Sunday, October 29, 2017

McClamrock on By Man shall His Blood Be Shed


At Today’s Catholic, David McClamrock reviews By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.  It’s a somewhat mixed review.  On the one hand, McClamrock acknowledges that:

The authors do make, and effectively support, many points worthy of serious consideration.  Among them, are in brief: Catholics are not required to favor the abolition of the death penalty.  The church has consistently taught that capital punishment is legitimate in principle, while often pleading for mercy in practice.  Death is a deserved and proportionate punishment for the worst murderers.  The credible prospect of the death penalty prevents crimes and saves lives... Numerous arguments for abolition of the death penalty are weak, ill-founded or even downright stupid

By exploding the view that extreme anti-death-penalty absolutism is the only authentically Catholic position, the work of Feser and Bessette may be helpful in recovering a well-balanced view of capital punishment.

End quote.  So far so good, and frankly I’m pretty much satisfied by even a critical review that acknowledges that much.  Mission accomplished. 

Still, McClamrock is not entirely happy with the book.  He also writes:

If only the authors had stopped after making points like these.  Alas, they didn’t.  Not satisfied with saying that death may be a suitable punishment for the worst crimes, they assert that no punishment less than death would be severe enough as retribution for such crimes.  The authors provide no support for this claim, however.  Worse yet, despite many references to the teaching of St. Thomas Aquinas, they ignore the parts of St. Thomas’s teaching that contradict their claim.

End quote.  Before continuing, it should be noted that this is a puzzling accusation.  McClamrock has already acknowledged that we make a serious case for the claim that “death is a deserved and proportionate punishment for the worst murderers.”  But to show that death is a proportionate punishment for the worst murders just is to show that it is of the right degree of severity.  And into the bargain, we quote a passage from Aquinas in which he insists that proportionality involves an appropriate degree of severity.  So what’s the problem?

The problem, in McClamrock’s view, is that we don’t pay sufficient attention to what Aquinas says about mercy, and that we claim that death is the minimum sufficient penalty for some crimes when in fact all Aquinas thinks (according to McClamrock) is that it is the maximum appropriate penalty. 

However, while it is true that we don’t quote the specific passage McClamrock cites, nothing we say is incompatible with it.  McClamrock himself acknowledges later in the review that we do not claim that someone deserving of death must be executed.  He acknowledges that we claim only that there is a presumption in favor of execution, that this presumption can be overridden, and that it can be overridden for moral reasons, specifically, including a concern for mercy.  So, again, what’s the problem?

Nor does Aquinas actually say, in the passage cited by McClamrock, anything about whether proportionality has to do with a minimum or instead merely a maximum degree of severity.  What he does say is that “God acts mercifully, not indeed by going against His justice, but by doing something more than justice” (emphasis added).  That does not entail (contrary to what McClamrock appears to think) that justice does not in fact require death as the minimum deserved punishment for certain sufficiently grave crimes.  (After all, when St. Paul says that the wages of sin is death, he doesn’t mean merely that death will be the maximum punishment we can get for sinning.)

What is meant, I would argue, is rather this.  Securing retributive justice is subordinate to yet higher ends such as maintaining the good order of a community and securing the salvation of souls.  Now, often, making sure that retributive justice is done (including the infliction of the death penalty) is exactly the best way to realize those ends.  But there can also be cases where robotically securing retributive justice would not be the best way to realize them, so that mercy is called for. 

(There is an analogy here with the body.  There is a presumption against amputating any part of the body, because in the normal case to do so would work against the good for the sake of which the body parts exist.  However, if a body part is diseased this presumption is overridden, and refraining from amputating it would undermine rather than further the good for the sake of which the part exists.  Similarly, in general we should not give people less than what they deserve, but there may nevertheless be cases where we ought instead to show mercy, precisely because doing so would be a better way to realize the end for which the practice of giving people what they deserve exists.)

