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Death for the New Natural Lawyers

by Tony M.

Our friend and erstwhile contributor, Professor Edward Feser, has with a colleague Joe Bessette written a most important book about the death penalty and about Catholic doctrine, By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment. The most important feature (from my point of view) is the extremely strong argument that the moral licitness of capital punishment enjoys the immemorial, perennial magisterial support of the Church, from the Apostles to Benedict, as well as explicit endorsement in the Bible.

As frequent readers here would expect, I have defended their theses with my own arguments in numerous online places, including in about 5 different posts in Ed’s blog. I won’t give a repeat of that support, you can look them up just fine.

Chris Tollefsen, a proponent of the New Natural Law (NNL), has often disagreed with Ed’s support of the moral licitness of DP. He did so again yesterday, at Public Discourse, which I aim to address here.

Tollefsen's thesis rests on this theoretical claim from the New Natural Law:

Here is the basic argument: (A) human life is a basic, and not merely an instrumental, good for human persons; (B) no instance of a basic good should ever be destroyed as an end or a means;

Tollefsen, and NNL generally, are wrong here. They are wrong in a very fundamental sense.

Human life is not “a basic good,” not in the sense that it is always wrong to destroy it.

First, we have the direct and explicit testimony of the Scriptures, where God repeatedly takes the lives of humans as punishment (OT: Abihu and Nadab, the sons of Aaron, for sacrificing wrongly; the men from Reuben, i.e. Dathan, Abiram and On – God opened the ground and it swallowed them and killed them; NT: Ananias and Saphira, for lying to Peter about their gift-giving). And God repeatedly tells the Israelites in no uncertain terms to impose the death penalty on certain malefactors. It’s not a permissive rule (like divorce), but a mandatory one: “take him even from my altar…”

But most critical of all is the point that is the center of the whole Bible: Christ’s death. Jesus tells us, “nobody takes my life from me, but I lay it down of my own accord”. Jn 10:18. To be explicit here: Christ did not merely tolerate his death by letting the Romans kill him. He declares that they DO NOT kill him. Sure, they try to, but his mastery over life is such that nothing they can do can actually take his life. He is the one who gives it up – of His own accord. He does it for a specific reason: as the means to our salvation – He uses His death to pay the debt of death we owe, and restore us to the possibility of spiritual life. If it is intrinsically wrong to take a life because it is a “basic good” and “no basic good should ever be destroyed” and to do so “as a means” is wrong, then Jesus does an intrinsically wrong thing to lay down His life as a means for saving us. In the light of the Bible, it is crazy to say that God does not intend the deaths of people.

Philosophically, Tollefsen is wrong again, in that he misunderstands the nature of evil and of “doing evil”, especially when he tries to say that St. Thomas says that God “intends no evil” and that therefore God must not intend any human’s death. The mistake is twofold.

Tollefsen catches only half of Aquinas’s treatment of evil in recognizing that good causes evils either through accidental cause or deficient cause. The other half is that what WE call “evil” is really two equivocal uses, for there is what is evil absolutely speaking and there is what is evil only in a sense. Evil is evil when it is contrary to the nature of a thing, and thus against its form, against its ordination to its end. Thus for a dog to be without a 4th leg is “evil” in that dogs ought to have 4 legs, being 4-legged is what is fulfilling to canine nature, its ordination to a complete dog-like life. However, properly speaking, God intends the good of the whole order together, not primarily the good of a single member: the good of birds requires that some seeds give up their being as food for the birds. And the good of bird-predators requires that some birds give up their lives as food for the predators. And so on. The good of the whole order is what is intended by God. The so-called “evils” implied in the death of the seeds, and the birds, and the bacteria, etc are then “evils in a sense”, but not “evils absolutely speaking.” What Aquinas says, then, is that God intends the good order in toto. He “intends” the death of the birds as food “in a sense” because He intends that predators eat, i.e. He intends the good of the order, but just to that extent the death of the birds is not evil, but good.

But it is manifest that the form which God chiefly intends in things created is the good of the order of the universe. Now, the order of the universe requires, as was said above (I:22:2 ad 2; I:48:2), that there should be some things that can, and do sometimes, fail. And thus God, by causing in things the good of the order of the universe, consequently and as it were by accident, causes the corruptions of things, according to 1 Samuel 2:6: "The Lord killeth and maketh alive."(Summa, Prima Pars, Q49, A2.

What is evil absolutely speaking, and not just “in a sense”, is moral evil. God does not intend moral evil. Moral evil occurs when man, by his will, acts not according to his proper ordination to his end (which is in God), but departs from that ordination. There is no sense in which God causes sin.

His second mistake in the concept regards punishment.

That leaves (C); is capital punishment an instance of killing as a means? One might hold instead that in a single act, justice is done, the malefactor’s will is maximally suppressed, and the malefactor is killed. Only the first two states of affairs need be intended, the second as a constitutive aspect of the first; whereas the third state of affairs, the death of the malefactor, need not be intended at all.

