The first thing that needs to be said with respect to Professor Volokh's post on the execution of an Iranian serial killer is that -- in Maimon Schwartzschild's words -- "Eugene Volokh is one of the loveliest people there is, and one of the smartest and wisest." (I would encourage all MOJ readers to look at Professor Schwartzchild's thoughtful expression of his disagreement with Volokh). Few people -- if any -- have done as much work to build bridges, work for common ground, and facilitate discussions among diverse groups in the legal academy as Eugene has. Everyone who knows Eugene -- who has been a friend and invaluable mentor to me and to many others -- knows that he is charitable, open-minded, and thoughtful. Unlike Michael, I am not sure I detect "hate" in Eugene's admirably revealing post -- except, perhaps, a "hate" for evil and injustice of the kind perpetrated by serial killers -- even though, in the end, I agree with Michael that it would be unjust to indulge the urge to inflict pain-for-pain's-sake on such killers.
In any event, I would hope that when those of us, here at MOJ and throughout the blog-world, who disagree with the arguments in his post -- and I do disagree with them -- would take care to emulate Eugene's manner and decency in our responses.
I agree with Michael Perry that "[e]ven the most depraved criminal retains his (or her) inherent human dignity. . . . One cannot forfeit that dignity no matter what one does. We are called to love -- to treat with charity as well as with justice -- even the most depraved criminal." And, I agree that one implication of this claim is that I could not endorse -- as Professor Volokh appears to -- the notion that state-imposed punishment (and, in my view, only the common authority can meaningfully engage in "punishment") should or morally could involve the imposition of cruelty and pain for their own sake.
I would emphasize, though, that "love" for the person, and respect for her dignity, is not inconsistent with, and in my view requires, "punishment" for crimes (even as it constrains the imposition, severity, and nature of that punishment). The philosopher Jeffrie Murphy has explored and developed this idea in his work. See, for example, his recent book, "Getting Even" and also his wonderful essay, "Law Like Love." So, our disagreement with Professor Volokh's statements should not, in my view, lead us to accept the common, but wrong-headed, notion that punishing -- in proportionate, humane, deserved ways -- criminals is immoral or un-Christian.
Rob asks, "Given these objectives, is punishment to be as painless (physically, mentally, and spiritually) as possible, or in fulfilling its duty to discourage improper behavior, especially monstrous behavior, does pain have a place?" I suppose, as Rob's own follow-up post recognizes, that the answer will be "yes, pain does have a place, insofar as even the justified deprivation of liberty is often experienced as painful. But, the intentional infliction of pain, for pain's sake would seem would seem to be ruled out by Catholic understandings of intent, intention, and human dignity."
That said, my impression -- having read many posts offered around the blogosphere in reponse to Professor Volokh's own post -- is that, in many cases, the authors seem to be indulging in what is, to me, an unseemly and excessively self-confidence that they are immune to the kind of passions that Volokh describes. The desire for vengeance is common, unremarkable, understandable, reasonable, and even -- as Murphy argues -- justifiable. Catholics will have this desire, and to have it is not (as opposed to wallowing in it, relishing it, indulging it, etc.) is not a mark of depravity nor does it mean that one has rejected the Gospel. Christianity is counter-cultural in calling us, or so we all seem to believe, to put aside -- or, perhaps more accurately, to control the influence of -- this desire.
Rick
Catholic University philosophy prof Bradley Lewis offers the following response to my query regarding a Catholic take on Eugene Volokh's embrace of Iran's approach to executions:
[I]t may be worth noting that barbaric criminal punishment is certainly not unknown in Christendom. Consider the following passage from Blackstone's Commentaries (bk. 4, ch. 6: one can now read Blackstone on-line here)
THE punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually a fledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.
One should also observe that there is a note appended to this passage in the text that says the following: "This punishment for treason Sir Edward Coke tells us, is warranted by diverse examples in scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.)." Thus, there is certainly a historical warrant for such punishments within the ambit of Christian jurisprudence.
Be that as it may, I think the Catholic tradition offers ample resources for opposing such practices. Particularly important here is the view of Aquinas, helpfully expounded by John Finnis in "Retribution: Punishment's Formative Aim," American Journal of Jurisprudence 44 (1999): 91-103. The crucial passage in Finnis's paper is this:
The essence of punishments, as Aquinas clearly and often explains, is that they subject offenders to something contrary to their wills--something contra voluntatem (citing Sentences, d. 42, q. 1, a. 2c; Summa theologiae 1a2ae, q.46, a. 6, ad2, and 1a, q. 48, a. 5c, and 1a2ae, q. 87, aa. 2c & 6c). This, not papin, is of the essence. Why? Because the essence of offenses is that in their wrongful acts offenders "yielded to their will more than they ought" (citing Summa theologiae, 1a2ae, q. 87, a. 6c), "followed their own will excessively," "ascribed too much to their own preferences"--the measure of excess being the relevant law or moral norm for preserving and promoting the common good. Hence the proposition foundational for Aquinas' entire account of punishment: the order of just equality in relation to the offender is restored--offenders are brought back into equality--precisely by the "subtraction" effected in a corresponding, proportionate suppression of the will which took for itself too much." (pp. 98-99; I've ommitted most notes)
It's worth noting that in the essay Finnis is opposing Aquinas's view especially to that of Nietzsche as stated in On the Genalogy of Morality (2d treatise). Finnis' point, then, is that pain (if there be pain in some punishment) is an accidental feature and certainly not something inflicted for its own sake. Considerations about just what constitutes a proportionate suppression of an offending will in the context of the overall common good are decisive. At a minimum, it seems to me that the effect of torture not on the one tortured but on the torturer and on the whole community is enough to abolish punishments that involve torture. Of course, it should also be noted that Finnis's points here are not theological, but simply philosophical so far as I can tell. I should think that explicitly theological considerations would only add to the weight of the argument.
