Edward Feser on Capital Punishment

[JimG]

No one will say the sentence.

Edward Feser: Just say the damn sentence already

 

[Londoner]

I agree with the statement, “Capital punishment is not always and intrinsically wrong”, but I know what Feser is trying to do. He uses logic to open the door to a position that doesn’t faithfully represent the current and clearly expressed teaching of the Church.

I think that the scenario that the Church’s teaching has in mind is something like executing a Nazi collaborator in occupied Poland, where neutralising the collaborator is an operational necessity, but there is no state infrastructure capable of containing him, thus leaving no alternative to enforcing the death penalty.

But we know that Feser takes the argument further and says that executing a Nazi collaborator in occupied Poland is not merely a necessary means of protecting the public, but is a just means of exacting retribution upon the offender and expressing society’s condemnation of his actions. We know that Feser strongly supports the death penalty and is troubled by the fact that Catholics are increasingly opposed to it. He wants the death penalty to be used “with some regularity”. He believes, contrary to everything that the Church says, that applying the death penalty promotes a culture of life. He also has a rather snide and sneering tone, accusing Catholics who oppose the death penalty of being glib and simple-minded.

I could go on at length, but I’d rather direct people to this staggeringly brilliant demolition of Feser and Bessette’s book by David Bentley Hart (“unhinged” according to Feser). This hits the nail on the head:

Feser and Bessette are clearly struggling against the inexorable course magisterial pronouncements on this matter have been taking for decades. They twist and turn in every direction trying to evade or relativize the current teachings of the Catholic Church, and acknowledge the authority of those teachings only with extreme qualifications. They do their damnedest to suggest that all of it constitutes no more than a prudential judgment regarding current social circumstances. To no avail. … in the eyes of the Catholic Church, the explicit teaching of the magisterium on matters of faith and morals is universally binding on the consciences of the faithful. And as regards this question that teaching is clearly stated in the Catechism: the death penalty may be permissible solely “if this is the only possible way of effectively defending human lives against the unjust aggressor,” though today, given the facilities available to the state for detaining criminals, such cases “are very rare, if not practically nonexistent” (2267). That is quite unambiguous. The only time execution may be acceptable is when it is otherwise impossible to prevent a criminal from killing again. That means that all the other arguments advanced by Feser and Bessette have already been decisively ruled out by the magisterium as morally insufficient; and this is not going to change. If any position, then, is to be regarded as contrary to Catholic orthodoxy, it is theirs.

 

[VanitasVanitatum]

I can’t think of a good motive for wanting to use the death penalty if it isn’t necessary.

 

[JimG]

I note that Feser also links to an article in the National Catholic Register by Fr. Brian Mullady, OP, about the death penalty and development of doctrine. That article can be found HERE.

 

[Ender]

I agree with the statement, “Capital punishment is not always and intrinsically wrong”…

Given that it is not intrinsically wrong, the decision of when its use is appropriate is prudential, and, as with the question of war, belongs to the State:

…but I know what Feser is trying to do. He uses logic to open the door to a position that doesn’t faithfully represent the current and clearly expressed teaching of the Church.

First, you don’t “know what Fesser is trying to do.” You can only know what he has done, not why he has done it. Second, his arguments are either valid or invalid, and as they have been logically presented require a logical refutation. We’ll see if Hart has done that. As for what position faithfully represents the teaching of the church, that’s what the debate is all about.

We know that Feser strongly supports the death penalty and is troubled by the fact that Catholics are increasingly opposed to it.

I think what troubles Feser, as it does me, are the arguments used by Catholics who oppose it.

Hart: “Feser and Bessette are clearly struggling against the inexorable course magisterial pronouncements on this matter have been taking for decades.”

This at least indirectly acknowledges the real problem: the universal teaching of the church for nearly two millennia has (purportedly) been changed.

Hart: “They do their damnedest to suggest that all of it constitutes no more than a prudential judgment regarding current social circumstances.”

If something is not intrinsically wrong then its use is in fact determined by prudential judgment. Doesn’t that put you on Feser’s side and against Hart?

Hart: “…the explicit teaching of the magisterium on matters of faith and morals is universally binding on the consciences of the faithful.”

But wasn’t the previous teaching of the Magisterium that States had a right to employ capital punishment equally binding? And if today’s teaching repudiates the previous one then one of them must have been in error, which means that we would have been morally bound to believe error. Really?

