"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Saturday, November 11, 2006

More on Tradition and Capital Punishment

Wow. Quite alot of misunderstanding out there among the combox cardinalate. The Pope cannot simply change prior moral teachings. The folks who were disappointed at Humanae Vitae learned that. It's pretty basic.

As to the death penalty, here's a post I wrote last year, just to remind everyone that I'm not talking about my teaching, but the irreformable teaching of the Church:

Catholicism and the Death Penalty, Part One
Ken Lammers over at CrimLaw has put up a podcast wherein he argues against my position that the DP as used in Virginia is in accord with Catholic principles. For the non-religious, this issue may not be that interesting, but even to a religious non-Catholic, the principles involved should be of some interest.I propose a two-part response. First, I will show that the teaching Ken cites, while accurate as far as it goes, short-changes the perennial Catholic teaching on the DP, which is far more expansive than the one document cited by Ken. In the second part, I will argue that even accepting the narrow view currently in vogue, our DP system adequately meets the criteria proposed by the Catechism.Ken begins by reciting the pertinent sections of the Catechism of the Catholic Church pertaining to the DP. Of course he acknowledges, as does the Catechism, that the Catholic position even now is not that the DP is inherently immoral or can never legitimately be used. This first point is the most important, since the catalyst of my comments here and here was Tim Kaine's claim that his opposition to the death penalty is "faith based" because of his Catholicism. So Ken's comments certainly support my position that Kaine is falsely using Catholicism as a shield for what would otherwise be just an unpopular liberal policy preference against the DP. Kaine is clearly hoping that by invoking religion, and hiding as it were behind the Pope's cassock, he will be innoculated politically against the expected public disapproval of his abolitionist stand.With that being understood, let's look at the Catholic teaching about the DP. First, it has to be noted, and Ken does not even acknowledge this, that the historic teaching of the Church is far deeper than the Catechism passages he cites. It is, in sum:

Justice demands that the offended moral order be repaired and restored by a congruent satisfaction; and therefore the duty devolves upon the leaders of the
Republic to take care that grave crimes are punished by proportionate penalties;
for otherwise the moral order is disturbed and endangered. Certainly there are crimes of such gravity committed which, in the general estimation, will only be able to be expiated by means of the death penalty; of such a kind especially is murder cruelly committed after mature deliberation; for crimes which are the greatest affront to the moral order, and encompass the greatest harm, require of their nature the greatest punishment, that is, capital punishment. And therefore this rule is established by common sense: ‘Whoso sheds the blood of man, shall by man have his blood shed.’[Gen 9:6]

I could replicate this encapsulated statement of the Church's traditional teaching by citing Scripture, by citing the Church Fathers, by citing the medieval schoolmen such as St. Thomas Aquinas, by citing Papal writings and standard theology manuals (and I have such a compendium of these sources at hand), all of which strongly concur with the exemplary passage just cited.

It cannot be denied that the Church has consistently through the ages taught that use of the DP is justified not simply under a "self-defense" or utilitarian view, but rather it is seen in the traditional thinking as deeply rooted in a vindication of the sanctity of life and in the requirements of justice. The Catechism of the Council of Trent puts it this way:

The murderer is the worst enemy of his species, and consequently of nature. To the utmost of his power he destroys the universal work of God by the destruction of man, since God declares that He created all things for man’s sake. Nay, as it is forbidden in Genesis to take human life, because God created man to his own image and likeness, he who makes away with God’s image offers great injury to God, and almost seems to lay violent hands on God Himself. That is, since God is the creator of life, and human life is his most precious creation, the violation of that life by a murder is seen as akin to an attack on God Himself.
This underlying view of the evil of murder is what informs the teaching that justice requires congruent satisfaction for this crime, a satisfaction that the Church has always taught includes the use of the DP, regardless of whether it is necessary to defend society from the further harm posed by the culprit.

Thus, the first interesting thing to note is that up until the pontificate of John Paul II, the teaching on the DP was that it was NOT restricted solely to cases where it was necessary for society's physical self defense. The traditional teaching is predicated upon consideration of what is just with respect to punishment. The new teaching is strictly utilitarian, holding that we should only execute when it's the only way to defend against a criminal who might re-offend. Moreover, it is by no means clear that the new teaching, couched in utilitarian language, should be read to overrule the traditional teaching. As a perennial teaching touching on a matter of morals, it is impossible to avoid the conclusion that the Church’s traditional teaching on the death penalty belongs to the Ordinary Magisterium of the Church. It is a teaching to which the following statement of the Fathers of Vatican I applies:

[T]he Church would lose its immutability and dignity and it would cease being a
life-giving society and a necessary means of salvation if it could wander from the safe path of truth in matters of faith and morals, and if, in preaching and explaining these matters, it could deceive or be deceived.
In other words, if the Church had been so wrong about the rightness of the DP, it would have failed in its Divinely constituted mission to lead men to heaven. Such a state of affairs is impossible, so the conclusion follows that the traditional teaching must belong to the infallible set of truths constituting the Ordinary Magisterium or body of fundamental Church teachings. This conclusion is not just mine, it is shared by other commentators (e.g., Rev. Thomas Williams, L.C., “Capital Punishment and the Just Society” in Catholic Dossier, Vol. 4, No. 5 (Sept./Oct. 1998). Even those who think it is not an infallible teaching acknowledge the weight and longevity of this teaching. (see, E. Christian Brugger’s recent book, “Capital Punishment: Roman Catholic Moral Tradition.”).

So much for Part One. The Church's teaching on the death penalty, then, is much broader than a reading of one source (the latest Catechism) or two (Evangelium Vitae) would suggest.

