Tom Peters has posted an interview with Bishop D’Arcy of South Bend, where the interviewer questions the Bishop’s absenting himself from the upcoming commencement address by President Obama by comparing it to the same prelate’s attendance when President Bush gave the commencement address.  The idea is, just as Obama is for abortion, President Bush was for the death penalty, so what’s the difference?  Are not both the taking of a human life?

The Bishop responds in part by saying that a good Catholic can “disagree with the Church on the death penalty.”  Cardinal Ratzinger expressed the same in a memo to Cardinal McCarrick about withholding Communion from pro-abortion candidates back in 2004.  This certainly implies that the Church’s current negative stance on the death penalty does not regard it as a per se malum like abortion (for on these, a “good Catholic” cannot disagree).

So what about the taking of human life?

With regard to the death penalty, I think the two extremes to avoid are clear.  First of all, we cannot say, as some do, that it is an intrinsic evil.  For one thing,the Church doesn’t teach this.  “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…“  But also, we must recall that it is not something that we have to practice either, and we should take Pope John Paul’s Evangelium Vitae seriously.  Prudentially, I think there may be instances (even now) where one should decide not to make use of the right of the death penalty.  But the main point is that we cannot say, as some have, that the Church was wrong to permit the death penalty in the past, and that now, the doctrine has developed.  A development of doctrine can clarify what has always been held, but it cannot contradict it, in matters of faith and morals.

But what has been the Church’s reasoning for asserting that the state has such a right?

With regard to the distinction between abortion and the death penalty, there are two key premises that have bolstered the Church’s moral teaching.

1) One is that the state, in its capacity of caring for the more universal common good, has certain rights that the individual doesn’t have.  Antonin Scalia notes that this might be hard to understand today due to the fact that we tend to forget in modern democracy that the state is more than the sum of its voting individuals.  Be that as it may, the state has a more universal role of causality, and participates in God’s own governance of things (Note: in my opinion, Scalia goes perhaps a bit too far in basically giving no weight to Evangelium Vitae‘s injunction against the Death Penalty).

2)  The second is that innocent human life is never detrimental, but always beneficial to the common good.

As for 1)

The traditional teaching has been that when it comes to killing, the private person never has the authority or the right to directly intend killing any human being.  Even in self-defense, the death of one’s aggressor is an unintended effect; the intended action is just due counter-force.  If, in defending oneself, an individual were to directly intend the death of his aggressor or use a means that was excessive, they are not without sin.  The individual simply cannot have the right to take another’s life.

But in the Church’s teaching, the state does have that right.  And of course this right is executed through the officials of the state: the ruler, but also the military and the peace-keeping forces, and even executioners.  When these men act, their role is not only one of self-defense: they are directly intending to kill another man.  They do this, not on their own private authority, but in the name of the state, which, again, because of its more universal causality, extends to more things than the individual can do.  Hence, in both war and capital punishment, the soldiers/state officials are directly intending the deaths of those whom they kill.

Now, of course, there must be a reason for allowing this to happen.  And in the Church’s teaching, one of the principal reasons was moral guilt.  That is, whether it be a criminal, or an invading country that is committing an injustice, those whom the state directly intends to kill must be guilty of something.  This even obtains in war, i.e., even if it seems expedient, a war against a nation that has done nothing morally wrong is unjust, even if it seems better for the common good to go to war with that nation (of course, morally wrong can include preparations for aggression, not just actual aggression).

Some theologians don’t buy this account of the state being allowed to intend direct killing.  They would rather say that no human entity can intend direct killing ever.  Nevertheless, knowing that the Church has asserted that the state has a right to capital punishment, they also know that they can’t say it is an intrinsic evil.  So some have maintained that the death penalty is more a form of self-defense on the community level.  Now, it is true that it can have this secondary effect, i.e., repeated offenders are thereby eliminated.  However, capital punishment is not self-defense for two reasons: one is, it is still clear that the state is directly intending the death of the malefactor.  St. Thomas says as much when he distinguishes between self-defense by a private individual and by a public authority, as well as when he says that a judge simply wills the death of a murderer (scroll to reply to objection 1). Indeed, it is absurd to say that execution is an unintended death.  It’s not as if the state is protecting itself in some immediate fashion, and, regrettably, someone died in the process.  Secondly, seeing capital punishment as punishment, and not just as self-defense, is actually more just.  If the death penalty were primarily seen as a form of self-defense, then it becomes utilitarian, in that guilt for former crime is no longer the determining factor, but simply perceived threat.  If you saw Minority Report, you have an example that precisely shows the problem with seeing the role of the penal system as one of defense instead of punishment: people are “punished” before they have even done anything wrong.

On the contrary, punishment, as such, has as its first end the redress of the disorder caused by the offender.  Just as the offender went against the law according to his own will, the idea of punishment is to make the offender suffer something according to the law against his own will, proportionate to his transgression.  This proportionality makes it so that greater crimes are allotted greater punishments of greater goods being taken away from the guilty.  And this has not excluded his very life, in the Church’s teaching.  Besides this primary end, there are secondary ends of punishment, such as the protection of the state, the correction of morals, and even the correction of the culprit himself.  But these cannot be pursued in such a way as to take away the first end, which depends on the notion of already existing guilt.

