Catholic teaching on the death penalty – or rather, yet another simplistic and misleading presentation of the Church’s teaching – is in the news again. I plan to write up a blog post on this latest controversy, but in the meantime I thought it would be worthwhile reprinting the lengthy treatment of the subject I wrote for the old Right Reason group blog back in 2005. (The original post and the combox discussion it generated can still be found here via the Wayback Machine. But Wayback Machine links are temperamental, so it will be useful to give the post a new home.)
Chris Tollefsen has given a very clear presentation and defense of the anti-capital punishment position, from a point of view that is avowedly Catholic and natural law-oriented. My point of view on these matters is also avowedly Catholic and natural law-oriented. And yet, on this issue, I think that he is very gravely mistaken. Chris says that capital punishment "is always and everywhere wrong." I maintain that such a claim is utterly impossible to reconcile either with natural law or with Catholicism. How can people who seem to have the same premises reach such diametrically opposed conclusions? To answer this question, I want first to make a few remarks about natural law and Catholicism before turning to capital punishment itself. The upshot of my discussion will be that the natural law and the Catholic tradition both entail a view of capital punishment that is unmistakably conservative (rather than "liberal and progressive," as Chris says his own view is).
This will be a somewhat long post, and for that I apologize. But the topic is extremely important, the background issues are complex, and the confusions on the part of many readers – especially regarding natural law theory and Catholic teaching on this subject – might, I fear, be many, so I think a somewhat detailed treatment is called for.
The first thing to be said is that while both Chris and I would use the expression "natural law" to describe our respective approaches to moral questions, it is evident that we do not use it in the same way. Those who are unfamiliar with recent developments in Catholic moral thought might not realize that there are (at least) two general theories going under the name "natural law" these days, and they are very different. On the one hand, there is what we might call the "traditional" or "classical" natural law theory, one of the key assumptions of which is that ethics crucially depends on certain traditional metaphysical theses, such as realism about universals (of the sort historically associated with Plato and Aristotle), a belief that there are final causes in nature, and so forth. On the other hand, we have what has come to be known as the "new natural law theory," which tries to reconstruct a broadly natural law approach to ethics without appealing to any of these metaphysical assumptions. For the older, classical natural law theory, the "natural" in natural law alludes both to human nature, in terms of which the content of morality gets defined, and to the fact that knowledge of at least the basic moral truths is accessible to us naturally (as opposed to supernaturally), through pure reason (as opposed to divine revelation). For the "new natural law theory," by contrast, "natural" has only the second connotation, and advocates of the theory tend to eschew making metaphysical claims about human nature of the sort associated with the classical approach.
The classical or traditional approach to natural law is probably more in line with what the average non-expert thinks of when he hears the expression "natural law" (though I should add that the average non-expert’s idea of the theory is also usually riddled with several very serious misunderstandings of it, as I have tried to show in some previous posts). This is only to be expected given that this is the approach to natural law that prevailed in the Catholic Church for a very long time prior to Vatican II, and was reflected in the standard manuals of moral theology that were once in common use. The "new natural law theory," by contrast, is a very recent invention, and was developed by thinkers (most notably Germain Grisez and John Finnis) who seem impressed by various standard objections made by modern philosophers against classical natural law (such as the appeal to the so-called "fact/value" distinction) and/or are unwilling to rest their moral arguments on metaphysical premises that are far more controversial today than they were in previous centuries. These thinkers also seem inclined to take on board certain moral concepts that derive more from modern (and especially Kantian) thinking than they do from the historical natural law tradition.
Now while the classical approach takes the basic truths of morality to be accessible to pure reason, this by no means entails that it excludes theological considerations from playing a role in ethics. Indeed, the existence of God and the immortality of the soul are, from the classical natural law point of view, metaphysical truths no less capable of demonstration than is the existence of formal and final causes and the like. So for the classical view, there is no reason to ignore these truths when reflecting on morality. Indeed, it would be irrational to do so, for if there really is an Author of nature, then His intentions can hardly fail to be relevant to a proper understanding of our moral obligations, and if human beings have immortal souls, then this is hardly something that can reasonably be ignored when determining for moral purposes what the final end or good for man is.
