By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment
Edward Feser and Joseph Bessette
Last annotated on Saturday October 21, 2017
179 Highlight(s) | 149 Note(s)
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1 Natural Law and Capital Punishment
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Natural law in Catholic moral theology
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the universal, practical obligatory judgments of reason, knowable by all men as binding them to do good
Note:DEF DI LEGGE NATURALE
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the ends or final causes
Note:CIÒ CHE CI ILLUMINA NELLA SCOPERTA
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human teleology”.
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not man-made,
Note:NATURALE..1 REQ...
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it is not supernatural but is distinct from the order of grace
Note:NATURALE... 2 REQ
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That is by no means to say that God is irrelevant to natural law.
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pagan thinkers such as Plato and Aristotle.
Note:I PRIMI PROMULGATORI
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The official teaching of the Catholic Church also strongly affirms natural law and natural theology.
Note:LA MORALE CATTOLICA
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Traditional natural law theory
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“the Thomistic doctrine of natural law” historically favored by the Church.
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traditional natural law theory is committed to an essentialist metaphysics
Note:ESSENZIALISMO
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and it is teleological insofar as it holds that natural substances have final causes
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the early modern philosopher David Hume famously argued that conclusions about what ought to be the case (statements about value) cannot validly be inferred from premises concerning what is the case (statements of fact).
Note:LA CONCEZIONE RIVALE..FALLACIA NATURALISTICA
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“naturalistic fallacy”,
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Traditional natural law theorists tend to speak, not of value, but of the good,
Note:VALORE E BENE
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There are certain ends that any organism must realize in order to flourish as an organism
Note:I CONIGLI HANNO 4 ZAMPE... E CHI NE HA 3?
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Nature wants us to eat so that we will stay alive,
Note:MANGIARE È BENE
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Desires are nature’s way of prodding us to do what is good for us,
Note:DESIDERI
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“natural” does not mean merely “statistically common”,
Note:NO STATISTICA NO GENETICA... SI CAUSA FINALE
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It has instead to do with the final causes
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Moral obligation
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“good is to be done and pursued, and evil is to be avoided”
Note:IL PRECETTO
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metaphysics is not essential to seeing that this first principle is correct;
Note:INESSENZIALITÀ
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But that metaphysics can help us to understand
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good action is just that which is “in accord with reason”,
Note:RAZIONALISMO
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eternal law, which is essentially the order of archetypes or ideas
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OLTRE LA LEGGE NATIRALE... ALTRE DUE
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human law, which is the set of conventional or man-made principles
Note:TERZO TIPO
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Finally there is divine law, which is law given directly by God, such as the Mosaic Law.
Note:TERZO TIPO
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morality is in principle knowable to a significant extent even to the atheist,
Note:ATEI
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With ethics as with natural phenomena, however, it by no means follows that reference to God is absolutely unnecessary.
Note:DIO E ETICA
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Natural rights
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Now, it is part of that nature that we are social animals,
Note:SOCIETÀ
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For example, as Philippa Foot writes, “Like lionesses, human parents are defective if they do not teach their young the skills that they need to survive.”
Note:ESEMPIO DI VIOLAZIONE
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But an obligation on the part of a person A toward a person B entails a right on the part of B against A.
Note:DAI DOVERI AI DIRITTI
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The most basic natural right is the right to do what we are obligated to do
Note:IL DIRITTO FONDAMENTALE
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a right not to be killed.
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“the rights of all men are limited by the end for which the rights were given”;
Note:DIRITTO E FINE
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teleological foundation
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As Aquinas emphasized, that the natural law morally prohibits something does not suffice to show that governments should legally prohibit it.
Note:LAICITÀ
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The idea of a “natural right to do wrong” is an oxymoron.
Note:OSSIMORO
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In the Hobbesian “state of nature”, everyone has a “right” to do anything
Note:POSIZIONE OPPOSTA
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why we should attribute even conventional rights to the weakest members of society
Note:UN PROBLEMA X I CONTRATTUALISTI
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Contractarians have offered various responses to these difficulties, which typically involve inventive appeals to various less obvious ways in which the strong might benefit from leaving the weak alone,
Note:RISPOSTE CERVELLOTICHE
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“Free-riding individuals of a species whose members work together are just as defective as those who have defective hearing, sight, or powers of locomotion.”
Note:X I TOMISTI NESSUN PROBLEMA
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Punishment
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The goodness of punishment
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for Aquinas it is an error to identify happiness with pleasure or unhappiness with pain.