Hart: " And as regards this question that teaching is clearly stated in the Catechism: the death penalty may be permissible solely “if this is the only possible way of effectively defending human lives against the unjust aggressor,”… That is quite unambiguous. The only time execution may be acceptable is when it is otherwise impossible to prevent a criminal from killing again…and this is not going to change."

Yet it has changed again since Hart wrote his book. Francis changed it, and he did not leave even that exception. The newest new change now says: ‘"…, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”’

It is ironic that Feser’s argument is entirely unaffected by the newest update to 2267 while Hart’s position is obliterated by it.

 

[Ender]

I note that Feser also links to an article in the National Catholic Register by Fr. Brian Mullady, OP, about the death penalty and development of doctrine. That article can be found HERE.

It is worth noting that Feser’s position is based on, and supported by, nearly 2000 years of church doctrines, while the opposition cannot cite anything much more than 20 years old in support of theirs.

 

[goout]

Here’s what everyone forgets when viewing this issue in light of the Church’s moral teaching. (including someone as sharp as Ed Feser! )

The Church’s moral teaching always serves an objective good, and if you don’t start with that objective good as a premise, you quickly get lost in competing assertions.

So, no, the Church does not assert that capital punishment is always and intrinsically wrong.
And at the same time…(that essential Catholic concept…let’s repeat it)
AND AT THE SAME TIME

The death penalty is now, in this day and age, seen as inadmissable.

How can that be possible? Because both ideas serve an objective good: the sanctity of all human life. There are (or were) times when executing dangerous criminals preserved the sanctity of human life.
And now is a time when it’s not necessary to execute a criminal to preserve the sanctity of human life. (And…the criminal’s life is sacred also, much as we’d like to deny it).

And if you refuse to accept that objective good as a first basis for moral teaching, you quickly get into what we have: pointless bickering between agendas.

 

[Genesis315]

I came across the following in a moral theology manual from the 1920s, just to show how this question has been approached in the past:

i . THE right of the State to punish criminals with the infliction
of death is either expressly conceded or clearly supposed in
Holy Scripture. It is sufficiently evident, too, from natural
reason, for the State should be endowed with all those powers
which are necessary to secure its end, the temporal happiness
of its citizens. But it would not be possible to keep human
passion within bounds and ensure the safety of the lives and
property of its peaceful citizens, unless the State had the
power of inflicting death on those who have been guilty of
great crimes. The practice of the most civilized states con-
firms this view, and experience seems to demonstrate its truth.
If the time should ever come when the infliction of less severe
penalties will suffice to punish crime and safeguard life and
property, then capital punishment should be abolished, but
that time does not seem to be at hand yet.

A manual of moral theology for English-speaking countries [microform] : Slater, Thomas, S.J., 1855-1928 : Free Download, Borrow, and Streaming : Internet Archive

 

[John10]

For me capital punishment seems to be more of an “eye for an eye” attitude rather than seeking justice we seek revenge.

That cannot be good.

 

[fide]

Do you hear “revenge” in God’s reasonings here?

Gen 9:5 For your lifeblood I will surely require a reckoning; of every beast I will require it and of man; of every man’s brother I will require the life of man.
Gen 9:6 Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.
Gen 9:7 And you, be fruitful and multiply, bring forth abundantly on the earth and multiply in it."

God’s reason for the death penalty flows not from the judicial limitation of retribution to “equals repaid for equals deprived”, but to maintain due honor for human life, because of the divine image. Man must honor the divine image! Intentional murder of the innocent does more than take one human life: it insults and robs God of one He created and placed in being to be His image among us all.

Honor for human life must be protected.

In contradiction to this dishonoring of God’s image in a human person, we are rather to multiply - to increase - to fill the earth with human persons, His own special gifts to creation.

 

[Ender]

The Church’s moral teaching always serves an objective good , and if you don’t start with that objective good as a premise, you quickly get lost in competing assertions.

One of the key arguments against capital punishment is that it is no longer necessary as a means of protecting the public, one of those objective goods. What this argument ignores is that the church always held that death was a just punishment for certain crimes, and that retribution (retributive justice) is (not was) the primary objective of all punishment. Justice is surely an objective good of the highest order.

So, no, the Church does not assert that capital punishment is always and intrinsically wrong.
And at the same time…(that essential Catholic concept…let’s repeat it)
AND AT THE SAME TIME

The death penalty is now, in this day and age, seen as inadmissable.

It must first be acknowledged that this is a prudential judgment, which is always true regarding the execution of an act that is not intrinsically evil. That being so, as the church teaches about the option of waging war, it is the civil authorities who have the right and obligation to make that decision.