The “new natural law theory,” however, prefers to emphasize purely secular (in the sense of “worldly”) considerations. To be sure, its proponents typically list “religion” as among the several “basic goods” from which all our moral obligations derive, but this seems to be intended in a kind of anthropological or psychological sense rather than a metaphysical one. For the “new natural law” approach, it isn’t that determining the content of morality crucially depends on knowing whether there really is a God or whether we really have immortal souls (though of course the theory’s advocates don’t deny either the existence or the knowability of God or the soul); rather, what is crucial is that we have a need for religious fulfillment of some broadly defined sort, a need which might in principle be recognized even by someone who doesn’t believe that there is any objective metaphysical reality corresponding to the object of religious belief. The other “basic goods” listed by new natural law theorists – life, knowledge, “play,” and the like – similarly tend to get defined in decidedly “this worldly” terms rather than in metaphysical ones. It is, you might say, from the subjective perspective of the person rather than from the objective ontological perspective that the content of the basic goods gets determined. There is nothing in them that requires appeal to formal and final causes, or anything else of that sort.
Now Chris, I gather, is more or less of the Grisez-Finnis school of thought. I, on the other hand, am quite firmly of the old school. And this, I believe, is surely a large part of the reason for the difference between us regarding capital punishment (and, as some earlier exchanges on the Right Reason blog indicate, regarding other issues too). That does not mean that I think that the case for capital punishment necessarily has to rest on any of the specific metaphysical premises I mentioned, including the theological ones. In fact I think that as good a case can be made for it on purely secular grounds as can be made for any other moral claim. Nor do I believe that the “new natural law” approach itself actually entails an anti-capital punishment position. I do think, however, that an adherent of that view is at least more likely to fall into that particular error (as I see it) than a classical natural law theorist would, for reasons I will explain in a moment.
More puzzling to me is why Chris thinks, as he seems to (from his most recent post and earlier ones), that Catholic teaching favors his view of capital punishment. Presumably the reason has something to do with Pope John Paul II’s statements on the matter, and of course, I do not deny that the pope was opposed to capital punishment. But as is well known, John Paul II’s views on this subject were a departure from traditional Catholic attitudes, which have always upheld not only the in-principle legitimacy of the death penalty, but also its appropriateness in many practical circumstances. (See this important article from First Things by Avery Cardinal Dulles – who is himself in agreement with John Paul II’s views – for a survey of the history of these attitudes which shows just how unanimously they were held in the Church until very recently.) And in Catholic theology, traditional teaching, especially where it is long-standing (as the traditional view of capital punishment is, going all the way back to the Bible) is normative. A pope’s primary obligation is to preserve the traditional teaching of the Church in matters of faith and morals, and anything he says that concerns faith and morals must be interpreted in the light of tradition. This is enough all by itself to rule out any absolute condemnation of capital punishment of the sort Chris seems committed to (though there is, as we shall see, much more to be said).
None of this conflicts with the Catholic view of papal infallibility or with the pope’s authority to issue binding moral instruction to the Church and its members. Infallibility pertains to the normal day-to-day reiteration of the Church’s traditional teaching in matters of faith and morals (the “ordinary magisterium”) and to acts in which the pope explicitly declares and defines ex cathedra some teaching as binding on Catholics (the “extraordinary magisterium”). It also applies only to matters of general principle, not to concrete applications of principle to contingent circumstances (known among Catholics as “prudential judgments”). So, for example, if a pope were solemnly to declare and define that “just war” doctrine is authoritative and binding on all Catholics, his teaching would, from the Catholic point of view, have to be regarded as infallible. But if he were to issue a statement to the effect that some particular war (such as the Iraq war) either did or did not meet just war criteria, his judgment would not be infallible. Now the pope certainly never made any ex cathedra statement about capital punishment; and the ordinary magisterium of the Church, understood (as it must always be) in the light of the teaching of two millennia, if anything supports the defenders of capital punishment rather than its critics. The only possible way to interpret John Paul II’s statements on this matter, then, would seem to be as prudential applications of moral principle. Even though the death penalty is, from the Catholic point of view, not intrinsically evil – something that John Paul II not only did not deny but explicitly re-affirmed – it was, in his prudential judgment, better to refrain from using it if we can effectively “protect people’s safety from the aggressor” by locking him up instead.
And yet, Chris says that capital punishment “is always and everywhere wrong, not just prudentially wrong here and now.” How he would square such a claim with the Church’s consistent teaching of 2,000 years, or indeed with John Paul II’s own expressly stated teaching, I have no idea. But perhaps he was speaking incautiously. Perhaps what he really meant to say was merely that any use of capital punishment for some purpose other than that of “protecting people’s safety from the aggressor” would be wrong. In particular, maybe he means to deny that it can ever be legitimate to apply capital punishment as a means of securing retributive justice. This does, in fact, seem to be the view of some Catholics opposed to capital punishment, who would defend their view on the grounds that John Paul II emphasizes the protection of the innocent, rather than retribution, as a justification for capital punishment under some circumstances.
