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.

Thursday, March 15, 2012

Evangelium Vitae: Reconciling Tradition, Part 1

JOHN PAUL II'S ENCYCLICAL Evangelium vitae raised significant consternation among Catholics on the matter of the death penalty. To the death penalty abolitionists, who seemed insensitive to, or disdainful of, the Church's traditional teaching, the Pope did not seem to go far enough. To the death penalty advocates who were jealous to preserve the Church's tradition regarding the death penalty in the order of justice, the Pope seemed to go too far and contradict the Church's traditional teaching by appearing to reject the retributive or vindicative justification for the death penalty and limiting its use under a unjust aggressor-type analysis.*

In my reading of the encyclical Evangelium vitae, Pope John Paul II does neither of these. Pope John Paul II navigates deftly between the two extremes. Nowhere in the encyclical does he teach that the death penalty is intrinsically unjust, and that teaching ought not to be imputed to him. Nor does he sever the justice of the death penalty--that is, its moral good--from its retributive or vindicative roots. John Paul II leaves what I have called the tradition of justice of the death penalty untouched. What John Paul II does, rather, is to recall what I have called the tradition of mercy in the application of the death penalty and develop that particular tradition.

In this post we will discuss the notion that Pope John Paul II laid the groundwork for a future development in Catholic doctrine that the death penalty is intrinsically evil, in a manner that abortion, euthanasia, intentional suicide are intrinsically evil. In other words, we address the possibility that the Pope set in motion that Fifth Commandment's absolute prohibition against the intentional killing of an innocent human being applies, in all its rigor, to the killing of malefactors by public authority. In the next few blog postings after this one, we will address the difference between the order of justice and the order of mercy, my view of what John Paul II in his encyclical addressed as the limits on the imposition of the death penalty, what role the order of mercy has on the application of that penalty, how John Paul II leaves the Church's traditional teaching on the death penalty in the order of justice undisturbed, and how he develops the Church's teaching on the death penalty in the context of the order of mercy.

Nowhere in the encyclical does Pope John Paul II teach that the death penalty is intrinsically evil. Nor does John Paul II set up any sort of legitimate foundation for development in Catholic moral doctrine that would lead to finding the death penalty to be intrinsically evil. There is no basis in the encyclical for abolition of the death penalty on the grounds that it is intrinsically evil or per se against justice. None. In my view, to suggest such a thing is a grievous wrong and intellectually dishonest reading of the encyclical in the light of tradition. It is a reading based upon ideology.

Second, Pope John Paul in this encyclical does not change the traditional doctrine of the Church regarding the death penalty for the simple reason that he does not even address the question.** In my reading of the encyclical, he presupposes the validity of prior teaching. His teaching is perfectly compatible with prior tradition that the death penalty is an "exception" to the general doctrine that innocent human life is untouchable applicable to public authority alone, and that this exception applies for extremely grave and very specific and proven crimes. He does not touch traditional teaching which justifies all punishment, including the death penalty, as just on the grounds of of vindication or retribution, that is, as a means to re-establish and restore the order of justice which has been disrupted by a gravely wrongful act against God and the common good. As such, John Paul II presumes (and certainly does not deny) that the death penalty when justly applied--while a great physical evil, particularly for the individual involved--may, for all that be a justified by its retributive or vindicative aspect.

To show that Pope John Paul II does not change the traditional teaching of the Church on the moral liciety in justice of the death penalty is easy if the entire encyclical is looked at and compared to the short section on the death penalty. First, Pope John Paul makes it clear that the Church's constant tradition as it relates to the Fifth Commandment is that "the direct and voluntary killing of an innocent human being is always gravely immoral." EV, 57. Pope John Paul II declared that "direct abortion, that is, abortion willed as an end or as a means, always constitutes a grave moral disorder since it is the deliberate killing of an innocent human being." EV, 62. He confirms that "euthanasia is a grave violation of the law of God, since it is the deliberate and morally unacceptable killing of a[n innocent] human person."*** EV, 65. Pope John Paul II speaks of the "inviolable right to life of every innocent human being." EV, 71. Clearly, the gravamen of the encyclical, and the absolute and exceptionless protection of life it teaches, applies to innocent human beings, and not malefactors.

One has to conclude that malefactors (those who are not innocent of capital offenses) are excluded from the exceptionless, absolute norms that bind in both justice and charity and protect the innocent. An innocent human being may never intentionally be put to death by private or public authority. This leaves the Church's traditional teaching that a malefactor can justly be put to death by public authority entirely untouched.

That this is John Paul II's intendment is made even more clear when the language used by John Paul II in the context of the death penalty is compared to that used when addressing the life of innocent human beings. The absolute and exceptionless moral principles that relate to innocent human beings do not apply to "criminals and unjust aggressors." EV, 57. While "great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment 'You shall not kill' has absolute value only when it refers to the innocent person." The inescapable implication of this statement is that the absolute prohibition against killing an innocent human life does not apply when confronting "criminals and unjust aggressors." The life value of the criminal condemned of a capital offense, while still worthy of "great care" and "respect," is not absolute, and this can only be because the public authority retains the right to put him to death under the Church's traditional doctrine.

