Monday, March 9, 2015

Ask Tony: Is opposition to capital punishment “heresy”?

There are some people who can’t be satisfied with just being right — they have to spoil it by going that extra yard, so they’re not only not as right as they could have been, they’re also a bit meshuggeh to boot. It’s almost like watching a player on the defense grab a fumble and down it ... in his own end zone.

Recently, four major Catholic media sources — well, three Catholic and one that insist it’s Catholic — published a joint editorial calling for the end of capital punishment: America magazine, the National Catholic Register, Our Sunday Visitor, and the National Catholic Fishwr — er, Reporter. Naturally, this announcement caught the Catholic Blogisterium by not-universally-pleasant surprise. 

One of the least pleased was Br. Alexis Bugnolo of the blog From Rome, who lashed back with a post titled, “It is a heresy to say Capital Punishment is immoral, or can be abolished”. No, really ... that is the title, and that is his argument:

Rome, March 6, 2015:  The agenda of  Communism* to disarm Christendom more and more has reached fever pitch this week with pronouncements by the Vatican Observer at the United Nations, the Pope, and several media outlets in the United States against the death penalty. [* Marx held that the way to social justice was through class revolution, and that capital punishment was the tool of the rulers to suppress the masses: this error promoted through liberation theology has spread from Europe to most of Latin America. (So how does this make the various calls to end capital punishment “communist”? Damned if I know.)] ...
Patheos a left-wing, [?] source for news and opinion for Catholics in the English speaking world, is running a story today about this, entitled, “Catholic Media Unite in Opposition to the Death Penalty”. [Specifically, the post Br. Bugnolo linked was in Kathy Schiffer’s Seasons of Grace. Whatever else Kathy may be, besides a very pleasant writer to read, she’s no leftist. Neither are Fr. Dwight Longenecker, Kat Fernandez, Elizabeth Scalia, nor Mark Shea; but then, anybody not as far to the right as Br. Bugnolo must appear to be a leftist.] ...
The title of their article is more than misleading, it is implicitly heretical.° [° Inasmuch as it says that such pronouncements are Catholic. (Inasmuch as the title makes no such claim, the charge is explicitly hysterical; the word Catholic modifies Media, nothing else.)] For this simple reason, that it is de fide, that is a truth of Divine Revelation itself, that the State has the authority to punish wicked doers with capital punishment.

Heresy is “the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith” (Code of Canon Law 751; cf. CCC 2087 – 2089). Catholics who oppose the death penalty don’t deny that Church teaching permits or tolerates the death penalty. To justify his calling anti-death penalty writings heresy, then, it isn’t sufficient for Br. Alexis merely to argue that Church doctrine tolerates the death penalty; he must show that Catholic teaching mandates the death penalty as a moral duty of the State.

Here is the inarguable: The Catholic Church has conceded for almost 2,000 years that the State could rightfully execute citizens in pursuit of retributive justice.

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.” (Catechism of the Catholic Church 2267; cit. St. John Paul II, Evangelium Vitae 56)

Brother Alexis’ argument is that “it is not only an error, but a heresy against the Faith of Christ, to say that capital punishment is evil, un-useful or inappropriate, either in itself, or in its application.” He tries bolstering his condemnation with two citations from Scripture. However, neither quite fit the purpose.
The first is Jesus’ declaration to Pontius Pilate: 

Pilate therefore said to him, “You will not speak to me? Do you not know that I have power to release you, and power to crucify you?” Jesus answered him, “You would have no power over me unless it had been given you from above; therefore he who delivered me to you has the greater sin.” (John 19:10-11 RSVCE; emphasis in Bugnolo)

Doesn’t quite work the way Br. Alexis wants it to. Jesus isn’t asserting that Pilate’s power to execute is a moral duty or a good thing withal, but rather that Pilate’s power over the Judeans is contingent on remaining in Caesar’s good graces, and as such is hardly absolute. Strike one.

