Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, February 29, 2012

Church Fathers and Capital Punishment: Tertullian

TERTULLIAN, THE FIRST of the Latin Church Fathers, is frequently invoked as witness that the early Church viewed capital punishment as a moral offense. Tertullian's death penalty views are found in a number of his extant texts, including his On the Crown, On Idolatry, and On the Resurrection of the Flesh, and On the Soul. We will gather together these various references, and try to come to some conclusion on Tertullian's global view concerning the moral liciety of the death penalty justly applied.

Before turning to the texts themselves, we might observe that reliance upon Tertullian as evidence of the early Church witness against capital punishment may be an undue conclusion. Even the tendentious James Megivern, drawing on the work of Bernhard Schöpf,* concedes the following tentative and ambivalent conclusion regarding Tertullian:
[Tertullian's] brief passages are hardly adequate for drawing general conclusions. It is tempting** to read them as indicating total opposition to any kind of killing as such, and much of the later Christian pacifist literature has interpreted them this way. But such a reading may go beyond what is warranted by the texts . . . .
Likewise, E. Christian Bruggers concedes that Tertullian accepts the institution of capital punishment, though he certainly rails against the manner in which it is applied, and he is uncompromising against the Pagan and idolatrous judicial and military institutions which wield that power.***

Mosaic of Tertullian

Let us start with Tertullian's On Idolatry (De Idolatria). In that work, Tertullian has a chapter on military service, and therein he appears to condemn Christian involvement in the military on account of the requirement of an oath to the Emperor, participation in Pagan sacrifices, and on account of the participation in capital punishment:
But now inquiry is made about this point, whether a believer may turn himself unto military service, and whether the military may be admitted unto the faith, even the rank and file, or each inferior grade, to whom there is no necessity for taking part in sacrifices [immolationum] or capital punishments [capitalium iudiciorum]. There is no agreement between the divine and the human sacrament, the standard of Christ and the standard of the devil, the camp of light and the camp of darkness. One soul cannot be due to two masters—God and Cæsar. And yet Moses carried a rod, and Aaron wore a buckle, and John (Baptist) is girt with leather and Joshua the son of Nun leads a line of march; and the People warred: if it pleases you to sport with the subject. But how will a Christian man war, nay, how will he serve even in peace, without a sword, which the Lord has taken away? For albeit soldiers had come unto John, and had received the formula of their rule; albeit, likewise, a centurion had believed; still the Lord afterward, in disarming Peter, unarmed every soldier. No dress is lawful among us, if assigned to any unlawful action.†
De Idol., XIX.

Now the position taken by Tertullian in this text against any kind of compatibility the Christian calling and a military career seems peremptory and absolute. Contrary to Hyppolitus's Apostolic Traditions, Tertullian's objections appear to be based upon moral grounds, specifically upon Christian revelation. He distinguishes the Old Testament from the New Testament, and insists that Christ has taken away the sword of justice from the Christian, and, at least so long as that sword is in the hands of a pagan Caesar who requires idolatrous oaths and sinful obeisance, he may not take it up again.

This extreme position may be explained by Tertullian's horror with respect to the oath or sacramentum that a soldier had to give Caesar. Such oaths typically invoked the pagan Gods, Jove or Jupiter, or by the genius or divine or guardian spirit of the Emperor, and would be clearly unacceptable to the Christian.†† It may also be explained by the fact that the military was at the front line of enforcing the anti-Christian laws. It would be foolish, then, to accept the military into the sanctuary of the Church as the military sacramentum would conflict with his Christian sacramentum.

Still, one can take the position that Tertullian's argument goes further than this, and that, regardless of the oaths and sacrifices demanded by the existing State, the Christian is prohibited from spilling blood and sitting in judgment. It is not implausible to suggest that Tertullian may be arguing that the Christian may never against hold the sword of justice or the sword of war, but that it will forever be in the hands of others. This would make Tertullian a sort of Quaker or Albigensian avant la lettre. If construed in this manner, Christians would have to forgo any career that uses force, and not only any position in the military, but also that of judge, prosecutor, law officer, and executioner. Indeed, this seems to be Tertullian's very conclusion in Chapter 17 of the same work, where he also teaches that Christians cannot hold public office which requires them to sit "in judgment on any one's life or character," or make judgments that are "about money," and shun any office which requires them to condemn, bind, imprison, or torture anyone.

The extreme position that Tertullian takes on military and judicial service in On Idolatry is somewhat softened in his work De Corona. In his De Corona, he seems to take a disciplinary approach more like St. Hyppolitus in that he allows for soldiers to be baptized as Christians so long as they abstain from killing, but he forbids any Christian from becoming a soldier.
To begin with the real ground of the military crown, I think we must first inquire whether warfare is proper at all for Christians. What sense is there in discussing the merely accidental, when that on which it rests is to be condemned? Do we believe it lawful for a human oath to be superadded to one divine, for a man to come under promise to another master after Christ, and to abjure father, mother, and all nearest kinsfolk, whom even the law has commanded us to honour and love next to God Himself, to whom the gospel, too, holding them only of less account than Christ, has in like manner rendered honour? Shall it be held lawful to make an occupation of the sword, when the Lord proclaims that he who uses the sword shall perish by the sword? And shall the son of peace take part in the battle when it does not become him even to sue at law? And shall he apply the chain, and the prison, and the torture, and the punishment, who is not the avenger even of his own wrongs? Shall he, forsooth, either keep watch-service for others more than for Christ, or shall he do it on the Lord's day, when he does not even do it for Christ Himself? And shall he keep guard before the temples which he has renounced? And shall he take a meal where the apostle has forbidden him? And shall he diligently protect by night those whom in the day-time he has put to flight by his exorcisms, leaning and resting on the spear the while with which Christ's side was pierced? Shall he carry a flag, too, hostile to Christ? And shall he ask a watchword from the emperor who has already received one from God? Shall he be disturbed in death by the trumpet of the trumpeter, who expects to be aroused by the angel's trump? And shall the Christian be burned according to camp rule, when he was not permitted to burn incense to an idol, when to him Christ remitted the punishment of fire? Then how many other offences there are involved in the performances of camp offices, which we must hold to involve a transgression of God's law, you may see by a slight survey. The very carrying of the name over from the camp of light to the camp of darkness is a violation of it. Of course, if faith comes later, and finds any preoccupied with military service, their case is different, as in the instance of those whom John used to receive for baptism, and of those most faithful centurions, I mean the centurion whom Christ approves, and the centurion whom Peter instructs; yet, at the same time, when a man has become a believer, and faith has been sealed, there must be either an immediate abandonment of it, which has been the course with many; or all sorts of quibbling will have to be resorted to in order to avoid offending God, and that is not allowed even outside of military service; or, last of all, for God the fate must be endured which a citizen-faith has been no less ready to accept. Neither does military service hold out escape from punishment of sins, or exemption from martyrdom. Nowhere does the Christian change his character. There is one gospel, and the same Jesus, who will one day deny every one who denies, and acknowledge every one who acknowledges God,--who will save, too, the life which has been lost for His sake; but, on the other hand, destroy that which for gain has been saved to His dishonour. With Him the faithful citizen is a soldier, just as the faithful soldier is a citizen. A state of faith admits no plea of necessity; they are under no necessity to sin, whose one necessity is, that they do not sin. For if one is pressed to the offering of sacrifice and the sheer denial of Christ by the necessity of torture or of punishment, yet discipline does not connive even at that necessity; because there is a higher necessity to dread denying and to undergo martyrdom, than to escape from suffering, and to render the homage required. In fact, an excuse of this sort overturns the entire essence of our sacrament, removing even the obstacle to voluntary sins; for it will be possible also to maintain that inclination is a necessity, as involving in it, forsooth, a sort of compulsion. I have, in fact, disposed of this very allegation of necessity with reference to the pleas by which crowns connected with official position are vindicated, in support of which it is in common use, since for this very reason offices must be either refused, that we may not fall into acts of sin, or martyrdoms endured that we may get quit of offices. Touching this primary aspect of the question, as to the unlawfulness even of a military life itself, I shall not add more, that the secondary question may be restored to its place. Indeed, if, putting my strength to the question, I banish from us the military life, I should now to no purpose issue a challenge on the matter of the military crown. Suppose, then, that the military service is lawful, as far as the plea for the crown is concerned.
De corona, XI.†††

In the sixteenth chapter of his On the Resurrection of the Flesh (De Resurrectione Carnis), Tertullian, speaking of the Final Judgment, speaks of the cup of everlasting salvation, a cup which those who have abused the flesh will not enjoy. Using the cup of their flesh for evil, they poison their own souls. "I will not take the poisoned one, into which some certain death is injected, but one which has been infected with the breath of a lascivious woman, or of Cybele's priest, or of a gladiator, or of a hangman." Tertullian implies that those who wield the punishment of the sword,"which is drunk with the blood of the brigand's victims," should be banished from heavenly joys. This sort of man, Tertullian states, would be disinvited from our own bed rooms, from our own pillows since he would be plagued by the furies of those souls "disquieting him for lying down with the blade which shed their own blood."‡ How much more ought he be disinvited from heaven?

Tertullian's disdain for the military and judicial offices--those that carried with it the potential of using the power of the sword, either in judgment or in execution--should not, however, be construed as being witness against capital punishment per se. The reason for this is that his statements must be construed within the context of other statements where Tertullian gives unapologetic support for capital punishment as a just penalty.