One wonders exactly what he thinks it is occurring when “justice is done”.

In one who, by a deficient will, turns away from the ordination proper to man and voluntarily does moral wrong, there is an ongoing state of disorder:

sin incurs a debt of punishment through disturbing an order. But the effect remains so long as the cause remains. Wherefore so long as the disturbance of the order remains the debt of punishment must needs remain also. (Summa, Prima Secundae, Q 85, A3)

It is in satisfying his own will and not the due ordination that the man’s sin consists; it is therefore in being deprived of satisfaction, i.e. being made to suffer a loss of what is ordinarily desired by nature, that the man and the order is RESTORED to the proper balance. This JUST IS what punishment consists in. But this JUST IS being made to suffer “an evil”. "And so evil is necessarily what is contrary to the desirable as such." [De Malo, Q1, A1].

But to punish a malefactor is to do a GOOD thing, not an evil thing. It is, therefore, to “cause an evil” but only in a sense, not to “do evil” absolutely speaking. To say it the way Aquinas talks about it above, when the authorities punish, they go good, but they also “as it were, by accident”, cause an evil. It is not that the evil is unanticipated, nor that the evil is – like in double-effect situations – unavoidable for the achievement of the altogether distinct good. No, that’s not the meaning Aquinas refers to. It is not under the principle of double-effect (PDE) because in PDE the good effect has to come about NOT by reason of the bad effect. But in punishment, the VERY THING that is good (restoration of the good order) comes to be in virtue of the evil thing - the evil the criminal suffers. Actually, in a way the good is, ITSELF, evil in a sense, but good according to the larger more comprehensive and most proper view. The very thing that is evil in an sense is good in another sense. God does not desire the death of the seeds or the birds for its own sake, he desires THE GOOD for its own sake (the whole order, which includes predators eating prey), and this order entails what is "evil in a sense" but is part of the whole order as properly ordered - i.e. as good.

It is this very fact that allows Pope JPII to say that when a murderer embraces his own death in punishment, this is good: he expiates his crime, and prepares himself to be united to God. The position of the NNLawyers would effectively undermine punishment as such, not just the DP. They would end up characterizing punishment as “doing evil” and doing evil is, well, evil. In that approach. I have argued against this before.

Ultimately, Tollefsen and the NNLawyers are just plain wrong to put human life in this made-up category of “basic goods” that means one can never act against it. Our corruptible human life is a good of this world, and it is not the sort of thing that they think it is. Tollefsen says

The argument for (A) can be extended. Patrick Lee and Robert P. George have shown, in their book Body-Self Dualism in Contemporary Ethics and Politics, that you and I are essentially living organisms. And I think it is a common belief of mine, and of Feser and Bessette, that you and I are intrinsically valuable. But I believe as well that it borders on the incoherent to hold that you and I are intrinsically valuable; and that we are essentially living organisms; but that our organic lives are not intrinsically valuable.

Tollefsen would, on this account, also have to protect plants and animals (and bacteria) from being killed, because their lives are good, and are “basic goods” (to them), and they are “essentially living organisms”. Every living thing is “intrinsically valuable” in that it is good. That’s what “good” means, for cryin’ out loud.

Which is nutty, of course. It doesn’t just border on incoherence, it is incoherent FULL ON.

The reason human lives are special, that they are “valuable in themselves” in a way that does not apply to plants too, is that humans are PERSONS. It is the unique feature of being made in God’s image, having a rational nature, and (therefore) having IMMORTAL souls, that makes us valuable in that ever-so-important sense that JPII kept on about. But (pay attention, here) it is in virtue of that immortal soul that THIS life is not our ultimate end, rather the life hereafter where we live in the Beatific Vision in perfect union with God. THAT life is our ultimate good. This life is the passage way to the life eternal, it is corruptible and we must accept that corruption for what it is, a non-negotiable doorway through which we must pass: it is in living this life so that you orient your whole being to becoming one with God that you succeed in achieving life eternal, not in living this life as if you could live THIS life forever. It is the one who lays down his life who gains eternal life, not one who grasps at this life as the be-all and end-all of what it’s all about. This present life is not a "basic good" the way they mean it.

By speaking about “life” without distinguishing between the different kinds of life, and speaking about “evil” in equivocal senses, the NNLawyers make terrible mistakes that muddy everything.

Comments (20)

Tollefsen's statement (A) is probably accurate, in the limited sense of the new-natural-law term of art "basic good." But I've never seen statement (B) before. The thesis that one cannot intentionally destroy anything that has basic goodness. If you read Natural Law and Natural Rights, Finnis' list of basic goods is extensive enough to make thesis unworkable.

