dislocation separations fossil …

apprehensive:Tommie Ilona,…

catalogs misers indefinitely avail:Saul Occidentalized …

The Asinorums make perfectly understandable Buckley’s line, “I’d rather be governed by the first thousand names of the Boston phone book than by the Harvard University faculty.”

In your attempt to philosophize a justification for abolishing the death penalty you are committing four crimes:

1) Not satisfying the crime with the right punishment — failing to follow the clear historical precedence held by many godly rulers. This is a crime in itself. The governor of the modern democracy will be held accountable before God for his lack of executing justice on criminals. You will be held accountable for persuading them philosophically and making them seem they can be good Catholic governors, legislatures, or judges without executing vicious criminals.

2) Not allowing the criminal to make proper satisfaction for his crime in this life, and making his afterlife much worse for him. You will be held accountable for this injustice.

3) Not allowing the criminal the luxury of knowing the certain date and time of his death — thereby giving him a greater opportunity to repent and come to peace with God. Criminals sentenced to life in prison are certainly more likely to die in a state of persistent mortal sin and probably through a quick violent death without the opportunity to repent. You will be held accountable for these souls.

4) Increasing the chance and furthermore enticing the families of the victim to commit vigilantism and murder. You will share in this crime.

All of these crimes will be on the souls of the liberals who have abolished the death penalty and the so-called Catholics who have given them philosophical cover.

To begin with: the feeling of satisfaction we all get when we see the murderer punished, “plain” justice as you call it, is indeed as old as the hills. I’ve acknowledged that, remember? We do all have strong intuitions about what justice demands, and an intense wish to see evil people get their “just deserts” and this is what fuels a lot of the demand for the death penalty. But it turns out that we need to be rather careful about throwing around terms like “plain justice.” Justice is a tricky thing to work out… particularly for us Christians, who also believe in mercy. We can’t just trust our instincts, even strong instincts. It really is necessary to draw some distinctions between different sorts of justice, before deciding what the state can do.

And once we do this consideration, I think Bottum’s distinction is far from manufactured or airy. In fact, it is completely intuitive, “plain as potatoes” as Chesterton would put it. The distinction is between punishing someone for the sake of keeping order, and punishing someone just because he deserves it. We don’t always draw this distinction because so often the two overlap, but in this case, as it turns out, they don’t.

Think about it this way. When trying to define justice, one of the first and most obvious things that occurs to most people is to equate it with fairness, or some kind of balancing. There’s a reason why scales have long been a symbol for justice. But what is being balanced? Well sometimes it involves grievances between people. When adjudicating, say, a property dispute between two people, the claims of the two people are being balanced, and justice is whatever restores the equilibrium between the two of them. Sometimes, as for example in the case of treason, the state is in some sense an “injured” party, and it is the entity against whom the debt needs to be balanced. Then there is the “highest” party that can be offended, which is God. The need for justice before God, the need for the whole universe to be in balance, is, as I’ve said, something we feel very instinctively. Bottum calls it “high” justice because it is justice as it relates to God, and he talks about “cosmic scales” because in a sense it is really the whole cosmos that we feel needs to be brought back into balance. But don’t let the fancy, poetic terms throw you off. What we’re talking about is a very ordinary and familiar thing — the wish for the righteous man to be blessed and wicked man to suffer, according to their merits. It’s very plain, but it’s also a recognizably different thing from the kind of justice that makes Jones compensate Smith for running into his car, or that makes Kristen offer Jane an apology for hurting her feelings. One has to do with restoring order in a concrete way among people, and the other with restoring our feeling of rightness with the world as a whole.

Capital punishment has historically served both ends, but in our present society, it’s fairly clear that the demand for it springs mainly from people’s yearning for this latter kind of justice. We can see this in part from the rhetoric used in advocating the death penalty, but even more obviously from process of elimination. In cases like this one in Louisiana, there is no compelling practical reason for using the death penalty. Scores of other people are being kept right now, safely behind bars, where they’re not doing any further harm to the populous. Why execute this particular guy? Well, it’s simply because his crime seems particularly heinous — because he seems to deserve it. It’s the quintessential demand for high justice.

But meting out just deserts is not something we should leave in the hands of the state — at least, not the modern, democratic state. Here you are again frustrated by my insistence on drawing distinctions that you don’t want to bother about, but it’s necessary. In your way of thinking, an entity either is or is not a state… and if it is, it can claim a kind of standardized “rights package” which includes within it the right to carry out executions. Or, perhaps it can lose certain rights within the package, but only by committing some kind of offense?

