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

Michael Pakaluk engages with my essay on capital punishment with the antecedent expectation that it is “hardly likely that the argument can be correct.” His honesty is admirable, and he is unlikely to find my response convincing. Still, there are errors in his understanding of what my argument implies, and some of his objections to it are in need of response. So in this essay, I briefly show why the argument against capital punishment is on sounder footing than Pakaluk believes.

Pakaluk rightly identifies an implication of my view that the basic good of human life is never to be intentionally damaged or destroyed: it is wrong on my account to intend death in self-defense, or in wartime killing. But he is wrong to say that “The argument immediately and plainly implies an extreme pacifism.” For, as he notes, the Doctrine of Double Effect can certainly be invoked in the case of killing in self-defense. This, in fact, was Aquinas’s approach as well: the killing that occurs in self-defense must be praeter intentionem, outside the intention, a side effect. Whether Pakaluk considers this claim by St. Thomas a “patch” on his argument that intentional killing by private citizens is always wrong is unclear, but I am happy to wear St Thomas’s cloak here.

What about war? The natural law tradition, and Catholic social teaching, both have moved to the view that the only just purpose for which war can be fought is defensive. If that is so, it makes very plausible the thought that the killing that is justly done in a just war must all be defensive, and thus fall within the scope of double effect.

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Pakaluk claims that “generals certainly make their aim the destruction of as many enemy soldiers as possible, to end the war.” No doubt that is true of some generals; but such generals seem immoral and inhumane. Their intention is surely incompatible with the end of war, which is peace, the tranquilitas ordinis of which Augustine speaks. Moreover, even those soldiers’ deaths that are accepted as a side effect should be minimized to the extent possible, and damage to property preferred, when effective, to the deaths of persons.

Could capital punishment be itself permissible if carried out as a defensive act in which death was a side effect? Something like capital punishment perhaps could be if necessary for the safety of those at risk from an evildoer. But under that description, such an act would not be one of punishment, which does, I think, always involve intentional deprivation. If that deprivation is capital, then what is deprived, intentionally, is life, and that is what I think sound philosophical thinking rules out.

Basic Goods and New Natural Law

A large part of Pakaluk’s essay is devoted to criticizing the “New” Natural Law (NNL) account of basic goods. According to that account, all human action is oriented toward what is grasped by reason as good, as offering some sort of benefit. Following, among others, Aristotle, NNL theorists do not think that the chain of reason-giving can go on forever: each and every action must have some final reason (or reasons) that give point to the action without necessary reference to some further point, or reason. Since reasons are offered by goods, and some reasons are basic, then some goods are basic: they offer terminal reasons for action precisely as constitutive, non-instrumental, aspects of human flourishing. Life, knowledge, work, play, aesthetic experience, friendship, marriage, personal integrity, and harmony with the divine—all should be considered as among these basic goods.

Does plant life give us such a basic reason for action, as Pakaluk argues, such that those who garden may be understood as acting simply to promote and protect vegetative life? And does it then follow, as he argues, that “no weed [may be] pulled out to tend the garden”? No. There are perfectly intelligible reasons to tend a garden: for the sake of life and health, for the sake of beauty, for the sake of work and play, and for the sake of one’s relationship with God, which is fostered by being a good steward of His creation. But plant life is not a constitutive aspect of human flourishing for the (traditional) natural law reason that goods for a being are fulfillments of that being’s nature, and plants, and their lives, are not fulfillments of human nature.

And neither are the lives of animals. Here it might well seem that some people act for the sake of animal well-being itself, as a terminal reason, but I do not believe this is genuinely possible. All action is, again, for the good, and the good for any being is a realization of that being’s natural potentialities. As with plants, animal lives are not fulfillments of human nature. But there are certainly basic human goods to be achieved in caring for animals, including most, or all, of the goods mentioned in the previous discussion of gardening. So we need not worry that an implication of my view is that no cockroach or microbe may ever intentionally be killed, nor need we “haul out” double effect to save the view.

Pakaluk worries that the pluralism of the basic goods approach commits it to too many moral absolutes. After all, if play and aesthetic experience are basic goods, then there should be no intentional damage or destruction of those goods. I think this is correct: to intend damage or destruction of a basic good is to seek its privation as an end or a means. It would be wrong to seek the privation of either of these goods as an end: depriving the world of play or beauty for its own sake is perverse. And I think it wrong to intend such privations as a means as well.

