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The
Death Penalty
Fr.
William Guri, C.Ss.R
July 09, 2004
This presentation
was made on July 09, 2004 at the New Ambassador Hotel, Harare, for
Amnesty International which held a discussion
on the Death Penalty.
1.0 Introduction
The
Death Penalty has been a subject of great controversy in recent
years. In Zimbabwe, section 12 of our Constitution provides that:
"it shall be lawful for a person to be killed following a death
sentence imposed on him/her by a Court." Christian people have
found themselves pitied against each other on both camps for and
against capital punishment. Both the Old and New Testaments, of
the Bible, have ample passages that can be used by either camp.
2000 years of Christian Tradition have produced a vast corpus of
writings, on capital punishment, which are not exempt from controversy.
Moral philosophers have engaged the topic diversely and their opinions
have shaped both secular and religious notions on the death sentence.
The official teaching of the Catholic Church, the Magisterium, has
maintained through the ages, with careful qualifications, the morality
of the death penalty. In this presentation I am going to look at
the biblical roots, the developments in the Christian tradition,
moral philosophical arguments and the Magisterium’s position on
the death penalty.
2.0
The Bible
There
is a tendency among some Christians to use the bible as if it were
a DIY manual. The bible is a composite book that evolved over a
long period of time, written by many different people, separated
in time and place, until it crystallised in its present form. Due
care must be taken, therefore, when reading the bible, and, more
specially, when seeking therein, answers to contemporary problems
and issues. Taking into cognisance the historical, cultural, linguistic,
social, political, economic and geographical context of a passage
under consideration is the best way to use the bible. What did the
author want to say, to whom, at what time and place, under what
circumstances? Are these the exact words of the author or is this
a rendition given by his disciple or even by later generations of
followers of his thought? How was this passage understood by subsequent
generations of hearers/receivers? What are the preconceived ideas
of the one who is reading the bible here and now? These are some
of the difficult questions that recourse to the bible in the face
of a contemporary issue should of necessity raise.
2.1
The Old Testament
There
are many cases in the OT where God commands the use of capital punishment.
God was involved, directly or indirectly, in the taking of life
as a punishment for Israel or for those who harmed or threatened
his people. The destruction of all people and animals, except those
in the ark, during the flood in the time of Noah (Gen 6-8), and
that of Sodom and Gomorrah (Gen 18-19) are ready examples, as well
as are the slaying of the first-born children of the Egyptians (Exod
11) and the destruction of their army in the Red Sea (Exod 14) during
the time of Moses. In the history of Israel God continuously used
capital punishment to deal with Israel’s sins and of other nations.
God instituted capital punishment in the Jewish code of Law. According
to Genesis 9:6, which precedes the OT Code of Law, capital punishment
is based upon a belief in the sanctity of life; "Whoever sheds
man’s blood by man his blood shall be shed, for in the image of
God, He made man."
In
the Mosaic Law, many offences are punishable by death, the first
one being murder (Exod 21), premeditated or ‘lying in wait’ in OT
parlance. Also, involvement in the occult (Exod 22, Lev 20, Deut
18-19), which included sorcery, divination, acting as a medium and
sacrificing to false gods, attracted the death penalty. Capital
punishment is prescribed to be used against sexual offences: rape,
incest, bestiality and homosexual practice. Thus, capital punishment
was extended beyond murder, even though Lex Telionis (a life
for a life) is its generally accepted expression.
2.2
The New Testament
The
moral teaching of Jesus in the New Testament, (Sermon on the Mount
Mt 5:21), seems to stand in stark contradiction with that of the
OT on capital punishment. "You have heard that it was said, 'An
eye for an eye and a tooth for a tooth.' But I say to you, do not
resist an evildoer. But if anyone strikes you on the right cheek,
turn the other also." (Mat 5:38-39). Here Jesus is not denying
the power and authority of the government; rather he is appealing
to individuals to love their enemies. Individuals must not take
the law into their own hands and mete out justices among themselves.
In John 8, Jesus apparently sets capital punishment aside by making
it impossible for anyone to stone the woman caught in adultery.
In the context of this story, the Pharisees are trying to trap Jesus
between Mosaic Law and Roman law. Jesus’ avoids the conflict, rather
than abolish the death penalty. Outside the Gospels, the New Testament
reinforces the principle of capital punishment. Romans 13:1-7, for
example, teaches that God ordains human government and that the
civil magistrate is a minister of God, who does not bear the sword
in vain. Jesus’ own non-violence and non-resistance notwithstanding,
the New Testament did not demolish the death penalty.
