A Brief Response to Michael Pakaluk's "the Case against the Case"

Douglas P. McManaman
February 3, 2018
Reproduced with Permission

I was somewhat taken aback by Michael Pakaluk's The Philosophical Case against the Philosophical Case against Capital Punishment . This is not to suggest that I agree with the case against capital punishment - at this point I am just not sure - , nor do I believe that the New Natural Law Theory is immune to criticism - although I am certainly not the one to deliver those criticisms, whatever they might turn out to be; rather, I am quite sure that the "New Natural Lawyers" can respond adequately to what Pakaluk seems to believe are insoluble difficulties with their position. Although I am not a "New Natural Lawyer", I don't believe these philosophers are the dim-witted amateurs that they would have to be if Pakaluk's objections had never occurred to them, and I believe I can defend this valuable and useful school of thought from what I believe are his inadequate objections.

Pakaluk writes:

Even more serious problems arise when we look carefully at the notion of "basic goods." A basic good, Tollefsen says, is any good appealed to when we give a "terminal" reason for an action, that is, a reason that requires no further reason. Life is a basic good because, as Tollefsen puts it, "life gives us terminal reasons for our actions: we can save a life simply because life is at stake. We can choose to become doctors or scientists simply in order to promote and protect human life. We can exercise and eat a healthy diet simply to extend our life… In all such cases, life gives us a reason for action that does not require a further reason to be intelligible." And yet aren't animal life and vegetable life also basic goods by this criterion?

These are not basic goods; the reason is "basic goods" is short for "basic intelligible human goods"; they are aspects of human well-being, not to mention the motivating principles of human action. Vegetative life is not human life, and neither is the life of an animal a "human good". These exist to serve basic human goods in a wide variety of ways. Hence, they are instrumental goods that have economic value; relating to them as such involves no injustice.

Pakaluk continues:

We can choose to become veterinarians simply in order to promote and protect animal life. We can choose to become gardeners simply to promote and protect vegetable life. Animal and vegetable life clearly "give a reason for action that does not require a further reason to be intelligible."

We can become large scale "gardeners" for the sake of serving intelligible human goods (as are farmers), or we may take up small scale gardening for its own sake (as leisure). The former is an activity that is instrumental, the latter is "basic" (sought for its own sake) and "intelligible" and is an aspect of human well-being; moreover, it is a good essentially different from the good that is vegetative life, which is not a human good. One may also breed dogs or run a dairy farm; the latter is an activity carried out for the sake of serving intelligible human goods (i.e., human life), but the former, the activity of breeding dogs, can very well be a form of leisure carried out for its own sake. Again, the good of the dog and the good of leisure are distinct in kind - the former is instrumental, the latter is a human good.

Pakaluk continues:

But if these are basic goods, and "no instance of a basic good should ever be destroyed as an end or a means," then no cow can be slaughtered for food, no cockroach killed as a nuisance, no weed pulled out to tend the garden, no bacterium eliminated by an antibiotic. Or will Double Effect be hauled out to show that all of these destructions are incidental?

Again, cows and carrots are not basic intelligible human goods, so slaughtering a cow does not violate the precept that one ought not to willingly destroy or impede an instance of a basic intelligible human good for the sake of some other instance of an intelligible human good - nor would pulling a carrot out of the ground.

Pakaluk continues:

Tollefsen and the New Natural Lawyers say that there are eight or so basic goods, including, for example, "play" and "skillful performance." ...Thus, corresponding to each of the eight or so basic goods, there must be a moral absolute against its destruction, analogous to "thou shalt not kill." What could these possibly be? Must we affirm such precepts as that "no one should ever break up a game" or "no one should ever interfere with a skillful performance"? Apparently we must, on Tollefsen's argument.

But this is far too hasty. Intelligible human goods are not distinct entities, but aspects of the human person - a human being is a basic human good. Interrupting a game of cards or a basketball game does not amount to impeding or destroying the human good of leisure any more than fasting amounts to impeding the basic human good that is an individual human life or choosing not to attend weekday Mass this very morning amounts to destroying the good of religion. To fast indefinitely, however, is to impede that good, and one may end up doing so either intentionally (i.e., suicide) or praeter intentionem (my body will simply not metabolize food anymore). Similarly, to intentionally eliminate leisure from my life would amount to an unreasonable course of action, because leisure is an aspect of human well - being. Moreover, to perform a lobotomy on a prisoner precisely so that he would be permanently incapable of engaging in leisurely activities, such as the contemplation of the beautiful or "play" for its own sake, would indeed amount to a malicious will.

