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Jew David Bentley Hart says that Christians set aside the Noahide prescription for the death penalty. The 7th Noahide Law demands non-Jews set up courts of "justice" to execute transgressors of the Noahide Laws. Not to maintain this commandment would come with the death penalty itself.
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Christians & the Death Penalty
There Is No Patron Saint of Executioners
November 16, 2017
I would be lying if I claimed that my initial approach to By Man Shall His Blood Be Shed was an unprejudiced one—I am firmly convinced that no Christian who truly understands his or her faith can possibly defend the practice of capital punishment—but I was not unwilling to give the book a fair hearing. My convictions on the matter may be fixed, but they are not always passionate. There have been various occasions over the years when I have found myself desiring the deaths of some especially vicious criminals, including two who casually murdered an exceptionally gentle friend of mine when I was in college. And I have never shed a tear over the Nazis executed by the Allies after the Second World War. I am quite able to be heartless toward the heartless. But this book would exhaust the ruthlessness of Torquemada.
I might have guessed that something was terribly amiss just from the title. There is nothing especially mysterious about it: it is more or less inevitable that any substantial attempt at a Christian defense of capital punishment will repeat two tediously persistent exegetical errors—a misuse of Genesis 9:6 (hence the title) and a misreading of Romans 13:1–7. But it makes some difference which of the two is accorded priority. If the latter, then in all likelihood the argument being made is merely that the death penalty is theologically licit; if the former, that it is morally necessary. And so it is in this case: the claim Feser and Bessette advance is not simply that Catholics may approve of capital punishment, but that they must, and that it actually borders on heresy not to do so. Needless to say, an assertion that bold requires a formidable array of corroborating evidence, and this Feser and Bessette fail to provide. What they have produced instead is relentlessly ill-conceived. Its arguments, philosophical and historical, are feeble. Its treatment of biblical texts is crude, its patristic scholarship careless. And all too often it exhibits a moral insensibility that is truly repellant.
This last is true even if one ignores the authors’ transparent attempts to coerce their readers’ emotions. Not that they admit to this: by their account, all they really want to do is “dissipate the fog of naïve sentimentality that too often prevails in contemporary discussions of capital punishment.” They certainly do not intend, they say, to appeal to irrational passions. Yet they devote an entire chapter to a revolting catalogue of particularly horrific “true crimes,” just to remind their readers how evil real evil can be. What could this possibly be other than an appeal to passion? Everyone already knows, and would surely stipulate, that the world is rife with human atrocities, and that their perpetrators certainly do not merit our mercy. Among principled opponents of the death penalty, very few could be accused of nurturing any tender illusions regarding the deeds or characters of violent criminals. Moreover, whenever one party to a debate dismisses the ethical concerns of the other side as “sentimental,” it is usually an indication of the former’s inferior moral imagination. And in the context of this discussion it is particularly revealing. To cultivate pity (or at least concern) for those who deserve no pity—even those justly condemned of monstrous evils—is not sentimentality but charity, the chief of all Christian virtues. It is a hard discipline, and usually evidence of a genuinely diligent conscience. It is also an extremely valuable intellectual hygiene. Compassion is a philosophical virtue, one that makes it possible to grasp truths invisible to the morally obtuse. The limits of moral imagination are also the limits of the capacity to reason well.
Feser and Bessette approach their topic from a variety of angles, but they are obviously on familiar ground only when they frame the issue in terms of natural law. And here at least they can presume that most believing Catholics will accept the general principle on which their arguments rely: that there exists an essential consonance between the natural and moral orders, inasmuch as both proceed from and manifest a single divine source of rational truth. But, as is often the case when natural-law reasoning is asked to bear more weight than it can, the arguments Feser and Bessette make are mostly blank assertions masquerading as deductions of logic; they are precisely as persuasive or unpersuasive as the reader wants them to be. This is inevitable. Nature and natural reason may quite plausibly indicate a certain set of rational prohibitions, and beyond that a smaller set of rational responsibilities. But at the tertiary level of moral reasoning—that of assigning penalties for misdeeds—nature provides no scale of calculation except “common sense,” which is largely worthless. Thus, Feser and Bessette try to argue for certain natural goods accomplished by the principle of punishment as such, and then argue for the specific punishment of execution on the basis of a commonsensical principle of proportionality. It is all quite unconvincing.
