BY JAMES JACOBS, AUGUST 17, 2017
Defending himself against the accusation of capital crimes, Socrates famously asserted that the main concern should not be the value of a man’s life, but the value of his life insofar as it is good and just. Socrates crucial point is that justice is more important than life itself, for an unjust life, as he implies elsewhere in the Apology, is not worth living. But is there any principle higher than justice? It would seem so. In the Sermon on the Mount, Christ teaches us to love our enemies. Any just man will love those who are virtuous; but to love those who are by nature unlovable simply because they are a child of God manifests a more profound respect for creation. So, it seems that charity is more important than justice.
These three moral imperatives—life, justice, and charity—provocatively clash in the issue of capital punishment. This conflict is particularly acute for a Christian: as St. John Paul II argues in Evangelium Vitae, Christian doctrine recognizes the inviolable dignity of every life, a teaching which would seem to preclude capital punishment. On the other hand, to say that this dignity invalidates the claims of justice and overrides the rules of the moral order is self- contradictory, for human dignity rests upon man’s ability to know and observe those rules. These competing claims have caused a great deal of uncertainty within the Catholic Church about the possibility of capital punishment, for the divergent impulses of justice and charity appear to pull the believer in opposite directions.
What is needed is a guide to help us navigate these tumultuous waters. This is the aim of the new book by Edward Feser and Joseph M. Bessette, By Man Shall His Blood be Shed: A Catholic Defense of Capital Punishment. Feser, a philosopher, and Bessette, a lawyer and professor of government, draw deeply from both the Catholic tradition and contemporary scholarship to show that capital punishment is not only permissible but even beneficial for society. Their argument, in its simplest outline, is that “there is a strong moral presumption in favor of capital punishment for grave crimes such as murder, [and this] presumption can be overridden only when resorting to capital punishment would fail to serve the common good as well as a lesser punishment.”
The authors substantiate these premises with a methodical analysis of the issue from four perspectives. The first considers capital punishment philosophically, making incisive arguments based on the natural moral law. This is followed with an analysis of the theological tradition, showing that Scripture and the constant teaching of the Church doctors and magisterium affirm the use of capital punishment. The third section examines the legal and sociological evidence demonstrating the effectiveness of capital punishment as a penal sanction. Finally, the authors consider the campaign of the American bishops against capital punishment in recent decades in order to show that it represents a one-sided presentation of the relevant data. They conclude that any teaching prohibiting capital punishment is simply a prudential exhortation, and so is not doctrinally binding on the laity
The arguments are offered in a lucid and systematic manner so that they are accessible to those with no background in philosophy, theology or law. For example, the opening chapter has an admirably clear introduction to the natural law, and the second chapter elucidates the relative authority of various theological sources. They support their argument with copious examples, citing a profusion of authorities, ancient and modern. Conversely, they engage a wide range of objections to their position with great dialectical subtlety. Though there is a certain amount of repetition, this works to impress the logic of their position on the reader. And, although this clearly is a defense of the legitimacy of capital punishment, the authors are forthright that this establishes only that it is allowable, not that it is required. To put it another way, since “there are no good arguments for abolishing capital punishment,” the question of whether to apply it must be made in light of the concrete circumstances of each case. The authors take Cardinal Ratzinger’s opinion as their touchstone: “There may be legitimate diversity of opinion even among Catholics about … applying the death penalty.”
Because opposition to capital punishment is often framed in emotional terms, the authors begin their assessment by outlining the logical reasons behind the Church’s teaching as articulated by natural law ethics. The natural law asserts there is an objective order of justice that must be respected if human beings are to flourish. Punishment, then, exists for the sake of restoring that natural order of justice if it has been broken by some crime. Punishment is therefore a moral requirement, and not merely a utilitarian remedy to protect society. This sort of justice, which must not be confused with an amoral desire for vengeance based on hatred, is known as retributive justice. Importantly, if retribution is to restore the order of justice, the punishment needs to be proportionate to the offense. This sense of proportional retribution is the primary characteristic of just punishment: the offender must pay for his crime. In addition to retribution, there are two additional purposes for punishment: rehabilitation of the offender and deterrence of similar offenses.
While the propriety of capital punishment will be evaluated in terms of all these ends, it is retribution that is the primary criterion in determining whether it is a just punishment. The crucial premise, then, is that “some crimes are so grave that no punishment less than death would be proportionate in its severity.” The rationale is made clear by assuming that the most heinous crime, mass murder or genocide, does not merit death. If absolutely nothing merited death, then the whole idea of proportionality would be destroyed. That, in turn, would subvert the notion of retributive justice itself, for any punishment might be given for any crime. Thus, the authors conclude “the legitimacy of punishment in general and the legitimacy in principle of capital punishment in particular stand or fall together.” Furthermore, the authors argue, because capital punishment also accomplishes the ends of rehabilitation and deterrence, there is no reason to oppose its use in a just society.
