Over at the Mirror of Justice, Michael Perry responded to my recent post on Crime and Punishment. It turns out that I had missed the point he was getting at. He has now clarified that point. Putting the question again in the form I tried to address it earlier, the question would seem to be whether the following conditional is true: if there is a "sort" or type of act that "ought not" to be directed at someone as a form of punishment for a crime then that "sort" or type of act is not "deserved" as an act of punishment for that crime. It seems to me that, subject to clarifying a certain ambiguity in it, the answer to that question is yes, the conditional is true.

Why it is true? In my earlier post I distinguished a) the "sort" or type of act involved, b) the circumstances in which an instance of that "sort" or type of act may take place, and c) the goals for which an instance of that "sort" or type of act may take place. I argued that questions of "desert" bear upon a), and not b) or c). It is because a "sort" or type of act can meet a) for "desert", and yet instances of that type of act fail to meet b) or c) that some instance could be "deserved" and yet it "ought not" to be employed.

That analysis might suggest that the question of "ought" bears only upon b) and c). I did not mean to suggest that. While the question of "desert" bears upon a) and not b) or c), the question of "ought" bears, in different ways, upon a), b), and c). In particular with regard to a), there are some types of acts that "ought" never to be done, torture, rape, enslavement, and so on. The reason why they "ought" never to be done is that no person "deserves" to have them done to him or her. Such types of acts cannot fall under a description of "giving what is due to another", which is one way of describing the nature of justice. They are unjust types of acts.

So in the order of explanation, I would not say that the reason why such types of acts are not "deserved" is because they "ought not" to be done. It goes the other way around. I would say that the reason they "ought not to be done" is because they are not, and cannot be "sorts" or types of acts that can be "due" to anyone. Because there are at least three different ways of saying that an act "ought not" to be done, we want to inquire in any particular case why it ought not to be done. Because these are inappropriate circumstances? Because our goals are base? Or because it is an instance of a type of act that no one deserves to have done to him or her? "Deserve" and "ought" are not coextensive terms, since there appears to be only one way in which something might fail to be "deserved", namely, a), but many ways in which it may be something that we "ought not to do", namely failure of a), b), or c). And failure with regard to any one of these is sufficient for saying that it is something that we "ought not to do".

In addition, when it comes to punishment there is an interesting twist on the question of "ought". Some types of acts "ought" never to be done at all as punishment because no one can "deserve" them as they are simply unjust, torture, rape, and so on. They "ought not" to be done at all, whether as punishment or anything else. But it seems to me that there are some types of acts that "ought not" to be done to some, while they may be done to others. This occurs because of the need for a punishment to be proportionate to a crime. To use an example I used the other day, 10 years in prison is not a "due" type of punishment for stealing a loaf of bread. But it is likely a "due" type of punishment for murder, though some might argue about that. (And of course there might be more severe punishments that are also "due" that crime, say 20 years, or 30, and so on.) Thus, it may be the case that the same type of act of punishment is "due" one type of crime and not "due" another type of crime. Thus we can have a situation in which that type of punishment "ought not" to be used against some, and yet may be used against others. This possibility is the root of the ambiguity in Michael's question that I answered affirmatively above.

This latter possibility is not a judgment concerning b) or c). It is simply addressing the question of the specification of a type punishment as proportionate response to a type of crime, and thus bears upon a). So we have two types of acts of punishment that "ought not" to be done. 1) Those types that "ought not" to be done to anyone, and 2) those types that "ought not" to be done to some, that is, those not guilty of a crime for which such a type of punishment is "due", but may be done to others, that is, those guilty of a crime for which such a type of punishment is "due".

Michael asks, parenthetically, whether torture and the death penalty are such "sorts" or types that are not "deserved" if they are types of acts that "ought not" to be done. Given what I have just written, the question is unclear. If one maintains that they are of the "sort" that "ought not" to be done to anyone in the sense of 1), it is immediately evident that they are not "deserved" by anyone. But that is a fairly straightforward and in some ways uninteresting logical claim, since I have argued that in the sense of 1) the reason why they would be something that "ought not" to be done by anyone is because they are not "deserved" by anyone. So in the relevant sense that we are talking about here, we would typically judge that some "sort" of act "ought not" to be done because we have already judged that it is not the "sort" of act that is "deserved." In the sense at play here, it is difficult to know what other evidence we might have that the types of act "ought not" to be done, other than the fact that they are not types of acts that are "deserved." Given that account, we would not engage in the following dialogue: "No one 'deserves' them." "Why?" "Because no one 'ought' to do them." We would more likely engage in the following dialogue: "They 'ought not' to be done." "Why?" "Because no one 'deserves' them."

