The Thomist 63 (1999): 511-52

EVANGELIUM VITAE, ST. THOMAS AQUINAS, AND THE DEATH PENALTY

Steven A. Long
University of St. Thomas
St. Paul, Minnesota

THE MAGISTERIAL JUDGMENT of Evangelium vitae concerning the legitimacy of capital punishment constitutes--as emphasized anew by its insertion within The Catechism of the Catholic Church--the most important modern locus for understanding the Church's teaching on this topic. The position presented in this encyclical has figured prominently in more recent papal and episcopal statements dealing with the death penalty. The question that has created some confusion is what kind of teaching is being presented. A common interpretation is that Evangelium vitae marks a doctrinal development: the encyclical is said to restrict use of the death penalty to cases where it is absolutely necessary for the physical protection of society in a sense comparable to the use of lethal force in self-defense.

Yet such a reading neglects numerous and substantial contribu-tions from the tradition that argue for a different understanding of the penalty's legitimacy. It is the nearly unanimous opinion of the Fathers and Doctors of the Church⁽¹⁾ that the death penalty is morally licit, and the teaching of past popes (and numerous catechisms) that this penalty is essentially just (and even that its validity is not subject to cultural variation).⁽²⁾ Saint Augustine says, in The City of God:

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The same divine law which forbids the killing of a human being allows certain exceptions, as when God authorizes killing by a general law or when he gives an explicit commission to an individual for a limited time. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment, "Thou shalt not kill," to wage war at God's bidding, or for the representatives of the State's authority to put criminals to death, according to law or the rule of rational justice.⁽³⁾

This teaching of St. Augustine well sums up the general attitude of the Fathers and Doctors of the Church. Augustine often in practice opposed executions, and stressed the importance of the possibility of repentance. Yet given his formal teaching here cited on the matter it cannot rightly be claimed that he held the penalty as such to be wrongful, nor that he justified it solely by reference to the safety of society apart from the issue of the manifestation of a transcendent norm of justice in the world. His own concern in pressing for mercy is pastoral, and framed in such a manner that the plea of the minister of God's mercy does not always trump the minister of God's justice. It is for this theological reason that he does not condemn the rightfulness of authority of those commanding execution even in those cases where his counsel of mercy was ignored.

Augustine's teaching about the penalty is refined and further articulated by St. Thomas Aquinas,⁽⁴⁾ and resonates through the tradition of the Church on this matter. Augustine's conclusion diverges from Thomas's only in this: that for Thomas divinely commanded killing is not even an "exception" to the command-ment "Thou shalt not kill" since the instrument is not the principal subject of imperation but rather is only its tool. Hence if an act of killing really be included within the positive decree of God, it is God who formally slays, while the human agent is not

at liberty to do so under his own recognizance.⁽⁵⁾ Hence, to anti-cipate, for Thomas the wronged citizen may not in cold blood execute a malefactor, for he is not providentially charged with the care of the common good nor authorized to exact justice in this manner. But the rightful representative of the state, whose bona fides are derived from the providential need for and obligation to provide justice, acts with the force and rightfulness of divine com-mission, and with charity in behalf of the common good, in justly sentencing grave malefactors to death or in exacting this penalty.⁽⁶⁾

Thomas's teaching states with commanding clarity the divinely delegated character of the state's authority with respect to the execution of criminals. Most importantly, his account clarifies the primary medicinal purpose of legal penalty in general and of the death penalty in particular: namely, the manifestation of a tran-scendent norm of divine justice. For Thomas, the end of truth-manifestation regarding the overarching moral order is essential not merely for deterrence of further wrongs, but also for the healing of society, the strengthening of the bonds of justice, and the moral purification of society. This primary medicinal end of penalty, and the delegated rather than original jurisdiction of the state over the gift of life, are central both to Thomas's under-standing and to the reading of Evangelium vitae in the light of tradition, which, I will argue, produces a prudentialist reading.

The witness of the tradition is important not only for the sagacity of its arguments. For the interpretation of Evangelium vitae must take account of a basic principle: as a magisterial docu-ment, its meaning is constituted in relation to tradition. The claims for doctrinal development have, so far, seemed to ignore this fact. Of course, this is not to say that there can be no devel-opment on this topic. However, this essay will argue that a merely intratextual and prima facie, reductionist reading of the encyclical apart from the tradition leads to conclusions that are in tension with the tradition. A more traditional reading will identify and contextualize the thesis of the encyclical within the prudential order, and not hesitate to give "defense of society" a rich meaning

inclusive of the manifestation of a transcendent order of justice within society. Once we dissever the encyclical from the tradition it articulates, we lose extratextual reference,⁽⁷⁾ and accordingly will be misled. In showing this, we will also come to see that the claims for doctrinal development are, so far, unjustified.

I begin with a view of Evangelium vitae through the lens of the common or reductionist interpretation, an interpretation that construes the encyclical's teaching on the subject of the death penalty without advertence to tradition. Then follows a wide-ranging, fourfold consideration of St. Thomas's teaching about penalty, determinations of the natural law, the death penalty and the common good, and his response to criticisms of the death penalty. I then formulate the reductionist account in its premises and conclusion, and explore its unreconciled tensions with tradition. In the course of this exploration, I propose a prudential reading of Evangelium vitae that stresses the moral evacuation of the common good wrought by the culture of death, and the consequent loss of that social intelligibility essential to the primary medicinal end of the death penalty.