But even if their reasoning were sound, it would be utterly irrelevant to a Christian view of reality. Let us grant, for argument’s sake, that the death penalty is indeed a just and proportionate response to willful murder. So what? That has never been the issue for Christians, for the simple reason that the Gospel does not admit the authority of proportional justice, as either a private or a public good. The whole of the Sermon on the Mount, for instance, is a shocking subversion of the entire idea. Christ repeatedly and explicitly forbids the application of such punishment, even when (as in the case of the adulterous woman) this means contradicting the explicit commands of the Law of Moses regarding public order and divinely ordained retribution. According to Paul, all who sin stand under a just sentence of death, but that sentence has been rescinded purely out of the unmerited grace of divine mercy. This is because the full wrath of the Law has been exhausted by Christ’s loving surrender to the Cross. Again and again, the New Testament demands of Christians that they exercise limitless forgiveness, no matter how grievous the wrong, even in legal and public settings. And it insists that, for the Christian, mercy always triumphs over judgment. In a very real sense, Christian morality is nothing but the conquest of proportional justice by the disproportion of divine love. So Feser and Bessette need to explain, before all else, why they imagine that Christians have any vested interest in the naturally just retribution for sin.
When they attempt to do this, however, they are wholly defeated by their lack of biblical and theological sophistication. I do not mean that they are merely unacquainted with certain recherché hermeneutical or dogmatic theories; I mean that they seem not even to be aware of the theology of the Apostle Paul. They appear not to know how fraught with difficulties and paradoxes the whole question of law, justice, penalty, and forgiveness is in the New Testament and early Christian thought.
Perhaps if they had availed themselves of the work of biblical scholars, rather than incessantly quoting the opinions of commentators no more aware of the texts’ ambiguities (and language) than they themselves are, they might at least have tempered the reckless assurance of their readings. At least, they might have avoided overly buoyant claims for notoriously dangerous verses—such as Genesis 9:6: “Whoso sheds the blood of man, by man shall his blood be shed; for God made man in his own image” (Revised Standard Version). Admittedly, this seems quite precise, but only if one neglects to quote the immediately preceding verses: “Every moving thing that lives shall be food for you.... Only you shall not eat flesh with its life, that is, its blood. For your lifeblood I will surely require a reckoning; of every beast I will require it and of man; of every man’s brother I will require the life of man” (RSV). It might, after all, seem to undercut the universal authority of a literal reading of the Noachide laws to take note of the equally firm dietary prescriptions included among them (I suspect that neither Feser or Bessette really believes that he imperils his soul by eating his roast beef au jus), or of the divine proprietary cultic claim on blood underpinning them. Feser and Bessette also call on Exodus 21 and Deuteronomy 19, but naturally they make no mention of, say, Leviticus 20, with its list of incredibly trivial capital crimes. But, once again, who cares? Jewish tradition always enfolded the Noachide prescriptions into the Law, as that small portion thereof of which gentiles were capable; and it is the wrath of the Law as a whole that is, according to Paul, set aside—even conquered—by Christ. As Paul says in Galatians, the Law is inherently defective, having always been communicated only by an angel, and then through a mere human intermediary.
It is when Feser and Bessette turn their eyes to the New Testament that their argument goes disastrously awry. Their principal response to Christ’s injunctions to unconditional forgiveness and against retaliation and judgment is simply to argue that he is speaking only of private rather than public morality. But such a distinction would have been wholly unintelligible in the context of first-century Judaea; Christ’s constant challenges were to the traditional applications of the Law, in which the personal, social, and jurisprudential were inseparable. As for the very clear rejection of proportional justice in the Sermon on the Mount, Feser and Bessette’s riposte is blandly to note that “Christ said in the very same sermon...that he had come ‘not to abolish the law and the prophets...but to fulfill them.’” They appear wholly unaware of the “redemptive irony” in Christ’s legal pronouncements—how he repeatedly “fulfills” the Law precisely by negating the literal understanding of its prohibitions and punishments.