We may for example turn to Tertullian's On the Soul (De Anima). In Chapter 56 of this work, Tertullian describes the Homeric theory of the soul in Hades, and in so doing, he distinguishes between souls who have suffered unjust violence, and those who have suffered death at the hand of justice:

Hence those souls must be accounted as passing an exile in Hades, which people are apt to regard as carried off by violence, especially by cruel tortures, such as those of the cross, and the axe, and the sword, and the lion; but we do not account those to be violent deaths which justice awards, that avenger of violence.

De anim., 56.‡‡

When all these texts are taken together, Tertullian's harsh words against the Pagan judicial and military institutions and their exercise of capital punishment may be construed to be a condemnation of their Pagan basis and unjust application, and not a condemnation of the exercise of capital punishment if justly applied by non-Pagan institutions. The government and military administrations were simply too tied to the Pagan foundations which required oaths to false goods and undue submission to the will of a Caesar or military commander who required a sort of seal or sacramentum of total obedience. Moreover, the institution of capital punishment was unjustly applied, in particular to Christians who were guilty of no crime. Given a civil government which applied the death penalty unjustly against Christian innocents and in vicious and brutal ways, no wonder Tertullian excoriates the entire package and demands that Christians not participate in this vile mix.

Tertullian's thinking would, for example, apply to a Catholic who wished to volunteer for Hitler's Schutzstaffel (SS), with its neo-Pagan ideology and its participation in rank injustice against innocents who were classified as enemies of the State. What bishop or parish priest would not rail similarly against a Catholic who was contemplating joining such a vile institution?

Tertullian therefore cannot be used to suggest that, in a Christian or at least secular situation where capital punishment is justly applied, such prohibitions against military and judicial service would continue. And in fact, after the persecution against the Church desisted and Constantine lifted the sanctions against the Church, one sees Christians actively participating in both government and the military without any qualms of conscience.
*James J. Megivern, The Death Penalty: An Historical and Theological Survey (New York: Paulist Press, 1997), 22.
**Tempting? This choice of words is evidence of Megivern's pacifist and anti-death penalty bias inasmuch as one would not be tempted to construe Tertullian's words anyway unless one was result-oriented.
***E. Christian Brugger,
Capital Punishment and Roman Catholic Moral Tradition (Notredame University Press, 2003), 77.
†XIX. [1] Possit in isto capitulo etiam de militia definitum uideri, quae inter dignitatem et potestatem est. At nunc de isto quaeritur, an fidelis ad militiam conuerti possit et an militia ad fidem admitti, etiam caligata uel inferior quaeque, cui non sit necessitas immolationum uel capitalium iudiciorum. [2] Non conuenit sacramento diuino et humano, signo Christi et signo diaboli, castris lucis et castris tenebrarum; non potest una anima duobus deberi, deo et Caesari. Et uirgam portauit Moyses, fibulam et Aaron, cingitur loro et Iohannes, agmen agit et Iesus Naue, bellauit et populus, si placet ludere. [3] Quomodo autem bellabit, immo quomodo etiam in pace militabit sine gladio, quem dominus abstulit ? Nam etsi adierant milites ad Iohannem et formam obseruationis acceperant, si etiam centurio crediderat, omnem postea militem dominus in Petro exarmando discinxit. Nullus habitus licitus est apud nos illicito actui adscriptus.
††See The Oxford Encyclopedia of Ancient Greece and Rome, Vol. I (s.v. oaths) (Oxford: Oxford University Press, 2010), 85. When the Emperor became Christian, the form of these oats was changed to "by God, Christ, the Holy Spirit, and the majesty of the emperor." (citing Vegetius 2.5).
†††11. [1] Etenim, ut ipsam causam coronae militaris aggrediar, puto prius conquirendum an in totum christianis militia conueniat. Quale est alioquin de accidentibus retractare, cum a praecedentibus culpa sit ? Credimusne humanum sacramentum diuino superduci licere, et in alium dominum respondere post Christum, et eierare patrem ac matrem et omnem proximum, quos et lex honorari et post Deum diligi praecepit, quos et euangelium, solum Christum pluris faciens, sic quoque honorauit? [2] Licebit in gladio conuersari, Domino pronuntiante gladio periturum qui gladio fuerit usus ? Et proelio operabitur filius pacis, cui nec litigare conueniet? Et uincula et carcerem et tormenta et supplicia administrabit, nec suarum ultor iniuriarum? [3] Iam et stationes aut aliis magis faciet quam Christo, aut
et dominico die, quando nec Christo ? Et excubabit pro templis quibus renuntiauit? Et cenabit illic, ubi apostolo non placet? Et quos interdiu exorcismis fugauit, noctibus defensabit, incumbens et requiescens super pilum quo perfossum est latus Christi? Vexillum quoque portabit aemulum Christi? Et signum postulabit a principe, qui iam a Deo accepit? Mortuus etiam tuba inquietabitur aeneatoris, qui excitari a tuba angeli expectat? Et cremabitur ex disciplina castrensi christianus, cui cremari
non licuit, cui Christus merita ignis indulsit? [4] Quanta alibi inlicita circumspici possunt castrensium munium, transgressioni interpretanda! Ipsum de castris lucis in castra tenebrarum nomen deferre transgressionis est. Plane, si quos militia praeuentos fides posterior inuenit, alia condicio est, ut illorum quos Iohannes admittebat ad lauacrum, ut centurionum fidelissimorum quem Christus probat et quem Petrus catechizat, dum tamen, suscepta fide atque signata, aut deserendum statim sit, ut a multis actum, aut omnibus modis cauillandum, ne quid aduersus Deum committatur quae nec extra militiam permittuntur, aut nouissime perpetiendum pro Deo, quod aequefides pagana condixit.[5] Nec enim delictorum impunitatem aut martyriorum immunitatem militia promittit. Nusquam christianus aliud est, unum euangelium et idem : Iesus negaturus omnem negatorem et confessurus omnem confessorem, et saluam facturus animam pro nomine eius amissam, perditurus autem
de contrario aduersus nomen eius lucri habitam. Apud hunc tam miles est paganus fidelis quam paganus est miles fidelis. [6] Non admittit status fidei necessitates. Nulla est necessitas delinquendi, quibus una est necessitas non delinquendi. Nam et ad sacrificandum et directo negandum necessitate quis premitur tormentorum
siue poenarum. Tamen nec illi necessitati disciplina coniuet, quia potior est necessitas timendae negationis et obeundi martyrii quam euadendae passionis et implendi officii. [7] Ceterum subuertit totam substantiam sacramenti causatio eiusmodi, ut etiam uoluntariis delictis fibulam laxet. Nam et uoluntaspoterit necessitas contendi, habens scilicet unde cogatur uel ipsa. Haec praestruxerim et ad ceteras officialium coronarum causas, quibus familiarissima est aduocatio necessitatis, cum idcirco aut officia fugienda sunt ne delictis incidamus, aut martyria toleranda sunt ut officia rumpamus. De prima specie quaestionis, etiam militiae ipsius inlicitae, plura non faciam, ut secunda reddatur, ne, si omni ope expulero militiam, frustra iam de corona militari prouocarim. Puta denique licere militiam usque ad causam coronae.
‡Et tamen calicem, non dico venenarium in quem mors aliqua ructuarit, sed frictricis vel archigalli vel gladiatoris aut carnificis spiritu infectum, quaero an minus damnes quam oscula ipsorum. Nostris quoque sordibus nubilum vel non pro animo temperatum elidere solemus quo magis puero irascamur: gladium vero latrociniis ebrium quis non a domo tota, nedum a cubiculo, nedum a capitis sui officio relegabit, praesumens scilicet nihil aliud se quam invidiam animarum somniaturum urguentium et inquietantium sanguinis sui concubinum? [8] At enim et calix bene sibi conscius et de diligentia ministri commendatus de coronis quoque potatoris sui inornabitur aut aspergine florum honorabitur, et gladius bene de bello cruentus et melior homicida laudem suam consecratione pensabit. [9] 'Estne ergo et in vascula et in instrumenta sententiam figere, ut dominorum et auctorum meritis et ipsa communicent?'
‡‡Proinde extorres inferum habebuntur quas ui ereptas arbitrantur, praecipue per atrocitates suppliciorum, crucis dico et securis et gladii et ferae; nec isti porro exitus uiolenti quos iustitia decernit, uiolentiae uindex.

Monday, February 27, 2012

Church Fathers and Capital Punishment: St. Hyppolitus of Rome

WHILE THERE IS TESTIMONY in the Church Fathers that suggest quite strongly that the early Christian Church saw capital punishment--the ius gladii or "law of the sword held by the Roman empire--as legitimate exercise of authority within certain restrictions, there is testimony that appears to take a contrary tack. Such testimony is found in the Apostolic Traditions of St. Hippolytus of Rome (c. 170 - c. 235), bishop and martyr.

