- Recall Aquinas’s reasons for us
obeying the community: we are parts of the community.
- Aquinas’s justification of
capital punishment (c.p.) is along the same lines. It is OK to cut off a
gangrenous limb to save the whole of the body. Likewise, it is acceptable
to cut off a person who is “dangerous and infectious to the community”.
- Only people in authority may do
it. While we all should try to benefit the community, insofar as we are
the equals of others, we do not have the right to impose harm on them for
the sake of the good of the whole. Only those who are charged with
the good of the community as a whole may do so. Each of us has a certain
job as a part of society. Likewise, there are those whose job is to
coordinate whom harms may be imposed on.
- Objection: Don’t we all have
the right to impose small harms on other people? If someone I
know has betrayed his best friend, don’t I have the right to break off my
relations with him in order to send him a strong message that this is
- Response 1: But in such a
case, there is no intention to cause overall harm to that person.
- Response 2: There is a
qualitative difference between killing someone and causing lesser
harms. In killing someone, one is irreversibly expelling her from the
community. It makes some sense to suppose that only someone who has the
care of the community as a whole in her charge should be able to
decide who is allowed to be a part of the community.
- Aquinas’s view, thus, is that c.p.
is justified by protecting society. Aquinas does not explain how the
protection works, but we can identify at least three ways:
- The criminal once killed can
no longer engage in crime.
- The criminal once killed can
no longer entice others into crime (by example, word, glamour, etc.)
- Deterrence: Potential
criminals are scared off.
- Objection to Aquinas’ view: If
we are but parts of the whole, this suggests that a society can sacrifice
a part for the sake of the whole. Thus, it seems, if doing medical
experiments on some innocent segment of the population would help the
whole to survive, then such experiments would be acceptable. Likewise, it
seems, if there was a terrible disease in some city and the only way we
could stop it by spreading would by nuking the city, this should be
acceptable. Aquinas, however, does not think it is OK to kill
innocent people to save lives. So, what can he say in his own defense?
- Possible response 1: Aquinas,
unlike van der Haag, is not so much concerned with protecting lives—after
all, he never says this is only applicable in the case of murder—but with
protecting the moral fiber of society. We are a society,
something whose purpose is the fulfillment of human lives, rather than a herd
whose purpose is the mere survival and reproduction of the members. An
unrepentant criminal is someone whose own life is led in a way contrary
to the good. Killing him does not—the argument might claim—do harm to
society as something whose purpose is the fulfillment of human lives
since the criminal’s life was, as far as we can tell, not going to be
fulfilled. On the other hand, killing an innocent person does directly
harm society, because a part of the purposes of that society is the
fulfillment of the life of this innocent person, a purpose directly
harmed by the killing.
- This response, however, would
only apply in the case of an unrepentant criminal.
- Possible response 2: But even
a repentant criminal is continuing to harm society in respect of the main
point of human society, a flourishing human community, because his
being unpunished, or not punished severely enough, provides a certain
kind of encouragement to crime to others.
- Possible response 3: The
reason for killing the criminal is to protect society, just as the purpose
of law is to further the public good. But in both cases, that reason is
not enough: there is a further constraint on the action, namely that one
be acting in justice. Even if it would further the public good to
ordain that all blue-eyed people be pressed into slavery, it would not be
just. Thus, doing medical experiments on people is not
acceptable, not because it doesn’t serve the public good, but because it
is not just. The harm imposed is unfair.
2. Conway is also focused on the
deterrence account of c.p. Unlike in Aquinas, the concern in the Conway piece
is with protecting innocent lives, not producing a virtuous community. Thus,
the Conway piece only deals with the case of murder. Conway is responding to
van der Haag’s arguments.
- The central question for Conway
is whether deterrence works. Conway argues that we have no
evidence that it works.
- The preference argument:
Criminals prefer life imprisonment (l.i.) to death. Hence, death deters
- But, maybe, many murderers are
not sufficiently rational to care, and those who are sufficiently
rational would be deterred by l.i.
