The Death Penalty Kerfuffle

The Death Penalty Kerfuffle August 8, 2018

So there has been a lot of hysteria about the development of the Church’s teaching concerning a hoary and venerable institution that, up until practically yesterday, the Church had treated with tolerance and even spoken of favorably.

I speak, of course, of slavery.  Who has not heard the hue and cry from advocates of slavery demanding the Pope repent his arrogant declaration that slavery is gravely and intrinsically immoral? Here is the dirty deed this Dictator Pope has shamelessly promulgated: overturning 2000 years of Catholic tradition with the stroke of pen!

80. Reason attests that there are objects of the human act which are by their nature “incapable of being ordered” to God, because they radically contradict the good of the person made in his image. These are the acts which, in the Church’s moral tradition, have been termed “intrinsically evil” (intrinsece malum): they are such always and per se, in other words, on account of their very object, and quite apart from the ulterior intentions of the one acting and the circumstances. Consequently, without in the least denying the influence on morality exercised by circumstances and especially by intentions, the Church teaches that “there exist acts which per seand in themselves, independently of circumstances, are always seriously wrong by reason of their object”. The Second Vatican Council itself, in discussing the respect due to the human person, gives a number of examples of such acts: “Whatever is hostile to life itself, such as any kind of homicide, genocide, abortion, euthanasia and voluntary suicide; whatever violates the integrity of the human person, such as mutilation, physical and mental torture and attempts to coerce the spirit; whatever is offensive to human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution and trafficking in women and children; degrading conditions of work which treat labourers as mere instruments of profit, and not as free responsible persons: all these and the like are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer injustice, and they are a negation of the honour due to the Creator”.

A shameful insult to Catholic tradition!  No wonder everybody is up in arms!

What’s that you say?  Nobody is up in arms?

Well, if they are freaking out about the death penalty, they should be freaking out ten times more about this.

After all, Scripture treats slavery as a complete given. Although there is an undercurrent of hostility to slavery what with the entire story of the Exodus being about liberation from slavery, nonetheless the Old Testament has rules governing how to treat slaves, not how to abolish slavery. Why?  Because slavery is, in the biblical world, the universal norm of the human race for time immemorial, just as war is right down to the present.  The Old Testament hopes for a far off future when the slave is set free and swords are beaten into plowshares.  But it no more pushes for the abolition of slavery as a realistic goal than the abolition of war.  And why not?  After all, slavery is also seen as a just form of punishment (see the story of Noah cursing Ham, for instance, or the story of God’s just punishment of the house of David being sent into captivity in Babylon.  The same liberals who oppose the death penalty as unjust punishment also oppose the enslavement of the Jews by Nebuchadnezzar).

The New Testament likewise tells slaves to respect their masters–and their masters to respect, not liberate, their slaves. When the Centurion comes to ask for the healing of his slave, Jesus does not rebuke his ownership of the slave but instead commends his faith and heals–but does not liberate–his slave.  Indeed, nowhere does the New Testament command the abolition of slavery. To be sure, Scripture speaks of slavery as it speaks of war, poverty, the death penalty and other evils, as Bad Things. In Philemon, Paul gently hints to Philemon that he should liberate Onesimus. In a haunting passage from Revelation, Babylon the Great, the Mother of Harlots is mourned over by the Donald Trumps of the day:

“Alas! alas! you great city,
you mighty city, Babylon!
In one hour has your judgment come.”

And the merchants of the earth weep and mourn for her, since no one buys their cargo any more, cargo of gold, silver, jewels and pearls, fine linen, purple, silk and scarlet, all kinds of scented wood, all articles of ivory, all articles of costly wood, bronze, iron and marble, cinnamon, spice, incense, myrrh, frankincense, wine, oil, fine flour and wheat, cattle and sheep, horses and chariots, and slaves, that is, human souls. (Re 18:10–13).

(By the way, speaking of the Mother of Harlots, have you heard about how Ivanka Trump treated her Asian serfs?  Authoritarian Capitalist humor is like food.  Not everybody gets it.)

But to return to the point: at the end of the day, Scripture–which is not a manifesto for social reform–takes the world as it is with slavery just as we take the world as it is with war and does not propose a utopian plan for a tiny sect of Christians to reform the universal ancient institution of slavery.

As time rolls on, the Church down through history is likewise hostile to slavery, but tolerant of it–just as it is hostile to the death penalty but tolerant of it. When it can make inroads against slavery, it does (just as it sometimes makes inroads against the death penalty). But it also allows for it.

Slavery, for Thomas, was a human amendment to the natural law, meant to benefit some at others’ expense. The limitations Thomas proposed sought to protect the personal bodily integrity of the slave, the right of the slave to marry or remain a virgin, and the slave’s relationship with his/her spouse. While his views on the rights of slaves have generally been considered naïve, they nevertheless reflect an attempt to synthesize Christianity with the best science of its day (Aristotelian philosophy) and a contemporary social reality in which slavery still retained a stubborn hold in Christian society.

