There are two points on which I concur with Prof. Finnis's work published at thepublicdiscourse.com. The first is that the catechetical insert can only signify prudentially, a point that among others I argue in an essay that will soon be published. The second I would articulate by saying that the Catholic tradition is not Kantian regarding penalty, that is, that it may be the case that several distinct penalties may each suffice for retributive proportion, which accordingly must then be further prudentially differentiated in terms of their medicinal effects for the common good.
I do differ from what I take to be his view--perhaps I am incorrect in reading him this way?--that for Thomas retributive proportionality is not essential to penalty. To the contrary, Thomas teaches very formally on this point: "Punishment is proportionate to sin in point of severity, both in Divine and in human judgments” (STh I-II, q. 87, a. 3, ad 1).
Also, Prof. Finnis's account of the oath required of the Waldensians seems to me both historically and doctrinally inaccurate. The Waldensians held that the death penalty was intrinsically wrong, the type of act that could not rightly be chosen with knowlege and full consent without mortal sin. They were made to swear an oath to the effect that if the penalty were imposed without hatred, and "judiciously" ("iudicio" which here denotes "good reason") and "cautiously," it was not mortally sinful, i.e.: this is the kind of act that *can* be performed judiciously. One cannot, for instance, rape and torture an individual judiciously and cautiously, commit sacrilege judiciously, etc. The Waldensian teaching which was held important for the heretics to abjure, was the teaching that the death penalty was of its nature such as to be a grave sin, objectively speaking. Subjective culpability could as well be imported into the consideration of everything else they were asked to abjure, which would essentially have been simply to require them to hold that if someone doesn't know what he is doing, he isn't culpable. But the issue wasn't and isn't whether one is *culpable* or not, but whether objectively the act is or isn't a grave sin (i.e., such that when undertaken with adequate knowledge, sufficient reflection, and full consent it would always be mortally sinful). Finally, Thomas's line about those who do grave evil falling to the level of the beasts does not concern the natural dignity of the wrongdoer, but the acquired and infused dignity in virtue and grace. The inceptive natural dignity of the human person is further ordered to this acquired and infused dignity, and when the latter is lost, the human person *in this respect* "falls to the level of the beast" or in fact even lower, since beasts are not culpable for any disorder they suffer vis a vis their ends. This is important, because in fact it is the very doctrine of the imago dei on which Scripture reposes the foundation of the essential justice of the penalty, and the imago naturae is ordered further to the imago gratiae and finally the imago gloriae.
I do not think it makes sense to say that Thomas, who teaches that certain species of intentional killing are justified by the transcendence of the common good, simply didn't understand his own teaching well enough to avoid this conclusion. Given the consensus of the Fathers, the wide papal teaching on the matter, many papally approved catechisms, and the testimony of Sacred Scripture, the essential validity of the penalty—as distinct from its prudential reasonability in some given place and time—seems to have been taught by the ordinary universal magisterium for two millennia.
Professor Long went on to contend that Finnis misrepresented what Pius XII said in his article dated August 23rd, in which he argued that the "logical conclusion" of Pius XII's teaching is "that capital punishment is inherently wrong." Long comments:
I think that his reading of Pius XII's proposition is unfoundedly tendentious and does not cohere well with Pius XII's own teaching that the death penalty is essentially valid. The power of the state to punish in general is addressed by the Romans passage, but it does so by iterating the most radical punishment which is that imparted through the sword, the "maximum of the genus" as it were. So, it is "about" the foundation of the penal power, but addresses this synecdochally through the authority of the state to impose the most severe penalty which is death. Even more problematic is Finnis's proposition that "Read with the rest of the completed scriptures, Genesis 9:6 no more commands us (or even licenses us) to shed the blood of those who have shed human blood than Genesis 9:4 forbids us to eat any meat not drained of blood." The reason is that the ratio of the death penalty in the imago dei is affirmed in the Genesis passage, which is a very central and crucial ratio for Catholic reflection. The dignity of human nature derives from its ordering to noble ends in nature and grace, and the achievement of this ordering through acquired and infused virtue and infused grace signifies a superordinate dignity with reference to the inceptive natural dignity which is in potency to such perfections. Scripture addresses this continually in a variety of ways. The imago naturae is ordered to the imago gratiae and the imago gloriae, and the latter are of higher dignity than the former and specify it. Even simply in the natural order, the dignity of acquired virtue is loftier than merely the inceptive dignity of human nature unfulfilled and "truncated" in vice, as it were. But understanding the dynamism of the imago dei in nature and grace requires teleology, and the first tutoring here is natural teleology, whose significance for moral reflection is of course a vexed subject of controversy of NNLT advocates with the older tradition. I do think Finnis's reflections are of great interest, and that the Romans passage isn't simply or merely about the death penalty, but about the death penalty as "standing for" or adumbrating the just power of the state in general. So the Romans passage does teach the validity of the death penalty, but does so as a means of addressing the penal power in general. I do think Pius XII took this for granted, given his other statements on the death penalty and the unity of the tradition...