Over at Public Discourse, Chris Tollefsen has replied to my most recent contribution to our ongoing exchange over the death penalty. (Go here for links to the earlier parts of the exchange.) Tollefsen claims that I have not adequately addressed his arguments against capital punishment. Echoing liberal political philosopher John Rawls’s conception of justice as “political, not metaphysical,” Tollefsen insists that just punishment, in particular, ought to be construed as political rather than metaphysical. That is to say, it is a means of “restor[ing] a kind of equality between citizens that the criminal’s overly self-assertive act(s) of will had disrupted,” and not a matter of inflicting on criminals something that they “deserve… in some absolute sense.” The trouble with my position, Tollefsen says, is that it is metaphysical, a matter of looking at justice “from the point of view of the universe, not of the state.”
A political conception of retributive punishment makes somewhat softer claims about merit and proportionality than Feser does. Merit is… necessary in this sense: punishment should only be done to those who are guilty of the assertion of will that punishment redresses. Hence, if not deserved (merited), punishment should not be inflicted. Proportionality, too, is somewhat softened by contrast with Feser’s account. Feser supposes there is a precise, or specific, amount of punishment that is merited by the criminal and that ought, barring practical considerations and considerations of mercy, to be exacted. The cosmic scales are finely tuned.
But political scales—not so much. The degree to and way in which a criminal’s will ought to be restricted does not seem, even in principle, subject to such a fine-grained assessment…
Now, this gives the impression that the difference between Tollefsen and me is this: I (so Tollefsen implies) am defending the claim that the state should strive to realize cosmic justice, which is why I defend capital punishment. Murderers and the like deserve death in an absolute, metaphysical sense; the state is supposed to inflict on offenders what they deserve in this sense; so the state ought to execute murderers and the like. Tollefsen, by contrast, regards punishment as a means of upholding what he called in an earlier piece “a political community” which is “constituted by an ordering of the wills of the community’s members.” Since it has a merely political, this-worldly end, punishment is for Tollefsen not concerned with inflicting on wrongdoers what they deserve in some absolute metaphysical sense, but merely with restoring the order of the political community. And capital punishment (so the implied argument might seem to go) is not necessary in order to realize this political end. Since I did not address these differences over political philosophy in my earlier essays, Tollefsen complains that I have not adequately addressed his arguments.
Now Tollefsen and I do indeed deeply disagree over matters of general political philosophy. I regard the state as a natural institution rather than as something “constituted” by “the wills of the community’s members.” (Tollefsen here makes what many of us traditional natural law moralists regard as an unnecessary and unwise accommodation to Kantian liberal orthodoxy. In fact such accommodation is not atypical of the so-called “new natural law theory” that Tollefsen represents, but that is a subject for another time.) But getting into these matters is not in fact essential to the dispute between us, as the rest of Tollefsen’s latest essay makes evident. That (together with the fact that I was laboring under a word limit!) is why I did not address them in my Public Discourse articles.
Tollefsen does, in any event, distort my position. I do not claim that the state ought, in general, to try to realize cosmic justice. Nor do I deny (contrary to the impression Tollefsen gives in his latest article) that there are aspects of the law that ought to be determined by “custom, prior commitment, or other considerations.” My position is rather that what Tollefsen calls “metaphysical” justice is a necessary condition for just punishment, even if it is not a sufficient condition. The state cannot perfectly realize cosmic justice and should not try to; all the same, the state should not inflict a punishment on a wrongdoer unless in some cosmic or metaphysical sense he does deserve it.
So, consider, on the one hand, a murderer, and on the other hand, someone who routinely lies to his spouse and friends. Both of them deserve punishment in an absolute sense. Now the state obviously has a reason to punish murderers (whether or not we think they should punish them with death) because murder is destructive of the very possibility of a political order. But the state has no business punishing ordinary liars as such (except in cases of perjury and the like, where what is against the law is not lying per se but a specific kind of lying), because doing so is not necessary to maintaining political order and would even undermine it, given how draconian enforcement would have to be. So, desert in an absolute sense is not a sufficient condition for the state’s punishing someone. But it is a necessary condition -- the state can punish a murderer only because he deserves punishment, even if considerations additional to desert also play a role.