Koritansky points out the obvious in his book Thomas Aquinas and the Philosophy of Punishment:†
The fact remains that the Church, both in the 1997 [Catechism of the Catholic Church] and in [Evangelium vitae] could have simply stated that the death penalty is only justifiable as indirect killing, but has obviously stopped short of doing so. One indicator implying [that John Paul II did not intend to view the death penalty as intrinsically evil] is that [Evangelium vitae] itself, in the section following the discussion of capital punishment, makes the claim that the Fifth Commandment "has absolute value when it refers to the innocent person." . . . If capital punishment is only to be justified in terms of self-defense [and not as an expression of retributive or vindicative justice as in Catholic traditional teaching], there would be no reason for the pope to include the word "innocent" in this definitive statement. If justifiable instances of the death penalty are only indirect, he may have simply stated that it is always wrong directly to kill another human being period.

Pope John Paul II, however, does not rest satisfied with his clear statements of the absolute value of innocent human life. He is without question also solicitous of the life of the criminal guilty of a capital offense, even though the malefactor's right to life is not absolute. In his Evangelium vitae, John Paul II is at his most pastoral. From the Chair of Peter, he might be seen as having exercised his Galgen ministerium, his "gallows ministry" or death row ministry, preaching the Gospel to the spirits in prison, as it were. (Cf. 1 Pet. 3:19).

His is a ministry to Cain, to those like Cain who have violated the "'spiritual kinship uniting mankind in one great family," to Cain "'who was of the evil one and murdered his brother,'" to Cain who is punished by God himself since "the blood of the one murdered demands that God should render justice," to Cain who is "cursed by God and also by the earth." EV, 8, 9. And yet this is the Cain to whom God showed mercy, for God "is always merciful even when he punishes." This is the Cain--who despite his crime--has not lost his "dignity," a dignity which "God himself pledges to guarantee." With respect to Cain, it is not a matter of justice alone. With respect to Cain we are involved with "the paradoxical mystery of the merciful justice of God," the same God who punished him. EV, 9. There is even here, as John Paul II reminds us haling back to the words of St. Ambrose of Milan: even to the murderer "the divine law of God's mercy should immediately be extended."

In Evangelium vitae, we find John Paul II exercising a ministry to Cain, a ministry of mercy influenced by the Gospel of Jesus Christ, the "Word of life" and "Word of God," who was branded a criminal condemned to die unjustly by the laws of his time, and Who by His sacrificial death on the Cross, "expresses and requires a more radical 'justice,' and above all it implores mercy.'" EV, 25, 29, 30. He reminds us, that God does not delight in the death of the living, particularly the innocent, but not for all that excluding the malefactor. To the contrary, it is Satan who so delights in death. EV, 53. Clearly, Pope John Paul II, in addressing the death penalty question, leaves traditional notions of justice and enters into the order of mercy. He does not come as a judge ready to condemn to death in the name of Christ, but as a priest ready to forgive the criminal justly condemned to death in the name of Christ.

The Gospel of Life not only affects questions of justice (as it does in questions involving innocent human life, or the taking of the life of a malefactor by private authority outside of necessity resulting from self-preservation or duty to others when faced with an unjust agressor), but also questions of mercy. In exercising mercy upon a malefactor guilty of a capital offense and so justly executable by public authority, John Paul II recognizes: "Life is always a good." EV, 33. "Life is indelibly marked by a truth of its own." EV, 48.

What is this good? What is this truth? It is that "man's life comes from God; it is his gift, his image and imprint, a sharing in his breath of life." EV, 39; Gen 9:6. Man is "fearfully and wonderfully made." Ps. 139:14. Man's life is therefore not his own. "Human life and death are thus in the hands of God, in his power." EV, 39. Life is as a consequence sacred, and being sacred recognized as inviolable, absolutely when it comes to innocent human beings. EV, 40. That sacred nature and that inviolability "reverberates" in the "first place" in that commandment which prohibits murder: "You shall not kill," which tells us in no uncertain terms "Do not slay the innocent and righteous." (Ex. 20:13; 23:7)

It is this commandment, which already comprehends the "value of life," which is refined by the sublime ethic of the Sermon on the Mount, infused, as it were with the Commandment of Love: "You shall love your neighbor as yourself." (Le. 19:18) It is a commandment invoked by Jesus to the rich young man, and which he perfects with an even greater rigor, a new "force and urgency," preventing not only killing, but legislating to the very soul of man himself, prohibiting any motive of anger or vengeance. (Matt. 19:18; 5:21-22) Jesus extends this commandment of love to encompass even one's enemy. "Even an enemy ceases to be an enemy for the person who is obliged to love him." EV, 41. And this would include the malefactor justly condemned to die. So Jesus' commandment to love our brother, to have mercy upon him, imposes upon us "the requirement to show reverence and love for every person and the life of every person." EV, 41.

How could we expect the Pope to teach anything else? Is he to teach that we are to be irreverent with the life of malefactors? That we are to hate them? No. There is no one, nay not even one, whom the Lord excepts from the requirements of this commandment. Even the unfortunate executioner has to kill the condemned without irreverence and without hate, even with charity, when the demands of justice require it.†† And the Pope is right to remind us of it.

