This essay is part of our collection on the legitimacy of capital punishment. See the full collection here.
In our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, Joseph Bessette and I defend the death penalty on grounds of natural law moral philosophy, Catholic theology, and social science. In two previous essays at Public Discourse (here and here) I responded to E. Christian Brugger’s recent challenge to the theological arguments developed in our book. Here I respond to Christopher Tollefsen’s criticisms of the philosophical arguments.
The basic traditional natural law argument for capital punishment is straightforward, and can be summarized as follows:
1. Wrongdoers deserve punishment.
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2. The more grave the wrongdoing, the more severe is the punishment deserved.
3. Some crimes are so grave that no punishment less than death would be proportionate in its severity.
4. Therefore, wrongdoers guilty of such crimes deserve death.
5. Public authorities have the right, in principle, to inflict on wrongdoers the punishments they deserve.
6. Therefore, public authorities have the right, in principle, to inflict the death penalty on those guilty of the gravest offenses.
Now, the conclusion of this argument follows from its premises. So, if someone accepts all the premises, he will have to accept the conclusion. In our book, Joe Bessette and I defend each of the premises in detail. To rebut the argument successfully, then, a critic will have to show that one or more of the premises is false, or at least that we fail adequately to defend all the premises. Which premise or premises does Tollefsen reject, and why?
Tollefsen’s Main Objection
Tollefsen’s main criticism is indirect. That is to say, it doesn’t explicitly identify which premise is false, but instead tries to show that there must be some flaw somewhere in the argument. The criticism in question is an appeal to the “new natural law” account of life as a basic good.
Not all readers may be aware that there are two competing views that go under the “natural law” label in contemporary philosophy. Traditional natural law theory, which is grounded in the metaphysics of Aristotle and was given classic expression by Thomas Aquinas, is the approach Joe Bessette and I defend and apply in our book. The “new natural law” theory is an alternative approach first developed by theologian Germain Grisez in the 1960s and is endorsed by thinkers like John Finnis, Robert P. George, Brugger, and Tollefsen.
According to the “new natural law” theory, there are several incommensurable basic goods that guide all rational moral choice. They include life, friendship, play, harmony with God, aesthetic experience, and so forth. These are claimed to be basic in the sense that there are no goods that are more fundamental than these. They alone are good in themselves, and every other good is good only insofar as it furthers the realization of one or more of the basic goods. These goods are claimed to be incommensurable insofar as they are all equally fundamental rather than ordered in any kind of hierarchy. None of them can be judged more important than the others and thus none can be sacrificed for any of the others.
Now, what I have called Tollefsen’s main criticism is the claim that life is a basic good, and thus cannot be destroyed for the sake of anything else, either for some less fundamental good or for some other equally basic good. Hence, Tollefsen concludes, capital punishment must be intrinsically wrong, because it involves destroying life. Notice that this criticism doesn’t by itself tell us which of the premises of the argument I gave above is false. Tollefsen essentially is simply suggesting that there must be a false premise somewhere, because my argument conflicts with what the “new natural law” approach says.
(To be sure, Tollefsen does say other things in direct criticism of some of the premises of my argument—I’ll get to those presently—but this first and main criticism is indirect.)
There are several serious problems with this main objection. The first is that it begs the question. Tollefsen’s argument simply takes for granted the general new natural law framework, with its theory of incommensurable basic goods. But Joe Bessette and I not only do not accept that framework, we put forward criticisms of it in our book. We also put forward a positive defense of the rival, traditional natural law framework, from which the basic argument for capital punishment set out above follows.
So, short of refuting both our book’s arguments against the new natural law framework and for the traditional natural law framework, Tollefsen’s main objection has no force. It merely restates the basis of the disagreement with us, but doesn’t give a reason for that disagreement that would be convincing to anyone who doesn’t already endorse the general new natural law approach to ethics.
In particular, Joe and I, like other critics of new natural law theory, simply reject the assumption that life, friendship, play, harmony with God, aesthetic experience, etc. are all equally basic and incommensurable goods. On the contrary, like Aquinas and other mainstream Catholic theologians and traditional natural law theorists, we hold that there is a single highest good that outweighs all the others: God.
Tollefsen gives the impression that Pope St. John Paul II would agree with his approach to natural law, but that is clearly not the case. For the pope explicitly says in his encyclical Veritatis Splendor that “the moral life . . . consists in the deliberate ordering of human acts to God, the supreme good and ultimate end (telos) of man” (emphasis added). For John Paul II, as for traditional natural law theory, there is no question of relatively trivial goods like play and aesthetic experience being somehow as basic as God.
