THE DEATH PENALTY

by Romano Amerio (†1997)
 

Certain social institutions derive from the principles of the natural law and as such are perpetual in one form or another; for example the state, the family, a priesthood of some sort; and there are others that arise from a certain level of reflection on those principles and from historical circumstances, and which are abandoned when thought moves on to another level or when circumstances change; for example slavery.

Until recently, the death penalty was philosophically defended, and used in practice by all countries as the ultimate penalty society imposes on evildoers, with the threefold aim of righting the balance of justice, defending society against attack, and dissuading others from wrongdoing.

The legitimacy of capital punishment is usually grounded on two propositions. First: society has a right to defend itself; second: this defense involves using all necessary means. Capital punishment is included in the second proposition on condition that taking the life of one member of the body of society is genuinely necessary for the wellbeing of the whole.

The growing tendency to mitigate punishments of all sorts is in part the product of the Gospel spirit of clemency and mercy, which has always been at odds down the centuries with savage judicial customs. With a certain degree of confusion that we need not go into here, the Church has always drawn back from blood.

It should be remembered that canon law traditionally decreed the “irregularity,” that is the banning from holy orders, not only of executioners, but of judges who condemned people to death in the ordinary course of law, and even of advocates and witnesses in trials that led to someone being put to death.

The controversy does not turn on society’s right to defend itself; that is the undeniable premise of any penal code, but rather on the genuineness of the need to remove the offender altogether in order to effect that defense, which is the minor premise involved.

From St. Augustine to St. Thomas Aquinas to Taperelli d’Azeglio, the traditional teaching is that the decision as to the necessity and legitimacy of capital punishment depends on historical circumstances, that is, on the urgency of the need to hold society together in the face of the disruptive behavior of individuals who attack the common good. From Beccaria onwards, proposals to abolish capital punishment have admitted the major premise, and allowed that the minor one depends on historical circumstances, since they allow the execution of offenders in some emergencies, such as war. During the last war, even Switzerland sentenced and shot seventeen people guilty of high treason.

188. Opposition to the death penalty.

Opposition to the death penalty stems from two diverse and incompatible sets of reasons, and can only be evaluated in the light of the moral assumptions on which it is based. Horror at a crime can coexist with sympathy for human weakness, and with a sense of the human freedom that renders a man capable of rising from any fall as long as his life lasts; hence opposition to the death penalty. But opposition can also stem from the notion that every person is inviolable inasmuch as he is a self-conscious subject living out his life in the world; as if temporal life were an end in itself that could not be suppressed without frustrating the purpose of human existence.

Although often thought of as religiously inspired, this second type of reason for rejecting capital punishment is in fact irreligious. It overlooks the fact that from a Christian point of view earthly life is not an end in itself, but a means to life’s moral goal, a goal that transcends the whole order of subordinate worldly goods. Therefore to take away a man’s life is by no means to take away the transcendent end for which he was born and which guarantees his true dignity. A man can propter vitam Vivendi perdere causas (for the sake of life, loose the causes of life) that is, he can make himself unworthy of life by taking temporal life as being itself the supreme good instead of a means to that good.

There is therefore a mistake implicit in the second sort of objection to capital punishment, inasmuch as it assumes that in putting someone to death, other men or the state are cutting a criminal off from his destined goal, or depriving him of his last human end or taking away the possibility of his fulfilling his role as a human being. Just the opposite in fact. The condemned man is deprived of his earthly existence, but not of his goal. Naturally, a society that denies there is any future life and supposes there is a fundamental right to happiness in this world, must reject the death penalty as an injustice depriving man of his capacity to be happy.

Paradoxically, those who oppose capital punishment on these grounds are assuming the state has a sort of totalitarian capacity which it does not in fact possess, a power to frustrate the whole of one’s existence. Since a death imposed by one man on another can remove neither the latter’s moral goal nor his human worth, it is still more incapable of preventing the operation of God’s justice, which sits in judgment on all our adjudications. The meaning of the motto engraved on the town executioner’s sword in Fribourg in Switzerland: Seigneur Dieu, tu es le juge (Lord God, Thou art the Judge), was not that human and divine justice were identical; it signified a recognition of that highest justice which sits in judgment on us all.

