"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

Tuesday, May 09, 2017

Fisking Mr. Shea, Part IV

In his latest installment arguing that the comments of Pope Francis and of some bishops and bishops’ conferences urging abolition of the death penalty because it is immoral is a “development” of doctrine, Mr. Shea turns again to the Old Testament.

He returns to his argument that 21st century rejection of the death penalty as a moral option is akin to the early apostles and Christians figuring out whether their Jewish forbears were in error
to circumcise their children and keep kosher. But, of course, they were not. Rather, what the apostles then (and the bishops today) recognise is that more light from God – and more understanding of light already received – changes things and deepens understanding. The apostles did not declare their ancestors in error at the Council of Jerusalem. Rather, they underwent a paradigm shift. 

So, as in his first article, Mr. Shea is equating 6,000 years of Judeo-Christian approbation of the moral quality of capital punishment with the temporally-bound dictates of the Mosaic ritual law. The equivalence is utterly lacking, of course. The Jewish ritual law bound the Jews under the Old Covenant. With Christ, and the New Covenant, it was very quickly clear to the early Christians that observance of “the Law” was not binding for Christians: baptism and the sacraments were the path of holiness under the New Covenant.

The question of the death penalty, however, is entirely different in nature. If, as the abolitionists claim, the death penalty is intrinsically immoral, it could never have been the subject of even permissive allowance, since to suggest so is to claim that God could sanction unjust killing. More fundamentally, recourse to the death penalty by Israel did not occur because it was a part of the ritual law, like circumcision and the dietary code. It was exercised by Israel (and I daresay all other ancient societies) because it is implicitly condoned in the Fifth Commandment and comports with the natural virtue of Justice.

If Mr. Shea is right, that the death penalty was merely permitted, like divorce, in the Old Covenant because of the “hardness of their hearts,” then one would expect that, like divorce, there would have been, very early in the Church, a strong movement against capital punishment, just as there was against divorce. Since it was a common practice that took many lives, one would think that Christ Himself might have condemned the practice, like He did in reference to divorce. But He was silent. Silent even when Dismas the “Good Thief” was hanging on the cross next to him and rebuked the other thief by stating “Do you not even fear God, since you are under the same sentence of condemnation? And we indeed are suffering justly, for we are receiving what we deserve for our deeds; but this man has done nothing wrong." (Luke 23:40-41).

Now the Lord had an excellent opportunity at that point to teach all present and all posterity that Dismas was incorrect, that the death penalty is inherently evil and should be abolished. But He did not, because, frankly, that’s not His teaching and never was.

The false suggestion that there is a “mean God of the Old Testament” who was fine with bloodthirsty practices like the death penalty and a “merciful forgiving God” of the New Testament who would never approve of the death penalty is belied by Scripture itself, such as this passage from Romans:

Therefore he that resisteth the power, resisteth the ordinance of God, and they that resist purchase to themselves eternal damnation. For rulers are not a terror to the good work, but to the evil. . . For he is the minister of God to thee for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is the minister of God: and avenger to execute wrath upon him that doth evil.

 (Rom. 13:2-4)

Nor is this surprising since both Old and New Testaments refer to the death penalty not merely as an accommodation to blood lust, or a culturally conditioned practice due to a “bronze age” judicial system, but as an exercise of the virtue of Justice and a vindication of the importance and value of innocent life.

Mr. Shea then tells us,
 Time was when the Church affirmed that the death penalty is ‘retributive justice’ for murder. It is the punishment that fits the crime: ‘life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe’ (Ex. 21:23-25). Thomas Aquinas affirms this. So do a host of Magisterial authorities before Evangelium Vitae. 

Indeed the Magisterium does teach that the death penalty is in accord with the virtue of justice, as summarized here. Which is why any “development” argument for abolition has to account not only for the clear support for capital punishment in Sacred Scripture, but for the continuous support for it from the Church Fathers, through the schoolmen, through Trent, and through the unanimity of Catholic thought up to and including the pontificate of Pius XII, all of whom taught unambiguously that the death penalty is in accord with both the natural virtue of Justice and the Divine Law found in the Fifth Commandment.

While admitting this Magisterial teaching, Mr. Shea goes on to point out that,
A brief survey of the development of the Church’s thought is in order here, because the notion that justice demands the death penalty and goes unsatisfied without it is simply not supported by Scripture or tradition.

Now to the extent Mr. Shea is claiming that justice and the traditional teaching do not require the death penalty in all cases, he simply states the obvious. Recourse to the death penalty, just like which sentence to hand down for theft, is a contingent matter depending on many mitigating and aggravating factors, mercy being one such factor.

But to the extent Mr. Shea is claiming that we are free to ignore the virtue of justice and the traditional Scriptural view of capital punishment, and conclude that the death penalty is immoral (the abolitionist position), he can find no support in Scripture or the traditional sources of Catholic theology: the Fathers, the schoolmen, the Catechisms and Councils, the Papal teachings.

What then is his answer?
The primal will of God is not “Murderers must always die” or “Restore abstract karmic balance when blood cries out from the ground” but “Look for opportunities to show mercy.” Seen this way, the commandment to Noah to shed the blood of murderers is a indeed concession to human weakness, a last ditch effort to restrain human evil run amuck. It is not the goal to which we are to aspire, but the rough frontier justice of a raw Bronze Age culture.

So, having conceded that Sacred Scripture and Catholic tradition have always allowed for the death penalty, he claims that use of it is a concession to weakness, not a positive mandate.

But even if true (it’s not), it’s beside the point. To say, as the Catholic does, that the death penalty is a just and moral option for states to use in certain circumstances, is not the same thing as saying “justice and the Bible demand that every murder be punished by death.” Again, there has always been a recognition that circumstances, including mercy, might induce the state to impose a lesser sentence than death. There has been no “development” to this perennial view. Pope Francis did not invent or discover mercy. It’s always been one part of the equation is assessing whether in a particular case, capital punishment should be imposed.

In short, Mr. Shea presents a false choice: either it’s “God wants all murderers to die” or “mercy must be shown.” It’s false because he falsifies the traditional teaching, which has nothing to do with maintaining security in bronze-age societies (Pius XII, after all, reigned until 1958), but everything to do with the death penalty being, as the Council of Trent put it, “an act of paramount obedience to this (Fifth) Commandment which prohibits murder.”

But even if you set the equation in those phony terms, he has not shown how we get from “the death penalty is certainly moral in some contingent circumstances” (tradition) to “the death penalty is never moral, no matter the circumstances, because Mercy” (abolitionists).

Citing the abolition of divorce and the ritual Mosaic Law at the start of the Christian era is not a compelling argument, in my view, that 2,000 years of Church Fathers, theologians, and Councils somehow got it wrong when they teach that the death penalty is in accord with Justice and a vindication of God’s hatred of the crime of murder, whose perpetrators, as Trent put it, “almost seem to lay violent hands on God Himself.”

But we’re patiently waiting, and we’ll see what Mr. Shea comes up with next.

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