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Law, culture, and Catholicism...up in smoke!

Sunday, March 04, 2007

Finnis, Aquinas and the Question of Intentional Killing

John Finnis' book Aquinas: Moral, Political, and Legal Theory provides a breath-taking examination of various philosophical issues in St. Thomas' works. For instance, he provides a convincing argument that Aquinas did not claim the State could legislate on all aspects of morality. Instead, Aquinas contended that the State is limited to those aspects of morality that are within the scope of the public good - those issues that relate to public order and safety. If Finnis is correct, and his argument seems well-supported, it helps to explain how Dignitatis Humanae can describe the State as limited to regulating in accordance with the public good and how that limitation could, conversely, be used (as it is in DH, but not in Aquinas) to describe a level of religious freedom for individuals.

While, as Finnis states in the introduction, his research in preparation for the work convinced him that his own philosophical project (the "New Natural Law") is in greater harmony with St. Thomas than has been acknowledged in certain circles, there are particular areas where he parts company with Aquinas. For instance, he rejects St. Thomas' claim that the State can intend the death of a person, whether through the imposition of the death penalty on a criminal or through war. Instead, Finnis contends that the more rational approach (and the approach more in line with other aspects of St. Thomas' thought) is that the State should not intend the death of the criminal or enemy combatant, but instead intend merely the defense of the community. In other words, the moral use of the death penalty and just war are aspects of self-defense. Leaving aside the question raised by our own Professor Gormally of whether it makes any sense to say we don't intend to harm or kill in the use of the death penalty, I think there is another aspect of Aquinas' thought that Finnis ignores.

Almost entirely missing from Finnis' discussion of the role of the State is an acknowledgement that its authority to punish is derived from God. He does acknowledge that the State has the authority to punish, but his acceptance of the State's authority to punish does not make sense within the context of his apparent claim that the State cannot intend the death of a criminal or enemy for the same reasons that an individual cannot intend the death of another individual. Accepting the State's authority to punish, at least for Aquinas and much of the Church's tradition, is rooted in an acknowledgement that the State has its authority from God. God has the authority to punish in all cases and, as a result, it goes without saying that He can give that authority to the State. As a result, it seems more likely that the solution to Finnis' "conundrum" is to acknowledge the divine aspect of the authority of the State. Once that aspect of Aquinas' thought is accepted, moreover, it makes clear how the State can intend the death of individuals, whether through the death penalty or in war. It is not the State insofar as it derives its authority from the people that has the authority to intentionally kill, but the State insofar as it derives its authority from God.

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