*For those that advocate abolition of the death penalty, we might put in a large number of American bishops and such authors such as James Megivern and E. Christian Brugger. E. Christian Brugger, "Catholic Moral Teaching and the Problem of Capital Punishment," The Thomist 68 (2004): 41-67. Many of these take the untenable position that capital punishment is a malum in se, in other words, everywhere and in all times, intrinsically evil. In my view, this clearly contradicts the natural law, the order of justice, divine Revelation and the Tradition of the Church. It is, moreover, not supported by Evangelium vitae. The belief is, in fact, probably heretical. As to those keen to preserve the traditional teaching of the Church on capital punishment, we might point to Stephen Long and Judge Antonin Scalia. Steven A. Long, "Evangelium vitae, St. Thomas Aquinas, and the Death Penalty," The Thomist 63 (1999): 511-52. Antonin Scalia, "God's Justice and Ours," Speech at the Pew Forum on Religion and Public Life, Nov. 18, 2002. Others--such as Avery Cardinal Dulles, Charles Rice, Janet Smith--seem to fall somewhere in between. Charles Rice, "Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment," First Things 115 (August/September 2001), 9. Avery Dulles, "The Death Penalty: A Right to Life Issue?" Laurence J. McGinley Lecture, Fordham University (17 October 2000), reprinted as "Catholicism and Capital Punishment," in First Things 112 (April 2001), 30-35. Janet E. Smith, "Rethinking Capital Punishment," Catholic Dossier 4 (Sept.-Oct. 1998): 49-50. For a discussion about the positions of Brugger and Long and one effort at reconciling St. Thomas Aquinas and Pope John Paul II, see Peter Karl Koritansky, Thomas Aquinas and the Philosophy of Punishment (Catholic University of America, 2012). Although I cannot claim to have read even a small proportion of the literature on the subject, I have never seen anyone make mention that there is a distinction between the order of justice (which Pope John Paul II is not addressing in the context of capital punishment in Evangelium vitae) and the order of mercy (which is what Pope John Paul II is addressing in Evangelium vitae). It is precisely for this reason that the Pope does not defend capital punishment on the grounds of retribution or vindication of the order of justice (though earlier in the encyclical he acknowledges that it is the primary justification for punishment generally). The concept of retribution or vindication is irrelevant in the order of mercy except with respect to the subject perception of the public. Conceded that the malefactor may justly (that is without moral fault) be put to death, what does mercy say? It is in the order of mercy, in the order of clemency, where Pope John Paul II imports the moral notion of necessity defense. The Pope suggests that the principles of the "necessity defense" are what define the outer limits of mercy. Indeed to exercise mercy upon a man guilty of a capital offense and allow him to live and threaten the lives of other innocents is not only foolish, it is merciless to the innocents who would suffer at the hands of the unrepentant criminal. Defining the outer limits of mercy is a development well in line with what I have called the Tradition of Mercy. It expresses the thinking of St. Ambrose, St. Augustine, St. John Chrysostom, St. Gregory Naziansus, Pope St. Nicholas the Great. With respect to those guilty of capital offenses, the Pope further urges that mercy go as far as its limits. In the order of justice, the death penalty can be frequently justified. In the order of mercy, the death penalty--in modern penal conditions where the common good can be protected from harm without death of the malefactor, and where the State has failed in protecting the innocent and is therefore as guilty as the criminal it would put to death, and where marginal increased in the retributive good between life imprisonment and death is, for a public negative toward the death penalty, small--can rarely be justified.
**For prior postings on capital punishment, see His Blood Shall Be Shed: Capital Punishment and Scripture, Capital Punishment and the Church: Magisterial Sources, Church Fathers and Capital Punishment: St. Clement of Alexandria, Church Fathers and Capital Punishment: Athenagoras, Church Fathers and Capital Punishment: Origen, Church Fathers and Capital Punishment: St. Hyppolitus of Rome, Church Fathers and Capital Punishment: Tertullian, Church Fathers and Capital Punishment: Lactantius, Church Fathers and Capital Punishment: Sts. Chrysostom, Gregory Nazianzen, and Ambrose, Church Fathers and Capital Punishment: St. Augustine--Justice and the Death Penalty, Church Fathers and Capital Punishment: St. Augustine--Mercy and the Death Penalty, The Papacy and Capital Punishment: Innocent I and Innocent III, Capital Punishment and St. Thomas Aquinas, Capital Punishment and Gratian's Decretum, Capital Punishment and the Church: The Roman Catechism, Capital Punishment and the Church: St. Alphonsus Liguori, The Papacy and Capital Punishment: Pius XII, and Capital Punishment and the Tradition of Mercy.
***The word innocent is clearly implied from the context.

Koritansky, 176-77.
††The difficulty associated with this is, of course, notorious. As Aristotle said in his Politics: "The difficulty of this office [of executioner] arises out of the odium which is attached to it; no one will undertake it unless great profits are to be made, and any one who does is loath to execute the law. Still the office is necessary . . . ."

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