To be sure, there are problems with this authority, but they would not seem to impugn the importance of the negative view of killing by early Christians as it related to the military occupation. The original text--which was written in Greek--is lost, and it "can be reconstituted only through a trail of translations through the Coptic, Arabic, and Ethiopic."*

In any event, in his Apostolic Traditions, Hippolytus, who claims to gather together doctrinal and disciplinary traditions in the Church, has one section where he addresses the conditions for baptism, and therein he lists a series of forbidden occupations, including prostitutes, pimps, actors, gladiators, and so forth. One of the prohibited occupations is the military. In his treatment of the soldier, he has the following to say:
The soldier who is of inferior rank [or 'who is in authority'] shall not kill [execute]** anyone. If ordered to, he shall not carry out the order. . . . If a catechumen or a believer seeks to become a soldier, they must be rejected, for they have despised God.
There is a little inconsistency, in that Hippolytus appears to accept soldiers (but only if they limited their activities to acceptable militare, or administrative and peace keeping duties, and to shun bellare, or wartime duties that would involve killing and executions), and at the same time he suggests the ouster of catechumens of believers if they become a soldier without regard, it would seem, to whether they intended to kill or not. Why, on the one hand, soldiers may be conditionally baptized, but catechumens or even one of the baptized who become soldiers must be rejected entirely seems inconsistent. What this suggests is that this is a disciplinary accommodation.

Russian Icon of St. Hyppolitus of Rome

The reason the witness of Hyppolitus is uncertain is that it is unclear whether he is expressing a matter of discipline based on fittingness (such as clerical celibacy) or whether underlying this view is a moral doctrine (that execution or killing is in all times and in all manner wrong, even by properly constituted authority). If the former, it would have little doctrinal weight. If the latter is involved, it would carry more doctrinal weight.

Additionally, as James Megivern acknowledges in his The Death Penalty: An Historical and Theological Survey, the statement is "so general it is ambiguous." He notes that it is plausible that this could be alluding to the "'killing of criminals in connection with the gladiatorial games, persecution [of Christians], or simply capital punishment.'" It is unlikely, however, given the context, that it refers to the "taking of life in combat as its meaning." Megivern concludes, that Hyppolitus can not therefore be "invoked as contributing very much, precisely because of its ambiguity."***

Another issue should be mentioned, but how it bears on interpretation of this text is unclear to me. Hippolytus is considered the earliest anti-pope, and he headed a schismatic group in Rome against the legitimate Pope Calixtus I. Hippolytus, however, eventually reconciled himself with the Church by submitted to the second successor to Pope Callixtus, Pope Pontian when both were exiled to Sardinia by Emperor Maximinus Thrax. Indeed, that reconciliation was lasting since both Pope Pontian and the former anti-pope Hyppolitus of Rome are regarded as Saints.

The Apostolic Traditions were written during Hyppolitus's schismatic period. What effect this might have had on their content as to this particular issue is unclear. The controversy in which he involved himself and which led to his temporary schismatic status related to Christological controversies and not matters relating to discipline.

Probably the most significant circumstance that ought to be mentioned is that the office of soldier (as well as any upper-level Roman official) presented a real threat to the nascent Church. To allow soldiers--who enforced the Roman law that viewed Christianity as a capital offense--into Church communion would appear to contradict self-preservation. It is perhaps this reality--and not any per se moral objection to the office of soldier or executioner--that is behind the Hyppolitan prescriptions. As Origen noted in his Homilia in Jesu Nave (9:11): "The kings of the earth, the Roman senate, the Roman people, and the imperial nobility have banded together in order to vanquish at once the name of Jesus and of Israel, for they have established in their laws that there shall be no Christians." Given such hostility on the part of the Roman authorities, how could the Christian Church be expected to allow such into their communion without some limitations?

Given these various historical circumstances, the Hippolytan evidence is uncertain and therefore weak if it is offered to support the view that the nascent Church was pacifistic and objected to the moral legitimacy of the death penalty in all circumstances.

*John H. Yoder, "War as a Moral Problem in the Early Church: The Historian's Hermeneutical Assumptions," in Harvey L. Dyck, ed., The Pacific Impulse in Historical Perspective (Toronto: University of Toronto Press, 1991), 101-02. The word is sometimes translated as "execute" (Hegeland, Dix) and sometimes as "kill" (Swift, Easton). "The verbs in the oriental versions allow no such distinction. There is no reason that the difference of rendering would make the prohibition less 'pacifist.'" Id. n. 36 Moreover, the latest text "is the most rigorous. It adds that one who has shed blood shall be excluded from the sacraments." Id. n. 40.
**The full text, translated by Burton Scott Easton may be found here.
***James J. Megivern, The Death Penalty: An Historical and Theological Survey (New York Paulist Press, 1997), 27 (quoting in part J. Helgeland, R. J. Daly, and J. P. Burns, Christians and the Military: The Early Experience (Philadelphia: Fortress Press, 1985), 36).

Sunday, February 26, 2012

Church Fathers and Capital Punishment: Origen

ORIGEN IS ANOTHER AUTHORITY THAT IS frequently cited in exploring the early Christian attitudes regarding the death penalty. Origen's Contra Celsum (also called Contra Celsus), a work written against the anti-Christian polemic The True Word (Λόγος Ἀληθής) written by the anti-Christian philosopher Celsus, is the work that is taken as expressive of Origen's world view.


In his Contra Celsum, Origen (184/185–253/254) states that, as a result of Christ's coming, Christians are proscribed from applying the death penalties required by Mosaic law as part of their religious law. This has been misconstrued to suggest that Origen teaches that early Christians were against the death penalty. For example, David W. T. Brattston has opined that Origen's argument, which might be taken as "most able to related the consensus of ancient Christian teaching," is that "if Christians were in government they would be restrained by the laws of their religion" from putting wrongdoers to death.*

Brattston's interpretation of Origen is a colossal misinterpretation. The best way to show this is to reflect on Origen's text itself:
However, if we must refer briefly to the difference between the constitution which was given to the Jews of old by Moses, and that which the Christians, under the direction of Christ's teaching, wish now to establish, we would observe that it must be impossible for the legislation of Moses, taken literally, to harmonize with the calling of the Gentiles, and with their subjection to the Roman government; and on the other hand, it would be impossible for the Jews to preserve their civil economy unchanged, supposing that they should embrace the Gospel. For Christians could not slay their enemies, or condemn to be burned or stoned, as Moses commands, those who had broken the law, and were therefore condemned as deserving of these punishments; since the Jews themselves, however desirous of carrying out their law, are not able to inflict these punishments. But in the case of the ancient Jews, who had a land and a form of government of their own, to take from them the right of making war upon their enemies, of fighting for their country, of putting to death or otherwise punishing adulterers, murderers, or others who were guilty of similar crimes, would be to subject them to sudden and utter destruction whenever the enemy fell upon them; for their very laws would in that case restrain them, and prevent them from resisting the enemy. And that same providence which of old gave the law, and has now given the Gospel of Jesus Christ, not wishing the Jewish state to continue longer, has destroyed their city and their temple: it has abolished the worship which was offered to God in that temple by the sacrifice of victims, and other ceremonies which He had prescribed. And as it has destroyed these things, not wishing that they should longer continue, in like manner it has extended day by day the Christian religion, so that it is now preached everywhere with boldness, and that in spite of the numerous obstacles which oppose the spread of Christ's teaching in the world. But since it was the purpose of God that the nations should receive the benefits of Christ's teaching, all the devices of men against Christians have been brought to nought; for the more that kings, and rulers, and peoples have persecuted them everywhere, the more have they increased in number and grown in strength.
Contra Celsum, VII.26.**

Clearly, what Origen is speaking about in this text is the Christian notion of separation of Church and State. (cf. Matt. 22:15-22; Mark 12:13-17; Luke 20:20-26) In ancient Judaism, like in traditional Islam, the political and religious realms were joined. Ancient Israel was both a Church and a State, and the Mosaic laws allowing capital punishment were given the Jews for the protection of their State. Origen therefore recognized that such laws that meted out the death penalty for adultery, murder, and other crimes was a proper power of the State. It was part of the natural law, separate and apart from divine law.

Christianity's particular doctrine, Origen states, and one which is necessary to its universal mission, is that things that are Caesar's are to remain Caesar's and that things that are God's are to remain God's. Therefore, Christians--unlike the historical Jews and traditional Muslims--can live under any political system, including that of Roman law, and indeed under the civil laws of any nation so long as they do not contradict the divine law or the natural law. Their religion does not incorporate into itself those kinds of laws that are necessary for the existence of the State.

Implied in Origen's entire argument is that the State, in the Christian view now separated from the Church, has the authority to inflict the death penalty for serious offenses and for the preservation of its constitutional, gubernatorial, justicial, and territorial integrity. There is nothing in Origen that would suggest that even a Christian confessional State would be morally required to prescind from the use of the death penalty in the proper circumstance.

