Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, November 30, 2011

"The Authority to Kill"

Joseph Bottum has an (I think) intriguing essay up at Public Discourse, called "The Authority to Kill," in which he presents an argument that I remember hearing at a conference, at Notre Dame, about 12 years ago, but not since.  In a nutshell, Bottum's point is that there are some powers that some, but not all, governments (legitimately) have and exercise?  Obviously, not all governments are vested by their constitutions with the same powers, but these variations among different jurisdictions' positive laws is not Bottum's subject.  Instead, and focusing on the death penalty and war-making, Bottum asks whether there are some "forms of government" that may legitimately execute murderers, or go to war, while some others may not.  Are there some forms of governments that lack what it takes to apply the death penalty "because its killers deserve to die?"

Check it out.  


Garnett, Rick | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference "The Authority to Kill" :


                                                        Feed You can follow this conversation by subscribing to the comment feed for this post.


I do not in any way question your sincerity, but I must question the sincerity of Mr. Bottum. The Roman Catechism stated unambiguously and for all time that capital punishment is an instrument of the legal authorities for the defense of life. Right to life = Judicious use of criminal penalties including death. That is the Magisterium speaking.

Now, Mr. Bottum treats to a serving of red herring by way of dragging in the question of retributive justice and the moral rectitude of death as a punishment. The catechism only authorizes one rationale for executions: defense of innocent life, both directly, and indirectly through confirming social order and the commitment of the courts to defend it.

There is no other basis permitted or arguable. But like good little red herrings, this retributive stuff let's us get away without mentioning, much less addressing, the true issue.

So let's take seriously the known studies on capital punishment as a deterrent and deal with the clear implication: to refuse in "principle" to execute criminals is to condemn many innocents to death. How's that for the sanctity of life?

Posted by: Joel Clarke Gibbons | Nov 30, 2011 12:58:08 PM

A serviceable quodlibet.

Suppose there was a jurisdiction rife with crime including murder but there were no executions, because the governors stopped them. Suppose further that far from being the humanitarians that we would naturally credit them with being, the governors had stopped executions because the criminals paid them to stop.

The question then is whether this poverty-stricken backwater, because that it what it would soon become, was a model of social justice and of respect for life? It is permitted by the way to question whether or not the criminals get to vote in this referendum.

But what to our surprise, the quodlibet has landed. It is called Sicily! Well, in fairness, part of it is called Calabria. What holy people they must be over there.

Posted by: Joel Clarke Gibbons | Nov 30, 2011 1:55:41 PM

Joel, you have no reason to question Mr. Bottum's sincerity, and so you shouldn't question it. In fact, Catholic thinking about punishment and its justifiability has always had "retributive" (that is, desert-based) considerations at its center. In order for action to be "punishment", in fact, it must be "deserved"; otherwise, it is simply unjust violence or constraint. As for the Catechism, I do not think it provides support for the notion that general (as opposed to specific) deterrence could justify capital punishment.

Posted by: Rick Garnett | Nov 30, 2011 2:49:56 PM


I agree entirely that punishment only for the guilty, and in that sense it is "merited," but we never were taught that the state is a moral agent meting out punishment Because Of guilt. That would violate the principle of separation of Church and State. The state doesn't make moral judgements on its own authority. The people do, because they are moral agents, and the people demand that -- or demand to the degree that the State listens to them -- the guilty and only the guilty be punished. The commission of the State is to do the will of the people, who rightly apply moral standards.

The State is commissioned to preserve the peace. To do that its decisions have to be accepted as just and right by the citizens, because otherwise it is the State itself that undermines the rule of law. In the extreme, the people rise up to overthrow an unjust State. The men and women, moreover, who are in practice "the State" also make moral judgements, as they ought. But it is wrong for the State to punish criminals Because they are guilty or wicked. The Lord says "Vengeance is mine."

I know that my characterization of Mr. Bottum's words is excessive, and I apologize, but he should know what the catechism says, and know that it does not prescribe retribution.

