Lesson 15: Evangelium Vitae
In what is known as the Casey Decision, Justice Anthony Kennedy, a Catholic, wrote an opinion that continues to make heads spin. In justifying the legalization of abortion, Justice Kennedy adopted the all too familiar view that to outlaw the slaying of the innocent is to impose one moral opinion on those who do not hold it. Not only does Justice Kennedy not think that there are moral truths which are incumbent on people even if for the nonce they do not hold them -- could a judge seriously hold that a thief who airily dismissed the notion of private property would thereby gain his immediate exoneration? -- went on to make one of the most absurd statements in modern jurisprudence. Every human person, he opined, has a natural right to define life and the universe as he wishes. You and I, each of us, has the right to define what human life is. You and I, each of us, has the right to define the whole universe any way we like. This mad generalization was launched to protect the equally silly notion that the prohibition of abortion is simply to give one arbitrary and baseless position precedence and primacy over other arbitrary and baseless positions.
The simplest thing that can be said about Justice Kennedy is that if he is right he is wrong. If he is right I have the right to define my own universe in which there is no supreme court and ridiculous rulings. Or, less sweepingly, to define my universe as one in which Justice Kennedy's ruling is false. But even if it is true, what right does he have, on his own view, to impose it on me?
But enough. One turns from such pretentious nonsense to Pope John Paul II's encyclical called The Gospel of Life with eager enthusiasm. It has become so rare to hear simple truths on the matter of abortion and the other assaults on human life that the Holy Father's voice lifts like one in the wilderness. Opposed to the Culture of Death in which minds like Justice Kennedy's prevail, there is the Gospel of Life received from the Lord.
The Church knows that this Gospel of Life, which she has received from her Lord, has a profound and persuasive echo in the heart of every person -- believer and non-believer alike -- because it marvelously fulfills all the heart's expectations while infinitely surpassing them. Even in the midst of difficulties and uncertainties, every person sincerely open to truth and goodness can, by the light of reason and the hidden action of grace, come to recognize in the natural law written in the heart (cf. Rom. 2:14-15) the sacred value of human life from its very beginning until its end, and can affirm the right of every human being to have this primary good respected to the highest degree. Upon the recognition of this right, every human community and the political community itself are founded. [n. 2]
It is just the obvious truth that the political community reposes on the right to life of each of its citizens that is denied by those who make it all right from some citizens to take the lives of other citizens. It will not do to say, as the Nazi doctors did, that there is human life and human life, some valuable and some worthless. The rejection of the humanity of the unborn human has opened the door to questioning the right to life of the terminally ill, the old, the handicapped. The primary function of the state is to secure the safety of its citizens. To license out to citizens a right to deprive others of that right is to call the very legitimacy of a state into question.
I urge you to read and ponder this beautiful encyclical. It is bracingly counter-cultural although it simply recalls the principles on which our country was founded. The intrinsic dignity of the human person has never had a more eloquent expression than one finds in The Gospel of Life. For our purposes, I will concentrate on only one feature of the encyclical and one which may at first seem tangential. I have in mind the two references to capital punishment.
These passages are important because they seem to signal a profound change in the Church's attitude toward the death penalty. Traditionally, the Church has always recognized the right of society to exact the ultimate penalty from malefactors whose deeds can receive no other adequate penalty. In the encyclical, and in the revisions of the Catechism of the Catholic Church which were prompted by the encyclical, there seems to be a perceptible shift of doctrine. Is there?
A recent issue of Catholic Dossier (Vol. 4, no. 5, Sept.- Oct, 1998) is devoted to the death penalty and one will find there articles which consider the matter from a variety of angles. Cardinal Christoph Schoenborn, who was the editor of the Catechism, writes on the revisions of it prompted by The Gospel of Life. Professor Charles Rice, taking his cue from the encyclical and Catechism, argues that the death penalty is on its death bed. Others take a more reserved position, but Cardinal Schoenborn seems clearly among those who anticipate that the Church will withdraw her support of capital punishment. I am not in that number and what I now go on to say has two stages.
