More Thoughts on “The Gay Science”

In section 83 Nietzsche takes up the theme of “translations,” particularly translations of ancient texts. Intriguingly, he believes that the translator sometimes has more in common with the poet than the historian. The translator is more concerned with making the document she translates intelligible in the categories and conventions of her culture than with reproducing an isomorphic, historically precise rendering of that document. As Nietzsche puts it, “They seem to ask us: ‘Should we not make new for ourselves what is old and find ourselves in it? Should we not have the right to breathe our own soul into this dead body?’” He points to French translations of documents from Roman antiquity and Roman translations of documents from Greek antiquity as examples.

It is not entirely clear to me whether Nietzsche looks upon this approach to translation favorably or unfavorably, but either way, I found his musings provocative. To what extent when one translates an ancient text–particularly a sacred text–should one seek to accurately capture the historical forms in which the text’s message is couched? To what extent should one simply try to distill the essence of the text, its message or core, in a way intelligible to a reader of a very different culture and set of assumptions than the original author? This conundrum reminds me of Doctrine and Covenants 1:24, which explains that revelation is given “unto my servants in their weakness, after the manner of their language, that they might come to understanding.” Is accurate history integral to a sacred text that presents itself to us as an ancient record, or is it a decidedly secondary consideration? Is translation concerned as much with what the ancient author would say to us if he or she were present as with what he or she in fact said at some point in the distant past, shrouded in the mists of time? Does the translator have more in common with the poet or the seer than the scholar?

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The Problems of Penal Substitution

The Problems of Penal Substitution

For Christians, the atonement of Jesus Christ is indisputably the central event of salvation history. However, there is no clear consensus as to its precise nature or rationale. Over the centuries a number of atonement theories have been formulated, with a theory known as penal substitution predominating. In this paper, I will explore the penal substitution theory. My task will be primarily negative–I will argue that penal substitution is an enormously problematic theory of the atonement.

Penal Substitution has antecedents in the 12th century satisfaction theory of St. Anselm, but did not crystallize until the Reformation. According to the satisfaction theory, God’s honor is vitiated by human sin and can only be restored by some form of remuneration. Penal substitution substitutes justice for honor. There is an eternal law of justice that God cannot abrogate, either because justice is an essential part of God’s nature or, in some Mormon adaptations of the theory, because there is a metaphysical principle of justice in the universe which God is duty-bound to uphold. God cannot simply forgive us when we sin, for justice demands punishment. However, because God is also loving and merciful, He accepts Christ as a substitute for sinful humanity. Repentant human beings are empowered to escape punishment for their sins because Christ receives the punishment in their place, thereby satisfying the demands of justice.

An implicit penal substitutionary understanding of the atonement, likely unconsciously imbibed from mainstream Christianity, is common among Mormons. This is perhaps unsurprising given the relative youth of our religious tradition and the evocative power of some of the surface features of a penal substitutionary framework. Viewed from a certain angle, the penal substitutionary narrative can be profoundly moving, even transformative; the idea of a morally perfect individual willingly submitting to excruciating pain on our behalf is unquestionably awe inspiring. Even so, I believe penal substitution to be a deeply flawed theory. God is no doubt more concerned with the condition of our hearts than the acuity of our theology–far be it from me to decree that God can only speak to those in possession of a sufficiently analytical atonement theory. But this needn’t entail that reason has no part to play in our wrestle with God. In my view, careful analysis shows the penal substitution theory to be both morally and logically deficient.

My primary objection to penal substitution is the injustice objection. This objection is grounded in the self-evident principle that it is wrong to punish the innocent. Following Dennis Potter, I will call this the innocence principle (73). The very foundations of our judicial system rest on such a principle. It is manifested in our visceral reaction whenever we learn of persons who have been wrongly convicted of crimes–we feel in our bones that there is something seriously wrong with punishing the innocent in the place of the guilty. The problem for penal substitution should be obvious: penal substitution runs afoul of the innocence principle. On the penal substitutionary view, we who deserve to be punished escape punishment while the only person in the history of the world who emphatically does not deserve punishment is punished in our place. The deep irony at the heart of penal substitution is that a theory that begins by valorizing God’s justice ends up subverting it.

One might respond that it is not unjust to punish Christ in our place because he willingly takes our punishment upon himself. However, if we examine our intuitions I believe that we will see that the fact that the innocent third party’s consent has been secured does not alter the essential injustice of punishing the innocent in place of the guilty. Consider the OJ Simpson murder trial. Imagine a counterfactual in which the jury recognizes that the evidence against OJ is overwhelming and finds him guilty of murder. He is sentenced to life in prison without the possibility of parole. OJ’s devoted fans are devastated by this outcome. The president of OJ’s fan club tells Judge Ito that she would like to be sentenced in OJ’s place. Judge Ito reasons that, so long as some punitive response to OJ’s actions is inflicted, it doesn’t really matter whether it falls on OJ himself or a consenting third party. So Judge Ito allows the president of OJ’s fan club to take his place. What would we think of this? It seems to me that stipulating that the penal substitute is a volunteer does nothing to dislodge the innocence principle.

Indeed, one could argue that inflicting punishment on the innocent is not merely unjust, but conceptually incoherent. What is punishment? Primarily, a particular act whereby one inflicts some harm or deprivation on an offender in response to her offense. Following Brent G. Kyle, we can imagine a father who comes home from a bad day at work and vents his anger and frustration on his child by spanking her, even though she has done nothing wrong (208). Clearly, the father inflicts a form of punishment that harms his child, but it seems wrong to say that he has punished her. It seems reasonable to think that for an act to count as an instance of punishment, the punisher must believe that the recipient is responsible for an offense of some kind. But God, being omniscient, could not have erroneously believed that Christ was responsible for human sin. So the notion that God punished the innocent Christ in the place of sinners may not even be logically coherent.