Note that:  Thomas sees slavery as an expression of natural law, rather like the death penalty.  And when slavery makes a resurgence with the rise of colonialism and the nation state, the Church still puts up with it in Catholic dominions. More than this, the Church sometimes gave its blessing to the slave trade in response to the Muslim threat since Muslims were taking Christians as slaves:

Eugenius IV and his immediate successor issued a series of bulls, including Illius Qui (1442), Dum Diversus (1452), and Romanus Pontificus (1455), that recognized the rights of the monarchs of Portugal and eventually Spain to engage in a wide-ranging slave trade in the Mediterranean and Africa first under the guise of crusading, and then as a part of regular commerce. As Pope Nicholas authorized the Portuguese in Romanus Pontificus:

We [therefore] weighing all and singular the premises with due meditation, and noting that since we had formerly by other letters of ours granted among other things free and ample faculty to the aforesaid King Alfonso to invade, search out, capture, vanquish, and subdue all Saracens, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit.

Note the thinking here.  As with other evils such as war and, oh, you know, the death penalty for example, the Pope argues that slavery can sometimes by a good thing since it is a tool of war against the Muslim threat and besides you can convert slaves in your possession to your “use and profit”.  So really, it can be compatible with the faith sometimes (just like killing people) when you are battling the Muslim threat.

The Church will also, of course, condemn the slave trade as its thinking evolves.  So perhaps the greatest contributor to the theology of human rights from that period, the Dominican Bartolome de las Casas, began his career as a slaveholder who eventually came to the conviction that Catholic tolerance of slavery simply could not be reconciled with what would someday come to be described as the Church’s teaching on the dignity and inviolability of the human person.

And so the Church’s teaching continued to evolve despite the fact that two popes had actually permitted the slave trade.

Here in the United States, the most Catholic state in the union, Louisiana, is part of the Confederacy for which Pius IX has great empathy, not so much because he is keen on slavery as because he likes small agrarian societies better than large industrialized ones. But what he does not do is declare slavery intrinsically immoral.  In Louisiana, slave holders suffered no canonical penalties for slaveholding. On the contrary, the whole of that Catholic society participated in it.  As the Civil War demonstrated, the slowly evolving thought, traceable all the way back through the history of the Church, was that there was something deeply shameful about slavery, but that the weight of 2000 years of assuming it was just part of the way this fallen world worked meant that the common Catholic hostility to it did not mean the Church could just plump for abolition. On the other hand, when slavery was outlawed in various countries, the Church welcomed the development as something obviously in accord with her own inner dynamic in favor of human liberty.  In short, for most of the history of the Church, the attitude of the Church is ambivalence coupled with a growing inability to rationalize any tolerance for slavery as incompatible with (you guessed it) the dignity and inviolability of the human person, whatever the weight of small t tradition may say.

And so, the Church does not finally and irrevocably declare slavery to be gravely and intrinsically immoral till 1993 in Veritatis Splendor.  Finally, a mere 25 years ago, the Church formally defines that something it had tolerated and even occasionally blessed as a sort of adjunct to the Crusade against Islam could not be reconciled with the Faith under any circumstances.

Now, oddly, nobody freaking out about the tweak to the teaching on the death penalty is panicking about the change in the Church’s teaching on slavery.  Indeed, the same people wigging out about the supposed “reversal” on the death penalty regularly love to make hay about the fact that backward despotisms in the Muslim world still permit slavery.  It’s one of their proofs that Christian civilization is superior to Islamic civilization.

Why the hypocrisy from conservative American Catholics who see no problem with the change regarding slavery while having their heads go all asplodey about the death penalty?  Largely because the definition took place a) after the American Civil War and b) before the widespread use of the Internet allowed every hyperventilating Reactionary with a website to declare new devel0pments the End of Days.

But there is another thing at work too: most American Catholics haven’t the faintest idea how doctrine develops and, above all, have almost no faith at all in the indefectibility of the Church.  That’s why they continually ask questions like, “If the Pope can change the Church’s teaching on the death penalty, what can’t he change?  What’s next?  Gay marriage? Where will it all lead?”

The terrible, gnawing fear behind such questions is that the Faith is a lie, the Holy Spirit will not protect the Church and guide it into all truth, and that the Pope is just making crap up in a purely human institution that had a pretty good run, but is now played out and about to collapse as the merely secular thing it, in truth, always was.  In addition, the constant leap from the death penalty to gay marriage as the inevitable Next Thing also shows a terrible fear by conservatives that the Church is going to side with Teh Gays against them.  What this suggests about both their fear about the hierarchy and their sense of guilt for mistreatment of gay people is perhaps something to explore some other day.

