When the present contests the past: the death penalty

David Bentley Hart has an attack on Feser & Bessette’s defense of the death penalty.  His main argument is that the death penalty is un-Christian because, basically, Jesus has already taken the sins of the world upon Himself.  I remember making the same argument as a teenager.  The problem, of course, is that this isn’t an argument against the death penalty; it’s an argument against punishment of any kind.  Catholic orthodoxy, once again, has chosen to endorse common sense rather than the cleanest theological argument.

Hart has a history of this, by the way.  I remember in his Beauty of the Infinite, he goes on (please excuse my going from memory) about Christianity overthrowing the pagan worldview that the city must use violence to protect its island of order from foreign enemies and internal miscreants.  I remember thinking to myself, “I hope not, because the pagan view is obviously true.”  I wrote it off at the time, because it was a book addressing post-modernist critiques of Christianity on their own terms.  Hart was speaking Po-Mo, which is an absolutely terrible language for philosophy or moral reasoning, much worse than the common man’s unadorned English.  Po-Mo doesn’t do nuance.  Po-Mo doesn’t do clarity.  So of course whatever Hart was thinking was bound to come out sounding crazy.  But no, it turns out Hart actually thinks in Po-Mo.

I can’t comment on Hart’s treatment of the Church Fathers, since he is much better qualified to speak on them than I.  I was bothered by this

And, anyway, if Newman was right—and believing Catholics had better hope he was, for the sake of the intelligibility of their faith—it is not only doctrine but also the church’s understanding of its teachings that is clarified over time by the Spirit. There may be slight missteps, of course, but the general view of development tacitly taken by the magisterium is that there are no violent retreats from clearly stated new discoveries; there is only a relentless narrowing and intensification of focus. This suggests, among other things, that the teachings of the magisterium under the current pontificate are probably more trustworthy than those under the pontificate of, say, Leo X.

Does development of doctrine really mean that newer = better?  Is Pope Francis necessarily a better guide to the Faith than all his predecessors (and inferior to all his successors)?  Most people don’t put it like this, but it does seem to be the implication of many invocations of Newman’s name.

A very important thing to keep in mind, as pointed out by Michael Pakuluk, is that development of doctrine is not itself a doctrine.  No one is obliged to accept any version of it.  If one is going to accept some development theory, newer=better is probably the worst one.  Nobody knows what future popes will say, so we could never be sure of anything.  The whole point of such a theory is to have certainty about doctrine in spite of superficial dissimilarities in its formulation over time.  For this, older=better would serve us much better.  All one has to do is look to the first pronouncement on a given topic.  Future popes may contradict this, but that would just make them heretics, which is future Catholics’ problem, not ours.  Hart’s own description of development suggests a theory that is better still:  clearer=better.  Preferring one direction on the time axis to the other is arbitrary and irrational, but the case for preferring clear pronouncements to vague ones is obvious.  For the most part, this supports the standard view of favoring more recent formulations of the Faith, simply because they are more precise.  Their formulators were cognizant of a finer-grained set of distinctions.  However, papal and conciliar clarity has certainly not been in the ascendant for some time.  (Popes learned to speak Po-Mo.  One thing we should not be thankful to JPII for.)  Thus, the most “developed” doctrine now lies in the past.

This leads to to a broader complaint, the general sense that “we know better now”.  Knowledge has advanced.  Science has advanced.  Morality has advanced.  Our willingness to trust Reason has advanced.  But their is no Knowledge, no Science, no Morality, no Reason–not with capital “K”, “S”, “M”, “R”.  Making them proper nouns like that implies that they are unitary things that can bring the plenitude of their authority to bear on any particular issue.  So, for example, it would be wrong to say “Science tells us that gravity can bend light.”  No, particular observations of gravitational lensing show that.  If a person had reason to doubt those observations or their interpretation, it wouldn’t count against him one bit that scientists have gathered fantastically reliable measurements on completely different subjects.  There is no capital-S “Science.”  Likewise, it is never enough to say “we know better” in general.  One must say what in particular we know now that our ancestors didn’t that leads us to think differently.  Our ancestors thought the Earth was the center of the solar system, but we know particular things now (the phases of Venus, the parallax motion of the stars,…) that lead us to think differently.  What in particular do we know now about the death penalty that Thomas Aquinas or Pope Pius IX didn’t know?

Perhaps we are simply more spiritually mature than previous generations, that we see things they don’t?  This will hardly seem plausible to the traditionalist, not because we grant some special authority to the past, but because we don’t grant any special authority to the present.