Some have tried to forestall the injustice objection by arguing that Christ took upon himself not merely our punishment but our guilt as well. The innocence principle was not violated because an innocent person was not in fact punished. However, this maneuver has bizarre implications. Accepting it commits us to the position that it is possible for a person to be guilty without actually having done anything wrong. Yet a guilty person, by definition, is someone who did something wrong. If Judge Ito had told the fan club president that it would be unjust for him to punish an innocent person in OJ’s place, but he could get around this constraint by transferring OJ’s guilt to her prior to imprisoning her, he would have simply compounded the absurdity of the situation.  

It should be easy for Mormons to detect the sleight of hand at work here. Mormons rightly reject the traditional Christian understanding of original sin because it fundamentally misunderstands the nature of guilt (cf. Article of Faith #3). The same kind of semantic distortion is inherent in any attempt to impute our guilt to Christ. Moral guilt just isn’t the kind of thing that can be passed from one person to another, like currency or colorblindness. Ergo, this claim is conceptually muddled, false by the very meaning of the terms employed.

Moreover, according to the penal substitution theory, Christ’s innocence was a necessary condition for his being eligible to perform the atonement. It follows that Christ’s becoming guilty so that He could be justly punished for our sins would have rendered him incapable of carrying out an atonement. Thus, even if it were logically possible for someone who has done nothing wrong to somehow acquire the guilt of others, Christ could not have availed himself of this loophole without losing his capacity to atone.

Perhaps the atonement should be understood as analogous to a third party’s stepping in to pay a fine on one’s behalf. There is clearly an injustice done if OJ murders two people and we send his fan club president to prison in his place; however, no injustice is done if OJ, having squandered his fortune, incurs an exorbitant parking ticket and his fan club raises money to pay the fine on his behalf. I believe that we can make sense of our differing intuitions with respect to these two scenarios if we draw a distinction between actions that are legally prohibited but not morally wrong and those that are legally prohibited at least in part because they are morally wrong (Ostler 271-272). When an action is contrary to a statute, the state may affix a penalty to such acts both to deter them and as a means of raising money. But crimes like fraud, abuse, rape, and murder are not merely illegal, but morally wrong as well. We respond to them by imposing punishment.

There is an element of censure and reprobation built into the concept of punishment, an expressive function, that is not present in the concept of a penalty (Feinberg 400). Punishment consists of some form of hard treatment or deprivation understood as, among other things, the instantiation of the community’s moral disapprobation of the criminal’s act. Punishment is thus, by its very nature, not the sort of thing that admits of substitution. If we think of sins as moral wrongs analogous to crimes–and what is a sin if not a moral wrong?–we should reject a penal substitutionary understanding of the atonement.

Now, there may be cases in which a fine is intended not only to penalize but to punish. Nonetheless, if the offender in one of these cases is fortunate enough to have an affluent benefactor willing to come to his assistance, the state would typically not step in to prevent this third-party from paying the fine. Might the innocence principle be less absolute than it first appeared? I don’t think so. It seems to me that the fact that we permit punitive fines to be paid by third parties is less a function of what we think is just than it is a function of expediency. It would be overly burdensome and intrusive for the state to try to prevent third-party intervention in such cases. Consequently, we allow considerations of expediency to take precedence over considerations of justice.

Invoking this aspect of our criminal justice system is of little help to the penal substitution theory for two reasons. The first is that our tolerance for these deviations from justice is strictly circumscribed–if our hypothetical offender, emboldened by his ability to avoid the financial consequences of his actions, comes to believe that he can commit a serious crime and escape punishment by sending his indulgent patron to prison in his place, he is in for a rude awakening. The second is that one of the distinguishing characteristics of the penal substitution theory is its inflexible conception of justice. The penal substitutionist believes that justice must receive its due, so it should be immaterial to him that our criminal justice system is willing to forego justice in the interest of expediency in certain limited circumstances.

The injustice objection is sufficient by itself to discredit penal substitution, but it is not the only objection that can be raised. I believe that the assumption that a punitive response to wrongdoing is mandatory, that the universe will be out of joint unless every offense is counterbalanced by the requisite quantity of pain, is misplaced. Contra the penal substitutionist, I submit that there is no reason to think that it is impossible to forgive without punishment. It is wrong to punish the innocent; it is not necessarily wrong to refrain from punishing the guilty. I call this the forgiveness objection.

The forgiveness objection is informed by the observation that humans are capable of forgiving others without requiring that punishment first occur. Suppose my son becomes angry with me and attacks me, causing me severe pain and injury. I have the right to bring an action for assault and battery against him. But what if he comes to me and sincerely apologizes and asks for my forgiveness? It doesn’t seem like it would be morally wrong for me to forgive without pressing charges. In fact, assuming that my son’s repentance is genuine, choosing to forgive may be the more loving course of action. I certainly don’t commit some offense against justice if I choose to forgive without requiring punishment first. That said, I clearly would offend justice if I were to tell my son that I am willing to forgive him, but only if he can find someone else to be punished in his place. To make my forgiveness contingent on such a demand would be neither just nor forgiving.   

We institute systems of punishment in our societies in the service of certain extrinsic ends–deterrence, incapacitation, rehabilitation, and the previously mentioned expressive reasons. The presumption of guilt on the part of the offender is an important constraint on our punishing practices–only the guilty are proper candidates for punishment. But if no purpose apart from sheer retribution would be served by a particular instance of punishment, if we somehow came to possess certain knowledge that an offender’s character has been transformed, that she is fully repentant for her wrongful action, and that pardoning her would not undermine the deterrence of other wrongdoers or the moral ecology of the community, then it seems implausible to say that we would be committing an offense against justice by choosing to forego punishment. Such a fortuitous set of conditions may rarely, if ever, obtain this side of the eschaton, and it might be objected that, in any event, we could never know for certain either that the offender is truly penitent or that pardoning her would have no deleterious effect on the social fabric. Yet surely God, who knows our hearts and whose kingdom rests on firmer foundations than ours, is able to make assessments of this kind.