Now, if one maintains that they "ought not" to be done to anyone in the sense of 2), it is evident that that is because they are not "deserved" by some and are "deserved" by others. So an important question, it seems to me, is in what sense someone would claim that torture and the death penalty are the "sorts" of acts one "ought not" to do--in sense 1) or 2)? Against the background of the teaching of the Church, I think it is evident that in the case of torture the sense at play is 1). It is a type of act that no one "deserves" in any circumstance or for any reason. However, I argued in my earlier post that if we are operating against the background of the Church's teaching on the death penalty, then we have to recognize that the death penalty may well be "deserved" for certain crimes, even if it "ought not" to be employed. The reason why this state of affairs can obtain is that according to Church teaching the death penalty can be used in admittedly extreme circumstances, though those circumstances may not obtain in the advanced countries of the West, for example. It can be used in such circumstances, only because it passes the test of a) for a "sort" or type of punishment proportionate to a certain type of crime. So the "ought not" there has to do with b) and c), not a).

If it does not meet a) at all, there are no circumstances, however extreme, in which it can be used. So clearly, against the background of the Church's teaching, since there are circumstances in which it can be used, the death penalty must meet a) in some sense. But it cannot be a case of 1) above, that is, a "sort" or type of punishment that cannot be done to anyone. It must meet 2), a "sort" or type of punishment that is proportionate to some kinds of crimes, and not others. In that case, presuming the truth of the Church's teaching, one cannot say simply with regard to a) that the death penalty "ought not" to be done. One must say that with regard to a) the death penalty "ought not" to be used for types of crimes that do not "deserve" it in the sense of 2), but it may be used for types crimes that do "deserve" it in the sense of 2).

And of course, it may well be the case that even if it may be done in the sense of 2), presuming the truth of the Church's teaching it "ought not" to be used because of b) or c), as I argued in my earlier post.

John

"I thirst."

"My God my God, why have you forsaken me?"

"Into your hands I commend my spirit."

For all those who suffer this day, especially Terri Schiavo, may Christ keep them close to His Sacred Heart.

Nice post from Brad below. An interesting and related question was posed by Michael Perry the other day on the Mirror of Justice, namely, whether an act of punishment might be such that it is deserved and yet one ought not to use it. He summarized the point of his question in this way, "if one ought not, for whatever reasons or reasons--to be treated in a certain way, then he does not (morally) deserve to be treated that way. No one morally deserves what we morally ought not to do to him." I think it fair to construe this question as a question about acts of punishment directed at those who have committed some wrong. So, I would construe the question as asking whether the following conditional is true: if one ought not to employ some act of punishment to redress a wrong, then that act of punishment is not deserved. A subsequent post on MOJ by Rick Garnett quotes John Finnis to the effect that "desert" is an unfortunately opaque term. I agree with that judgment. Still, I think it worthwhile to pursue the question in the terms in which it was originally posed, so throughout this post I will put "desert" and its cognates in scare quotes.

I think the conditional is false. Forget about the death penalty for a moment. I can certainly think of examples in which one might conclude that a punishment that is "deserved" is nonetheless one that "ought not" to be imposed. First consider a CEO of some company who has seven children, a widowed mother whom he takes care of, and who has a total family income of $10,000,000 a year. But he embezzles $1,000,000 from his company and loses it gambling on the internet. It seems to me that a perfectly appropriate penalty for that crime, a penalty that is "deserved" is that, among other things, he be made to pay the money back. That is an appropriate kind of punishment for that kind of crime, and is thus "deserved."

But now consider a lower level manager at the same company who has embezzled $1,000,000 from the company, and lost it on the internet gambling. Having committed exactly the same kind of crime, he "deserves" the same kind of punishment for that crime. But now suppose that manager has seven children, a widowed mother whom he takes care of, and a total family income of $50,000. Even though he "deserves" it, imposing that sentence upon that person would make it impossible for him to fulfill other very important obligations to society, for example, sustaining his family, raising his kids, taking care of his widowed mother, because he would never be able to come out from under the weight of the punishment. Then it seems that judicial authority ought not impose that punishment on that man, even though it is "deserved". Yes, he has committed the same kind of crime. Yes, he "deserves" the same kind of punishment. But no, we ought not impose the same kind of punishment, since punishment must serve the common good.