And then there is Romans 13:1–7. It is amazing how much is often made of this really rather bland passage. It says very little, and in the original Greek far less than Feser and Bessette think. According to them, Paul’s words have been “traditionally understood as a straightforward affirmation of the right of the state to execute criminals.” This is false (despite the several misrepresentations of patristic sources they later produce). Even if it were true, however, it would constitute nothing more than an unfortunately prevalent error. The passage almost certainly says nothing about capital punishment at all. Feser and Bessette assume that when Paul writes that “[power] does not bear the sword in vain,” he is speaking of something like the Roman ius gladii, a provincial governor’s limited authority for pronouncing a death sentence. But the Greek word usually translated as “sword” in this passage is μάχαιρα, which was the name for a large dagger or short sword generally carried at the waist in a μάχαιροδέτης, a leather belt. Now, it is true that such a blade could be used to put someone to death; according to Acts 12, that was the means by which Herod had James the brother of Jesus killed. And Paul probably did use the word as a vague term for any sword. But, as a figure for the state’s power to kill, one would properly speak of “τὸ ξίφος”—“the sword”—wielded by an executioner. Thus, for example, Philostratus, when speaking of a magistrate empowered to pronounce the death sentence, describes him as “a judge bearing the sword,” “δικαστοῦ τὸ ξίφος ἔχοντος (Vitae Sophistorum I.25.31). Again, when Philostratus wants to indicate that Tigellinos possessed the same remit, he says that “Nero’s sword was under his power”: “ὑφ᾽ ᾧ τὸ ξίφος ἦν τοῦ Νέρωνος” (Vita Apollonii IV.42). When, by contrast, Paul speaks of the power that “bears the sword” (τὴν μάχαιραν φορεῖ), the phrase almost certainly refers to a μάχαιροφόρος—a word that usually meant a soldier but could also refer to a military policeman, civil guard, or taxation enforcement officer. This also explains the phrase “οὐ…εἰκῇ” (“not in vain”—or, better, “not as a vanity”). It is rather as if a modern writer were to say, “A policeman doesn’t carry a gun just for show (so, if you create disorder, do not be surprised if he uses it).” Obviously, the force used by civil authority can be lethal; but that is something quite different from capital punishment. Knowing as we do from Suetonius of the expulsion of Jews from Rome by Claudius in response to the “Chrestus” riots, and from Tacitus of the public disorder in Rome over taxes under Nero, it is not difficult to imagine the sort of recent events to which Paul was reacting. And yet even that does not matter much. Whatever Paul was referring to, this passage has absolutely no prescriptive content when it comes to how Christians should govern society (a possibility that never even occurred to Paul). So, yes, God may have providentially used the powers ceded to the pagan authorities of the ancient world to discourage sin, but that has no bearing on the question of how Christians should conduct themselves in positions of authority. And no one in the early church imagined that it did.
This brings me to Feser and Bessette’s treatment of the Church Fathers. It is painfully obvious that neither of them bothered to read the patristic texts they cite; they merely went searching for anything that looked like a proof text, no matter how tenuous or fragmentary, and without paying even cursory attention to context. They claim, for instance, that in the Contra Celsum Origen affirmed the right of the state to execute criminals, but when one consults the passage they cite one finds nothing more than a rueful acknowledgement of the power of the state to punish crime with force. The same is true of their citation from Gregory of Nazianzus. They also treat an elliptical turn of phrase in Athenagoras as a declaration of the validity of capital punishment rather than, as is actually the case, a mere impartial recognition of its reality. Perhaps the greatest howler is a quotation they extract from Origen’s fourteenth homily on Leviticus concerning the way in which certain sins might be absolved by penal death. They fail to notice that Origen’s tortured reflections on the literal reading of the seemingly bizarre list of capital crimes in Leviticus 20 is prompted by his certainty that capital punishment is forbidden by the law of Christ. In fact, even when Feser and Bessette notice in passing that the Fathers they mention all seem to advise against use of the death penalty, they fail to grasp that this is not merely a matter of personal predilection. Once again, the question of whether the death penalty is in some sense “just” is wholly irrelevant in the context of Christian belief. As far as the Fathers were concerned, all of us merit death. This does not mean that they believed Christians are permitted to impose such a penalty.