Even this weaker claim is flatly incompatible with traditional Catholic teaching, though. The constant teaching of the Church has always been, not only that capital punishment is in principle legitimate, but also that it is in principle legitimate precisely as a means of securing retributive justice. There is nothing in anything that John Paul II ever said that contradicts this, and again, anything he did say necessarily has to be interpreted in the light of this traditional teaching. This is not the opinion merely of those Catholics who support capital punishment, but also of some who oppose it. For example, Avery Cardinal Dulles – surely a theological authority of considerable stature – has concluded on the basis of his study of the Catholic tradition that:
“If the Pope were to deny that the death penalty could be an exercise of retributive justice, he would be overthrowing the tradition of two millennia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture (notably in Genesis 9:5-6 and Romans 13:1-4). I doubt whether the tradition is reversible at all, but even if it were, the reversal could hardly be accomplished by an incidental section in a long encyclical [i.e. John Paul II’s Evangelium Vitae] focused primarily on the defense of innocent human life. If the Pope were contradicting the tradition, one could legitimately question whether his statement outweighed the established teaching of so many past centuries.” (National Catholic Register March 24-31, 2002)
Accordingly, Dulles concludes that John Paul II’s view must be interpreted as a prudential judgment (with which, again, Dulles happens to agree) – a fallible application of traditional principles to contingent circumstances, not a denial of traditional principles. Further support for this judgment is provided by an even more authoritative source – the current pope, Benedict XVI, who while still a cardinal wrote, in a now famous letter from just last year regarding the duties of Catholics in public life, that:
“Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. 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.” (emphasis mine)
Now, not to put too fine a point on it, but if the pope himself would be “overthrowing the tradition of two millennia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture” if he were to deny the legitimacy of retribution as a ground for applying capital punishment, how can Chris’s view possibly be characterized as a “Catholic” view of capital punishment? How, if Chris is right, could a Catholic who supports capital punishment possibly present himself in good conscience for Holy Communion, given that he would in that case be guilty of advocating something intrinsically evil? How could Catholics legitimately disagree about the death penalty, but not abortion and euthanasia, if, as Chris seems to think, these are all equally violations of human dignity? Either the traditional teaching of the Catholic Church is wrong, or Chris is.
I realize, of course, that many readers would just shrug and say that it is the Church that is wrong. But the point is that I don’t see how Chris can do this, given that he has described himself on this blog [i.e. Right Reason] as a “traditional Catholic,” one who acknowledges the authority of the traditional teaching of the Church in matters of faith and morals. The very core of the Catholic view of this authority is the idea that God would not allow the Church to teach a fundamental error regarding faith or morals for 2,000 years – that’s the very point of an institutional Church, as an infallible guarantor of doctrine. To suggest that the Church has been wrong about capital punishment implies that Catholicism – which claims infallibility for the Church on basic principles of faith and morals – is false. Obviously Chris wouldn’t want to say this, but then it seems to me he cannot consistently take the view he does regarding capital punishment.
Let me turn now to the philosophical grounds for supporting the legitimacy in principle of capital punishment as a matter of retributive justice. The basic argument is actually quite simple. If we accept that people can deserve to be punished for their offenses and that a punishment ought to be proportional to the offense, then it follows that the worse the offense is, the worse is the punishment deserved, and that the worst offenders deserve to get the worst punishments. That “the punishment ought to fit the crime” doesn’t just entail that jaywalkers shouldn’t be given a penalty of a month in jail; it also entails that bank robbers shouldn’t be given (merely) a month in jail either. The former offense deserves a lesser punishment, the latter a greater punishment. But a murderer deserves a worse punishment than a bank robber does; and a mass murderer, or a murderer who also rapes and tortures his victims, deserves a greater punishment still. If serial bank robbers, kidnappers, and (according to even most death penalty abolitionists) one-time murderers deserve life in prison, then, worse criminals deserve an even worse punishment. And it would be absurd to deny that at some point that punishment is going to be death. Where exactly an offender crosses the line from deserving less-than-death to deserving death (one murder? two? twenty? murder plus rape? murder plus torture? murder while using a racist, sexist, or homophobic epithet?) is a question we need not settle here. What matters is that at some point that line is going to be crossed. This suffices to show that capital punishment is sometimes justifiable in principle as a matter of retributive justice.