2309 …The evaluation of these conditions for moral legitimacy [of waging war] belongs to the prudential judgment of those who have responsibility for the common good.

The church also teaches that prudential judgments, even those of the pope and Magisterium, do not oblige our assent.

“Prudential” has a technical theological meaning… It refers to the application of Catholic doctrine to changing concrete circumstances. Since the Christian revelation tells us nothing about the particulars of contemporary society, the Pope and the bishops have to rely on their personal judgment as qualified spiritual leaders in making practical applications. Their prudential judgment, while it is to be respected, is not a matter of binding Catholic doctrine. To differ from such a judgment, therefore, is not to dissent from Church teaching. (Cardinal Dulles)

 

[Ender]

“The right of the State to punish criminals with the infliction of death is either expressly conceded or clearly supposed in Holy Scripture”

I don’t think this point gets the attention it deserves. It is Scripture itself that justifies the use of capital punishment. The death penalty can never be considered intrinsically evil, therefore objections to its use can only be prudential.

The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity. (Archbishop Chaput, 2005)

 

[John10]

I think there is a misunderstanding. Naturally God can take any life He wishes anytime, He is the owner of life itself.

However that does mean we are also allowed to do so.

See Mathew 5:38 - 39

There are many ways today to contain evil people so the legitimate use of the death penalty is no longer justifiable.

 

[Ender]

For me capital punishment seems to be more of an “eye for an eye” attitude rather than seeking justice we seek revenge.

It seems we have lost an appreciation for the retributive aspect of punishment, and that justice itself is no longer seen as a great virtue. Despite the repeated changes to the concepts expressed in 2267, there have been no changes to those laid out in 2266, among which are these:

1. Legitimate public authority has the right and duty to inflict penalties commensurate with the gravity of the crime.
2. The primary scope of the penalty is to redress the disorder caused by the offense.

Item one identifies it as a duty of the State to impose a penalty commensurate with the severity of the crime. This is actually a demand of justice, and, properly understood, is an act of vengeance.

Vengeance consists in the infliction of a penal evil on one who has sinned. (Aquinas, ST II-II 108,1)

This is why item two identifies (obtusely) retribution as the primary objective of punishment. Again, it is a matter of justice.

We speak of merit and demerit, in relation to retribution, rendered according to justice. Now, retribution according to justice is rendered to a man, by reason of his having done something to another’s advantage or hurt. (ST I-II 21,3)

Punishment is proportionate to sin in point of severity, both in Divine and in human judgments. (ST I-II 87,3 ad 1)

 

[vsedriver]

The death penalty can never be considered intrinsically evil, therefore objections to its use can only be prudential

I think this is the point people are missing. I don’t believe that the new teaching on the Death Penalty says that it is intrinsically evil. I believe applying the death penalty when there are clear alternatives is an intrinsic evil. Because that is against the Gospel.

But I’m personally against the death penalty unless our judicial system can supply an infallible judge, jury, and prosecutor.

Better that a 100 guilty go free than one innocent person be put to death.

 

[Ender]

I think there is a misunderstanding. Naturally God can take any life He wishes anytime, He is the owner of life itself.

However that does mean we are also allowed to do so.

The church has spoken about this in the past.

I answer that the vengeance which public officers inflict is rightly called the vengeance of God, for they are the ministers of God, serving Him in this very matter. Hence St. Paul, after he had said, “Revenge is Mine, I will repay,” adds, “But if thou do that which is evil, fear; for he beareth not the sword in vain. For he is God’s minister; an avenger to execute wrath upon him that doth evil.” (St Bellarmine, De Laicis, ch 14)

And thus that which is lawful to God is lawful for His ministers when they act by His mandate. It is evident that God who is the Author of laws, has every right to inflict death on account of sin. For “the wages of sin is death.” Neither does His minister sin in inflicting that punishment. The sense, therefore, of “Thou shalt not kill” is that one shall not kill by one’s own authority. (Catechism of St. Thomas)

There are many ways today to contain evil people so the legitimate use of the death penalty is no longer justifiable.

I spoke to this before as a significant misunderstanding of the nature of punishment. Security, the protection of society, is a legitimate objective, but it is only a secondary one. It is the primary objective - justice - that every punishment must satisfy.

 

[Ender]

I don’t believe that the new teaching on the Death Penalty says that it is intrinsically evil.

Nor do I; at least we agree on this (which is no small point).

I believe applying the death penalty when there are clear alternatives is an intrinsic evil. Because that is against the Gospel.