Another argument advanced is that capital punishment is useless as a deterrent; as witnessed by Caesar’s famous remark during the trial of the Cataline conspirators, to the effect that a death which put an end to the shame and misery of the criminals would be a lesser punishment than their remaining alive to bear them. This argument flies in the face of the juridical practice of pardoning people under sentence of death, as a favor, and is also refuted by the fact that even infamous criminals sometimes make pacts between themselves with death as the penalty for breaking the agreement. They thereby give a very apposite witness to the fact that capital punishment is an effective deterrent.

189. Doctrinal change in the Church.

An important change has occurred in the Church regarding the theology of punishment. We could cite the French bishops’ document that asserted in 1979 that the death penalty ought to be abolished in France as it was incompatible with the Gospel, the Canadian and American bishop’s statements on the matter, and the articles in the Ossevatore Romano calling for the abolition of the death penalty, as injurious to human dignity and contrary to the Gospel.

As to the biblical argument; even without accepting Baudelaire’s celebration of capital punishment as a supremely sacred and religious proceeding, once cannot cancel out the Old Testament’s decrees regarding the death penalty, by a mere stroke of the pen. Nor can canon law, still less the teaching of the New Testament, be can canceled out at a stroke. I am well aware that the famous passage in Romans (Rm 13:4) giving princes the ius gladii (the right use of the sword), and calling them the ministers of God to punish the wicked, has been emptied of meaning by the canons of the new hermeneutic, on the grounds that it is the product of a past set of historical circumstances.

Pius XII however explicitly rejected that view, in a speech to Catholic jurists on 5 February 1955, and said that the passage of St. Paul was of permanent and universal value, because it refers to the essential foundation of penal authority and to its inherent purpose. In the Gospel, Christ indirectly sanctions capital punishment when he says it would be better for a man to be condemned to death by drowning than to commit the sin of scandal (Mt 18:6). From the Book of Acts (Acts 5:1-11) it seems the primitive Christian community had no objection to the death penalty, as Ananias and Sapphira are struck down when they appear before St. Peter guilty of fraud and lying at the expense of the brethren. Biblical commentaries tell us that the early Christians’ enemies though this sentence was harsh at the time.

The change in teaching is obvious on two points. In the new theology of punishment, justice is not considered, and the whole matter is made to turn on the usefulness of the penalty and its aptitude for bringing the guilty person back into society, as the saying goes. On this point, as on others, the new fangled view coincides with the utilitarianism preached by the Jacobins. The individual is held to be essentially independent; the state defends itself against a miscreant, but cannot punish him for breaking a moral law, that is, for being morally guilty.

This guiltlessness of the guilty goes on to manifest itself in a reduced consideration for the victim and even in giving preference to the guilty over the innocent. In Sweden people who have been imprisoned are given preferential treatment in examinations for public employment, as compared with other, unconvicted, members of the public. Consideration for the victim is eclipsed by mercy for the wrongdoer. Mounting the steps to the guillotine, the borderer Buffet shouted his hope that he would “be the last man guillotined in France.” He should have shouted he hoped he would be the last murderer.

The penalty for the offense seems more objectionable than the crime, and the victim is forgotten. The restoration of a moral order that has been violated by wrongdoing is rejected as if it were an act of vendetta. In fact it is something that justice demands and which must be pursued even if the harm done cannot be reversed and if the rehabilitation of the guilty party is impossible. The modern view also attacks even the validity of divine justice, which punishes the damned without there being any hope or possibility of amendment. The very idea of the redemption of the guilty is reduced to a piece of social engineering. According to the Osservatore Romano (6 Sept 1978), redemption consists in the awareness of a return to being useful to one’s fellows” and not, as the Catholic system would have it, in the detestation of one’s fault and a redirecting of the will back into conformity with the absolutes of the moral law.

