Thou Shalt Not Kill

Well, here's a puzzle. Jamie over at Ad Limina Apostolorum has a post up on Joseph Bottum's First Things article on the death penalty from a couple months back. Jamie strongly endorses Bottum's conclusion, but he also endorses Bottum's argument for that conclusion.

It is not necessary to do both, of course. I fully agree with John Paul the Great, Benedict XVI, and others, that the death penalty is not a penalty that we ought to use. There is no doubt, however, that the Church does not deny the moral licitness of the penalty in principle. What John Paul the Great and Benedict XVI, among others, have denied, is the necessity of the use of the death penalty as a means for defending the common good. This is a prudential judgment, and the faithful are free, within certain very strict limitations, to think otherwise. And since it is permissible to think otherwise, it is, presumably, permissible to think the same thing but for different reasons, provided that those reasons are consistent with the Magisterium.

And therein lies the puzzle, or the worry, if you will. What if you think the same thing, but for different reasons that are not consistent with the Magisterium? Here's how Jamie concludes his essay:
Cardinal Ratzinger in 1996 described the Pope's teaching on the death penalty as a 'development of doctrine'. Part of this development, if Bottum is right, may be a subtle but definitive rejection of the 'argument from justice'.
It is difficult to see how the "argument from justice", as Jamie puts it, can be "rejected" by the Magisterium since the argument from justice is, as a matter of fact, the only argument the Magisterium has ever used to defend the moral licitness of a particular form of punishment. To put it another way: the only possible justification for punishing a wrongdoer is that the wrongdoer deserves the punishment meted out to him. For example, if we were to apply the death penalty on the grounds that it deters crime (which it most certainly does do, regardless of what many studies appear to indicate, since it deters the person executed from committing any further crimes) then we would be acting prudentially, not morally, and our act would be done in the absence of any argument that the wrongdoer actually deserves to be executed rather than, say, locked up for life.

So while it is clearly the case that the Church's position with regard to the death penalty has, as a matter of fact, developed, it is quite impossible that the Church's teaching regarding any argument from justice is being changed in any way. To make that kind of an argument in support of John Paul's view would be to throw out any possible justification for punishment of any kind. And yet clearly we are required to punish, if only as a matter of fraternal correction.

Jamie's view is particularly puzzling since he bills himself as an "Augustinian"; but St. Augustine was a Platonist, and every Platonist knows that a wrongdoer needs his punishment as much as a sick person needs his medicine. To say that there can be any sense in which a punishment is not "deserved" as a matter of justice is quite out of step with any Augustinianism I am aware of. The question is not whether or not it is a matter of justice that the wrongdoer is to be punished; the question is rather what sort of punishment the wrongdoer deserves, just as the doctor's question is not whether or not to administer medicine to a sick person, but rather what sort of medicine is needed in this particular kind of case.

So the question at issue here should not be, what argument vindicates capital punishment, since we already know the answer to that question: the argument from justice (which ought not to be confused, as it appears to be in Jamie's post, with the notion of a lex talionis). The question ought rather to be, what manner of punishment is it, then, that the capital offender needs/deserves if we have decided that he does not necessarily need/deserve death?

It is tempting here to make a certain kind of mistake---the mistake of thinking that if death is not now necessary as a punishment, it never was. The Church clearly endorses the possibility, at least in principle, that death can be the punishment that is deserved, but of course the necessary and sufficient conditions for deserving death rather than some other punishment have never been codified or established de fide (we know only one of the necessary conditions: death may only be administered in order to protect the common good; but that is a hopelessly vague condition). So it is possible, at least, that death has never been deserved by any wrongdoer. But it is equally possible that some wrongdoers have, in fact, deserved death. And since John Paul's argument was grounded in an empirical matter, it is also at least possible that there are still some wrongdoers who deserve death, since it is possible that John Paul was mistaken in his prudential judgment about the present conditions for defending the common good (though, as I have said, I do not think that he was mistaken).

In reading Bottum's essay, it is tempting to find his argument congenial precisely because one finds his conclusion congenial. But that is a mistake that must be avoided, if we are to remain morally clear. If the conclusion is true, then there must be a sound argument for it; the task is not to rest content with whatever argument happens to stir our hearts, but to look for the argument that compels our assent.


Tom said…
I may not be reading Jamie or Bottum carefully enough, but I think the "argument from justice" Bottum sees as the worst argument for the death penalty is more precisely an argument from "high justice: the attempt to balance the cosmic books, to stabilize a shaken universe."

There remains the argument from "normal" justice, which as Jamie puts it imposes the punishment "necessary to protect society and restrain criminals."

Perhaps instead of the "justice argument," he should call what Bottum opposes the "retribution argument."
Scott Carson said…
Yes, I think you may be right, that Jamie is talking about the view that I called the lex talionis, which I suppose is roughly equivalent to the notion of retributive justice.

I'm not all that sure, though, that retributive justice is really the same thing as justice simpliciter, since different cultures tend to have different conceptions of what constitutes justice. In fact, I would argue that Cardinal Dulles has only got part of the story right when he talks about the reasons why Americans feel one way or another about the death penalty. I suspect that it has a lot to do with Americans being attracted to the notion of retributive justice as normative. At least, whenever one reads interviews (or sees them on the news) with victims of crime there is often a sense that what they have in mind is "payback" of some kind.

But I don't see how that kind of attitude can really underlie any genuine notion of justice per se. I don't know whether you're suggesting that, at least for Jamie or Bottum, "justice" is a genus that can be divided up into species. If so, I would be rather puzzled if someone were to suggest that it could encompass both the notion of justice I have been talking about as the right sort and the retributive sort that appears to be at issue in Jamie's and Bottum's analysis.

This is certainly a complex and interesting issue, though!
Tom P. said…
If deterring crime was a valid reason for justice then we could execute speeders as they cause many deaths each year and executing them would certainly deter others from speeding. But it would not be just to execute someone for speeding. And that is where the argument comes to a head. Is execution ever just? The CCC seems to be arguing that because we have secure prisons we can therefore quit executing people. But this would open up the claim that if our prisons are not secure then executing people is OK. So executions are just as long as we have no other way to protect ourselves. The question then becomes, are our prisons really safe? And what is the true cost of building safe prisons and can that money be better used to fight diseases or feed the poor? Prisoners do escape from prisons even today. 20 years ago, prisoners on death row in Virginia managed to escape and more recently two murderers managed to escape from a prison in Illinois. So if the cost of building truly secure prisons meant that we needed to reduce funding to fight disease, would the death penalty be just?

Also the CCC ignores the question of how does the death penalty promote respect for the justice system? Does a person who justly deserves execution but is not executed lead the general population to believe that there is no justice?

No matter what the Pope may say, I can not think of any reason to think that the punishments meted out at Nuremberg were not just.
Scott Carson said…
No matter what the Pope may say, I can not think of any reason to think that the punishments meted out at Nuremberg were not just.

I don't suppose that the Pope would argue that the executions were not just, only that they were not necessary (if, indeed, he would make the claim that the conditions of the present day also held at that time).

This reminds me of the line from Lord of the Rings where Gandalf responds to Frodo's comment that he wished Bilbo had killed Gollum because Gollum deserved death by saying "many who live deserve death; many who die deserve life--can you give it to them?"

There is one Lord of Life, and I suspect that regardless of what we do, justice gets meted out in the end.
Tom P. said…
I don't suppose that the Pope would argue that the executions were not just, only that they were not necessary...

When is justice not necessary?

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