*David W. T. Brattston, "Early Challenges to Capital Punishment," Catholic Insight, Vol. 17, no. 6 (June 2009) also published earlier in Christian Ethics Today (Fall 2008), Vol. 14, no. 4,
**The original Greek text: Εἰ δὲ χρὴ κἂν ὀλίγα περὶ τῆς διαφόρου πολιτείας εἰπεῖν, ἥντινα Ἰουδαῖοι κατὰ Μωϋσέα πρότερον ἐπολιτεύοντο, καὶ ἣν Χριστιανοὶ νῦν κατὰ τὴν Ἰησοῦ διδασκαλίαν βούλονται κατορθοῦν, φήσομεν ὅτι οὔτε τῇ κλήσει τῶν ἐθνῶν ἥρμοζε κατὰ τὸν Μωϋσέως ὡς πρὸς τὸ γράμμα πολιτεύεσθαι νόμον, ὑπὸ Ῥωμαίοις τεταγμένων, οὔτε τοῖς πάλαι Ἰουδαίοις οἷόν τ' ἦν τὸ σύστημα τῆς πολιτείας ἔχειν ἀκαθαίρετον, εἰ καθ' ὑπόθεσιν τῇ κατὰ τὸ εὐαγγέλιον πολιτείᾳ ἐπείθοντο. Ἀναι ρέσει μὲν γὰρ πολεμίων ἢ τῶν παρὰ τὸν νόμον πεποιηκότων καὶ ἀξίων κριθέντων τῆς διὰ πυρὸς ἢ λίθων ἀναιρέσεως οὐχ οἷόν τ' ἦν Χριστιανοὺς χρῆσθαι κατὰ τὸν Μωϋσέως νόμον, εἴ γε οὐδ' οἱ Ἰουδαῖοι θέλοντες κατ' ἐκείνων δύνανται ταῦτα, ὡς ὁ νόμος προσέταξεν, ἐπιτελεῖν. Πάλιν τε αὖ ἐὰν ἀνέλῃς ἀπὸ τῶν τότε Ἰουδαίων, σύστημα ἴδιον πολιτείας καὶ χώρας ἐχόντων, τὸ ἐπεξιέναι τοῖς πολεμίοις καὶ στρα τεύεσθαι ὑπὲρ τῶν πατρίων καὶ ἀναιρεῖν ἢ ὅπως ποτὲ κολάζειν τοὺς μοιχεύσαντας ἢ φονεύσαντας ἤ τι τῶν τοιούτοις παραπλησίων πεποιηκότας, οὐδὲν λείπεται ἢ τὸ ἄρδην αὐτοὺς ἀθρόους ἀθρόως ἀπολέσθαι, ἐπιτιθεμένων τῶν πολεμίων τῷ ἔθνει, ὡς ὑπὸ τοῦ ἰδίου νόμου ἐκνενευρισμένων καὶ κωλυομένων ἀμύνεσθαι τοὺς πολεμίους. Καὶ μὴ βουλο μένη γε ἡ πάλαι μὲν τὸν νόμον δεδωκυῖα πρόνοια νῦν δὲ τὸ Ἰησοῦ Χριστοῦ εὐαγγέλιον κρατεῖν ἔτι τὰ Ἰουδαίων καθεῖλεν αὐτῶν τὴν πόλιν καὶ τὸν ναὸν καὶ τὴν παρὰ τῷ ναῷ διὰ θυσιῶν καὶ τῆς ἀναγεγραμμένης λατρείας θεραπείαν τοῦ θεοῦ. Ὥσπερ δ' ἐκεῖνα μὴ βουλομένη ἐπιτελεῖσθαι ἔτι καθεῖλε, τὸν τρόπον τὸν αὐτὸν τὰ Χριστιανῶν ηὔξησε καὶ ὁσημέραι εἰς πλῆθος ἤδη δὲ καὶ παρρησίαν ἐπιδέδωκε, καίτοι γε μυρίων ὅσων κωλυμάτων γενομένων πρὸς τὸ μὴ ἐπισπαρῆναι τὴν Ἰησοῦ διδασκαλίαν τῇ οἰκουμένῃ. Ἀλλ' ἐπεὶ θεὸς ἦν ὁ βουλόμενος καὶ τοὺς ἀπὸ τῶν ἐθνῶν ὠφεληθῆναι διὰ τῆς Ἰησοῦ τοῦ Χριστοῦ διδασκαλίας, πᾶσα μὲν ἀνθρωπίνη βουλὴ κατὰ Χριστιανῶν καθῃρέθη, ὅσῳ <δ'> αὐτοὺς ἐταπεί νουν βασιλεῖς καὶ ἐθνῶν ἡγούμενοι καὶ δῆμοι πανταχοῦ, τοσούτῳ πλείους ἐγίνοντο "καὶ κατίσχυον σφόδρα σφόδρα".

Saturday, February 25, 2012

Church Fathers and Capital Punishment: Athenagoras

IN HIS PLEA FOR CHRISTIAN TOLERANCE called Legatio Pro Christianis (A Plea [or Embassy] for Christians),* Athenagoras, the self-described "Athenian, Philosopher, and Christian" (ca. 133-190), defends the Christian Church against allegations of ritual cannibalism which, of course, implied prior murder of victims. This was a common accusation against Christians because of the Pagan misunderstanding of the Eucharistic celebration and the eating of Christ's Body.

Opponents of the death penalty frequently point to this excerpt of Athenagoras's apologia as evidence of early Church opposition to the death penalty:
What man of sound mind, therefore, will affirm, while such is our character, that we are murderers? For we cannot eat human flesh till we have killed some one. The former charge, therefore, being false, if any one should ask them in regard to the second, whether they have seen what they assert, not one of them would be so barefaced as to say that he had. And yet we have slaves, some more and some fewer, by whom we could not help being seen; but even of these, not one has been found to invent even such things against us. For when they know that we cannot endure even to see a man put to death, though justly; who of them can accuse us of murder or cannibalism? Who does not reckon among the things of greatest interest the contests of gladiators and wild beasts, especially those which are given by you? But we, deeming that to see a man put to death is much the same as killing him, have abjured such spectacles. How, then, when we do not even look on, lest we should contract guilt and pollution, can we put people to death? And when we say that those women who use drugs to bring on abortion commit murder, and will have to give an account to God s for the abortion, on what principle should we commit murder? For it does not belong to the same person to regard the very foetus in the womb as a created being, and therefore an object of God's care, and when it has passed into life, to kill it; and not to expose an infant, because those who expose them are chargeable with child-murder, and on the other hand, when it has been reared to destroy it. But we are in all things always alike and the same, submitting ourselves to reason, and not ruling over it.

Leg. pro Christ., XXXV.

The Culture of Death against which Athenagoras Rails

In my view, Athenagoras's apologia for Christians cannot be twisted into advocacy against the immorality of the death penalty without wresting it from its context.

First, there is no suggestion on the part of Athenagoras that Christians held that the death penalty was immoral or against divine law.

Second, the context--which is his defense against the accusations of ritual cannibalism--appears to be founded upon a comparison of general attitudes between Pagans and Christians, and not upon any Christian doctrine that capital punishment was immoral. Clearly, Athenagoras is contrasting the characteristic Pagan schadenfreude or epicaricacy**--its delight in seeing others suffer death-- and the compassionate or sympathetic attitude of Christians, who do not revel in death. Athenagoras condemns the "Roman Holiday," where, as Lord Byron states in his poem "Childe Harrold's Pilgrimage":
There were his young barbarians all at play,
There was their Dacian mother—he their sire,
Butchered to make a Roman holiday.
canto 4, st. 1. Here, Athenagoras is consistent with overwhelming Christian opinion.

Third, the examples Athenagoras points to appear to are, in fact, violations of the Fifth Commandment as traditionally understood: gladiator combats, abortion, infanticide. The Christian view that these practices are immoral cannot be applied to capital punishment legitimately applied by the State.

Fourth, the only possible language that refers to capital punishment by the State is Athenagoras's first statement--wherein he states that Christians "cannot endure even to see a man put to death, though justly." If this is taken as a reference to the State's use of capital punishment and not killing in self defense, it actually suggests that there may be instances where a man may be put to death "justly" or righteously (dikaios/δικαίως). I think, therefore, James Megivern is on good grounds when he states in his book The Death Penalty: An Historical and Theological Survey, that Athenagoras "takes for granted that the death penalty could be imposed 'justly' by the pagan Roman courts," but goes beyond the text when he suggests that Athenagoras judges the death penalty meted out by those Pagan courts as "incompatible with Christian sensibilities,"*** at least if by Christian sensibilities he means moral sensibilities. What Athenagoras seems to be saying, and which no Christian would ever contradict, is that capital punishment when justly meted out by the State always involves a great physical evil (for all loss of life is a physical evil), though not for that a moral evil.

*Athenagoras actually wrote in Greek, and the Text is known as Πρεσβεία περί χριστιανών (Presbeia peri Christianon).
Τίς ἂν οὖν εὖ φρονῶν εἴποι τοιούτους ὄντας ἡμᾶς ἀνδροφόνους εἶναι; οὐ γὰρ ἔστι πάσασθαι κρεῶν ἀνθρωπικῶν μὴ πρότερον ἀποκτείνασί τινα. Τὸ πρότερον οὖν ψευδόμενοι ... τὸ δεύτερον, κἂν μέν τις αὐτοὺς ἔρηται, εἰ ἑωράκασιν ἃ λέγουσιν, οὐδείς ἐστιν οὕτως ἀπηρυθριασμένος ὡς εἰπεῖν ἰδεῖν. Καίτοι καὶ δοῦλοί εἰσιν ἡμῖν, τοῖς μὲν καὶ πλείους τοῖς δὲ ἐλάττους, οὓς οὐκ ἔστι λαθεῖν· ἀλλὰ καὶ τούτων οὐδεὶς καθ´ ἡμῶν τὰ τηλικαῦτα οὐδὲ κατεψεύσατο. Οὓς γὰρ ἴσασιν οὐδ´ ἰδεῖν κἂν δικαίως φονευόμενον ὑπομένοντας, τούτων τίς ἂν κατείποι ἢ ἀνδροφονίαν ἢ ἀνθρωποβορίαν; τίς οὐχ ἡ τῶν περὶ σπουδῆς τὰς δι´ ὅπλων ἀγωνίας καὶ διὰ θηρίων καὶ μάλιστα τὰς ὑφ´ ὑμῶν ἀγομένας ἔχει; ἀλλ´ ἡμεῖς πλησίον εἶναι τὸ ἰδεῖν [τὸ] φονευόμενον τοῦ ἀποκτεῖναι νομίζοντες, ἀπηγορεύσαμεν τὰς τοιαύτας θέας. Πῶς οὖν οἱ μηδὲ ὁρῶντες ἵνα μὴ ἑαυτοῖς ἄγος καὶ μίασμα προστριψαίμεθα, φονεύειν δυνάμεθα; καὶ οἳ τὰς τοῖς ἀμβλωθριδίοις χρωμένας ἀνδροφονεῖν τε καὶ λόγον ὑφέξειν τῆς ἐξαμβλώσεως τῷ θεῷ φαμεν, κατὰ ποῖον ἀνδροφονοῦμεν λόγον; οὐ γὰρ τοῦ αὐτοῦ νομίζειν μὲν καὶ τὸ κατὰ γαστρὸς ζῷον εἶναι καὶ διὰ τοῦτο αὐτοῦ μέλειν τῷ θεῷ, καὶ παρεληλυθότα εἰς τὸν βίον φονεύειν, καὶ μὴ ἐκτιθέναι μὲν τὸ γεννηθέν, ὡς τῶν ἐκτιθέντων τεκνοκτονούντων, πάλιν δὲ τὸ τραφὲν ἀναιρεῖν· ἀλλ´ ἐσμὲν πάντα πανταχοῦ ὅμοιοι καὶ ἴσοι, δουλεύοντες τῷ λόγῳ καὶ οὐ κρατοῦντες αὐτοῦ.