As Jacob Morgan points out (69), we often quote Alma’s teaching that mercy cannot rob justice (Alma 42:25), but we have largely ignored Amulek’s teaching that mercy can “overpower” justice: “And thus he shall bring salvation to all those who shall believe on his name; this being the intent of this last sacrifice, to bring about the bowels of mercy, which overpowereth justice, and bringeth about means unto men that they may have faith unto repentance” (Alma 34:15). This scripture states that mercy can overpower justice on condition of repentance, which seems to imply that punishment is not required where there has been true repentance. It hardly makes sense to say that mercy has overpowered justice if justice had to be placated via punishment before forgiveness could take place. There is no need for suffering (vicarious or otherwise) once we have mended our sinful ways.

At this point, I wish to reiterate that it is not my intent to cast aspersions on those who understand the atonement through the lens of penal substitution. But for those who become aware of its problems, a penal substitutionary understanding of atonement can become more of a stumbling block than a springboard. Fortunately, the process of putting aside our paradigms and revising our assumptions is constructive, not merely destructive. There is a rich history of Christian reflection on the atonement that eschews the broken categories of penal substitution. In particular, the moral influence theory presents a framework for thinking about the atonement that, while certainly not answering every query one might have, provides a fruitful and spiritually nourishing alternative to penal substitution. Regrettably, an exposition of the moral influence theory is beyond the scope of this paper.  

In conclusion, the penal substitution theory, for all its persistence and pathos, cannot withstand logical analysis. It clashes with the innocence principle and undercuts God’s capacity to forgive. Paradox and mystery are the inevitable companions of anyone who wrestles with the divine, but they should not be conflated with outright contradiction and confusion. Accordingly, the penal substitution theory must be abandoned.

 

Works Cited

Feinberg, Joel. “The Expressive Function of Punishment.” The Monist, vol. 49, no. 3 (July

1965): 397-423. Print.

Kyle, Brent G. “Punishing and Atoning: A New Critique of Penal Substitution.” International Journal for Philosophy of Religion, vol. 74, no. 2 (2013): 201-217. Print.

Morgan, Jacob. “The Divine Infusion Theory: Rethinking the Atonement.” Dialogue: A Journal of Mormon Thought, vol. 39, no. 1 (Spring 2006): 57-81. Print.

Ostler, Blake. “The Compassion Theory of Atonement.” Exploring Mormon Thought: The Problems of Theism and the Love of God, Greg Kofford Books, 2006, 235-281. Print.

Potter, Dennis. “Did Christ Pay for Our Sins?” Dialogue: A Journal of Mormon Thought, vol. 32, no.4 (Winter 1999): 73-86. Print.

Killing as Punishment: A Critique

Killing as Punishment: A Critique

Few moral issues are as vexing and provocative as capital punishment. It is a topic that demands our careful study and engagement, both for the sheer intellectual challenge it poses, and because the stakes could hardly be higher. In this paper, I will enter into the conversation about the ethics of capital punishment. My exploration will necessarily impinge on broader questions related to the value of human life and the nature of punishment. I will argue that a sound understanding of these matters casts significant doubt on the continued practice of capital punishment in the United States.

I begin my inquiry from the axiom that human life is a good–indeed, arguably, the preeminent good–that should be respected. Consequently, there is a strong moral presumption against killing other persons. This presumption is not absolute–most will agree, for instance, that killing in self-defense or in defense of a third-party is permissible, perhaps even obligatory in some cases. But the moral presumption against killing can be overridden only when the most powerful reasons have been offered. Anyone seriously committed to respecting life will want to ensure that the list of exceptions to the general rule is as short as possible. It follows that the burden of proof lies with death penalty supporters. Are the reasons they put forward strong enough to justify killing as punishment?

To answer that question we must first take up questions related to the rationale and purposes of punishment in general. Though slightly different formulations could be given, I think that punishment can be uncontroversially defined as the deliberate infliction of some deprivation or harm by a legitimate authority on an offender in response to her offense. Some forms of conduct are harmful to innocent persons. This leads us to prohibit and condemn such conduct. When someone knowingly violates these prohibitions she harms others and becomes a candidate for a punitive response.

As Joel Feinberg points out, punishment performs certain expressive functions conducive to social cohesion and the maintenance of clear moral boundaries. As the embodiment of our moral reprobation of the offender and a form of symbolic non-acquiescence in her offense, punishment reinforces our communal commitment to shared moral norms (Feinberg 400). In addition, punishment furthers the important ends of deterring potential offenders, incapacitating offenders who would likely persist in their unlawful conduct if left unrestrained, and ideally rehabilitating offenders. I assume throughout this essay that a system of punishment is both morally legitimate and an effective means of securing the general welfare.

Some approach punishment from a wholly utilitarian perspective. For utilitarians, the consequences of a law or policy are the only factors to be taken into account in deciding whether to pursue it. Hence, the justification of both the punishment system in general, and of any particular instance of punishment, is to be made by reference to its contribution to overall social utility. A punishment should be used only if, in light of all of the facts, its practice would yield the greatest net balance of benefit over harm.

A serious problem with utilitarianism as a moral theory is that, when the end of overall social welfare conflicts with the rights of the individual, the overall social welfare takes precedence. Thus, a utilitarian theory of punishment cannot rule out, at least in principle, the deliberate punishment–even the execution–of the innocent in the name of the greater good. But deliberately punishing the innocent seems to constitute a particularly grave and odious form of injustice. Moreover, utilitarianism would sanction punishments grossly disproportionate to the offenses for which they are imposed if it were conducive to overall social utility. Yet it seems that there is something fundamentally wrong with imposing, say, long prison sentences for overdue library books. The punishment must, in some sense, fit the crime.