The concept of basic goods is valuable, if only as a response to consequentialism (which Tollefsen mentions in his essay). But after first mentioning how the basic-good concept is incompatible with consequentialism, Tollefsen proceeds to posit a consequentialist strawman for this argument:

What kind of consideration could suffice to show that something that was (in itself) only valuable, and (in itself) gave us reason only to promote and protect it, could be destroyed for the sake of something else? Only, I suspect, that the something else offered more, or greater, good than the good option in question.

That's rather sloppy, I think. If you're going to reject consequentialist reasoning (as reasonable people do), you have to afford your opponent the benefit of a non-consequentialist basis for his position, or make a showing more compelling than this for why one does not exist. You can't use this line of reasoning to arrive at moral judgments under the basic-goods rubric, because it renders all decision making incoherent: "let's try to use an analytical framework inherently incompatible with our major philosophical premise to determine the permissibility of potential actions." Good luck.

And Tollefsen might be right in his rejoinder to Feser's tangent about rape as punishment. But it doesn't help his primary position, that it is always intrinsically impermissible to kill humans.

Are all the new natural law guys anti-DP?

One could even bring about something that is "evil" in the subordinate sense for the better good of the very being to whom the subordinate "evil" is done. For example, rescuers might have to amputate a man's arm to get him out of an entrapped location before he dies from some other cause. Yet the function of the arm was "a good" and in one sense "valuable in itself." So these goods have to be put in a hierarchy or we can't make moral decisions at all.

Titus, thank you for pointing out that Tollefsen's position regarding the "basic goods" is worthwhile in response to the consequentialist POV. I agree with that.

I believe, however, that the reason it is valuable is that it draws on the same underlying truths that a correct analysis of human good draws on, and is - to a limited extent - is compatible with a correct analysis. But it is precisely the fact that it is NOT actually a correct analysis of human good and evil that gets the NNLawyers in trouble here and in other arguments with the old natural lawyers (who also oppose consequentialism just fine). In other words, it is just where the NNL departs from the old NL that it gets things wrong.

For instance, NNL usually says that the various elements of "the basic goods" are irreducible to each other, and do so in ways that make one doubt that human nature is really to be understood as unified, integral, ONE. (The old natural lawyers typically argue that human good is hierarchical, with God at the summit, and this answers the need entirely.) In fact, I have seen some NNL arguments that had me wondering whether they actually believed in a "human nature" in any sense compatible with Aristotle and Thomas, though I grant that this might have been an idiosyncratic way of speaking than actual position.

I noted the very same point you make, about the straw man Tollefsen presents. Indeed, the whole argument in favor of his (A) seems to be wrapped up in a series of assertions that are, at best, ad hoc, and hardly a solid argument:

Feser and Bessette appear at times to call (A) into question. But consider: life gives us terminal reasons for our actions: we can save a life simply because life is at stake. We can choose to become doctors or scientists simply in order to promote and protect human life. We can exercise and eat a healthy diet simply to extend our life. And so on. In all such cases, life gives us a reason for action that does not require a further reason to be intelligible.

The argument for (A) can be extended. Patrick Lee and Robert P. George have shown, in their book Body-Self Dualism in Contemporary Ethics and Politics, that you and I are essentially living organisms. And I think it is a common belief of mine, and of Feser and Bessette, that you and I are intrinsically valuable. But I believe as well that it borders on the incoherent to hold that you and I are intrinsically valuable; and that we are essentially living organisms; but that our organic lives are not intrinsically valuable.

So (A) seems secure.

I imagine that Tollefsen gives a better argument elsewhere. But one must admit that this version of the argument is pretty poor. "Life gives us terminal reasons for acting" is just too thin ice to be skating on.

I actually agree with Tollefsen that Feser's argument about rape was inadequate. Not Feser's best work. But better responses about rape are readily available, and it was, indeed, hardly central to the main argument, rape is just one example of things we don't do as punishment.

I also suspect that the NNL position about it being always illicit to intend to kill a person really makes hash out of soldiering. They don't want to "make war illegal", like quite a number of the stupid liberals do. But they do want the deaths that occur to be like those of self-defense. I just don't think the approach really succeeds: in war, you are not really like the situation in self-defense.

Are all the new natural law guys anti-DP?

Lydia, I don't know about "all" of them, but all the main ones seem to be. It seems to be a main feature of their locus of arguments about "basic goods" and the "absolute" dignity of the human person.

Tony, are you of the opinion (as Feser is) that the NNL use of Kant's dictum that we should never treat persons simply as means but always as ends in themselves is unnecessary and that we can get whatever is good in it in some other way, without invoking it? I've continued to find it very useful as an ethical maxim and not easy to replace. I also think it's completely compatible with the DP, though probably the NNLs don't. It seems to me that treating a person as the kind of being who can be executed because his crimes deserve it (as opposed to, say, a dangerous animal, which is just killed rather than executed) *is* treating him as an end rather than merely as a means.

