An excellent article from The Federalist.

An excerpt.

A recent Pew survey shows that a majority of Americans favor capital punishment, with Christians leading the way. It is not just Republican-leaning white evangelicals: a majority of American Catholics support the death penalty, despite the pope’s objections. Tradition seems to be on the side of the laity here, although in the interest of ecumenical harmony I shall not recount the details of the Catholic Magisterium’s previous enthusiasm for executions.

Nonetheless, last year there was a significant (by the standards of Catholic intellectual circles) dust-up over a book by Edward Feser and Joseph Bessette that offers a Catholic defense of capital punishment. Public Discourse published articles by E. Christian Brugger (1, 2) and Christopher Tollefsen (1, 2) that relied on the so-called new natural law theory to argue that capital punishment is intrinsically immoral. These essays, and Feser’s responses (1, 2, 3), have some Catholic inside-baseball elements, but their broader claims against the death penalty are meant to be binding for all Christians, and even for all rational persons.

Meanwhile, in Commonweal, which vies with the Jesuit magazine America to be the voice of left-wing Catholicism in this country, Orthodox theologian David Bentley Hart provided an alternative critique of capital punishment that reaches back to the early days of the church and Christian radicalism. These arguments are made in good faith, and merit engagement from those they seek to persuade, whether Catholic, Orthodox, or Protestant.

Thus, although a Protestant jumping into a Catholic or Orthodox theological debate is usually as welcome as a streaker running through a team’s scrimmage, I shall respond to their broad claims metaphorically dousing myself in orange paint and sprinting onto the field.

The Two Big Death Penalty Criticisms

There are two distinct, and largely incompatible, criticisms of the death penalty. The first, advanced by the new natural lawyers, is that moral reason shows the death penalty is unjust because it directly and intentionally harms the basic human good of life. The second, made by Hart, is that although the death penalty may accord with natural justice, Christians must live according to Christ’s radical teachings without any public-private distinction—Christians must forgo state violence and seek mercy for even the worst murderers.

Despite their differences, these arguments overlap in several significant ways. Both seek more than a unified Catholic (or Orthodox) teaching on capital punishment. The new natural lawyers present their case as one of philosophical reason, knowable by all rational persons regardless of religious belief. Hart makes his case to all Christians, asserting that “no Christian who truly understands his or her faith can possibly defend the practice of capital punishment.”

Those making such broad claims insulate themselves against directly engaging the merits of the death penalty. To effectively critique the new natural lawyers in a fashion they will acknowledge requires engaging with their entire system. This is a worthy project, but it is also a book-length one. Shorter critiques, such as this one, can only be partial and preliminary. Likewise, addressing Hart requires extended discussion of the relationship between Christ’s radical teachings and the responsibilities Christians in public office have—if Christians should be in government at all.

Both Hart and the new natural lawyers sidestep this question of responsibility, which explains why Augustine is largely absent from their contributions to the current debate. Yet they are undoubtedly familiar with Augustine’s consideration of a judge who, in ignorance, may bring the full brutal force of Roman law against the innocent, torturing and even condemning them.

He wrote, “If such darkness shrouds social life, will a wise judge take his seat on the bench or no? Beyond question he will. For human society, which he thinks it a wickedness to abandon, constrains him and compels him to this duty.” But while the judge may be guiltless (he injures from ignorance, not malice), his happiness will be marred by the “misery of these necessities” and if he is pious he will cry to God to be delivered from them.

This passage does not contain any definitive teaching that is binding on Catholics, let alone other Christians, nor does it directly address the death penalty. Indeed, its primary purpose was to illustrate the miseries of earthly life. Yet it introduces an axis of theological and philosophical reflection that Hart and the new natural lawyers have abandoned—that of responsibility and our duties to the necessities of our fellow men with whom we share this life.

Hart simply disavows such responsibilities if they conflict with what he takes to be Christ’s commands, writing that, “On the whole, the Gospel is probably not a very good formula for protecting public safety.” Likewise, the new natural lawyers dismiss any concern for the consequences of following the moral absolutes they believe their system provides. For example, during the Cold War, they insisted on unilateral nuclear disarmament even though they thought it would likely lead to worldwide communist tyranny. They have also argued that it is always wrong to lie, even to save Jews from the Nazis (their example, not mine).

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