Apr 1, 2001 — Among the major nations of the Western world, the United States is singular in still having the . . . .

Sep 16, 2011 — Intentional killing is always wrong, and support of capital punishment often stems from a misunderstanding of the nature of human dignity.

Jan 1, 1998 — No Intentional Killing Whatsoever: The Case of Capital Punishment GERARD V. BRADLEY Professor of Law University of Notre Dame Notre Dame, Indiana Ask a Catholic neoconservative or the editors of Commonweal what the last "social encyclical" was. They will answer that it was Centisimus Annus. They will tell you that there Pope John Paul II settled the central question of "Catholic social teaching," the question of basic institutional form in political economy. "Democratic capitalism has prevailed!” If you inquire further, they will tell you that Veritatis splendor (VS) was about morals, especially about academic moral theology. Neither it nor Evangelium vitae (EV) was a "social encyclical." EV was, to be sure, about "life" issues, but it addressed culture not political economy. They will add, finally, that EV articulated a nice ideal for the conformity of civil law to moral truth, but an ideal that is unsuited to our secular, pluralistic society. Even if we stipulate that "Catholic social teaching" is about what public authority—the state-may do and must not do, this common ac- count is grossly misleading. For it presupposes precisely the divisibility of morality into "public" and "private" realms that VS and EV deny. The common view just sketched misses, if it does not implicitly deny, the heart of Catholic social teaching, namely, this arresting assertion by Pope John Paul II in VS: When it is a matter of the moral norms prohibiting intrinsic evil, there are no privileges or exceptions for anyone. It makes no difference whether one is the master of the world or the "poorest of the poor" on the face of the earth. Before the demands of morality we are all absolutely equal.' The universal applicability of exceptionless norms establishes the moral equality of all persons. By declaring the basic human goods (the backbone of exceptionless norms) absolutely immune from direct attack, Catholic social teaching insures that no one may rightly be made the 155 156 GERARD V. BRADLEY instrument of the purposes of another-not of the Cabinet, the "commu-nity," or the "great man". Twenty-five years ago² Germain Grisez argued from pretty much that foundation against capital punishment. The tradition within which he worked, Grisez conceded, held that "the lives of those who attack the common good"-in unjust warfare and by committing capital crimes-"are not always considered inviolate" (p. 65). Grisez argued nevertheless that “human life can never rightly be directly attacked" (p. 66), a norm I express in this paper as, "No intentional killing whatsoever." Grisez built his position partly on the Second Vatican Council's clarification of the "common good" of political society as limited, even instrumental: the sum total of social conditions which are required to allow persons to perfect themselves.³ "If no human society," Grisez wrote in 1970, "is complete, if civil society is merely one form of community with limited concerns, then it is by no means clear that men associated in states may rightly kill wrongdoers to protect the common good if such killing would be morally forbidden by individuals" (p. 69). Grisez recognized that legitimate defense required effective separa-tion of dangerous malefactors from the community, "often" achieved by ostracism or banishment or by imprisonment (p. 67). The important thing for Grisez is that the morality of capital punishment was a matter of specifying the exceptionless norm against all intentional killing and that specification leaves open the possibility-neither investigated nor denied in 1970 by Grisez-that, occasionally, capital punishment might be the necessary vehicle of effective separation. I aim to show in this paper that the Church's teaching on capital punishment, as found in EVS and the Catechism, is best understood as essentially Grisez's view of 1970. The texts are, admittedly, too obscure to permit a compelling argument for my claim. I shall argue, though, that the texts make considerably more sense on the assumption that the death penalty is permissible only where it is consistent with a norm against all intentional killing whatsoever, than on any other assumption. The Church teaches that capital punishment may be approved where necessary to the "defense of society." In EV the Pope says that in developed societies such cases are “rare, if not practically nonexistent." I shall argue that this statement rules out the common justification for capital punish-ment, which might be described as "defense of society," as a deterrent to future, would-be offenders. "Necessary" to the defense of society means just this malefactor's continuing threat to others. Thus, EV and the Cate-chism seem to assimilate capital punishment to ordinary self-defense, a matter of causing death while intending strictly just to halt aggression. No Intentional Killing Whatsoever 157 Does the Church mean to deny the possibility defended by John Finnis and rejected by Grisez, that capital punishment may be specified morally by the intention to restore the order of justice disturbed by the criminal's bad act? The teachings do not explicitly say. I develop an argument in the later sections that even recognizing that possibility, retrib- utive executions are, at least in developed societies, contrary to Church teaching. "The source of all other rights" is "the right to life" (EV 72). This right is the obverse of the commandment "You shall not kill" which, the Pope teaches in EV, "is at the basis of all life together in society" (EV 53). What acts does the commandment exclude? It must not exclude all acts that foreseeably create risks to the lives of others. Otherwise, we could not drive our cars or build bridges. Does it exclude all acts that intend death as either an end or a means? The tradition, at least as far back as Aquinas, held that it did so for “private" persons, though they may defend themselves with deadly force where necessary. But the tradi- tion held that intentional killing may be licit in three situations: justified armed rebellion, just war, capital punishment. All are acts of "public authority,” even if only by analogy in the case of rebellion (where “pri- vate” persons act directly for the common good against its enemies, who may claim to exercise legitimate public authority). The upright use of force in justified rebellion, however, depends on a combination of the other two cases: legitimate "private" defense, and killing in defense of the common good. The former I do not question; the latter two cases, I aim to show, are assimilable to the former. Now consider the case of just warfare. Grisez has argued cogently that warfare does not require combatants to violate the stricture against intentional killing.' How could that be? Consider a limited case, U.S. Marine Corps operations on Iwo Jima. The Marines knew that the Japanese army had evacuated all civilians and that the defenders would never surrender. A Marine would, as a practical matter, have to direct lethal force against enemy forces until they were all dead. Is this not intentional killing? Members of the Third, Fourth, and Fifth Marine Divisions on Iwo Jima may well have intended to kill Japanese soldiers. All certainly be- haved much of the time in a way indistinguishable from the behavior of intentional killers. But they need not have. Marines need only have in- tended to render harmless enemy soldiers, killing them in the process. Sound fantastic? On Iwo Jima, some Japanese must have fallen mortally 158 GERARD V. BRADLEY wounded. While no Marine, practically, was obliged to attend to their medical needs (given the continuing battle, and the medical needs of fallen Marines), none would have been morally justified in shooting the helplessly wounded enemy. And many Marines, I am sure, had an oppor- tunity to finish Japanese off and did not precisely for moral reasons. What could those reasons be, if not (at least in an intuitive sense) that to kill helpless soldiers was akin to murder. Maybe we can imagine the massive bloodshed on Iwo Jima as (strictly) the foreseen effects of actions intended to disable aggressors. But how can capital punishment—an act that necessarily includes death— be similarly imagined? The executioner is supposed to finish off the help- less prisoner! Is this not a clear case of intentional killing, albeit justified? The Church does not teach that it is never permissible to execute a con- victed criminal. How, then, could its teaching on the death penalty, what- ever it is, be governed by a norm against intentional killing? One means of reconciliation might be to say that the criminal forfeits his right to life by his bad actions, that he descends to the moral status of a beast. I doubt whether anyone ever considered this assertion an argument, as opposed to a loose way of stating a conclusion in favor of capital punishment. However, this possibility of reconciliation is now foreclosed by Church teaching: "Not even a murderer loses his personal dignity, and God himself pledges to guarantee this” (EV 96, emphasis in the original). Another possibility of reconciliation has been to hold that the state shares a divine prerogative to take the lives of those who attack the common good by committing capital crimes. If so, one might say that capital punishment involves no intentional killing—that the executioner's intention is simply to carry out God's judgment. But to hold this view, one would have to hold that God might intend to kill (as perhaps in the case of Abraham and Isaac, and elsewhere in the Old Testament and that public authority is delegated divine authority (on one common interpreta- tion of Romans 13:1).⁹ The Pope in VS denies both these propositions. He says that God "preferred the correction rather than the death of the sinner" (EV 9). Whatever might have been the case in the Old Testament, with Jesus and the New Covenant it is clearly revealed that God never intends anyone's death. "Life is always a good" (EV 30), and the Pope means to judge "public authority" by its adherence to the commandment not to kill. We are invited to test anyone's claim to be doing God's will by this prescrip- tion. Once we figure out what acts the Commandment excludes, we will No Intentional Killing Whatsoever 159 know whatever there is of importance to know about God's delegation of authority. But the Pope says in EV that God is the "absolute Lord of the life of man” (53); no one may “arbitrarily choose to live or die"; the absolute master of "such decisions is the Creator" (58). Does this not mean that capital punishment, which is surely sometimes permissible, must some- how share in this prerogative? The Pope's attestations to God's mastery over life evidences, not delegated divine authority to kill, but God's will that no human person whomsoever shall have a homicidal will. If so, it rather seems that where capital punishment is permitted, it involves (somehow) no intention to kill. The norm articulated in EV usually includes the term "innocent": "the direct and voluntary killing of an innocent human being is always gravely immoral” (57); “No one ….. can claim for himself the right to directly destroy an innocent human being" (53); the absolute inviolability of "innocent human life" (57). If capital punishment is, even in rare cases, morally permissible, is it not clear that intentional killing, albeit of nonin- nocent persons, is sanctioned? But if so, someone has to have a homicidal will (even if we disagree about who that someone is).¹º Condemnation to death by competent public authority might, in this construal of EV, justify the executioner's act, but it does not change the nature of it: justified intentional killing. Given the deliberateness and apparent intentional structure of the act of building a scaffold, parading the condemned to it, and (as the judicial sentence commonly put it) "hanged by the neck until dead," how could capital punishment be a case of unintentional killing? It is not "unintentional," as in "accidental” or “surprising.” Death is expected as a matter of cause and effect in the natural order. But it does not follow that, for moral analysis, death is intended, even if the behavior that causes death is a necessary part of the performance. It might be an act of legitimate defense. It might be an act intended to restore justice. Capital punishment might be a case of nonintentional killing. II Do EV and the Catechism indicate that the general norm about killing is that no one may intentionally kill? There is considerable textual warrant (the use of “innocent”) for supposing not. But the language varies, and the meaning of individual statements of the norm (whatever exactly it is) is unclear. The Pope in EV defines euthanasia ("in the strict sense"), for

Dec 1, 2020 — 'When silence or tricks of language contribute to maintaining an abuse that must be reformed or a suffering that can be relieved, then there is no other solution but to speak out'Written when execution by guillotine was still legal in France, Albert Camus' devastating attack on the 'obscene exhibition' of capital punishment remains one of the most powerful, persuasive arguments ever made against the death penalty.One of twenty new books in the bestselling Penguin Great Ideas series. This new selection showcases a diverse list of thinkers who have helped shape our world today, from anarchists to stoics, feminists to prophets, satirists to Zen Buddhists.

