Capital Punishment Is Intrinsically Wrong: A Reply to Feser and Bessette

E. Christian Brugger
October 22, 2017
Reproduced with Permission
Public Discourse

Can the Catholic Church declare that the death penalty is inadmissible?

Edward Feser and Joseph M. Bessette believe it cannot. In their recent book, By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment , they assert that the death penalty's legitimacy is indubitably affirmed in Sacred Scripture and Catholic moral teaching. To deny it, they say, is "close to heresy.” Their passionate and unrelenting defense of capital punishment has brought relief to Catholic retentionists who have felt at a disadvantage since the publication of St. John Paul II's magnificent encyclical letter, Evangelium vitae (1995).

In considering whether the Church can declare that the death penalty is wrong in principle, we must ask whether the longstanding Catholic defense constitutes a definitive doctrine of the Catholic Church. In a book-length treatment , the first edition of which was published nearly fifteen years ago, I explored the question. I began my research provisionally convinced of the philosophical view, set forward by Germain Grisez in 1970 , that no one, not even civil authority, could rightly intend to kill a human being; as Gerard Bradley argued later, "No intentional killing whatsoever.” Even when we are dealing with a person who has committed grave evils, if I kill him with intent, I determine my will against his life. Since life is an intrinsic good, in so doing I determine my will and myself contra bonum .

This view does not exclude killing in self-defense, which the tradition, following Aquinas, affirms must be brought about unintentionally (i.e., as a side-effect of an act of proportionate force aimed at rendering an aggressor incapable of causing harm). Understood in this way, capital "punishment” can be justified in the same way as killing in war, namely, as defense.

So the position I held was that killing qua punishment is wrong, because intentional; but not killing qua defense, where death is unintended. I saw that this was the direction that the Catechism of the Catholic Church was going with its teaching on justifiable homicide, and it was the direction I was intent on exploring.

Extraordinary Dogma of Faith?

But was the conclusion consistent with Sacred Scripture and Catholic tradition? To answer this I first asked whether a pope or ecumenical council had ever infallibly taught the legitimacy of the death penalty as intentional killing.

I found that no ecumenical council ever taught the legitimacy of capital punishment.

But I knew that Pope Innocent III in 1210 had required members of the Waldensian sect as a condition of their reconciliation with the Church to profess (among other things) "that the secular power can ( potest ) without mortal sin impose a judgment of blood provided the punishment is carried out not in hatred but with good judgement, not inconsiderately but after mature deliberation” ( Patrologia Latina , tom. CCXV , col. 1512a). Did this constitute an infallible proclamation? It did not. The profession in which the statement appears was published in a personal letter to the group's leader and not in a papal bull to the universal Church. If some proposition in the profession was not already a matter of faith, its inclusion in the Waldensian oath did not constitute it as such. So Innocent's statement could have been mistaken.

It is not unprecedented for a non-dogmatic profession to teach error. The fifteenth-century "Decree for the Armenians” in the bull Exsultate Domino by Pope Eugene IV taught that the sacrament of Holy Orders is "conferred by handing over the chalice with wine and the paten with the bread” ( Denzinger, 43rd ed. , no. 1326). This, of course, is an error since the Sacrament of Orders is conferred by the laying on of hands by a Catholic bishop. Neuner and Dupuis confidently conclude that the Decree for the Armenians is "neither an infallible definition, nor a document of faith.” The same could be said of the Waldensian profession. The death penalty's legitimacy has never been defined by a pope or ecumenical council.

Old Testament

But the Old Testament seemed to assume it was licit, and many believed that the New Testament explicitly taught it was so. If Sacred Scripture truly taught the legitimacy of capital punishment, then as a believing Christian I was committed to concluding that my philosophical position - at least its conclusion - needed revision.

In looking at what Scripture taught about the death penalty, I followed the exegetical principle set forward by Vatican II that "we should hold that whatever the inspired authors or 'sacred writers' assert is asserted by the Holy Spirit.” I needed to determine what the biblical authors intended to assert about the morality of capital punishment, for this should be taken as the assertion of the Holy Spirit.

Following the patristic distinction elaborated by Aquinas, I distinguished between the "moral precepts” of the Old Law and the "ceremonial” and "judicial” precepts taught by Moses. The moral precepts, Aquinas says , belong by nature to good morals. These are reducible to the precepts of the Decalogue. They differ from the ceremonial and judicial precepts in that God himself gave the precepts of the Decalogue to the people, "whereas He gave the other precepts to the people through Moses” ( ST, I-II, q. 100, a. 3c ; emphasis added). The multiple instances in Exodus, Leviticus, Deuteronomy, and Numbers where the death penalty is prescribed were given through Moses. Thus, they should not be taken as pertaining to "good morals,” i.e., to the natural law.