The point here is simply this: what JPII did in declaring slavery intrinsically and gravely immoral is a much greater challenge than anything Francis did about the death penalty. Because in calling slavery that, JPII really did say that never at any point in the Church’s history could the tolerance of slavery ever be morally justified.  That’s what gravely and intrinsically immoral means:  not justifiable under any circumstance.

To be sure, the Church makes all the normal allowances for ignorance, lack of freedom, cultural circumstances and so forth in order to reduce the culpability of the sinner for an act that is gravely and intrinsically immoral.  So it is gravely and intrinsically immoral to shoot a little girl in the head, but we don’t hold her two year old brother culpable for that gravely evil act when he finds dad’s gun and plays with it.  Likewise, we cut our ancestors slack because they were slowly and agonizingly crawling up out of the muck of the Bronze Age.  But at the end of the day, JPII, in calling slavery gravely and intrinsically immoral, says that all excuses and justifications for slavery were wrong, that Thomas was wrong (as he was also wrong about the Immaculate Conception, because even Michael Jordan misses layups sometimes), that the popes who made excuses for slavery were wrong, that the Catholics who made excuses for slavery in the Confederacy were wrong, that every Catholic who held a slave was wrong.  Perhaps ignorantly.  Perhaps trapped in a system out of which he could see no escape.  But at the end of the day, slavery was always–by its very nature–gravely and intrinsically immoral all down 2000 years of history.

In comparison to that shocking clarification, the death penalty change is small beer.  Francis (who is, after all, simply refining slightly JPII’s call for abolition) simply took JPII’s teaching that “since the death penalty is virtually unnecessary in the modern world, we should abolish it” and said, “Strike ‘virtually’.”  Not one iota of practical change has been offered to the Church’s call for abolition by Francis.  JPII wanted it abolished.  Benedict wanted it abolished.  Francis wants it abolished.  The only change is that Francis closed a tiny loophole that death penalty zealots have tried to drive a truck through for 20 years.

But note how he did it.  He did not call the death penalty intrinsically immoral.  He just called it inadmissible.  Compared to JPII’s shocking volte face with slavery, this is nothing.

The question is, very simply, what is being developed here?  And the answer is not far to seek.  In the 20th century, the monstrous horror show of assault on the dignity and sanctity of human life caused the Church to do a profound rethink of what “Human beings are made in the image and likeness of God” means.  In Gaudium et Spes, the revolutionary proposition is laid out that man is “the only creature on earth that God has willed for its own sake”.  That’s not new.  It’s just a fuller implication of Genesis.

The Church is still unpacking that astonishing declaration.  But it means, among other things, that no human being is a means to some other end and that, though error has no rights, persons in error do have rights.

Because of this, the stakes go up immeasurably when it comes to things like killing people for the sake of statecraft.  Mere abstractions about “retributive justice” and some imaginary need to maintain some karmic balance in the universe by killing people who do not need to be killed vanish for the same reason that enslaving them as “just punishment” goes away: because their dignity as human beings matters more than this abstraction.

The math is actually rather simple.  John Paul says “Don’t kill people–even people who deserve it–if you don’t absolutely have to.”  Francis simply says “You don’t have to kill them, so don’t.”

The arguments being put forward to attack Francis depend on putting words in the pope’s mouth.  According to Ed Feser, Francis “insinuates that the practice is intrinsically contrary to natural law” and… “insinuates that it is intrinsically contrary to Christian morality.” Feser has to say “insinuates” because he knows he cannot say “says”.  Because Francis doesn’t say that.  He doesn’t have to say that.  He only has to say, “It’s not necessary to kill people on death row, so don’t.”

At this point, what we always hear is “The pope’s teaching on the death penalty is not ex cathedra, so we can ignore it.”

The pope’s teaching in Humanae Vitae is not ex cathedra either. Welcome to the world of liberal dissent, champ!

Here’s the thing: Almost nothing the pope says is ex cathedra. Turns out the Magisterium is not playing a 2000 year long game of Simon Peter Says. The legalist hair-splitter spends absurd amounts of time parsing the distinctions between “infallible teaching” and “prudential judgement” in order to figure out how much of the Church’s teaching he can get away with making war on.

The faithful Catholic just listens to the Church and tries to obey her, whether or not she speaks ex cathedra.

That’s not me talking, that’s Holy Church in Lumen Gentium:

Bishops, teaching in communion with the Roman Pontiff, are to be respected by all as witnesses to divine and Catholic truth. In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent. This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff, even when he is not speaking ex cathedra; that is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will.

That means that the entire ocean of BS you have heard spewed in the past week about how you can feel free to ignore this change to the Catechism as the “pope’s personal opinion” is utter garbage.  Personal opinions don’t go in the Catechism: the teaching of the Church does.