Oct 7, 2020 — (Image: iam_os | Unsplash.com) Editor’s note: This essay was originally posted on September 15, 2019. It is reposted in light of new statements by Pope Francis, in the encyclical Fratelli tutti, that, “Today we state clearly that ‘the death penalty is inadmissible’ and the Church is firmly committed to calling for its abolition worldwide” (par 263). ——- Pope St. John Paul II favored the abolition of capital punishment. However, the catechism he promulgated nevertheless taught that the death penalty can be legitimate “if this is the only possible way of effectively defending human lives against the unjust aggressor.” Moreover, the pope’s doctrinal spokesman Cardinal Joseph Ratzinger, who went on to become Pope Benedict XVI, made it clear that John Paul’s call for abolition reflected a prudential judgment with which faithful Catholics need not agree. In a 2004 memorandum, the cardinal wrote that “if a Catholic were to be at odds with the Holy Father on the application of capital punishment… he would not for that reason be considered unworthy to present himself to receive Holy Communion,” and that “there may be a legitimate diversity of opinion even among Catholics about… applying the death penalty.” Pope Francis has taken a harder line against capital punishment than his predecessors. He has vigorously and repeatedly denounced the practice in public addresses, and has altered the catechism so that it now declares the death penalty flatly “inadmissible” and calls for “its abolition worldwide.” John Paul II’s exception has been removed. Some Catholic opponents of capital punishment appeal to these developments as proof that all Catholics are now obligated to favor its abolition – that there can no longer be the “legitimate diversity of opinion” spoken of by then-Cardinal Ratzinger. They label those who still support the death penalty “dissenters” and attribute to them disreputable motives, such as bloodlust or a political agenda. But there are serious problems with this view (apart from the obvious one that the latter accusations are just cheap ad hominem attacks). For one thing, when one reads Pope Francis’s statements about the death penalty carefully, it turns out to be difficult to interpret them in a way that would make assent to them binding on Catholics. For another, if Catholic opponents of the death penalty were consistent in their appeal to these statements, then they would have to accept some further conclusions that it seems few of them do accept – and that it would be difficult for any faithful Catholic to accept. I will explain what I have in mind by setting out three questions that any intellectually honest Catholic has to address before he can claim that all Catholics are obligated to oppose capital punishment: 1. Does Pope Francis’s teaching on capital punishment amount to a doctrinal change or merely a prudential judgment? There are two possible interpretations of Pope Francis’s teaching on the death penalty. Either he intends to revise the relevant doctrinal principles, or he intends merely to make a prudential judgment about how best to apply existing doctrinal principles to current circumstances. But on neither interpretation can Catholics be obligated to assent to his position (as opposed to merely giving it respectful consideration). Here’s why. Consider first the suggestion that Pope Francis means to revise the relevant doctrinal principles. Now, the Church teaches that there are limits to what any pope can do by way of such revision. For example, the First Vatican Council taught: For the Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles. Along the same lines, Pope Benedict XVI taught: The Pope is not an absolute monarch whose thoughts and desires are law.  On the contrary: the Pope’s ministry is a guarantee of obedience to Christ and to his Word.  He must not proclaim his own ideas, but rather constantly bind himself and the Church to obedience to God’s Word, in the face of every attempt to adapt it or water it down, and every form of opportunism… The Pope knows that in his important decisions, he is bound to the great community of faith of all times, to the binding interpretations that have developed throughout the Church’s pilgrimage. Now, as even many Catholic opponents of the death penalty acknowledge, it is not open to the Church to teach that capital punishment is wrong intrinsically or of its very nature. The most the Church can teach is that capital punishment is wrong under certain circumstances. The reason is that Scripture, the Fathers and Doctors of the Church, and the popes prior to Pope Francis have consistently taught that capital punishment can be legitimate at least in principle. Given the Church’s claims about the reliability of Scripture and of her ordinary magisterium, it is not possible for the tradition to have been wrong for over two millennia about something that fundamental. Indeed, as I have shown in another article, the traditional teaching on the legitimacy in principle of capital punishment clearly meets the criteria for being an irreformable part of the ordinary magisterium. (Joseph Bessette and I set out the evidence for this at greater length in our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.) So, the most that any pope could do by way of revising the relevant doctrinal principles would be to clarify the circumstances under which capital punishment can be legitimate. The problem is this. Pope Francis holds that the death penalty should never be used under any circumstances. He does not even concede, as Pope John Paul II did, that there may be rare circumstances where it is justifiable in order to protect others from the offender. Now, if he were saying that it is true as a matter of doctrinal principle that capital punishment must never be used, then it seems he would be contradicting the irreformable teaching of Scripture and Tradition. For how could it be the case that capital punishment ought never to be applied even in principle, not even to protect the innocent, unless it were intrinsically wrong? Now, no Catholic can be obligated to assent to anything that contradicts Scripture and Tradition – not even if a pope says it. After all, the Church acknowledges that popes are not infallible when not speaking ex cathedra. Moreover, though there is a strong presumption that Catholics ought to assent even to the non-infallible teachings of a pope, the Church also acknowledges that there are cases in which this presumption can be overridden and deficient magisterial statements respectfully criticized. The most obvious cases would be precisely those in which a pope appears to be contradicting irreformable doctrine. There is extensive teaching on this matter both from recent ecclesiastical documents and from tradition, which I have set out at length in another article. For example, the instruction Donum Veritatis, issued under Pope John Paul II, states: The willingness to submit loyally to the teaching of the Magisterium on matters per se not irreformable must be the rule.  It can happen, however, that a theologian may, according to the case, raise questions regarding the timeliness, the form, or even the contents of magisterial interventions… If, despite a loyal effort on the theologian’s part, the difficulties persist, the theologian has the duty to make known to the Magisterial authorities the problems raised by the teaching in itself, in the arguments proposed to justify it, or even in the manner in which it is presented. Note that the document teaches that it can sometimes be a duty to raise respectful criticisms. Donum Veritatis even goes on to say that a faithful theologian who feels compelled to raise such issues with the Magisterial authorities can be said to “suffer for the truth.” The document also explicitly distinguishes the raising of such difficulties from the “dissent” associated with heterodox theologians who want to reverse the Church’s traditional teachings. This is not some novel teaching of the Church. St. Thomas Aquinas taught that though the faithful have no authority to punish a wayward prelate, there can be circumstances in which they ought to correct a wayward prelate, even publicly, as long as this is done respectfully. And he offered an example that makes it clear that this includes popes: [F]raternal correction is a work of mercy.  Therefore even prelates ought to be corrected… It must be observed… that if the faith were endangered, a subject ought to rebuke his prelate even publicly.  Hence Paul, who was Peter’s subject, rebuked him in public, on account of the imminent danger of scandal concerning faith, and, as the gloss of Augustine says on Galatians 2:11, “Peter gave an example to superiors, that if at any time they should happen to stray from the straight path, they should not disdain to be reproved by their subjects.” A later example would be the case of Pope John XXII, who was rebuked by the theologians of his day for contradicting traditional teaching on the postmortem state of the soul, and who recanted this error on his deathbed. If Pope Francis were teaching that capital punishment is intrinsically wrong, then we would be in a similar situation, and would have a clear case in which the teaching of Donum Veritatis and of St. Thomas would apply. We would have a case where Catholics need not assent, indeed must not assent. But again, there is an alternative interpretation of Pope Francis’s teaching. He can be read, not as intending to revise the doctrinal principles relevant to capital punishment, but rather as merely making a prudential judgment. Now, making a prudential judgment is a matter of applying doctrinal principles to concrete circumstances. Popes and other churchmen often lack any special expertise concerning such circumstances, which is why their prudential judgments about them are not binding on the faithful. A standard example would be the prudential application of Catholic just war doctrine. The Church teaches that for a war to be just, it must meet certain conditions. For example, the cause must be just, the harm posed by the aggressor must be grave, the military action proposed must have a good chance of succeeding, and so forth. Now, churchmen certainly have the authority to require Catholics to assent to these criteria. But they have no special knowledge of at least some of the information needed to apply the criteria. For example, they have no special expertise about military strategy and tactics. So, to the extent that applying just war doctrine to concrete circumstances requires such expertise, churchmen cannot make prudential judgments about them that are binding on the faithful. That is why the Catechism teaches that “the evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good,” namely governmental authorities. If a pope teaches that it is immoral to violate just war criteria, all Catholics are obligated to assent to that teaching. But if a pope were to make a judgement about the likelihood of success of a certain specific proposed military operation, Catholics are not obligated to assent. Now, if Pope Francis is making a prudential judgment when he says that the death penalty should never be used anywhere, then what he is saying is that in his estimation, the purposes that the Catechism says are served by punishment – such as redressing the disorder caused by the offense, ensuring the safety of the public, and promoting the correction of the offender – are, in every country in the world today, more likely to be secured by a criminal justice system that has abolished capital punishment altogether than by one that keeps it on the books. But this judgment makes crucial assumptions about matters on which popes have no special expertise. For example, does the death penalty have significant deterrence value? Are some violent offenders likely to pose a significant danger to the lives of other prisoners or of prison personnel? Are some organized crime figures likely to order murders from behind prison walls? Do some undeveloped countries lack adequate means effectively to imprison the most dangerous offenders? Does keeping the death penalty on the books provide prosecutors with a valuable bargaining chip by which offenders can be encouraged to inform on other dangerous criminals? Are a significant number of offenders likely to be moved to repentance precisely by the prospect of execution? Is an understanding of the principle that a punishment ought to be proportional to the gravity of the offense likely to disappear in a society in which no one is ever executed, no matter how horrific his crimes? An affirmative answer to one or more of these questions would give reason to conclude that the purposes of punishment are not best served by abolishing the death penalty. Again, popes and other churchmen simply have no special expertise about such matters. Rather, social scientists, prosecutors, and police are the ones who have the necessary expertise, and many of them judge that the death penalty is still essential to realizing such purposes of punishment as securing public safety. (In our book, Joseph Bessette and I provide a detailed survey of the arguments and evidence.) Of course, the experts disagree among themselves about these matters, but disagreement among experts