Certain limits ought to exist, we think, on the power of a government—on the power of any government, from the most distant and libertarian to the most watchful and intrusive, from the weak to the strong, from the incompetent to the skillful, from the democratic to the monarchical. Moral limits, for instance, deriving from the human nature of its subjects. Practical limits, for that matter, emerging mainly from the impossibility of watching everyone all the time.
Similarly, there are, we suppose, certain powers that every government possesses, by the sheer fact of its being a government in place—the power to pass and enforce limited laws, for example. Consider a government so tyrannous, so violating of the moral limits on state power, that it has become illegitimate, a valid target for revolution and disobedience. Our intuition, I suggest, is that even such a government has not invalidated its laws against, say, fraud or rape. We may suspect that the judicial system has been so corrupted that we cannot trust it to enforce such laws fairly, but the positive laws themselves are not thereby rendered illegitimate regulations.
All that is shorthand, of course, for a much longer discussion. For the purposes of this argument, however, take it as read: far out on one side are powers we believe no government ought to have, and over on the far edge of the other side are powers we suppose every government has.
With some such understanding in place, however, I want to ask a question about the middle ground—the gap between what a government may never rightly do and what a government may always rightly do. The question is simply this: Are there powers that some legitimate governments possess, while other legitimate governments lack them? Phrased in another way, this is a question of authority: Do all allowable governments have the same levels of authority? Can they legitimately perform all the same actions?
Think of ancient Israel under the Judges and Ithaca under the long-delayed King Odysseus; of the Roman Republic, Golden-Age Spain, and the Papal States as ruled by Pope Gregory XVI; France, for that matter, during the reign of Prince-President Napoleon III, or the Swiss Federation after the anti-Catholic Sonderbund War of 1847; Russia during Kerensky’s brief tenure, Saudi Arabia under its current king Abdullah: legitimate governments all, one supposes (for certain values of the word legitimate). But are we willing to grant that each possesses—metaphysically, constitutionally, and logically—exactly the same powers as the others?
It seems obvious enough that, for a Christian thinker, not every government has the same metaphysical warrant or an equal theological status as an agent of God’s providence. All authority derives ultimately from God, yes, and no historical entity is entirely lost to God’s purposes. But not all authority is directly transmitted, and not every entity is a holy one. God has not said to us of Angela Merkel, chancellor of Germany today, what He said in scripture of David in ancient Israel: “I have laid help upon one that is mighty; I have exalted one chosen out of the people. I have found David my servant; with my holy oil have I anointed him.”
Neither do all governments hold the same powers constitutionally. The right to defend by force its own existence seems a natural authority belonging to every legitimate government, but perhaps the right can be surrendered in at least some sense. Article 9 of Japan’s constitution certainly imagines so, declaring that “The Japanese people forever renounce war as a sovereign right of the nation.” Modern interpretations of the U.S. Constitution prohibit even the individual states from any establishment of religion, but most countries in the Middle East openly declare themselves Islamic nations and are not generally thought to be illegitimately governed merely for that reason.
Finally, not all forms of government provide the same powers logically. His Faithful Majesty Richard the Lionhearted had a logical claim to the right to attempt to reconquer and reclaim the Holy Places in Israel for Christianity. Whether this was a genuine right a ruler could hold (or whether the actual attempt was wise) is an interesting question, but the authority to participate in the Third Crusade derived logically from the medieval Christian oaths with which Richard took his throne. Modern-day France, under its official policies of laïcité, has no logically imaginable claim to a similar authority.
One reason these distinctions may be important is, of course, the death penalty. Set aside, for a moment, the moral questions about capital punishment in America today, the practical concerns and the political problems. The question I want to ask is about the authority to execute criminals, for, I suggest, the question of authority gives us an entirely different way to look at the issue.
Now, some might feel capital punishment to be an illegitimate power that no government ought to possess. Some might think it instead an inherent power that all governments hold, whether or not they exercise it. (As far as that goes, there are even some who, further out on the edge, believe that a government loses a measure of legitimacy if it fails to use its power to execute—the only pro-capital-punishment position I, personally, find coherent. Bloody and inhumane, but coherent.)
The answer, however, may lie between these extremes. Perhaps some forms of government have a colorable claim to the authority to execute murderers, while others do not. Sorting all that out, I believe the United States is one of those that does not have the authority—at least, not in the form of an attempt to use execution as a way to do real retributive justice to the fact that a murderer has taken a human life.
The American state has a duty to maintain the social contract, certainly. To protect its citizens and preserve its own existence, of course. And under easily imaginable circumstances, a prudential judgment might legitimately demand the death penalty in fulfillment of these duties. Even to speak of prudential judgments about how best to defend the social contract, however, is already to have abandoned a certain sense of judgment—judgment as cosmic, metaphysical, and righteous; judgment as fulfilling the theological demands of the universe.
England’s and Scotland’s King James was wrong (one now imagines) when he declared in his royal manual that a king is “ordained for his people, having received from God a burden of government, whereof he must be countable.” Still, at least the premise of his theory of the divine right of kings allowed the conclusion that the king’s magistrates could impose not merely what lawyers of the time called the “low justice” of ordinary social punishment but what they called the “high justice,” in which the defendant’s life is in jeopardy. The theory of the divine right of kings is a metaphysical and theological claim about the state, and it has logical consequences.
But what high powers for justice—what balancing of the cosmic books, taking blood for blood—logically exist for a nation in which a supreme court can read its founding documents to say, for example, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”?
Think of analogous situations in war. Do all forms of government possess—metaphysically, constitutionally, and logically—the same war-making powers? A Christian political theorist would have to hold that a modern, constitutional president lacks authority for military actions that Joshua righteously used in the conquest of Canaan. (For that matter, since the First World War, international law has grown very doubtful about the whole idea of legal authority to rule by right of conquest, although it is an idea of considerable antiquity.)
That is not to say modern states cannot justly go to war for any of several reasons, prudentially applied. But do they have authority to war for all the reasons that a religious state could go to war? In his famous poem about Don John of Austria, G. K. Chesterton mocks the Christian countries (especially France) that failed to send help to defend Christendom at the 1571 Battle of Lepanto—not because it was a bad prudential decision on their part but because they did not participate in what was essentially a crusade. Few would blame, say, the Czech Republic for a similar default today.
The modern interpretation of Just War Theory has almost completely put aside any jus ad bellum that could derive from the need to set right an international wrong; we tend to read Just War Theory as an entirely negative limit: a bar on going to war in certain conditions, rather than something that might, under other conditions, require war.
And, indeed, Just War Theory acts as such a negative bar for a modern democracy seeking to act within its proper authority for defending its citizens. When John Quincy Adams insisted that America “goes not abroad, in search of monsters to destroy,” he was not defining an American pacifism—for war will come, and the lower purposes of self-defense and self-interest may require military force. He was describing instead authority for a high reason to go to war, which he believed the United States lacked.
Some conservatives were extremely uncomfortable with the invasion of Iraq under President Bush and the air support for the Libyan revolution under President Obama, and they expressed some of their discomfort in terms of authority: Whatever the prudential judgments about such wars (with which they often also disagreed), the United States is not a crusader state; it lacks, they said, logical or theological authority to undertake war for ideals or general redress of evil.
Perhaps those conservatives were right, or perhaps not. That’s an argument for another day. But, by way of analogy, consider this: If you had doubts about the high authority of the United States to engage in those military actions, are you not required—for precisely the same reasons—to have doubts about the high authority of the nation to execute its convicted murderers in the name of retributive justice? To apply the death penalty because its killers deserve to die?