To go on to assert that a life should not be ended because that would remove the possibility of making expiation, is to ignore the great truth that capital punishment is itself expiatory. In a humanistic religion expiation would of course be primarily the converting of a man to other men. On that view, time is needed to effect a reformation, and the time available should not be shortened. In God’s religion, on the other hand, expiation is primarily a recognition of the divine majesty and lordship, which can be and should be recognized at every moment, in accordance with the principle of the concentration of one’s moral life.

Attacking capital punishment, the Osservatore Romano (22 Jan 1977) asserts that where the wrongdoer is concerned “the community must allow him the possibility of purifying himself, of expiating his guilt, or freeing himself from evil; and capital punishment does not allow for this.” In so saying, the paper denies the expiatory value of death; death which has the highest expiatory value possible among natural things, precisely because life is the highest good among the relative goods of this world; and it is by consenting to sacrifice that life, that the fullest expiation can be made.

And again, the expiation that the innocent Christ made for the sins of mankind was itself effected through his being condemned to death. Remember too the conversion of condemned men at the hands of St. Joseph Carfasso; remember some of the letters of people condemned to death in the Resistance. Thanks to the ministry of the priest, stepping in between the judge and the executioner, the death penalty has often brought about wonderful moral changes, such as those of Niccolo de Tuldo, comforted by St. Catherine of Sienna who left an account of what happened in a famous letter of hers; or Felice Robol, assisted on the scaffold by Antonio Rosmini; or Martin Merino who tried to kill the Queen of Spain in 1852; or Jacques Fesch guillotined in 1957, whose letters from prison are a moving testimony to the spiritual perfection of one of God’s elect.

The most irreligious aspect of this argument against capital punishment is that it denies its expiatory value which, from a religious point of view, is of the highest importance because it can include a final consent to give up the greatest of all worldly goods. This fits exactly with St. Thomas’s opinion that as well as canceling out any debt that the criminal owes to civil society, capital punishment can cancel all punishment due in the life to come.

His thought is Mors illata etiam pro criminibus aufert totam poenam pro criminibus debitam in alia vita, vel partem poenae secundum quantitatem culpae, patientiae et contritionis, non autem mors naturalis. (Summa, “Even death inflicted as a punishment for crimes takes away the whole punishment due for those crimes in the next life, or a least part of that punishment, according to the quantities of guilt, resignation and contrition; but a natural death does not.”).

The moral importance of wanting to make expiation also explains the indefatigable efforts of the Confraternity of St. John the Baptist Beheaded, the members of which used to accompany men to their deaths, all the while suggesting, begging and providing help to get them to repent and accept their deaths, so ensuring that they would die in the grace of God, as the saying went.

190. Inviolability of life. Essence of human dignity. Pius XII.

The leading argument in the new theology of punishment is however the one that asserts an inviolable and imprescriptible right to life, that is alleged allegedly infringed when the state imposes capital punishment. The article we have cited says: “To the modern conscience, which is open, and aware of human values and man’s centrality and primacy in the universe, and of his dignity and his inalienable and inviolable rights, the death penalty is repugnant as being an anti-human and barbarous measure”

Some facts might be helpful in replying to this article, which sums up in itself all the abolitionists’ arguments. The prominence the Osservatore Romano gives to the “modern conscience” is similar to the position accorded it by the French bishops’ document, which says le refus de la peine de mort correspond chez nos contemporains à un progrès accompli dans le respect de la vie humaine (“the rejection of the death penalty is an indication that our contemporaries have an increased respect for human life”).

A remark of that sort is born of the bad mental habit of going along with fashionable ideas and of letting the wish become father to the thought; a crude rebuttal of such unrealistic assertions is provided by the atrocious slaughter of innocents perpetrated in Nazi Germany and Soviet Russia, the widespread use of physical violence by despotic regimes as an ordinary means of government, the legitimation and imposition of abortion by changes to the law, and the increasing cruelty of delinquents and terrorists, who are only feebly resisted by governments. The axiological centrality of man in the universe will be discussed later.