See also here for more on this and additional references laying out the traditional teaching.

In sum, yes, of course, protection of the community is ONE justification advanced by the Church for use of the death penalty. I never maintained otherwise. John Paul II's innovation is to reduce the teaching to that one justification only and to ignore the other, more substantial justifications offered by the magisterium.

Why did he see fit to ignore the "sanctity of life" and "rendering justice" rationales (without, note, expressly rejecting them)? Is it so unreasonable to assume that it is precisely because he wished to reduce the opportunity for recourse to the death penalty?

His own interventions in specific capital cases during his life, and the continued political agitation by high Curial officials like Cdl. Martino, certainly lead to a reasonable conclusion that the European churchmen who dominate the decision-making on such issues, have been imbued with the anti-death penalty mindset which is fashionable among contemporary liberal European secular society.


Stephen J. said...

It might be worth remembering that Karol Woytyla grew up under Soviet totalitarianism in Poland, and would be personally familiar with the abuse of capital punishment in a way that nobody raised in Canada or the United States hopefully would be. Soviet-dominated justice systems tended to both incompetence/error and injustice/political distortion. The idea that giving the state the legal power to execute its own citizens under any circumstances is too grave a gamble with the dignity of human life is a lot easier to understand when this background is considered.

One can grant the idea that execution is a just punishment for certain crimes, but still observe the practical difficulty of civic institutions (which are not protected by infallibility, any more than the Church would be in such a juridical decision) in ensuring with absolute certainty that the execution is justice for an offense, rather than an error of judgement that would (precisely by the teaching on the dignity of human life which is cited) constitute an offense itself, and an uncorrectable one.

Someone who has only ever seen capital punishment used as a tool by which tyrannies punish the innocent intentionally, or a tool all too prone to errors by which the undeserving are punished inadvertently, is unlikely to consider even its correct possible uses worthwhile enough to justify the risks of its misuse or abuse.

Ken Lammers said...

For your readers' edification, here is the video you were responding to and here's a short reply I posted.

Jennifer F. said...

I have nothing interesting to add to your points other than to thank you for introducing me to the term "combox cardinalate". I've been chuckling about that all day.

Anonymous said...


Stephen J., you're absolutely right about the late pope's rationale for adopting a de facto abolitionist attitude toward capital punishment. You could also mention the prevailing intellectual ethos in Europe, which condemned capital punishment under any and all circumstances.

Nevertheless, no pope has the right or the authority to substitute his own experiences or prudential judgement for centuries of Catholic teaching on *any* subject -- which is essentially what the late pope did concerning capital punishment. Doing so is the height of arbitrary behavior and arrogance.

Unfortunately, too many Catholics seem to view the papal office with the attitude that monarchists had toward the divine right of kings. Even popes have to be held accountable; otherwise, why bother with canon law?

Stephen J. said...

"[N]o pope has the right or the authority to substitute his own experiences or prudential judgement for centuries of Catholic teaching on *any* subject...."

True. But I think it's fair to observe that you can legitimately change the attitudes of juridical practice to be appropriate to your time and place without necessarily changing a moral teaching, especially if your awareness of the practical difficulties of proof, context, and potential consequences changes over time. A twelve-year-old could legitimately be executed for murder as an adult in the Middle Ages; while we might try such a twelve-year-old as an adult today, I think you'd look long and hard for the American judge willing to impose a death sentence, even in a state where capital punishment is used. No change in the intrinsic moral licitness, but a profound change in practice, administration, and perception nonetheless.

And truthfully, I think you may be overstating the intention of John Paul's teachings. I don't recall any published statement explicitly asserting that capital punishment was intrinsically morally illicit, nor could JPII have said such a thing and maintained consistency. But John Paul II was preaching against, among other things, the abuse of the death penalty by tyrannical regimes all over the world -- and when abuse has reached a certain point the only correct tactic is to stop completely, not to try to "find the right level" again. Morphine and morphine derivative drugs have legitimate medical uses, and some people are capable of occasional non-addictive use of such drugs; that does not mean that counselling an addict through withdrawal means you should recommend or aim for anything less than total cessation. When fighting your way back up the slippery slope, you don't settle for staying halfway down and you don't advise others to take that approach.

People have often accused Mark Shea of acting as if he can read others' minds; I'd suggest that maybe asserting JPII meant to "substitute his own experiences or prudential judgement for centuries of Catholic teaching" is a little bit of an error along the same lines. We must grant JPII the intelligence to know what he could and couldn't justly say without contradicting the Magisterium; and I think we must also grant him the wisdom that makes his prudential judgement in particular pretty darn prudential. Centuries of Catholic teaching have held that the death penalty can be morally licit; that in no way makes JPII's preaching against the excesses of tyrannical governments invalid, or his counsel on how to prevent such abuses impractical.

Just because it can be morally licit, after all, doesn't mean you have to make it permissible or compulsory in a particular legal system, especially if you have good reason to fear its exercisers in a particular time and place will be prone to error or abuse. The statement "Execution is a just, fair and moral punishment for certain crimes" does not in any way contradict or invalidate the statement "Mistaken execution is one of the gravest offenses against justice possible". Nor does this invalidate the argument that, if one must risk a possible injustice, it is better in general to risk the injustice that one who deserves execution should go unexecuted than vice versa. This, to me, seems only a logical extension of the reasoning behind the "presumed innocent until proven guilty" stance of both Canadian and American law.

In the end, death comes to us all anyway, and a judgement more certain, more fair, and perhaps more merciful than anything we can deliver here comes with it. The practical urgency of ensuring states have the power to execute their own citizens for the sake of temporal justice just doesn't seem particularly critical from that perspective.