Now, as Aquinas argues (Summa Theologiae I-II.2.7-8), because God is the highest good, it follows that not even the soul—much less bodily life—can be a fundamental end for us. Only God can be that. This brings us to a second problem with Tollefsen’s critique, apart from its being question-begging. That is the problem that it seems to put other goods on a par with God. Not to put too fine a point on it, Tollefsen’s position seems inadvertently to entail a kind of idolatry vis-à-vis human life and other so-called “basic goods” other than God. To be sure, it doesn’t put these things ahead of God, but it does put them alongside him, which is bad enough.
I would suggest that it is because Tollefsen has attributed to human life this quasi-divine status that it has wrongly come to seem to him that life can absolutely never be intentionally taken, no matter how wicked the person whose life it is.
This brings us to a third problem. It is an irreformable teaching of the Catholic Church that a person can suffer eternal punishment in Hell—a fate far worse than death. Now, if a person can merit that, then a fortiori he can merit the lesser punishment of mere bodily death. Notice that this greater loss entails loss of the highest good, God. Yet if one can merit the loss even of God, then one can surely merit loss of the lesser good of life.
Since new natural law theory was formulated by Grisez precisely as a way to defend Catholic moral doctrine, and since Tollefsen and many other new natural lawyers are Catholic, such theological problems with the theory are serious indeed. I argued in my reply to Brugger that the extreme anti-capital punishment position he defends in the name of the new natural law approach cannot be reconciled with scripture, the Fathers and Doctors of the Church, and two millennia of papal teaching. The problems I have identified with Tollefsen’s position indicate that the tension with Catholic doctrine runs even deeper still.
Punishment and Proportionality
Now, the reason a person can be deprived even of the highest good, God, is that a person can do something to deserve such a loss. The same thing is true of life. A person has a right not to be killed unless—by virtue of having committed a sufficiently heinous crime—he has, as Pope Pius XII put it, “deprived himself of the right to live.” Tollefsen’s argument against capital punishment simply ignores the fact that the right to the enjoyment of a good—any good—depends on whether or not one is guilty or innocent.
In our book, Joe Bessette and I argue that to hold that capital punishment can never even in principle be justified implicitly commits one to denying that a punishment must be proportional to the crime (the second premise of the argument for capital punishment above) and, ultimately, to denying that anyone can ever deserve punishment (the first premise of the argument above). Though Tollefsen himself does not explicitly deny these things, it is telling that he ignores them when making his main argument against capital punishment. For it is only by factoring out desert that one can make it plausible that life should never be taken even in principle.
Tollefsen does, however, go on in his latest essay to address the question of whether respect for desert and proportionality in punishments really entails that the death penalty is sometimes appropriate. He objects that some punishments are simply intrinsically wrong, even if proportionate to the offense. This is true, he suggests, of raping a rapist as a punishment. But then, if some punishments are ruled out in an absolute way, even though they are proportionate to the offense, then (Tollefsen concludes) there is no barrier to his concluding the same thing about capital punishment.
There are two serious problems with this objection, however. First, though he isn’t explicit about it, Tollefsen is implicitly conceding that he does after all have to reject the principle that a punishment ought to be proportional to the offense (premise two of the argument I gave above). Now, rejecting that principle is bound to have some pretty momentous consequences. As Joe and I argue in the book, it is ultimately going to entail giving up the very idea that people deserve punishment at all. Tollefsen thus owes us an account of how he would either avoid such an implication, or he must accept the implication and make it consistent with social order and Catholic theology.
Second, the rape example doesn’t have the implication Tollefsen thinks it does. Joe Bessette and I agree that a rapist should not be punished by being raped. The reason, though, is that there are crucial disanalogies between murder and rape. Murder is, considered by itself, the infliction on the victim of a single harm, namely the loss of his life. But the harm of rape involves several components, not all of which could be brought into the act of punishing the rapist without leading either the punisher or the one punished into further sins.
For example, part of what rape involves is inflicting violence and humiliation on someone. Now, it would not be intrinsically wrong to inflict that much on a rapist (contrary to what Tollefsen seems to suppose). If the state were to inflict on rapists bodily injury proportional to that suffered by their victims, and were to cause them a similar amount of humiliation, that would not be wrong in itself. To be sure, there may still be reasons why, all things considered, it would be better not to do even this much to rapists (and I think there are good reasons not to do it). But it wouldn’t be because it is intrinsically wrong to inflict such harms on them.
However, there is also a sexual component to the crime of rape. For example, if someone punishing a rapist were literally to rape the rapist, then the punisher would have to cause himself to be sexually aroused in the course of doing that. And that would be sinful. As Catholic moral theology holds, sexual desire should only be indulged in the context of marriage, and only in a manner consistent with the fostering of the mutual affection of the spouses. To generate sexual feelings in the context of a punishment like the one in question would both be to remove sexual desire from the marital context in which alone it can legitimately be indulged, and also massively to corrupt the tenderness that ought always to accompany such feelings.