Note:FELICITÀ E PIACERE
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realization of the ends
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Nature has attached pleasure to certain goods
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inordinate indulging of our own will or the inordinate securing of pleasure
Note:IL CRIMINE COME DISORDINE
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following from the will—
Note:LA RADICE DEL MALE
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“equality of justice” will be restored by answering an offender’s overindulgence of his will with the infliction of something that is contrary to his will.
Note:LA PUNIZIONE COME RIEQUILIBRIO
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punishment is inherently good
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the tendency to punish is a virtue, so long as it is motivated by justice,
Note:VIRTÙ DELLA GIUSTIZIA
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odd to contemporary ears to call vengeance a virtue,
Note:VENDETTA
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tendency to confuse the abuse of vengeance with vengeance itself.
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Prummer’s Handbook of Moral Theology classifies “revenge” as among the “virtues related to justice” while condemning “cruelty or savagery”
Note:VENDETTA E CRUDELTÀ
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The principle of proportionality
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punishment ought to be proportional to the offense.
Note:PRINCIPIO RETRIBUTIVO
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not merely a quantitative, but also a qualitative matter.
Note:PROPORZIONALITÀ
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a natural correlation between goodness and pleasure, on the one hand, and evil and pain on the other.
Note:PROPORZIONALITÀ COME ESTENSIONE DI UNA CORRELAZIONE
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The purposes of punishment
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restoration of what Aquinas calls “the equality of justice”
Note:RETRIBUZIONE... RIPRISTINO DI UN EQUILIBRIO
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retribution,
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correction
Note:ALTRI OBBIETTIVI
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deterrence
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incapacitation
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restitution
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Psychiatrist Karl Menninger
Note:CNTRO LA RETRIBUZIONE
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Ramsey Clark,
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for the natural law theorist, retribution is not only a legitimate
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other functions of punishment themselves become problematic in the absence of retribution.
Note:L ARGOMENTO FORTE x LA RETR
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extremely mild punishments for major crimes or extremely harsh punishments for minor crimes.
Note:PARADOSSO DETERRENZA
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The concept of Desert is the only connecting link between punishment and justice.
Note:LEWIS
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someone guilty even of a minor and nonviolent offense could in principle be taken into custody indefinitely, for as long as we think it will take us to cure him.
Note:ALTRO PARADOSSO
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Catechism of the Catholic Church endorses the primacy of retribution:
Note:CATECGISMO E PRIMATO
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Public authority
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Capital punishment
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The death penalty and retributive justice
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1. Wrongdoers deserve punishment. 2. The graver the wrongdoing, the severer 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.
Note:L ARGOMENTO PER LA PENA DI MORTE
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The death penalty and the other purposes of punishment
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But if retribution is a necessary aim of punishment, is it also sufficient?
Note:NECESSARIO E SUFFICIENTE
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Aquinas stresses especially the value of capital punishment in incapacitating
Note:PER TOM PM HA ANCHE DETERRENZA E INCAPACITa
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a further benefit of capital punishment is that, precisely because of its supreme gravity, it can uniquely reinforce our sense of the transcendent source
Note:ALTRO BENEFICIO DI PM
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enhance the dignity of the criminal law,
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To “excite horror” of such crimes
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reinforce within society a horror of especially heinous crimes
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proclamation: that murder is intolerable.
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Replies to some common objections
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1. “Capital punishment violates the right to life.”
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capital punishment contradict themselves by advocating the death penalty for murderers.
Note:OBIEZIONE DELL INCOERENZA
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it is wrong to kill an innocent person.
Note:PRECISIAMO.. FORSE CHE NN ESSERE SEQUESTR IN UNA CELLA NN È N DIRITTO
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2. “Capital punishment is an affront to human dignity.”
Note:ttttttttt OB DELLA DIGNITÀ
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it might be argued, along Kantian lines, that capital punishment treats an offender purely as a means
Note:OB DI KANT
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But imprisonment and other punishments also involve interfering with a rational agent’s freedom.
Note:PRIMA RISPOSTA
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Kantian concerns about the dignity of persons could just as well (and indeed, we think more plausibly) be said to tell in favor of capital punishment.
Note:DANDO QUEL XHE SI MERITA NOI NN LO TRATTIAMO COME UN BOMBO
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3. “Capital punishment erodes respect for human life.”
Note:tttttttttt OB DEL CICLO
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even if murderers deserve to die, we only perpetuate the “cycle of violence” if we kill them.