**A rare word which stems from Greek epichairekakia (ἐπιχαιρεκακία), sometimes spelled epicharikaky. It is a blend of three Greek roots: ἐπί (epí, “upon”) + χάρις (cháris, “joy”) + κακός (kakós, “evil”). It is a joy felt upon seeing someone suffer evil or death.
***Megivern, 21.

Friday, February 24, 2012

Church Fathers and Capital Punishment: St. Clement of Alexandria

UNFORTUNATELY, THE CHURCH FATHERS' witness regarding capital punishment is not entirely satisfactory, and certainly not conclusive. The inconclusivity of their witness may be evidenced by the entirely opposite conclusions scholars have drawn from them.

For example, Cardinal Dulles summarizes the witness of the Church Fathers and Doctors as a "virtually unanimous in their support for capital punishment, even though some of them such as St. Ambrose exhort members of the clergy not to pronounce capital sentences or serve as executioners."* Steven A. Long concurs, stating that the "nearly unanimous opinion of the Fathers and Doctors of the Church [is] that the death penalty is morally licit."** In my mind, this is too strong a conclusion from the evidence.

In his tendentious book The Death Penalty: A Historical and Theological Survey, James Megivern summarizes the witness of the Church Fathers prior to Constantine as ambiguous and not particularly enlightening. Similarly, in a more balanced treatment, Father Augustine Judd concludes that the Fathers establish no clear consensus regarding capital punishment. Rather we see a range of views from "accommodation to limited acceptance to outright prohibition of the practice."***

Father Thomas D. Williams comes to the opposite conclusion of Long and Cardinal Dulles regarding the Patristic testimony pre-Augustine, and states that in "the first centuries of Christianity the Mosaic precept against killing was interpreted literally and without exceptions. Capital punishment was considered irreconcilable with the faith."† This in my mind goes too far.

In light of the conflicting authorities, perhaps the best thing to do is to look at the evidence itself. So I have gathered together a smattering of Pre-Augustinian Church Fathers where the death penalty or capital punishment is directly or indirectly treated. This gathering-together of authorities should hardly be construed as a complete anthology.

St. Clement of Alexandria

The Patristic witness in support of the legitimacy of capital punishment under limited circumstances of necessity include St. Clement of Alexandria (ca. 150-215). His support for capital punishment as a legitimate power of the State is given in his Stromata, 1.27. The context is his discussion of the law in general. Megivern, citing Bernhard Schöpf's Das Totungsrecht bei den frühchristlichen Schriftstellern bis zur Zeit Konstantins (Regensburg: F. Pustet, 1958), identifies St. Clement as "the first Christian writer to provide theoretical grounds for the justification of capital punishment."
Let no, one then, run down law, as if, on account of the penalty, it were not beautiful and good. For shall he who drives away bodily disease appear a benefactor; and shall not he who attempts to deliver the soul from iniquity, as much more appear a friend, as the soul is a more precious thing than the body? Besides, for the sake of bodily health we submit to incisions, and cauterizations, and medicinal draughts; and he who administers them is called saviour and healer, even though amputating parts, not from grudge or ill-will towards the patient, but as the principles of the art prescribe, so that the sound parts may not perish along with them, and no one accuses the physician's art of wickedness; and shall we not similarly submit, for the soul's sake, to either banishment, or punishment, or bonds, provided only from unrighteousness we shall attain to righteousness?

For the law, in its solicitude for those who obey, trains up to piety, and prescribes what is to be done, and restrains each one from sins, imposing penalties even on lesser sins.

But when it sees any one in such a condition as to appear incurable, posting to the last stage of wickedness, then in its solicitude for the rest, that they may not be destroyed by it (just as if amputating a part from the whole body), it condemns such an one to death, as the course most conducive to health. "Being judged by the Lord," says the apostle, "we are chastened, that we may not be condemned with the world." (1 Cor. 11:32) For the prophet had said before, "Chastening, the Lord has chastised me, but has not given me over unto death." "For in order to teach you His righteousness," it is said, "He chastised you and tried you, and made you to hunger and thirst in the desert land; that all His statutes and His judgments may be known in your heart, as I command you this day; and that you may know in your heart, that just as if a man were chastising his son, so the Lord our God shall chastise you."

And to prove that example corrects, he says directly to the purpose: "A clever man, when he sees the wicked punished, will himself be severely chastised, for the fear of the Lord is the source of wisdom." (Prov. 22:3-4)

But it is the highest and most perfect good, when one is able to lead back any one from the practice of evil to virtue and well-doing, which is the very function of the law. So that, when one fails into any incurable evil—when taken possession of, for example, by wrong or covetousness—it will be for his good if he is put to death. For the law is beneficent, being able to make some righteous from unrighteous, if they will only give ear to it, and by releasing others from present evils; for those who have chosen to live temperately and justly, it conducts to immortality. To know the law is characteristic of a good disposition. And again: "Wicked men do not understand the law; but they who seek the Lord shall have understanding in all that is good." (Prov. 28:5)

St. Clement of Alexandria clearly puts the power to put a man to death in the hands of the State and for the protection of the common good. Drawing from Plato and Aristotle and Seneca, he compares the art of politics to the art of a physician. The ruler, like the physician, must have the common good of the body politic in view. In certain instances, he is justified in applying "incisions, cauterizations, and medicinal draughts," which though they may appear physical evils, are intended, in fact, to protect the common good from the spread of disease. In the extreme situation, the State, like a physician, may amputate the diseased part for the sake of the whole.

So, without any apparent qualms, without any apparent squeamishness, without any apparent doubts, St. Clement of Alexandria appears to accept, or at least not contest, the propriety or at least moral legitimacy of capital punishment by the State to defend itself against evils and to advance the cause of the common good. As a subsidiary benefit to the common good, St. Clement also identifies that punishment of the evil in general leave a deterrent impression upon the good that the wages of sin is death.††

*Avery Cardinal Dulles, "Catholicism and Capital Punishment," First Things (April 2001).
**Steven A. Long, "Evangelium Vitae, St. Thomas, and the Death Penalty," The Thomist 63 (1999), 511-52. As lone exceptions, he cites Lactantius and Tertullian.
***Father Augustine Judd, O.P., Catholics and Capital Punishment (Knights of Columbus 2000), 10.
†Thomas D. Williams, The World as it Could Be (Crossroad: 2011), 77.
††One might here mention Megivern's rather tendentious treatment of St. Clement. He does not quote any of the argument, but calls it "not especially original," and based upon a "rather questionable medical analogy rather than to anything of specifically Christian inspiration." St. Clement's argument, however, is ensconced within his treatment of law as understood by Reason and Faith, and so it really is based upon both natural law enlightened by Revelation. Megivern also slights St. Clement's thought by caricaturization in summarizing the Clementine thought as one that capital punishment "should work like . . . an enema ordered by a physician." Finally, he suggests--without the slightest warrant whatsoever--that St. Clement's analysis would justify not only euthanasia, but Hitler's "final solution." Megivern, 22-23. I would suggest that St. Clement is strong evidence against Megivern's thesis, else he would not misrepresent it, slight it, and ridicule it

Tuesday, February 21, 2012

Capital Punishment and the Church: Magisterial Sources

IN OUR LAST POST, we addressed the issue of capital punishment from the perspectives of the Old Testament and the New Testament. Succinctly, reviewing these sources we should come to the only one conclusion as to the Old Testament: it teaches the moral liciety of capital punishment, and it does not view such punishment as a violation of the Fifth Commandment not to kill. Rather, it views it as supportive of that commandment. With respect to the New Testament, we find no abrogation of the Old Testament teaching. Here, we might adopt the conclusion of Cardinal Dulles that "No passage in the New Testament disapproves of the death penalty."