Nor does it matter in the slightest that this is a prudential application of the Church’s teaching about the dignity of the human person.  Why?  Because the subculture of American white conservatives who hate this pope and love the death penalty have an almost perfect record of massively imprudent stupidity and bad judgment calls ranging from defying two popes and all the world’s bishops on the Iraq war, to cheering for torture (also gravely and intrinsically immoral) to defying almost the entirety of the Church applied social doctrine.  Why on earth any person of sense would privilege the judgment of this pack of dunderheads over the Magisterium is a mystery.

Of course, the Greatest Catholics of All Time are calling for The Faithful to man the barricades as though this is the Crisis of the Age:

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The stupidity of this is multi-layered.

How does a man like Zmirak expect to get himself excommunicated?  Go around killing people he thinks need to be executed?  Write blistering demands for more and more death in The Stream in the hope that Pope Francis gets wind of it and sends the Swiss Guard to take him to Pope Jail?  The vainglory of this is silly.  The pope is just not that into you, Mr. Zmirak.  He’s never heard of you.  He doesn’t care.

Meanwhile, for those not endowed with a martyrdom complex in defense of slaughtering people, the reality is that the death penalty, like slavery, was permissible but never ever something the Tradition required.  And in fact, there are many times in the history of the Church where the death penalty, like slavery, was treated as a distasteful fact of this fallen world that the Church, when she could, avoided.

Attempts to prove that it is “commanded by Scripture” never seem to be willing to face up to the full reality of what the zealot wants.  If it is commanded then that can only mean that every single act of mercy is a violation of God’s will.  God contradicted himself in sparing Cain, Moses and David.  Jesus was, in fact, breaking the law of Moses by refusing to kill the adulterous woman.  More than this, the partisans of the”biblical death penalty” almost never face up to fact that to be truly biblical, they need to make the case for inflicting death the biblical way.  That means stoning, burning people to death, beheading, and, of course, crucifixion.

(Two of the most perverse arguments for the “biblical death penalty” include the claim that 1) the Good Thief was “speaking by inspiration” when he called his own crucifixion “just” and 2) Jesus’ crucifixion conferred a blessing on the death penalty since without it he could not have died for our sins.  Those who cite the Good Thief seldom volunteer to lobby Congress for a Restore Crucifixion Act, though I daresay some of them would love it.  The ones who think the murder of the Son of God makes the death penalty blessed don’t seem to be eager to canonize Judas Iscariot.  No idea why.)

More than this, those who imagine the death penalty is absolutely required by God and that Francis is a heretic must, by the nature of their logic, believe the Church sinned by prescribing penances instead of the death penalty to murderers in antiquity.

But in fact, given that the Church has never required the death of every last capital criminal, all Francis is saying is what JPII and B16 have already said: “You don’t have to kill, so don’t.  Abolish the death penalty.”

So the question for the Enraged is: Is it really all that hard to give up a lust to slaughter people who do not need to be killed? Are you that wedded to death that you seriously want to be excommunicated in your lust to kill? For heaven’s sakes, at least people who dissent from Humanae Vitae have some excuses about fearing STDs or pregnancy issues or poverty. And yet death penalty-loving conservatives cut them zero slack and want to kick them out of the Church just for being weak and afraid. “They’re all just a bunch of damn libruls and let’s give them the boot so we can get that smaller, purer Church post haste,” goes the argument from the Zmiraks of the world.

But when it comes to thwarting the hunger of the Death Penalty Zealot to butcher people they don’t even know, all of a sudden these guys are Heroes for defying the Pope and baying for blood.

My  question to them:  What do lose by just agreeing with the Church here? What essential good is denied you by the Church calling you to be a little bit more prolife?  Why have you chosen this hill to die on when it is so unnecessary?

If you believe the Church has never changed and can never change, then you have not even begun to grasp the implications of the parable of the mustard seed. The issue is not “Does the Church change?” Of course it does. The question is “Does it develop or mutate?” The promise of indefectibility and infallibility is that every change will be a development and no change will be a mutation. If you don’t believe that, then you do not believe the Holy Spirit guides the Church into all truth and you do not believe Jesus’ promise to be with the Church till the end of the age.  That’s a much bigger problem for your faith, ultimately, than the Church saying that we don’t need the death penalty any more.  Indeed, the Church rejecting the death penalty and upholding the sanctity of human life from conception to natural death is not a problem at all, since we can do without the death penalty just fine.  The weirdness of disciples of the One who came to give life abundantly going to the mat in a struggle to kill as many people as they can will be looked back on by our descendants as one of the many bizarre displays of a very bizarre period in the American Church’s history.

Related reading: Rebecca Hamilton asks “Why Do We Hate the Pope for Telling Us the Truth?

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