The Death Penalty and Docility
BY Mark Shea
| Posted 10/7/11 at 1:00 AM
The general approach the Church asks of us in weighing her teaching is “docility”. This is not a word that sits well with most of us, because it calls to mind images of sheep quietly going to be slaughtered, uttering not a peep of protest or independent thought. It is from poor notions of docility that you get stories of people who sat on their hands when they knew about priestly abuse, or bizarre notions that if the Pope says black is white then faithful Catholics must deny the evidence of their senses and say the same. That is not what the Church means by docility, of course, but it is what many people think docility means.
In fact, docility means something much more like “being willing to give the Church the benefit of the doubt and trying to think with her”. But in our kneejerk age of ideological reaction, this is often extremely difficult, particularly when the Church touches close to something that is very important to our tribal group. So, for instance, many people on the Left have a very difficult time sitting still to listen to the Church’s quite nuanced and sympathetic approach to the question of homosexuality. No sooner does the technical language of “intrinsically disordered” get spoken than the shouting begins: “Who are you calling ‘disordered’?” (as though the Church is offering a medical diagnosis). Nobody is interested in trying to understand what the Church is actually saying because they are too invested in shouting her down.
I wish I could say this is only an issue for the Pelvic Left, but it is also often the case for the Death Penalty Right too. I remarked the other day that those who advocate the use of the death penalty beyond the absolute bare minimum times when it is truly necessary (meaning, in First World Countries, basically never) are, in fact, dissenting from the guidance of the Church. I noted that such dissent is like dissent from the Church on artificial contraception.
A reader repied:
Those who do not agree with abolishing the death penalty are not dissenters, despite your insistence in proclaiming so. You are not the CDF. The CDF says those who differ on their opinion on this matter are not dissenters. Quit misleading fellow Catholics and admit you were wrong when you proclaimed, “So the Magisterium–that would be the teaching office of the Church founded by Jesus Christ to conserve and articulate the Tradition–urges minimal use of the death penalty with an eye toward abolishing wherever possible. That is the teaching of the Church and those who are at war with this teaching are, in fact, dissenting Catholic every bit as much as those who are at war with the Church’s teaching on contraception.” That statement is untrue, and if you insist on sticking to that statement then you are the one making claims that Church herself has never made. Contraception deals with an intrinsic evil which goes against the natural law. This is not the same with capital punishment. The CDF said so.
This means that 1. You do not understand the faith as you claim and therefore have made an error and have mislead people into believing something the Church has never taught, or 2. You do understand that you have gone beyond Church teaching and yet insist on misleading people by your private proclamation. Which is it going to be?
There are a number of things to note here. The first is the misunderstanding of what “dissent” means. My reader seems to think that “dissent” means disagreement the Church on matters of grave and intrinsic immorality, like abortion or contraception. But in fact, “dissent” means “disgreement with the Church on any matter of faith or morals”. If the Church says, “Modesty is good and immodesty is sinful” and you dissent from this, you are a dissenter on a matter of morals. If you differ from what some cleric happens to think about how to apply this teaching, you are not necessarily a dissenter at all. So, we are bound to agree about the Church’s general teaching on modesty, but not necessarily with how that might be applied. The Council of Trent, drawing on a sound principle of Catholic moral teaching about modesty, decided to (foolishly) apply a strict interpretation of it to Michaelangelo’s “Last Judgment” and order that clothes be painted on to some of the figures. Catholics who actually know about art should have been consulted and a Catholic who rolls his eyes at this dumb application is not “dissenting” but merely has a different prudential idea about what is and is not immodest.
Similar thing obtain regarding the death penalty. The Church teaches this:
In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person”. Evangelium Vitae 56
To reject that by, say, advocating that we need to execute as many capital criminals as we can, is to dissent from Church teaching concerning the question of whether public authority must limit itself to bloodless means of punishment as much as possible.
Now there are two separate issues at work here.
The first is whether the Magisterium has the competence to develop the Church’s teaching to restrict the death penalty to absolute necessity. If you disagree with that, you are dissenting from Church teaching.
The second is about whether the Magisterium can err in the question of whether it is really technologically possible to find bloodless ways to keep prisoners from killing again. If you say that, you are not in dissent and you may, in fact, be doing the Church a favor by informing her teachers of information outside their field of competence. Of course, that assumes you know what you are talking about and not just making up rubbish to support your belief in the death penalty. The point is, being a bishop or a pope does not grant somebody magical understanding of corrections facilities any more than it grants him a degree in art appreciation.
With respect to the first question, the answer is obvious: the Magisterium has the competence to develop the Tradition. That’s the Magisterium’s job: to conserve and develop the Tradition. That means that Some Guy with a Keyboard cannot trump the Church’s developed teaching by appeals to earlier articulations of Church teaching, as though such teaching is capable of overturning the developed teaching, or as though JPII and the present Magisterium are guilty of a coup d’etat against some previous “real” Magisterium preferred by the Guy with a Keyboard. We cannot posit a theory that the present Magisterium is not the Magisterium of the Church. Because that is, in the final analysis, to posit that the Church has split into two Churches: pre- and post- Vatican II and that one of these two Churches trumps the other (a favorite trope among both Reactionary *and* Progressive Dissenters).