For argument’s sake, let’s look at things through that lens, because even though I have a blanket suspicion of any claims to “rights”, I do agree that a genuinely just and virtuous state would have the power to execute criminals. So, taking that as the ideal, what would a state need to do to lose the right to administer high justice? On the practical side, it needs some level of legitimacy, and such capabilities as are realistically necessary in order to enforce its laws consistently and with appropriate impartiality. An American state plausibly reaches that benchmark. But surely this isn’t all that’s necessary. As with any important job, you only want to entrust it to someone who evidences some understanding of what the job is and how they should go about it. You would want to see the state show some level of consistency and seriousness about undertaking such a weighty task. You’d want to see a good faith interest in understanding the human telos. You’d want to see a general orientation towards the good. You would want to see, in short, that they carry out executions as one measure towards establishing a just and virtuous society, and not merely to quell the tide of vengeful anger that inevitably rises whenever a particularly heinous crime is made public.

Does our government evidence the appropriate understanding? Does it hold the appropriate commitments? I should say decidedly not. Over and over again, it reiterates that it is not in the business of determining human ends, particularly in the administration of justice. The state necessarily evidences some views on human ends when they take certain positive measures — the establishment of public education, say, or the creation of national parks and monuments intended to please and inspire its citizens. Even here, efforts are made to disavow any deeper philosophical motivations, for example by emphasizing that they are merely a public expression of the will of the people, dictated by the formal requirements of our government and not by any further-reaching understanding of the human good.

But when it comes to the justice system, the lack of orientation towards the good is particularly obvious. Our government tries as far as possible to eradicate any sign of concern about final human ends, insisting that its function is to keep order and to adjudicate disputes, not to ensure that everybody gets what they deserve. The actions of the judicial branch are determined by procedure, and not by discernment on anyone’s part of how to fulfill the human good. Consider, for example, the procedures involved in a criminal trial. The lawyers in question are expected to argue their side of the case (regardless of whether or not they think they’re in the right.) The jury is supposed to decide whether or not a law was violated. The judge is an expert in determining what sort of punishment the legal system requires for what sort of crime. Nobody in the room is charged with making sure that the people involved “get what they deserve” (except insofar as they deserve for the question to be adjudicated through the proper procedures.) This all makes perfect sense, insofar as your aim is to maintain a certain level of order, without concerning yourself overly with achieving any loftier ideal of instilling virtue or achieving the human telos. It is the kind of justice administered by a government that shrinks back as much as possible from determining what is actually deserved, adopting as a fairly central tenet of its operation that it isn’t in a position to know.

That’s not the entire rationale, of course, for the trial system. To some degree the question of justice is left to legislatures, but here too you see a definite preoccupation with order, not with desert. Consider, for example, what happens to a man who decides to abandon his family. The state will make him pay child support, and possibly alimony. That much is practically necessary to keep people from starving. But will the state impose further penalties, requisite to the sin of utterly neglecting his responsibilities? Nope, they’ll say that’s none of their business. It’s not their job to make the wicked pay, only to ensure that the wheels of society more or less keep on turning, without too much violence, disease or starvation. I could give other examples of a similar nature, but I’m guessing you can think of your own. Our country simply is not in the business of delivering just deserts.

You suggested at an earlier time that I was trying to argue that the modern state has no legitimacy. That would be going too far, but certainly this is a suggestion that the modern state s deeply defective in a way that limits what it can justly do. It is not the state “as understood from Biblical times” because it is conceived and structured very differently from the states of Biblical times. Unlike the Roman state, which was essentially pre-Christian, it has self-consciously rejected the foundational commitments that would allow it to pursue high justice in a way that we Christians could approve. Granting it that power, that godlike power to decide who deserves to live and who to die, is like handing over an automatic weapon to someone who’s amply demonstrated, and even announced, that he doesn’t know how to use it.

Execution is an interesting thing. The possibility usually arises in very emotionally charged circumstances, and, because it does send the accused to the next world (whatever that may hold for him), it is particularly inspiring to the imagination. I would say, therefore, that this is one power that we need to be especially careful about granting. If someone wanted to moonlight as the occasional provider of high justice, this would be the easiest place to start. Bringing the hammer down on someone who, as the expression goes, “needs killin’” can be an enormously popular measure — everyone feels a certain satisfaction about it. But that’s all the more reason for us as Christians to be wary. We are not in the business of indulging vengeful passions, knowing as we do that the real power for righting wrongs belongs only to God. We can sometimes countenance the possibility of legitimate punishment, which can even have a salvific effect as Iosephus originally observed. But we should try our best not to let the legitimate concern stand as an excuse for the other, less noble desire, particularly when this means affording to an unreliable entity a kind of legitimacy that it does not merit. The American state, which has disavowed any responsibility for administering high justice in almost every other case, can hardly be trusted to step into that role in this one place where emotions run the highest.

As a final note… I’m sorry if the tone of my last post was a bit snippy. But you know, the one from you immediately preceding it was rather the same.

