Christopher Tollefsen avers, in a post at the Public Discourse site, that the view taken by St. Thomas Aquinas regarding human dignity “appears to border on incoherence”. To quote in full:

To begin with Aquinas’s view, it appears to border on incoherence: if “dignity” claims are intended to summarily capture certain truths about what it means to have a particular sort of nature, then one can lose one’s dignity, if one initially has it, only by losing one’s nature. But losing one’s nature just is ceasing to exist as the sort of thing one must be if one is to exist at all: it is to go out of existence altogether. This thought is impossible to sustain of a criminal who is the abiding subject of the drama of crime, investigation, apprehension, trial, conviction, and punishment, as even Aquinas’s language, which refers to “he” throughout, makes clear.

But of course, Thomas teaches human dignity to be twofold: a dignity that derives from the ordering of human nature to the hierarchy of common goods, terminating in the common good of divine beatitude; and a dignity that derives from the achievement of moral rectitude. Clearly the latter can be lost, and can be lost in such a way that this poses a direct and disastrous harm to the common good of civil society. The former cannot be lost, and is indeed that which makes one potentially subject to judicial trial and judgment (it is also that which constitutes the basis of remorse amongst the damned, since the order to the good cannot wholly be effaced, although the possibility of achieving it — and the special dignity that that achievement brings about as a perfection of the imago dei in the person — as noted can be lost). Prof. Lawrence Dewan answers this same objection (initially posed by Prof. Gerard Bradley) in his remarkable essay “Thomas Aquinas, Gerard Bradley, and the Death Penalty” which may be found in his book Wisdom, Law, and Virtue: Essays in Thomistic Ethics, published by Fordham Press.

What Tollefsen misses, of course, is what all radically individualist and rights-centered views of moral order miss: that the nature of the good, and the teleological order to the good, is prior to any claim of right whatsoever. A right is only a just claim, and to know that a claim is just requires knowing both the relation of that claim to the normative order of ends, and knowing the circumstances that render such a claim to be appropriate (a judgment of prudence). Rights are not properly foundational, they are derivative from prior accounts of the nature of the good. Many Catholics erroneously begin with Enlightenment presuppositions and then attempt to shoehorn these into the tradition of Catholic discourse, irrespective the magisterial tradition. Tollefsen limits his claim to the proposition that pure reason suffices to indicate that capital punishment is unreasonable. Here is his preferred argument:

From the practical perspective of an agent reflecting on those human goods that give point to human action and that underwrite possibilities of human flourishing, such as the goods of life, friendship, marriage, and personal integrity, we should recognize the following: each of the basic goods, in each of its possible instantiations, considered just in itself, only gives us reason for action, only is capable of motivating us for action on its behalf, and only is an aspect of genuine human well-being. Just in itself, action directly (intentionally) contrary to any human good makes no sense, is void of practical intelligibility. The same is also true of action against the life of even a seriously degenerate criminal. Insofar as he is a human being, his life gives us reason, and only gives us reason, for its protection and promotion.

Sed contra: It is innocent life that is immunized from deliberate killing. More directly to his point above: if each of these goods is truly incommensurable, truly not “co-measured” by its place in the normative order of ends, then none of these goods is a sufficient reason for action because on that supposition, none of these goods is ordered toward a good life, none is ordered toward happiness. Note the deontological subtraction of beatitude — whether we speak of proportionate natural felicity, or ultimate supernatural beatitude — from the ethical equation. Instead, we are told that a list of goods — with no normative order or connection either among themselves or to happiness prior to choice — must never be acted against, although how we interweave them is wholly our own affair (but for what end? — one can’t ask this, because there isn’t any on this account, since none of these putative “goods” is ordered toward the end of the good life or to happiness). Why do we call these “goods” if they are not, precisely as goods, ordered as normative parts of the whole of the good life? Just as the universe is a cosmos, an ordered whole, so is the good life as it were a microcosmos, an ordered whole. But rather than consider the ethical question to be the question of the order normatively defining the good life, Tollefsen with other of the New Natural Law Theorists begins with atomic and non-ordered putative and stipulated “goods” which yet are not ordered either to a natural or a supernatural finality, and so are not ordered to the good life. I repeat: were this thesis true, the goods stipulated to be “basic” would not be goods, because they would not, on that supposition, contribute to the human motio either to the natural or to the supernatural finality, and what does not contribute to the motio either to the natural end of the good life or to supernatural beatitude is not a good. What Tollefsen and the New Natural Law Theorists generally deny, is that all action is in view of the end, and that there is a normative unified teleology embracing both proportionate natural end and supernatural beatific end. Hence, as Russell Hittinger so aptly pointed out many years ago, we have a theory according to which nature “speaks with a forked tongue” inasmuch as the goods are utterly disunified and subject to no morally normative order prior to choice. It cannot be said too often: if goods are not “co-measured” teleologically, if they are not normatively teleologically commensurate prior to choice, then there is no reason whatsoever for considering them to be good. Hence either the claim that those items listed are goods is false; or (which is the correct judgment) those items are goods and are co-mesured in relation to the nature of the good and to happiness — both proportionate natural felicity and supernatural beatitude — in such a way that some are closer to, and others further from, the natural end of a good life and the finis ultimus of supernatural beatitude.