It also suffices to show the worthlessness of most of the stock objections to capital punishment. For example, the bumper sticker question “Why do we kill people who kill people to show that killing people is wrong?” assumes falsely that what death penalty advocates (or most people for that matter) think is wrong is “killing people,” full stop, so that they are caught in a contradiction. In fact, what they think is wrong is killing innocent people, people who do not deserve to be killed. And when we phrase the question with this is mind – as “Why do we kill guilty people who kill innocent people to show that killing innocent people is wrong?” – then it is obvious that there is no contradiction at all. Of course, this question has its defects as a bumper sticker slogan, and since simple-minded bumper sticker sloganeering is par for the course with opponents of capital punishment – and also since the answer to this new question is blindingly obvious (i.e. “Because justice requires us to kill them”) – it is no surprise that they prefer not to ask it.
Similarly, to claim that capital punishment is “state-sanctioned murder” or “cruel and unusual” is simply to beg the question, since if the argument just rehearsed works, then the punishment is sometimes deserved, and thus cannot be inherently unjust (which murder is, by definition) or excessive in the way cruel and unusual punishments are. (See David Oderberg’s very fine chapter on capital punishment in Applied Ethics: A Non-Consequentialist Approach for a more detailed treatment of these and other objections to the death penalty.)
Now to reject the basic argument for capital punishment outlined above would, it seems to me, entail denying either that anyone ever deserves to be punished, or that a punishment ought to be proportional to the offense. But to deny these claims would be to deny the very possibility of genuine moral evaluation. It would also, incidentally, constitute another conflict with the Catholic tradition, the very foundation of which is the idea that human beings deserve to be punished for their sins and need salvation from this punishment. Indeed, what they need salvation from, according to the Catholic tradition, is a punishment which is both richly deserved and far, far worse than the death penalty, namely eternal damnation. (Which gives us yet another reason to dismiss any suggestion to the effect that Catholic teaching implies rejecting the legitimacy of capital punishment as retribution: if a person can deserve Hell, he can surely deserve a few seconds in the electric chair.)
All of this brings us back to the “new natural law” reasoning that Chris appeals to in defense of his opposition to capital punishment. Chris claims that since life is one of the basic goods that determine “the parameters of the morally permissible,” it can never be legitimate intentionally to deprive someone of his life. Now in my view the argument concerning desert and punishment outlined above suffices to show that Chris’s argument is just a non sequitur. Punishment consists of depriving someone of a good, and when punishment is deserved it follows that the person has lost any moral claim to that good. And it therefore follows in turn that when what the person deserves is, due to the gravity of his offense, the penalty of death, he has lost any moral claim to his life. So even a “basic good” like life is something a person can in principle legitimately be deprived of. This in no way entails a denial of the “dignity” of the person executed, contrary to what Chris seems to think. On the contrary, it affirms his dignity by treating him as a free and responsible individual who must be held accountable for what he does, rather than (as is common among death penalty opponents) regarding him as a mere cog in a social machine, less responsible for his own actions than is the “society” that molded him into what he is. (Hegel, following a hint of Kant’s, went so far as to say that given his dignity as a person, an offender has a right to be punished. Alas, they don’t make Kantians or Hegelians like they used to.)
(I should also note that in connection with his claims about the dignity of the offender, Chris deprecates the organic view of society that Aquinas and other traditional defenders of capital punishment were committed to, and insinuates that it lay behind “the historical record of the twentieth century” – a not-too-subtle allusion to the horrors of Nazism and Communism. Let us leave aside the fact that it is only with the greatest inattention to conceptual precision that one could hope to assimilate totalitarian collectivism to Thomistic organicism. The salient point is that what led to these horrors was surely at least in part the view that the individual human being is merely the plaything of impersonal Darwinian biological and/or socioeconomic forces, rather than a freely choosing agent responsible for his own actions – precisely the view of so many of the death penalty opponents Chris wants to associate himself with. So before Chris throws the “Holocaust” stone at defenders of capital punishment, he ought to keep in mind that the house he shares with the Sr. Helen Prejeans of the world is a glass one.)