As far as the notion of “high” justice, you can dismiss it as “airy” if you want to, but it seems very simple and intuitive to me. Are you killing a man because, if you didn’t, he would be a danger to society? Or are you killing him because his wicked deeds make him deserving of death? If it’s for the second reason, that’s what Bottum calls “high” justice, and that’s what he thinks should be reserved to God, or those who are acting as God’s agents. I contend that the state of Louisiana doesn’t qualify to perform that function, and furthermore, that it isn’t needful. Executing that child rapist will bring no practical benefits that could not be attained just as well through incarceration.

You can call Bottum’s concern about blood-lust and revenge “manufactured” if you want to, but I think history shows that it’s a primal urge as foundational as sexual desire, and one of the primary reasons why legal systems were formed in the first place. A people who have rejected Christian premises in the founding of their state, could easily descend back into the same.

It isn’t evil to desire that justice, in a higher sense than our courts can accomplish, should be done. We yearn for that constantly, in fact, when we see parents neglecting their children, pastors (bishops!) neglecting their flock, dictators who exploit their people for personal gain and on and on and on. There’s such a thing as righteous anger, but we must not let it control us to the point where we give an unmerited authority to anyone who is willing to mete out punishment. God will avenge all these sins in whatever way is most fitting, when He deems the time is right.

I trust the inchoate sense among the populace that capital punishment is acceptable and needful more than a manufactured concern that blood-debt will grow prominent and overwhelm us or whatever it is, exactly, that Bottum is worried about.

If you want to keep discussing the matter for the benefit of our readers, you may respond and wrangle with the following passage, dredged in moments from our old friend Google:
St. Augustine

The same divine authority that forbids the killing of a human being establishes certain exceptions, as when God authorizes killing by a general law or when He gives an explicit commission to an individual for a limited time. The agent who executes the killing does not commit homicide; he is an instrument as is the sword with which he cuts. Therefore, it is in no way contrary to the commandment, ‘Thou shalt not kill’ to wage war at God’s bidding, or for the representatives of public authority to put criminals to death, according to the law, that is, the will of the most just reason.

(The City of God, Book 1, chapter 21)

Okay, next thing. You say that I’m “naturally” on the defensive in this case and that you therefore don’t need to provide an argument for the morality of capital punishment. We don’t need to pass an “on the defensive” sign back and forth, but I have reasons for thinking that I can legitimately demand more from you, starting with the fact that I was the one who presented (or at least recapped) the argument that started us off here. If you wish to disagree, it seems the burden is on you to show the defect in that position — and the argument you’ve given thus far relies on a fancy, metaphysically complex entity (namely, the automatic governmental right to execute) whose existence I doubt. If you just want to dig your heels in and insist that there is such a right, there may not be much more for us to say. It would be more helpful, though, if you could offer some sort of evidence for this right — either an argument, or a reference to somebody else’s. If St. Thomas, or some other Doctor of the Church, did indeed argue for the right of government to execute criminals, then by all means we should examine that text. I don’t know of one, however. It’s clear that St. Thomas (among others) did more or less assume that governments would be executing people, and in particular I know the passage in which he argues the necessity of executing obstinate heretics. But it’s obvious that St. Thomas took as assumed a very different sort of government. I don’t think our government would be entitled to go around trying to execute heretics.

In short, if you want to attack my position, you need to point out defects that my (Bottum’s) argument is not able to accommodate. Merely observing the historical prevalence of capital punishment doesn’t seem to qualify, especially since the argument accounts for and even makes use of that fact.

I brought up governmental legitimacy, not in order to argue that our government is straightforwardly illegitimate, but rather because I think it’s important to examine the source of its legitimacy if we’re to determine what the government is permitted to do. Of course on some level all authority comes from God, just as on some level all babies come from God, all natural disasters come from God, all blessings come from God, etc. But as in these other cases, it can still be fruitful to examine the more proximate source. In the case of the modern democratic state, its legitimacy basically comes from the approbation of the people… and nothing more. It is self-consciously a manifestation of man’s will and man’s justice, not God’s. Thus the modern state is entitled to do those things that men can rightfully do for the sake of keeping order among themselves, but not those things that are specifically the prerogative of God Himself.

The claim of Clara and Bottum, as it appears to me, is this: if and only if the government is founded upon an explicit (or strongly implicit) self-understanding of resting on divine authority, then it may do things like executing people that pertain to divine justice.

My counter-claim is that the self-understanding of a government is not really relevant to the question. I see no argument that removes a particular government’s right to execute that does not, if pushed a bit farther, delegitimize the government altogether.

Historically, the support for governments executing has been that the state acts in God’s place. I think that modern democratic governments, insofar as they are legitimate, also act in God’s place. This is why I let them confiscate my property through taxation, my liberty through conscription (if they wished), etc. This is also why I think they may execute rapists and murderers.

The question for you and Bottum is, where did the government get some authority, if it does not come from God after all? And if the authority does come from God, then why is it relevant that the people and framers of the government did not make that derivation explicit?