The defects of a purely utilitarian account of punishment underscore the importance of retributive considerations to a sound theory of punishment. Because retribution is an equivocal term that can be understood in a number of different and sometimes conflicting ways, it is important to identify what one means when one uses the word. Retribution, as I define it, encompasses two related principles that utilitarianism erroneously passes over: (1) the guilty (and only the guilty) deserve to be punished and (2) the punishment should fit the crime–a maxim I refer to as the proportionality principle.

Retributive considerations are a morally vital constraint on our pursuit of the general welfare by means of a system of punishment. It is wrong to punish the innocent. This is non-negotiable. And clearly the punishments we impose on the guilty should, in some sense, fit the crime. However, the proportionality principle requires further parsing. There can be little doubt that the impulse behind it is a sound and important one, but it provides us with rather less guidance than it might initially seem. The proportionality principle rules out obviously disproportionate punishments like the death penalty for jaywalkers, but it doesn’t seem to specify exactly which punishment a criminal deserves. Might there be some supplementary principle that does?

The lex talionis, or principle of “an eye for an eye,” provides an apparently simple answer: we ought to treat offenders as they have treated others. Whatever the criminal did to the victim is to be done in turn to the criminal. However, on closer inspection lex talionis is untenable. A literal application of lex talionis would require us to blind those who blind others and knock out the teeth of those who in a brawl knock others’ teeth out. More troublingly, it would require us to rape rapists and torture torturers. So, in many cases, lex talionis generates a morally unacceptable answer to the question of what constitutes appropriate punishment.

And that is not its only defect. Lex talionis frequently leaves us without any guidance at all. As Stephen Nathanson points out, it doesn’t seem possible to apply lex talionis to embezzlers, spies, drunk drivers, airline hijackers, drug users, prostitutes, air polluters, or persons who practice medicine without a license (Nathanson 36). Are we to hijack airplanes belonging to airline hijackers and spy on spies? We simply could not design a system of punishment on the basis of a literal application of lex talionis.

One might respond that lex talionis requires only that a punishment produce an amount of suffering in the criminal equal to the amount suffered by the victims. Thus, we don’t have to do to offenders exactly what they did to others. Instead we could impose some form of hard treatment that would bring about the same amount of suffering as the offense. But this reply does not resolve the problems we have identified. It runs up against the same moral objections as the literal version of lex talionis, since even though we would not be recapitulating heinous crimes like rape and torture, it is hard to imagine that any punishment we might devise that inflicted suffering of the same magnitude would not itself be barbaric. And there would be practical problems with any attempt to identify the precise amount of suffering experienced by a victim and the precise amount of suffering that a punishment would cause the offender in order to correlate them. We have rough ideas about how severe various harms or forms of suffering are, but we have no recognized unit of measurement or common currency of pain by which to precisely quantify them. Accordingly, even this revised version of lex talionis would be unworkable.

Criminals undoubtedly deserve punishment. But to be ill deserving and to deserve a specific ill are two different matters. One can accurately judge a person to be negatively deserving without thereby knowing what specific treatment would be the correct one. Given the failure of lex talionis, it seems likely that there are an array of reasonable responses to a particular crime, any of which would be acceptable. As Christopher Kaczor puts it, “retribution is not a matter of geometrical precision” (140). In imposing punishment, we will have to settle for the somewhat vague and open-ended, but not entirely pliable, constraints of the proportionality principle.

To this end, we would draw up a list of crimes, ranking them in order of seriousness. Then we would construct a corresponding list of punishments, ranking them in order of severity. The proportionality principle would dictate that the more serious crimes be correlated with the more severe punishments and the less serious crimes with the more lenient ones. But it is not at all clear that there would be a retributive imperative to include the death penalty on our list of punishments (presumably at the top of it). Since there is no such thing as a uniquely appropriate punishment for any particular crime, there is no reason in principle that the most severe punishment could not be a long prison term. Nothing more definite or specific is required by the proportionality principle. The worst criminals would of course receive the worst punishment, but the worst punishment at the disposal of the criminal justice system needn’t be death.

Retribution may not require capital punishment, but perhaps the aforementioned expressive function of punishment does. In his discussion of this expressive function, Joel Feinberg draws an illuminating distinction between penalties and punishments. Both consist of a deprivation imposed by legitimate authority in response to some objectionable action or omission. But punishment has a symbolic significance that is not present when we levy a penalty. Unlike penalties, punishments are mechanisms for the expression of attitudes of resentment and indignation, and of judgments of disapproval and censure (Feinberg 400). Consequently, they perform such useful social roles as authoritative disavowal of the criminal’s act, vindication of the law, and absolution of other suspects (Feinberg 404-408).

Furthermore, the degree of reprobation instantiated in a particular act of punishment is generally tied to the level of harshness of the “hard treatment” that constitutes the punishment. To be sure, the forms of hard treatment available to us are restrained by the retributive principles of desert and proportionality. But might it be the case that, though retributive considerations by themselves cannot adjudicate between the death penalty and some other severe punishment for murderers, only the death penalty can adequately fulfill the expressive function of punishment? Though some may disagree, I see no reason to think this. On the contrary, the expressive function of punishment is at least as flexible as the proportionality principle. Imprisonment has taken on the symbolism of public reprobation in our society. Therefore, long term imprisonment suffices to express our reprobation of the criminal and thereby sustain the moral fabric of society.  