So, in showing mercy, God does not “go against” justice, because justice itself serves a higher end, and mercy is shown when it would be the best way to secure that higher end.  Mercy, in other words, is in that case the best way to realize what justice itself is aiming at.  God is doing “something more” than justice precisely insofar as he is acting in light of the end for which justice itself exists, rather than focusing merely on what justice considered all by itself would call for.

So, the question of minimum versus maximum degrees of severity simply isn’t what is at issue, and therefore there is no conflict between what Joe Bessette and I say and what Aquinas says. 

So, so far, I’m not sure that McClamrock really disagrees with Joe and me substantively.  When matters of terminology and exegesis are clarified, we might be saying more or less the same thing.  However, McClamrock also says one further, and puzzling, thing when he comments on Genesis 9:6 (“Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image”).

McClamrock says that the reference to human dignity in this passage still applies today, but not the reference to capital punishment.  Why not?

Well, first, he says that in the Old Law, we need to distinguish between moral, judicial, and ceremonial precepts, and that only the moral precepts are still in force.  So far so good.  But so what?  The sanction in Genesis 9:6 precedes the Old Law.

But second, McClamrock acknowledges precisely this. Genesis 9:6, he writes, is part of “God’s command to Noah… [which] existed before the Old Law.”  So, so far still so good.  But then, what’s the problem?  What does the Old Law, which came later, have to do with anything?

Well, according to McClamrock, just this. The command of Genesis 9:6:

was later included in the Law…, and is identical in substance to the corresponding precept of the Old Law in Exodus 21:12, “Whoever strikes a man so that he dies shall be put to death.” As the judicial precept of Exodus 21:12 is no longer in force, neither is that of Genesis 9:6, even though it was first instituted before the Law.

End quote.  Now, I have to admit that I find this argument simply baffling.  How does the fact that the command to Noah was incorporated into the Old Law entail that it is no longer in force once that latter law is no longer in force?

Compare: The precepts that murder is wrong, and that we are obliged to honor our parents, were part of natural law before the Old Law came around.  Later they were incorporated into the Old Law.  Does that mean that they are no longer in force now, no longer part of the natural law, since the Old Law is no longer in force?   Of course not.  The natural law remains in force regardless of whether or not its elements come to be temporarily incorporated into either divine law (e.g. the Old Law) or human law.  But by the same token, the fact that the command to Noah was incorporated into the Old Law simply does not entail that it is no longer in force after the Old Law is abrogated.  It too remains in force (for all McClamrock has shown) apart from whether or not it is temporarily incorporated into divine law (e.g. the Old Law) or human law.

(Note for those readers who may be wondering: Yes, responses to the latest from Brugger and Fastiggi are forthcoming soon.  Stay tuned.)

15 comments:

  1. Another analogy could be God tolerating evil. Obviously it'd be wonderful if God would miraculously intervene to make it the case that less evil abounded but yet it does to bring about more good.

    ReplyDelete
  2. Good post. Your reply to Brugger will be especially interesting considering that he reverses some of the positions he held in his book.

    ReplyDelete
  3. I am sympathetic to what Feser is trying to do, namely, push back against the errors of those who treat the death penalty as intrinsically evil. But it's truly perverse for a Christian to make an analogy between mercy and amputation. For a Christian, the presumption would be for mercy, as a positive good, one *preferable* wherever possible rather than only used as a last resort, whereas amputation is the infliction of a physical evil to prevent a greater one.

    ReplyDelete
    Replies
    1. Well, naturally they are not similar in every respect. Don't forget, though, that punishment qua the restoration of the right order of things is a good for Aquinas. Hence in showing mercy we are sacrificing something good for something better, just as in the amputation case (sacrificing the good of preserving the organ for the higher good of preserving the organism). So the analogy is not quite as remote as you suppose.

      Delete
  4. If capital punishment is acceptable, what about corporal punishment? If it is morally acceptable to kill a convicted criminal, what if we just decided to give him five hundred lashes instead? Surely that would be more merciful than killing him?