I haven't thought through the issue from end to end, but my partial analysis is much like you suggest as an option: it does have good uses, but it is not - quite - on the spot right. And it leads to errors. And yes, the NNNLs get into the errors. We can get whatever is useful in their approach though a proper understanding of the good.

I agree that there is something off about using a murderer as an object lesson of horror to deter other murderers, if you think that executing the murderer as retribution is not OK. But on the same basis, I think that executing him if you believe that he continues to pose a threat in the future (as, say, Osama bin Laden would have if in prison, or gang members do in prison) then executing him because of that future risk is, also, just as objectionable if execution for the sake of retribution is wrong. But the NNLs generally (and explicitly JPII) thought the latter kind of execution (for public safety) was OK.

St. Augustine says that we are supposed to treat everything in this life as a means, and the only end is God. He is a little ambiguous or indistinct about how that plays out in treating other persons, but for sure he makes a point that you have to subject human relationships, even friendships, as subject to your ultimate orientation to God: any friendships that get in the way of loving God alone as your ultimate end are to be ditched. Probably the best way to analyze it is that when you follow the 1st of the two Great Commandments in its proper priority, obeying the 2nd follows as flowing out of obeying the 1st: it is in loving other humans as reflecting the image of God because you love God; you love them especially insofar as they bear that image, that imprint. Otherwise they would be loved as (the best) of the things in this world that leads to the next. Their higher-than-"things" dignity which evokes the response of not treating them merely as objects or as means to an end rests precisely on that in which they are like to God and to be loved because you love God as the one true end.

But punishment is not treating them as means to an end, punishment is reserved strictly for rational, moral actors, and it reflects "making whole" the moral universe. Summa, Prima Pars, Q 49, A1:

But when we read that "God hath not made death" (Wisdom 1:13), the sense is that God does not will death for its own sake. Nevertheless the order of justice belongs to the order of the universe; and this requires that penalty should be dealt out to sinners. And so God is the author of the evil which is penalty, but not of the evil which is fault, by reason of what is said above.

Or, at least, it is not treating them as MERELY a means: in a sense, everything in creation is sort of a "means to" the whole ordered reality that was created. Everything in it is "good" in a sense merely in virtue of its own individual nature, but is also good as holding down its place in the larger order. And this implies, for moral agents, that they be punished for evil-doing. Absence of punishment would imply a DISORDERED whole, which would be contrary to God's Providence. But this is not the same thing as treating a person merely as a means, it implies treating them in the proper way - as a created moral member of the created order. Created beings receive their ordination in virtue of receiving their existence and their natures, which implies being PART OF an order, not in transcendence above it.

I have seen, and recently had an argument with one Walter at Ed Feser's blog, on the meaning of "absolute dignity of human life". He seemed to think that if you use the term "absolute" there, it effectively meant that human life had the same dignity as God: transcendent and absolutely inviolate. Well, I suspect that even the NNLs would balk at such a thesis, but their approach and terminology CAN be used to support errors that run counter to what I said above, such as thinking that a human person cannot be "a means" in ANY SENSE AT ALL, even in the sense of fulfilling a designated role in the whole order of creation. It should be obvious that treating a human as a "person" and not as an animal is not against treating them as a means in some sense: when you call a plumbing outfit and ask for some plumber, ANY plumber to come and fix your leak, the fact that you will accept anyone who can fix it, and you really don't care which one or what his name is, and once he are done and you pay him and you hopefully will never see him again, is indeed treating the plumber in some sense as a means, though not WHOLLY so. This is not a violation of good morals.

Perhaps the best way to reply to Kant is to point out that human beings should not be treated "as an end" except insofar as they participate with the ONE TRUE end of man: God. But that participation, as a creature, is a received dignity, and cannot be treated as identical to the dignity God has of his own nature: the 2nd Great Commandment cannot ever be the very same thing as the 1st, it must needs follow from it as effect from cause. Contrary to the panentheists, humans don't become God himself by shedding distinction, they become "like to God" by participation in His life and goodness. Even in heaven we remain distinct persons even while we are in union with Him. The desire to lose ALL distinction and cease to be individual persons is a special eastern fallacy about the good.

By the way, the NNLs (and Tollefsen specifically, in the article cited) make an implied error about justice. They seem to treat justice as if acting to create / form / achieve justice is something you do for the sake of something as a means to an end. That is, that justice itself is "a means to" something else that is good, like (I suppose) one of the other "basic goods". But that's wrong. Justice just is the good, considered in one aspect. Aquinas indicated that: "the order of justice belongs to the order of the universe". It is a good that stands as a kind of metaphysical principle to the whole order, and thus necessarily impinges on the human order of society (or of any order of rational beings). They keep wanting to push the discussion of retribution on "what is THAT good for" as if restoring the order to justice would have a reason beyond that of justice. Effectively, this attitude plays almost directly into the hands of the materialists, who assume that all behaviors, actions, processes, or things that we CALL goods are good only insofar as they enhance physical satisfaction: more pleasure, less pain. "Retribution", in their parlance, is considered a "good" only because psychologically speaking, any society that has a retributive standard will better follow rules that ultimately enhance physical satisfaction - and that's the ONLY reason retribution can be called a good.