His next attempt is to drag St. Paul into the argument. Here, he gets a pop-up foul:

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. (Romans 13:1-7 RSVCE; emphasis in Bugnolo)

Of the emphasized text, only the words highlighted in yellow make an undeniable connection to capital punishment. We don’t see in this passage an argument towards capital punishment’s necessity or goodness. What St. Paul is saying is that, inter alia, civil governments act as ministers of God’s justice; they would function so whether or not they had execution as a judicial recourse. However, Br. Alexis tries to use this passage to prove that capital punishment is a “moral duty”. A legitimate power of the State, yes; a duty ... nope, the passage won’t stretch that far. Strike two.

This is where Br. Alexis’ argument falls apart. For legitimate recourse and obligation/duty aren’t coterminous concepts. He tries to bolster the argument by bringing Moral Law into the matter: “... Moral Law — which says what is right and wrong, which has God as its author and which is legible in the works of His creation — is superior in dignity to the individual human person .... For every law shares in the dignity of the one who issues it.” 

Here we have a number of rabbit holes we can dig; for now, we can simply note that the gap between this statement of fact and the Ergo of Br. Alexis’ proof is about a mile wide, and completely unbridged by intermediate premisses. That God’s moral law participates in God’s dignity as its Author, and as such is superior to humans, is undeniable. How does this make capital punishment an obligation or duty of the State, rather than merely a legitimate recourse? How does this mean that a State cannot not execute its citizens for certain crimes? That is the argument Br. Alexis needs to make; this is the conclusion he must draw from his premisses.

Alas, the conclusion isn’t inescapable; it isn’t a necessary derivative of his premisses. Strike three — you’re out.

Brother Alexis knows his argument is shaky, so he pulls in The Roman Catechism of the Council of Trent III:5, n. 4, which called capital punishment “an act of paramount obedience” to the Fifth Commandment. (Sorry, The Roman Catechism of 1566 doesn’t trump the Catechism of 1994.) He also tries to reinterpret St. John Paul II’s words in Evangelium Vitae:

[Saint John Paul] spoke about the remediation of the individual, not the duty of the state or the right of the state  nor of the greater common good.  And if he meant anything contrary to the teaching of Christ, it is obvious, that he erred and is not to be followed in that, since Vatican I required that Popes teach nothing contrary to Christ and His Apostles, and exhorted Catholics not to follow them if they do so.

Actually, Vatican I made no such requirement or exhortation. Rather, the First Dogmatic Constitution on the Church of Christ made it quite plain that “when, in the exercise of his office as shepherd and teacher of all Christians, in virtue of his supreme apostolic authority, he defines a doctrine concerning faith or morals to be held by the whole church,” the Pope is already protected from error by the charism of his office. More to the point, nothing in Vatican I gives the laity or the presbytery “heckler’s rights” over the Pope, the Holy See, or their local Ordinaries; what isn’t protected by infallibility is still to be adhered to with “religious assent” (CCC 892). Indeed, I’m rather surprised that Br. Alexis would implicitly make an essentially dissident, even Lutheran, argument against St. John Paul — that is, that the individual understanding of Scripture and Tradition trumps that of the Pope and the Holy See.

In fact, Br. Alexis’ argument here becomes downright dishonest. For St. John Paul does speak of the duty of the state and the common good in EV 56, placing his comments on the death penalty in that context, and arguing that the state “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.” Moreover, this contention springboards his next section: “If such 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 when it refers to the innocent person.” (EV 57; bold font mine)

That the State has the authority to execute lawbreakers, and that such executions do not violate the Fifth Commandment, are not in question. What is in question is the need for capital punishment — whether it truly serves the purposes it’s maintained to serve; whether other techniques and sentences can suit our understanding of justice better. Neither Scripture nor Tradition can give us definitive, eternal answers to these latter questions without severe distortion of the text; the people and the State’s legislative power must provide the answers ad hoc themselves.

There are other, arguably better, grounds on which one could argue for the maintenance of the death penalty. (I don’t have strong feelings one way or the other about it.) Brother Alexis chose name-calling: “People who are against the death penalty are commies and heretics.”

There may be worse arguments to make. I’m just not sure what they’d be.