is true of almost every area in which prudential judgments are required. Moreover, precisely because churchmen themselves lack special expertise about the matters in question, they also lack any special competence to determine who are the best experts. Now, as the Catechism explicitly acknowledges, it is public officials rather than churchmen who ultimately have the responsibility for making prudential judgments concerning how to apply just war criteria. So how could it fail to be true that it is also public officials rather than churchmen who ultimately have the responsibility for making prudential judgments about the application of the death penalty? After all, waging war is a far graver matter than executing an offender. It involves intentional killing of aggressors on a much larger scale, and also a risk of killing the innocent on a much larger scale. If the Church nevertheless teaches that final decisions about these matters are in the hands of public officials rather than churchmen, then as a matter of logic she has to teach the same thing about capital punishment. By the same token, if faithful Catholics can legitimately disagree with papal prudential judgments about the one, then they can legitimately disagree with papal prudential judgments about the other. Indeed, in his 2004 memorandum, then-Cardinal Ratzinger explicitly linked the two issues together, writing that “there may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty.” He explicitly contrasted this with abortion and euthanasia, about which he said there can be no legitimate diversity of opinion among Catholics. The reason is that the Church teaches that abortion and euthanasia are intrinsically evil, whereas waging war and inflicting the death penalty are not intrinsically evil. No prudential judgement is required when deciding whether to perform a direct abortion or to euthanize someone. You simply must never do it, period. But prudential judgment is required where waging war and applying capital punishment are concerned, because these things may be done under certain circumstances. Nothing Pope Francis has said makes this any less true now than it was in 2004. Hence, if Pope Francis is merely making a prudential judgment when he says that capital punishment should never be used, then what then-Cardinal Ratzinger said in 2004 appears to apply today as well. And what he said, again, is that “if a Catholic were to be at odds with the Holy Father on the application of capital punishment… he would not for that reason be considered unworthy to present himself to receive Holy Communion,” and that “there may be a legitimate diversity of opinion even among Catholics about… applying the death penalty.” The bottom line, then, is this. When Pope Francis says that capital punishment should never be used, then either he is making a doctrinal change that contradicts the teaching of Scripture and Tradition, or he is merely making a prudential judgment. If he is doing the first, then faithful Catholics should not agree with him. If he is doing the second, then faithful Catholics need not agree with him. Either way, they are not obligated to agree with him. If Catholics who oppose capital punishment don’t like this conclusion and insist on claiming that Catholics are obligated to oppose capital punishment in all cases, then they need to explain exactly what is wrong with the argument I’ve just set out. Mere foot stomping and flinging of ad hominem attacks will not do. But this is only the beginning of the grave problems facing these opponents of capital punishment. Let us move on to the other questions. 2. Do you agree with Pope Francis that life sentences should be abolished? The standard positon of Catholic opponents of capital punishment has for decades now been that the practice is unnecessary, insofar as dangerous offenders can be incarcerated for life instead. Hence the U.S. Catholic bishops have said that “one alternative to the death penalty is life without the possibility of parole for those who continue to pose a deadly threat to society.” However, Pope Francis has consistently condemned life sentences as well as the death penalty, and has said that they are objectionable for the same reasons. That is to say, in Pope Francis’s view, if you oppose capital punishment, then to be consistent you should also oppose life imprisonment! For some reason, those who defend the pope’s views on the death penalty rarely call attention to this aspect of his position. They have not loudly demanded that all Catholics work for the abolition of life sentences, the way they have loudly demanded that all Catholics oppose capital punishment. But the pope himself has been clear. Here are some of his remarks on the subject. In an address on October 23, 2014, the pope said: All Christians and men of good will are thus called today to fight not only for the abolition of the death penalty… in all its forms, but also in order to improve prison conditions, with respect for the human dignity of the people deprived of their freedom. And I link this to life imprisonment. A short time ago the life sentence was taken out of the Vatican’s Criminal Code. A life sentence is just a death penalty in disguise. In a March 20, 2015 letter, Pope Francis said: Life imprisonment, as well as those sentences which, due to their duration, render it impossible for the condemned to plan a future in freedom, may be considered hidden death sentences, because with them the guilty party is not only deprived of his/her freedom, but insidiously deprived of hope. But, even though the criminal justice system may appropriate the guilty parties’ time, it must never take away their hope. In an interview in November of 2016, the pope stated that “if a penalty doesn’t have hope, it’s not a Christian penalty, it’s not human” and that life imprisonment is a “sort of hidden death penalty.” In August of 2017, the pope compared life imprisonment to “torture.” And in a December 17, 2018 address, Pope Francis stated: The Magisterium of the Church holds that life sentences, which take away the possibility of the moral and existential redemption of the person sentenced and in favour of the community, are a form of death penalty in disguise. Let’s note several things about these remarks. First, again, the pope claims that life sentences are morally on a par with the death penalty, and suggests that to oppose the latter requires opposing the former as well. Second, he says that the way they are similar is that they both deprive the offender of “hope” and of the possibility of “redemption.” Third, he has raised this issue repeatedly and in formal addresses, and not merely in an off-the-cuff remark or two. Fourth, he has invoked “the Magisterium of the Church” when speaking on this issue, rather than presenting it as a mere personal opinion. Fifth, and remarkably, the pope seems to object not only to life sentences, but to any sentences of an especially long duration. For in his March 20, 2015 letter he criticizes “life imprisonment, as well as those sentences which, due to their duration, render it impossible for the condemned to plan a future in freedom” (emphasis added). Pope Francis appears to be saying that it is wrong to inflict on any offender a sentence that is so long that it would prevent him from returning eventually to a normal life outside of prison. Now, the implications of all this are quite remarkable, indeed shocking. Consider, to take just one out of innumerable possible examples, a serial murderer like Dennis Rader, who styled himself the BTK killer (for “Bind, Torture, Kill”). He is currently in prison for life for murdering ten people, including two children, in a manner as horrific as you might expect from his chosen nickname. If Pope Francis is right, then it is wrong to have put Rader in prison for life. Indeed, if Pope Francis is right, then Rader should not be in prison for any length of time that might prevent him from being able to “plan a future in freedom.” Rader is 74 years old, so that would imply that Rader should be let out fairly soon so that he can plan how to live out the few years remaining to him. And if the pope is right, the same thing is true of other aging serial killers. Perhaps the pope would put conditions on their release, such as realistic assurances that they are not likely to kill again. But his words certainly entail that it would be wrong to deny at least the possibility of parole to any of them, no matter how heinous or numerous their crimes. But even this doesn’t really capture the enormity of what Pope Francis is saying. Consider the Nuremberg trials, at which many Nazi war criminals were sentenced to death or life imprisonment. Pope Francis’s view would imply that all of these sentences were unjust! Indeed, Pope Francis’s position seems to entail that, had Hitler survived the war, it would have been wrong to sentence him to more than about twenty years in prison! For Hitler was in his fifties when he died, so that if he had been sentenced to more than that, he could not “plan a future in freedom” – as a greengrocer or crossing guard, perhaps. Pope Francis’s views imply that the Nuremberg judges should have been at least open to the possibility of letting Hitler off with such a light sentence and letting him return to a normal life – despite being guilty of the Holocaust and of fomenting World War II! Perhaps Pope Francis would shrink from these implications of his views. One hopes so. But they are the implications of his views. Now, are Catholics obligated to agree with Pope Francis that life sentences should be abolished? I would argue they are not obligated, and for the same reasons they are not obligated to agree with Pope Francis about capital punishment. For once again, the pope is either making a claim about doctrinal principle or he is merely making a prudential judgment, and once again, in neither case can Catholics be obligated to agree with him. Consider first the suggestion that Pope Francis is claiming that life sentences are intrinsically wrong, wrong as a matter of doctrinal principle. Such a claim would be seriously theologically problematic. The first problem is that it would clearly conflict with traditional Catholic teaching. For as I have already noted, the traditional teaching of the Church is that it is not intrinsically wrong to inflict a penalty of death. But if it is not intrinsically wrong to inflict a penalty of death, then it can hardly be intrinsically wrong to inflict a lesser penalty, such as life imprisonment. A second problem is that to claim that it is intrinsically wrong to inflict a penalty of life imprisonment, or even a very long imprisonment, would also conflict with the traditional teaching of the Church that “legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense” (as the Catechism states). Now, certain crimes are manifestly so grave that nothing short of life imprisonment would be proportionate to their gravity – for example, serial killing and genocide. To say that not only the death penalty, but life imprisonment or even long imprisonments, must never in principle be inflicted, would be to strip the principle of proportionality of all meaning. A third problem is that the pope’s claim that the death penalty and long imprisonments deprive the offender of hope seems to presuppose a secular rather than Catholic understanding of hope. In Catholic theology, hope is a theological virtue. It has nothing to do with looking forward to pleasant circumstances in this life. As St. Paul wrote, “if in this life only we have hope in Christ, we are of all men most miserable” (I Corinthians 15:19). Rather, hope has to do with the desire for eternal life and trust in God to provide the graces needed to attain it. Now, neither capital punishment nor life imprisonment are contrary to hope in this sense. On the contrary, as the Catechism teaches, “when [punishment] is willingly accepted by the guilty party, it assumes the value of expiation.” And the possibility of expiation for sin is precisely a reason for hope. Accepting the penalty of death or life imprisonment as one’s just deserts can mitigate the temporal punishment one would otherwise have to suffer in purgatory. Once again, then, reading Pope Francis as introducing a doctrinal novelty would have implications that no Catholic can accept. It is better, then, to interpret his remarks about life imprisonment as merely a prudential judgement which Catholics need only respectfully consider but need not agree with. In any event, the question we should ask any Catholic who appeals to Pope Francis’s teaching as proof that all Catholics must favor the abolition of capital punishment is this: Do you also believe that all Catholics must favor the abolition of life imprisonment? Because Pope Francis teaches that they are morally on a par. Hence, to be consistent, any Catholic who concludes that the pope’s views on life imprisonment are merely a prudential judgment with which Catholics may disagree ought also to admit that the same thing is true of the pope’s views about the death penalty. 