    Is capital punishment morally acceptable for crimes that don't result in loss of life? Rape? Armed robbery? Theft? Heresy? All are crimes which have historically been subject to the death penalty by Catholic states. The Papal territory of Avignon beheaded Ferrante Pallavicino for blasphemous humour – does it therefore follow that the Church teaches the moral acceptability of the death penalty for blasphemy? If there is a case against the death penalty for blasphemy today, is it based on moral principle, or is it purely prudential?

    If it is morally acceptable to execute the thief, what if we just chop off his or her hand instead? Surely that is more merciful?

    If a murderer murders someone in a cruel and painful manner, is it morally acceptable to execute them in an equally painful manner? If a murderer burns their victim to death, is it morally acceptable to execute them by burning?

    If a perpetrator throws acid in the victim's face, blinding and severely disfiguring them, would it be morally acceptable for the court to order a splash of acid to the perpretrator's face as punishment?

    Many of these questions are not just theoretical: a number of Islamic regimes impose these sorts of punishments even today. If we believe they are immoral, it is right for us to speak out against them; if we conclude they are moral, we should shut our mouths and let them do their grissly business in peace.

    ReplyDelete
    Replies
    1. Man, buy a copy of Fesers book. You would not be making those stupid questions if you did so

      Delete
  5. E.Feser: "Before continuing, it should be noted that this is a puzzling accusation. McClamrock has already acknowledged that we make a serious case for the claim that “death is a deserved and proportionate punishment for the worst murderers.” But to show that death is a proportionate punishment for the worst murders just is to show that it is of the right degree of severity."

    I think that in the quote there is a clue to the basis of his objection (and, from what you've siad, mispreresentation) -- "Not satisfied with saying that death may be a suitable punishment for the worst crimes, they assert that no punishment less than death would be severe enough as retribution for such crimes."

    It's that word, "retribution" -- people infected by the leftist presuppositions (which is most people, these days) are fine with punishment ... just so long as the punishment isn't retribution.

    But, of course, the only way to square that particular circle is to "punish" those who do not deserve it.

    ReplyDelete
  6. What is the definition of mercy? I get the sense that some of the death penalty abolitionists are not using the term correctly.

    For example, what is the difference between mercy and leniency?

    Does mercy presuppose repentance on the part of the guilty?

    ReplyDelete
    Replies
    1. Ian, while I don't have a pair of definitions to distinguish between leniency and mercy, I can suggest a clear example that shows a difference. A father that always lets his son get away with breaking the rules without punishment is being lenient, not merciful. Mercy undertakes to consider the real welfare of the person being treated, and a father who only looks at the immediate benefit to the kid (not having to suffer punishment) and not to the kid's long-range good (learning limits, understanding the idea of putting the common good ahead of your own preferences, and becoming habituated to the virtue of obedience) is not exercising mercy.

      Broadly speaking, someone in authority can be merciful in deciding how to dole out justice by taking into account not only the just result in the narrow detail, but also looking at the larger picture and seeing how justice fits in to the whole common good - and finding that in some cases the just result does not advance the common good as much as mercy. It would be a very strange moral universe if justice did not usually constitute the best way to pursue the common good. And so we should expect that usually, deciding on the just punishment (and also the just reward) is best conformed to the common good.

      Delete
  7. The conversation about the Genesis passage strikes me as a bit confused. The commandment in question is already a part of Divine Law, not natural law; it is part of the Noahic covenant established by God following the flood with Noah and his descendants. This covenant was not, of course, a part of the Old Law, the Mosaic covenant established at Sinai, but it was still an instance of special divine legislation, just like the Old Law, and contained precepts, like the ban on consuming animal blood, that are clearly not a part of natural law as such.