Split Church ecclesiology is not Catholic ecclesiology. I do not believe in a discontinuous post-Vatican II Church that destroyed and replaced the pre-Vatican II Church. So I do not believe that the Magisterium’s move to limit the death penalty to absolute bare necessity is a “revolution” but that it is rather a perfectly understandable development of the Church’s teaching on human dignity, applied to a world that is all too ready to kill and destroy human dignity. One cannot argue that the Church is not competent to say that “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means”. She has every right to make that moral and prudent call. Our first duty as Catholics is to be docile to that teaching, not to perpetually look for loopholes. Kneejerk claims that the Church is “contradicting herself” seem to me to be analogous to kneejerk claims by first century Judaizers that the Church was “contradicting” Moses and the prophets by no longer binding members to keeping kosher, being circumcised, or wearing special clothing. Precisely what the Magisterium does is not just conserve, but develop the Tradition. The Magisterium, in the case of the death penalty, conserves both the Church’s teaching on the dignity of the human person and the state’s authority to inflict the death penalty (in theory). However, in obedience to the fact that the law was made for man and not man for the law, the Church concludes that it is better to let the capital criminal live in hope of his redemption than to sacrifice him to a legal theory of retributive justice—particularly in an era where Caesar has proven himself eager to kill millions. Death Penalty advocates are, at the end of the day, faced with the fact that the Church speaks in the imperative here: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means”.
Some will attempt to cite then-Cardinal Ratzinger’s remarks from a private letter as a sort of trump card to all this, trying to turn those remarks into a complete license to feel free to ignore everything the Church says about the death penalty:
Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.
I agree with every word he says. That’s because what he says is not, “...and so we can safely conclude that John Paul II does not have the competence to say, ‘It is clear that [punishment] ought not 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.’” Rather, Ratzinger says that you can disagree about when it is prudent and practical to apply the death penalty. You cannot disagree on the Pope’s insistence that bloodless means should be sought wherever possible. That’s because the former question is a matter of legitimate diversity while the latter is a statement of developed doctrine to which we are bound to assent.
In short, the notion that there can be legitimate diversity of opinion touching the death penalty is not the same as the notion that all diversity of opinion touching the death penalty is ipso facto legitimate. The same holds true in many other areas. The Church teaches, for instance, that there is legitimate diversity of opinion on the pastoral care of homosexual persons. It does not follow from this that there is legitimate diversity of opinion on whether homosexual persons can engage in homosexual relations.
Tom Kreitzberg hits this radically defective “Cdl. Ratzinger says its okay to ignore teaching on the Death Penalty” reading on the head when he points out:
There is a prudential judgment expressed in EV, and repeated in the CCC, to which Catholics are not bound.
But there is also a doctrinal teaching: “It is clear that [punishment] ought not 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.”
The failure to distinguish the doctrine from its conditional application has caused a lot of people to reject a doctrine proposed to the faithful in a papal encyclical.
And the idea that the Secretary of the CDF was suggesting (even in a private letter that has absolutely no doctrinal weight) that Catholics are free to ignore a papal teaching is untenable.
This brings us to the second issue: “But,” says an honest DP supporter, “the Church’s teaching is predicated on an ‘if’. “If bloodless means are sufficient…” True enough. One can, of course, argue from some specialized knowledge one may possess that we do not have the technical capacity to make minimization or abolition of the death penalty feasible. One may, for instance, be a corrections facilities officer who can attest to the technological impossibility of keeping innocents safe without the death penalty (specialized knowledge I highly doubt the average comboxer who dissents from Church teaching on the Death penalty possesses). Should such watertight arguments emerge for the technological (not the moral) impossibility of abolishing the death penalty, then the Church would, of course be obliged to acknowledge that bloodless means do not exist and the lack of an “If” trigger could then be cited by Catholics as mitigating against the abolition of the death penalty.
But given that the death penalty is safely abolished and replaced by bloodless means of punishment in many parts of the world (while it is maintained with zeal primarily in such models of regard for human dignity as China, Iran, Iraq, Saudi Arabia—as well as here the US) it’s a tough sell to say that it is utterly impossible to find bloodless means to deal with grave criminals. It’s done every day. And therefore Catholics who aim to be docile to the Church’s teaching are, I think, compelled to confront and assent to the teaching laid out before us, not merely by two Popes, but by virtually all the bishops in the world. Whether the death penalty is intrinsically immoral has nothing to do with the question of whether we should obey the Church’s call to minimize and, where possible, abolish it. We are not called by Christ to be docile Holy Church only when Simon Peter Says in an ex cathedra statement. We are called to be docile to Holy Church.
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