Posted by: Joel Clarke Gibbons | Nov 30, 2011 4:05:50 PM

Joel, I disagree. The reason why the political authority punishes is to express the political community's judgment that the person being punished is blameworthy *for having committed a crime." Obviously, the state cannot punish people "[b]ecause they are guilty or wicked", but only because they *did* something (previously defined in a non-vague way) wrong.

Posted by: Rick Garnett | Nov 30, 2011 4:08:53 PM

I really respect and appreciate this discourse on such a modern and important topic. I seek only to add two comments.

First, as to Mr. Garnett's most recent post: I do not think the two have to be divorced. Sure, a legal punishment given to someone is derived from the political community's judgment that the person has committed an act it views as criminal. However, I think many of the acts which the community proscribes are viewed as "guilty or wicked," which serves as the justification behind both more severe sentences upon conviction and public reprimand. The latter is manifested, for example, through sex offender registries and restrictions on employment for felons, and though the primary aim is public safety, there is no doubt a socially-imposed penalty carried for years even after any physical sentence has been served. Thus, a community's judgment on crimes and criminals is in reality tied directly to its perception of the perceived "wickedness" of such.

Second, a wonderful (and apparently objective and well-intentioned) statistical overview of the relationship between captial punishment and homicide rates is available at http://www.johansens.us/sane/law/capdeter.htm. The data, and his brief analysis, show that irrespective of the reasoning behind the application of capital punishment (deterrence, morality, justice, etc.), its proactive use does in fact reduce the rate of homicide in a convincing fashion (assuming a significant level of causality and low levels of contribution by other variables).

Posted by: Matt Zellner | Dec 1, 2011 1:04:58 PM

Dear Matt,

That link to the Johansens article doesn't seem to work. Do you have the reference? There are two sets of conclusive empirical studies of deterrence already: Ehrlich's research on American experience up to about 1975 and the Rubin and Dezhbakhsh' studies which cover 1970 throught 2000. They come to the same conclusion and are extremely well done. The woods are full of unscientific, or pseudo-scientific, ventures on both sides of the issue, that shed no further light on it.

These citations cover data on about 50 juristictions (the states) and 67 years. That is all the American data that exists, unless we have other states that I was not aware of. In reviewing these studies and also the FBI data, I found however some apparently anomalous behavior after 2000, and I urge anyone interested to bring that recent experience into the realm of scientific research.

I look forward to looking over the Johansen study too. To date, I have found nothing that shakes the position of the Council of Trent, expressed in their Roman Catechism, that capital punishment is one, sometimes or often necessary part of the defense of human life in its sanctity.

A recent statement by the Holy Father however makes another point, in such a brilliant, Solomonic way. He commended some visitors to the Vatican for their efforts against capital punishment, on the grounds expressed by the late pope. But notice how he did it: He takes the position that in a world essentially at peace, he as pope finds executions distasteful and not justified by necessity, and thus he calls on the public, acting in the democratic spirit, to join him in supressing the practice. Not as a matter of doctrine, but as what amounts to a personal preference.

So this is his expressed opinion: that where social conditions are "ripe" the public should and will undertake to disestablish the practice of legal executions. That is brilliant and, as I say, Solomonic. If the law is intended to serve the public, let the public decide what serves them. One thing that is very unlikely to serve them however is the law as it stands in Norway, under which the murderer of 77 young Norwegians will be eligible for release in three years if he promises to take his meds.

This comveys to me VERY little care for the lives of the Norwegians, and a corresponding excessive care for the good opinion of the "elite" from elsewhere in the world. Why would we sacrifice the Norwegian people on the altar of public opinion?

Posted by: Joel Clarke Gibbons | Dec 2, 2011 8:53:25 AM

The problem with the link is that the period at the end of the sentence is getting included as part of the link. It should be just "http://www.johansens.us/sane/law/capdeter.htm".

Posted by: Mark | Jan 23, 2012 5:57:45 PM