In other words, imposing a particular penalty that is "deserved" might result in a much worse problem for society in some way. Then one ought not to impose it, but, rather, some other punishment that either meets the qualification of being equally "deserved" (a period of incarceration or house arrest for instance that does not lead to the destitution of his family or his inability to work), or a significant punishment that is also "deserved" but that nonetheless embodies a certain level of "forgiving the debt" that is owed. Recognizing that fact does not imply that he does not "deserve" to be made to pay back the money. It just implies that society need not punish someone in every way he could be punished according to what he "deserves". There may be many alternate ways to punish a crime, all of which taken singly count as "deserved"; in fact any punishment must be "deserved", even if we do not have recourse to it.

Or consider the Church's teaching on the death penalty. If we admit the extreme possibility contemplated by the Pope and the Catechism, namely, that there is no other way of protecting society, the act of putting to death must nonetheless be a punishment that the criminal "deserves". We cannot kill him even in such an extreme situation if he has not committed a crime for which that act of punishment is just "desert". We cannot kill him if his crime is stealing horses, for example, or embezzling money. If we suppose that he has committed a crime that does not "deserve" the act of being put to death as punishment, to say that suddenly he "deserves" it because we cannot protect society is to transform our failure into his "desert", which would be morally and politically reprehensible and perverse. Suppose when he is sentenced we can protect society, and so he is sentenced to life in prison without the possibility of parole because "his crime does not 'deserve' death as a penalty." But then through some societal wide disaster we become incapable of protecting society. Does he suddenly change from not "deserving" death as a penalty for his crime to "deserving" death as a penalty for his crime?

On the contrary, if one is to be put to death for a crime, it is a necessary condition that that act of punishment be a "just 'desert'" for that type of crime. No social need of protecting society can justify killing someone who does not "deserve" to die as punishment for what he has done. However, if there is some other way to protect society from someone who has committed a crime that "deserves" death, life in prison without parole for example, then the Pope exhorts us to use that other way. But again, insofar as life in prison without parole is an act of coercive punishment, that act of punishment must also be "deserved" as a punishment for that crime. So both acts, death and life in prison, are "deserved" as types of punishment for his crime. Yet we cannot do both. And we "ought not" to do one of them except in the most extreme case of not otherwise being able to protect society. If we put him to death, we are not suggesting that he did not "deserve" life in prison for his crime. Similarly, if we put him in prison for life because we "ought not" execute him, we are not saying that he did not "deserve" death for his crime.

Now consider this real case here and here. There are many people who think that if any heinous crime "deserves" the death penalty, killing a police officer certainly does. Policemen literally place their lives on the line for civil order and the common good. Their sacrifices are the means by which sufficient civil order is maintained such that we live in a society in which we need not have recourse to the death penalty. Without them, what the Pope writes is moot. In that case their lives "deserve" special protection in the law in order that one recognize the great sacrifice they are willing to make on a daily basis for the common good. Consistent with what the Pope teaches about the extreme situation in which one might have recourse to the death penalty, if they come under attack, the very means of protecting society, then it seems that death is certainly a penalty that is "deserved" for such an attack on civil order and the common good.

Supposing that to be the case, is it possible that someone may "deserve" the death penalty for what he has done, and yet society ought not to execute him? Well consider Ricky Ray Rector who killed a policeman. Governor Clinton left the campaign trail in 1992 to oversee his execution in Arkansas. Rector was not mentally deficient when he killed the policeman. But having killed him, he turned his gun upon himself and shot himself in the head. The subsequent brain surgery left him so mentally impaired that as he went off to his execution he saved his pecan pie from his last meal for "when he got back," and seeing Governor Clinton on television, said he intended to vote for him for president in the Fall. It is plausible to claim that given his mental competency in killing a policeman his crime was of a kind that "deserved" death as an act of punishment, and yet given his mental incompetency subsequent to his crime, he "ought not" to have been executed.

So what is going on here? That an act of punishment is "deserved" is a necessary condition for what society does to criminals. It is not a sufficient condition for doing something to a criminal. Nor is it necessary in the sense of "required."

