Four Catholic journals, from a notably broad array of the political and theological spectrum, have joined together to urge that “Capital punishment must end.” I am greatly sympathetic to their effort: I believe capital punishment to be wrong, not just for prudential reasons, but in itself. For I believe it is always wrong to intend the death of a human being, whether oneself or another, and execution of a criminal, when undertaken in order to punish, seems to involve precisely that intention.
That sympathy is not universally shared among Catholics. Edward Feser asserts that “capital punishment should not end.” The always excellent canon lawyer Edward Peters likewise demurs. And Steven A. Long accuses the four journals of holding a “mutationist” and doctrinally “antinomian” position. Long also, in a separate essay, criticizes a journal article of mine in which I sought to shore up my view by arguing that God Himself cannot, and does not, intend the death of any human being, even as punishment.
That position is disputed by many, and I do not claim to speak for other “new” natural law theorists in defending it (though Joseph Boyle has also defended it). But it seems plausible to me as a conclusion of the following argument: human life is a basic good of human beings, a constitutive aspect of their well-being, and God loves each human being always. To love someone is to will the good for that person. Thus God, in creating and maintaining in existence each human person out of love, can no more intend the death of a human person—the privation of that person’s life—than He can in any other way act contrary to His nature as all good. St. Paul tells us in his letter to Titus, “God does not lie.” I assert the same as regards God and intending death.
Moreover, I argue in my essay, my view has roots in the thought of St. Thomas, who holds (a) that God “does not will death as per se intended,” meaning that God does not will death as an end or a means; and (b) that “God in inflicting punishment does not intend the evil for those punished but intends to imprint the ordination of his justice on things, just as water’s privation of its form results from the presence of fire’s form.” The privation of water’s form is, for Aquinas, per accidens, a side effect, of the presence of fire’s form. In a similar way, it seems, God, though intending to impose a punitive order on sinners, does not intend their death.
How does this claim contribute to the discussion of the death penalty? One argument made by Christian defenders of capital punishment since St. Augustine is that God has delegated authority to kill to those with political sovereignty. But if God does not Himself intend to kill, then this is an authority He would no more delegate than He would the authority to lie.
As I say, my view about God is disputed, and faces a weight of difficult Old Testament texts suggesting the contrary. Some of those texts, in which God commands the Israelites to slaughter men, women, and children, are difficult for defenders of more moderate views as well. I cannot address those difficulties here. Rather, I hope to address two objections raised by Long, one to the joint authors of the declaration on capital punishment, and one to me.
Can a Catholic Hold My View About Capital Punishment?
The statement by the four journals suggests, as Long rightly points out, something stronger than mere prudential opposition to the death penalty. Calling something “abhorrent” rather indicates that they think, as I do, that execution of convicted criminals is intrinsically wrong. Such a judgment is likewise suggested by magisterial documents that describe abolitionism as more consistent with our growing understanding of the dignity of the human person. But for Catholics, such a claim stands in tension with the more or less continuous support by the Church of the view that public authorities have a right to punish, including by lethal means when appropriate. As Long points out, this view was shared by most of the fathers of the Church, and has been repeated in subsequent magisterial teaching.
Moreover, and this is a key point of Long and others, the medieval followers of the heretic Peter Waldo were made to swear an oath by the Church, asserting: “Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.” Long finds a “high theological note” in this oath, and asserts that it indicates that “as such it [the death penalty] cannot be malum in se”, i.e., intrinsically wrong.
But there is a considerable difference between swearing that a type of act is not intrinsically wrong, and swearing that those who undertake that kind of act, under particular circumstances, and given certain states of mind, need not commit mortal sins in doing so. Put another way, the oath only requires an affirmation about the subjective state of those who pass or execute lethal sentence, and this subjective state is one we should expect to find in a culture that uniformly accepts the death penalty as just and indeed divinely permitted.
This is an important point for the larger Catholic question of capital punishment and the development of doctrine. Some worry that if the Church can develop on this, it can develop on anything. But there is a crucial difference between Church teaching on capital punishment and Church teaching on, say, abortion. The Church has always—always—taught that abortion is never to be performed, or sought after. Failure to abide by this teaching is considered a mortal sin, and incompatible with life in God’s love. But the Church has never taught that the death penalty is mandatory, nor has it taught that one sins if one rejects its permissibility (and as we’ve seen, this was not what the Waldensians were required to recant). At most, the Church has taught, and perhaps only accepted, its permissibility.
But so, seemingly, did the Church teach, or at least accept, the permissibility of holding slaves or coercing heretics. With regard to these practices, the Church’s teaching has, in developing, grown stricter, not more lenient. Even her teaching on religious liberty is not a freeing of what was once bound, but rather involves a new clarity on the limits that responsible political authority must accept. Moreover, those developments have proceeded by much the same path that the development, if such it is, on the death penalty has: by deepening insight into the nature and dignity of the human person, and the inviolability of human life. So it seems to me that a Catholic can accept the idea of development here without anxiety about other “mutations” of Church teachings.
Can a Christian Hold My View About God and Death?
I will now address an objection specific to Long’s treatment of my essay on God’s intentions. Long treats at some length Christ’s Passion. Given both the interesting questions about human action his discussion raises, and its seasonal relevance, I wish to say something about what Christ’s intentions were in accepting and carrying his cross, and in laying down his life for the redemption of sinful humankind.
That Christ did indeed choose to lay down His life is common ground to Long and myself. That in so laying down His life, Christ showed perfect obedience to His Father’s will, and did not act suicidally, is also common ground. And finally, that Christ’s relationship to his own suffering and death was voluntary is again common ground. For, as the Catechism of the Catholic Church asserts, “Jesus freely accepted his Passion and death” (CCC, 609). But Long goes further, holding that Christ’s Passion and death, as part of “the integral nature and per se effects” of his act, were not merely accepted, but also intended—not as an end, but as part of what he calls the object of Christ’s external act.
But—like Aquinas—I hold that this free acceptance is a different act of will than the act of intending, in which an end is willed, and a means (or several means) chosen for the sake of bringing about that end. What Christ chose was perfect obedience to the Father for the sake of effecting a redemption of sinful humankind and a reconciliation of human and divine persons.
But in doing so, Christ clearly willed, as accepting, the side effects of perfect obedience, in this case, suffering and death. Aquinas explains to us precisely why Christ’s voluntary acceptance must be invoked: Christ could have prevented his own suffering and death, and in this sense may be said to be an indirect cause of his own death by having allowed it. But the direct cause was those who brought about his death by their very intention: they chose to kill him to serve their various purposes.
In this way, Aquinas’s treatment of Christ’s Passion and death returns us to the issue of God’s intentions and the death penalty. For Christ’s relation to his Passion turns out to provide exactly the model of God’s relationship to human death I have argued for: God does not adopt human death as a means to any purpose, and thus does not intend it. But human death is accepted by God, for example, as the natural consequence of sin, which separates human persons from God’s protection.
We too should act in such a way that human death is never intended, whether willed as an end or chosen as a means. Such a purifying of our will would be most consistent with the essential nature and dignity of the human person. Indeed, I think it is demanded by that dignity. But such a purifying of our will would require a commitment to forswear recourse to the death penalty; it would require us to declare that “capital punishment must end.”