First, I will make clear that neither the encyclical nor the Catechism teach that capital punishment is as such immoral. Neither withdraws or withholds support of the practice. This is something on which all agree.
Second, I will argue that those who have trouble justifying the death penalty will have equal trouble justifying life imprisonment. From this fact, if it is a fact, I will say why I think the traditional acceptance of capital punishments stands and is unlikely to be withdrawn.
Chapter III of The Gospel of Life discusses the commandment, You shall not kill. Life is a gift and God remains the master of it. "With regard to things, but even more with regard to life, man is not the absolute master and final judge, but rather -- and this is where his incomparable greatness lies -- he is the 'minister' of God's plan." [n. 52] The life of a human person is sacred. "Human life is sacred because from its beginning it involves 'the creative action of God', and it remains forever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning to its end; no one can, in any circumstance, claim for himself the right to destroy directly an innocent human life." [n. 53] The prohibition is absolute, because of the kind of act it is, its object. One can see how crucial the Holy Father's defense of the traditional sense of the object of the act against the revisionist sense proposed by dissenting theologians is. Ethics' books are filled with examples of supposedly justified killing if, for example, killing one innocent person would save a dozen. There is no trade-off possible in the case of human life. One fears that the dissenting theologian would support the Utilitarian calculus here and build the intention into the "object" of the act, attempting to turn an act of murder into one of mercy.
God's creative action is involved in every created thing or process but is involved in a special way in the case of the coming into being of a human person. Unless lesser souls, those of animals and plants, the human soul is not the actuation of a potentiality of matter. Thinking and willing are not possibilities of matter. The power that precedes them is the power of God. Human life thus is holy in a way that makes it far more deserving of reverence than are created things in general.
The Pope, having shown that the prohibition of murder is as old as the Church, indeed far older, draws attention to the way in which the Didache, "the most ancient of non-biblical Christian writing" illustrates the "way of death" by those who "kill their children and by abortion cause God's creatures to perish." Killing the unborn is the most vivid instance of killing an innocent, vulnerable person.
If God alone is the master of life, there "are in fact situations in which values proposed by God's Law seem to involve a genuine paradox. This happens in the case of legitimate defense, in which the right to protect one's own life and the duty not to harm someone else's life are difficult to reconcile in practice." [n. 55] It is just the sacredness of one's life that creates a duty to defend it. But if self-defense is a right and duty, defending life for which one is responsible is more so. "...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." [n. 55; citing the Catechism, n. 2265] This consideration brings the Holy Father to the death penalty.
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 punishments which society inflicts is "to redress the disorder caused by the offense." (CCC n. 2265) 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 exercise his freedom. In this way, authority also fulfills the purpose of defending the public order and ensuring safety, while at the same time offering the offender an incentive to help change his life and be rehabilitated. [n. 56]
Since the encyclical served as a basis for the revision of the Catechism of the Catholic Church, it is important to see that the encyclical here relies on the Catechism. The points of the passage just cited are several.
1. Both within and without the Church there is a tendency not to use the death penalty, perhaps even to abolish it.
2. Penal justice must be in line with human dignity and God's plan for man and society.
3. There are three purposes of punishment:
a. primarily, to redress the disorder caused by the offense.
b. defending public order and safety.
c. Providing the offender a chance for changing his life and rehabilitation.
The paragraph continues:
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.
Here the Holy Father makes the use of the death penalty depend upon whether or not the penal system is sufficiently well-organized so that society can be protected against the criminal without executing him. He imagines conditions to be generally such, or soon to be such, that capital punishment will become rare to non-existent. He ends this extremely important paragraph 56 with a long quote from the Catechism.
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 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 with the dignity of the human person." [n. 2267]
While The Gospel of Life thus relies on the Catechism on the matter of capital punishment, changes were made in the latter in the light of the former. You will find this documented in the issue of Catholic Dossier already alluded to on pp. 37-42.