3. Do you agree with Pope Francis that executing a murderer is worse than what the murderer himself did? Though it might be hard to believe, Pope Francis has said things that are even stranger than his remarks about life imprisonment. In the 2015 public letter quoted above, he wrote: For a constitutional state the death penalty represents a failure, because it obliges the State to kill in the name of justice. Dostoyevsky wrote: “To kill a murderer is a punishment incomparably worse than the crime itself. Murder by legal sentence is immeasurably more terrible than murder by a criminal”. Justice is never reached by killing a human being. Now, the most startling words here are the ones the pope attributes to Dostoyevsky. But he quotes them approvingly, and he does so in a formal letter that he had time to think through rather than in impromptu remarks. The quoted sentences are also followed by a sentence of the pope’s own that flatly states that justice is “never” achieved by capital punishment, and the letter also contains other remarks that seem to imply that capital punishment is intrinsically wrong. Nor does the pope say anything to qualify or correct the view he attributes to Dostoyevsky. So it is hardly unreasonable to think that the pope might agree with that view. But the view in question is extremely problematic. For one thing, its implications are absurd. Someone who seriously believed that capital punishment is worse than what was done by the murderer who is executed would have to say, for example, that the quick death by electrocution inflicted on Ted Bundy was worse than the acts of murder, rape, torture, and necrophilia of which Bundy was guilty. He would have to say that what the Allies did in hanging Nazi war criminals was worse than the sorts of things the Nazi war criminals did. And so on. Such conclusions are not only absurd, they are obscene. Now, surely Pope Francis himself would not want to draw these conclusions. But they do follow from the view he appears to endorse in the letter, even if he does not realize it. For another thing, since murder is intrinsically wrong, then if capital punishment is “incomparably worse” and “immeasurably more terrible” than murder – as the quote from Dostoyevsky claims – then it would follow that capital punishment must be intrinsically wrong too. But again, the claim that capital punishment is intrinsically wrong is incompatible with Catholic orthodoxy. A defender of Pope Francis might respond that the pope was here speaking merely rhetorically and imprecisely, and that we cannot take such extreme remarks to have any doctrinal significance. I think that is exactly right. But it is also precisely the problem. The pope’s various statements over the years about capital punishment are in general extremely imprecise. When he speaks on the subject, he tends both to say things that imply that capital punishment is intrinsically wrong, but also to say things that might be taken to imply that it is wrong only under modern circumstances. Yet he gives no indication about exactly how these sets of remarks are supposed to be reconciled with one another, or exactly how the more extreme remarks are to be understood if they are not meant to imply that capital punishment is intrinsically wrong. For example, take the remarks Pope Francis made in his Angelus address of February 21, 2016, where he said that “a spreading opposition to the death penalty, even as an instrument of legitimate social defence, has developed in public opinion, and this is a sign of hope” (emphasis added). He went on in the same address to say that the commandment against killing “has absolute value and pertains to the innocent as well as the guilty” and that “even a criminal has the inviolable right to life” (emphasis added). Now, John Paul II used some similar phrases in Evangelium Vitae, which evidently influenced Francis. However, Francis made some crucial changes to his predecessor’s wording. John Paul wrote that the commandment against killing “has absolute value when it refers to the innocent person,” and spoke of the “inviolable right to life of every innocent human being” (emphasis added). Francis has altered these phrases to include “the guilty” and the “criminal” within their scope, alongside the innocent. It is hard to square all this with St. John Paul II’s view that execution of the guilty can be legitimate at least in rare cases as an instrument to defend society. On a natural reading, Francis’s remarks in his Angelus address imply that execution of the guilty is always and intrinsically wrong, even when there is no other way to protect society against the offender. Or take the statements Pope Francis made in the October 11, 2017 address wherein he first announced his intention to alter the Catechism. He said there that “no matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person.” Notice that he did not say that the death penalty is inadmissible because there are other ways to protect the innocent. He said that it is inadmissible because “it is an attack on the inviolability and the dignity of the person.” The natural interpretation of this is that capital punishment is intrinsically or of its nature contrary to human dignity, not contrary to human dignity merely if there are other ways to protect the innocent. This is reinforced by a further statement in the address, to the effect that capital punishment is “per se contrary to the Gospel” – which means that it is as such or of its very nature contrary to the Gospel. On the other hand, in the very same address the pope claims that “here we are not in any way contradicting past teaching.” That sounds reassuring – until you read the rest of the sentence, which says that the reason the pope’s statements are consistent with past teaching is that “the defence of the dignity of human life from the first moment of conception to natural death has been taught by the Church consistently and authoritatively.” The trouble with this is that it cites only part of past teaching. It completely ignores all the statements from Scripture, the Fathers and Doctors of the Church, and previous popes that explicitly affirm that capital punishment is not intrinsically wrong. What needs to be explained is how Pope Francis’s statements about capital punishment can be reconciled with that part of past teaching, and on that question the pope is silent. The same problem afflicts the pope’s change to the Catechism. On the one hand, the text of the change refers to “more effective systems of detention” that are available in modern societies, and to what is called for “today” by way of criminal justice. That part makes it sound as if the death penalty is not intrinsically wrong, but merely unnecessary in modern times. On the other hand, the text also says that what makes a change necessary “today” is, specifically, that “there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes,” and that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.” That part makes it sound instead like capital punishment has always been wrong, and that we are only now coming to realize it. It gives the impression that it is not merely that “systems of detention” have improved. It is that the Church’s traditional understanding of human dignity was defective and needs to be revised. To be sure, the cover letter from Cardinal Ladaria which announced the change insists that the revision to the Catechism “is not in contradiction with the prior teachings of the Magisterium.” But it never explains how it can be reconciled with prior teaching. Exactly how can capital punishment fail to be intrinsically wrong if it is “an attack on the inviolability and dignity of the person”? For if it is at least in principle legitimate to execute an offender under certain circumstances, then he cannot be inviolable in that respect. What all of these examples illustrate is this. The problem with the claim that Catholics are obligated to assent to the pope’s teaching on capital punishment is that it is never made clear exactly what we are expected to assent to. Yes, Pope Francis clearly says that capital punishment should be abolished. But when his critics say that his teaching is unclear, they don’t mean that that part is unclear. What they mean is that it is unclear whether the pope’s opposition to capital punishment reflects a doctrinal change or merely a prudential judgment. Like the remarks he quotes approvingly from Dostoyevsky, Pope Francis’s statements about capital punishment are often so extreme that, if taken at face value, they seem to contradict traditional teaching – in which case no Catholic should accept them. Whereas if the pope’s statements are not taken at face value, but instead as merely overheated rhetoric that is not meant to conflict with traditional teaching, then it is hard to see in them anything more than a reiteration of Pope John Paul II’s merely prudential judgement that capital punishment is legitimate in principle but better avoided in practice – a judgment with which, as then-Cardinal Ratzinger taught, Catholics are not obligated to agree. Either way, as I have argued, Catholics are not obligated to agree. Those who insist otherwise have failed to see the dilemma that Pope Francis’s imprecision poses for them. On their side they have only muddled thinking and ad hominem attacks. Arrayed against them are Scripture, the Fathers and Doctors of the Church, all the popes prior to Pope Francis, and basic logic. If you value the news and views Catholic World Report provides, please consider donating to support our efforts. Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Thank you for your generosity! Click here for more information on donating to CWR. Click here to sign up for our newsletter. capital punishmentCatechism of the Catholic ChurchDostoyevskyJoseph BessettePope Benedict XVIPope FrancisPope John XXIIIPope St. John Paul IIprisonSt. Thomas Aquinas About Dr. Edward Feser 40 Articles Edward Feser is the author of several books on philosophy and morality, including All One in Christ: A Catholic Critique of Racism and Critical Race Theory (Ignatius Press, August 2022), and Five Proofs of the Existence of God and is co-author of By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, both also published by Ignatius Press. Related Articles News Briefs Pope Francis: ‘Let us not forget that crises are also windows of opportunity’ November 2, 2021 Catholic News Agency 7 Pope Francis, pictured on July 30, 2016. / Mazur/catholicnews.org.uk. Vatican City, Nov 2, 2021 / 12:00 pm (CNA). The world is facing ecological, social, and healthcare crises, but it is vital to remember that “crises are also windows of opportu… […] The Dispatch Pope Francis speaks to priests June 20, 2017 Bishop Robert Barron 4 I write these words from the Nuremore Hotel in Monaghan, Ireland, where I am conducting a retreat for the good priests of the Dublin Archdiocese. As I look out at these men, I am reminded […] The Dispatch Pope Francis to consecrate Ukraine and Russia to Immaculate Heart of Mary March 15, 2022 Catholic News Agency 13 Pope Francis in Fatima, 2017. / Daniel Ibañez/CNA Vatican City, Mar 15, 2022 / 10:40 am (CNA). Pope Francis will consecrate Russia and Ukraine to the Immaculate Heart of Mary, the Vatican announced on Tuesday.The Holy See press office said on M… […] 177 Comments Fulton Sheen said that the refusal to punish is not mercy, but cowardice. I agree. You cannot have mercy without justice, which presupposes conversion and repentance for our sins, as the good thief Dismas acknowledges while he hung on the cross next to Our Lord (Luke 23: 40-43). Reply Yes Johann, This brilliant piece of writing by Edward Feser, (especially the paragraph, half-way through, that starts: ” ” But this judgment makes crucial assumptions about… . ” ) leaves me scratching my head saying ” What’s the matter with Pope Francis head? “ Reply Thank you, Johann, for reminding us of the brilliant and Venerable Archbishop Fulton J. Sheen. The Church desperately needs to hear more of his thought in our confused society. Cordially, John A. Lombardi Reply St. Augustine and St Thomas Aquinas both state the need for the death penalty when the person in question,