3.0
Christian Tradition
The
Christian religion developed in a world in which capital punishment
was a juridical institution. One early Christian writer, Lactantius,
is one of the few who opposed capital punishment as opposed to the
commandment "Thou shalt not kill." (Exod 20:13) The Church
never approved this view, but condemned it as an error, especially
when the Waldensians, Anabaptists, and Quakers, among others, espoused
it. The Calvinists and other Protestants went to the extreme of
teaching that capital punishment should be incorporated into the
legal system of every state, and that its suppression is against
God’s commandment in the Scriptures.
4.0
Moral Philosophy
Moral
philosophy seeks to establish what is right and wrong on the basis
of human reason, independent of Scripture and tradition. Ethics
studies morality in the light of human reason and experience while
moral theology studies morality in the light of reason enlightened
by scripture and tradition. I would like to propose two theses as
elaborated by Kenneth Cauthen, here, from an ethical standpoint:
-
In principle a case can be made on moral grounds
both supporting and opposing capital punishment.
-
Concretely and in practice, compelling arguments
against capital punishment can be made on the actual administration
in our society.
Following
this, two different cases can be made, one based on justice and
the nature of moral community, which leads to the defense of capital
punishment, the second one, based on love and the nature of an ideal
spiritual community, which leads to a rejection of capital punishment.
4.1
Justice and the nature of moral community
Central
to the idea of a just society is the principle that every person
has an equal right to "life, liberty and the pursuit of happiness."
Within this framework, some actions are deemed so destructive to
the community that they invalidate the right of the perpetrator
to membership and even to life. The essential basis on which community
is built requires that each citizen honour the right claims of others.
The deliberate denial of life and just claims to others forfeits
ones own claim to continued membership in that community. To preserve
the moral community the vitiation of its foundations must be taken
with great seriousness. The value of life in a moral community is
such that those who do not honour the life of others nullify their
own right to membership. Those who violate the personhood of others
must pay the ultimate penalty. This punishment is given for the
sake of maintaining the community whose foundation has been violated.
That granted, we could then debate whether some non-lethal alternative
to the death penalty could be a fitting substitute. Capital punishment
is defensible according to this manner of reasoning.
4.2
Love and an ideal spiritual community
Christian
love, in essence is unconditional, and is selfless. An ideal spiritual
community is made up of free and equal members devoted to a balance
between self-fulfilment and the advancement of the common good.
Communal life is therefore based on mutual love in which equality
of giving and receiving is the norm of social practice. Every member
of such a community contributes to the best of their ability and
each receives, accordingly, legitimate claims to available resources.
Such a community acts to safeguard its members from mutual destruction,
hence, does not have a place for the philosophy of "an eye
for an eye, a life for a life." Those who show no respect for
life would be restrained so they do not cause further harm to others.
But the purpose of their confinement is not vengeance or punishment.
Instead, the ideal community shows mercy and does not return evil
for evil, but good for evil. The desire for Reconciliation is more
paramount than revenge. The ideal community remains hopeful that
the worst of human beings can be redeemed and their potential contribution
to others can be realized. Capital punishment is contrary to this
optimistic idealism.
4.3
Evaluation
The
love ethic requires a high degree of moral achievement and maturity.
It is more suitable for small, closely knit communities in which
members know each other personally and in some depth. Forgiveness
and reclamation flourishes in a setting where people can participate
in each other’s lives. Pressed to its logical conclusion, this motif
becomes an ethic of non-resistance to evil, unqualified pacifism,
and self sacrifice in which self-interest is totally ignored. The
non-resisting Jesus who surrenders himself on the cross is the epitome
of this model.
This
kind of love, grounded in faith in God, surrendering any reference
to earthly justice is super-ethical. Love of this kind abandons
the right to kill another even in self-defence. If this is made
into a social ethic it will require the poor to sacrifice for the
rich, the sick for the healthy, the oppressed for the oppressor.
It allows a neighbour to be terrorised, brutalised and slaughtered,
since restraint of the aggressor is forbidden. Now this is quite
morally indefensible.
4.4
Love as an ethical ideal
There
is need to distinguish between an ethical and an ecstatic dimension
of love. As an ethical ideal, love seeks a community based on mutuality
and reciprocity in which there is an equality of giving and taking.