Still, Tollefsen is consistent in his view of capital punishment, because this view of basic goods does require that one make no distinction between capital punishment and wrongful homicide: a position that the Catholic Church has always actively rejected and which (contrary to some Catholics, including some bishops) it still does reject. Nowhere does the Church identify capital punishment as a malum in se, and all the Fathers and Doctors of the Church — with the exception of Tertullian, who died outside the Church — affirm its principled validity (Lactantius did not argue that it was morally invalid or unjust — he expressly affirms the contrary in On Anger — but merely that Christians realize the superiority of charity to the law of the state.). Simply for the benefit of those interested in the Church’s doctrinal teaching, it should be noted that Pius XII taught that the principled legitimacy of the death penalty is not subject to cultural variation — although of course its prudential reasonability would still be subject to social variability (cf. Acta Apostolicae Sedis 47 (1955): 81-82, recounting this teaching of Pope Pius XII). One notes also the high theological note characterizing the profession required of the Waldensians in 1210 in order to re-establish ecclesial communion. The Waldensians were required to acknowledge among other things the essential justice of the death penalty for grave crime (cf. Denzinger, 425: “Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.”). Clearly to require this oath for the re-establishment of ecclesial communion at one moment, and then to require its opposite — where what is at stake is not prudential application but the principled possibility of just penalty of death — would constitute not a development of doctrine, but rather a mutation. Note, again, that the statement directly refers to the death penalty in principle and that it indicates that as such it cannot be a malum in se. One notes also that neither Evangelium Vitae nor the Catechism of the Catholic Church teach the principled evil of the death penalty. In 2004 then-Cardinal Ratzinger strongly instructed the US Bishops, in a letter to Cardinal McCarrick, to the effect that the death penalty or just war are not — like abortion and euthanasia which can never be rightly embraced by a Catholic — by nature and in principle morally evil. The letter states that thus there is room for prudential dispute among Catholics about whether the death penalty or just war are prudentially appropriate in particular circumstances (but there is no such dispute as to whether the Church views them as necessarily mala in se, for — contrary to the New Natural Law Theory it does not.

However, let us put the Church aside for one moment — something that advocates of the New Natural Law Theory must do, since the Church continues even now to hold that the death penalty is not a malum in se and that it may indeed be justly applicable in some cases. This is to say, that the New Natural Law Theory in its account of incommensurability requires, necessitates, the judgment that the Church’s teaching is incorrect now, and has always been incorrect, regarding capital punishment —because the death penalty subordinates the life of the malefactor to the common good of civil society. Why do new natural law theorists reject the transcendence of the common good, and the normativity of the teleological hierarchy of goods? It is one thing to reject a Benthamite calculus of goods, or proportionalism; but to be told that goods are not teleologically commensurate is to be told that there is no order of goods, that all goods are simply incomparable (in which case, again: why would one call them goods?). Clearly we desire life in itself, but not merely for itself — we desire life for the sake of essentially nobler ends than life itself, such as truth, justice, communion with God. These nobler ends are by their nature more communicable to many, more diffusive, more intelligible goods than are merely private goods; they are a hierarchy of ends leading to God Himself, who is, St. Thomas rightly teaches, the extrinsic common good of the universe.

The reason why New Natural Law Theorists reject the normativity of teleological order is that they have persuaded themselves of propositions that are false regarding the relation of the speculative to the practical, or of “is” to “ought”. In consequence they can provide no reason for the differentiation of goods because they are attempting to give an account of right dissevered from the nature of the good as an ordered whole (for them there is no ethically significant order among goods prior to choice). Hence, an imperious subjectivity weaving non-ordered atomic “goods” into whatever pattern it wishes is the norm: a bit like a shopper in the supermarket, who chooses what foods to eat and buys whatever she likes. One must never “act against” a basic good. Must one act for every basic good? If so, in what ratio? If one must not act for every basic good, then it is reasonable to say that on this account, one could, for example, leave out of one’s “life plan” the basic good of religion, or practical reasonableness, and that would be fine? Presumably then, one could simply pursue the good of play one’s whole life, omitting all the others? But if one must pursue the others, to what degree? In what order? For the New Natural Law Theorists, this is a wholly individual issue — there is no normatively right ordering of goods. So: what is the minima natura of the requisite pursuit of the other goods? For surely there must be such if one must pursue all; and if one need not pursue all, then of course one may leave some out, so that religion — or life? — need not be pursued. Yet any minimum natura of required pursuit of the goods implies some common normative ratio prior to choice defining the relative roles of these goods, especially since this cannot plausibly be treated as a merely quantitative matter. In any case, for the New Natural Law Theory the good of play must be considered to be as noble and architectonic as that of religion. Yet, one might think that one’s play is ordered to honoring God in a way that honoring God is not ordered to play, no matter how fervently the golfer prays for the improvement of his performance on the back course.