This is a common moral phenomenon. One "deserves" to have returned to one one's property. A man asks me to hold his gun for him. It is his property. He "deserves" it back. But he is suicidal when he asks for it back. Then I "ought not" to give him what he "deserves". The discharging of such debts must serve the common good. The fact that there are circumstances in which, and goals for which we "ought not" discharge a debt that is "owed", doesn't imply that my friend doesn't in fact "deserve" his gun back. The fact of "desert" does not of itself imply the way in which such "desert" is to be discharged since any discharging of the "desert" must serve the good of the individuals involved and the common good. Just as there can be kinds of acts that are good that ought not to be done in particular (having sexual relations with one's wife (kind) on the courthouse steps (particular)) there are kinds of acts of punishment that are "deserved" and yet ought not to be done in particular.

The reason why an act of punishment can be both "deserved" and one we ought not to do is because like any act, it has many features that enter into its moral evaluation. If we distinguish between a) kinds of acts, b) the circumstances in which instances of those acts are to occur, and c) the goals for which instances of those acts occur, then we have to ask when we say that a "punishment is 'deserved'" what feature of an act of punishment we have in mind when we say so, a), b), or c)? It seems to me that there is certainly a sense in which the question of "desert" comes in to play with a). If a necessary condition for an act of punishment to be deserved is that it involves redressing the wrong at which it is directed, then one must ask of certain kinds of acts whether they are the kinds of acts that do in fact redress the wrong involved in the crime. To take an easy case, ten years of imprisonment, or hacking off a hand for stealing a loaf of bread would not be appropriate kinds of acts of punishment for redressing the wrong involved in the crime. Those kinds of acts would not be "deserved". Community service and a period of probation might be a kind of act that is deserved, but so might all sorts of limited others. But I would think at the very least, when talking about kinds of acts of punishment that are "deserved", one could never impose a kind of punishment that is not "deserved".

However, saying that such a kind of act is deserved does not entail that it is required. Take the death penalty. As a kind of act it may well be deserved for certain crimes, and yet it be the case that, as the Pope says, the only circumstance in which it is "required" is one in which there is no other way to protect society from the wrongdoer. (Given the fact that such an extreme circumstance is contemplated as possible, it follows from a) above that such a punishment must also be "deserved". One cannot use the death penalty to protect society even in an extreme situation, if that punishment is not also "deserved" qua redressing the wrong that was committed.)

In any case, when we bring in considerations of circumstances, that is, b), we might end up saying such things as that while a certain punishment is "deserved" it need not be required. In addition, we might even say that it is "deserved" but in certain circumstances we ought not to pursue it at all, as for example, if our means of carrying out the punishment are particularly brutal, or dehumanizing of the agents of the punishment, or that in these circumstances such a "deserved" kind of penalty would actually undermine the common good, or any number of other circumstances. Think of "truth and reconciliation commissions" throughout the world that are often used in lieu of judicial proceedings that might stand in the way of healing a brutalized society. Those who have brutalized the society certainly deserve punishment of some sort, and yet for the good of the society in the circumstances it is judged that they "ought not" to be so punished.

So with regard to b), I wouldn't think that b) bears upon "desert" but upon a prudential political and judicial judgment. Consistent with the point made above, any alternative punishment that might be imposed when making a prudential judgment about circumstances must be an act of punishment that is also "deserved". Life in prison without possibility of parole must be "deserved" if it is going to be used in such and such circumstances, rather than the death penalty. If it is not "deserved", one cannot impose it just to protect society from possible future harm. But given the brutality of our prison system, perhaps we ought not even impose life in prison without parole, but, rather, some limited time in prison, and so on. These are questions of prudence, not "desert".

I would say much the same about c) as b), namely, that here we have questions of prudence rather than "desert". One "ought not" to impose a punishment even if it meets a) as far as "desert" goes, and meets b) as for circumstances, if one is simply hoping to discharge and thus calm the blood lust of one's community, for example. And to pursue certain social goals, one can "forgive the debt" that is owed, and so on. But, of course, one can only forgive a debt that is actually "owed". It is neither forgiveness nor mercy to claim to forgive what is not "owed" or what is not "deserved". Such a claim is a kind of self deception on the part of governing authority.