Relatedly, some might argue that the only way to show the proper respect for a victim’s life is to execute her murderer. This view seems misguided for two reasons. First, it would appear to entail a mandatory death penalty for murder. If failing to execute a murderer necessarily shows disrespect for her victim, then our practices of reserving the death penalty for murders involving certain aggravating circumstances and granting juries discretion in sentencing should be rescinded. I think most of us would be unwilling to support such drastic changes to our sentencing practices. Second, the primary ways we show respect for the dead involve our behavior toward them, their memories, and things which meant a great deal to them. Needless to say, we would disrespect the victim if we applauded or congratulated the murderer–our treatment of the murderer should clearly express negative feelings about his act. But this is precisely what a long term prison sentence communicates. We don’t have to kill the murderer to convey our respect for the victim’s life and abhorrence of the act that took it.

In view of the indeterminacy of the retributive and expressive aspects of punishment, a valid case for the death penalty will have to be made on the grounds of social defense, if it is to be made at all. It seems axiomatic that if human lives are to be taken it is morally preferable that they be guilty lives rather than innocent lives. For that reason, if we lived in a world where the execution of a murderer could somehow bring her victims back to life, even the most devout abolitionist would be hard pressed to maintain her opposition (Bedau 36). Similarly, if every execution of a murderer saved 10,000 innocent lives, it would be morally indefensible to continue to stand against executions.

So it should be conceded that the cogency of opposition to the death penalty rests on contingencies. That said, any viable defense of the death penalty does as well. To put it in philosophical parlance, retribution and the defense of society are separately necessary and jointly sufficient conditions for the morally acceptable use of capital punishment. Ergo, the presumption against killing can be overridden only if the proponent of capital punishment can marshal convincing evidence that capital punishment is needed to defend innocent life. Can she meet this challenge?

It is commonly assumed that punishments have a deterrent effect and that more severe punishments, being feared more than lesser ones, will deter more effectively. Since death is customarily feared more than long-term imprisonment, it seems reasonable to infer that the death penalty would be a superior deterrent. However, as Jeffrey H. Reiman points out, “from the fact the one penalty is feared more than another, it does not follow that the more feared penalty will deter more than the less feared, unless we know that the less feared penalty is not fearful enough to deter anyone who can be deterred–and this is just what we can’t know with regard to the death penalty” (144). And, as a matter of fact, the relevant social science does not, at present, seem to show a measurable difference in deterrence between capital punishment and long-term imprisonment (Turow 60). It seems to me that, until an increased deterrent effect of executions has been clearly established, we should err on the side of not taking life.

It might be argued that the deterrent effect of the death penalty has been vitiated by the lengthy appeals process. If the death penalty were inflicted more precipitously and routinely, deterrence would increase. But even if we assume for the sake of argument that deterrence would be magnified under an arrangement of this kind, the greater risk of executing the innocent would have to be taken into account. There is a special moral horror in the execution of the innocent. Certainly imprisoning an innocent person for many years is itself a tragedy, but a mistaken execution is far worse. Thus, if the death penalty is to be justified, we must have good reason to believe that our system is generally reliable and that very few innocent people will ever be executed. We must do our utmost to provide stringent safeguards that will make such executions highly unlikely–even if this means bearing extra legal costs, putting up with long delays, and sometimes seeing death sentences overturned on legal technicalities (Nathanson 64).

Speeding up the appeals process to make it easier and faster to execute murderers would ratchet up the risk of executing innocent persons. It follows that, even if we could somehow be sure that more innocent lives would be saved through deterrence than lost to mistaken executions as a result of a streamlined appeals process, we would not necessarily be justified in instituting such a system. This is because it is arguably worse for us to kill innocent people, even unwittingly, than it is for us to fail to do all we can to prevent the deaths of innocent people. For example, we generally distinguish between failing to save a life (say, by not contributing to famine relief) and actually killing someone (by taking away his food). The deterrent effect would have to be very great indeed to offset the increased risk of executing the innocent in our moral calculations.

Perhaps the incapacitative effects of the death penalty vindicate its use? After all, no executed murderer has gone on to kill again, whether inside or outside of prison. But there is no way to know in advance which incarcerated or released murderers will kill again. As a result, the only way to guarantee that no convicted murderer ever commits another murder is to execute them all. Though some might endorse a mandatory death penalty for murder, I suspect that many nominal death penalty supporters would not be willing to go that far. What’s more, though we should remain open to future statistical insight on the matter, in light of the fact that prison homicides do not occur less frequently in death penalty states and that maximum security prisons provide a generally effective means of restraining even the most dangerous murderers, capital punishment does not seem to be necessary for the incapacitation of criminals (Turow 88).

In closing, my review of the moral principles and empirical data relevant to the capital punishment debate has led me to the tentative view that capital punishment as currently practiced in the United States is not morally acceptable. This does not entail an absolute opposition to capital punishment–I can certainly imagine scenarios in which it would be appropriate and morally upright to have recourse to capital punishment because society could not be protected in any other way. But in stable modern societies such as ours, non-lethal means of punishment appear to be sufficient for social defense. I have written that the institution of punishment performs a crucial expressive function, sending an unmistakable message that we condemn crime and take the side of the victim. Likewise, renouncing capital punishment would send a powerful and essential message of its own. It would demonstrate, in a vivid and unequivocal way, our abiding commitment to the value of all human life and to the restraint of all unnecessary violence. And it would do this without undercutting either our detestation of murder or our efforts to combat it.

 

Works Cited

Bedau, Hugo Adam. “Death is Different: Studies in the Morality, Law, and Politics of Capital Punishment.” Northeastern University Press, 1987, Print.

Feinberg, Joel. “The Expressive Function of Punishment.” The Monist, vol. 49, no. 3 (July

1965): 397-423. Print.