The general view of the early Church Fathers was essentially that of Ambrose: the Sermon on the Mount’s prohibitions of retaliation are absolutely binding on Christians, in both the private and the public spheres, for on the cross Christ at once perfected the refusal of violence and exhausted the Law’s wrath. It is simply a fact of history that the more or less ubiquitous conviction of the earliest Christians—those whose communities most immediately arose from the church of the Apostles—was that Christ’s command not to judge others was more than a mere prohibition of private prejudice. For this reason, Christians were not supposed to serve as soldiers or magistrates. Gibbon quite accurately described the pagan view of the Christians’ refusal to serve as an “indolent” and “even criminal” dereliction, which could be ascribed only to “pusillanimity” on their part (a judgment that Gibbon plainly shared). According to the ancient document called the Apostolic Tradition, no one intending to become a soldier could be received into the church, and those who had been converted while already in the army were forbidden to carry out even a properly pronounced order of execution. Arnobius clearly stated that Christians were not allowed to impose the death penalty at all, even when it was perfectly just. Athenagoras stated that the killing even of those guilty of capital offenses must be repugnant to Christians, as they are obliged to view all killing of humans as a pollution of the soul. Cyprian too said that Christians believe that the innocent may never slay the guilty. Tertullian not only repeatedly asserted that Christians must not kill other humans for any reason, but also claimed that when Christ disarmed Peter in Gethsemane he effectively stripped all soldiers of their arms, and numbered the office of executioner among occupations deserving of damnation. Origen unequivocally stated that the law of Christ forbids all killing, and opined that God providentially allowed the fall of the Jewish kingdom in order to end the practice of capital punishment among his people. True, in later centuries, under a Christian empire, the greatest of the Church Fathers acknowledged that the state had the right or power to sentence men to death; yet they repeatedly entreated the authorities to refrain from doing so, and lavishly praised them when they did refrain, because they still believed the use of capital punishment to be wrong in principle for Christians
Feser and Bessette are on firmer ground, naturally, when they shift their attention from the patristic epochs to the late Middle Ages, but this serves more to weaken than to substantiate their case. For one thing, it is a necessarily abrupt shift, omitting mention of the roughly eight intervening centuries precisely because they offer so little in the way of good evidence for their position. But they employ even the late medieval material quite indiscriminately. They are perfectly content to draw support from arguments made in support of the execution of heretics—such as those of Thomas Aquinas, who also affirmed the propriety of executing thieves and counterfeiters. They even take Innocent III’s decision to permit the execution of unregenerate Waldensians as proof that the legitimacy of capital punishment is “a matter of Catholic orthodoxy” (emphasis theirs). They also draw support from Leo X’s declaration in Exsurge domine (1520) that the burning of heretics is in keeping with the will of the Holy Spirit, and from the brutal penal practices of the Papal States in the nineteenth century. Quite apart from their apparent ignorance of how very little weight the Catholic magisterium accords such precedents, it is amazing how much of their case rests upon the legitimacy of the most barbaric evils perpetrated during what all morally sane Catholics recognize as a period of profound and tragic institutional decadence.