Further, the New Natural Law Theory requires a radical individualism and pacifism, since one may never “act directly against a basic good” and life is such a good. Hence, the perfervid effort of new natural law theorists to show that direct killing in warfare is somehow not direct, or that Count Stauffenberg did not intend to kill Hitler (which he most certainly did: and indeed, it was an accident that he failed, a function of his “plan of action” having been frustrated by the moving of the bomb which he put there precisely to remove Hitler by killing him). Hence, also, following the effort to treat “direct” killing as “indirect” so that the theory will not appear to the innocent onlooker to be as weak as in truth it is — because the theory would appear to condemn all killing in just war, which killing the New Natural Law Theory accordingly must interpret as indirect, defining “direct” wholly in function of intention without reference to the objective nature of the act — there follows the even more disastrous errors about “direct” and “indirect” that occur when this view of “direct” and “indirect” is applied in the life of a modern hospital. What happens then may be considered in the case of St. Joseph’s Hospital and Medical Center, recently stripped of its Catholic status following a therapeutic abortion performed to save the mother’s life and presented by the hospital — in a defense written by Prof. Lysaught of Marquette University — as justifiable according to the object theory of Prof. Grisez. Lysaught, citing Grisez’s general account, argues that there was no “intent” to harm the child and that therefore the harm done to the child could not be “direct” even though the ripping of the child apart from the placenta, its organ of breathing and nutrition, appears to have been quite deliberate. On such a view the intention of the end quickly occludes the nature of the chosen means. Thus even when these means involve harming an innocent—an action that terminates in the body of an innocent and kills that innocent, rather than that terminates in the body of the putative patient and aids that patient—they are not viewed as “direct”. By analogy, one can only infer that, were a New Natural Law Theorist to be in a position that could accidentally harm another, he would think it justifiable for those seeking to help that other person to suffocate him to death by depriving him of his organ of respiration — by, let us say, pulling his lungs out of his body — for as long as those acting merely sought to help the other person. Which is a little like saying, that if all one wishes to do is add a little light at night, it is alright to do so by burning someone alive because one’s intention is only to “light up the dark” and so the harm is not direct. All this, to defend an account of incommensurability of goods that is itself without adequate foundation. To hear advocates of this erroneous theory accuse Aquinas of incoherence would be comic were the theory not harmful to the common good of civil society and with respect to the actual teaching of the Church.

The New Natural Law Theory is in a way ingenious, in that it is materially far more rich than pure Kantian deontology; while nonetheless, it refuses the speculative wisdom that is necessarily the font of all practical right judgment. New natural law theorists do not acknowledge the teaching of Aquinas in Summa theologiae I.79.11 that only the accident of the ordering of a known truth to the good of an operation distinguishes practical knowledge from speculative knowledge.

Now, to a thing apprehended by the intellect, it is accidental whether it be directed to operation or not, and according to this the speculative and practical intellects differ. For it is the speculative intellect which directs what it apprehends, not to operation, but solely to the consideration of truth; while the practical intellect is that which directs what it apprehends to operation.

