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C.S. Morrissey – Global Theatre

Capital punishment arguments built on false premises

Voices Aug. 29, 2018

Philosopher of law John Finnis (left) discusses moral philosophy in Gaming, Austria, at the Hildebrand Project’s 2018 Schülerkreis event. (Dr. Christopher S. Morrissey photo)

Critics of Pope Francis on the death penalty seem unable to understand the logic of his clarifying revision to the Catechism of the Catholic Church (number 2267).

The Catechism now explains why the death penalty is no longer appropriate or acceptable.

Briefly, in the words of Pope Francis, “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.”

This is also the key consideration emphasized by John Paul II in his encyclical Evangelium Vitae (number 9): “Not even a murderer loses his personal dignity.”

The philosopher Edward Feser, however, has trouble accepting this teaching (and so do others). In opposition, Feser has given a six-step argument that concludes, “public authorities have the right, in principle, to inflict the death penalty on those guilty of the gravest offences.”

Yet Feser’s argument is unsound if any of its premises are false. Accordingly, he has challenged anyone to show which of his premises are false. He thinks they are all true.

Finnis has accepted Feser’s challenge

Nevertheless, the legal philosopher John Finnis of the University of Oxford has accepted Feser’s challenge. Finnis argues that Feser’s premises in steps three and five are false.

I agree with Finnis. As Finnis makes clear, the Catholic Church could eventually explicitly teach that capital punishment is inherently wrong.

This would entail no contradiction but could be understood as a development and clarification, just as on moral issues like slavery or the denial of religious liberty we have seen development and clarification of doctrine.

Concerning the practice of slavery, or the denial of religious liberty, there is no reversal or modification of past Church teachings, but rather new correct judgments are placed beside earlier correct judgments.

This illuminates the meaning of the past, as well as clarifying present and future thinking.

In the case of capital punishment, the correct judgment about the dignity of every human person is now emphasized. This casts light on the structure of any argument (like Feser’s) that tries to prove the death penalty must always be considered appropriate or acceptable.

Feser’s argument rests on false premises

Feser’s argument rests on false premises, which is clearer when we compare it with a similar argument offered by the philosopher David Oderberg, in his book Applied Ethics.

Oderberg offers an argument for the death penalty that is even stronger than Feser’s formulation. Oderberg, defending capital punishment, draws his conclusion from six premises.

On my analysis, Oderberg’s argument silently assumes two false premises, which makes his argument as unsound as Feser’s.

Feser’s argument at least has the merit of making clearer those silent assumptions upon which Oderberg’s argument depends. But as Finnis has recognized, such falsity renders Feser’s whole argument unsound. I can quickly summarize how Oderberg’s argument likewise fails.

Feser’s first step universally asserts: “Wrongdoers deserve punishment.” In Oderberg, this claim is more carefully asserted in his own first premise as a particular claim: “punishment is sometimes justified.”

Second, Feser argues: “The more grave the wrongdoing, the more severe is the punishment deserved.” Oderberg articulates this idea with two separate premises: “some punishments are worse than others” (premise three) and “the punishment must fit the crime” (premise five, also called “the principle of proportionality”).

In step three, Feser says: “Some crimes are so grave that no punishment less than death would be proportionate in its severity.” Finnis explains why this is false, and Oderberg’s argument helps us to see why.

Oderberg argues, “there is such a thing as the worst possible crime” (premise six), and he silently assumes that the worst crime is punishable by the worst punishment.

But as Finnis recognizes, this silent assumption is clearly false. Mercy is a better option, if forgiveness will change the heart of the guilty and lead to moral transformation. Is this not how God deals with us?

Less severe punishments are not unjust

In any event, less severe punishments are not unjust, especially if they bear witness to human dignity, thereby offering even better possibilities for moral transformation.

Oderberg’s fourth premise, “there is such a thing as the worst possible punishment,” also implies a second silent assumption (which he shares with Feser): the worst punishment is the death penalty.

Yet this second assumption is also false. Perhaps staying alive is a worse punishment, since it entails living under the burden of one’s own unexpiated guilt. What is hell, after all?

Feser says, “Public authorities have the right, in principle, to inflict on wrongdoers the punishments they deserve” (step five), but Finnis is right to call into question the whole idea of granting the state the same power as God.

At least Oderberg is more careful in his formulation of the idea: “sometimes the state has the right to punish an individual, following due judicial process” (premise two). This is true, but in light of the Gospel, Feser’s universally asserted fifth step seems obviously false.

Oderberg cautiously concludes: “there is at least one sort of crime that merits the death penalty.” Yet, as the new revision to the Catechism makes clear, it is better to let God carry out that sentence.

 Dr. C.S. Morrissey is the author of The Way of Logic (China: Nanjing Normal University Press, 2018).