Thus, insofar as there are cases in which one would judge that a punishment "ought not" to be employed and yet is deserved, it is clear that the conditional--if one ought not to employ some act of punishment to redress a wrong, then that act of punishment is not deserved--is false. Insofar as it has been explained above how such a state of affairs could obtain, we know why the conditional is false.

There has been a lot of discussion over the web recently of a case in Iran, in which a man convicted of the serial murders of children was executed by a long process of stabbing, flogging and, ultimately, hanging. Eugene Volokh noted this event with relish, leading Rob Vischer at Mirror of Justice to ask if there is any basis in Catholic legal theory for the notion that pain be a necessary part of criminal punishment. Before offering a suggestion, it 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.

lewisb@cua.edu

It was a pleasure to participate in the conference at St. Thomas last week on "Can the Seamless Garment be Sewn? The Future of Pro-Life Progressivism". I only wish we had had more time to talk with the participants. As a philosopher, I am used to going to three and four day conferences where there is plenty of time to talk outside of the formal presentations. On the other hand, I do not often come back from those philosophy conferences with presents in hand, coffee cup, candies, cookies, etc., as I did from St. Thomas. There seems to be something to this legal profession. Everyone at St. Thomas involved in putting the conference on should be proud of their accomplishment. They were gracious hosts. More importantly they are contributing to the common good by getting us to talk with one another about how best to pursue justice. One of the more impressive features of the day was that it didn't share the banality of so many of the "panel discussions" that animate our academic culture, where people express their views but do not genuinely engage one another or their audience. Against a shared commitment to our faith, one had the experience here of genuine engagement with particular positions that disagree with one's own in certain ways, but about which everyone was willing to listen and wrestle.

Over at the Mirror of Justice Mark Sargent, the dean of the Law School at Villanova, posted a brief summary. It is helpful. But as it touches upon my contribution, I thought it might be useful here to register two objections, however mild, to his characterization of what I argued. It also provides me with the opportunity to expand a bit on topics of interest.

In the first place, Mark characterizes my presentation as a critique of the "CE of L". (Consistent Ethic of Life) I did not take myself to be doing that. In fact I took myself to be affirming the "CE of L" when I said "The seamless garment is a beautiful metaphor taken from the Gospel and designed to capture the fullness of Catholic teaching about the common good, and to inspire Catholics as they live out their lives as citizens of this nation," and "[unforunately] instead of being a self-standing approach [as it should be] to legal and policy issues informed by Catholic faith that treats the different [political] parties as instrumental goods in service to it, [the "CE of L"] often becomes [no more than] a rhetorical instrument enslaved to the goals of the parties, more often than not the Democratic party," as well as "Catholics ought to take seriously in their political lives such teachings as are given on abortion, torture, slavery, economic exploitation, as well as the death penalty, Just War, health care, economic development, and welfare, among others."

I would have thought a better way to characterize my presentation was as a critique of one way of formulating the "CE of L," unless of course one insists that what I was critiquing is the only way of understanding what a Catholic "CE of L" could be. In particular, I took myself to be critiquing the way in which the "CE of L" often plays out in practice in our political discourse. I'm not making a relativist point here, as if there are many ways of having a "CE of L", and one just has to choose willy nilly as suits one's fancy. I was no doubt arguing that one way of pursuing it is a wrong way of formulating it. Certainly those who would formulate it in the way that I critiqued would claim that I am wrong. But I took myself to be providing an account of what the "CE of L" should look like. If I am wrong about what the "CE of L" should look like, then I am wrong, and I will adhere to what it should be and abandon my erroneous version of it. But that seemed to be part of the point at issue up at St. Thomas. So to summarize the conference in such a way that I am understood to be posing a critique to the "CE of L" rather than arguing about what it should look like strikes me as begging the question and contentious.

In the second place, by association with an earlier argument of Mark's, he suggests that my discussion of the prudential arguments that must be made about the various goods pursued in Catholic social teaching is a way of "dismiss[ing]" them. That is very contentious indeed. I suppose some do dismiss the issues involved under the guise of "prudential decisions," but that is a rhetorical abuse of prudence. In an earlier post here, I discussed the nature of political prudence at length. And of course the response to the abuse of prudence is not to reject it. The danger, when we reject prudence for fear of its abuse in our moral and political judgments in pursuit of the common good, is that we create something worse than the abuse of prudence. We create modes of self-interested utilitarian calculation in pursuit of public policy, in which it is all too easy to put our own self-interest ahead of the poor and suffering, or we create dehumanizing rules and obligations with which we seek to command our fellow citizens rather than persuade, rules and obligations that often appear to become political idols. (Mill or Kant, but God forbid not St. Thomas) Often in practice such idols are put forward as if they were a priori self-evident truths. When the community fails to grasp their self-evidence, it often acts in a self interested way, not even bothering to consider them at all as a way to pursue the genuine goods of social justice. Thus, treating them as self-evident, not subject to prudence and persuasion, actually undermines our ability to pursue them.