Let us now skip over 2000 years to the current state of teaching in the Catholic Church. For the official teaching, we turn to the Catechism of the Catholic Church and to Pope John Paul II's Encyclical letter Evangelium vitae. This latter has been described as "a watershed"* in the debate of the issue of the death penalty, and it is what informs to a large degree the former document in its editio typica. To be sure, the encyclical Evangelium vitae by virtue of its being an encyclical is a highly authoritative document, and it is "the first papal encyclical to deal specifically with capital punishment." It is, moreover, "the weightiest Magisterial statement on the subject to date."*

St. Nicholas stopping executions

The Church's official teaching is found in Article 5 of the Catechism, the article dealing with the Fifth Commandment, nestled in the part discussing legitimate defense:
Article 5


You shall not kill. [Ex 20:13; Cf. Deut 5:17.]

You have heard that it was said to the men of old, "You shall not kill: and whoever kills shall be liable to judgment." But I say to you that every one who is angry with his brother shall be liable to judgment. [Mt 5:21-22.]

2258 "Human life is sacred because from its beginning it involves the creative action of God and it remains for ever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning until its end: no one can under any circumstance claim for himself the right directly to destroy an innocent human being." [CDF, instruction, Donum vitae, intro. 5.]
The current Catechism (editio typica published in 1997) differs in various particulars from the original version which was written in French (published in 1992), and there are some notable differences in the two texts on the matter of capital punishment. Most significant is the influence of Pope John Paul II's encyclical Evangelium vitae (which relies on the 1992 version of the Catechism). To highlight the encyclical's influence on the Catechism on the issue of capital punishment, I place the editio typica text next to the original version.

The teaching between the two versions is not appreciably different except for the novel statement by Pope John Paul II that modernly ("today") the instances where the death penalty ought to be meted out are "very rare, if not practically non-existent." EV, No. 56.

Editio typica1994 Version
2265 Legitimate defense can be not only a right but a grave duty for someone responsible for another's life. Preserving the common good requires rendering the unjust aggressor unable to inflict harm. To this end, those holding legitimate authority have the right to repel by armed force aggressors against the civil community entrusted to their charge.[66] [66 St. Thomas Aquinas, STh II-II, 64, 7, corp. art.]2265 Legitimate defense can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the state.
2266 The State's effort to contain the spread of behaviors injurious to human rights and the fundamental rules of civil coexistence corresponds to the requirement of watching over the common good. Legitimate public authority has the right and duty to inflict penalties commensurate with the gravity of the crime. The primary scope of the penalty is to redress the disorder caused by the offense. When his punishment is voluntarily accepted by the offender, it takes on the value of expiation. Moreover, punishment, in addition to preserving public order and the safety of persons, has a medicinal scope: as far as possible it should contribute to the correction of the offender.[67] [67 Cf. Lk 23:40-43.]2266 Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty. For analogous reasons those holding authority have the right to repel by armed force aggressors against the community in their charge.

The primary effect of punishment is to redress the disorder caused by the offense. When his punishment is voluntarily accepted by the offender, it takes on the value of expiation. Moreover, punishment has the effect of preserving public order and the safety of persons. Finally punishment has a medicinal value; as far as possible it should contribute to the correction of the offender.
2267 The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor.
If, instead, bloodless means are sufficient to defend against the aggressor and to protect the safety of persons, public authority should limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.

Today, in fact, given the means at the State's disposal to effectively repress crime by rendering inoffensive the one who has committed it, without depriving him definitively of the possibility of redeeming himself, cases of absolute necessity for suppression of the offender 'today ... are very rare, if not practically non-existent.'[John Paul II, Evangelium vitae 56.]
2267 If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.

Evangelium vitae:
Moreover, "legitimate defence can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State". [Catechism of the Catholic Church, No. 2265 (1992).] Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason. [Cf. Saint Thomas Aquinas, Summa Theologiae, II-II, q. 64, a. 7; Saint Alphonsus De' Liguori, Theologia Moralis, l. III, tr. 4, c. 1, dub.3.]

56. This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence".[Catechism of the Catholic Church, No. 2266 (1992).] Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated. [Cf. ibid.]

It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and 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. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.

In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person". [Catechism of the Catholic Church, No. 2267 (1992).]
The requirement of "absolute necessity" before authorities may use capital punishment to defend society, and the opinion (theological or prudential only?) that, in modern contexts, such "absolute necessity" is "very rare, if not practically non-existent," seem to be a significant tightening of the screws on when legitimate authority may apply capital punishment to maintain order and defend itself against malefactors.

A helpful aid in determining the intent of the Pope and the bindingness of this teaching, is the opinion given by Cardinal Ratzinger in an instruction or memorandum to the U.S. Bishops concerning when one is worthy of receiving Holy Communion. In the memorandum (dated July 3, 2004), the future Pope gives the following clarification:
3. 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 . . . he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities . . . to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible . . . to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about . . . applying the death penalty, but not however with regard to abortion and euthanasia.
Without question, then-Cardinal Ratzinger recognized a difference in bindingness between the Magisterium's teaching concerning abortion and euthanasia and the Magisterium's teaching concerning the application of the death penalty.

*Thomas D. Williams, The World as it Could Be (Crossroads, 2011), 80.

Friday, February 17, 2012

His Blood Shall Be Shed: Capital Punishment and Scripture

“WHOSOEVER SHALL SHED MAN'S BLOOD, his blood shall be shed; for man was made to the image of God." (Gen.9:6) This is a general principle that underlies the Mosaic law when it comes to capital punishment. Intentional homicide calls for the punishment of death. It cannot be doubted that the God of Israel sanctioned capital punishment as part of the law of Israel. Nor was capital punishment limited to murder. (Ex. 21:12; Le. 24:17) It was also to be applied in the case of blasphemy (Lev. 24:16), idolatry (Ex. 22:19, Numb. 25:5), working on the Sabbath (Ex. 31:15, 35:2), false prophecy (Deut. 13:5, 18:20), kidnapping (Ex. 21:16), homosexuality (Le. 20:13), bestiality (Ex. 22:19, Le. 20:15-16), sorcery (Ex. 22:18, Le. 20:27), striking or cursing one's parents (Ex. 21:15, 17; Lev. 20:9), and adultery (Lev. 20:10). Capital punishment was typically by stoning. (Deut. 17:5-7) There is no time where the death penalty was not part of the law that governed Israel, God's chosen people. It is, in fact, why St. Stephen, the Christian protomartyr--was put to death by stoning under the Old Law. (Acts:7:57-58)

To be sure, there are instances in the Old Testament where God exercises mercy. We have, for example, the decision of God to exercise mercy in allowing Cain to remain alive though guilty of fratricide, indeed, even in protecting his life putting a sign on him that would indicate that anyone who should harm him would receive vengeance seven-fold. (Gen. 4:15) We have the instance where David--guilty of adultery, a capital offense--has his life spared. (2 Sam. 12:13) God seems to have overlooked the adultery and harlotry of Gomer when he asked the prophet Hosea to marry her, as an example of his fidelity to unfaithful Israel. (Hosea 1:1-3) But these seem to be extraordinary interventions.

It is indisputable that capital punishment is well-established in the Mosaic law.

Indeed, capital punishment is confirmed as the proper punishment for murder in everyone one of the books of the Pentateuch (the first five books of the Bible, called by the Jews as the Tanach). (Gen. 9:6; Ex. 21:12; Lev. 24:17; Num. 35:31, 33; Deut. 19:11-13) The provision of capital punishment as the proper response to murder is monolithic.

With this background, where are we to put Jesus, who came to fulfill the Law and the Prophets? (Matt. 5:17) The Law clearly provided for the putting of a man to death. The Prophets had no qualms with those provisions in the Mosaic law which required that a man be put to death. Indeed, Joshua killed Achan's family for breaking the ban on items taken from Jericho (Joshua 7). Elijah,in conformity with the Mosaic law (Deut. 13:5, 18:20), ordered the execution of 450 prophets of Baal. (1 Kings 18:40)

"Terra Terram Accusat" from the Codex Egberti

Indeed, Jesus mentions one of the Mosaic law's death penalties (Ex. 21:15, 17; Lev. 20:9) without a hint of criticism. Quite the contrary, Christ uses this law as the foundation of his own counter-criticism of the traditions of the Pharisees who complain that Christ's disciples do not wash their hands, thereby breaking the tradition of the elders. (Matt:15:3-4; Mark 7:8-11)
He said to them [the Pharisees and scribes] in reply, "And why do you break the commandment of God for the sake of your tradition? For God said, 'Honor your father and your mother,' and 'Whoever curses father or mother shall die.' But you say, 'Whoever says to father or mother, "Any support you might have had from me is dedicated to God," need not honor his father.' You have nullified the word of God for the sake of your tradition.
Is this just obiter dicta?