The original Catechism discussed legitimate defense in n. 2263, noting that it is not an exception to the prohibition of the intentional killing of the innocent that constitutes murder. The act of self-defense has a double effect: saving one's own life, which is intended, and killing the aggressor, which is not. But, as n. 2264 explains, one is justified only in using such force as is necessary to repel the aggressor. But it can happen that killing the aggressor is involved. Thomas Aquinas is cited for the truth that one has a greater duty to take care of his own life than that of another. [ST, IiaIIae.64.7.c]
There are revised versions of paragraphs 2265, 2266 and 2267 of the Catechism.
2265. Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility.
2266. The efforts of the state to curb the spread of behavior harmful to people's rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending the public order and protecting people's safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.
2267. Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.
If, however, nonlethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm -- without definitively taking away from him the possibility of redeeming himself -- the cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.
The encyclical and the revisions have already generated a great deal of discussion and are likely to generate a good deal more. It is clear that the overall attitude toward the death penalty is in the direction of rendering it practically unnecessary while retaining the traditional doctrine that it can be legitimate. Clearly, where there is a dubious process of establishing guilt, where capital punishment extends to less serious and even trivial offense, and when those executed are predominantly of one race, it is not the legitimacy of the death penalty itself that is called into question. In most concrete circumstances, having recourse to the death penalty should be rare.
What some have found difficult in the encyclical and the Catechism is the way "redressing the disorder" of the crime, which both give as the primary aim of punishment, seems to be eclipsed by considerations of defending society against the criminal and the rehabilitation of the offender. These are secondary effects of punishment, neither one of which can substitute for its primary purpose. Imprisonment to protect society against the criminal refers to further future and only possible offenses, not to that and those of which he has been found guilty. So do the opportunity the offender has to square his accounts with God is arguably the same whether or not the punishment is execution. It could be argued that there are more conversions among those on death row than among lifers. In any case, regarding prison as a school of virtue seems without basis and this is independent of the advances in the modern penal system.
What seems needed is an argument that life imprisonment fulfills all three aims of punishment. Prison redresses the imbalance established by the crime committed, protects society against more of the same and, perhaps, gives the offender a long time in which to put his house in order. Thus, attention turns to the justification of life imprisonment. It would seem to be appropriate only when the offender has committed a crime that is so horrendous that no amount of time would suffice to return him to the society he has offended. That is, there must be an abuse of freedom so serious that it justifies removing the offender for life from the society of free agents. [This is not to say that he loses his status as a moral agent; only that the arena in which he will be permitted to exercise it will be permanently limited to prison.]
Some fear that a case will be made against life imprisonment similar to that raised against capital punishment. Is being locked up for life compatible with the dignity of the human person? Is this really the best situation in which for him to rehabilitate himself? Already, as for example in Italy, there are campaigns to outlaw life imprisonment.
There are those -- I am one of them -- who do not regard it as Pickwickian to say that exacting the death penalty for particular horrendous crimes may be the most dramatic way of recognizing the dignity of the person of the offender. He is being treated as a responsible agent. He is being held to the consequences of doing what he did. To waive the death penalty in capital cases may involve an attitude the Church would not care to support.
The rising tide of opposition to the death penalty in modern society is seldom tied to any recognizable grasp of the dignity of the human person. As often as not, it is based on a theory of action which regards accountability as an arbitrary and tyrannical demand imposed on the offender by those with different views. Responsibility, not just the punishment that presupposes it, is the target of abolitionists.
Any adequate discussion of the death penalty and its use must involve a prolonged look at contemporary society, the society the Pope has characterized as a Culture of Death. This is a culture which rejects natural law as well as the tenets of Christian morality. In such a society, one might oppose prison sentences if only because of the "rehabilitation" efforts to which they subject prisoners. But it seems unwise to find in secular agitation against the death penalty anything from which to take moral or religious comfort.
For other and often quite different views on these matters, I refer you once more to the issue of Catholic Dossier devoted to the death penalty.
The Gospel of Life.
Compare the culture of life and the culture of death.