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The Legitimacy of Capital Punishment

by Fr. John A. Hardon, S.J.

Dated Nov. 19, 1995

It is remarkable what appeals to kindness and charity are made to repeal capital punishment. Two thousand years of the Church’s defense of capital punishment are brushed aside. Arguments are used to “prove” that capital punishment is inherently evil.

No one questions the sincerity of those who claim that capital punishment is not justifiable. But their reasoning needs to be re-examined.

Two Bases for Capital Punishment

According to the critics of capital punishment, there are only two possible grounds for capital punishment, namely defense and the restoration of the moral order.

Defense. It is said there can be no question of justifiable self-defense in executing a condemned criminal. Why not? Because the criminal is already apprehended. A recommended substitute is mutilation, which is said to be 100% effective in rendering a criminal harmless.

What the opponents of capital punishment forget is that crime is infectious. Mere mercy mutilation of a condemned murderer, for example, protects society only from that single criminal’s homicidal intentions. It does not protect society from the scandal he has given others, to follow his bad example.

Moral Order Restored. Equally useless, it is claimed, is the appeal to a restoration of the moral order. Capital punishment, it is alleged, desecrates human life and actually promotes the very mentality very mentality of the murderer. The convicted criminal is a helpless non-belligerent who is in effect being murdered by the civil authority.

The problem with this position is that it neglects a basic principle of the Christian moral order. Within this moral order, we believe that both justice and mercy are to be operative.

It is not enough to so concentrate on the practice of merciful charity as to overlook or ignore the corresponding practice of justice.

Nor is it pertinent to say that “capital punishment does not in the least redress the injustice committed against the murdered victim or anyone else.” On the contrary, capital punishment does help to redress the injustice committed both against the murdered victim and, especially against the Someone Else who is God.

What the opponents of capital punishment ignore is that the primary rights offended by grave crime are the rights of God. St. Paul made this clear. “The State is there,” he said, “to serve God for your benefit. If you break the law, however, you may well have fear; the bearing of the sword has its significance. The authorities are there to serve God; they carry out God’s revenge by punishing wrong-doers” (Romans 13:14).

Those who reject capital punishment further obscure the issue by comparing capital punishment with executing prisoners who were fighting an unjust war. The very comparison is unjustified. It assumes that capital punishment is not justified, which is the very issue that needs to be proved.

Old Testament Morality

Those who claim that capital punishment is inherently wrong simply reject out of hand the practice of execution for grave crimes as found in the Old Testament. But they go too far.

The example of the accused adulteress in John’s Gospel is no argument against capital punishment. When the Scribes and Pharisees brought the woman in front of Jesus, they claimed that Moses ordered such a person to be stoned to death. So they tried to trap the Savior by asking Him, “What is your opinion?” But Jesus did not answer by saying that stoning is forbidden. Instead, He told the woman’s accusers, “Let him that is without sin among you cast the first stone at her” (John 7:53 -8:12).

Of course the New Testament is a development of the Old Law. Of course, Christ preached and practiced mercy. Of course Christianity is the fulfillment of the Mosaic Covenant. But, as Christ made clear, He did not come to destroy the Law and the Prophets. He came to bring them to perfection. It is not logical to conclude from the Christianizing of capital punishment in the Old Testament to the abolition of capital punishment in the New Testament.

New Testament Teaching

Nowhere in the New Testament is capital punishment outlawed. On the contrary, the New Testament not only recognizes the right of the State to exercise authority in the name of God, but enjoins obedience to the State in applying the laws of God to its citizens.

As already noted, St. Paul explicitly declares that the State has authority from God to punish criminals. Christ Himself tells us to give to Caesar what belongs to Caesar. St. Peter enjoins Christians to be good citizens. Moreover, we are to obey civil authority — not mainly but also “because you are afraid of being punished” (Romans 13:1-6).

But Sacred Scripture needs to be explained. As we reread the early Church’s interpretation of the rights of civil authority, we find a remarkable thing.