But Tollefsen, it seems, essentially agrees with this. For he goes on to write:
Of course, such determinations [of what punishments are allowable] must be made within the scope of what is otherwise morally permissible, what the natural law requires; and if the natural law, as a matter of deduction, and not determination, requires that one never intentionally kill, then that choice is ruled out of the range of determinations one might make regarding punishment.
The real reason Tollefsen objects to capital punishment, then, is not that it plays no role in a purely political conception of justice. It is rather that he thinks it is wrong in an absolute sense (indeed, we might say a cosmic sense). Tollefsen believes, no less than I do, that questions of politics and punishment must be settled within boundaries set by natural law, even if we disagree about the grounds and content of natural law. All the “punishment is political and not metaphysical” stuff is thus really irrelevant at the end of the day -- which, again, is why I ignored it in my earlier pieces.
So, why in Tollefsen’s view is capital punishment inherently wrong? Yet again, it seems to me, he fails to give us a non-question-begging answer. Tollefsen says, rightly, that a murderer does wrong even if he does not succeed in killing his victim. The reason he does wrong, I would say, is that he has willed to kill an innocent person, and such willing is bad intrinsically, even if the murderer’s will is frustrated. Tollefsen says that the reason he does wrong is that he “wills contrary to the good of life.” And that, of course, is why Tollefsen thinks capital punishment is intrinsically wrong, for it too involves willing contrary to the good of life.
But why is it always wrong to will against the good of life? Tollefsen writes:
Here is a core aspect of my approach to ethics that seems to differ from Feser’s: I think that morality is ultimately a matter of the heart—of the will of the agent. What is the standard by which that agent’s will should be guided and measured? It is the standard provided by the various basic or fundamental goods of the human person, those goods that are constitutive aspects of every human person’s well-being and fulfillment, such as life, knowledge, or friendship. That standard, when reason considers all the goods, in their bearing on all beings who, like us, are fulfilled in those goods, is one of openness: agents should promote and protect as possible all the goods in all persons; and agents should never will contrary to the goodness of those human goods, by a choice deliberately to damage or destroy an instance of one of those goods in a person.
All of this presupposes Tollefsen’s “new natural law” approach to ethics, which, as a traditional natural law theorist, I reject. But even apart from that, there is the question of why no instance of what “new natural lawyers” call a “basic good” can be damaged or destroyed. I argued in my previous piece that the principle of proportionality itself gives us reason to conclude that the good of life can, even if basic, legitimately be taken from someone if he is guilty of serious enough crimes. Tollefsen does not really answer this point. He gives the impression in the first part of his current article that drawing a distinction between political and metaphysical considerations suffices to answer it, but as we have just seen, it does not. For Tollefsen himself agrees that questions about what forms of punishment can and cannot legitimately be employed for the sake of upholding the political order must be answered within the absolute boundaries provided by natural law, which (I assume Tollefsen would agree) are deeper than the political order.
Now, I would say that the principle of proportionality is itself part of the more fundamental, natural law framework, not merely part of the political order to be built within this framework. Hence, if he is satisfactorily to answer my argument, Tollefsen owes us an explanation, either of how his position on capital punishment squares with the principle of proportionality, or of why that principle should not be considered part of the natural law framework but only part of the secondary, political order constructed within it (if that is what he believes).
Tollefsen also tells us that there is in both Christian thought and natural law theory a presumption against killing, so that “intentional killing requires a special justification.” I agree, but I also hold that the principle of proportionality shows that that presumption can be overridden. Tollefsen’s response is that “the presumptive starting point is one of absolute opposition to intentional killing of beings created in the image of God, for which exceptions must be earned.” But there are two problems with this statement. First, it is false, or at least question-begging. As Tollefsen himself would have to admit, the Christian and natural law traditions have historically almost universally supported the legitimacy of capital punishment, at least in principle. Tollefsen thinks they are wrong to have done so, but he can hardly present his own absolutist opposition to capital punishment as if it represented “the” natural law and/or Christian position, at least not without begging the question.
Second, Tollefsen’s assertion here is in any event simply nonsensical. If there is a presumption of “absolute opposition” to capital punishment, then by definition there is going to be no way to “earn exceptions” to it; while if exceptions can be earned, then the presumption is not in favor of absolute opposition!