Thursday, March 17, 2005
I concur in what Vince says in his post below. Even the most depraved criminal retains his (or her) inherent human dignity. (John Paul II emphasizes this again and again; in this, JPII and the international law of human rights speak with one voice.) One cannot forfeit that dignity no matter what one does. We are called to love--to treat with charity as well as with justice--even the most depraved criminal. I cannot discern how one could agree with what Eugene Volokh says, or do what he recommends, without betraying Jesus's "new" commandment: "You are to love one another; love one another just as I have loved you." In my paper, The Morality of Human Rights: A Nonreligious Ground?, in imagining a person, Sarah, who gives a religious ground for the morality of human rights, I write:
As it happens,
Sarah embodies Jesus’s extravagant counsel to “love one another just as I have
loved you.” She loves all human
beings. Sarah loves even “the Other.” She loves not only those for whom she has
personal affection, or those with whom she works or has other dealings, or
those among whom she lives; she loves even those who are most remote, who are
unfamiliar, strange, or alien; those who, because they are so distant, weak, or
both, will never play any concrete role, for good or ill, in Sarah’s life. (“The claims of the intimate circle are real
and important enough. Yet the movement
from intimacy, and to faces we do not know, still carries the ring of a certain
local confinement. For there are the
people as well whose faces we never encounter, but whom we have ample means of
knowing about . . . . [T]heir claims too, in trouble,
unheeded, are a cause for shame.”) Sarah
loves even those from whom she is most estranged and towards whom she feels
most antagonistic: those whose ideologies and projects and acts she judges to
be not merely morally objectionable, but morally abominable. (“[T]he language of love . . . compels us to
affirm that even . . . the most radical evil-doers . . . are fully our fellow
human beings.”) Sarah loves even her enemies; indeed, Sarah
loves even those who have violated her. Sarah is fond of quoting Graham Greene to her incredulous friends: “When
you visualized a man or a woman carefully, you could always begin to feel pity .
. . . When you saw the corners of the
eyes, the shape of the mouth, how the hair grew, it was impossible to
hate. Hate was just a failure of
imagination.”
A hateful--hate-full--vengeance permeates what Eugene Volokh says.
Michael P.
I do not know what kind of world Eugene Volokh wishes to live in , but it certainly cannot be one in which Christianity has any relevance. His post left me speechless and deeply disturbed. Neverthelss, I appreciate his honesty. No doubt many other Americans share his views and it helps to put a lot of what is going on in our country into sharper perspective. I would assume that Volokh found the torture memos insufficiently aggressive in their assertions of executive privilege.
I just have a brief response to Rob's questions. For a Catholic to embrace Eugene Volokh's view is akin, in my opinion, to a rejection of the entire New Testament. One might as well reject the divinity of Christ.
Vince
A couple of presenters at the St Tommy confab objected to my characterization of their presentations. I'll let the readers judge. The first is John O'Callaghan from ND, who blogged over at Ethics and Culture re my characterization of his presentation of the equivalence argument as a critique of the CE of L itself, as distinct from politicized formulations of it. Here is the link. The other was Kevin Schmiessing of the Acton Institute, who interestingly disassociated himself from my characterization of Novak's critique of the Christian/Catholic social justice tradition as importing secular, "statist" ideology at the expense of the faith's real message. Again, I'll let the readers judge, although I would add that I did not dismiss Kevins's argument that there is a Catholic "antiprogressive" tradition; the evidence for that seems overwhelming. The question for me is whether there is a Catholic progressive tradition. I am glad that Kevin does not dismiss that possibility out of hand. I'm sorry that my short, broadbrush summaries of complex positions did not do full justice to them.
In summarizing my presentation, you wrote that I "did not think
progressivism was very Catholic (especially "progressive" versions of
Catholic Social Thought)." This is not an accurate summary of my paper, nor
of my views.
My paper was titled "Another Social Justice Tradition: The Catholic
Antiprogressives." My argument was that there is a tradition of Catholic
thinking about social and economic issues that is outside of or at least
differs in significant respects from the progressive tradition that was
represented by most of the participants in the symposium. Never did I argue,
suggest, or even imply that one or the other tradition was (or is) "more
Catholic" than the other. My paper had two goals: 1) to describe the
antiprogressive, or conservative, tradition in its broad outlines; and 2) to
suggest that it is consistent with Catholic social teaching--not that it is
consistent exclusive of the progressive tradition; merely that it is also
consistent.
I did use Michael Novak as a representative of what I called a "new version
of the conservative tradition." This does not necessarily mean that I agree
with everything Novak says or writes. (I don't.) It is true that, given the
landscape of contemporary American Catholic social thought, I would fall
more into the "conservative" camp with Novak, than into the "progressive"
camp of Sidney Callahan and John Carr. But I would hope that my ideas could
e engaged on their own terms rather than conflated with those of Novak--or
even others at the Acton Institute--and thereby dismissed.
-Mark