Note:IL CICLO DELLA VIOLENZA
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it would be a good objection to any other punishment. It is like saying that imprisoning kidnappers further erodes respect for human freedom,
Note:PRIMA RISPOSTA
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4. “Capital punishment is motivated by vengeance.”
Note:TTTTTTTTTT OB DELLA VENDETTA
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Words such as “vengeance”, “revenge”, and so forth are ambiguous.
Note:LA VENDETTA È UNA VIRTÙ
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an animus against punishment as such. When I gingerly introduced the subject of Hell,
Note:CONTRO L INFERNO
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If punishment is never retributive, the human race in all countries and ages has been the sport of a strange illusion.
Note:LA STRANA ILLUSIONE
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5. “Capital punishment does not deter.”
Note:TTTTTTTTT OB DETERRENZA
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Steven Goldberg
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if] the death penalty deters, it is likely that it does so through society’s saying that certain acts are so unacceptable that society will kill one who commits them; the individual internalizes
Note:LE VIE CHE SEGUE LA DETERRENZA
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James Fitzjames Stephen:
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Hundreds of thousands abstain from it because they regard it with horror.
Note:NN PER CALCOLO MA X TABÙ
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it is not fundamental.
Note:DETERRENZA FUNZIONE SECONDARIA
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Social opprobrium
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Even if we do not know whether the death penalty deters, we should still “bet” that it does. For if it does deter and we fail to make use of it, then this failure will result in the deaths of innocent people,
Note:MEGLIO AMMAZZARE UN COLPEVOLE CHE UN INNOCENTE
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good a priori reasons
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6. “Capital punishment removes the possibility of reform.”
Note:tttttttttt OB DELLA TABULA
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especially powerful by Catholic opponents of the death penalty.
Note:STRANO FASCINO
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the good that might be afforded the offender if he is not executed has to be balanced against the evil that others might suffer
Note:MORS TUA VITA MEA
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He might repent of his evil in the time remaining
Note:PENTIMENTO SEMPRE POSSIBILE
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Many criminals are, after all, only hardened in evildoing by their time in prison
Note:LA PRIGIONE NN TI MIGLIORA
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the prospect of imminent execution can actually facilitate an evildoer’s repentance.
Note:PENTIMENTO FACILITATO
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A wrongdoer cannot truly be rehabilitated until he comes to acknowledge the gravity of his offense. But the gravity of an offense is more manifest when the punishments for that offense reflect its gravity—
Note:LA PM COME AIUTO A PENTIRSI
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if a potential murderer is deterred by the prospect of capital punishment from committing a horrendous crime in the first place, then we have, as it were, preemptively “reformed” him.
Note:DETERRENZA COME PENTIMENTO
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7. “Who are we to think we have the authority to take someone’s life.”
Note:ttttt OB AUTOEITÀ
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8. “An innocent person wrongly executed cannot get his life back.”
Note:ttttttt OB DELL INNOCENTE
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it obviously has no force in cases where there is no room for doubt about guilt,
Note:LASCIA INTOCCHI MOLTI CASI
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a similar objection could be raised against other harsh punishments.
Note:SECONDA RISPOSTA
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Third, if the death penalty has deterrence value, then we also risk the lives of innocent people if we do not have capital punishment.
Note:TERZA RISP
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Rival ethical theories
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Kant on capital punishment
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If [someone] has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice.
Note:ANCORA PIÙ SPIETATO
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There is nothing in the traditional natural law theorist’s position that entails that we must execute offenders who deserve death.
Note:PIÙ SPIETATO
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Consequentialism and proportionalism
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The utilitarian theories of Jeremy Bentham and John Stuart Mill
Note:PADRI
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Consequentialist arguments could be given and have been given both for capital punishment and against it. Bentham was against it; Mill supported it.
Note:NEUTRALE
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“forward-looking”
Note:QUEL CHE CONTA
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there is no limit in principle to what we might do either to the guilty or to the innocent.
Note:PARADOSSO DELLE CONSEGUENZE
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New Natural Law theory (NNLT)
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its proponents do seek to be faithful to the Magisterium
Note:TRATTASI DI CATTOLICI
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NNLT proponents, by contrast, tend to endorse the Humean fact-value dichotomy.
Note:LA DIFFERENZA
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“ought” cannot be derived from an “is”.
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metaphysical analysis of human nature.
Note:CIÒ CHE SI RESPINGE
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not endorse Hume’s verdict in his Treatise of Human Nature that “the rules of morality. . . are not conclusions of our reason.”
Note:MA SI NEGA LA CONCLUSIONE
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NNLT tries to solve this problem by recourse to a theory of practical reason.
