KARL KEATING'S E-LETTER
TOPICS:
MUST CATHOLICS OPPOSE CAPITAL PUNISHMENT?
SECOND CALL FOR BACKPACKERS
Dear Friend of Catholic Answers:
In last week's E-Letter I discussed Catholic Answers' newest publication,
our "Voter's Guide for Serious Catholics." The guide lists five
"non-negotiable" issues and shows how these issues should be used to choose
among candidates for offices at all levels of government.
These are five issues on which Catholics operating with well-formed
consciences can take but one position (uncompromising opposition). The
issues are abortion, euthanasia, fetal stem cell research, human cloning,
and homosexual "marriage."
You might have noticed the absence of another issue that often is lumped
with these five: the death penalty. Isn't that something, too, about which
there is only one acceptable Catholic position?
Hasn't the "Catechism of the Catholic Church" imposed a new regime to which
all Catholics must subscribe? Hasn't the Church fine-tuned her teachings in
recent years so that Catholics now are obliged to oppose the imposition of
capital punishment except is cases so rare that they may be considered to
be almost non-existent?
A THOUGHTFUL--AND THOUGHT-PROVOKING--ANALYSIS
Last September, at the annual Fellowship of Catholic Scholars convention,
several talks were given on capital punishment. That same month,
"Christifidelis," the newsletter of the Saint Joseph Foundation, featured
an article on "The Purposes of Punishment."
The article, by canon lawyer R. Michael Dunnigan, closely paralleled what
was said at the FCS convention. The complete article may be read at:
www.st-joseph-foundation.org/newsletter/lead.php?document=2003/21-4
I want to highlight a few of the points made by Dunnigan. I urge you to
read the complete article because I am leaving out much of his analysis.
He says, "The key issue in the debate over the death penalty is whether the
recent statements of the Magisterium contradict previous teaching on the
purposes of punishment." The three traditional purposes recognized by the
Church have been:
| 1. |
Defense of society against the criminal. |
| 2. |
Rehabilitation of the criminal (including spiritual rehabilitation). |
| 3. |
Retribution, which is the reparation of the disorder caused by the criminal's transgression. |
Sometimes a fourth purpose has been listed: deterrence.
In 1955 Pope Pius XII affirmed that retribution is a legitimate end of
punishment in general. "The most important question raised by the recent
Magisterium pronouncements," says Dunnigan, "is whether retribution remains
a legitimate purpose in the context of the death penalty. ... The
'Catechism' seems to recognize only a single purpose of capital
punishment--the physical safety of persons. It seems not to recognize
retribution as a legitimate purpose."
The problem arises from how the "Catechism" categorizes capital punishment.
Section 2266 looks at punishment in general, and section 2267 looks at
capital punishment alone.
Section 2266 acknowledges the traditional three-fold purpose of punishment
and lists retribution as the first purpose:
"Legitimate public authority has the right and duty to inflict punishment
proportionate to the gravity of the offense. Punishment has the primary
[note the word!] aim of redressing the disorder introduced by the offense.
When it is willingly accepted by the guilty party, it assumes the value of
expiation [this is the rehabilitation of the criminal]. Punishment then, in
addition to defending public order and protecting people's safety [this is
the first of the three purposes listed above], has a medicinal purpose: as
far as possible, it must contribute to the correction of the guilty party
[back to rehabilitation]."
Section 2267 does not flow smoothly from section 2266. It does not analyze
the death penalty in terms of punishment but in terms of legitimate
defense, taking a cue here from "Evangelium Vitae."
"The practical effect of analyzing the death penalty in terms of legitimate
defense is to restrict the circumstances in which it properly may be
imposed," says Dunnigan. "In self-defense one may use only that level of
force necessary to protect oneself. Similarly, the 'Catechism' permits
imposition of the death penalty only to the extent necessary to defend
human lives.
"By contrast, when the death penalty is analyzed in terms of traditional
teaching on punishment, legitimate justifications include not only physical
safety but also retribution and deterrence."
In short, there is an ambiguity in the "Catechism." Other punishments are
looked at not just in terms of legitimate defense but under all three
purposes of punishment in general. The death penalty, for some unexplained
reason, is looked at only in terms of one of the three purposes, protection
of innocent parties.
INSERTING A PRUDENTIAL JUDGMENT INTO THE CATECHISM
That brings us to the policy provision of the treatment in the "Catechism,"
as given in section 2267:
"If, however, non-lethal means are sufficient to defend and protect
people's safety from the aggressor, authority will limit itself to such
means. ... Today, in fact, as a consequence of the possibilities which the
state has for effectively preventing crime ... the cases in which the
execution of the offender is an absolute necessity 'are very rare, if not
practically non-existent'" (quoting EV 56).