Not only does Jesus recognize the death penalty provided in the Mosaic law, he seems to recognize the natural law principle that a State may put a citizen to death for murder. For example, he tells Peter--who seeks to protect him from arrest by attacking the high priest's servant Malchus with a sword and severing his ear--that he who uses the sword to put a person to death shall perish by the sword of the State. (Matt. 26:52) He also recognizes Pontius Pilate's authority to put him to death. "You would have no power over me [to judge me and put me to death by crucifixion] if it had not been given to you from above." (John 19:11) Even on the cross, Jesus recognizes the penitent thief's acknowledgment of the propriety and justice of their capital punishment as expiatory. (Luke 23:40-41)

And yet there is something new in Christ's attitude. The harshness of the Mosaic law--which compels the penalty of death--is somehow softened, tempered, infused with mercy. We have, for example, Jesus' teaching in the Sermon on the Mount, where he suggests that strict proportionality between an offense and one's reaction to it (as mentioned in Lev. 24:20, Ex. 21:24, Deut. 19:21) need not be recognized on the part of the one offended. "You have heard that it was said, 'An eye for an eye and a tooth for a tooth.' But I say to you, offer no resistance to one who is evil. When someone strikes you on (your) right cheek, turn the other one to him as well." (Matt. 5:38-39) We must then, at least on a personal or subjective level, temper justice with mercy, fight against feelings of vengeance and anger, and yield in a way to the wrongdoer. But is this an injunction to the inner life of the believer only? May it also be an attitude that may be adopted by the State?

This proposition is problematic. Clearly, if it was a central principle of the State, it would spell anarchy, injustice, and might would win over right. If you would physically turn your cheek to a Mao, to a Hitler, to a Muhammad, you would soon find yourself without freedom.

One of the basic duties of the State is to protect and defend the common good from those who would do evil to it. Were the State to turn the other cheek and forgive not seven times, but seventy times seventy times, it would be a sure recipe for disaster.

And then we have what may be the locus classicus of Jesus' great mercy, the so-called Pericope Adulterae, the story of the woman taken in adultery (John 8:3-11):
Then the scribes and the Pharisees brought a woman who had been caught in adultery and made her stand in the middle. They said to him, "Teacher, this woman was caught in the very act of committing adultery. Now in the law, Moses commanded us to stone such women. So what do you say?" They said this to test him, so that they could have some charge to bring against him. Jesus bent down and began to write on the ground with his finger. But when they continued asking him, he straightened up and said to them, "Let the one among you who is without sin be the first to throw a stone at her." Again he bent down and wrote on the ground. And in response, they went away one by one, beginning with the elders. So he was left alone with the woman before him. Then Jesus straightened up and said to her, "Woman, where are they? Has no one condemned you?" She replied, "No one, sir." Then Jesus said, "Neither do I condemn you. Go, (and) from now on do not sin any more."
Terra terram accusat, Sts. Ambrose and Augustine speculated Christ wrote on the dirt. Dirt accuses dirt. Is the Lord telling us that man--who is but dust, and to dust he must return--is not allowed to accuse and put to death another of his own--who is but dust, and to dust likewise must return?*

Though Jesus abjured violence, and certainly put no man to death while on earth, there seems to be nothing in the New Testament that would contradict the Old Testament heritage associated with the death penalty. There is, for example, nothing even remotely akin Jesus' radical reform of marriage and the Mosaic tolerance of divorce. (Matt. 19:18) Had Jesus wanted to abrogate the State's authority to put a man to death, one would have expected some express revelation. But as Avery Cardinal Dulles concludes in his short treatment of Catholicism and Capital Punishment, "No passage in the New Testament disapproves of the death penalty."
*It might be noted that Jesus here may not have been suggesting that the Mosaic penalty for adultery should be abrogated. It may be that the Pharisees were trying to entrap Jesus. If Jesus upheld the Mosaic law, then he would have violated Roman law (which reserved to itself capital punishment) and could have been accused of sedition. On the other hand, if he did not uphold the Mosaic law, he would have been accused of being a false prophet. Jesus deftly avoided the question, while also suggesting the mercy, forgiveness, and introspection may often take us out of a moral quandary. A similar example of this effort to entrap Jesus would have been the questioning of Jesus on the payment of tax to Caesar.

Wednesday, February 15, 2012

On Crime and Punishment

ALL PUNISHMENT SAYS THE TRADITIONALIST JOSEPH DE MAISTRE is painful, but it is inflicted as much for love as it is for justice.* Shocking to modern sensibilities, de Maistre insisted that the scaffold was a kind of altar, and there is no civilization unless there is an altar, suggesting, of course, that civilization requires a scaffold.** Jeremy Bentham, on the other hand, insisted that all punishment is mischief, and that all punishment in itself is evil, having ultimately no justification in either justice, much less in love, but only in utility.***

The Compendium of the Social Doctrine of the Church has a brief excursus on punishment. (Compendium, Nos. 402-405) The Compendium ties punishment down with two ropes: the common good and law. Nulla poena sine lege: no punishment without law goes an old Roman legal principle. This principle is clearly adopted by the Compendium. And since it is a fundamental principle that all law is ordered to the common good of the community, if follows that punishment under the rule of law is justified only with reference to the common good.

In the Compendium's tying punishment to the the rule of law and the common good, we must remember the Church's unique vision of the common good--which is neither a collective concept nor an aggregate concept, but a personalistic and teleological, even theistic one. "The common good of society is not an end in itself; it has value only in reference to attaining the ultimate ends of the person and the universal common good of the whole of creation. God is the ultimate end of his creatures and for no reason may the common good be deprived of its transcendent dimension, which moves beyond the historical dimension while at the same time fulfilling it." (Compendium, No. 170)

Ultimately, the Church seems to be telling us, punishment is justified only in reference to the person, to the good of a political community, and, ultimately, only in reference to God, who is both justice and love. (cf. 2 Thess. 1:6; 1 John 4:8)

In order to protect the common good, the lawful public authority must exercise the right and the duty to inflict punishments according to the seriousness of the crimes committed.
(Compendium, No. 402)

In this succinct statement, we find a number of principles. First, punishment is referable to the common good. It is a means of protecting the common good. Second, it is only lawful public authority that has the monopoly on the use of violence or physical coercion, what Max Weber called das Gewaltmonopol or das Monopol legitimen physischen Zwanges.† Where there is law, there is no such thing as vigilantism. Third, the public authority has not only the right, but a duty to inflict punishment. Fourth, there must be a relationship, a fit, a proportionality between crime and punishment.

Vincent Van Gogh, "Prisoners Exercising" (After Doré) (1890)

There are four traditional justifications for punishment: retribution, deterrence, rehabilitation, and incapacitation. The Compendium appears to embrace all four as justifications for punishment. For example, the Compendium states that punishment arises out of the State's duty to "discourage behavior that is harmful to human rights and the fundamental norms of civil life." (Compendium, No. 402). This is a clear reference to deterrence. The Compendium also states that public authority has the duty to see that "the disorder created by criminal activity" be repaired "through the penal system." (Compendium, No. 402) This a clear reference to retribution. The Compendium further recognizes that punishment has the purpose of "guaranteeing the safety of persons," and this suggests that punishment serves to incapacitate the criminal from harming others. (Compendium, No. 403) Finally, the Compendium adverts that punishment may well be "an instrument for the correction of the offender, a correction that also takes on the moral value of expiation when the guilty party voluntarily accepts his punishment." This is a reference to rehabilitation.

The role of the judicial system--as independent from the legislative and executive branches of government--is emphasized by the Compendium as part of the modern rule of law. There needs to be a division between the law maker, the prosecutor, and the judge.
In a State ruled by law the power to inflict punishment is correctly entrusted to the Courts: "In defining the proper relationships between the legislative, executive, and judicial powers, the Constitutions of modern States guarantee the judicial power the necessary independence in the real of law.
(Compendium, No. 402)

In investigating crimes, prosecuting alleged criminals, sentencing criminals and punishing them, public authority and its officials are to remember two things: truth and the dignity and rights of the accused and convicted, for they enjoy the full dignity and rights of the human person.††

The activity of offices charged with establishing criminal responsibility, which is always personal in character, must strive to be a meticulous search for truth and must be conducted in full respect for the dignity and rights of the human person; this means guaranteeing the rights of the guilty as well as those of the innocent. The juridical principle by which punishment cannot be inflicted if a crime has not first been proven must be borne in mind.

(Compendium, No. 404)

In pursuing their investigations, officials of the public authority "are especially called to exercise due discretion in their investigations so as not to violate the rights of the accused to confidentiality and in order not to undermine the principle of the presumption of innocence." (Compendium, No. 404)

The Compendium prohibits the use of torture, though it does not define the term other than through vague reference to "international juridical instruments concerning human rights." (We leave the subject of what is "torture" for another day.)
In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: "Christ's disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer's victim."††† International juridical instruments concerning human rights correctly indicate a prohibition against torture as a principle which cannot be contravened under any circumstances.