I accept that there can be legitimate prudential objections to the use of capital punishment. I have no problem with practical objections; what I don’t accept is that there are moral ones.

 

[Londoner]

the decision of when its use is appropriate is prudential, and … belongs to the State:

It’s quite a leap to say that the decision of when to use capital punishment belongs to the state. Or rather, if you allow the state to use capital punishment in normal circumstances it will be used much more often than the Church allows. As I read the Church’s teaching, the circumstances in which capital punishment is legitimate are so rare as to be for all practical purposes non-existent. In theory, the state can legitimately choose when to use capital punishment, but in the case of the USA (since we are talking about Feser&Bessette) and other retentionist countries that have a functioning state infrastructure (e.g. China, Iran, Saudi Arabia, Vietnam) the state should not be using capital punishment at all. Capital punishment is to be used as a last resort when the state has lost control or effectively no longer exists.

If something is not intrinsically wrong then its use is in fact determined by prudential judgment.

As I say, the correct prudential judgement according to what the Church plainly says about the subject is that capital punishment should never be used. We don’t have the benefit of having DBH here to ask his opinion, but I don’t think that he would disagree. Saying that capital punishment is not intrinsically and always wrong is basically a caveat to explain how you might for example justify shooting a deserter during the Battle of Westerplatte (which did happen). In fact, I suspect that all conceivable circumstances in which the death penalty could possibly be justified could better be dealt with under the heading of the proper conduct of war (specifically where there is de facto no functioning state) or unjust aggressor scenarios rather than criminal justice.

As for Feser, when I say I know what he is trying to do, I mean that I know what his agenda is. We know that he is a very conservative American, and like a lot of very conservative Americans he supports capital punishment. I’m not a mind-reader, but I know enough about his hobbyhorse about the death penalty that I can reasonably infer what he is trying to achieve. He uses a clever sleight of hand, to which you allude, in that he relies on logic to prove his point rather than using the totality of the evidence available. He deliberately loses sight of the bigger picture because he is so focused on justifying his frankly weird obsession with capital punishment. If you read the whole review by DBH you will see that he comprehensively demolishes Feser&Bessette using his superior knowledge of the Bible, the Church fathers, theology, and history.

What DBH and all the recent popes have identified is that capital punishment is completely inhuman and barbaric and that for all practical purposes its use is now inadmissible. There may or may not still technically exist a loophole that justifies Lawrence of Arabia shooting one of his own troops in the desert, but that cannot be extrapolated to justify the death penalty in the USA, Japan, Singapore, Malaysia, Taiwan, etc.

 

[John10]

We are not perfect, mistakes can and will happen in human judgements / trials.

Are you going to risk innocent people be put to death?

 

[Ender]

It’s quite a leap to say that the decision of when to use capital punishment belongs to the state.

I think it is what the church has always taught.

…he who governs the community, cares, first of all, for the common good; wherefore it is his business to award retribution for such things as are done well or ill in the community. (Aquinas ST I-II 21,4)

… in the case of the USA (since we are talking about Feser&Bessette) and other retentionist countries that have a functioning state infrastructure (e.g. China, Iran, Saudi Arabia, Vietnam) the state should not be using capital punishment at all.

You still have not addressed the point that protection is only a secondary objective of punishment, and that while capital punishment may (the point is debatable) not be needed for protection this leaves unanswered the question as to whether it is needed as a matter of justice, which is the greater concern.

As I say, the correct prudential judgement according to what the Church plainly says about the subject is that capital punishment should never be used.

If it should never be used it would be an intrinsic evil, which we both agree it is not. Second, as I pointed out before, prudential judgments do not oblige our assent, and to disagree with them “is not to dissent from church teaching.”

As for Feser, when I say I know what he is trying to do, I mean that I know what his agenda is.

Despite the fact that we are explicitly prohibited from judging the motives of others, even if you judge him correctly it is irrelevant. His arguments are either valid or invalid, and his agenda is irrelevant in determining which.

If you read the whole review by DBH you will see that he comprehensively demolishes Feser&Bessette using his superior knowledge of the Bible, the Church fathers, theology, and history.

OK, I accept the challenge. I will read the entire review and will respond to the arguments being made.

What DBH and all the recent popes have identified is that capital punishment is completely inhuman and barbaric and that for all practical purposes its use is now inadmissible.

That was neither DBH’s position nor the position of any pope prior to Francis.

We are not perfect, mistakes can and will happen in human judgements / trials.

Are you going to risk innocent people be put to death?

This is a practical objection, not a moral one.