Introduction UNIVERSITY OF NOTRE DAME

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1 n Introduction n But the ungovernables, the ferocious, the conscienceless, the idiots, the selfcentered myops and morons, what of them? Do not punish them. Kill, kill, kill, kill, kill them. George Bernard Shaw 1 Not only must human life not be taken, but it must be protected with loving concern. The meaning of life is found in giving and receiving love.... Society as a whole must respect, defend and promote the dignity of every human person, at every moment and in every condition of that person s life. John Paul II, Evangelium Vitae, no. 81 For over three decades an international effort has been afoot to restrict the death penalty throughout the world, with a view to abolishing it. Statistics testify to the success of this effort. As of January 2003, more than half the countries of the world had abolished the death penalty in law or practice, 2 while in 1965 abolitionist countries numbered only about thirty. 3 Among the largest and most outspoken participants in this effort has been the Roman Catholic Church. 4 A leader in this effort has been Pope John Paul II, who, with the publication of his 1995 encyclical Evangelium Vitae, initiated a reevaluation of the mo - rality of capital punishment in the Catholic Church. By his repeated pleas on n 1

2 2 n Introduction behalf of the condemned and his general admonitions to Christians and non- Christians alike, the pope has made every effort to minimize the infliction of the death penalty in the modern world, as an expression of commitment to the dignity of the human person. 5 The Catholic Church has not always opposed the death penalty with such force. From its earliest days, up to and including the first half of the twentieth century, it has maintained a relatively confident, consistent, and coordinated defense of the right of the state to kill criminals. Visible signs of change in this regard can be seen as early as the 1950s, when mainstream Catholic writers and individual members of the hierarchy began to take public stands in opposition to the death penalty. The momentum increased albeit gradually in the 1960s. And in the 1970s the floodgates burst. Since then, literally hundreds of public statements opposing the death penalty more perhaps than in the previous centuries combined have been published by members of the Catholic hierarchy on a local, national, and international level. 6 Given the Church s traditional teaching on the subject, the writings of the last decades of the twentieth century, particularly of the 1990s, are bound to prompt a number of questions. Is the Catholic Church for or against the death penalty? Under what circumstances, if any, may the death penalty be legitimately inflicted? What is responsible for the recent turn toward abolishing the death penalty by Catholics? What are the philosophical and theological constituents of the Church s present position? What is the relationship of that position to the traditional teaching on the subject? What are its implications for other forms of Catholic moral teaching, particularly in the tradition of justifi - able violence? Is it reasonable to refer to it as a doctrinal development over and above the traditional position? If so, by what mode or modes has the development taken place (or is it taking place)? Can we anticipate that the present teaching will progress further? If so, what systematic form might that teaching take? These are the questions I intend to explore in the chapters that follow. Chapter 1 addresses a question on many people s minds, namely, what is the nature of the present Catholic teaching on the death penalty? The chapter undertakes a relatively detailed examination and interpretation of the statement on the morality of the death penalty found in the editio typica (authoritative version) of the Catechism of the Catholic Church (1997). 7 I conclude that the text, while not explicitly stating that the death penalty is always wrong, lays down premises which, when carried to their logical ends, yield just such a conclusion. Rather than addressing the morality of the death penalty in terms of punishment, the Catechism addresses it as a form of self-defense. In addition,

3 Introduction n 3 the act of killing entailed in capital punishment, as well as all acts of legitimate killing, are subsumed under a model of double effect. A careful reading shows that implicit in the Catechism is an understanding of capital punishment that limits its lawful infliction to conditions traditionally circumscribing legitimate killing in private self-defense. In legitimate self-defense, according to Catholic theological tradition, any killing that results (and any harm, for that matter) must not be willed for its own sake or as a means to some further end, but rather must be accepted as a side effect, perhaps foreseen, of an act of force intended to render an aggressor incapable of causing harm. If we apply this logic to capital punishment, we must conclude that it is not legitimate, even though it aims at the good end of a restored order of justice, because its means is the intentional killing of a human person. The Catechism of the Catholic Church was prepared under the pontificate of John Paul II, and its sections pertaining to the morality of the death penalty were directly influenced by papal ideas and teachings. If what I have said is sound, one would expect the moral reasoning found in other authoritative documents prepared under the same pontificate to support the same conclusion. Against the broader backdrop of the authoritative teaching of John Paul II, therefore, I examine the moral reasoning set forth in the encyclicals Evangelium Vitae (1995) and Veritatis Splendor (1993), two important pontifical documents relating to Catholic moral teaching, and attempt to show how the pastoral and methodological reasoning of both, when applied to the problem of capital punishment, favors the same conclusion. Chapter 2 is intended for readers who are interested in a deeper consideration of the philosophy of punishment traditionally accepted and defended by the Catholic Church and outlined in the Catechism. I give special attention to the three traditional purposes or goods of punishment held together and prioritized in the account in the Catechism, namely, retribution, criminal rehabilitation, and defense of the community. The purpose is both to clarify important concepts at stake in the capital punishment debate (such as retribution, redress, the common good, and the order of justice) and to show that the Church s account of punishment is superior to a number of other influential accounts that give quasiexclusive status to one or another of these justificatory strands (e.g., strict retributivism and utilitarian penal theories). Those whose interests lie strictly with the response of the Catholic Church to the problem of capital punishment may wish to pass over this chapter. Having concluded in chapter 1 that the Catechism lays a theoretical foun - dation for a development of doctrine that would reject the death penalty in