    Many Jewish commentators saw the Noahic covenant as remaining in effect for Gentiles following the promulgation of the Mosaic covenant; and some Christians have seen this reflected in the command of the Council of Jerusalem for Gentile Christians to abstain from eating blood even while not keeping the Mosaic law. The Catholic Church in the West, though, has always considered this to be a temporary matter of Church law, no longer binding on the faithful, so it seems impossible to avoid the conclusion that the Noahic covenant, and the special acts of divine legislation contained therein, is superseded, like the Mosaic law, by the New and Eternal Covenant of Christ.

    I'm not trying to deny that this divine commandment (to punish murderers with death) is grounded in natural law and justice. Certainly it is, as the Church has always affirmed. Still, I don't see how it's possible to take this specific divine *commandment* as still in force as law in the New Covenant. What is binding on Christians in this matter is not this specific divine commandment of the Noahic covenant, but natural law and the actual divine law of the Church.

    ReplyDelete
    Replies
    1. The Noachic covenant is considered by Jews what Catholics call "natural law." Not only are the laws of the Noachic covenant binding on everyone, not just Israelites, but they are considered to be restatements of principles implied in Genesis 2 which are incumbent upon all human beings.

      Delete
    2. Captain, I second Tim's comment that the Genesis 9:6 is part of the natural law. The telling point is the rationale given: "for man is made in God's image". This explanation roots the punishment in man's own nature. It sends us right back to Genesis 1:26, the making of man in God's own image. It is man's nature that is the foundation of man's intellectual capacities, his free will, his moral responsibility, and his orientation toward love of God. These are all part of the "dignity" of man, because they are all implied in man being made in God's image. When God says that the murderer shall be killed, He also is saying that this punishment is right because of man's nature.

      Delete
  8. So, in showing mercy, God does not “go against” justice, because justice itself serves a higher end, and mercy is shown when it would be the best way to secure that higher end. Mercy, in other words, is in that case the best way to realize what justice itself is aiming at. God is doing “something more” than justice precisely insofar as he is acting in light of the end for which justice itself exists, rather than focusing merely on what justice considered all by itself would call for.

    Consequentialism?

    ReplyDelete
  9. Dr. Feser,

    This is where I anticipate the debate is going to go:

    1) In your book, you mention how even if Brugger is correct that the liceity of capital punishment is reformable, that does not mean he can hold the position legitimately since he should defer to all of the prior teaching of Popes, catechisms, etc.

    2) Brugger and others will point out that Pope Francis is moving closer to teaching his own view, which will make it legitimate to ignore the prior teaching of Popes and catechisms.

    3) They will argue that capital punishment is ONLY ever allowed even in principle as self defense. It is NEVER PERMITTED for the purpose of securing retributive justice. They will say that you cannot demonstrated that the ancient Church believed in capital punishment for retribution. They will say this is a medieval view, developed by Aquinas, but not part of the Tradition handed down and something that can change as our understanding of morality develops.

    In short, we have our work cut out for us, but I think you are on the correct side here, and I will continue to present and defend your points.

    ReplyDelete
  10. was later included in the Law…, and is identical in substance to the corresponding precept of the Old Law in Exodus 21:12, “Whoever strikes a man so that he dies shall be put to death.” As the judicial precept of Exodus 21:12 is no longer in force, neither is that of Genesis 9:6, even though it was first instituted before the Law.

    Potentially, McClamrock's thesis might hold a little bit of water if the specific directive of Genesis 9:6 were taken to be a Divine command outside of the natural law. If it were comparable to the Divine Laws in the Mosaic judicial or ceremonial law in its "jurisdiction" (so to speak), it would be repealable by a later law. But since it is actually part of the natural law, it is not repealed by later law, and it remains in force so long as man's nature remains what God made us in Genesis 1.

    May I further point out that the argument that it is part of the natural law has been in play for many, many centuries, and this attempt seems to be a rhetorical ploy to just sidestep that argument altogether and merely assume otherwise. Which is hardly cricket. If McClamrock realistically thinks he can defeat the argument that it belongs to the natural law, he should do that, rather than trying to do an end-run around the problem.

    ReplyDelete