Here is the basic argument: (A) human life is a basic, and not merely an instrumental, good for human persons; (B) no instance of a basic good should ever be destroyed as an end or a means; (C) capital punishment does destroy an instance of the basic human good of human life as a means; therefore (D) no one should ever perform capital punishment upon another human being.
Michael Pakaluk argues that this argument overshoots and Tollefsen replies:
Pakaluk worries that the pluralism of the basic goods approach commits it to too many moral absolutes. After all, if play and aesthetic experience are basic goods, then there should be no intentional damage or destruction of those goods. I think this is correct: to intend damage or destruction of a basic good is to seek its privation as an end or a means. It would be wrong to seek the privation of either of these goods as an end: depriving the world of play or beauty for its own sake is perverse. And I think it wrong to intend such privations as a means as well.
But a moment’s reflection shows that this view does not have the implications discovered by Pakaluk, who infers that a “police officer can no more stop the loud trumpeter from playing outside my window at night, it seems, than society can execute a murderer.” Well, what does the police officer seek to stop? Trumpets and trumpet playing? I doubt it. He seeks to stop untimely and unwelcome noise, and he accepts as a side effect that some musical enjoyment may be thwarted.
This argument, however, seems clearly to fail as a response. It can be granted, for it is surely right, that the basic goods identified by New Natural Law theorists are such that practical reason obligates us not to destroy them, as such. So, for instance, play is a basic good; trying to destroy the possibility for play, as such, or acting in such a way that is inconsistent with play, simpliciter, is morally wrong. But this is not relevant. When people argue in favor of the death penalty, they are not arguing in favor of the elimination of human life, as such; capital punishment is not an attempt to cause the extinction of the human race. Nor are proponents of capital punishment generally arguing that we should act in a way that is inimical to human life as such; a significant number of arguments for its legitimacy are arguments precisely that it is not necessarily such an act. Depriving the world of human life for its own sake would indeed be perverse, but this is not relevant, because (B) is not about the basic goods themselves but about particular instances. And it is not Pakaluk's argument that the excess of moral absolutes occurs at the general level.
When we are talking about the death penalty, we are not talking about human life as such, but an instance of human life; we are not dealing with the basic good per se but in one of its instances. And this is the point of Pakaluk's argument. Play is basic good. But stopping an instance of play is not in and of itself immoral. Principle (B) fails if it is understood as implying that it is always wrong to stop people playing. If children are playing a rowdy game, an instance of play, at a funeral, it is perfectly morally acceptable to make them stop playing. Indeed, arguably, it might not be morally acceptable to let them keep playing. Play is a basic good; it is not an unlimited good such that instances of it must be allowed no matter what the circumstances. What the police officer in the example seeks to stop in Pakaluk's example is quite clearly an instance of a basic good (either play or aesthetic experience, depending on how things go down). This is straightforwardly inconsistent with (B). Nor does it in this case make any sense whatsoever to say that the policeman merely "accepts as a side effect that some musical enjoyment may be thwarted"; he is directly thwarting it himself, as a means to stopping the noise. It's a violation of (B), destroying an instance of a basic good as a means; but it is obviously not immoral. (B) thus fails. It is not sufficiently precise to render the kind of conclusion that it is supposed to render.
The problem here reminds me of the old distinction between perfect and imperfect duties. (B) requires that any destruction of any instance of any basic good is a violation of a perfect duty. But a basic good like play obviously is not taken by practical reason to require the protection of perfect duties with respect to its instances; nobody takes it as doing so. Reason attributes imperfect duties to it -- play must be upheld as good, and given circumstances this will require things of us in particular instances, but no one is prohibited no matter what from shutting down instances of play. The same is obviously true of aesthetic experience; it is obviously true of sociability. To argue that it is not true of human life as a basic good requires arguing that reason handles the good of human life differently from the way it handles the good of aesthetic experience or play or sociability. If something like (B) applies in the case of human life, it is not due to the bare fact that human life is a basic good.
ADDED LATER: Here is a point that I think is relevant to the above, although it is distinct. No good generates an obligation unless it belongs to common good for some kind of complete society (a state, the Church, the human race). A primary problem with (B) seems to me to be a failure to recognize the link between obligation and common good. Not every instance of a basic good is shared in common so as to unite a community; such instances can involve no obligation of the kind (B) suggests, although they may involve default presumptions as to what is reasonable or not, worthwhile or not, and so forth. Since it lacks any recognition of common good as essential to any adequate account of obligation, (B) is inevitably going to be defective.
