason to do so.
But what could justify the intentional destruction of a basic good, an intrinsic aspect of human well-being, such as human life? The idea that human beings have intrinsic dignity suggests that the answer is “nothing.” Perhaps human life could be intentionally destroyed if the evil of its destruction were outweighed by the good achieved. Yet such outweighing also seems ruled out for those who think that human life has a sacred or inviolable quality to it. And so the norm against intentional killing seems well-grounded.
I noted in my earlier piece that even if someone did deserve death, that did not mean that anyone had the authority intentionally to take life. Feser notes that I did not defend this claim; however, his own defense relies upon the question-begging argument just addressed: “But if the state has the authority to inflict punishment per se, and a punishment ought to be proportionate to the offense, then what reason can there be for denying that the state can also, in principle, legitimately inflict the death penalty for extremely grave offenses?” Only that the death penalty is, because intrinsically impermissible, off the table as a permissible form of punishment.
Still, Feser is right that the issue of authority is essential. It requires more discussion than I can undertake here, so I will confine myself to a few points.
As noted above, a reasonable account of political authority is that it is a practical necessity for securing the common good: absent political authority, and especially the authority of law, a community’s members will be unable to coordinate their actions, defend themselves adequately against malefactors, or provide for the needs of those weak members who are not otherwise being adequately cared for.
I do not see how the death of a human being, even of a criminal, can, just as such, be a part of any common good. While it can bring incidental benefits that might contribute to the common good, death itself cannot be part of that good, and so it does not appear to be within the authority of one publicly charged with the protection and promotion of a common good to seek death as such.
St. Thomas did not see things in this light. For in discussing capital punishment he wrote:
Now every part is directed to the whole, as imperfect to perfect, wherefore every part is naturally for the sake of the whole. For this reason we observe that if the health of the whole body demands the excision of a member, through its being decayed or infectious to the other members, it will be both praiseworthy and advantageous to have it cut away. Now every individual person is compared to the whole community, as part to whole. Therefore if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since “a little leaven corrupteth the whole lump” (1 Corinthians 5:6).
Central to Thomas’s argument here is the comparison between the citizen and the whole community, and an organ and the organism of which it is a part. Aquinas is certainly correct that the welfare of the organism takes precedence over that of its organs, and that accordingly diseased parts of the organism may be surgically removed. But as many commentators have noted, Aquinas goes wrong in his analogy, for citizens do not stand in relation to the state as organs do to organisms.
This can be seen in two ways. First, we should note that an organism is in an important metaphysical sense prior to its parts; the organism is responsible for the execution of its own self-directed growth and development, from which its organic parts emerge. Moreover, it is the organism’s existence that makes the parts to be what they are; hence Aristotle’s famous dictum that a severed hand is a hand in name only. But neither of these points is true of the relationship between a person and a state. Rather, persons are metaphysically prior to states: they have a real, non-derived existence, whereas there would be no states but for the existence of persons. Put another way, persons do, but states do not, have a life of their own.
And from the practical standpoint, there would be no need of the state save for the needs of persons. The state thus exists for the sake of persons, whereas organs exist for the sake of the organism of which they are parts. It seems to be a practical consequence of this that the state cannot sacrifice its members for the sake of the whole; thus, the analogy fails.
Aquinas limits the “disease” for which a part of the state can be killed to the commission of crimes. His reason for this is spelled out in the following important passage:
An individual man may be considered in two ways: first, in himself; secondly, in relation to something else. If we consider a man in himself, it is unlawful to kill any man, since in every man though he be sinful, we ought to love the nature which God has made, and which is destroyed by slaying him. Nevertheless, as stated above (Article 2) the slaying of a sinner becomes lawful in relation to the common good, which is corrupted by sin. On the other hand the life of righteous men preserves and forwards the common good, since they are the chief part of the community. Therefore it is in no way lawful to slay the innocent.
Aquinas makes a crucial point in this passage, that he seems himself to overlook; drawing attention to it will serve to bring my discussion to a close. Note Aquinas’s first claim: “If we consider a man in himself, it is unlawful to kill any man, since in every man though he be sinful, we ought to love the nature which God has made, and which is destroyed by slaying him.” This claim presents as clear a statement of the Sanctity of Life and the Essential Dignity views as could be hoped for: it is unlawful to kill any man, considered “in himself.”
But what it is unlawful to do to a man in himself surely trumps any “accidental” consideration; perhaps it might seem lawful to kill a man secundum quid—in relation to something, whether a desired end, or status, or achievement, or the failings of the man in regard to these. Yet none of these can change the man’s nature, or the non-instrumental value of his life: considered in himself, it will, therefore, always remain wrong to kill him. This should be the final judgment of practical reason when brought to bear on the question of capital punishment.