But a moment’s reflection shows that this view does not have the implications discovered by Pakaluk, who infers that a “police officer can no more stop the loud trumpeter from playing outside my window at night, it seems, than society can execute a murderer.” Well, what does the police officer seek to stop? Trumpets and trumpet playing? I doubt it. He seeks to stop untimely and unwelcome noise, and he accepts as a side effect that some musical enjoyment may be thwarted. This is quite unlike the mandate of the mayor of Sombertown, Burgermeister Meisterburger, that there will be “no toymakers to the King.”

Changing Church Teaching?

Pakaluk writes, “Another problem with Tollefsen’s argument is that it makes all destructions of a basic good equivalent in heinousness.” Where, I wonder, does Pakaluk find this in my argument? And what does it mean? “Heinous” is not a term of art for natural law theorists; but I did spend some time in my book Lying and Christian Ethics arguing that, although every lie is impermissible, not every lie is of equal gravity. Those are two propositions with which St Thomas agrees, and if his errors are limited to two, three if I am correct about capital punishment, then Pakaluk must agree with them both. Neither St. Thomas nor I need think that from “is never to be done,” we should infer “equally heinous.”

But in passing, one might wonder how awful it was that the Church for centuries taught the permissibility of something that is impermissible. My own view is that this is much less bad than the unthinkable possibility that the Church has taught as impermissible what is in fact permissible. For those who disagree in action with a false Church teaching of the first sort merely refrain from doing what the Church says they may do. That is hardly to engage in wrongdoing.

But those who disagree in action with a false teaching of the second sort put their souls at eternal risk by doing what the Church teaches may never be done; they disobey the Church, and many surely also act against their own consciences, for they disobey not because they disagree, but in spite of their agreement (think of all those who presumably have had abortions while also thinking their abortions were wrong). To act in these ways—in disobedience of the Church or in violation of conscience—would be to act wrongly, even if the Church were in fact mistaken in its teaching.

Because such error would put souls at risk, I think it is impossible, if the Church is what I believe she is, for her to make such an error, and thus her teachings on what is always impermissible are irreformable. But the first error seems possible and in keeping with the nature of a Church that through time does continue to see with more clarity and accuracy the truth that is fully found in the revelation of Christ.

The Incommensurability of Goods

To return to Pakaluk; having raised several objections to the basic goods view, he turns to criticize the claim which I made that instances of the basic goods are incommensurable, that each offers, in terms of goodness, something not found in the others.

Now each good, and each instance of a good, offer, just as such, only a reason for its promotion and protection. The goods are intrinsically action-guiding, and do not, as it were, contain the seeds of their own destruction. Could some other good contain such seeds? Only if a person, thinking fully reasonably, was justified in thinking that the achievement of the other good warranted the destruction of the first. My claim, in the essay to which Pakaluk responds, is that such an agent could only be so justified if the good sought offered more or greater good than the good destroyed. But incommensurability rules that out. Hence, no good is ever to be intentionally destroyed, whether as an end or as a means.

Pakaluk, I think, misinterprets the incommensurability view as one that works only in comparisons across categories of goods, so that life may not be destroyed for the sake, for example, of friendship. But of course, NNL theorists hold, and have stated repeatedly, that all options for choice are incommensurable, including options within the same class of good.

So we deny that, in the examples Pakaluk uses, when a mother “aborts her baby ostensibly to promote the lives of her several living children, or [an] escaped convict . . . kills an accoster to extend his own life further . . . The relevant goods are in that case commensurable.” The mother’s life is not commensurable with the child’s, nor the convict’s with the accoster’s, and this is why it is unreasonable for the one to kill the other. That people do offer specious commensurations as justifications hardly shows that they are reasonable in doing so, else every consequentialist will be thought a model of moral rectitude. But I doubt Pakaluk wishes to say that.

Pakaluk additionally claims that the NNL theorist can give no reason why, if goods are incommensurable, golf should not be preferred to Sunday mass. The golf objection is a variation of one raised by Russell Hittinger over thirty years ago, and it has been addressed more than once by NNL theorists. I would invite the reader to see Robert P. George’s discussion of precisely this case on pages 72-75 of In Defense of Natural Law.