That is the traditionalist argument for the death penalty.  If we’re the only generation to see a problem with it, probably we’re the ones that are wrong.  On the other hand, I do appreciate why the new natural lawyers and Pope John Paul II were against the death penalty, and it had nothing to do with trying to appease liberals.  In fact, it was born of the fight against them.  In the ethical debates of late-20th century Catholicism, to be conservative-orthodox meant to be anti-consequentialist.  That there are intrinsically evil acts, acts wrong by their object that cannot be made right by any consideration of intent or circumstances, was where we planted our flag.  So we needed a list of such acts.  Killing seems like the most obvious one.  But tradition grants states the right to execute.  This could be accommodated by making the intrinsically evil act more specific:  it’s wrong to kill as a private person; it’s wrong to kill a person not judged guilty of capital offense by the state.  But the more qualifiers one can stuff into the specification of the object of an act, the less useful anti-consequentialism becomes.  Ideally, we’d want the barest “atom” of will, the minimal specification to make an action intelligible.  Presumably the solution is to say that it’s not the number of qualifiers but their type that keeps our anti-consequentialism pure and usable.  (Innocent vs. guilty and public vs. private do not invoke intent or consequences, nor do they require such considerations to explain their relevance.)

Still, I understand the discomfort, and I share it.  We hold that the rule against killing has exceptions, while the rule against rape has none, even though killing is worse than rape, even though a state could conceivably authorize rape, even though someone might do something so bad that they’d deserve it (hence the public’s sadistic complacency about prison rape).  I can’t shake off the worry that the reason we make exceptions to the rule against killing and not the rules against sexual evils is that rape, fornication, and the like are ultimately not sufficiently useful, and we are not really anti-consequentialists after all.

I can’t make up my mind about the death penalty.

22 Responses

  1. ” the death penalty is un-Christian because, basically, Jesus has already taken the sins of the world upon Himself. ”

    Another awesome argument sort of like this is “Bad thing X happened because of original sin.” Usually this is deployed as a way of absolving the actual bad actor of his bad act, absolving some vice for contributing to the bad act, or at least distracting from one of these.

    Another favorite: “X is a bad act because it involves treating person P as a means rather than an end.”

    Is there anything you can’t prove with this sort of thing?

  2. That argument would make killing in self defense and warfare also immoral under all circumstances.

    If a non Catholic can be forgiven for giving an opinion, that strikes me as really loony.

    God does not rape but God does kill.

  3. Actually, Hart is Eastern Orthodox (as I should have mentioned). “Eastern schismatic” as we say in Catholic land.

  4. > “X is a bad act because it involves treating person P as a means rather than an end.”

    For the longest time, I was convinced that the ends vs. means thing was a profound insight, even though it’s easy to think of morally licit cases of using other people as means to some other end. Sometimes very simple things take me a long time.

  5. It’s always interesting to consider what arguments against the death penalty are actually arguments against any sort of criminal punishment. If capital punishment is killing and nobody should kill, isn’t imprisonment kidnapping which equally nobody should do? I wouldn’t be surprised if this argument is made by the left over the next few decades, already a few radicals support shutting down prisons and favor “restorative justice.” And in Europe they have a low enough crime rate that this idiocy might seem workable there at least.

    I’ve long wondered about the execution vs rape as punishment distinction you brought up. I think it has something to do with criminal punishment properly being a public deprivation of some good from the offender. So life or liberty are goods that can be taken from the offender as punishment, whereas rape is not such a punishment. But perhaps you could reformulate it in terms of bodily integrity. So my distinction is perhaps not a coherent one after all.

  6. The whole “ends can’t justify the means” thing makes little sense to me.

    I’m currently reading a moral theology manual, and while it does state on multiple occasions that the ends can never justify the means, it definitely implies that they can. For example, it will say X is a sin. Then it will say later on that in a certain situation, X is not a sin because otherwise worse evil Y would occur. If that’s not ends justifying the means, what is?

    The “double effect” concept seems to make more sense. Though it stipulates that the act must be at least morally indifferent, it can basically mean the “ends justify the means” if practically everything is considered at least morally indifferent. (E.g. killing enemy soldiers is morally indifferent and actually not evil, therefore it’s ok to kill them in order to win a war. (But if killing enemy soldiers is morally indifferent, does that make it ok to kill them for no reason??))

    It appears that the ends really do justify the means and that the common declaration of the contrary is just a guideline that is proclaimed in order to prevent ordinary people from abusing the concept by self-deceptively rationalizing evil in the name of a lesser good, which they surely would. Only in very clear circumstances, already delineated by the Church, can man be trusted to justly weigh the ends versus the means, so the reasoning would go.

    Consequentialism seems to be more compatible with the whole teleological object of moral theology of tending towards God as our Last End, also.

  7. Bonald,

    Have you read Feser’s & Bessette’s book? If you did, what did you think?

    We hold that the rule against killing has exceptions, while the rule against rape has none, even though killing is worse than rape…

    But isn’t this just because the definition of rape already has all the qualifications built into it? Basically, couldn’t we say equivalently to your statement on killing, that sex is good, but there are exceptions that make it not good, one of these being rape.