So, the problem with punishing a rapist with rape is not that we have a case where an offender does not deserve a proportionate punishment. The problem is rather that the attempt to inflict this particular proportionate punishment would entail committing further, incidental sins.
Here’s an analogy. Suppose that, for some bizarre reason, people in general started to take sexual pleasure in the act of imprisoning others. Then the act of imprisoning people would become morally problematic. It would lead jailers into incidental sexual sins as they locked up pickpockets, kidnappers, and other offenders. Perhaps Catholic moralists would conclude that we have to stop imprisoning people. The problem wouldn’t be because imprisoning people is intrinsically wrong, though. The problem would rather be that the punishment couldn’t be carried out without incidental moral danger.
Thankfully, in the real world, imprisoning people does not have such incidental moral dangers. And neither does capital punishment. Certainly Tollefsen offers no non-question-begging reason for thinking so.
Finally, Tollefsen’s remarks about the state’s authority to punish indicate that he would reject, or at least highly qualify, premise five of the argument for capital punishment I gave above (concerning the state’s right to inflict proportional punishments). Tollefsen claims to find “a serious tension” in the approach to punishment one finds in Aquinas and in Catholic teaching, and which Joe Bessette and I defend in our book. But his arguments rest on a number of serious misunderstandings.
First, as Joe and I show in our book, Aquinas’s fundamental reason for endorsing capital punishment is not what Tollefsen supposes it to be. Aquinas’s reason is simply the principle that a punishment ought to be proportional to the offense, where death is a proportionate punishment for the gravest crimes. Aquinas’s comparison of the offender to a diseased organ, and the claim that the offender has reduced himself to the level of a beast (both cited by Tollefsen), are mere secondary considerations that Aquinas raises in dealing with specific issues that arise concerning the application of capital punishment. They are not (contrary to what Tollefsen implies) Aquinas’s justification for the institution as such.
Second, Tollefsen gives the impression that the reason Aquinas denied that a private citizen could intend the death of an offender has something to do with an inchoate commitment on Aquinas’s part to something like a new natural law account of life as a basic good. But it has nothing at all to do with that. Aquinas’s reason is instead simply that private individuals lack the authority to punish crimes. Only the state has that. Aquinas writes: “The care of the common good is entrusted to persons of rank having public authority: wherefore they alone, and not private individuals, can lawfully put evildoers to death” (Summa Theologiae II-II.64.3). A private citizen who does so, says Aquinas (quoting Augustine), “has dared to usurp a power which God has not given him.”
This is one reason Tollefsen’s long discussion of the difference between the good of life on the one hand and liberty and property on the other simply misses the point. Yes, as Tollefsen says, Aquinas thought there are cases where private citizens could take the property or restrict the liberty of others, even though they could not in Aquinas’s view kill offenders. But in Aquinas’s thinking (contrary to what Tollefsen supposes), this has nothing to do with liberty and property being mere “instrumental goods” whereas life is a “basic good.” The reason the practices Tollefsen cites (a starving man taking food, indentured servitude) are permitted by Aquinas whereas vigilante justice is not, is that the former do not involve private citizens usurping the state’s power to punish offenders, whereas the latter does. That’s all.
Another reason this long discussion of Tollefsen’s misses the point is that he is mistaken in supposing that the reason Joe Bessette and I think the state has the right to execute offenders is an argument from an analogy with the state’s right to deprive offenders of liberty and property. That is not our reason. Our reason is simply that since the state has the authority to inflict proportionate punishments on criminals in general, it thereby has the power to inflict capital punishment in particular. We aren’t starting with specific cases like depriving offenders of liberty and property and then working up from them to some general rule. Rather, we are starting with the general rule and then deducing from it the right to execute certain offenders (as well as to take the liberty or property of other offenders).
Finally, we argue in our book that, given his own premises, Tollefsen has no principled reason to treat liberty as a merely “instrumental good” if he is going to treat life as a “basic good.” The different status he affords them seems ad hoc. Tollefsen says nothing in his latest essay to rebut this criticism.
So, the “tension” that Tollefsen thinks he sees in Thomistic and Catholic teaching about punishment is bogus. It is entirely an artifact of assumptions of his own that he has read into this teaching and then read out again.
The real tension, as I have argued, is between Brugger’s and Tollefsen’s “new natural law” approach to punishment on the one hand, and the teaching of scripture, the Fathers and Doctors of the Church, and the popes on the other. If there were any doubts about their irreconcilability, the failure of Brugger’s and Tollefsen’s defense should dispel them.
Edward Feser is Associate Professor of Philosophy at Pasadena City College.