Yes, I think we should tell them that justice, which is served by a retributive death penalty, is a basic good! Hah!

I have always understood the Kantian model as meaning that one should not treat others *merely* as a means to an end, not that it's wrong to treat them as a means to an end inter alia. But that means/end treatment must always be modified in light of the knowledge that a person is never merely a thing to be used for one's own purposes. So, if I hire the plumber, there would be unethical ways to treat the plumber--deliberately trying to get out of paying him, for example, or lying to his employer about his work in order to get a discount. There are gray areas there where it's unclear what's required in justice. If a contractor, a small businessman, charges me more than he quoted me, but it seems like he legitimately had unexpected expenses for the job, perhaps the best way for us both to treat each other well is for him, upon having the quote pointed out, to say, "Never mind. Just pay me what I quoted you" and for me (if I can afford it) to pay somewhat more than what he quoted me to show that I understand his need to cover what the work actually cost him. In any event, it's tremendously important for each to be thinking of the other at all times as a real person, not just someone to try to get something out of.

I also tent to be of the opinion that everything that Kant said that is useful is better used coming from elsewhere: Kant was one mixed up puppy. His "antinomies" are a good indicator of that. Even apart from his horrible attempts to "prove" the theses and the anti-theses (almost every one of which contains really significant logical errors), the notion that you could employ as a proof format the method of reduction to the absurd (assuming the conclusion to show something absurd follows) - for BOTH the thesis and the anti-thesis - and then use the results as an argument for the destruction of both, is quite problematic. (In effect, a successful reductio proof for the thesis and a successful reductio proof for the anti-thesis would undermine speech altogether, and one would have to give up philosophy itself. And science.)

Ultimately, I reject the quaint comment "You can philosophise with Kant, or philosophise against him, but you cannot philosophise without him.” I reject it on the same basis that Kant (and Descartes before him, explicitly) did the same thing: they tried to philosophize without regard to the philosophy that came before them. Descartes basically treated of the philosophy of Aristotle, Aquinas, Duns Scotus, John of the Cross, and Cajetan as: "humph. I am going to start from scratch." Kant wasn't much better. Well, scholars today today would be well-advised to disregard Kant the same way. He is the pre-eminent example of a silly-clever. He drilled thinking into such a tightly twisted tangle that nobody can detangle it and lay it out both clearly and certainly. Every text-book layout of his doctrine is disputed. And virtually every employment of his conclusions ends up going off the rails somewhere.

I doubt that the NNL approach would have made any adherents outside of an ivory tower if their presentation did not come in harmony with the dominant cultural attitude of "This World Only" of the modernists and the materialists. The full-on modernists in the Church - the Teilhard de Chardin's and the Richard McBrien's - don't believe in any sharp distinction between this current stage of the world and of humanity, and the eschatological stage. I believe that they use the NNLs as useful fools, because the NNL theory itself provides little to no apparatus for explaining the eschatological end versus the temporal good. Thus they can borrow the framework of the NNLs to argue things that sound reasonable, while in actual support of wrongheadedness and heresy.

The easiest thing to do to separate out the sheep from the goats is to ask about hell. The modernists and the (Christian?) materialists and the nouvelle theologie heretics do not believe in a hell that is permanent. In order to protect that disbelief, they force you down an infinitely long and confused rabbit hole of nonsense about how the Bible is to be understood, but it's all smoke and mirrors.

Lydia, that "not merely" is exactly the kind of thing I meant. I am confident that there are better ways of rooting that in ethical principle than Kant's nonsense.

I'm extremely eclectic. I'll take a tweezers and grab the line about not treating people merely as means but as ends in themselves, apply it where I find it useful (which is pretty often) and still bristle if anybody calls me a "Kantian," because for the most part I think he was utterly confused. You'd be surprised how *any* deontologist is labeled a "Kantian" in today's ethical world. One literally cannot speak of intrinsic evils without someone saying, "Oh, you're a Kantian."


Just wanted to thank you quickly for this post and the discussion with Lydia. I'm looking forward to Ed's reply next week to Tollefsen (he said in the comments "Public Discourse" was going to run a reply) but I thought this comment of yours was a key insight into the whole discussion:

"But punishment is not treating them as means to an end, punishment is reserved strictly for rational, moral actors, and it reflects "making whole" the moral universe. Summa, Prima Pars, Q 49, A1:

But when we read that "God hath not made death" (Wisdom 1:13), the sense is that God does not will death for its own sake. Nevertheless the order of justice belongs to the order of the universe; and this requires that penalty should be dealt out to sinners. And so God is the author of the evil which is penalty, but not of the evil which is fault, by reason of what is said above.