In discussions on the death penalty, the difference between the rights of an innocent and a guilty man are generally ignored. The right to life is considered as if it were inherent in man’s mere existence when, in fact, it derives from his ordination to values that transcend temporal life, and this goal is built into his spirit inasmuch as it is an image of God.

Although the goal is absolute and the image indelible, man’s freedom means that by a fault he can descend from that dignity and turn aside from his goal. The philosophical justification for penal law is precisely an axiological diminution, or shrinking in worth, on the part of a person who violates the moral order and who, by his fault, arouses society to some coercive action designed to repair the disorder. Those who base the imposition of penalties merely on the damage done to society, deprive penal law of any ethical character and turn it into a set of precautions against those who harm society, irrespective of whether they are acting freely or compulsively, rationally or irrationally.

In the Catholic view, the penal system exists to ensure that the crime by which the delinquent sought some satisfaction or other in defiance of the moral law, is punished by some corresponding diminution of well-being, enjoyment or satisfaction. Without this moral retaliation, a punishment is merely a utilitarian reaction which indeed neglects the dignity of man and reduces justice to a purely materialistic level; such was the case in Greece when recourse was had to the Prytaneum, or city council, to pass sentence against rocks, trees or animals that had caused some damage.

Human dignity is something built into the natural structure of rational creatures but which is elicited and mace conscious by the activity of a good or bad will, and which increases or decreases within that order of being. No right thinking person would want to equate the human worth of the Jew in Auschwitz with that of his killer Eichmann, or St. Catherine of Alexandria with Thias the Alexandrian courtesan.

A person’s worth can only be reduced by actions within the moral realm; and therefore, contrary to popular opinion, it cannot be measured by some level of participation in the benefits of technological progress: by a quote of economic welfare, by a level of literacy, by a better health service, by an abundance of the pleasures that life provided or by the stamping out of diseases. Let there be no confusion between an increase in a person’s dignity or worth, which is a moral quality, and an increase in the possessions of those utilitarian benefits which unworthy men also enjoy.

The death penalty, and any other form of punishment, if they are not to descend to the level of pure defense and a sort of selective slaughter, always presuppose a moral diminution in the person punished: there is therefore no infringement of an inviolable or imprescriptible right involved. Society is not depriving the guilty person of his rights; rather, as Pius XII taught in his speech of 14 Sept 1952:

même quand I s’agit de l’exécution d’un condamné à mort, l’Etat ne dispose pas du droit de l’individu à la vie. Il est reserve alors au pouvoir public de priver le condamné du bien de la vie en expiation de sa faute après que par son crime il s’est déjà dépossedé de son droit à la vie (A.A.S., 1952, pp.779ff. “Even when it is a question of someone condemned to death, the state does not dispose of an individual’s right to life. It is then the task of public authority to deprive the condemned man of the good of life, in expiation of his fault, after he has already deprived himself of the right to life by his crime.”).

If one considers the parallel with one’s right to freedom, it becomes obvious that an innocent man’s right to life is indeed inviolable, whereas a guilty person has diminished his rights by the actions of his depraved will: the right to freedom is innate, inviolable and imprescriptible, but penal codes nonetheless recognize the legitimacy of depriving people of their liberty, even for life, as a punishment for crime, and all nations in fact adopt this practice. There is in fact no unconditional right to any of the goods of earthly life; the only truly inviolable right is the right to seek one’s ultimate goal, that is truth, virtue and eternal happiness, and the means necessary to acquire these. This right remains untouched even by the death penalty.

In conclusion, the death penalty, and indeed any kind of punishment, is illegitimate if one posits that the individual is independent of the moral law and ultimately of the civil law as well, thanks to the protection afforded by his own subjective moral code. Capital punishment comes to be regarded as barbarous in an irreligious society, that is shut within earthly horizons and which feels it has no right to deprive a man of the only good there is.

(1) Chapter XXVI, THE DEATH PENALTY, 187. The death penalty, from Iota Unum: A Study of Changes in the Catholic Church in the Twentieth Century, Angelus Press (March 1996)