Perhaps, though, one needs to ask: Do Feser and Bessette believe it theologically correct to burn heretics? Does that accord, in their minds, with all their earlier talk of proportional justice? If not, then no sound principle can be abstracted from arguments in defense of an inherently wicked practice; all of it would be fruit of the poisoned tree. But if they do believe it right to burn heretics, then they have essentially excused themselves from civilized Christian discourse. After all, the history of “holy murder” within Christian culture is well established. In the earliest centuries of the church, the killing of religious dissidents was rightly regarded by Christians as an abominable pagan practice. When a Roman emperor (or pretender) executed the Spanish bishop Priscillian for heresy in 385, Christians as eminent as St. Martin of Tours and St. Ambrose of Milan condemned it as a return to heathen brutality. Throughout the so-called “Dark Ages,” in fact, the approved penalty for obdurate heresy was simply excommunication. True, in the twelfth and thirteenth centuries heresy again became a capital crime throughout Western Europe; but even then, it was the state rather than the church that led the way. When the Holy Roman Emperor Henry III hanged a number of Cathars in 1051, he was reprimanded by the bishop in Liège. Admittedly, by the time his later successor Frederick II (1194–1250) ordered the surrender of all convicted heretics to the secular arm to be burned, the institutional church contemptibly complied. And the Papal States, as Feser and Bessette gleefully note, were executing a wide variety of criminals well into the nineteenth century. All of which is quite a tragic betrayal of Christian principles, as every pope in living memory has been happy to concede.
It is not clear why Feser and Bessette imagine that the past legal practices of the church or its political adjuncts oblige modern Catholics to accept whatever rationales, however loathsome, those practices might have embodied. None of them rested on dogmatic principles. And, anyway, if Newman was right—and believing Catholics had better hope he was, for the sake of the intelligibility of their faith—it is not only doctrine but also the church’s understanding of its teachings that is clarified over time by the Spirit. There may be slight missteps, of course, but the general view of development tacitly taken by the magisterium is that there are no violent retreats from clearly stated new discoveries; there is only a relentless narrowing and intensification of focus. This suggests, among other things, that the teachings of the magisterium under the current pontificate are probably more trustworthy than those under the pontificate of, say, Leo X.
Feser and Bessette are clearly struggling against the inexorable course magisterial pronouncements on this matter have been taking for decades. They twist and turn in every direction trying to evade or relativize the current teachings of the Catholic Church, and acknowledge the authority of those teachings only with extreme qualifications. They do their damnedest to suggest that all of it constitutes no more than a prudential judgment regarding current social circumstances. To no avail. Admittedly, the Catholic Church has never committed itself doctrinally to the abolition of the death penalty, and it is true that magisterial interpretations of doctrine are somewhat fluid and of less than dogmatic authority. Still, in the eyes of the Catholic Church, the explicit teaching of the magisterium on matters of faith and morals is universally binding on the consciences of the faithful. And as regards this question that teaching is clearly stated in the Catechism: the death penalty may be permissible solely “if this is the only possible way of effectively defending human lives against the unjust aggressor,” though today, given the facilities available to the state for detaining criminals, such cases “are very rare, if not practically nonexistent” (2267). That is quite unambiguous. The only time execution may be acceptable is when it is otherwise impossible to prevent a criminal from killing again. That means that all the other arguments advanced by Feser and Bessette have already been decisively ruled out by the magisterium as morally insufficient; and this is not going to change. If any position, then, is to be regarded as contrary to Catholic orthodoxy, it is theirs.
All that remains standing among the ruins left behind by this book’s collision with the Catechism is the one practical argument the magisterium still permits—that perhaps, without the imposition of the death penalty in certain cases, innocent lives will be endangered. Alas, what Feser and Bessette cannot establish is that, even were that true, the number of the innocent imperiled by the abolition of the death penalty would be greater than the number imperiled by its exercise. They make all the standard arguments for how the death penalty discourages violent crime, and offer the usual sorts of statistics and “commonsensical” arguments used to support this claim. Unfortunately, anyone who has followed debates on this issue over the years knows that there are statistics and commonsensical arguments for exactly the opposite position that are at least as convincing. It might help Feser and Bessette’s case if murder rates in, say, Stockholm were to exceed those in Dallas, but as yet that has not happened, and none of the evidence they do have at their disposal is especially compelling. That leaves only the concern that violent criminals, if left alive, might escape confinement. This has occasionally happened, they argue, and so concern for public safety dictates that the dangerous murderers be put down. Since, however, it is always possible to improve methods of incarceration and the transport of prisoners, a less sanguinary solution is within reach.