    So how does rape differ from murder in this sense, which is also always wrong? They are both species of some more general category. If we look only at the general category, we see that there are ‘exceptions’ that arise in any attempt to make a moral rule that could apply to the entire category.

  8. ” I can’t shake off the worry that the reason we make exceptions to the rule against killing and not the rules against sexual evils is that rape, fornication, and the like are ultimately not sufficiently useful, and we are not really anti-consequentialists after all.”

    There is some truth to this. The moral object means “what you are doing, as considered by reason.” But this is a question of interpretation: why say you are “killing an innocent person” instead of saying that you are “moving my hands in such and such a way”?

    The reason is because thinking of your action in the second way is harmful, and thinking of your action in the first way is useful. Thus, there are indeed intrinsically wrong behaviors. But the reason concrete actions are classified as “belonging to this intrinsically wrong behavior” rather than to some other more generic action which would not be intrinsically evil, is that it is useful to classify them one way rather than another.

  9. > It appears that the ends really do justify the means

    Good ends justify good or neutral means. Bad ends make even good means illicit. For the act to be licit, the object, intent, and consequences must all be acceptable. You can’t say this in Po-Mo, but it’s easy with Boolean algebra.

  10. > Have you read Feser’s & Bessette’s book?


    My worry regarding killing vs. rape is why can’t we then add more qualifiers to the definition of rape (e.g. can’t force sex on someone except when authorized by the state because they’re found guilty of a heinous crime). Then, voila, forced-sex-as-punishment isn’t intrinsically immoral anymore.

  11. entirelyuseless,

    Anti-consequentialism (of the sort I’m talking about) does seem to hinge on being able to break up human actions into atoms, minimally intelligible units of some sort. Thus, going into more detail, such as “moving my hand in this way” is too small a unit to be intelligible. Nobody would answer the question “What are you doing?” with that. As I understand it, the object just gets to the immediate thing you’re trying to accomplish–not farther to your motive or your estimation of its effects–but it does get that far.

  12. @wiseguy

    On a certain meaning of “justify” it shouldn’t make sense.
    For, clearly, action is means of achieving some end, so the end does give reason for the action. What is meant, though, is if the object itself is wrong, the goodness of the end is not sufficient to make it good.

    For example, cooperation in robbing a bank, even if you intend to give your share to a charity that supports sick children in Africa would be per se wrong under positive law, and positive law that isn’t clearly immoral has to be taken as something that serves the common good if it is ordained by the state, and the private welfare of the beneficiaries of your charity is less desirable than it. However, in itself the property right of the bank is not something that has to be honoured unconditionally at all times, as it is in itself a private useful good, and it cleary does not outweigh your right to life, so you can give the robbers money as an employee at gunpoint, and no actions that this presupposes are in themselves wrong (opening vaults, carrying bags of money, saying “There ya go” et al).

    Which manual are you reading, if I may ask?

  13. @Bonald

    “As I understand it, the object just gets to the immediate thing you’re trying to accomplish”

    I think that’s right, for what it’s worth, and there’s a good philophical reason for it: in order to fall within the purview of ethics at all, it has to be a human act, rather than merely an act of a human, and thus be due to at least an indirect consideration.

  14. *and thus be due to an act of consideration, at least indirectly (I am thinking of say, an act of adding too much sugar to one’s tea as a result of a neglected bad habit).

  15. @Bonald

    Re: killing and rape

    I think that ultimately the reason is that -causing death- per se is not intrinsically immoral, nor do I think the Church has ever viewed it like that. After all, God has positively commanded killing people who by human standards were innocents in the OT. I think the morality of killing has always had more to do with “public” legitimacy (as it does, according to St. Augustine, in the “die by the sword” verse). After all, enemy combatants are, for all we know, innocent of crimes, and when you kill them in war, you kill them qua aggresors against the common good of humanity that is just peace to which they are ordered. When you execute a criminal you give the common good its due.
    It may sound weird, but I can’t give a reason for the immorality of killing that doesn’t reduce to some common good analysis.

    Punishment by rape seems at the very least to be “punishment by fornication”, and if fornication is in itself wrong, so is this. If public authority commands something, the command cannot prescribe intrinsically wrong things, because humans cannot act on behalf of the state through anything but human acts, and these have to be good.

    Now, you can ask what is so wrong about fornication, and I’ve seen different answers to that question, but my somewhat underdeveloped answer would be that human reproduction is in some way immediately ordered to God (because humans are), and without familial context any sexual act is not properly reproductive in a rational sense (to wit, because God is, legally speaking, a proximately interested third party, upon which the very success of reproduction depends in a peculiar way, and humans owe everything they can do on their part to God without making this contingent on something they don’t have a strict right vis-a-vis God, that is, actually having children).