Feser and Bessette next consider the Church’s position as articulated in Scripture and Tradition. The evidence they present from the Bible, Church Fathers, popes, and councils demonstrates that the Church has always believed capital punishment to be permissible when justly implemented. The title of the book is taken from Genesis 9:6, which justifies capital punishment as the only reasonable reaction to murder because man is made in God’s image. The New Testament, particularly the Sermon on the Mount, might seem more problematic, but the authors show that these counsels are intended to guide the individual Christian, who is called to a life of charity, and not the state, which is instituted to defend justice in society. Developing these Scriptural principles, the theological Tradition takes it for granted that capital punishment is an acceptable form of discipline. The unanimous evidence dating from the third century indicates that this is a definitive teaching of the Church that cannot be changed even by popes.
Many assume, though, that this position was challenged by John Paul II in Evangelium Vitae and the Catechism. These documents, while accepting the traditional teaching of the Church, insist that a modern state has the capacity to adequately punish the offender and protect society without shedding blood, and so Christians should support non-lethal punishments. The authors respond that this teaching cannot be understood to be a departure from the tradition; rather, it should be seen as a prudential judgment, an application of a moral principle about which there can be diversity of opinion.
The third chapter brings forth a great deal of empirical data from the courts concerning the use of capital punishment to demonstrate that it is both proportionate to the offense and rehabilitative of the offender. Since many question whether execution can ever be proportionate, the analysis begins with a litany of horrific accounts of the forty-three people executed in 2012; this is not easy reading, but it illustrates the depravity of those who are sentenced to death. In light of these details, the public can have confidence in the justice of their society only if these murderers suffer truly proportional retribution, that is, death. Moreover, the personal stories of those who were sentenced show that many were led to contrition, and even conversion, as a result of facing execution.
The final chapter examines how since 1974 the American Bishops have tended to condemn capital punishment as intrinsically opposed to Catholic teaching, making it equivalent to abortion and euthanasia. The bishops cite three arguments in defense of this position: it fails to achieve the goals of punishment; it is inconsistent with Gospel values; and, it is applied in a discriminatory fashion. The authors reply by showing that each of these arguments is indefensible when considered in light of the constant Tradition of the Church and contemporary studies. They also offer an examination of capital punishment as a deterrent, citing empirical data showing that it inculcates a repugnance to crime in general.
The failure of the bishops’ arguments leads the authors to conclude that, given the singular importance of retributive justice, the culture of life is in fact better served when capital punishment is employed, for only then will the dignity of innocent life be fully defended.
This conclusion underscores the fact that there are actually two arguments being made in the book. The first is that the Church’s position on capital punishment has always been that it is not intrinsically evil, but it is rather a matter of prudential decision about which there can be valid disagreement. This argument is completely convincing, given the abundance of evidence from philosophy, Scripture, and Tradition.
There is a second argument, however, that is rarely explicitly thematized, which runs along with the first. This is a positive commendation of capital punishment as being good, for the authors claim that without it the very idea of proportional punishment and the dignity of human life would be lost. This argument not only opposes the abolition of capital punishment, but advocates “applying it with some frequency.”
This conclusion should engender continued debate about capital punishment. While it is clear that employing capital punishment is permissible and just, how often to employ it involves prudential analysis by those who are best informed of the case. Prudence aims for not only what is permissible, but what is best. This seems to be the significance of John Paul’s exhortation, and it is a point worthy of serious consideration. However, to enact that exhortation is increasingly difficult. While we are called to observe the precepts of both justice and charity, the real problem about our current debate is the fact that, as the authors repeatedly note, our society has utterly lost its sense of justice.
Without a sense of justice, we cannot recognize the need for proportionate retribution; worse, this then obscures how charity is a perfection of natural justice by isolating the redemptive from the creative order. Lacking the objective reference of justice, opinions on capital punishment devolve to emotivism: support for it evinces anger, while opposition evinces sentimentality. To kill out of anger is clearly wrong. However, far worse is selectively opposing capital punishment without embracing the totality of the justice and the Gospel, for that can only be a sentimentality that disrespects the dignity of man and God alike. But, I might suggest in accord with Feser and Bessete, we can begin to reclaim the liberating power of charity by first respecting the obligations of justice.
James Jacobs is Professor of Philosophy and Assistant Academic Dean at Notre Dame Seminary in New Orleans, LA. His major area of research is Thomistic natural law theory, and more generally the need for a philosophical realism as a response to modern nominalism and skepticism. Professor Jacobs earned his doctorate in philosophy from Fordham University.