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Just More Liberal Drivel?

THE CHURCH AND CAPITAL PUNISHMENT

By Christopher Zehnder

It is told that after the conversion of his people, St. Vladimir, Prince of the Rus, forbade the execution of criminals; it seems he thought such executions incompatible with the Gospel. St. Nicholas of Myra, too, tradition says, intervened when three convicted felons were to be executed. A Russian icon shows this bishop of Myra restraining an executioner whose sword is raised to strike off the head of the condemned.

It is generally thought that the Catholic Church has traditionally approved of capital punishment. While the examples of Saints Vladimir and Nicholas would seem to suggest that this approbation was not universal, it is nevertheless true that the burden of tradition seems to say the sword which St. Paul says the state wields by divine ordination is one that both defends and may, under circumstances, kill. The Catechism of the Council of Trent says so much when it states: "Another kind of lawful slaying belongs to the civil authorities... by the legal and judicious exercise of which they punish the guilty and protect the innocent."

Thus it was that Pope John Paul II's teaching on capital punishment in his 1995 encyclical letter Evangelium Vitae (The Gospel of Life) came as such a surprise to many. There, His Holiness wrote that the "nature and the extent" of the punishment of criminals "ought not go to the extreme of executing the offender except in cases of absolute necessity; in other words, when it would not be possible otherwise to defend society." In our state of society, said His Holiness, "as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent."

Many have found this teaching hard to reconcile with tradition. In an attempt to clarify the pope's teaching, the Mission spoke with James G. Hanink, a professor of philosophy at Loyola-Marymount University in Los Angeles and the associate editor of the orthodox Catholic journal, New Oxford Review. Besides his editorial and professorial duties, Mr. Hanink is well known as a pro-life activist, and works with the Los Angeles-based pro-life organization, Shield of Roses.

What do you think is the doctrinal basis of the pope's teaching that we ought not execute criminals unless necessary for public safety?

We [Catholics] have the central teaching that each person is made in the image and likeness of God, and no matter what [a person does], that ontological similarity and likeness remains. To directly and intentionally attack that is really a rejection of God. At the same time, people can take legitimate measures of self-defense, and I think you can imagine a context in which what what would be called "capital punishment" would logically have the character of self-defense.

Take the example of a country like Rwanda where government has just been stabilized and, boom, here comes one of the last of the war lords into town, and [the social order] is about to fall apart again. Since there's no way to restrain this person, I can see a government authority, in true self-defense, exercising what we might call an execution. But that's the point of convergence. I think what the Holy Father's saying is if you have a stabilized state, as opposed to the pacification of a downtown Rwandan capital, there's no justification for the death penalty.

Do you think, then, it is in itself wrong to kill criminals?

I think it is, in and of itself, intentionally wrong to kill someone; but I think there has to be a very careful analysis of what is involved in intention. If what you're doing, as St. Thomas Aquinas says, is really defending yourself, and even if you can foresee the death of a person praeter intentionem [by trying to stop, but not kill, him], you are not forbidden to defend yourself.

But the means by which states today can defend themselves--lethal injection, the electric chair, etc.--do not cause death praeter intentionem.

Characteristically those are means that can be used only by stable states; the very technology suggests that they are unnecessary. But if you are subduing pirates on the ship or the warlord in the distant capital of Somalia, I think it is a different matter. [Hanink suggested that the means used would be like weapons of self defense rather than instruments of execution.]

Is the death penalty, then, an aspect of war?

Yes. You could have an insurrection that is not a political insurrection [civil war or war between states].

Does John Paul II's teaching contradict centuries of tradition that seem to teach that the death penalty is a permissible way of dealing with serious criminals?

I think that was widely taught, but at the same time, superficially taught. In the same way, I think there were a great many people who were, in terms of their understanding, taught that you couldn't be a conscientious objector. Also, I remember very well reading in an "Ask Father" type of question box the strong suggestion that marrying outside of your race was so colossally unwise that it was on the border of being sinful. We've had the practice of religious orders in the United States having slaves, and the judge who gave the Dred Scott decision [Justice Taney] was a Catholic. So, it certainly is the case that doctrine develops. It can develop in different ways at different times. There are certain things that are regularly practiced in Western industrial countries that maybe reflect Western industrial countries more than they reflect the trajectory of Christianity, and that is certainly true of Eastern and African countries. So much of what we get is filtered through things.

If anyone thinks that there is any 100-year period of Church history anyplace where the Church hasn't needed profound reform, he would have a tough time explaining the prior two millenia. There has never been the case where there has not been the need for profound reform. There really is development [of doctrine], but sometimes I think there is an obscuring of what is established. For example, I don't for a minute think that the Church is speaking clearly at the level of ordinary conversation, ordinary discussion, about usury [the charging of interest on loans]. I think we have interest rates that are just established and accepted, and that Church offices benefit from, that just cannot be defended.

Yet capital punishment is different from these other issues you mention. We're not simply dealing with a small digression in Church teaching. There seems to be no continuous thread of tradition against capital punishment.

I would agree with you. You have a [papal] letter or bull issued around the time of the Waldensians [a twelfth century heretical group who taught that capital punishment was immoral] in which the pope says something to the effect that you cannot say that you can't have capital punishment. [However] that doesn't say when you could have it.

It's interesting that you could find, somewhat analogously, throughout Western Church life a real failure to address legitimate instances of the oppression of women. The Holy Father [Pope John Paul II] says in his letter on the dignity of women that if you really understand Genesis correctly, part of the result of original sin is this chronic demeaning of women. I'm not talking about inclusive language stuff, I'm talking about, "Well, give her a good beating and she'll shape up!" That was pretty much accepted for centuries, and it was plain wrong.