Kaczor, Christopher. “Capital Punishment and the Catholic Tradition: Contradiction, Circumstantial Application, or Development of Doctrine?” The Edge of Life: Human Dignity and Contemporary Bioethics, Springer, 2005, 133-149, Print.

Nathanson, Stephen. “An Eye for an Eye? The Immorality of Punishing by Death.” Second Edition, Rowman and Littlefield Publishers, 2001, Print.

Reiman, Jeffrey H. “Justice, Civilization, and the Death Penalty: Answering van den Haag.” Philosophy and Public Affairs, vol. 14, no. 2 (Spring 1985): 115-148. Print.

Turow, Scott. “Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty.” Farrar, Straus and Giroux, 2002, Print.

 

Bonus–The Argument of the Paper in Deductive Form (Support for the premises given in the paper):

1 We should respect human life

2 Using the death penalty when it is not necessary to fulfill any of the purposes of punishment is inconsistent with respect for human life

3 The death penalty is not necessary to fulfill any of the purposes of punishment

C Therefore, we should not use the death penalty

 

 

 

 

Thoughts on “The Gay Science”

Several things stood out to me in this week’s readings from “The Gay Science.” One of them came from section 27, in which Nietzsche introduces the “man of renunciation,” whom he compares favorably to the “man of affirmation.” The man of renunciation breaks free of all of the constraints and preexisting conditions that would make a claim on him. The man of affirmation allows them to hold him back. In relinquishing all such attachments, the man of renunciation catapults himself to a higher plane than the “man of affirmation.” And in so doing, he can himself rightfully be called a “man of affirmation” in a deeper and more authentic sense than the desiccated man of affirmation that Nietzsche sets up as his foil.

I wonder if Nietzsche is overlooking the importance of those contingent and partial attachments that rightfully press upon us even in the absence of our consent. I’m not yet familiar enough with Nietzsche to know how he develops these ideas, but it seems to me that it is neither possible nor desirable for human beings to emulate the man of renunciation. We are not disembodied souls or unencumbered selves floating free of all contingency and therefore at liberty to latch on to whatever ends strike our fancy, but embodied, rational animals in particular times and places, embedded in networks of meaning and belonging not of our own making. We are claimed by relationships, places, and patrimonies that are not merely encumbrances to be cast aside, but inheritances that are partially constitutive of our very identities. It seems to me that to live well is to find the most creative and authentic mode of being within the contours of the existence gifted to me by forebears and fate, to carry out the duties that press upon me in the way that only I can, rather than to cover over my true identity in pursuit of some chimerical unencumbered self. I conclude with two questions: Does Nietzsche address my reservations elsewhere in his work? In what ways do Charles Taylor and other “communitarian” thinkers interact with Nietzsche’s ideas?

Against Consequentialism

In this essay I will argue against consequentialism as an adequate theory of ethics. Though space does not permit me to enumerate all of my objections, nor to respond to every conceivable variant of consequentialism, I will sketch three general objections that seem to strike at the heart of the theory. I will conclude that consequentialism is a deeply flawed and incomplete theory and should therefore be abandoned. I am under no illusions that what I have to say will be convincing to the committed consequentialist. Nevertheless, in bringing to the surface some of the counterintuitive and uncomfortable implications of consequentialism I hope to show why I and many others reject it.

Before laying out my objections, I must define what I will be criticizing. Consequentialism is the theory that the criterion of the rightness and wrongness of actions is whether they maximize good consequences. Consequentialists disagree among themselves over what exactly constitutes a good consequence and therefore warrants maximization, but they are united in affirming the maximization maxim–namely, that the supreme principle of morality is to maximize value, however value is defined. It follows that all agents have a duty to perform the action, in a given situation, that produces the best overall state of affairs–that is, the state containing the most overall value.

The imperative to maximize entails that particular actions are never intrinsically right or wrong; rather, their rightness or wrongness is situational–purely a function of whether they happen to maximize value in a given circumstance. The situational character of consequentialism prompts my first objection: the human rights objection. If human rights are to be more than a convenient fiction they must find expression in absolute prohibitions on certain actions–prohibitions that cannot be overridden regardless of the consequences. Human rights entail, at a minimum, correlative duties never to deliberately kill the innocent, rape, or enslave.

But respect for human rights is in tension with the maximization maxim. For instance, suppose that a violent mob poses a grave threat to the stability and peace of a society. The only way to placate the mob’s fury is to execute an innocent man. If he is executed, the mob will disband; if he is allowed to live, the mob will go on a rampage and kill ten people. On a consequentialist calculus, it would seem that the right thing to do is to execute the innocent man–one death is preferable to ten deaths.

Or, to take a situation both more fanciful and more disturbing, imagine that a society is on the brink of a destructive war in which thousands will die. For whatever reason, the one thing that will avert the war is the torture and dismemberment of a three-year-old in front of her parents–perhaps the antagonist society believes that only the torturous death of an enemy child can satiate the wrath of their war deity. It seems that a consequentialist would have to endorse this unspeakable act in order to avoid calamity on a much greater scale. Yet it is difficult to shake the conviction that deliberately killing the innocent is always an atrocious injustice, irrespective of its potential to maximize value. No plausible theory of ethics could sanction such injustice.

Rule-consequentialists would respond to these hypotheticals by arguing that a society that sanctions rights violations would not maximize good consequences in the long run; a society that respects human rights would ultimately produce more value than a society that frequently contravenes them for the greater good. Perhaps so. But they make room for human rights in their theories only by redefining them in a way that incorporates consequentialist assumptions. This is mere sleight of hand. They cannot get around the fact that, in any consequentialist system of morality, rights will be, at bottom, contingent–that is, not really rights at all. And rule-consequentialism has a tendency to collapse into act-consequentialism (Rudolph 75). We know from sad experience that when human rights are watered down, the powerless inevitably will be exploited by the powerful.