The most disturbing aspect of this part of Feser and Bessette’s argument is their response to the issue of false convictions. They acknowledge that mistaken verdicts will on occasion be handed down in capital cases, but think the margin of error slight enough to be acceptable. After all, they reason, we drive cars and vaccinate our children, even though both practices inevitably claim a negligible number of innocent victims. These analogies are ridiculous for what should be obvious reasons—the vastly differing statistical orders of magnitude, or the element of human intentionality involved, or the practicability of available alternatives, and so forth. And then too there is the inconvenient proof amassed in recent years of just how high the rate of jurisprudential error tends to be. DNA testing has repeatedly proved that a great many cases in which the evidence had appeared irrefutable (some involving numerous eyewitness testimonies) have resulted in convictions of the innocent. We may therefore anticipate that, especially in cases where no DNA evidence is collected, there will continue to be miscarriages of justice in quantities far greater than the vanishingly small number of violent criminals who might escape confinement, especially as penal technology continues to evolve.
One can drag such debates out interminably, but all of them remain largely irrelevant to the essential question. Even if it would make the world a much safer place to kill off as many violent criminals as possible—and I think we can assume that it would—that still would not mean that it is something Christians are permitted to do. On the whole, the Gospel is probably not a very good formula for protecting public safety. And, really, the question of what Christian commitment entails is not one that Feser and Bessette appear to be well equipped to adjudicate.
The most appalling aspect of this book is finally not its shoddy reasoning or theological ignorance, but its sheer moral coarseness. For example, Feser and Bessette twice adduce the career of Giovanni Battista Bugatti—the official executioner of the Papal States who from 1796 to 1865 executed 516 convicted criminals, by decapitating them with an axe or a guillotine, or slitting their throats, or crushing their heads with a mallet, or having them drawn and quartered—as some sort of proof of the Catholic Church’s commitment to the essential justice of the death penalty. On neither occasion do they express the slightest alarm at, or disapproval of, either the number or the savagery of these killings. This is typical of the entire tone of the book: every page exudes an atmosphere of almost numbing callousness. There are times when a faint touch of false tenderness on the authors’ part would have been, at least, decorous.
In the end, Feser and Bessette offer a very odd and unsettling picture of Christianity, rather like a familiar and beautiful painting monstrously distorted in a carnival mirror—the lovely rendered hideous, the exquisite grotesque. But perhaps this is the burden of Christian history’s contradictions. We know how all this happened, after all. In the earliest days of the faith, in those communities in which the long echo of the voice of the apostolic church was still audible, and through it the longer echo of the voice of Christ, baptized Christians understood themselves as having been called to a form of life radically unlike that of the fallen cosmos. They belonged to a kingdom not of this world, and were absolutely forbidden to take part in the orders of force by which the powers and principalities exercise their sway. They were required now to live by a law of charity so uncompromising that it might lead to their deaths and the deaths of many others. But that prolonged moment of apocalyptic liberty from the violence of history gradually faded. Christendom arose and ramified and assumed gigantic dimensions. Over the centuries the church and the fallen order from which it had initially offered an escape became inseparably intertwined, with consequences both good and ill. Then came Christendom’s collapse, again for both good and ill. I suppose it is inevitable that there should now be traditionalists who look back yearningly not so much to the cultural prevalence of Christian faith, nor even to the genuinely glorious achievements of Christian civilization, but rather to that grand and mighty institutional accommodation between Christ’s and Caesar’s realms, along with everything about it that was most inimical to the Gospel. If nothing else, a book of this sort has the salutary effect of reminding us just how pernicious that kind of nostalgia truly is. Happily, it too must fade. As the book of Hebrews says, the word of God is sharper than any sword, sharp enough to separate soul and spirit. Perhaps in the modern age it has been that word, operating secretly, that has so painfully but redemptively separated faith in Christ from the instruments of worldly power. Would that the separation were already complete. It may be that the last vestiges of Christendom will have to vanish entirely from human hearts before the long echo of Christ’s voice will become audible again in all its purity.