Let’s start by remembering that you are on the naturally defensive side of this question: no one, so far as I can tell, before J. Bottom advanced this “democracies can’t execute cosmic justice” line of argument. I don’t see anywhere in St. Thomas or St. Paul, for instance, any proviso that Rulers cease to be able to execute criminals if those rulers are chosen in such and such ways. That’s a new distinction that Bottum invented out of the thin air, and you’re seeming to regard that as the default position, which it in no wise is.

I left aside the question of governmental legitimacy not because I think it’s irrelevant in general, but because it’s irrelevant here, unless you’re ready to argue that our modern democratic government is illegitimate. If that’s your (and Bottom’s) central claim — which, I am beginning to suspect, it is — then I’m done arguing.

As I take it, if you’ve got a legitimate government, it can execute. You’ve given no reason against it. I really cannot countenance any argument that goes with modern societies are fundamentally different vis a vis
morality of executions, nor class a practice — execution — that was defended by St. Thomas as one of those moral evils that was common to man and persisted to modern times, but not made acceptable thereby.

Please let’s return to Bottom’s novel — and, I still hold, failed — rationale for banning the death penalty completely and finally for modern democracies. Even JPII didn’t go so far when he effectively banned it — a modern, *prudential* decision that capital punishment, while licit, is almost always now unwise, I will listen to. It’s Bottum’s argument I just don’t buy.

The only argument I’ve really seen from you for why states should have the right to execute, is that most societies historically have used capital punishment to one degree or another. I won’t deny that this gives a kind of presumptive edge to the idea that executions are part of a healthy society, but it’s only a presumptive one, for of course there are some things that have been done by most societies that are still immoral, and also some ways in which the modern world is genuinely different from most other historical societies, such that different ethical conclusions may be warranted. I’ve argued that such is the case here, and I think more is needed from your side in response than the observation that the practice of capital punishment is historically common.

It also seems to me that you’ve fixated rather too much on classifying governments according to how “active” or “present” they are. It’s true, of course, that modern governments are much more “visible” or “present” than the governments of many or most historical societies, but it doesn’t follow that they have at least as many powers. Authority is not meted out on a simple greater-than or less-than scale. You need particular sorts of powers to do particular sorts of things, and you can’t necessarily measure it merely on the basis of how much influence or presence a particular authority has in a person’s life. The Doctor is much more “present” in my life than our parish priest, and in some respects that does certainly make him more influential, and an authority that I take the more seriously. On the other hand, it doesn’t give him the power to, say, absolve me of my sins, and there are some sorts of commands too that I would take more seriously coming from my confessor than I would coming from him. In short, I don’t see why the growth of governmental offices should necessarily entail the growth of governmental powers.

The point about modern governments, though, being less far-reaching in their scope than ones in elder days is perhaps relevant but is certainly overstated. The confessional state might rightly regulate doctrine; but the basic functions of the state do not require that sort of thing. In all other matters, governments in times of old were much, much, much less present to the lives of their citizens than governments today. However, the basic facts of what constitutes a state remain: and among those is the right of punishing criminals, which — I say again — always includes the right to punish with death. Whether that is the prudent thing to do; or whether the government doing it is legitimate; are interesting questions, but not relevant to the morality of the situation.

The State of Louisiana is a legitimate government of the kind that have always existed, with less scope in dictating “speech” than Protestant Geneva, say, but with much more role in the lives of its citizens even than Imperial Rome. Ergo, I would say, it is the sort of government that may execute capital punishment of the sort envisioned by St. Paul and the moralists who followed him.

Now, as to your claim that capital punishment has been practiced by the majority of human societies. This may be true, but I think the modern democratic state really is relevantly different in two ways. In the first place, I think most human societies have understood themselves to be channeling or enacting on earth the will of some supernatural power. Obviously they haven’t all been Christian, but the idea of a political theory that deliberately excludes appeal to the supernatural is a modern one. That being the case, it shouldn’t be so surprising to find that the powers of the modern state are somewhat more restricted than the powers of most historical governments. This relates, as you rightly note, to the regulation of things like speech and religious worship (which were much more restricted, and I would say legitimately so, by most other human societies) but it also relates to the administration of high justice, that being something that requires the very sort of authority that the modern state has disavowed.

The other special thing about modern states is more practical: it is actually feasible for us to imprison people for life, in a way that it wasn’t for many or most other societies. Indeed, contrary to what Iosephus implied, it is normally cheaper to incarcerate people for life than to pay for the numerous appeals and other legal procedures that are involved in executing someone. Some states, historically, have executed people not for reasons of high justice so much as for reasons of practical necessity — if you didn’t have the wherewithal to contain the child rapist for life, you’d better execute him lest more children be harmed. Given modern innovations in prison building, that argument isn’t so persuasive anymore.