How are we to understand this? Avery Cardinal Dulles has noted (in a letter
to the "National Catholic Register") that a denial of retribution as a
legitimate purpose of capital punishment would be contrary to the
traditional teaching of the Church, but this is not, he thinks, what the
magisterium is doing in the "Catechism."
Dulles believes that section 2267 and "Evangelium Vitae" are not Church
teaching, in the proper meaning of the term, but reflect the "prudential
judgment" of John Paul II.
Whether a society's penal system is capable of protecting its citizens
adequately without recourse to the death penalty is not really a matter of
doctrine. It is a matter of the evaluation of the existing social
situation. One can make a case that our current penal system succeeds in
this--or that it fails in this.
Fr. George Rutler, also writing in the "Register," agrees with Dulles's
view but is even more critical of what he terms the "problematic" decision
to put a prudential judgment into a catechetical text. He and Dulles
emphasize that there is a clear distinction between Church teachings and
the prudential judgments of a pope.
All Catholics must subscribe to the former, but Catholics are free to
disagree with the latter, since prudential judgments are not under the
charism of infallibility and are not themselves authoritative
pronouncements of the magisterium. While they may relate to doctrines of
faith and morals, they are neither one nor the other.
Dunnigan notes that "Catholics are obliged to give 'a religious submission
of the intellect and will' to the ordinary magisterium, but this duty
attaches only to doctrines and teachings of the Church. This same duty of
submission does not attach to the mere prudential judgments of the Church's
pastors. The conclusion that the circumstances justifying the death penalty
are 'practically non-existent' is based on a prudential judgment about the
state of the penal system.
"As a result of the fact that a Catholic legitimately might disagree with
this judgment, it follows that he legitimately might disagree as well with
the conclusion that the circumstances justifying capital punishment are
'practically non-existent.'"
(As a side point, I should note that the opposition of the majority of the
American bishops to the use of capital punishment is not binding on the
faithful, since national bishops' conferences, as such, are not part of the
magisterium.)
THE BOTTOM LINE
As I mentioned above, I am excerpting only a small part of Dunnigan's
article. I urge you to read the whole thing. It is well written and can be
comprehended by any patient reader.
To me it demonstrates that the "Catechism" has not dealt with the death
penalty in a sufficiently full way. It has limited itself to just one
aspect, public safety, while not even discussing the other traditional
purposes of punishment. Beyond that, it has included a prudential judgment
(the only such one in the "Catechism" on any topic, so far as I am aware)
that, by its nature, cannot be binding in conscience.
What is the bottom line? Must Catholics adopt a particular view regarding
the use (or non-use) or capital punishment? In short: no.
They are free to endorse, as a political policy, the complete abolition of
capital punishment, and they are free to endorse the use of capital
punishment, even beyond the very narrow limits given in the prudential
judgment in section 2267. Contrary to what some people claim, there has
been no revolution in Church teaching on the matter.
You can be a good Catholic and think that the death penalty should be done
away with entirely, and you can be a good Catholic and think that it should
be applied more often than "rarely."
You are not bound in conscience to adopt one position over the other. You
are free to make your own prudential determination--but you are not free to
say that someone whose prudential determination differs from yours is
therefore a "bad Catholic."
The Church does not mandate opposition to the death penalty, nor does she
mandate support for it. This means that capital punishment cannot be listed
as a "non-negotiable" moral issue, and that is why it is not mentioned in
our "Voter's Guide for Serious Catholics."
A HIKE IN THE HIGH SIERRA
Last week I mentioned that I again will lead a backpacking trip in the
Sierra Nevada. This summer the hike will be a 22-mile loop at elevations
ranging from 10,000 to 12,300 feet. The dates are July 12-16.
I have secured a wilderness permit that allows us to have a group of 15. If
you want to be among that number, read the special page I have put on our
web site:
www.catholic.com/backpacking
There you will find details on the hike and will learn how to throw your
name in the hopper. Participants will be selected in early April.
p.s., I've been to some of the Canadian maritime provinces, but the Catholic
Answers 2004 apologetics cruise will be my first trip down the St. Lawrence
River and the first time in many years that I will be at Canada's
easternmost end. It also will be the first time in years I will have the
pleasure of being with Bishop Colin Campbell, who once hosted me in the
Diocese of Antigonish, Nova Scotia.
You will be able to join him, Jimmy Akin, Rosalind Moss, Tim Staples,
Thomas Howard, and me for a week of beautiful fall scenery and invigorating
large- and small-group events, including daily Mass, rosaries, and fun
on-shore excursions. The cruise runs from October 2-9.
For more information, go to:
http://catholicanswerscruise.com
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