All knowledge, as such, has a speculative root; but the accident of ordering some knowledge to the good of an operation renders knowledge to be “practical” by reason of its end. By contrast to this clear teaching of Aquinas, new natural law theorists — with far greater likeness to Kant or Hume than to Aquinas — take the “practical” to be in no way derivative from the speculative. Often they think of any derivation of practical from speculative as necessarily one of mere logical deduction, whereas the foundation is more essential than this. But even logically there is something to say. Of course, one cannot derive a conclusion for action from premises that lack a reason for action: but they take speculative premises necessarily to lack reason for action, whereas prior to our rational desire for an end, we must first know it, and hence that first knowledge is speculative. The fact that one may abstract a view of nature from all reasons for action, does not suffice to prove that an adequate account of nature will not discern that nature includes reasons for action. While one may abstract from the reasons for action constituted by the natural hierarchy of ends, there is no ground for holding that that hierarchy does not precisely provide reasons for action: an adequate knowledge of human nature includes reasons for action (which are not necessarily reasons requiring action hic et nunc, but reasons all the same — judgment of circumstance enters into action). Logically, the mere abstraction from the normative ordering of ends does not prove it not to exist or not to be normative; epistemologically and morally, the desire for the good necessarily presupposes a prior speculative knowledge. Further, prudence itself — a practical virtue — is predicated upon a speculative foundation. It entails both fixed speculative wisdom regarding natures (should I apply salt for the purpose of relieving the pain of a wound? — not given what I know generally about the nature of wounds and the nature of salt), and an adequatio about contingents that is practical only insofar as it is ordered to the good of an operation but not because of its content (insofar as Socrates is sitting, Socrates is necessarily sitting: but if I order this knowledge within a practical deliberation, it is, owing to that accident, “practical” while nonetheless the basic character of knowledge — adequatio or conformitatem intellectus et rei — remains). There is always a speculum, like the grit of sand around which the pearl forms, which is the basis of practical knowledge. To deny this, is to treat the nature of one’s own project as determinative of the truth of the nature of things, which is not an inference the New Natural Law Theorists wish to affirm, but one that given their theory they should affirm. It is, at the end of the day, a theory designed for lawyers to ward off proportionalism, but which manages to ward off the entire classical and scholastic tradition, giving us a worst case amalgam of enlightenment error and analytic logicism. That this maelstrom of a deontological system was initially engendered in the hope of improving upon the Thomistic articulation of the case against the morality of artificial contraception speaks to the laudable intent of its practitioners. But one cannot perpetually judge a teaching simply by the good will of its proponents, but must in justice weigh its actual nature.

Suffice it to say, that on rational grounds the account of Aristotle (errant boulder and all); of Aquinas; of Augustine; of all the Church fathers save Tertullian, who died a heretic; of all the doctors of the Church; and of all the prominent Thomistic commentators, on the essential validity of capital punishment, is far better founded than the New Natural Law Theory. Because human beings are ordered toward transcendent ends, we have a certain dignity; but that first dignity is ordered to be perfected by a second dignity which is that of moral rectitude and virtue, and this second dignity may culpably be lost. The most grave crimes — by nature, and by prudential circumstance — are subject to grave penalty. How often the death penalty should be used, or whether its use is wise in some particular society, is a prudential question, as is the case with every determinatio of punishment: something unknown to deontological rationalists like Kant, and equally unknown to the New Natural Law Theorists who wish a deontological formula to apply in every case. But the loss of prudence in one’s moral account is not a minor inconvenience, it is a strategic disablement; as is the false theory of the incommensurability of goods, and the false proposition that there is any fallacy whatsoever in affirming that normative unified teleology provides reasons for action to man.

Tollefsen — and all of us — deserve a better moral theory than this. Thankfully, St. Thomas Aquinas, building on the achievement of all the Church fathers, as well as Aristotle and Plato, has given us one. It is a shame that intellectually indefensible modern prejudices prevent so many intelligent minds from making the acquaintance of his teaching save on the premise that it first be dismembered and converted into something that it is not.

In any case, the incompatibility of the New Natural Law Theory with Thomas’s teaching is not about some minor and abstruse issue, but is foundational. That New Natural Law Theory is now harmful to the common good both of the Church and of civil society insofar as its proponents oblige themselves to justify, under the aegis of a false account of intention, acts that are in fact directly destructive to innocent life. This is an account that is not only false, but false in such a way as invites censure by the Church. One wonders how many therapeutic abortions, how many wrongful homicides of innocent children, must occur under the erroneous account they propound — an account in which whether an action directly harms is merely a function of intention — before that account will be finally corrected. It is ironic, that thinkers who set out with a deontological formula to protect basic goods from proportionalist derogation and destruction, should end with casuistic defenses of evils like craniatomy and therapeutic abortion. The New Natural Law Theory stands in relation to the tradition of Catholic moral theology and philosophy somewhat as Beregarius stands in relation to the tradition of sacramental theology. Certainly the New Natural Law Theory is a dubious teaching in which to form students in Roman Catholic seminaries and houses of formation. Deontological rationalism is not the direction in which to find moral wisdom, and the New Natural Law Theory material list of goods cannot substitute for this theory’s negation of morally normative teleological order prior to choice, rejection of the foundational role of natural felicity and supernatural beatitude in the moral life, and complete abstraction from prudence.

These last words are offered with the aim of making an objective judgment about the place of New Natural Law Theory in priestly formation. There is no wish to question the orthodox intention of the Catholic New Natural Law Theorists. Their sincere desire to serve the truth—and their sacrifices and good example in doing so, particularly with respect to Humanae vitae—should be evident to all.  But on matters of decisive import for the truth and for the understanding of Catholic faith and morals, the dangers implicit in their account noted above need correction; and the genuine teaching of St. Thomas remains a superior basis for formation in moral theology and philosophy.