But even if they do not belong to the natural law, if the death penalty were intrinsically evil, then would not Moses, in God's name, have commanded the Israelites to perpetrate evil when he commanded them to put malefactors to death? Should we not conclude with Feser and Bessette that what God required of the Israelites must at least be permissible for us?

No. Permissibility under the conditions of special divine command (presuming that is what the Mosaic precepts constitute) does not translate into permissibility outside that context. If God did inspire Moses to command the people of Israel to kill malefactors, then killing malefactors within that framework may not have been illicit. But its acceptability under these special conditions does not imply that the intentional killing of criminals was and is universally acceptable. God also apparently commanded Moses and Joshua multiple times to subject all inhabitants of cities in Canaan to the notorious "war ban” (in Hebrew: cherem ): e.g., "Thus says the Lord of hosts, … 'Now go and attack Amalek, and utterly destroy all that they have; do not spare them, but kill both man and woman, child and infant, ox and sheep, camel and donkey'” (1 Samuel 15:2-3). (See also Joshua 6:17-21; 7:2; 8:18-26; 10:35-40; 11:20-21.) Whatever one thinks of the legitimacy of such acts under a divine command, if they were ever carried out, we can confidently say that killing non-combatant women, children, and infants is intrinsically evil.

Other examples of acts apparently divinely commanded in the Old Testament that are otherwise wrongful include the Mosaic command to discontented Hebrew husbands to give their wives a writ of divorce before dismissing them and remarrying; the commands to Israel to perpetrate unprovoked aggression against territories settled by indigenous peoples; and Rahab's deception to save the spies of Joshua, which was credited to her as righteousness (Joshua 2:1-6; James 2:25). St. Thomas's reply is to say that carrying out a divine command to do what otherwise would be intrinsically wrong can not only be licit but obligatory; in this case, one's intention is to do God's will; one performs an act of obedience, not evil. The recipient of the divine commands - in this case, Israel - could carry them out without sin. We cannot.

One plausible conclusion is that the ceremonial and judicial precepts commanding the punishment of death were instituted by divine command for a time. Moses commanded - and God permitted - the killing of malefactors because of the "hardness” of Israel's hearts. The fallen inclination of the members of the primitive covenant community was to escalate violence, to kill not only the malefactor, but his family, household, or tribe. The command to kill only the malefactor was God's way of tutoring the moral sentiments of the people of Israel, of defusing an age-old evil inclination to exact excessive revenge. Analogous to Moses's permitting divorce, Israel was permitted to carry out retributive killings that were nevertheless not in accord with the natural law. Just as Israel was unprepared for the universal teaching on the absolute indissolubility of marriage, so too Israel could not have tolerated Christ's command to love one's enemies, which includes at the very least refusing to intentionally kill or harm them.

What about the very early passage in Genesis 9:6? Feser and Bessette argue that "it is absurd to deny that . . . [it is] intended precisely as a divine sanction of the penalty of death.” Let us look at the passage. In the ninth chapter of Genesis, God is blessing Noah, who has just departed the ark. The biblical author has God say:

"For your lifeblood I will surely require a reckoning; of every beast I will require it and of man; of every man's brother I will require the life of man. Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.”

The teaching here pertains to the covenant with Noah, and so should be regarded as having permanent validity. The question is: What was the human author of that passage asserting to be God's will and command? For whatever it was, that also was asserted by the Holy Spirit, and so cannot have been erroneous.

James Megivern argues that the passage should be classified under the genre of proverb, not strict divine-command moral instruction. (This does not imply, pace Feser and Bessette, that the passage is devoid of moral significance, only that it should not be taken as a timeless - or any - biblical warrant for state-sanctioned intentional killing.) The passage makes no reference to public authority or its prerogatives, or to state punishment. Nor does it distinguish between intentional and unintentional killing, or between blood vengeance and punishment. It also includes animals within the scope of those from whom God will require a reckoning. Moreover, if taken as a principle of action, verse 6 would require a strict lex talionis for homicide, which neither the Church, nor any credible Catholic or non-Catholic author - save Kant - has ever argued for. And God himself seems to contradict the pro-capital punishment reading when he spares the life of the first murderer and fratricide, Cain.