Or, at least, it is not treating them as MERELY a means: in a sense, everything in creation is sort of a "means to" the whole ordered reality that was created. Everything in it is "good" in a sense merely in virtue of its own individual nature, but is also good as holding down its place in the larger order. And this implies, for moral agents, that they be punished for evil-doing. Absence of punishment would imply a DISORDERED whole, which would be contrary to God's Providence. But this is not the same thing as treating a person merely as a means, it implies treating them in the proper way - as a created moral member of the created order. Created beings receive their ordination in virtue of receiving their existence and their natures, which implies being PART OF an order, not in transcendence above it."

The NNL seem to ignore the fact that human beings are moral agents -- and that agency implies certain duties on us with respect to justice.

Ironically, if we hold that it's okay to kill a human in self defense but *not* okay to execute a human to restore justice, we're actually thinking of the human as being more like an animal such as a charging lion. This *lowers* human value.

That would certainly fit with Genesis 9:6 saying that the reason for DP is "for man is made in God's image". According to Feser in his book, even NNL-supporter Brugger admits that this passage is not easy to discount as support for DP being licit even in light of man's high dignity.

Generally one assumes "for man is made in God's image" refers chiefly to the victim--the victim should be avenged in this way by the community because he has such high value. But it's interesting to think that it also refers to the offender--he deserves, as it were, to be given the dignity of being capable of committing a crime worthy of execution. He doesn't just deserve the equivalent of being killed off like a dangerous virus.

You're right, I think that generally one assumes that it applies to the victim. But the underlying meaning of murder being a moral act is that the UNIVERSE is a place that holds moral beings who are responsible for their acts. To have a universe that admits of "victims" is to have a universe that admits of offenders who are "guilty" and who therefore "have a price to pay" for their acts. It is impossible to speak of "merit" without there being the category "demerit". Any universe in which the murder victim is a "victim" who has been ill-used is a universe in which ill-use implies vindicating punishment - because the offender is a moral person made in God's image.


I hope that my question is not silly, but when ppl talk about the moral status of the DP, sometimes it's not clear what they mean by DP, since many ppl in various contexts and cultures have a differnt idea of how should a DP look like.

So, is the mode by which the DP is exercised relevant for defining it's moral status, aka is it relevant for ONL proponents wether the DP is excersised by, say, pulling some kind of poison into the criminal so that he may have a peacefull death, or, I dunno, burning him alive or beheading him?

Let me put it this way, if a criminal deserves death (which I think is plausible), does he *also* deserve the pain of, say, being burned, cooked, burried alive or whatever atrocious and disgusting method the executor may think of? Is the mode by which the DP is exercised relevant for the debate, and what does ONL say about that?


When the Catholic Church speaks about the DP in a positive way, does the Church define what it means by it, aka do the executors have some *limits* by executing a DP?

I understand the position that a criminal might deserve that his life (which is maybe his greatest good besides God) should be taken in order to restore justice, but I cannot swallow the idea that someone deserves the pennalty of, say, being burned alive...

I'm I wrong in my thinking? Am I oversimplifing the issue at hand? What do you think? Again, I hope that my question is not too silly...

Nobody, you are quite right to think that the how of any DP is an important moral issue. However, I don't think that the how is fundamentally relevant to whether DP is licit at all. Maybe, possibly, the how would be relevant if the only way it was even theoretically possible to employ DP was through some fantastically painful method, as if only something fantastically painful even could be the cause of death. But since death can be caused completely painlessly, by having the convicted take an extra high dose of morphine pills, the degree of pain can be completely separated from whether death is being caused. And so it is not part of the discussion of whether DP is licit in principle.

If one assumes for the sake of the argument that the licitness of DP is accepted, I don't think that having the DP be completely painless is a necessary condition for licit technique. Nor nearly painless. Nevertheless: since before modern times it was actually fairly difficult to put someone to death without pain, either of these options would render the result that before modern times effectively ALL actual instances of the DP were immoral. Which, I would say, would be at least concerning for most supporters of the DP. If chopping off someone's head with a single axe stroke isn't satisfactory as a technique because it causes too much pain, then we would need to re-think the whole issue of pain involved in punishment before using it. But I don't think that's really the case.

I have not attempted to sort through where the limits of painful DP lie, nor how to determine that. I have read a couple attempts (one tending toward one extreme, one tending to the other), which left me unpersuaded. The only thing I can say I feel confident of at the moment is that as a practical, prudential matter, the allowable degree of pain can well depend on circumstances and conditions. In a time like ours when we have come fairly close to defeating both grave and minor pain throughout society, (even short term) moderately severe pain that is theoretically avoidable is looked on as a horror; whereas, in an earlier time when serious pain was more of a commonplace, short-time severe pain was not looked on as such a horror.