Note:ALTERNATIVA PROPOSTA: LA RAGIONE PRATICA
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reason oriented towards action, grasps as self-evidently desirable
Note:SENSO COMUNE
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life and health; knowledge and aesthetic experience; skilled work and play; friendship; marriage;
Note:ESEMPI
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“agent-centered”.
Note:LA NUOVA TEORIA
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“third-person”,
Note:LA TRADIZIONE PROIETTATA ALL ESTERNO
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agent knows
Note:NEO NATURALISMO
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goods are self-evidently
Note:PROSPETTIVA RINNOVATA
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“subjective”
Note:SOGGETTIVITÀ
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“subjective” in the sense that it is from the agent’s introspection
Note:INTROSPEZIONE KANTIANA
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self-evident
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One implication of this is that what Tollefsen calls the good of “harmony with God” cannot be regarded as higher than other basic goods such as “friendship”,
Note:IMPLICAZIONE IMBARAZZANTE?
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“a theory of natural law without needing to advert to the question of God’s existence or nature or will”
Note:FINNIS
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NNLT proponent John Finnis regards the political order as having only “instrumental” value, serving to promote the private good
Note:INDIVIDUALISMO … LA SOCIETÀ NN TRASCENDE L NINDIVIDUO
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Punishment restores the proper distribution of advantages
Note:LA PUNIZIONE X NNLT
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the offender harms himself by acting unjustly,
Note:NELLA VISIONE DI TOMMASO
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the intentional killing of a person involves acting directly against the basic good of life.
Note:NNLT CONDANNA LA PENA DI MORTA
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capital punishment involves such intentional killing,
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owing more to the liberalism and individualism of Hobbes, Locke, and Kant than to the natural law political tradition of Aristotle and Aquinas.
Note:PERICOLOSI LIBERALI
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excessively subjectivist
Note:CRITICA
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the NNLT list of basic goods (which varies somewhat from writer to writer) is arbitrary and ad hoc, formulated precisely so as to guarantee that certain desired conclusions will be reached
Note:LA CRITICA PIÙ SERIA
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1. Does the NNLT in fact entail that capital punishment is intrinsically immoral?
Note:ttttttttttt OB INCOERENZA 1
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even if we were to accept the NNLT, it is not clear that a condemnation of capital punishment as inherently immoral really does follow
Note:UNA CONDANNA INCOERENTE
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Finnis at one time defended capital punishment
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2. Is the NNLT approach to capital punishment coherent?
Note:TTTTTTTTTT
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the principles of desert and proportionality entail the legitimacy in principle of capital punishment. Hence, if the NNLT advocate accepts these principles, he has to accept the legitimacy in principle of capital punishment.
Note:INCOERENZA
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NNLT advocate Christopher Tollefsen has argued that while “instrumental goods” such as “liberty and money” may be taken away from an offender as a proportionate punishment for an offense, a “basic or intrinsic” good such as human life cannot be.
Note:DIFESA NNLT...LA VITA COME BENE SPECIALE
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Tollefsen asserts that “human beings have intrinsic dignity”,
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a “sacred or inviolable quality”.
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life by itself cannot be what gives human beings their dignity; plants and nonhuman animals also have life,
Note:OBOEZIONE
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our liberty flows from the rationality and free choice
Note:CIÒ CHE CI DÀ DIGNITÀ
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Yet Tollefsen regards this liberty as a “merely instrumental
Note:XCHÈ DARE ALLA VITA PIÙ VALORE CHE ALLA LIBERTA?
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Tollefsen insists that just punishment, in particular, ought to be construed as political rather than metaphysical.
Note:TOLFSEN... OB DELKA POLITICA
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The trouble with the traditional natural law position we defend, in Tollefsen’s view, is that it is metaphysical,
Note:ACCUSA DI METAFISICISMO
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we do indeed deeply disagree with Tollefsen over matters of general political philosophy.
Note:MA IL DISACCORDO È PROPRIO POLITICO.
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settling these matters is not in fact essential to the dispute
Note:LA METAFISICA È IRRILEVANTE SUL PUNTO PM
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3. Is the NNLT position on capital punishment compatible with Catholic teaching?
Note:TTTTTTTTTT OB ORTODOSSIA
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NNLT writers claim that capital punishment is immoral not merely under certain circumstances, but intrinsically immoral, always and in principle immoral. Yet Scripture, Tradition, and the popes not only have never taught this, but have consistently denied it.
ERESIA@@@@@@@@@