Nevertheless, what is true is that, as long as the first end is maintained to any degree, the state may modify punishments to better serve a secondary end.  A key example is the death penalty itself.  Although the crime committed may in a sense “deserve” the death penalty because of its gravity, as long as some retribution to the order of justice is maintained, the state can choose a punishment that would better serve the common good.  Aristotle himself says that the state’s end is justice, but friendship even more so.  The same is true today.  Although we must teach that the state has the right to inflict the death penalty, it can definitely be argued that today, when we are trying to counteract a culture of death, it would be better not to make use of that right.  In fact, more often than not, punishment in human justice is often not judged according to its first end alone, but is modified in accord with a judgment for the common good.  St. Thomas says that the punishments of this life are more medicinal than retributive (scroll down to reply to the second for both links).  And this is fine, as long as they remain retributive (i.e., based on redressing the disorder brought in by previous guilt).

Thus, some read Pope John Paul II’s Evangelium Vitae as basically making the prudential judgment that this is not the time to make use of capital punishment.  The common good of society is better served by not using it, in order to promote the culture of life.  Circumstances may change in the future, and even prudential considerations can be flawed.  That’s why a “good Catholic” can “disagree with the Church on the death penalty.”

Of course, we can also say that there may be some development of doctrine with regard to the death penalty.  For instance, it is very reasonable to say that the crimes for which the death penalty could be applied is truthfully less than we might have seen it to be in the past.  This is legitimate development.  What would be an illegitimate development is to say that “Well, before the Church taught that the death penalty was OK, but we know better now.”

Besides being against reason and the tradition, to say that the death penalty is an intrinsic evil also seems to be against Scripture, especially Romans 13:4, and the uncorrected words of the good thief, Luke 23:41.  And there are plenty of testimonies in the Old Testament.

As for 2)

So how does this square with abortion?  Well, simply in that the unborn are always innocent, and though some (like Doug Kmiec, Nancy Pelosi, and  Joe Biden) may think that the common good is served by killing the innocent, that is simply not true.  St. Thomas puts it well.

I answer that, an individual man may be considered in two ways: first, in himself; secondly, in relation to something else. If we consider a man in himself, it is unlawful to kill any man, since in every man though he be sinful, we ought to love the nature which God has made, and which is destroyed by slaying him. Nevertheless, as stated above (Article 2) the slaying of a sinner becomes lawful in relation to the common good, which is corrupted by sin. On the other hand the life of righteous men preserves and forwards the common good, since they are the chief part of the community. Therefore it is in no way lawful to slay the innocent. ST, II-II, q. 64, a. 6

It is the fact that criminals are guilty that gives the state the right to intend their deaths, though it may never intend the death of the innocent.  As for human dignity, it always remains valid.  What must be remembered though is that “dignity” is basically a Latinized word for  “worthiness.”  Hence, different dignities are named in reference to different goods that the subject is worthy of.  All human persons, simply by being human, retain their natural “worthiness” of their final supernatural end if they so choose to remain in God’s grace or turn back to it through repentance.  No creature can take this from them; it is inviolable.  And this is the true property of human dignity (a great book on this, hard to find, however, is The Primacy of the Common Good as the Root of Personal Dignity in the Doctrine of St. Thomas, by Fr. Sebastian Walshe, O. Praem).  But men may lose their worthiness for other goods based on the use or abuse they made of the goods of which they were once worthy.  Hence, St. Thomas actually says that the person who sins in a sense loses some part of his human dignity, and that is why the state can enjoin the death penalty upon him.

Reply to Objection 3. By sinning man departs from the order of reason, and consequently falls away from the dignity of his manhood, in so far as he is naturally free, and exists for himself, and he falls into the slavish state of the beasts, by being disposed of according as he is useful to others. This is expressed in Psalm 48:21: “Man, when he was in honor, did not understand; he hath been compared to senseless beasts, and made like to them,” and Proverbs 11:29: “The fool shall serve the wise.” Hence, although it be evil in itself to kill a man so long as he preserve his dignity, yet it may be good to kill a man who has sinned, even as it is to kill a beast. For a bad man is worse than a beast, and is more harmful, as the Philosopher states (Polit. i, 1 and Ethic. vii, 6). ST, II-II, q. 64, a. 2, ad 3

Hence, when we say that “human dignity is inviolable,” I understand that to mean the human dignity that accrues to us insofar as we are “worthy” of a supernatural end if we work with God’s grace, a good that no human power can ever take from us, and a good in comparison to which all other physical evils are not comparable, and even may be beneficial.  But the inviolability of human dignity does not necessarily extend to all other goods, even life included.  Guilt, and only guilt, can make us unworthy of it.  After all, liberty of the body and possession of private property are also natural goods that man is worthy of, but we also take them away from a man when he sins.

One of the best treatments of capital punishment that I have read is an article by the lawyer Pat Laurence.  It’s certainly worth a read for those who are interested in pursuing the topic in greater depth.

In summary:

1.  The state, because of its more universal role in caring for the common good, actually has a right that private persons do not have, namely, the right to directly intend to take another’s life.

2.  This right, exercised for the sake of the common good, never permits us to kill the innocent.  Punishment is only given for guilt.

3.  Abortion is an intrinsic evil because it is the chosen taking of innocent human life, which is inherently against reason, and thus an intrinsic evil, a per se malum.  Nevertheless, the taking of human life, just as a notion in itself, is not inherently against reason, even when it is chosen.  There are cases when it may be done by the proper authority.  Indeed, this is precisely the reason behind the Church’s teaching on the death penalty and just war.

What of the commandment, “Thou shall not kill?”  Take a look at what St. Thomas says about that commandment (scroll down to numbers  [7-9].  St. Thomas also gives a good argument for when the death penalty must be avoided).