Jun 3, 2020 — Stanford Encyclopedia of Philosophy Menu Browse Table of Contents What's New Random Entry Chronological Archives About Editorial Information About the SEP Editorial Board How to Cite the SEP Special Characters Advanced Tools Contact Support SEP Support the SEP PDFs for SEP Friends Make a Donation SEPIA for Libraries Entry Navigation Entry Contents Bibliography Academic Tools Friends PDF Preview Author and Citation Info Back to Top Natural Law Theories First published Mon Feb 5, 2007; substantive revision Wed Jun 3, 2020 This entry considers natural law theories only as theories of law. That is not to say that legal theory can be adequately identified and pursued independently of moral and political theory. Nor is it to deny that there are worthwhile natural law theories much more concerned with foundational issues in ethics and political theory than with law or legal theory. A sample of such wider and more foundational theories is the entry Aquinas’ moral, political, and legal philosophy. In the present entry, “natural law theory” is to be taken as shorthand for natural law theories just insofar as they bear on law and are theories of or about it. This focus has the important incidental effect that many historically important differences between natural law theorists can be omitted, differences which pertain more to the foundations of normativity than to the nature and functions (“the concept”) of positive law. Legal theorists who present or understand their theories as “positivist”, or as instances of “legal positivism”, take their theories to be opposed to, or at least clearly distinct from, natural law theory. Natural law theorists, on the other hand, did not conceive their theories in opposition to, or even as distinct from, legal positivism (contra Soper 1992 at 2395). The term “positive law” was put into wide philosophical circulation first by Aquinas, and natural law theories of his kind share, or at least make no effort to deny, many or virtually all “positivist” theses—except of course the bare thesis that natural law theories are mistaken, or the thesis that a norm is the content of an act of will. Natural law theory accepts that law can be considered and spoken of both as a sheer social fact of power and practice, and as a set of reasons for action that can be and often are sound as reasons and therefore normative for reasonable people addressed by them. This dual character of positive law is presupposed by the well-known slogan “Unjust laws are not laws.” Properly understood, that slogan indicates why—unless based upon some skeptical denial that there are any sound reasons for action (a denial which can be set aside because defending it is self-refuting)—positivist opposition to natural law theories is pointless, that is redundant: what positivists characteristically see as realities to be affirmed are already affirmed by natural law theory, and what they characteristically see as illusions to be dispelled are no part of natural law theory. But because legal theories conceived of by their authors as positivist are, by and large, dominant in the milieux of those likely to be reading this entry, it seems appropriate to refer to those theories along the way, in the hope of overcoming misunderstandings that (while stimulating certain clarifications and improvements of natural law theorizing) have generated some needless debate. The point made in the preceding paragraph is made in another way by Orrego (Orrego 2007). When the accounts of adjudication and judicial reasoning proposed by contemporary mainstream legal theories are added to those theories’ accounts of (the concept of) law, it becomes clear that, at the level of propositions (as distinct from names, words and formulations), those theories share (though not always without self-contradiction) the principal theses about law which are proposed by classic natural law theorists such as Aquinas: (i) that law establishes reasons for action, (ii) that its rules can and presumptively (defeasibly) do create moral obligations that did not as such exist prior to the positing of the rules, (iii) that that kind of legal-moral obligation is defeated by a posited rule’s serious immorality (injustice), and (iv) that judicial and other paradigmatically legal deliberation, reasoning and judgment includes, concurrently, both natural (moral) law and (purely) positive law. Orrego’s point seems to be confirmed by, e.g., the adjacent entry on Legal Positivism (Green and Adams 2019). Contemporary “positivist” theories are, it seems, natural law theories, distinguished from the main body of natural law theory (a) by their denial that the theory of law (as distinct from the theory or theories of adjudication, judicial duty, citizens’ allegiance, etc.) necessarily or most appropriately tackles the related matters just listed, and accordingly (b) by the incompleteness of their theories of law, that is, the absence from them (and usually, though not always, from their accounts of those related matters) of systematic critical attention to the foundations of the moral and other normative claims that they make or presuppose. In short: a natural law theory of (the nature of) law seeks both to give an account of the facticity of law and to answer questions that remain central to understanding law. As listed by Green 2019 (having observed that “No legal philosopher can be only a legal positivist”), these further questions (which “legal positivism does not aspire to answer”) are: What kinds of things could possibly count as the merits of law? What role should law play in adjudication? What claim has law on our obedience? What laws should we have? And should we have law at all? All these questions, though organized and articulated a little differently, are under consideration in the present entry. 1. Enabling positivity: social facts made reasons for action 1.1 Basic reasons for action and the need for governmental authority 1.2 Political authority as remedy for anarchy, injustice and impoverishment 1.3 Rule of law as remedy for the dangers in having rulers 1.4 Ius gentium—ius cogens—mala in se—human rights: legal rules and rights posited because morally necessary parts of any legal system 1.5 “Purely positive law”: determinationes and their legal-moral authority for citizens and judges (facts made reasons for action) 2. Human persons are not law’s creatures but its proper point 3. Legal principles to remedy defective positive law 3.1 Adjudicating between exclusive and inclusive legal positivism 3.2 Natural law and (purely) positive law as concurrent dimensions of legal reasoning 3.3 Implications of the rule-of-law need for positivity 4. “Lex iniusta non est lex”? Do seriously unjust laws bind? Legally? 5. Can general theories of law be value-free? moral-value-free? 6. Other elements of natural law theory 6.1 Intention in action and utterance 6.2 Responsibility and punishment 6.3 Each legal system is of and for a particular political community Bibliography Academic Tools Other Internet Resources Related Entries 1. Enabling positivity: social facts made reasons for action The fulcrum and central question of natural law theories of law is: How and why can law, and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it? How can a rule’s, a judgment’s, or an institution’s legal (“formal,” “systemic”) validity, or its facticity or efficacy as a social phenomenon (e.g., of official practice), make it authoritative in its subject’s deliberations? The sense and force of these questions, and the main features of the kind of answer given by natural law theories, can be given a preliminary indication. On the one hand, natural law theory holds that law’s “source-based character”—its dependence upon social facts such as legislation, custom or judicially established precedents—is a fundamental and primary element in “law’s capacity to advance the common good, to secure human rights, or to govern with integrity” (cf. Green and Adams 2019). On the other hand (cf. Green 2003), the question “whether law is of its very nature morally problematic” has from the outset been the subject of consideration by leaders of the tradition. (The first issue that Aquinas takes up about human law in his set-piece discussion of law, Summa Theologiae, I-II, q. 95 a. 1, is whether human law [positive law] is beneficial—might we not do better with exhortations and warnings, or with judges appointed simply to “do justice”, or with wise leaders ruling as they see fit? And see I.3 below.) Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so, both in settling the content of its rules and principles and in the procedures and institutions by which they make and administer it. Natural law theories all understand law as a remedy against the great evils of, on the one side anarchy (lawlessness), and on the other side tyranny. And one of tyranny’s characteristic forms is the co-optation of law to deploy it as a mask for fundamentally lawless decisions cloaked in the forms of law and legality. 1.1 Basic reasons for action and the need for governmental authority If one thinks perceptively and carefully about what to pursue (or shun) and do (or forbear from), one can readily understand and assent to practical propositions such as that life and health, knowledge, and harmony with other people are desirable for oneself and anyone else. The intrinsic desirability of such states of affairs as one’s flourishing in life and health, in knowledge and in friendly relations with others, is articulated in foundational, underived principles of practical reasoning (reasoning towards choice and action). Such first principles of practical reasoning direct one to actions and dispositions and arrangements that promote such intelligible goods, and that directiveness or normativity is expressed by “I should…” or “I ought…” in senses which although truly normative are only incipiently moral. A natural law moral theory will give an account of the way in which first principles of practical reason take on a moral force by being considered, not one by one but in their united (“integral”) directiveness. That integral directiveness is given specific (albeit highly general) articulation in principles such as the injunction to love one’s neighbor as oneself; or the Golden Rule of doing for others what you would want them to do for you and not doing to others what you would not have them do to you; or the “categorical imperatives” to respect, and treat as intrinsically valuable, humanity (the basic aspects of human flourishing) in oneself and in others, so that each of one’s communities is treated as a kingdom of ends—of persons each ends in themselves. Such high-level but far from contentless moral principles can be given further specificity in two ways (1) by identifying what, given some broadly stable features of human reality, they entail (see 1.2–4), and (2) by a rational but more or less non-deductive selection among alternative specifications, a selection named by Aquinas determinatio (plural, determinationes) (see 1.5). Political communities are a kind of institution whose rational status as a normally desirable and obligatory objective of and context for collaborative action (and forbearance) can easily be seen to be entailed by the foundational practical and moral principles. In such communities, the normal means for making the needed determinationes is the institution of governmental authority acting in the first instance through legislation and other forms of law-making, i.e., acting as a social-fact source of positive (posited) law. The political-theoretical part of natural law theory explains and elaborates the grounds and proper forms of governmental authority. It explains the similarities and differences between the practical authority of rulers (including democratic electors acting as selectors of representatives or as plebiscitary decision-makers) and the theoretical authority of experts and persons of sound judgment. It shows the grounds for instituting and accepting practical authority as an almost invariably necessary means for preventing forms of harm and neglect which, because contrary to the high-level moral principles (at least as they bear on relationships between persons), involve injustice. Political theory subsumes, as one of its branches, legal theory. As legal theory, political theory explains the normal desirability that governmental authority in political communities be exercised within the framework of (in the classic slogan) a “rule of law and not of men” (1.3). 1.1.1 Why “natural” law? Naturalistic fallacy? What does the mainstream of natural law theory intend by using the word “natural” in that name for the theory? The shortest accurate answer is “of reason,” as in “the law of reason” or “the requirements of reason.” Aquinas is particularly clear and explicit that in this context, “natural” is predicated of something (say, a law, or a virtue) only when and because that of which it is predicated is in line with reason, practical reason, or practical reason’s requirements: see Finnis 1980, 35–6. Moreover, he employs, through all his works, a methodological axiom: X’s nature is understood by understanding X’s capacities, which are understood by understanding their act[uation]s, which are understood by understanding their objects. But the objects of chosen acts are the intelligible intrinsic goods (aspects of human flourishing) which we are directed to by practical reason’s first principles. So the equation, in this context, of “natural” and “rational” and its cognates is no mere confusion, but grounded in a sophisticated distinction between ontology and epistemology: in the order of being, what is good and reasonable for us is a resultant of what is foundational, our given nature; but in the order of coming to know, our knowledge of our nature is in significant part a resultant of our understanding of what kinds of possible objects of choice are good. Though the core of classic and mainstream natural law theory is thus untainted by any “naturalistic fallacy” (Finnis 2018, 2.4.2), non-practical knowledge of facts counts, in that theory, in various ways. Knowledge of the factual possibility of (say) acquiring knowledge, or of losing or saving life, is a datum (not really a premise) for the understanding that such a possibility is also an opportunity—that actualizing the possibility would be good for oneself and others. Other kinds of relevant facts include the facts about certain human radical capacities and their absence in other animals—these facts are the data for the insight into the sense and bounds of the class (persons, human beings) of “others” in “good for oneself and others.” Or again, facts about the limited supply of resources and the limited strength of human will (the need for incentives, etc.) make (1.5) appropriation of resources to particular owners a normal requirement of justice to non-owners and owners alike. 