I was simply making the point that the Pope makes in Veritatis Splendor about the pursuit of positive goods versus the avoidance of genuine evils. One can succeed in simultaneously avoiding all intrinsically bad acts that one could commit. To the best of my knowledge I am doing so right now. Thus, so called negative norms involving intrinsically bad acts can and do forbid always and everywhere. However, prudence is involved in the pursuit of genuine goods precisely because they are good. As the Pope argues in Veritatis Splendor, in the case of positive norms of action there are many ways to do good, and one cannot simultaneously do all the good that is possible to one taken individually good by good. As I am writing this, I am not feeding my children, or educating them, or reading the Summa Theologiae, or giving alms to the poor. These are all good things. But I cannot do them all at once. Thus, so called positive norms involving acts that are good cannot oblige always and everywhere precisely because one cannot succeed in simultaneously engaging in all of them. So prudence is required to figure out when, where, and why to pursue a particular good or goods rather than others given the situation.

Mark made a good point in his presentation that one has to make prudential decisions as well about how to pursue, in our pluralistic democracy, limitations on such intrinsically bad acts as abortion and euthanasia. I agree with this claim. I had a section in my presentation on prudence that I cut for reasons of length. But I did talk at the end about the toleration of evil to avoid a proportionately greater evil. Presumably such toleration must commit itself within the context of its judgment of prudence to the gradual elimination of what it is tolerating. But I also pointed out that part of the need for recognizing the difference between acts that are bad in their kind and acts that are not, is that quite often the prudential toleration of acts that are bad in their kind becomes complicity in those acts, as happened with slavery. That isn't a particular danger that generally threatens prudential decisions about acts that are good in their kind.

It is true that there is no prudential judgment about whether the goods of feeding the hungry, clothing the naked, ministering to the sick, and comforting the dying ought to be pursued. They simply ought to be pursued. But it is a prudential judgment about how they should be pursued, where, when, and so on, because one cannot specify always and everywhere according to a dehumanizing mechanical rule how to pursue them. If we do not recognize this fact about the positive goods of social justice to be pursued versus the evils to be avoided, we end up with an intolerable conflict between goods, where one is inevitably sacrificed for another. It seems that if I give everything I have to the poor as I ought, then I cannot educate my children as I ought, I cannot care for my parents as I ought, I cannot contribute to my Church as I ought, and so on. If I am to devote all my time and resources to alleviating the material poverty of those around me as I ought, I will not have time to alleviate the spiritual poverty of my students as I ought. If all of our national resources are to be devoted to the alleviation of hunger, we will have none for health care, economic development, and so on. So faced with this conflict between our obligations, what will we do but sacrifice one or another for those that are more obviously in our own interests, while feeling guilty about those we have sacrificed. But these are conflicts for us because we fear the virtue of prudence, and prefer to live our lives in pursuit of goods of social justice according to mechanical rules. It is the failure to recognize the role of prudence that invites us to dismiss the views of our fellow citizens with whom we disagree.

Political prudence, on the contrary, is the invitation to persuade our fellow citizens. Provided that they do not involve intrinsically bad acts, the first question about particular public policies is whether they actually work in the pursuit of all the public goods we ought to be pursuing. Prudence is the virtue that we exercise together when we craft for our community the form that our pursuit of these goods will take. I don't think a disagreement with me about a particular public policy decision, even as I think it will not work in pursuit of these goods and is thus a bad policy, is sufficient evidence for me to conclude that those who promote it reject the underlying obligation to feed the hungry, clothe the naked, minister to the sick, and comfort the dying. To conclude otherwise would be to make idols of my own judgments.

I don't want to suggest that Mark himself falls prey to what I have described here. But I do fear that in the actual practice of public discourse that animates our politics, the flight from prudence does in fact lead to these problems.