But at the same time, regarding ANY degree of pain, clearly a short-lasting pain is more acceptable in principle than a long-lasting one, and it is still true that any person might be expected on occasion to submit to fairly severe pain for a short time when it is reasonably necessary for a good purpose, a purpose that he embraces. (Childbirth pains come to mind, as well as the pain of putting a dislocated shoulder back in place. These are not considered "torture".) One might suggest, then, a rule of thumb as an initial guideline: an amount of pain that does not represent, to the common man, something akin to torture, i.e. is willingly supportable for a short time by the normal person in conditions that warrant it, is not "too much" to use for DP. It seems (to me, anyway) irrational to suggest that when a doctor says "we need to push that shoulder back in place, and it's going to hurt, a lot, but just for a few seconds, are you OK with that?" and the (innocent) patient can say "yes, go ahead" and grits his teeth, that we cannot impose a comparable sort of pain on a murderer for a few seconds to accomplish his death. How could a we ask a man to willingly accept the former, and not be willing to demand the same of a convicted murder who, by accepting his death, accomplishes expiation for such a grave crime?

So, what I am suggesting is that we can be quite confident that imposing a form of DP that involves a short term pain, even a rather strong pain, is morally licit, even if we are still in doubt as to the upper limit that is allowable, and even if we remain uncertain as to the best way to set forth the principles that would tell us about that upper limit.

I just stumbled across this site. Very interesting. I want to respond to the Ed.'s comments regarding the death penalty, and specifically the first two reasons he cites in support of DP.

1. "First, we have the direct and explicit testimony of the Scriptures, where God repeatedly takes the lives of humans as punishment..." What God can do and what we, as his creation, are allowed to do are not identical. God brought forth life can end it without having to answer to us. As Ed. rightly points out, examples of this are replete in scripture. Nevertheless, we are bound by the means of grace, but God is not.

2. "Jesus tells us, 'nobody takes my life from me, but I lay it down of my own accord.' Jn 10:18." Ed. argues that Christ, by allowing the Romans to kill him via capital punishment, implicitly allows DP, lest he be accused of using a sinful thing to mete out his divine purposes. This argument fails on multiple levels, not least of which relates to point 1 above. Christ, who is God, is not bound by the means of grace. He is the instrument of grace, not its successor or inheritor. But more importantly, God routinely uses what, to our limited and sinful perspective, appears sinful. But if God decrees an action, it cannot de facto be sinful. If God decrees that his providence is achieved through what appear to us to be sinful means, so be it. Adam and Eve's downfall into sin led to the coming of the Christ. Did God decree this from all eternity? Catholic theology has always insisted in the affirmative. From our perspective, then, it appears that God used something sinful to realize his divine purposes. So be it. The distinction between what God allows and what he decrees is not always clear to us, by design.

In other words, Ed.'s reasons for supporting DP, by arguing that Scripture or the witness of Christianity allows for the taking of a life, is to misread both Scripture and the true witness of the Christian faith. Conspicuously absent from Ed.'s comments are those verses that challenge his position. With all due respect to GKC, who is my hero, too, he was wrong in his defense of war and the death penalty. After all, he was not God, as some are keen to believe.

M&M, thank you for considering and responding to my arguments. You make your points well, and especially in your first argument, your point holds a lot of validity: what is allowable to God is not the same as what is allowable to man.

Nevertheless, I did not wholly mean to limit the "testimony of the Scriptures" to what God himself does to execute evil men. I meant it to include all those places (literally dozens in Exodus, Numbers, and Leviticus) where God told the Israelites that they should put evil-doers to death. Sorry if I was unclear, and I see now that I should have included at least some of these examples in my argument.

Importantly, I believe that Genesis also points the same way. Some people argue that well, when God told the Israelites to execute criminals, that was God's "doing it", just through human instruments, whereas we are no longer under the Law of Moses and so we don't have God telling us to use the DP. However, I believe that Genesis indicates that the DP is part of the natural law, and just as God incorporated the natural law into the last 7 Commandments, he incorporated the natural law into the punishments as well. When Genesis at 9:6 has God telling Noah that the death penalty is applied by the hand of man (and thus not only by God), this is not the first but the SECOND time that death as punishment for murder is pointed at. When God calls Cain to account (Gen. 4:10) for murdering Abel, and God curses not only him but even the ground upon which he works, he exclaims:

Behold, You have driven me this day from the face of the ground; and from Your face I will be hidden, and I will be a vagrant and a wanderer on the earth, and whoever finds me will kill me.

God does not demur and say "They will KILL you? Who said anything about that? I never gave them the right to do that! He does not demur AT ALL about Cain having spoken the truth. So we must accept the truth of Cain's claim. If this is the first time murder has reared its ugly head, then Cain could NOT POSSIBLY be talking about what is merely current practice regardless of its rightness, he must be talking about what men must naturally think and do in the face of murder - which is to put paid to its evil, by death. Thus God's directive to Noah in Gen. 9:6 is a reference to the natural law, in that it refers to how God made man in man's own nature.