    I hope I’m not occupying an inordinate amount of space on your blog.

  16. Romans 13 also says that as far as I can tell, the legitimate government was appointed by God to be one arm of his vengeance, which is why it bears the sword.

    I’ve had a massive problem with the way anti consequentialism has been used for years. It’s not a clinching argument, but if a course of action has terrible results that’s an indication that bad things are at work. An unnatural cleaving of the tree from the fruit it bears is weird to me.

  17. Perhaps rape could in theory be a just punishment, but would necessarily involve the executioner in an instrinsically immoral act. So it isn’t the causingnof rape that is intrinsically immoral but the involvement of always illicit non-marital sex.

  18. I thought death penalty was Christian Nationalist because:

    a) Temporal side: Preserves the common life of the nation from corruption. Preserves the legitimate ruler from treason.
    b) Transcendental side: Forces the sinner to come to grips with his own act through the brutal reality of consequences. The Church, being transcendental-minded, wants the condemned man to repent and confess thus saving his soul from eternal consequences. A punishment of insufficient weight would allow the criminal to push the sin into the subconscious.

    ST: “Now this kind of training, which compels through fear of punishment, is the discipline of laws. Therefore in order that man might have peace and virtue, it was necessary for laws to be framed: for, as the Philosopher says (Polit. i, 2), “as man is the most noble of animals if he be perfect in virtue, so is he the lowest of all, if he be severed from law and righteousness”; because man can use his reason to devise means of satisfying his lusts and evil passions, which other animals are unable to do.
    Reply to Objection 1. Men who are well disposed are led willingly to virtue by being admonished better than by coercion: but men who are evilly disposed are not led to virtue unless they are compelled. “

  19. Georgy, the book is the kindle version of “Moral Theology A Complete Course Based on St. Thomas Aquinas and the Best Modern Authorities” by Charles Jerome Callan and John A. McHugh.

  20. “For the longest time, I was convinced that the ends vs. means thing was a profound insight, even though it’s easy to think of morally licit cases of using other people as means to some other end. Sometimes very simple things take me a long time.”

    If what you have in mind is Kant’s second formulation of the Categorical Imperative, then you’ve misread it. The prohibition is on treating others *merely* as a means. This one does not admit of such easy counterexamples, and I’m not aware of any serious ethicist who accepts the easily refuted version of the principle.

  21. These anti-DP arguments are so tiresome. The per se permissibility of capital punishment has always been understood as a matter of divine revelation: we’re not allowed to dispute it. Maybe it’s not prudent to execute certain classes of people, or for certain crimes, or at certain times in certain places owing to the circumstances, etc., (though, like Zippy, I think that’s something that, in the US at least, has hardly been established) but that’s an altogether different question.

  22. Anti-consequentialism (of the sort I’m talking about) does seem to hinge on being able to break up human actions into atoms, minimally intelligible units of some sort.

    When I was a teenager, I was preoccupied for a time by the concept of cause of death. Suppose Bonald shoots me, and I die. The coroner will record my cause of death as gunshot wound and my manner of death as homicide.

    But what actually caused my death? If we take the currently default medical view, my death *is* the cessation of organized electrical activity in my brain. That cessation was caused by a failure of certain chemical reactions to occur in my neurons. That cessation was caused by a shortage of oxygen in my neurons. That shortage was caused by a lack of blood flow to my neurons. That lack was caused by a precipitous decline in blood pressure. That decline was caused by a similarly precipitous decline in blood volume due to exsanguination. That exsanguination was caused by a hole in a great vessel somewhere. That hole was caused by a bullet fragment bouncing around my innards. That bouncing was caused by a bullet striking my body at great speed. That striking was caused by the bullet’s ejection from a barrel at greater speed. That ejection was caused by an explosion. That explosion was caused by the falling of a hammer. That falling was caused by the squeezing of a trigger. That squeezing was caused by Bonald’s decision to squeeze. That decision was caused by Bonald’s anger. That anger was caused by DrBill’s incessant carping. Etc all the way back to Eve.

    Why do we slice this causal chain in those two very particular places? Cause of death = bullet striking body. Manner of death = Bonald’s decision. I’m not saying those decisions are wrong, necessarily.

    I eventually settled on an answer which I now think is wrong. The question is (I thought), what are you trying to accomplish via these concepts “cause of death” and “manner of death.” The former, I decided, was there to provide an indication of where, in the causal chain, some kind of public policy intervention could best have accomplished something. Like, making it illegal to go around shooting at people would cut down on the people killed by the cause “gunshot wound.” The latter, I decided, was there to provide an indication, in this particular case, of whether the cops should be involved. Now, these are not very satisfying solutions, subsuming, in a Nominalist way, important questions about reality into arbitrary(?) mental constructs.

    Anyway, I agree that this question of how you slice up causal chains into intelligible events is important.

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