Turning to the question of the incommensurability of the intelligible human goods, Pakaluk continues:

...once we affirm the incommensurability of the basic goods, then additional absurd consequences follow from Tollefsen's argument. For example, since no basic good is better than any other, as they are all incommensurable, then the destruction of no basic good is worse than that of any other. Thus, an abortion is not worse than breaking up a football game.

But none of this follows from the incommensurability of the basic intelligible human goods; for the incommensurability of human goods and hierarchy are not necessarily incompatible. And as was said above, breaking up a football game is not the destruction of a basic intelligible human good - we can always play later on, but aborted fetuses typically do not rise from the dead. But I have to wonder what would be worse: 1) aborting a baby, or 2) performing a lobotomy on a prisoner so that he is unable to learn, to leisure, and enjoy friendships, or 3) destroying a person's faith? The difficulty in finding possible criteria that would permit an answer to such a question stems, it seems to me, from the very incommensurability of these human goods (human life, knowledge, the contemplation of beauty, friendship, and religion).

Pakaluk also writes: "We also know it is true from our very practices of punishment - if we are honest. Let's think clearly about what even life imprisonment is. It is the taking away from the punished person of every human good except his life."

But this is simply not the case. The prisoner can pray, he can read, think, play chess, receive visitors, and he can willingly assent to his punishment, become a model prisoner, etc. Punishment does not involve the destruction of human goods. As Grisez, Finnis, and Boyle write:

...the concept of punishment does not require that the good destroyed, damaged, or impeded be a basic human good. It requires only that offenders be deprived of something they value or desire. They may be deprived of instrumental goods such as property or liberty, or those sensory satisfactions which are not essentially related to basic human goods. (Nuclear Deterrence, Morality and Realism. Oxford, Clarendon Press, 1987, p. 317).

Returning now to the original question on the death penalty, about 30 years ago I embraced Grisez' argument against the death penalty; later on, I began to side with John Finnis. At this point, I am simply not sure whether the death penalty is incompatible with the gospel or not. I do believe the state is governed by the same moral principles that govern individuals (Grisez), but I am also inclined to believe that the relationship between the state and the individual is not quite the same as the relationship between one individual and another (Aquinas). I do agree with Joseph Boyle that Aquinas' argument in support of the death penalty comes dangerously close to totalitarianism (i.e., the individual is related to the state as a part of the body is related to the whole) and that employing the principle of totality on a social level to defend the use of capital punishment may not be justified (Pius XII) * ; but perhaps it can also be argued that the comparison between a physical part of an organism in its relation to the whole and the individual person and the civil community as a whole is not univocal, as it is for totalitarianism. In other words, it might appear as if Aquinas has adopted a kind of totalitarian view of the state, but this may not be so; his references to medical acts of excision are analogical (not univocal), which means that the individual person's relationship to the social whole is in some ways similar to that of the kidney, foot, hand, etc., to the whole body, and in some ways not . Totalitarianism, on the other hand, regards the individual person as a mere part of the whole. Aquinas does not; for he writes: "Man is not ordained to the body politic, according to all that he is and has; and so it does not follow that every action of his acquires merit or demerit in relation to the body politic" (S.T., I - II, 21. 4, ad 3.). At the same time, the individual human person really is a part of the whole. As Maritain writes: "There is an enormous difference between this statement: "Man, by reason of certain things which are in him, is in his entirety engaged as a part of political society" and this other statement: "Man is a part of political society by reason of himself as a whole and by reason of all that is in him." The first one is true, and the second one is false....Anarchical individualism denies that man, by reason of certain things which are in him, is engaged in his entirety as a part of political society. Totalitarianism asserts that man is a part of political society by reason of himself as a whole and by reason of all that is in him ("all in the state, nothing against the state, nothing outside of the state"). The truth is that man is engaged in his entirety - but not by reason of his whole self - as a part of political society, a part ordained to the good of the society" ( The Person and the Common Good . Notre Dame: University of Notre Dame Press. 1966, pp. 71 - 72). Hence, the death penalty may be justifiable after all.

In light of recent magisterial pronouncements, however, Grisez' position is beginning to give me pause once again; perhaps it is true that "Catholic teaching on capital punishment can develop, just as Catholic teachings on coercion in matters of religion and on slavery have." ( The Way of the Lord Jesus: Living a Christian Life . Vol II. Franciscan Press, 1993, p. 894)

Although I cannot confidently assert where the truth lies on this matter, I can confidently assert that it is wise not to overstate one's case - a bad habit characteristic of today's youth. This is what I spend most of my time trying to get young adolescents to understand, namely the complexities of moral problems and the constraints of human intelligence and thus the importance of epistemic humility - an understanding that is very difficult for the young to achieve, because they lack experience and find it hard to believe that what they see is not all there is to see. I do not, however, believe it is unreasonable of me to expect philosophy professors to have achieved such an understanding.