The death penalty is part of the natural law, and God upholds that status throughout the Old Testament.

It is also supported in the New Testament, at the moment of the Crucifixion as well: The Good Thief says (and Christ responds):

'Do you not fear God, since you are under the same sentence of condemnation? And we indeed justly; for we are receiving the due reward of our deeds; but this man has done nothing wrong.' And he said, 'Jesus, remember me when you come into your kingdom.' And he said to him, 'Truly, I say to you, today you will be with me in Paradise'

At this moment of death, God inspires the Good Thief with the inspiration to look His Son, the Christ, and to accept Him and His promises. It is unlikely in the extreme - according to some interpreters of the Bible, almost blasphemous - to suggest that God's inspiration here would be recorded in the Bible with an EXPLICITLY AND DIRECTLY wrong account of the moral law: if the death penalty were not "justly" imposed at all because it is inherently wrong, and if it is NOT the just and due reward for gravely evil crimes, then the Good Thief would not have been inspired to say that and Luke not inspired to record it so. There are also other places in the New Testament that support its being just and right.

Now, you are right to point out that what is allowed to God is not identical to what is allowed for man. God can take the life of an INNOCENT person, whereas man cannot (on his own cognizance, that is).

Nevertheless, the people I am arguing against are the New Natural Lawyers, who have this weird and woolly notion of "basic goods" that "it is always wrong to act against". And, while I have not read them extensively enough to pin-point this, my sense of their argument is that the "it would be wrong" and "always" could not be limited to man's activities, it is _universal_. I.E applicable to God as well. At least, for some of them, even if it's not the general NNL stance all around. So they (at least some) also try to cook up some weird and woolly understanding of "what God does" when things like natural disasters kill people, so that it is not laid at God's account. I reject both their understanding of death from natural disaster, and their understanding of "basic goods" in general, but ESPECIALLY in such wise that it would limit what God is allowed to do to man.

I am happy to be able to say that in your second point you simply mis-construed my argument, and hopefully by clarifying the argument I can dispel your concern. I do not argue that by accepting being put to death by the Romans Christ accepts the licitness of the death penalty. I allow that this would not be a very good argument, because God does indeed allow evils that He has planned to draw good out of. In addition, even if the Roman practice of execution of criminals is licit in principle, it was certainly unjust in that instance when Pilate EXPLICITLY told everyone that he found no fault in the man.

My argument is different, that Christ Himself caused his own death, regardless of what the Romans were trying to do. The Romans did not actually cause his death. Now, as you point out, if Christ as God is not bound to observe the limits of human rules in putting an innocent person to death, this would not have any bearing on the death penalty. But again, I am arguing against a particular thesis by (some) New Natural Lawyers, who have tied their hands to a standard of what is allowed that is very restrictive.

But even aside from that point (related to Christ acting in his Godhead), we still have evidence from Christ that the NNL thesis is wrong. Christ in his human nature was whole and entire, and he has a human will as well as the divine will, though of course his human nature was always in perfect conformity with his divine will - this is implied in the Hypostatic Union. What must be necessary, then, is that Christ in his human will must have perfectly consented to losing his life for the purpose of saving others' souls. And indeed, Christ prophesied just this:

Greater love has no one than this, that he lay down his life for his friends. You are My friends if you do what I command you.…

According to the NNL position, if life itself is a "basic good" in their sense, then losing it is necessarily an evil to be avoided at all cost (short of sin, of course), and thus EVERY MAN MUST BE OBLIGED TO PREVENT IT, if possible. Obligated. It is wrong for a man to consent to lay down his life for any reason, he must never consent, but must always resist. But the perfect harmony between Christ in his divine will and in his human will refutes this thesis: life is not that sort of "basic good".

You are right, M&M, that I do not in this posting tackle all of the places where the New Testament offers reasons to consider (or re-consider) whether the DP is approved. It's true, this post was reserved to a very narrow point. I HAVE tackled some of those points, in other places, though. One of them is here:


Moreover, I hope in a month or two to put up a new posting on the DP that does this more comprehensively or systematically. I am not sure if I will manage it - kind of depends on some factors not under my control that may take up all my time. But keep coming back to see, please. I welcome your thoughts, you have clearly both taken my arguments seriously, and quite reasonably disputed them, both of which I strongly appreciate. I wish others would do the same. God bless you.

[And by the way, I base none of my arguments or citations of "authority" on GKC.

Also, at this site there are several contributing authors (see the list in the sidebar at the right), myself included, and while we all generally serve in an editorial capacity overall, since there are several of us we usually keep straight who is making a point by reference with a name rather than "Ed." Happily, (to limit confusion), I am the only Tony who normally uses that name in posts and comments here. ]

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