Reading Genesis 9:5-6 as a proverbial instruction is thus very plausible. The life of man is sacred because "man is made in God's own image.” Shedding man's blood is an offense against God whose image must be respected. God will require a reckoning from those who disregard the sacredness of human life (vs. 5). Then verse 6: "whoever sheds the blood of man, by man shall his blood be shed.” Rendered as a strict prescriptive divine command, "shall be shed” means "ought to be shed” and "by man” implies that responsibility to carry out God's bloody reckoning is delegated to man. But read as a proverbial instruction, "by man shall his blood be shed” means "this is what happens to murderers; their blood shall be shed by men.” In other words, "shall be” should be read descriptively, not prescriptively. Jesus says something very similar in the Garden: "All who take up the sword shall die (αποθανουνται) by the sword”; Matthew 26:52). The biblical author is stating a fearsome consequence of disregarding the sacredness of human life.

New Testament

As for the New Testament, no strong argument can be made for the death penalty from the Gospels. But many Christians have taken Romans 13:1-4 as a biblical warrant for the death penalty. I quote verses 1-7 for the sake of context:

Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of him who is in authority? Then do what is good, and you will receive his approval, for he is God's servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer. Therefore one must be subject, not only to avoid God's wrath but also for the sake of conscience. For the same reason you also pay taxes, for the authorities are ministers of God, attending to this very thing. Pay all of them their dues, taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due.

St. Paul doubtless believed the death penalty was legitimate. But did he teach it in Romans 13?

Before I reply, I need to respond to an accusation. Feser and Bessette charge me with denying "the divinely appointed power of the state.” If by this they mean I deny that the authority of the state - and all rightful authority - has been instituted by God to defend the community in accordance with God's law, the charge is false. I state the opposite in my book (see page 69). In addition, I say St. Paul "clearly means to identify the origins of earthly authority with the purpose of God.” But does he mean "to propose a doctrine of the nature of state authority which includes the right of the state to execute malefactors?” I conclude that the propositions asserted in Romans 13 leave quite open the question of how far civil authority's divinely instituted power extends. And I quite deny that St. Paul means to assert that it extends to intentional killing.

Following a common interpretation of biblical scholars, the passage does not affirm a universal principle about the state's right to kill criminals. Since the verse "if you do wrong, be afraid, for he does not bear the sword in vain” is in the wider context of an exhortation to Christians in Rome to be obedient to civil authority, especially by paying their taxes (see verse 6) - which some were disinclined to do because of their newfound "liberty” in Christ - these scholars argue that it refers to the general policing authority of the Romans to enforce tax collection. In this case, the metaphor of the sword, a likely reference to the use of lethal force, does not refer to the state's penal authority (and so a fortiori not to its right to inflict capital punishment), but to the sword's use in policing, which does not necessitate intentional killing, but rather unintentional killing in the pursuit of rendering aggressors incapable of causing harm in the enforcement of the law.

Feser and Bessette believe there is a "presumption” against such readings because for centuries a majority of Catholics, including Church fathers, believed otherwise. They remind us that the First Vatican Council teaches "it is not permissible for anyone to interpret Holy Scripture in a sense contrary to [what Holy Mother Church held and holds], or indeed against the unanimous consent of the fathers.” They conclude that "despite good intentions, Brugger's position and that of the new natural lawyers in general simply cannot be reconciled with Catholic orthodoxy.”

I agree that a presumption exists against readings that contradict traditional interpretations, which is a reason I wrote a book investigating whether the presumption may be overcome. What needs to be determined is whether the traditional interpretation in question holds a definitive status in the tradition, which is not easy to discover. One way, as the First Vatican Council affirms, is to ask whether the interpretation has been held by "the unanimous consent of the fathers.” As to capital punishment, relatively few fathers comment directly on its morality. Those who do affirm the right of civil authority to carry it out. Can this be considered a "unanimous consent of the fathers”? I think not. Certainly Feser and Bessette do not demonstrate that it does.

If the traditional interpretation is not definitive, then, I reasoned, if a weighty authority within the magisterium, such as St. John Paul II, gave good reason to reject the interpretation (which I will argue in an essay tomorrow), then it is not "unorthodox” to explore contrary arguments, to argue, in other words, that the Church very possibly has never (properly speaking) "held” and does not "hold” that Romans 13 teaches the legitimacy of the death penalty.

It is to these issues that I turn in tomorrow's essay.