I hope this helps clarify what I was and was not arguing at St. Thomas.

As an addendum to that last post, it strikes me that one way to think about the contribution that Catholics can make to American political discourse is precisely to show the problems with a politics characterized by an ideological dichotomy between "individualism" and "collectivism." Both of those tendencies can indicate, by a kind of shorthand, some problems and possibilities attached to different policy choices, but they break down as independent and substantive norms for policy (not to mention morality). There certainly are important and legitimate differences in politics between those who end to trust in the efficacy of state intervention in particular areas and those who are more skeptical of it, between those whose trust is more in market-based outcomes v. planning and those sorts of opposing arguments are always necessary for adequate and fruitful deliberation. But they are defeasible in the face of the normative center of political deliberation in the common good, itself grounded in the social nature of man. Catholic Republicans and Catholic Democrats must agree about that and about the moral norms that are partly constitutive of the common good and it's this agreement that makes the Catholic perspective a distinctive contribution. But that leaves a great deal about policy to disagree about. If Catholics in both camps can show the problems with conceiving of politics as normatively grounded in either individualism or collectivism that would be an important contribution to refining and enlarging public discourse. Of course, that means being a pest in different ways towards the two dominant parties. But being a pest of the right sort can be a real vocation.

John's post makes a number of excellent points, as does the article in Commonweal (25 February) by J. Peter Nixon. I agree completely with his caveat abut the extent to which the Democratic Party has tied itself to the abortion rights movement as well as with his statement that pro-life Republicans need to be held to the same standards relative to other parts of basic morality. Senators Santorum and Brownback should be held accountable in the matter of their attitudes towards torture.

I want to raise another issue about Nixon's article related to John's last point concerning the author's lumping the torture question together with other standard concerns of the political left. Nixon argues that the Bush administration's position on torture is part of a more general approach to public policy:

If there is a unifying theme to the foreign and domestic policies of the Bush administration, it is contempt for any mechanisms of collective action--progressive taxation, Social Security, labor unions, the Geneva Conventions, the United Nations--that seek to level the laying field between the strong and the weak. With the exception of the administration's efforts to protect human life in the womb and to defend the traditional definition of marriage, it is hard to imagine an ideology that is farther removed from the mainstream tradition of catholic social thought.

That the Republican Party tends towards a kind of individualism is doubtless true, although individualism as a public policy goal doesn't explain some of those items listed above. Even Social Security, which would seem to highlight Bush's individualism is a bit more complicated than it might appear at first. The stock market is certainly a collective enterprise and investing money in personal accounts would seem, at one level, to connect more people to more collective enterprises (that's what businesses are) than they are now. I realize that businesses aiming at maximizing profits are not ordered by the common good in the same way that other human enterprises are (one can argue that they have more to do with interdependent private goods), but that doesn't mean they aren't "collective" in some sense. Moreover, there's no tenet of Catholic social teaching that mandates that a social insurance program like Social Security need be run the same way forever. Whether or not the Bush administrations proposals for reforming it should be adopted is a matter for prudential argument. We are only at the start of that.

Moreover, and more importantly, I don't see why it's an imperative of Catholic social teaching that the state as such be elevated as the only guardian of the common good. The prohibitions on taking innocent human life and on torture apply most often to states and the actions of those claiming to act for states. Catholics should be no more impressed by the claims of the state with respect to regulating the economy than they should with the claims of the state about what immoral acts may seem necessary to defend us from terrorists.

The collective nature of the United Nations is no more a blank check than that of the state. The UN has often proved a useful institution for coordinating international effots to mitigate human suffering. But it's also often been incompetent, dilatory, ignorant, and, most recently, astonishingly corrupt.

It seems to me that the basic problem here is to see politics in the categories of individualism and collectivism and to identify the Catholic tradition with collectivism. Individualism run amok (as sometimes seems to be the goal of many political "conservatives"--an odd thing on its face: what's "conservative" about that?) is often vicious, but so is collectivism. The question one should ask from the perspective of the Catholic intellectual tradition is what protects and promotes the common good, understanding the adherence to basic moral norms as itself partly constitutive of that very common good. This leaves a great deal for Catholic citizens and politicians to argue about when it comes to policy, without confusingly assimilating questions of doctrine to those of prudence.

lewisb@cua.edu