4 4 n Introduction principle, I explore in the following chapters the question of whether a devel - opment of this nature would be legitimate, given the traditional teaching on the topic. That is, I explore whether the Catholic Church, constrained by the requirements of sound biblical interpretation and dogmatic tradition, could legitimately teach in a definitive way that capital punishment, as entailing an intent to kill, is wrong per se. Before this question can be answered, it is necessary to place such a po - sition in juxtaposition to the traditional teaching and to assess the areas of continuity and difference. Chapters 3 through 7 are dedicated in large part to providing a satisfactory account of the traditional teaching on the morality of capital punishment, by reviewing and analyzing the most influential biblical passages and Catholic statements on the morality of capital punishment. In chapter 3, I consider statements in the Old and New Testaments; in chapter 4, the writings of Patristic authors; in chapter 5, the teaching of the medieval Church; and in chapter 6, statements of Catholic thinkers from (approximately) the Council of Trent to Vatican II. The second part of chapter 6 traces the steps in Catholic thinking from the late eighteenth century to the present as the Church gradually moved from support for, to opposition against, the death penalty. In chapter 7, after discussing several propositions that summarize what might be called the cumulative consensus of patristic, medieval, and modern ecclesiastical writers on the morality of capital punishment, I consider the concept of development of doctrine in Catholic tradition. I ask, in light of the historical analysis, whether the traditional teaching on the lawfulness of capital punishment has been proposed in such a way as to exclude a development of doctrine which would teach that the death penalty is wrong in principle. Toward this end, I consider whether, according to the conditions specified by Vatican II (Lumen Gentium, no. 25), one or more of the propositions that constitute the traditional teaching have been taught infallibly. I propose two models intended to explain how we may understand the notion that Catholic doctrine on the morality of capital punishment is developing (or has developed); both emphasize the continuity maintained throughout the process of change. Chapter 8 looks to the future, namely, to what a developed teaching might look like that rejects capital punishment in principle. I begin with a practical critique of the ethical reasoning of Thomas Aquinas, who provides the most systematic, cogent, and influential account in Catholic moral tradition (and, arguably, in all of Western ethical tradition) of the foundations for justifiable homicide. I argue that Aquinas attempts to give a rational account of justifiable

5 Introduction n 5 intentional killing fail. I then endeavor to provide a systematic and philosophically consistent account of what I will call the new position. Starting from premises regarding substantive human good, practical principles, and moral norms derived from chapter 2 of Veritatis Splendor and, where the encyclical is silent, from Aquinas moral theory and the development of that theory by John Finnis and Germain Grisez, I ask, what does basic morality require of the deliberations, judgments, and actions of those responsible for the state s coercive ac - tivity? I then address the question of the concrete implications of this analysis for the state s prerogative to punish in general, to restore justice, to protect the community from internal threats (i.e., to undertake law enforcement activity), and to protect the community from external threats (i.e., to engage in war). Because this book is primarily concerned with an intra-ecclesiastical conversation, many important questions of the wider debate on capital punishment are left untreated. The sea of literature on empirical questions such as justice in sentencing, the rights of prisoners, the condemnation of the innocent, the question of deterrence, methods of rehabilitation, penal reform, and so on is referenced only in the notes, if at all. Regarding the arguments put forward and positions defended with respect to such questions, this book takes no stand. Similarly, the many important theological contributions to the debate on capital punishment coming from Christian traditions outside the Roman Catholic Church are left untreated. It might be said, however, that the majority positions defended by the mainline Christian churches over the past five hundred years show little notable disparity. n The labor and charity of a number of important benefactors helped bring this work to completion. In the first place I thank John M. Finnis and Oliver O Donovan, who supervised my research. I thank as well Nigel Bigger and Robert Ombres, O.P., who provided extensive comments and criticisms, and Giovanni Sala, S.J., of Die Hochschule für Philosophie in Munich, who read early portions in draft. I am grateful to James J. Megivern for supplying me with a number of hard-to-find texts and providing me with timely counsel in the early stages of my work. James Megivern s important and extensive work, The Death Penalty: An Historical and Theological Survey (Paulist Press, 1997), served as an invaluable reference source for my research. Special acknowledgment is due Juliane Kerkhecker, who enjoyed the unenviable task of assisting me with literally hundreds of foreign language references. I thank as well Germain

6 6 n Introduction Grisez, Earl Richard, Michael Pakaluk, Chris Baglow, Robert Kennedy, Robert Royal, Rev. Lawrence Dewan, Rev. Peter Ryan, Rev. Brian Harrison, Kevin Miller, Richard Stith, Patrick Lee, William Marshner, Christopher Wolfe, Michael Gorman, John F. Boyle, John Grabowski, David Solomon, and Cardinal Avery Dulles. Each of these either commented on chapters of my manuscript in draft, offered valuable criticisms in conversation, or provided speaking invitations where I was able to set forth my basic thesis and receive helpful input. As for the individuals and institutions who supported my research, I thank the Intercollegiate Studies Institute for awarding me a Western Civilization Fellowship in ; the Earhart Foundation and my Earhart Fellowship sponsor, Robert P. George; the Oxford Theology Faculty s Denyer & Johnson Fund for two successive scholarships; and Oxford s Squire Marriott Fund for two gen e rous research grants. I thank as well my dean at Loyola University, Frank Scully, for funding several important travel opportunities. Special thanks are due Libby and Roger Blackwood of Berkshire, England, for extensive financial assistance in the early stages of this work. My deepest debt is owed to those to whom this work is dedicated.

1 Hans Jonas, The Imperative of Responsibility: In Search of an Ethics for the Technological Age (Chicago: University of Chicago Press, 1984), 1-10.

1 Hans Jonas, The Imperative of Responsibility: In Search of an Ethics for the Technological Age (Chicago: University of Chicago Press, 1984), 1-10. Introduction This book seeks to provide a metaethical analysis of the responsibility ethics of two of its prominent defenders: H. Richard Niebuhr and Emmanuel Levinas. In any ethical writings, some use