This essay is part of our collection on the legitimacy of capital punishment. See the full collection here.

In yesterday’s essay, I argued that life is a basic good, that it is always wrong to intend damage to that good, and that therefore capital punishment is intrinsically impermissible. In today’s essay, I return to the question of political authority. Does possession of political authority make intentional killing permissible in the context of capital punishment?

I deny, as principled abolitionists must, that political authority includes the authority to intend death. Feser and Bessette ask, “But if the state does, given the principle of proportionality, have the authority to take away an offender’s liberty and property, what non-question-begging reason is there for denying that it also has the authority to take away an offender’s life?”

To respond to this challenge, let me first situate the discussion in terms of a feature of St. Thomas’s teaching about capital punishment and killing more generally, a feature that is not of much, if any, concern to Feser and Bessette.

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Aquinas on Capital Punishment

St. Thomas, following St Augustine, believed that it is always morally impermissible for a private citizen to intend the death of another human being. This verdict was universal and without exception: even in the case of unjust attack, what Aquinas believed was permissible was only the use of proportionate force to ward off the attack, and not an intention to kill the attacker.

Why did Aquinas think this? Surely his thought tracked much of the argumentation used in the case against capital punishment. Aquinas believed that human life is a basic good (ST I-II, q. 94, a. 2c), and that action contrary to that good is contrary to charity (ST II-II, q. 64, aa. 5-6). He believed as well that all human beings are persons, made in the image and likeness of God (ST I, q. 93, a. 6) and possessed a kind of dignity, a dignity similar to, though not as excellent as, the dignity of God (ST I, q. 29, a. 3.). Such considerations generate a strong immunity from intended harm. No intentional killing of human beings is thus the default position that Aquinas starts from.

But Aquinas, for various reasons, including of course Scriptural reasons, carved out a clear exception to the default position against intentional killing when it came to those with public authority for the common good. I have argued before at Public Discourse that his arguments for that exception are exceptionally poor: 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 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. Moreover, Brugger has shown that the Scriptural warrant for thinking public authorities should be granted the exception is not as strong as St. Thomas thought.

But I am here concerned with the reductio offered by Feser and Bessette: if public authority is lacking for capital punishment, then why not for confiscation of property and reduction of liberty? Implicit in the argument is the suggestion that Aquinas is the coherent one on this topic, and not me, since Aquinas allows all three forms of taking: life, liberty, and property, whereas I allow two but not the third.

But public authority can justly limit property and liberty because both liberty and property are merely instrumental goods. Unlike human life, neither is a constitutive aspect of human well-being, though each is, of course, of great instrumental value in human life. And there can be no universal prohibition on private persons’ treatment of instrumental goods, for the basic goods of persons take precedence over the value of merely instrumental goods in cases of genuine conflict (as, for example, when a person will starve if she does not steal).

As a result, it is important to see that on the taking of property, Aquinas clearly begins from a different starting point than he does on the taking of life. Intentional taking of property is not forbidden to private persons. Rather, when persons are in great need, “then it is lawful for a man to succor his own need by means of another’s property.” So to allow public authority to confiscate property as punishment does not require an exception to a norm that applies absolutely to those without such authority.

The same is true with respect to the exercise of liberty. Aquinas believes that private citizens may constrain or restrict the liberty of others. Aquinas’s treatment of slavery perhaps does not show that he accepts it as morally permissible, though, as John Finnis says, he “disconcertingly” passed up opportunities to condemn it. But Aquinas does believe that a form of servitude similar to serfdom is morally permissible and that private persons may sell themselves into such servitude. And he recognizes also the “quasi servitus of those who, in utmost freedom, have made religious vows or exchanged the promises of marriage, thereby giving up their libertas faciendi quodlibet, their freedom to do what they will.”

So once again, a kind of taking (and giving) is permissible by private citizens of liberty, quite unlike Aquinas’s views about the taking of human life. The same, we saw, is true of property.

The taking or restraining of these goods is not intrinsically impermissible, and may be carried out by private persons under certain circumstances. The reason for this is not difficult to see: both liberty and property are merely instrumental goods.

There are, of course, very good reasons to limit some or most such taking or restraining as engaged in by private persons, and reserve it to those with political authority. Unregulated, such taking will often be unfair and improperly motivated; claims of starvation, for example, can easily serve as a pretext for theft. Similarly, the taking of property or liberty as punishment is almost entirely left to those with political authority, since it cannot be carried out fairly by private persons. But this limiting of the right to take is not an exception; political authority in depriving persons of liberty or property does not do anything absolutely ruled out to private persons. The reservation to those with public authority of the right to punish by taking liberty or property is justified, and politically prudent; but it is radically different from the reservation to political authority of the right to kill.

Moreover, restriction of punishment to the curtailing of liberty or taking of property serves very well the retributive purpose of punishment. For punishment aims to restore the order of justice that has been disrupted by the offender taking for himself, by violating the law, more liberty than has been allowed to him and others. His liberty must therefore itself be suppressed, whether directly, by curtailing it (as by imprisonment) or indirectly, by taking his property which, after all, is valuable as an aid to pursuing his ends. So understood, a retributive account of punishment does not require that death be imposed for the sake of justice.

A Serious Tension

The previous discussion reveals, I believe, a serious tension in Aquinas’s account of killing, a tension entirely overlooked by Feser and Bessette, who seem to me largely to take for granted the authority of political authorities to kill on the grounds that they can also deprive of liberty and property. They thus see little need to work for what is in fact a very significant exception to the general norm against killing that binds all private persons: no intentional killing whatsoever, even of the wicked or dangerous.

Now if one starts from an assumption that divine authority to kill has been granted to temporal rulers, one is likely to miss this tension. But if one starts instead from the differences between Aquinas’s treatment of killing, on the one hand, and his treatment of liberty or property, on the other, then one will rather think, as I do, that the arguments for an exception to the norm against killing had better be very strong to justify allowing to political authorities what is allowed to no private person. And, as I have noted, Aquinas’s arguments for this exception are just not very strong.

Neither, it seems to me, are Feser and Bessette’s. They write, in the three paragraphs they devote to answering the challenge regarding authority to kill, “Now, God certainly has the right to take the life of an offender, and given the principle of proportionality and the purposes of punishment, there is 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.”

This is exactly wrong, and manifests the oversight to which I am drawing attention. The “power to inflict lesser punishments” is unlike the power to kill: the acts involved in the lesser punishments are not impermissible for all private persons. So the fact that God delegates the power to inflict the lesser punishments gives us, in fact, no reason whatsoever to think that He delegates the power to inflict death. And Aquinas’s remarks here on what God intends are surely also relevant: even for those God punishes, “God does not will death as per se intended” (ST I, 49, a. 2).

So I am left unconvinced by Feser and Bessette’s philosophical treatment of the death penalty. That treatment obscures what is a genuine tension, not just in Aquinas, but in Church teaching more generally, between claims about the intrinsic goodness, sanctity, and inviolability of human life, and claims about exceptional political authority to kill. It is this real tension that, I believe, makes development not only possible but necessary.