I also noted in my recent piece that Tollefsen gives us no good reason to think that freedom (which he admits can be taken from a wrongdoer) is not as basic a good as life, and thus no good reason to think that taking a wrongdoer’s life is any less legitimate in principle than taking away his freedom is. In response, Tollefsen distinguishes between “the capacity for freedom” and “the exercise of freedom.” The former, he says, can never legitimately be taken away, but the latter can be, and that is, he thinks, sufficient to explain why a wrongdoer’s freedom can be taken away while his life can never be -- and thus to save his position from the arbitrariness of which I accused him.
But there are two problems with this move. First, it has implications that I suspect Tollefsen would not be happy with. Suppose it were suggested that instead of executing murderers, we put them into suspended animation, as in the movie Demolition Man. Neither their lives nor their capacity for free action would be destroyed. It is merely their exercise of that capacity that would be taken from them. Or suppose we kept them in solitary confinement in a small space for the entirety of their lives -- again, thereby preserving both their lives and their capacity for freedom, and taking away (at least to a very great extent) only the exercise of the latter. It would be interesting to know whether Tollefsen would regard such harsh punishments as intrinsically wrong and contrary to human dignity (as I suspect he would). If so, it is hard to see how he could defend such a claim, given that it is only the capacity for freedom, and not its exercise, that we can never in principle destroy.
Nor would it do for him to suggest that such punishments would be intrinsically wrong insofar as they frustrated the pursuit of other “basic goods,” such as skilled work, play, aesthetic experience, and the like. For one thing, ordinary imprisonment frustrates the pursuit of these goods at least to a great extent, but Tollefsen is not opposed to ordinary imprisonment. For another, even though (unlike ordinary imprisonment) suspended animation or solitary confinement in a small space would completely or very largely prevent the pursuit of these goods, it is still only their pursuit and not the capacity for their pursuit that is taken away. And if preserving a capacity while frustrating its exercise is not intrinsically wrong in the case of free action, it is hard to see why it would be intrinsically wrong in the case of work, play, aesthetic experience, etc.
(It would be helpful in determining what exactly he thinks is and is not consistent with human dignity if we knew whether Tollefsen holds, as some other opponents of capital punishment do, that even life imprisonment is contrary to human dignity. But though I raised this question in my earlier piece, Tollefsen has not answered it.)
A second problem is that Tollefsen’s distinction between the capacity for freedom and its exercise does not seem to sit well with other arguments typically given by “new natural lawyers.” For example, such writers argue that masturbation, fornication, homosexual acts, etc. are intrinsically wrong because they are contrary to the “basic good of marriage,” as that is defined in new natural law theory. But if Tollefsen is right, it seems that we could distinguish between the capacity for the basic good of marriage and the exercise of that capacity. And while acts of the sort in question are contrary to the exercise of this capacity, they leave the capacity itself intact -- in which case, by analogy with what Tollefsen says about freedom, they would not be intrinsically wrong after all (or at least not intrinsically wrong by virtue of acting against a basic good).
Now Tollefsen might reply that such acts indirectly damage the capacity itself insofar as they make it psychologically more difficult to exercise it. Our capacity to realize the “basic good of marriage,” he might say, will be damaged by indulgence in acts of the sort in question. But something similar could be said of taking away a criminal’s exercise of freedom, insofar as imprisonment can make one less capable of independent action. Being directed by and dependent on others, the prisoner’s capacity for self-direction will at least be blunted, in some cases seriously. (Think of the fate of the character Brooks in The Shawshank Redemption -- a movie no doubt beloved of opponents of capital punishment.) And yet Tollefsen does not deny that imprisonment is legitimate.
In short, it seems the capacity/exercise distinction can help Tollefsen get out of the difficulty freedom of action poses for his critique of capital punishment only by leading him into problems elsewhere in his overall “new natural law” program.
As most readers no doubt realize, in the area of sexual morality, I do in fact agree with the conclusions that the “new natural lawyers” defend; I just don’t think their arguments for those conclusions are any good. (The right approach to sexual morality is in my view the traditional, Scholastic natural law approach, which I summarize in chapter 4 of The Last Superstition.) Unfortunately, in the case of capital punishment, they don’t get even the conclusion right.