1.2 Political authority as remedy for anarchy, injustice and impoverishment The texts that are earliest (e.g., the Platonic or pseudo-Platonic Minos: Lewis 2006) and most foundational (e.g., Plato’s Gorgias, Republic and Laws, and Aristotle’s Politics) in the tradition of natural law theory remind their readers of the evident evils of anarchy: a condition of things in which no person or body of persons efficaciously claims or is accepted widely as having authority to restrict the use of violence, theft and fraud, and in which any conventional norms of conduct are made hollow by irresolvable disputes about their content and/or their application. In such a state of affairs, the more strong, cunning and ruthless prey on the less, education of children (which calls for resources outside the family) is difficult to accomplish, and economic activity remains stunted by the insecurity of holdings and the unreliability of undertakings. There is evident need for persons who will articulate and enforce standards of conduct which will tend to promote the common good of bodily security, stable access to resources, cooperation in economic and educational activities, and rectification (by punishment, compensation and restitution) of at least the grosser inter-personal injuries of commission and neglect. To articulate that need is to state the reasons for instituting and supporting political authority, notably state government and law, on condition that these institutions carry on their legislative, executive and judicial activities substantially for the common good of the inhabitants of the relevant territory, rather than in the interests of a segment of the population unfairly indifferent or hostile to the interests and wellbeing of other segments. 1.3 Rule of law as remedy for the dangers in having rulers Aristotle (Politics III.15.1286a–IV 4 1292a) vigorously debates the question whether political authority is better exercised through a “rule [primacy, supremacy] of law” or “a rule of men,” say of one best person, or a democratic assembly, or indeed (Rhetoric I 1 1354a32–b16) a court. He takes his arguments to suggest the answer that in almost all societies, on almost all occasions and issues, it is preferable that government be by or in accordance with law, since (i) laws are products of reason(s) not passion(s), (ii) the sovereignty of a ruler or assembly tends to tyranny (i.e., rule in interests of a section, not common good), (iii) equality demands that each mature person have some share in governing, and (iv) rotation of offices and office-holders is desirable and can hardly be managed without legal regulation. So for Aristotle, the central case of practical authority is government of a polis by law and legally regulated rulers. Thomas Aquinas’ account of human positive law treats the central case of government as the self-government of a free people by the rulers and institutions which that people has appointed for that purpose, and the central case of law is the co-ordination of willing subjects by law which, by its public character (promulgation), clarity, generality, stability and practicability, treats those subjects as partners in public reason (Summa Theologiae I-II q. 90 a. 4c; q. 95 a. 3c; q. 96 a. 1; q. 97 a. 2). For he defines law as universal (in the logician’s sense of “universal”) practical propositions conceived in the reason of the ruler(s) and communicated to the reason of the ruled so that the latter will treat those propositions, at least presumptively, as reasons for action—reasons as decisive for each of them as if each had conceived and adopted them by personal judgment and choice. Lon Fuller 1969, acknowledging Aquinas’ lead in this discussion of formal and procedural aspects of legal system, pulls together Aquinas’ scattered and fragmentary remarks about them into an orderly list of eight elements of the rule of law, that is of la primauté du droit, the legal system of a Rechtsstaat. He shows that these hang together as a set of desiderata (or requirements) because they are implications or specifications of the aspiration and duty to treat people as presumptively entitled—as a matter of fairness and justice—to be ruled as free persons, fundamentally the equals of their rulers, not puppets or pawns to be managed and kept in order by manipulation, uncertainty, fear, etc. The normal result of such fairness in the procedures of making and maintaining the law will be to strengthen the law’s efficacy, too. Unfortunately, the surface of Fuller’s text gives more prominence to effectiveness than to fairness, and many critics (e.g., Hart, Dworkin), overlooking the moral connotations of Fuller’s allusions to reciprocity between rulers and ruled, thought his book’s title, The Morality of Law, a misnomer. This thesis has been elaborated more carefully and on a different basis by Raz 1979 and Kramer 2004a and 2004b: although the rule of law (and compliance with it) can be morally important and even a moral virtue (because normally necessary for fully just government in a just society, and especially for alleviating dangers that arise from the existence of political authority, and of law itself), it is nonetheless in itself morally neutral since (in states which employ the forms of law) it will normally be needed even by deeply unjust rulers for advancing their immoral purposes. It is like a sharp knife, whose sharpness makes it apt for life-saving surgery but equally for stealthy callous murders (Raz 1979, 224–6). Finnis 1980 (273–4) and Simmonds 2004, 2005, 2006, 2007 have challenged the quasi-empirical claim that even vicious tyrants need or find it apt, for the efficacy of their domination, to comply with the requirements of the rule of law. The eighth of Fuller’s elements of the rule of law, viz. adherence by the rulers to their own rules in their conduct of government, is especially obstructive, rather than supportive, of a tyranny’s purposes. But the focus of Fuller’s concern, and the most fruitful locus of debate, is not so much on historical or sociological phenomena or causalities as on the “internal,” practical reasons at stake. If the rulers somewhere do not respect the rights and interests of some of their subjects in relation to issues of substance (life, bodily security, freedom, property, and so forth), why should the rulers—what reason have they to—respect their subjects’ rights or interests in the matters of procedure involved in the rule of law (giving them fair notice of what is expected of them, and adhering as rulers to the promulgated law when assessing these subjects’ conduct and in other governmental dealings with those subjects)? A more or less inconsistent willingness of rulers to tie their own hands by scrupulous adherence to procedural justice while yet being substantively unjust, is of course psychologically possible. But Fuller’s primary concern, like that of the wider tradition of natural law theory, is with rationality and the specific implication of fully coherent reasonableness: morally reasonable judgment and choice. 1.4 Ius gentium—ius cogens—mala in se—human rights: legal rules and rights posited because morally necessary parts of any legal system Fuller offered a merely procedural natural law theory, though he did not deny that a substantive natural law theory is possible and appropriate. And indeed there is no sufficient reason to follow him in restricting the range of practical-theoretical reflection on what is needed for a political society worthy of the self-restraints and acceptance of responsibilities that the law requires of those to whom it applies. For it is clear that the procedures and institutions of law are in the service of substantive purposes: the restriction of violence, theft and fraud, the recovery of things misappropriated from their lawful owners or possessors, and of losses wrongfully imposed, protection of intangible goods such as reputation against unwarranted defamation, and of the immature, the mentally disabled and other vulnerable people against sexual or other exploitation, and so forth. That portion of our positive law which consists of legal principles or rules giving effect to purposes such as those just listed was often named, by natural law theories, ius [or jus] gentium. Minted by jurists of classical Roman law such as Gaius (c. 165 AD), this name—literally “the law of peoples”—alludes to the set of rules and principles found in similar if not identical forms in virtually all legal systems. The reason for their ubiquity is, generally speaking, that any reasonable consideration of what it takes for individuals, families and other associations to live together in political society, tolerably well, will identify these principles and rules as necessary. In modern law they are picked out, in principle, by names such as “the general principles of law recognized by civilized nations” (Statute of the International Court of Justice, art. 38), ius cogens erga omnes (literally “law that is compelling [obligatory without agreement or enactment or other forms of adoption] in relation to [for/on, ‘against’] everyone”), “higher law”, or “fundamental human rights.” In Aquinas’s theory of law, they are referred to as conclusions (entailments) of the very highest-level, most general moral principles. In the common law tradition, the legal wrongs picked out by such principles have been called mala in se, as distinct from mala prohibita—things wrong in themselves as distinct from things wrong only because prohibited by (positive) law—and this distinction remains, for good reason, in use in judicial reasoning. Some legal theories speak of these principles and rules as belonging to law by a kind of “conceptual” necessity. Hart (1961) can be so read. But even Hart’s account, on closer examination, identifies the relevant necessity not as conceptual or linguistic but as an instance of the rational necessity of means needed to secure purposes which are non-optional. It was for this reason that Hart spoke of them as constituting “the minimum content of natural law.” He would have expressed his own meaning more perspicuously had he spoken instead of “the minimum content of positive law, the minimum set of principles which, because rationally necessitated —given certain fundamental ‘truisms’ about human nature and the human predicament—for the securing of purposes shared by all survivable human societies, can be called natural law.” The fact is that these elements of our law are both positive (made and part of official practice) and natural (rationally required for at least minimal human flourishing). These issues are discussed further in Section 3 below. 1.5 “Purely positive law”: determinationes and their legal-moral authority for citizens and judges (facts made reasons for action) Natural law theory of law has its most distinctive characteristic in its account of purely positive law which, though “entirely” dependent for its legal status on the fact that it has been authoritatively posited by some persons(s) or institution, nonetheless shares in law’s characteristic of entailing—albeit presumptively and defeasibly—a moral obligation of compliance. About these rules of a positive legal system, Aquinas says that, though they certainly should be, and be presumed to have been, “derived from natural law”, they have their legal force only from their part in this posited system (ex sola lege humana vigorem habent: ST I-II, q. 95 a. 3). His explanation, slightly updated: this very large part of our law could reasonably have been different, in the way that every detail of a maternity hospital could have been somewhat different and large portions of the design could have been very different, even though some features (e.g., that the doors and ceilings are more than two feet high) are entailed by the commission to build a town maternity hospital, and every feature has some rational connection with the commission. The kind of rational connection that holds even where the architect has wide freedom to choose amongst indefinitely many alternatives is called by Aquinas a determinatio of principle(s)—a kind of concretization of the general, a particularization yoking the rational necessity of the principle with a freedom (of the law-maker) to choose between alternative concretizations, a freedom which includes even elements of (in a benign sense) arbitrariness. Once the determinatio is validly made, fulfilling the criteria of validity provided by or under the relevant legal system’s constitutional law, it changes the pre-existing state of the law by introducing a new or amended legal rule and proposition(s) of law. The new or amended legal rule gives judges, other officials, and citizens a new or amended reason for action (or forbearance). The fact that the new or amended rule depends upon the social-fact source constituted or employed by the act of determinatio does