One has to be very careful about infallibility--always defend teaching when it is infallible, don't claim it is when it isn't. You have some pretty clear cases where ordinary Church practice has been woefully deficient. While the papacy, in and of itself, is part of the result of a correct development of doctrine and understanding of the See of Peter, there is a difference between the Church and the pope. It's not that they are at odds with each other, but it is certainly not the case that everything one pope says is true, anymore than some one bishop.

How authoritative, do you think, is the pope's statement on capital punishment in Evangelium Vitae?

I want to say, straightway, that it is utterly authoritative. First of all, because I think it is the truth. Now, insofar as how authoritative it is qua document, I think it has a very high degree of authority. I wouldn't think that, in and of itself, it would count as infallible.

Do you think the pope's teaching is more a counsel--such as poverty, chastity and obedience--or a commandment, such as "you shall love your neighbor as yourself"?

I wouldn't see it as a counsel, because it has to do with human life. It does not have to do with how you will live your life, but whether or not you will take somebody else's life. Poverty, chastity and obedience are so looking towards yourself.

You might have a commandment, but it takes a long time for people to recognize it as a commandment, [like marriage and divorce.] You can find stretches where marriage as it is taught by the Church today was rudimentarily understood by the mass of all Christians.

Would you agree that Pope John Paul II's not entirely clear as to how his teaching on capital punishment squares with tradition?

Yes.

What do you think of the argument that, according to natural law, the death penalty is the only punishment for murder that rights the scale of justice?

That clearly is the position of Immanuel Kant [a 19th-century German philosopher]. You'd want to ask, if that's so, natural justice demands a strict reciprocity. Are we, then, supposed to rape rapists? Aren't there certain crimes that, by their very nature, degrade another? A standard criticism of Kant is that, in the very passages that he supports execution, he says that you cannot torture, because it degrades the person being tortured. If that is the case, you cannot torture those who torture, you cannot rape those who rape. And then there are crimes which, by their very nature, are asymmetrical: you cannot commit treason against a traitor.

Isn't Kant's view similar to the Thomistic view of the death penalty?

What I find in Thomas Aquinas is an argument which I think is just wrong. Thomas has this tension in his own thought about the relationship of the person and the common good. Because he takes too uncritically the Aristotelian view of the common good, the common good swamps the individual. At one point Thomas argues--and this is where you get the principle of totality which is used to justify amputations--that sometimes in order to prevent the ruin of the whole you have to cut off the part. Of course that makes all the sense in the world when it comes to amputation, but no person is a part of society in an analogous way that a hand is the part of the body. If you have that view, you go from the principle of totality to totalitarianism. I think if you have a Christian view of the common good, the common good, in one sense, is always directed for the individual, for the person, because it is the person who is eternal, not the society.

Doesn't your view, though, go against the common notion of justice of an eye for an eye?

Sheldon Vanauken's argument for capital punishment was that nothing will help a person so to repent as imminent death. That's sort of like the executioner has a special ministry! I don't think the Christian understanding of punishment is to somehow right a balance. The function of punishment would be to protect, and not so much as to heal, but to cauterize. You want to protect people, so that allows for mandatory life, maybe, in solitary confinement. Then, what you want to do is bring the person, by way of the punishment, to address the wrong that they've done. Probably, psychologically, a death sentence will do that, but I imagine you get a lot of stupid jerks who need 20 years to think about it. If you kill them three years later, or five years later, they're still only 27; they haven't got a brain in their head yet. If you get them burned out around 65, they'll see what is going on.

I would say that the ultimate idea of justice for the Christian is shalom, which is a reintegration. Shalom is peace, harmony, integration, reintegration, a coming togther of things as they ought to be. If that's what justice is, then restoration is necessary for justice to be realized. But when justice and mercy meet, they meet because they converge, just like all the attributes of God are really the essence of God, but God seen from a different perspective.

What of the argument that capital punishment is the only fitting way a society can show it respects life; that not to execute, say, certain murderers would be to rate life at too low a cost and so demean its value?

This argument seems wildly counter-intuitive. I just don't see it. We can teach respect, we can demonstrate respect by destroying something of infinite worth? I don't see how you could do that.

Does context matter here? In our society, for instance, failure to execute is not seen to stem from a profound respect for life, but from the chicaneries of the legal system.

I think with every single question of a social nature, if you have corrupted politics, then every question that has a political resolution is itself corrupted.

Don't such "seamless garment" positions as opposition to capital punishment dilute the anti-abortion message and turn-off people who could be anti-abortion but are strongly for capital punishment?

[That term, "seamless garment"] started with pro-lifers. Julie Loesch Wiley used it before any bishop used it. I think if you play all your cards [on these issues], people see you have a deck that makes them nervous. If you really say what's on your mind as a Christian, you're going to challenge some presuppositions, find out that people won't like what you say at all. Some bishops and some priests, I think, back off, because they do see how tough it's going to be, and they're not sure if their people could handle it. I've often thought to myself, if I could only get ten percent of the people in our parish to do active pro-life work, wouldn't that make a difference? And it would. And in about six weeks, there'd be about twice as many pro-aborts as there would be Christians. At least, that's what I've seen happen so far. Now, are you willing to deal with all the consequences? I think you should, but it's no light matter at all.

I think lots of times [the "seamless garment"] is used [to water down the anti-abortion message]. It's an easy dodge for many people. Too, I think you probably could have more effective [political] room if you were to trim your sails on some of those things. But I think the whole thing pops out again. Unless you really believe in God, really accept the Gospel, you cast out this devil and seven worse come back. You got to speak the truth from the very beginning.

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