Mutual love has a justice element in which everyone has an equal
claim to fulfilment and an equal duty to be responsible. Because
it is unconditional, it does not consider merit. However, it does
resist encroachment upon its claims and will repel, if possible,
any denial of one’s right to be fully human in every respect. Against
pacifism, ethical love justifies killing in self-defence and killing
enemies in a just war when non-lethal alternatives are unavailable,
here and now. Capital punishment as such is opposed since the crime
has already been committed.
Love
in its ecstatic dimension, is super ethical. In ecstasy, one does
not count the cost to oneself, but is totally self-giving, heedless
of one’s own needs. Sensible calculations balancing rights and duties
have no place in ecstasy. Spiritual ecstasy transcends rational
ethics. Love expressed in ecstasy gives all without regard to whether
the recipient has any claim to the gift. It is pure grace. We should
not confuse the ethical and ecstatic or super ethical dimensions
of love. I want to make it very clear that ecstatic love cannot
be a norm for large impersonal societies. Ecstatic love cannot be
a regular standard for ordinary life in the family, church or society.
Ethical
love remains at best, a description of an ideal setting in life.
Even in this ideal setting, the standard is hard to meet, but serves
as a criterion for judgement and a goal for aspiration, notwithstanding
shortcomings. Thus ethical love is the supreme norm, which is both
the goal and judge of all conduct. It can only, realistically, be
roughly approximated. A workable ethical standard for the state
and nation will appeal to the ideals defined by justice and the
requirements of a moral community. In other words ethical love takes
the form of justice on the social plane. The implications of this
norm for a secular, pluralistic society, like a nation, are beyond
the scope of this discussion. However, it is within such a framework
that a strong, albeit debatable, case can be made for capital punishment.
Practically, or politically, Christians have to work within the
framework of justice as defined by the secular society in which
they live and seek to transform it in the light of their ideals.
Christians need therefore to distinguish the ethical and the ecstatic
dimensions of love in making concrete moral decisions. I am always
intrigued by this quotation: "Justice is the minimum of love;
love is the maximum of justice."
4.5
Practical considerations
The
second thesis that I posited deals with the reality of the administration
of capital punishment in society. Noting these five points usually
makes a compelling argument against capital punishment. John Dzvinamurungu’s
article in this week’s Financial Gazette uses similar argumentation.
-
The possibility of error, which may result in
an innocent person being executed.
-
Unfair administration of capital punishment
inflicted disproportionately on the poor, political opponents,
minorities and the marginalised.
-
Weakness of the argument from deterrence – the
claim that the threat of capital punishment reduces violent
crime is inconclusive, certainly not proven, extremely difficult
to disprove and morally suspect.
-
The length of stay on death row. The endless
appeals, delays, technicalities and retrials that can go on
for years, negates any validity in deterrence. The incompetence
to carry out capital punishment is itself an injustice.
-
Mitigating circumstances. Perpetrators of vicious
crimes are often victims of many social ills themselves. Their
humanity may have been damaged to the point that it is unfair
to hold them accountable for their wrongdoing. Society’s collective
responsibility must be factored in the evaluation of individual
imputability.
In
this country the death penalty has been challenged on the basis
of its administration. The question of whether the delay in carrying
out the death sentence taken together with the harsh and degrading
conditions under which prisoners are confined in the condemned section
at Harare Central Prison arose for consideration in Catholic
Commission for Justice and Peace in Zimbabwe versus Attorney General
and Others. After this challenge the death penalty in respect
of murder, treason and certain military offences.
5.0
Magisterium
The
official teaching of the church takes into consideration the biblical
basis for capital punishment. However, it also takes into serious
consideration the contributions of history, culture and human experience,
as it is studied and expressed in other disciplines. Roman Catholic
theology affirms philosophy as its handmaid, so it purveys and gleans
insights from ethical theories. The magisterial position on capital
punishment is therefore cognisant of the opinions of other discourses.
The
traditional teaching of the Church does not exclude recourse to
the death penalty, so long as it is the only possible way of effectively
defending human lives against an unjust aggressor. The church affirms
that non-lethal means of punishment are more in keeping with the
common good and human dignity. The Catechism of the Catholic Church
upholds capital punishment in the context of it being administered
as a last resort, by the legitimate authority in the interests of
the common good and for the defence of human rights. It urges that
proportionality to the gravity of the matter be observed.
5.1
The Principle of Double effect
The
Magisterium espouses the Principle of Double Effect in its defence
of capital punishment. This principle aims to provide specific guidelines
for determining when it is morally permissible to perform an action
in pursuit of a good end in full knowledge that the action will
also bring about bad results. It has its roots in the medieval natural
law tradition especially the thought of Thomas Aquinas (1225? -
1274). Catholic moral theologians have subsequently refined its
general formulation and application. It generally states that: in
cases where a complicated action has both good effects and bad effects,
the action is only permissible if it dies not require that one directly
intend the evil result.