not entail that a normative reason (an “ought”) is being illogically derived from a bare fact (an “is”). Rather, the new or amended rule is normative, directive and (where that is its legal meaning ) obligatory because that social fact can be the second premise in a practical syllogism whose first premise is normative: “there ought to be a maternity hospital in this town,” “people ought to be protected against homicidal assault,” “people ought to be required to contribute to the public expenses of appropriate governmental functions”, “victims of assault, theft, broken contracts, negligence, etc., ought to be compensated,” “road traffic should be regulated to reduce damaging collisions,” and so forth. The moral normativity of the principle is replicated in the more specified rule created by the determinatio, even though the latter is not an entailment of the former. That is to say: the concretized rule is (morally as well as legally) normative because such normativity is (presumptively and defeasibly) entailed by the (moral) principle that the common good (whose fundamental content is given by the foundational principles of practical reason: 1.1) requires that authoritative institutions take action to specify, apply and enforce some rules on the relevant matters. Social facts make a positive legal rule a reason for action because the desirability of authority as a means of securing common good, and the desirability of the “rule of law and not of men,” are standing and potent reasons for acknowledging such facts as an instance of valid legislation giving presumptively sufficient reason for compliance. Purely positive law that is legally valid is (presumptively and defeasibly) valid and binding morally—has the moral form or meaning of legal obligatoriness—when and because it takes its place in a scheme of practical reasoning whose proximate starting point is the moral need for justice and peace, and whose more foundational starting-point is the range of basic ways in which human wellbeing can be promoted and protected, the way picked out in practical reason’s first principles. Thus, in relation to the settled positive law, natural law theory—as is acknowledged by a number of legal positivists, (e.g., Raz 1980, 213; Gardner 2001, 227)—shares the principal thesis of contemporary legal positivists, that laws depend for their existence and validity on social facts. 1.5.1 “Presumptive” and “defeasible” obligatoriness The legal-moral obligation or obligatoriness of a legal rule is counterpart to the legal-moral authority or authoritativeness of its author (enacter) or other source. The idea of authority has been clarified by contemporary legal theorists such as Raz and Hart, by reflection upon the kind of reasons for action purportedly given to potentially acting subjects by an exercise of practical authority. The relevant kind of practical reason has been variously called exclusionary, peremptory or pre-emptive, and content-independent. The core idea is that subjects are instructed to treat the proffered reason (say, a statutory provision, or a judicial order), in their deliberations towards choice and action, as a reason which does not simply add to the reasons they already have for acting one way rather another, but rather excludes and takes the place of some of those reasons. And this exclusionary, peremptory or pre-emptive force is owed not to the inherent attractiveness to reason of the (content of the) proffered reason, but to the status of its author or other source as one entitled—for example, by its role in a constitutional scheme of governance for the solution of a political community’s coordination problems—to be obeyed, complied with, treated as authoritative. See e.g., Raz 1986, 35–69. This content-independence of authoritative reasons entails their presumptive obligatoriness. The defeasibility of that presumption is entailed by the dependence of such reasons’ peremptory, pre-emptive or exclusionary force upon a background of presupposed basic human needs and goods, and of basic moral principles and norms, a background which entails that if a purportedly authoritative proffered (posited) reason conflicts sufficiently clearly with those standing needs, goods, principles or norms its exclusionary force is exhausted or overcome and the purported obligatoriness defeated. Less abstractly put, both the effectiveness of laws as solutions to coordination problems and promoters of common good, and the fairness of demanding adherence to them, are dependent upon their being treated both by the subjects and the administrators of the legal system as legally and morally entitled, precisely as validly made law, to prevail against all other reasons save competing moral obligations of greater strength. It is this entitlement that is negated by the serious injustice of a law or legal system: see 3 and 4 below. 2. Human persons are not law’s creatures but its proper point Talk of human flourishing’s or wellbeing’s aspects, and of principles of practical reason, should not be allowed to distract attention from an important truth, implicit both in classical Greek and Roman philosophical and juristic treatments of justice and in modern juristic attributions of human rights. Indeed, the Universal Declaration of Human Rights (1948) links the two traditions of discourse by placing at the head of its articulation of human rights the core (“all human beings are born free and equal in dignity and rights”) of the Roman juristic saying (Institutes 1.2.2) that “by nature, from the outset, all human beings were born free and equal,” a saying about iustitia, justice as a ground and standard for ius, law. The same Roman law texts, promulgated as permanent law by Justinian 533–535 AD, state more than once that law’s point (its “final” causa, explanatory reason) is the human persons for whose sake it is made, that is, all human persons until the time when the ius gentium, the common law of peoples, was distorted by wars and slavery. Law, fit to take a directive place in practical reasoning towards morally sound judgment, is for the sake of human persons: all the members of the community regulated by that law and all other persons within that law’s ambit. That thesis falls within those parts of legal theory that are acknowledged but not much explored by contemporary legal positivists. It was ignored and in effect denied by earlier forms of legal positivism more ambitious to cover the whole of legal philosophy, e.g., Kelsen’s. Kelsen denied that persons were known either to law or to a proper legal theory or science of law, except insofar as they were made the subject of a posited legal rule. But against this restriction, which has misled some courts which have treated Kelsenian legal science as a guide to judicial reasoning, it can be said (Finnis 2000) that the fundamental equality and dignity of human beings should defended as part of a rationally sound understanding (concept) of law. This defense requires an account of the difference between capacities which are activated here and now, or are more or less ready to be so actuated, and radical capacities such as exist in the epigenetic primordia of even very young human beings, and in the genetic and somatic constitution of even the severely disabled. Though such an account makes possible a defense of the fundamental equality of human beings, and thus a humanist legal theory, the point of the account is not to privilege a biological species as such, but to affirm the juridical significance of the status of persons—substances of a rational nature—as inherently the bearers (subjects) of rights of a kind different and more respect-worthy and end-like than the rights which are often, as a matter of technical means, attributed by law to animals, idols, ships or other objects of legal proceedings. 3. Legal principles to remedy defective positive law 3.1 Adjudicating between exclusive and inclusive legal positivism The so-called positivist thesis that all law depends for its existence, validity and obligatoriness on its social-fact source(s) is often accompanied, as in Raz’s “exclusive legal positivism” (Raz 1980, 212–24; Raz 1985), by the thesis that judges, as the “primary law-applying institutions,” have a duty (moral, if not also legal) to decide certain sorts of case (e.g., cases where the existing legal rule would by work injustice) by applying moral principles or rules which warrant amending or even abandoning part of the existing law. “Inclusive” legal positivists temper this by holding that the judicial duty and authorization to depart from existing law by applying moral rules or principles is restricted to those classes of case where an existing social-fact sourced legal rule directs the court do so; the effect of such a directive, it is said, is to include within the legal system the moral rules or principles (if any) thus pointed to. Natural law theory concurs with Raz and Gardner in rejecting the inclusivist restriction as ungrounded, but dissents from them in holding (as Dworkin does too: Dworkin 1978, 47) that any moral rule or principle which a court is bound to apply (or reasonably can apply), precisely as a court, can reasonably be counted or acknowledged as a law, i.e., as a rule or principle which should be considered already part of our law. Against positivists generally, it holds that (i) little or nothing turns on whether or not moral principles binding on courts precisely as courts should be called part of our law; but (ii) if something does turn on the name—if, for example, it be recalled that courts cannot “take judicial notice” of any rule or principle not “part of our law” (and so, as in respect of rules of foreign law, have to hear evidence of the rule’s existence and content)—it is sounder to say that judicially applicable moral rules and principles (unlike applicable foreign law) are ipso iure (i.e., precisely as morally and judicially applicable) rules of law. Such rules belong to the ius gentium portion of our law. Does this amount to acknowledging that natural law theory is significantly less concerned than contemporary legal positivist theories to establish the precise boundaries and content of the social-fact sourced (posited, purely positive) law of our community? Not really. For (i) contemporary legal positivist theories have abandoned the thesis of “classical” legal positivists such as Bentham that judges and citizens alike should (as a matter of political-moral obligation) comply with the positive law of their community: their treatises or essays on legal theory explicitly or implicitly commend to judges as much as citizens the Hartian “This is law; but it is too iniquitous to be applied or obeyed” (Hart 1961, 203; 1994, 208) rather than the Benthamite “Under a government of laws … obey punctually and … censure freely” (Bentham 1776); so the concern of

Dec 4, 2019 — UNITED STATE CONFERE ENCE OF SATHOLIC BISHOP Home Topics News Departments Bible Catechism Readings Movies Bookstore Bishops Dioceses Pro-Life Activities Search JUSTICE, MERCY AND CAPITAL PUNISHMENT By the Most Reverend Charles J. Chaput, O.F.M. Cap. "For my thoughts are not your thoughts; neither are your ways my ways, says the Lord" (Is 55:8). ACTIONS MATTER GO Writing about forgiveness can be easy. Encouraging other people to forgive can be easy. But when it comes our own turn to forgive – forgiving another person who has wounded us, stolen from us, humiliated us, destroyed some precious part of our life that we lose forever - forgiveness is never easy. Cathlynn Morse knows this firsthand. She shared her story with me in a note this past March, timed unintentionally but almost perfectly to the 10th anniversary of Pope John Paul II's great encyclical The Gospel of Life. Dear Archbishop: My son died on June 23, 2002, murdered by a stranger at a party. My boy Christopher was 21 years old - exactly one month before his 22nd birthday - and he was a Christian. Chris was weaponless and tried to talk a gang member with a gun out of shooting his friends. My son was shot directly in the heart. As he bled out, I believe that Jesus was entering into him: "Greater love has no man than he lay down his life for his friends." This event happened in Anaheim, California. I was confirmed in the Catholic Church at St. John the Evangelist in Loveland in April 2003 after more than two years of reading on Catholic spirituality, attending retreats and completing the journey of RCIA. My faith and the spiritual connection I feel toward Mary and the Church have kept me going during my darkest moments since Chris' murder. I have one surviving son, Andre, who is 25 and still lives in California with his wife. I pray for his conversion to Christianity daily. Since the age of 14, when I began to understand Jesus and His teaching of love in the Gospels more deeply, I have not believed in capital punishment or war, though I do understand the Church's definition of a justifiable war. I believe in the sacredness of all life. Even now I pray for the man who murdered my son. I am not perfect; I have committed murder myself through abortion as a young woman, so how can I now throw stones against this man? I recently attended a retreat for women who have had abortions that helped me to ask for forgiveness, and helped