From the beginning there were two variant interpretations of State authority relating to war and capital punishment. One interpretation was openly pacifist, and the other was non-pacifist.

Two names especially stand out that wrote belligerently against all war and therefore espoused universal pacifism. Tertullian, (160-220), and Lactantius, (240-320) also fought strenuously against capital punishment of condemned criminals.

At the same time, the accepted Fathers of the Church never adopted these extreme positions, either outlawing all war as unjust or forbidding all capital punishment as inherently evil.

The Church's Teaching

Over the centuries, the Church’s writers have defended the traditional Christian teaching on capital punishment. St. Augustine explained St. Paul’s teaching on the State’s right to inflict capital punishment. Certainly the State may execute convicted criminals. But it should exercise Christian forbearance and thus temper juridical severity.

Pope Leo I in the fifth century and Pope Nicholas I in the ninth century made it clear that the Church herself could not be directly involved in capital punishment; but the pontiffs assumed that the State was divinely authorized to do so. So, too, the Councils of Toledo (675) and Fourth Lateran (1215) forbade the clergy to take direct part in the juridical process or sentencing of a person on a capital charge. But again, the councils took for granted that the State may condemn a convicted criminal to death and execute the sentence.

St. Thomas Aquinas made the classic defense of capital punishment. He reasoned that “if a man be dangerous and infectious to the community on account of sonic sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good” (Summa Theologica II-II, 64, 2). Certainly the crime had to be very serious and the welfare of society was at stake. But there was no question about the moral validity of capital punishment.

In the 16th century, the Council of Trent mandated the publication of the Roman Catechism, promulgated by Pope St. Pius V in 1566, it has been confirmed by one sovereign pontiff after another. Thus in 1905, when Pope St. Pius X decreed the catechetical instruction to be given in the Catholic world, he mandated that the basis of this instruction should be the Roman Catechism. In dealing with the Fifth commandment of the Decalogue, this fundamental catechism of Catholic doctrine declares.

There are some exception to the extent of this prohibition to killing. The power of lifeand death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment, such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the state is exercised by taking the guilty lives of those who have taken innocent life (The Fifth Commandment, 4).

In the 20th century, Pope Pius XII provided a full doctrinal defense of capital punishment. Speaking to Catholic jurists, he explained what the Church teaches about the authority of the State to punish crimes, even with the death penalty.

The Church holds that there are two reasons for inflicting punishment, namely “medicinal” and “vindictive.” The medicinal purpose is to prevent the criminal from repeating his crime and to protect society from his criminal behavior. The vindictive is to expiate for the wrong-doing perpetrated by the criminal. Thus, reparation is made to an offended God, and the disorder caused by the crime is expiated.

Equally important is the Pope’s insistence that capital punishment is morally defensible in every age and culture of Christianity. Why? Because the Church’s teaching on “the coercive power of legitimate human authority” is based on “the sources of revelation and traditional doctrine.” It is wrong, therefore, “to say that these sources only contain ideas which are conditioned by historical circumstances.” On the contrary, they have “a general and abiding validity” (Acta Apostolicae Sedis, 1955, pp. 81-2).

Behind this declaration of the Vicar of Christ is a principle of our Catholic faith. Most of the Church’s teaching, especially in the moral order, is infallible doctrine because it belongs to what we call her ordinary universal magisterium. There are certain moral norms that have always and everywhere been held by the successors of the Apostles in communion with the Bishop of Rome. Although never formally defined, they are irreversibly binding on the followers of Christ until the end of the world.

Such moral truths are the grave sinfulness of contraception and direct abortion. Such, too, is the imposition of the death penalty. Certainly Christianity, like Christ, is to be merciful. Certainly Christians are to be kind and forgiving. But Christ is God. He is indeed loving and in fact is love. But He is also just. As a just God, He has a right to authorize civil authority to inflict capital punishment.

Copyright © 1995 Inter Mirifica

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