There, as in many other places, the reader will see that the NNL theorists hold that reason is capable of identifying obligations that we have to God, which include the obligation to worship in ways prescribed by God. While one can choose to play golf, precisely because golf offers some good not found in the Sunday service, one ought not to. This makes clear that while NNL theorists deny that options are commensurable in terms of their goodness, they do argue that reason can “commensurate,” i.e., deliberate and judge rightly between options based on moral norms.

So nothing in the NNL analysis of the golf/church case impugns their claim about incommensurability, properly understood. And it is worth noting that the account of incommensurability seems necessary if sinful choices are to be intelligible. After all, if church on Sunday offers precisely the good of golf, plus more, then how could an agent choose to golf instead of going to mass? Sinful choices are appealing because they offer goods not available in upright choices; but sinful choices are, across the board, less reasonable than upright choices—not because they offer “less good,” but because they don’t respect all the goods and all moral norms.

This brings me to Pakaluk’s final point. Pakaluk concludes his essay with reference to 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.” This “old idea” in fact points in the direction of what I have just said. For the standard for virtue, and hence for the good person, is reason—practical reason operating without error, without hindrance from emotion, self-preference, or other bias. Reason so operating takes into consideration all the basic goods, and all the persons for whom they are good; the most fundamental norm of morality is thus to “follow right reason.”

But reason operating without error does not guide choices between instances of the goods on the basis of a falsehood, that is, on the basis of the belief that those instances are commensurable. And so reason operating without error judges that no human being should ever intend the death of another human being for any reason whatsoever. No achievable good can justify such a choice. And that is the foundation for the case against the death penalty.


I have two points to make about Pakaluk’s final remarks.

First, Pakaluk suggests I am misled in relying upon the Benziger Brothers’ translation of a passage in which Aquinas claims that sinners fall away from the dignity of their manhood.  Perhaps to soften this claim, Pakaluk translates dignitate humana as “human greatness,” rather than human dignity, thus rendering Aquinas’s claim one with which everyone, surely, would agree: sinners fall away from human greatness in sinning.  He then claims to find great subtlety in the various verbs used by Aquinas to describe this fall.

However, Pakaluk then goes on to offer an interpretation of Aquinas that to my mind endorses everything about St. Thomas’s view that I have claimed to be objectionable, and indeed is even more repulsive.  According to Pakaluk, our treatment of prisoners is, and he seems to suggest may be and perhaps ought to be, treatment that is entirely contrary to their human good, stripping them of every human good, directing their treatment entirely to what is useful to us.

The reader might consult those engaged in prison ministry to see how closely the “we” that Pakaluk uses throughout truly describes such ministers.  And the reader might consult St. John Paul II’s Evangelium Vitae to see whether the attitude described by Pakaluk is conceivably consistent with this: “Not even a murderer loses his personal dignity, and God himself pledges to guarantee this.”

Second, Pakaluk asks his readers to “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.”

Now what I said, and was earlier quoted by Pakaluk as saying, was: “And his [Aquinas’s] 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.” So I in turn would ask readers to “note” that I do not say that “a decent person” may be excised for the good of the whole. It is true that I do not specify in this sentence that I am speaking of sinners. But the entire discussion concerns sinners, and the link that was provided in the article to an earlier Public Discourse article of mine also makes clear that I am speaking of sinners here.

And Pakaluk, it seems to me, once more endorses precisely what I find objectionable in Aquinas: he too compares sinners to diseased organs that may be destroyed, and quotes Catholic Social Teaching (CST): “the common good is greater than private good.” But this summary statement of one part of CST simply does not say what Aquinas does. It does not assert the organism view of the state, and much of Catholic Social Teaching – about human dignity, about subsidiarity, and about solidarity – makes sense only, I think, as a denial of that view.

So it seems to me that Pakaluk has succeeded, not in showing that I have been negligent in my attention to St. Thomas’s Latin, nor in the claims that I have attributed to St. Thomas. Rather, he has succeeded in casting the least favorable light possible on precisely the claims of St. Thomas that I find most objectionable.