me to forgive myself. The legal system does not always work. The authorities have not filed charges against the man who murdered my son because he is already in prison for a similar crime, serving 15 years to life, though it is very clear to the police and District Attorney that my son was murdered. It is hard for me to accept this as it would bring a sense of closure for me, but I am working on it. My sons are biracial, and this would be considered a "black on black" crime, which I also feel has influenced their decision. My belief that all life is sacred has not changed. I do not believe that the death sentence is one of society's legitimate choices. I feel blessed that our bishops speak out against capital punishment; it reminds me why I am grateful I became a Catholic. I am someone who has been directly affected by violence in my life, specifically the violence of murder. But my faith in a loving and forgiving God tells me capital punishment is morally wrong. Thank you for the witness of the Church. One of your flock, Cathlynn Morse Loveland, Colorado I've read and reread Cathlynn's letter many times since receiving it. She reminds us all that mercy is never the work of a coward. It is always the mark of the strong. And while Cathlynn shares her experience more openly than some other parents with similar stories, she is by no means alone. Many parents, spouses and friends of murder victims have discovered through their own loss and suffering that violence, even in the name of justice, too often begets more violence. Cathlynn Morse, the mother of a murdered son, wants the death penalty to end. Believing Catholics around the country, of every political party, need to work together to make that happen. The "sanctity of the human person" is a powerful and true idea built on powerful and true words. But ultimately, words are cheap. Actions matter. The moment to act is now. It's time to end capital punishment – now. THE FAILURE OF CAPITAL PUNISHMENT On the surface, the case for capital punishment can seem persuasive. Most people live honestly, act decently and want communities governed by justice – for both the innocent and the guilty. Decent people understandably fear the violence in society. They need to defend their children and themselves. The death penalty has a biblical quality of balance: grievous punishment for grievous crime. Many good people see it as a deterrent to grave evil; and even when the deterrent fails, they reason, at least it can bring justice and emotional closure for the relatives of murder victims. This is a powerful argument, especially in light of the brutality in our daily headlines. But it's wrong, and we need to turn away from it - not only for the sake of the convicted criminal whose life hangs in the balance, but also to protect our own God-given human dignity. The reasons are simple. The evidence against capital punishment clearly shows that it doesn't work as a deterrent – but let's imagine it does. The evidence strongly suggests that innocent people are sometimes convicted and executed; that our legal system discriminates against minorities and the poor; and that defendants in many states get disastrous legal counsel unless they can afford otherwise. All these things seem to be true - but let's ignore them. Instead, let's assume that a defendant is genuinely guilty of a brutal and premeditated murder; that he or she gets excellent legal counsel with correct due process; and that a fair jury convicts our defendant after careful and intelligent deliberation. Killing the guilty is still the wrong choice for a civilized nation. Why? It accomplishes nothing. It does not bring back or even honor the dead. It does not ennoble the living. And while it may satisfy society's anger for awhile, it cannot even release the murder victim's loved ones from their sorrow. Only forgiveness can do that. What the death penalty does achieve is closure through bloodletting and violence against violence which not really closure at all, because murder will continue as long as humans sin, and capital punishment can never, by its nature, strike at murder's root. Only love can do that. Executions in Texas now average more than one a month. Ponder that through the eyes of a young person reading the newspaper. Is this how we define ourselves as a God-fearing people? Is this really a fitting monument to murder victims? In “sending a signal” to would-be murderers, do we realize that we are also teaching a message of state-endorsed violence to our own children? The reality of any homicide is heart-breaking beyond words. We cannot presume to understand the deep and bitter personal wounds suffered by those who lose their loved ones through murder. As a people, we must never allow ourselves the luxury of forgetting the injustice done to victims of murder who cannot speak for themselves - or our obligation to bring the guilty to full accounting. But as Jesus showed again and again by His words and in His actions, the only true road to justice passes through mercy. Justice cannot be served by more violence. In the world of 2005, capital punishment has become just another narcotic we Americans use to ease other, much deeper anxieties about the direction of our culture. Executions may take away some of the symptoms for a time (living, human “symptoms” who have names and their own stories before God), but the underlying illness – today's contempt for human life – remains and grows worse. In Genesis 4:10-16, humanity's first murderer - Cain, the man who brought bloodletting into the world - was spared by the God of justice. We should remember that. God's ways are not our ways; they are wiser and better. God's heart, unlike ours, is driven by love, not anger. A culture ultimately defines its moral character by the value it places on each human life, particularly those lives that seem most burdensome, inconsequential or unworthy. Violent criminals present an especially harsh moral challenge for us, because their own cruelty has forced them to the margins of society. Recognizing a criminal's humanity is bitterly difficult when our hearts are clouded by pain. But the same needle that poisons the killer in every state execution also poisons us as a culture. Repaying cruelty with cruelty does not equate to justice. WHAT THE CHURCH TEACHES AND WHY Catholic teaching on the death penalty is best understood by viewing it through two lenses: what it is, and what it is not. The Church's critique of capital punishment is not an evasion of justice. Victims and their survivors have a right to redress, and the state has a right to enforce that redress and impose grave punishment for grave crimes. It is not an absolute rejection of lethal force by the state. The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity.It is not an idolatry of individual rights – in this case, the rights of the murderer. Catholic social teaching rests on two equal pillars: the dignity of the individual person, and the common good. The right to life of the convicted murderer must be balanced against society's right to justice and security. Finally, it is not a false equation of related but distinct issues. Catholic teaching on euthanasia, the death penalty, war, genocide and abortion are rooted in the same concern for the sanctity of the human person. But these different issues do not all have the same gravity or moral content. They are not equivalent. War can sometimes be legitimate as a form of self-defense. The same can apply, in extraordinary circumstances, to the death penalty. But euthanasia is always an inexcusable attack on the weak. Genocide is always the premeditated murder of entire groups of people. And abortion is always a deliberate assault on a defenseless and innocent unborn child. It can never be justified. It is always - and intrinsically – gravely wrong. What Catholic teaching on the death penalty does involve is this: a call to set aside unnecessary violence, including violence by the state, in the name of human dignity and the building of a culture of life. In the wake of the bloodiest century in history, the Church invites us to recover our own humanity, choosing God's higher road of restraint and mercy instead of state-sanctioned killing that implicates all of us as citizens. The Catechism of the Catholic Church explains it in these words: If "non-lethal means are sufficient to defend and protect people's safety from the aggressor [i.e., the convicted murderer], authority [should] limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person" (2267). John Paul II, writing in The Gospel of Life, stressed that “the nature and extent of the punishment [for capital crimes] must be carefully evaluated and decided upon, and ought not to 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. Today however, as a result of steady improvements to the organization of the penal system, such cases are very rare, if not practically non-existent" (no. 56). In modern industrialized states, killing convicted murderers adds nothing to anyone's safety. It is an excess. It cannot be justified except in the most extraordinary conditions. Moreover, for John Paul II, the punishment of any crime should not only seek to redress wrong and protect society. It should also encourage the possibility of repentance, restitution and rehabilitation on the part of the criminal. Execution removes that hope. THE ROAD AHEAD Government has an obligation to embody the highest ideals of a people. As a free people, Americans are better, more decent and more humane than the needless executions we carry out every week. We're better than the dozens of needless executions we plan to carry out in the months ahead. To their credit, more and more Catholics understand this. The Zogby Poll released in March 2005, showing a sharp drop in Catholic support for the death penalty – fewer than 50 percent now back it - is a great sign of hope. Poll results also show, importantly, that Catholic support for the death penalty decreases with regular church attendance. The more active Catholics become in their faith, the more committed they become to the sanctity of human life at every stage, and the more open they are to Church teaching against the death penalty. This should surprise no one. Much the same pattern showed itself in the 2004 elections, with committed Catholics tending to reject "pro-choice" evasions on the abortion issue. In January 2003, the outgoing governor of Illinois took the extraordinary step of pardoning four death row inmates outright and commuting all of the remaining 167 inmates to terms of life imprisonment or less. He explained his actions by saying: "My goal was to stop innocent people [from] being murdered by the state. We almost executed 12 [or] 13 innocent people. We had a system that didn't work."

Sep 5, 2019 — How should Christians approach important contemporary issues like war, race, creation care, gender, and politics?Christians in every culture are confronted with social trends and moral questions that can be difficult to navigate. But, the Bible often doesn't speak directly to such issues. Even when it does, it can be confusing to know how best to apply the biblical teaching.In Cultural Engagement: A Crash Course in Contemporary Issues authors Joshua D. Chatraw and Karen Swallow Prior first offer a broadly accessible framework for cultural engagement and then explore specific hot topics in current Western culture including:SexualityGender RolesHuman Life and Reproduction TechnologyImmigration and RaceCreation and Creature CarePoliticsWorkArtsWar, Weapons, and Capital PunishmentFeaturing contributions from over forty top thinkers, proponents of various views on the specific topics present their approaches in their own words, providing readers an opportunity to fairly consider options.Unique in how it addresses both big-picture questions about cultural engagement and pressing current issues, Cultural Engagement provides a thorough and broad introduction useful for students, professors, pastors, college ministers, and any believer wanting to more effectively exercise their faith in the public square.

Aug 20, 2019 — Speech In Favor of Capital Punishment, a Essay by John Stuart Mill.

Jun 1, 2019 — Germain Grisez’s philosophical argument for respecting human life has been developed by fellow new natural law (NNL) theorists and applied to a range of lethal actions, for its conclusion is vast: intending the death of any human being as a means or an end is wrong in itself. For some Thomists, the NNL view on killing is both lax and rigorist: They consider it lax because its narrow criterion for what is “intended” leaves out some acts, especially ones related to abortion, that the critics consider murder. And they consider the NNL view rigorist insofar as it apparently rules out the death penalty, contrary to the Thomistic tradition and perhaps even heretically. However, the most salient philosophical arguments for exceptions to the principle against intending anyone’s death are weaker than the case for any given premise of the contrary NNL argument. Nevertheless, some NNL theorists’ arguments on life are unsound, some can be defended better than they have been, and some nonphilosophical objections based on theological authority require more exploration.