Classical
formulations of the principle of double effect require that four
conditions be met if the action in question is to be morally permissible:
-
The action contemplated must be in itself either
morally good or morally indifferent,
-
That the bad result not be directly intended,
-
That the good result not be a direct causal
result of the bad result,
-
That the good result be proportionate to the
bad result
Proponents
of the principle of double effect maintain that, in situations of
double effects, where all these conditions are met, the action under
consideration is morally permissible despite the bad result. Each
of these conditions, however, has been a matter of considerable
controversy. Nonetheless, the principle of double effect has played
a significant role in the discussion of many difficult normative
questions.
In
upholding the permissibility of capital punishment, the church has
always treated it as a species of self-defence. This is where the
principle of double effect comes in. When one person kills another
in self-defence, the immediate and proportionate good effect of
saving one’s own life justifies the action, even though there is
the evil effect of taking another’s life. (CCC 2263-64)
According
to CCC 2265, "the defence of the common good requires that
the aggressor be rendered unable to cause harm." Thus, at least
in principle, capital punishment can be justified when used to protect
society from an unjust aggressor. That justification having been
established, it follows that society can execute the criminal for
its protection and not because society desires the death of the
criminal itself. The Magisterium maintains that it is never morally
licit to choose evil so that some good may come about, a good end
cannot remedy or justify an evil means (CCC 1753, 1759).
Pope
John Paul II has taught that, "great care must be taken to
respect every life, even that of criminals and unjust aggressors
" (Evangelium Vitae 57). So the intended good effect
is the protection of the common good, while the unintended evil
effect is the death of the criminal.
The
use of the principle of double effect in treating capital punishment
frees the Magisterium’s position from the necessity of executing
an offender who has ceased to pose a threat to society. This is
against the tendency to logically conclude that a person who commits
a capital crime has forfeited his right to life. If one has forfeited
one’s right to life, by committing a crime, is it necessary to execute
them if they do not pose any further threat to the common good?
If it is possible to protect the common good by less drastic means,
and the threat is over, surely the right to use deadly force no
longer persists. The Magisterium argues that, even though capital
punishment can be a moral option, it is simply not enough for someone
to have committed a serious crime. If the preservation of the common
good of society does not require it, then it cannot be justified
because of the ever-present command, "Though shalt not kill."
6.0
Conclusion
Christians,
as followers of Jesus have the duty to enlighten the world in which
they live with the light of the gospel values. The vocation of the
Christian is to uphold ethical love as "a transcendent gauge
exhibiting the moral defects of society and thus spread the infection
of an uneasy spirit" (A. N. Whitehead). Christians should work
to overcome the larger injustices, social ills, and cultural maladies,
political diseases that create an environment in which capital crime,
requiring the remedy of capital punishment, is generated. Prevention
is better than cure. This requires political action and cultural
transformation.
Crimes
that we tend to remedy by capital punishment are a symptom, rather
than the cause, of the decay in our society. The delivery shortcomings
inherent in the administration of our penal system are evidence
of this reality. If we are going to make our society better - our
neighbourhood freer from crime, our households freer from violence,
our institutions freer from abuse - imposing harsher penalties on
offenders is not the answer. The answer lies in identifying the
root of such criminality and removing it from the organism. The
root of such criminality lies in the social-cultural and political
injustices and marginalisation that members of our communities live
in. As long as we refuse to admit that there is a disgruntled sector
among us, the issue of tougher penalties will continue to haunt
us.
7.0
Sources
7.1
Books
Constitutional
Law of Zimbabwe, Linnington G., Legal Resources Foundation,
Harare, 2001.
Catechism
of the Catholic Church, Geoffrey Chapman, London, 1994.
Dictionary
of Moral Theology, Burns and Oates, London, 1962.
7.2
Newspapers
The
Financial Gazette, Harare, 8-14 July 2004.
7.3
Internet sites
The
Encyclopedia of Ethics: http://www.saintmarys.edu/~incandel/doubleeffect.html
New
Catholic Encyclopedia vol. 4: http://www.trosch.org/phi/dbl-efft.htm
Toward
a New Modernism: http://www.frontiernet.net/~kenc/cappun.htm
Leader
U Website: http://www.leaderu.com/orgs/probe/docs/cap-pun.html
Please credit www.kubatana.net if you make use of material from this website.
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