(Compendium, No. 404)

Not only is torture prohibited, but so is improper detention or incarceration: "Likewise ruled out is “the use of detention for the sole purpose of trying to obtain significant information for the trial." (Compendium, No. 404)

Finally, trials are to be had expeditiously in a manner in keeping with truth and justice: "excessive length" of trials "intolerable for citizens and results in a real injustice."‡ (Compendium, No. 404)

Finally, no judicial system manned by humans is perfect, and errors in investigation, trial, judgment, and punishment can occur. When public authority becomes aware of these, it must rectify the wrong. Part of this righting of wrongs demands "that the law provide for suitable compensation for victims of judicial errors." (Compendium, No. 404)

*Joseph de Maistre, Les Soirées de Saint-Pétersbourg, "Fifth Dialogue."
**Ibid., "Second Dialogue" and "Tenth Dialogue." The connection between punishment and belief in God is more intimate than one might first suppose. Even Albert Camus divined it when he observed in his famous essay against capital punishment, "Reflections on the Guillotine," that capital punishment has always been religious punishment, and that justification for capital punishment can only be found in grounded in a religious belief that life on earth is not all there is.
***Jeremy Bentham, Principles of Morals and Legislation, Chp. XVI, § 1.
†Max Weber, Wirtschaft und Gesellschaft, Chp. 1, § 17 (Politics as a Vocation). It should be noted that Weber's concept seems skewed in favor of the State. In fact, punishment is legitimately pursued by the public authority in any perfect society, which would include the Church.
††A person guilty of a heinous offense maintains what we may call his ontological dignity, one based upon the fact that he is a person. He may have lost what I call the agathological dignity which a man or woman obtains by conforming his or her life to the good. Though both sinner and saint retain their ontological dignity by virtue of being persons, the saint has a much higher agathological dignity than the criminal, who has marred his dignity by his rejection of the good (in Greek: agathos) for evil (in Greek: kakos).
†††Quoting John Paul II, Address to the International Committee of the Red Cross, Geneva (15 June 1982), 5.
‡John Paul II, Address to the Italian Association of Judges (31 March 2000), 4

Saturday, February 11, 2012

Conscientious Objection and Resistance

THE CHRISTIAN CITIZEN NAVIGATES between two pole stars, as it were. On the one hand, he recognizes the divine warrant given secular authorities. He remembers that the early Christian, following Christ, respected the civil authority of Caesar. "You would have no power over me," the Lord told the Roman procurator Pontius Pilate, "if it had not been given to you from above." (John 19:11) Sts. Peter and Paul enjoined their flocks to obey all governing authorities, including Caesar who had arrogated to himself powers he did not have, and whose philosophy of government was wholly false. (E.g., 1 Pet 2:15; Rom. 13:1) Ordinarily, Christians ought to be model citizens, conscientiously required to follow the laws of the State.

And yet absolute obedience is never due the State. Any arrogation of divinity by the State is absolutely rejected by the Christian. Here is the veiled teaching behind Christ's answer to the query by those sent by the Chief Priests seeking to entrap him either as a revolutionary or a bad Jew:
"Is it permissible for us to pay taxes to Caesar or not?"
But He was aware of their cunning and said, "Show me a denarius. Whose head and name are on it?"
"Caesar’s," they said.
"Well then," He said to them, "give back to Caesar what belongs to Caesar – and to God what belongs to God."

(Luke 20:21-25). The coin Jesus pointed to, one ought to add, claimed falsely that Caesar was divine. In these soft-spoken words, Jesus ushered in a political revolution. Wherever the words of Jesus take root and sprout, there will be a separation between political power and moral truth, a de-divinized political order. The political order will be demoted, constrained, circumscribed. Its desire to be a "mortal God" will be muzzled.

Denarius (ca. 19-18 B.C.)
"Caesar Augustus" and "Divus Iuliu[s]" = Divine Julius (Caesar)

There are, then, "things of Caesar" and there are "things of God." There are "things of God" that Caesar may not touch, one of which is moral truth, the other of which is the human conscience which is our means of accessing that moral truth. And if Caesar has the temerity, the audacity of trespassing on moral truth or human conscience, the Christian may not respond with the obedience enjoined by Sts. Peter and Paul in ordinary situations. In such extraordinary situations--when Caesar trespasses the moral law and asks from his citizens what God forbids, then we must stand with St. Peter and declare: "Obedience to God comes before obedience to men." (Acts 5:29)

The Compendium of the Social Doctrine of the Church addresses the issue of when and how St. Peter's teaching that obedience to God comes before obedience to men applies in the modern Christian's life. It is a political reality that American Catholics confront a real threat from their governing authorities. This threat is the result of a unhealthy hodgepodge whose ingredients include the erosion of any moral consensus in the West, the increase in moral relativism built upon false notions of individuality and moral autonomy, a "reductive secularism" which neglects moral and spiritual truths and restricts truth to mere "scientific rationality" or "political power or majority rule," and the increased political intolerance from those with world-views hostile to traditional and Christian morality who have no compunction in imposing their views through the authority of the State.

These ingredients have given rise in a sort of political witch's brew. It is a political witch's brew that Pope Benedict XVI recently referred to as a "radical secularism which finds increasing expression in the political and cultural spheres." This "radical secularism" is backing Christians into those corners where obedience is no longer due civil authority.

Presciently, or perhaps better, prophetically, Pope Benedict XVI foresaw and foresees increasing conflict between American Catholics and a public authority increasingly secularized and increasingly hostile to the moral values of its Catholic citizens.** The conflict is caused by the increasing demands of the State to "to deny the right of conscientious objection on the part of Catholic individuals and institutions with regard to cooperation in intrinsically evil practices." The aggressive secularist State wants freedom of religion to be limited to "mere freedom of worship," and not to "freedom of conscience" which extends beyond the realm of the four walls of a Church into the "public square" of social, civil, political, and economic life.

It behooves us, therefore, to dust off the covers of the Compendium and re-visit the issue of when Christians must oppose themselves to civil authority, either by conscientious objection or, in an extreme situation and under carefully guarded circumstances, rebellion.

Christians may conscientiously object to civil laws if they infringe upon one or more of three things: (1) the law violates the moral order, that is, the natural moral law; (2) the law violates fundamental human rights; or (3) the law violates the teachings of the Gospel, which is to say the teachings of the Church. Laws that trespass against one or more of these three things may not be obeyed, and obedience to them must be refused. In fact, the Christian has both a duty and a right to refuse such a law. And though it may be unrecognized, it is a right that he must exercise regardless of the consequences to him.

The full text of the Compendium on this issue merits quotation:

Citizens are not obligated in conscience to follow the prescriptions of civil authorities if their precepts are contrary to the demands of the moral order, to the fundamental rights of persons or to the teachings of the Gospel. Unjust laws pose dramatic problems of conscience for morally upright people: when they are called to cooperate in morally evil acts they must refuse. Besides being a moral duty, such a refusal is also a basic human right which, precisely as such, civil law itself is obliged to recognize and protect. "Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane."***

It is a grave duty of conscience not to cooperate, not even formally, in practices which, although permitted by civil legislation, are contrary to the Law of God. Such cooperation in fact can never be justified, not by invoking respect for the freedom of others nor by appealing to the fact that it is foreseen and required by civil law. No one can escape the moral responsibility for actions taken, and all will be judged by God himself based on this responsibility (cf. Rom 2:6; 14:12).

(Compendium, No. 399)

The right of conscientious objection is not the right of resistance, and the two should be carefully distinguished. Moreover, resistance which can be expressed in "many different concrete ways" should be distinguished from the last and desperate recourse of "armed resistance."

The right to resist an oppressive law or an oppressive government is one that is found in the natural law. It is a right which precedes a government, and so is one that is inalienable. Resistance generally is something to be avoided, and it is justified only if there is a "serious" infringement or "repeated" and chronic infringements of the natural moral law, a fundamental human right, or a Gospel precept.
Recognizing that natural law is the basis for and places limits on positive law means admitting that it is legitimate to resist authority should it violate in a serious or repeated manner the essential principles of natural law. Saint Thomas Aquinas writes that "one is obliged to obey . . . insofar as it is required by the order of justice."† Natural law is therefore the basis of the right to resistance.
(Compendium, No. 400)

The right of resistance is not one that necessarily has the overthrow of government in mind. There may be many ways in which resistance may be expressed, and there may be many ends which resistance may have in mind:

There can be many different concrete ways this right may be exercised; there are also many different ends that may be pursued. Resistance to authority is meant to attest to the validity of a different way of looking at things, whether the intent is to achieve partial change, for example, modifying certain laws, or to fight for a radical change in the situation.

(Compendium, No. 400)

Resistance in the sense of armed resistance is something which is a last resort. The Church has identified five conditions all of which must be met before armed resistance is morally justified:
1) there is certain, grave and prolonged violation of fundamental rights, 2) all other means of redress have been exhausted, 3) such resistance will not provoke worse disorders, 4) there is well-founded hope of success; and 5) it is impossible reasonably to foresee any better solution.
(Compendium, No. 401)

As the Church observes, armed resistance, even if morally justified, is generally to be avoided, and passive resistance is to be preferred. Armed resistance is often a Pandora's box which unleashes as much or more evil as it intended to avoid.

Recourse to arms is seen as an extreme remedy for putting an end to a "manifest, long-standing tyranny which would do great damage to fundamental personal rights and dangerous harm to the common good of the country." The gravity of the danger that recourse to violence entails today makes it preferable in any case that passive resistance be practiced, which is "a way more conformable to moral principles and having no less prospects for success."††

(Compendium, No. 401)

*Pope Benedict XVI's address to the Bishops of the United States on the occasion of their ad limina visit on January 19, 2012 may be found here.
**The threat against religious liberty is, of course, broader than affecting only Catholics. As former Arkansas Governor and 2008 Presidential Candidate (and Southern Baptist) Mike Huckabee stated in a recent speech in the Conservative Political Action Conference referring to the recent mandate by the U. S. Department of Health and Human Services that Catholic institutions are required to provide their employees healthcare that covers contraception and abortifacients, "we are all Catholics now."
***Quotation is from John Paul II's encyclical Evangelium vitae, 74.
†Summa Theologiae, IIaIIae, q. 104, a. 6, ad 3. (principibus saecularibus intantum homo oboedire tenetur, inquantum ordo iustitiae requirit)
††Quotations are respectively from Paul VI, Encyclical Letter Populorum Progressio, 31, and Congregation for the Doctrine of the Faith, Instruction Libertatis Conscientia, 79.