Now if the “new natural law theory” is poorly interpreted as strictly entailing hostility to capital punishment, it is, as I suggested earlier, not too hard to see why its advocates might nevertheless be tempted to such hostility. If you limit yourself in your moral reasoning to this-worldly considerations, it is not surprising if you might inadvertently come to overestimate the value of life in this world. A classical natural law theorist, who quite consciously factors into his moral theorizing that human beings have immortal souls and an eternal destiny, is far less likely to do this. That is not to say that theorists of the latter sort underestimate the value of life in this world; after all, they are, no less than “new natural law” theorists, absolutists when it comes to the intrinsic evil of intentionally depriving innocent human beings of their lives. But when it comes to evaluating the appropriateness of various punishments for the guilty, they are not likely to think of death as a loss of such incalculably horrific magnitude that it starts to seem intuitively plausible that to deprive someone of it must always be an affront to human dignity. Life in this world cannot be a basic good, at least not in the sense required for Chris’s argument, if its point is preparation for life in the next world. It is therefore plausible to regard it as something that can be taken away for the sake of a higher good, viz. restoring a moral order that comprehends both this life and the next.
While “new natural law” theorists are certainly not atheists, and while a commitment to theism is not strictly necessary to the moral defense of capital punishment, there does seem to be at least a psychological and sociological connection between hostility to capital punishment and a kind of “practical atheism,” i.e. thinking and acting as if God did not exist. An obsessive focus on perfecting life in this world and downplaying the idea that it is properly understood only as a prelude to the next world – an attitude that is certainly understandable in atheists, but which has become very common even among Catholics since Vatican II – naturally tends to lead to a desire to extend the natural lifespan, even of murderers, as far as possible and at all costs. It is no surprise that, as Cardinal Dulles (among many others) has noted, “the mounting opposition to the death penalty in Europe since the Enlightenment has gone hand in hand with a decline of faith in eternal life.” And as he further notes, it is also “probably due, in part, to the evaporation of the sense of sin, guilt, and retributive justice, all of which are essential to biblical religion and Catholic faith. The abolition of the death penalty in formerly Christian countries may owe more to secular humanism than to deeper penetration into the gospel.”
Since I think that Dulles’s observations here are pretty obviously correct, I am mystified by Chris’s attachment to the idea, expressed not only in his most recent post but in several other posts he’s made since joining the blog, that the modern world has a deeper understanding of human dignity than previous ages did. I think the truth is precisely the opposite. The medievals regarded human beings as made in God’s image and as possessing immortal souls capable of grasping objective truth, and thus as having as much dignity as it is possible for a bodily creature to have, certainly a dignity far surpassing that of the rest of the natural world. The modern world, by contrast, sees human beings as just one animal among others, differing from the beasts only in degree, their reason being merely a more efficient instrument for finding opportunities to feed and copulate. The medievals emphasized individual guilt, and therefore individual responsibility. Moderns minimize or even deny individual responsibility or guilt, dissolving human agency into the nexus of physical causation, obsessing over our “collective responsibility” for this or that, and emphasizing “structural” rather than personal elements of justice and social life. The medievals regarded the human person as a psychosomatic whole, while moderns tend to see the locus of personhood exclusively in conscious and explicit desiring and planning, effectively obliterating the personhood and rights of the unborn, the comatose, and the mentally retarded. The medievals saw our lives as having epic significance, an arena in which a cosmic battle between good and evil is taking place, climaxing in either eternity in God’s presence or eternity in Hell. The moderns see our lives as a trivial accident which culminates in extinction. What matters, for them, is to get whatever paltry enjoyments out of it one can while it lasts, “morality” consisting of whatever rules rationally self-interested individuals might agree to for the sake of their “mutual advantage” (or something equally anticlimactic and amoral).
True, the rhetoric of “human dignity” has increased in modern times; indeed, modern people simply won’t shut up about it, even as they kill their own unborn children by the millions and live lives of depravity unimaginable to previous generations. If medieval people talked less about their own dignity, it is because they were more concerned about God’s dignity; if modern people talk more about it, it is because they are more concerned with themselves. For most modern people, talk about their “dignity” is, it seems, in reality little more than shorthand for “I can do what I want, and there is no objective or natural moral law that can tell me otherwise.”
Needless to say, the various modern attitudes I have described are far more common among self-described “liberals and progressives” than among self-described conservatives, with many (and indeed perhaps most) of the latter still beholden to something like the medieval view of human dignity and destiny. So if it is “liberals and progressives” who tend to oppose capital punishment and conservatives who tend to support it, surely that tells us something about the moral and philosophical assumptions inherent in most opposition to the death penalty. And what it tells us is the opposite of what Chris seems to think it is. That those assumptions are “liberal and progressive” I do not deny, but for that very reason it seems impossible for them to be much in harmony with either Catholicism or natural law.