My second objection pertains to the impartial, view-from-nowhere stance in the world that consequentialism seems to demand. A consequentialist cannot consistently prioritize the needs of her own family and community, for the preferences and interests of those close to one count for no more in the overall consequentialist calculus than those of people living on the other side of the world. This aspect of consequentialism seems to rest on a fundamentally flawed anthropology. We human beings are finite creatures, embedded in relationships that are partially constitutive of our very identity. We are rooted in particularity, and our rootedness has moral significance. I call this the communitarian objection.

Now it is certainly the case that all human beings have equal dignity and rights (indeed, the human rights objection presupposes this), but consequentialism arguably places far too much emphasis on the universal at the expense of the particular. For instance, if one’s spouse and a stranger were both in equal danger, it seems clear that the right thing to do is to save one’s spouse. Plainly, one shouldn’t be faulted for saving one’s spouse over a stranger. However, from a consequentialist perspective, it seems that the proper thing to do may actually be to flip a coin to decide whom to save, for one life is as good as any other. And if the stranger happens to be a scientist engaged in important research, then the consequentialist case for withholding aid from one’s spouse becomes even stronger.

Alternatively, suppose one’s child was born with a rare medical condition that restricts the range of activities available to her and necessitates ongoing medical treatment to preserve her life. If the money expended on her medical treatment were instead donated to charity, it could save many more lives–the consequentialist case for withholding medical treatment from her in order to maximize value in the world seems strong. But can privileging the interests of one’s child in this way really be said to constitute a moral failing? If anything, it seems that the parent is in fact fulfilling one of her most primal, preeminent moral duties. We recognize at a deep level that particular and local attachments matter. That consequentialism has no place for such commitments is a problem.

Consequentialism also seems to clash with a plausible understanding of friendship. Friendship by its nature requires that one value the friendship for its own sake. But since, on consequentialism, all actions should aim at value maximization, one’s friendships are in reality devoid of intrinsic value. They are valuable only insofar as and for as long as they contribute to value maximization. As Neera Badhwar Kapur explains, “the problematic feature of C (consequentialism) is not that it sometimes calls for a renunciation of friendship on account of its consequences but that it sees the moral worth of friendship as entirely dependent on its total consequences, with no independent moral weight assigned to its worth for the individuals involved” (Kapur 498). The consequentialist thus seems to misunderstand what friendship is. True friendship ought to endure regardless of how useful our friend is to us in achieving certain ulterior ends. I call this the genuine friendship objection.

Some consequentialists would try to preempt this criticism by arguing that a society where people value friendship for its own sake rather than simply for the greater good that it produces is preferable to one where people operate based upon a more explicit consequentialist calculation (note how this parallels their response to the human rights objection). All the same, to maintain the pretense that one’s friendships have intrinsic value because it will lead to the greatest good in the long run is inherently self-defeating. Even if they decide to pretend otherwise for prudential reasons, consequentialists are fundamentally committed to viewing friendship from the perspective of the consequences it can generate. It follows that only inconsistent consequentialists can enter into genuine friendships.

In conclusion, consequentialism is unsound, not because it is entirely devoid of truth, but because it inordinately inflates a partial truth. It is sometimes the case that moral agents should try to maximize value; even so, value maximization is not the whole of morality. There are times when it must give way to considerations of justice, community, and friendship. To insist otherwise is to affirm an impoverished conception of the moral life–and a potentially dangerous one.

 

Works Cited

Kapur, Neera Badhwar. “Why it is Wrong to be Always Guided by the Best: Consequentialism and Friendship.” Ethics 101:3 (1991): 483-504. Print.

Rudolph, Jared. “Consequences and Limits: A Critique of Consequentialism.” Manchester Journal of Philosophy 17:1 (2008): 64-76. Print.

Brief Thoughts on Immigration and Patriotism

I’ve become very interested in the ethics of immigration and nationalism–that is, whether and how closed borders, putting the interests of one’s countrymen ahead of the interests of foreigners, etc. can be morally justified. I’m currently finishing up a book on the Christian Just War Tradition and when I’m done I’m going to start reading a book that I just checked out from the library on the ethics of the nation state.

Purely economic arguments aside, I’m inclined to think that restrictions on immigration and modest patriotism can be morally justified on both principled and pragmatic grounds (if suitably leavened by corresponding humanitarian impulses). One’s country can be the greatest country in the world in the same sense that one’s spouse is the most beautiful woman in the world (perhaps also in the same sense that one’s religion is the one true religion). The local communities, relationships, traditions, and practices in which we are embedded are deeply important and deserve our loyalty–within limits, of course. And as Ross Douthat points out (http://douthat.blogs.nytimes.com/2016/01/13/ten-theses-on-immigration/?_r=0), even if open borders cosmopolitanism really is the morally superior way, the persistence of local and particular attachments should caution the globalists against overplaying their hand. Future efforts to instantiate their cosmopolitan ideal must be prudent and incremental. They should avoid publicly conflating the reasonable immigration skeptics with the racists, conspiracy theorists, and kooks. Otherwise they risk further fanning the flames of populism that are sweeping the United States and Europe (and no, that is not in any way an endorsement of Trump).

How to Reduce the Abortion Rate

Recently a friend asked me how I think the abortion rate can best be reduced. The following is my answer to him, which borrows liberally from Charles Camosy’s proposal in his excellent book “Beyond the Abortion Wars.”