- Conway: Moreover, there may be
a threshold beyond which there is no further deterrence. Suppose Country
A decrees that for murder you get 23 years in jail and Country B that you
get 24 years in jail. Any criminal will prefer 23 years to 24. But
would it make any difference with respect to deterrence? One doubts it.
- A further argument not in
Conway’s piece. Many murders are committed by young people who do not
think of their own death—who act as if they were immortal. Such a person
might be more deterred by l.i. than by c.p.
- Or consider the fact that if
a doctor told us that our arms are gangrenous and the only way to save
our lives was by having them both amputated. Most of us would go for
it, I think. But it does not follow that amputation of both arms would
be less deterrent. In fact, one imagines that the horror of it might
deter many people much more than death, because it is a much more
down-to-earth horror, something more imaginable than death. Likewise, l.i.
might be more imaginable than death, and hence more horrible.
- Van der Haag argues that we
need to look at it as a wager. Do we take the risk of more innocent
people dying or do we take the risk that we unnecessarily killed some
criminals? Either way, we are gambling.
- However, Conway notes that
this is misleadingly put. For it is certain that with c.p. we
will kill the criminals. And we kill the criminals for the sake of a
quite uncertain outcome. If we do not kill the murderers, we are
risking the lives of innocent people, but we are certain to gain a
benefit, namely that the murderers live, and the life of murderers still
has a value.
- Further, in fact we do not
really have any real evidence that c.p. would save the lives of innocent
people, any more than that tickling murderers’ feet would save lives.
Given the absence of such evidence, we are causing a certain bad
effect for the sake of a benefit of which there is no evidence. And this
is surely unacceptable.
3. One of the main moral views
nowadays is virtue ethics. This is inspired by Aristotle’s
insistence—we can see a similar thing in Socrates—that human flourishing is the
constant exercise of virtue. The purpose of life according to virtue ethics is
to become virtuous human beings and to live virtuously. Aquinas’ apparent
focus on the human community as a community of virtuous human beings—as
something endangered by vice and crime—marks him as at least sympathetic to
- But now note that the above
considerations have all neglected one class of people. We looked at
criminals and their potential victims. But there is a third relevant
class of people: executioners (both the people who actually pull
triggers, flip switches, etc., and the judges who pass death sentences). These
people have killing fellow human beings as their job.
- Moreover, it is not a matter of
killing human beings who are actively threatening innocent people.
Rather, the executioners kill helpless human beings.
- The concern now is two-fold.
(a) Could a virtuous person do this? (b) Would doing this help tend to
make and keep one a virtuous person?
- If c.p. is in itself morally
acceptable for the reasons that Aquinas or van der Haag give, one could
probably imagine a virtuous person performing it, a person whose will is
focused on the good of the community, etc. So the answer to (a) might be
positive if either of these thinkers is right, and if so, then virtue
ethics could allow c.p.
- But there is a further
question: Would such action tend to help to promote virtue in the
executioner? If on the contrary it would cause harm, then a focus on the
promotion of human virtue might make c.p. too risky because of the moral
harm to executioners.
- What form might this harm take?
- To make one’s job easier, in
killing someone, one is likely not to think of him as a human being. The
kind of brutal treatment that the murderer sentenced to death gets in Decalogue
5 illustrates this. But a habit of not thinking of human beings as human
beings is a very unhealthy one.
- Such killing of innocent
people, in cold blood, without any urgency, might help deaden a feeling
that we are all fellow humans, that we are all brothers and sisters.
Such fellow-feeling is very important: Empirical data suggests that it is
precisely this kind of feeling that led to people rescuing and protecting
Jews from the Holocaust.
- This doesn’t mean that c.p. is always
wrong. In a situation where it is clear that people’s lives are
being protected—e.g., when executing a homicidal escape artist who has
escaped from jail dozens of times in a country where the lock technology
is very poor—one can more easily focus on the lives of the people one is
protecting, and in doing so, maintain a healthy motivation, one that
recognizes that the criminal is indeed a fellow human being, but one who