“I agree that blanket abortion bans can be both odious and counterproductive–cf. El Salvador, Nicaragua, Paraguay, etc, where hospital beds routinely become crime scenes, uteri have been forcibly removed and sent to forensics labs, 11 year old rape victims have been forced to carry pregnancies to term, women often die or are seriously harmed in botched illegal abortions, and women are currently serving long prison terms for abortions that may have actually been miscarriages, taking them away from their born children and sometimes exposing them to sexual violence. In my view these abortion laws, though well-intentioned, fail to adequately respect the rights and autonomy of women and do more harm than good. I also agree that not everything that is immoral should be illegal–I am not opposed to morals legislation in principle, but I often am in practice because legislating morality is so often self-defeating.

That said, abortion-on-demand is not morally on a par with other immoral practices like drug use or prostitution that arguably should be legalized or decriminalized. Abortion-on-demand involves wide-scale lethal violence inflicted on innocent human beings. The most fundamental duty of the state is to protect all human beings within its borders from aggression. A state that permits violence against its citizens (much less a state that encourages and funds such violence) fails to fulfill its primary duty as a state. Justice therefore demands that the unborn receive equal protection under the law. In addition, though greater social support for pregnant women is indispensable, it may not be enough on its own to end the prevalence of abortion (witness the high abortion rate in countries like Sweden and Britain where the welfare state is more expansive than ours but abortion-as-birth-control is still depressingly common). It’s also worth noting that, despite the pro-choice conventional wisdom, it doesn’t seem to be the case that greater protection for unborn human life inevitably impedes the equally worthy cause of women’s equality. Ireland and Poland both have significant restrictions on abortion, but they still manage to score highly on cross-national comparisons of female opportunity. In The Economist’s 2015 glass-ceiling index, Ireland’s score is not meaningfully different from that of its very pro-choice neighbor Great Britain, and Poland scores significantly higher than the United States (http://www.economist.com/blogs/graphicdetail/2015/03/daily-chart-1). So on all of these grounds I believe that the equal dignity and worth of the unborn should be recognized in law.

However, we shouldn’t overlook the fact that the burdens of pregnancy and child-rearing are not negligible and they fall disproportionately on women. Painting with a broad brush, the stereotypical conservative view is that abortion is driven primarily by individual irresponsibility and callousness while the stereotypical liberal view is that it is driven primarily by structural inequalities and injustices. In reality, as with many issues, it’s a combination of both. Respect for the rights of the unborn is a moral imperative, but respect for the equality and autonomy of women requires opening our eyes to the structural factors that drive many women to abortion and not promulgating any significant new restrictions on abortion without also making significant changes to our social structures. This agenda would need to be more fully fleshed out, but it might include requiring employers to provide accommodations for pregnant employees, guaranteed nationwide paid maternity and paternity leave, universal pre-K and child-care, a generous child tax credit, child savings accounts, nationalizing safe haven laws that make it possible for biological mothers to leave their infant children at the hospital without fear of being charged with child abandonment, and a new law enforcement database that allows all levels of government to communicate with each other and access each other’s data in order to track down fathers who refuse to pay child support. As you mentioned, better sex-ed and access to contraception could also be part of the package.
A more restrictive abortion policy would also need to come with exceptions. It goes without saying that cases where the life of the mother is at risk should be among those exceptions. Indirect abortion (i.e. C-sections, hysterectomies, RU-486) is almost always sufficient to terminate a life-threatening pregnancy, but in those rare cases where a surgical abortion (one that aims at the death of the fetus rather than merely detaching it from the mother’s body) is necessary, it should be legal. In cases of severe fetal malformation where there is no cure and the child will either die in utero or shortly after birth, labor could be induced prematurely. Some ‘pro-lifers’ think that abortion should not be available to rape victims, but I think that position is both unrealistic given public opinion and wrong on the merits. Being forced to carry the child of the person who violated you in one of the most heinous ways conceivable is a burden that we cannot begin to understand. Further, intuition suggests that our obligations to our biologically related children that were not conceived through consensual sex are less stringent than our obligations to those that were conceived through consensual sex (it seems to me that a man who is raped by a woman shouldn’t be forced to pay child support, nor should a man whose semen is stolen from a fertility clinic and used to fertilize an egg that is then implanted into a woman’s womb have to pay child support). It would still be objectively wrong for a woman who becomes pregnant as the result of rape to intentionally kill the fetus she carries (though her subjective culpability might be mitigated by her harrowing circumstances), but it would not be wrong for her to refuse to sustain the fetus with her body, and the law should respect this choice by permitting indirect abortion in such cases.
Moreover, in view of the difficulties involved in the state’s attempting to adjudicate whether every pregnancy within its borders is the result of rape or of consensual sex (not even every violent rape by a stranger can be proven, and much non-consensual sex occurs in the more ambiguous context of abusive relationships and hook-up culture), the state should accept the mother’s judgment as to whether the sex that resulted in her pregnancy was consensual. Naturally, some deceit would take place. But, short of running roughshod over civil liberties and transforming the United States into a dystopian police state, the government simply does not have the ability to verify the circumstances of every conception in the United States, nor should it try to. Therefore, indirect abortion until the eighth week of pregnancy via RU-486 should be legal by prescription with the presentation of a signed affidavit claiming that the pregnancy is a result of non-consensual sex and of certification of a counseling requirement during a three-day waiting period. Beyond this eight week window, indirect abortion (via C-section or early labor induction since RU-486 only works during the first eight weeks) would be permitted only if the mother can legally demonstrate that the sex that produced the child was non-consensual. I think this would be a reasonable way of balancing respect for the right to life of the unborn with respect for the right of female rape victims to bodily autonomy and that of the general populace to privacy. And I am optimistic that the greater social support for pregnant women and increased cultural acknowledgment of the worth of the unborn facilitated by its recognition in law would help to make deceit relatively rare.
That’s my tentative and prolix response to the question of how to reduce abortion. I don’t think it is overly utopian, though it is certainly ambitious. Let me know if you can think of any objections or things I haven’t considered.”