I. The Reductionist Reading of Evangelium vitae Regarding the Death Penalty

The reductionist reading of Evangelium vitae illustrates how simple nonadvertence to tradition can cause a subtle realignment of the meaning of key terms and propositions, and thus the possible interpretation of a Church document in a way that is at least in tension with tradition. For example:

[27] Among the signs of hope we should also count the spread, at many levels of public opinion, of a new sensitivity ever more opposed to war as an instrument for the resolution of conflicts between peoples, and increasingly oriented to finding effective but "non-violent" means to counter the armed aggressor. In the same perspective there is evidence of a growing public opposition to the death penalty, even when such a penalty is seen as a kind of

"legitimate defence" on the part of society. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.

In the absence of further nuance or reference to tradition, this paragraph implies that the death penalty could have no legitimate purpose other than suppressing crime. Hence, inasmuch as crimi-nals may be rendered harmless in other ways, no such penalty as capital punishment is supposed to be putatively valid.

Further along within the encyclical, the nature of capital punishment is apparently explicated within the ratio of self-defense. Yet, initially, this section appears merely as articulating the nature of legitimate self-defense, and defense of others, rather than of deliberate execution:

[55] This should not cause surprise: to kill a human being, in whom the image of God is present, is a particularly serious sin. Only God is the master of life! Yet from the beginning, faced with the many and often tragic cases which occur in the life of individuals and society, Christian reflection has sought a fuller and deeper understanding of what God's commandment prohibits and prescribes. There are in fact situations in which values proposed by God's Law seem to involve a genuine paradox. This happens for example in the case of legitimate defence, in which the right to protect one's own life and the duty not to harm someone else's life are difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defence. The demanding commandment of love of neighbour, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: "You shall love your neighbour as yourself" (Mk12:31). Consequently, no one can renounce the right to self-defence out of lack of love for life or for self. This can only be done in virtue of a heroic love which deepens and transfigures the love of self into a radical self-offering, according to the spirit of the Gospel Beatitudes (cf. Mt 5:38-40). The sublime example of this self-offering is the Lord Jesus himself.

Moreover, "legitimate defence can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State." Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason.

The encyclical's citation of Thomas here concerns, not capital punishment, but killing in self-defense, and seems chiefly

concerned with the distinction between private and official acts of immediate self-defense against unjust assault.⁽⁸⁾ The point of Thomas's text is to show the anomalous character of self-defense by private individuals, in contrast with licit and direct use of lethal force by the state (which is not held to the same restrictive logic). The reductionist reading of the encyclical has ignored this point, and thus raised a serious problem of interpretation. For if we interpret Evangelium vitae as assimilating the ratio of public justice to the ratio of wholly private self-defense, then Evangelium vitae will appear to miscontextualize the teaching of Thomas while suggesting grave difficulties for the Catholic tradition's distinction between private and public authority.

The encyclical continues:

[56] This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence." Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.

These lines also refer to a "growing tendency" to abolish the death penalty. This tendency is buttressed by reference to the development of systems of penal justice that are "more in line with human dignity." The primary purpose of punishment is stated as being "to redress the disorder caused by the offence," yet the reductionist reading has interpreted the "rehabilitative" goal highlighted in the following sentence as the complete and suffi-cient meaning of "redressing the disorder." One must observe that although the conversion of criminals has always been consistent with punishment, punishment has never been defined in terms of conversion, nor of rehabilitation: that is, it has been viewed as a

happy event if either conversion or rehabilitation should occur, but one that neither policy nor prayer predictably can effectuate--whereas the purpose of punishment is as the encyclical states, to "redress the disorder caused by the offence."

The encyclical continues:

[56] It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and 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. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.

These words above are critical: that only the absolute necessity reflected by the impossibility of defending society in any other manner can justify imposition of the death penalty. Moreover, not only is this absolute condition laid down, but it is stated that--as a "result of steady improvements in the organization of the penal system"--such cases are "very rare, if not practically non-existent."

If we accept a reading of the document as a doctrinal argument apart from tradition, it does appear to propose that only those executions are justified which are absolutely necessary to the physical protection of society (but note the interpolation of the term "physical," which is inserted to signify the encyclical's con-textualization of the issue in the light of "self-defense"--which will happen if and only if we prescind from the tradition in our interpretation). However, both the major premise (that capital punishment is justifiable only when absolutely necessary to defend society) and the minor (that owing to penal improvements capital punishment is not necessary to defend society) are in certain respects unclear. We will address this point at length in section 3, below. To anticipate, we might wish to ask whether the solemn execution of a divine norm of justice might not be described as necessary to a richer conception of social order and the common good that may legitimize the application of the death penalty. Similarly, one might ask for particular elaboration on the char-acter of the penal improvements which condition the judgment that the death penalty is no longer needed to defend society. On

this latter prudential point one can imagine great disputes amongst criminologists and sociologists.

The encyclical further states that:

[56] 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."

These words appear to suggest that the protection of public order and the safety of persons are the ends of punishment. Insofar as these ends may be achieved by bloodless means, this is in greater conformity with the dignity of the human person.

The reductionist reading would argue that the model of "de-fense of public order" here employed involves a specific sense of public order: the purpose of punishment in this phase of the encyclical, it is argued, is simply the physical protection of social order. Such an interpretation would certainly be regarded by the tradition as minimalistic and pragmatic. A similar issue has arisen in regard to the Vatican II document Dignitatis humanae. In this document, "public order" finally was chosen by the council fathers in express contradistinction to "common good," for "the common good" seemed more inclusive of the traditional Catholic position regarding civil obligations toward God. Yet, in the Catechism of the Catholic Church we are now instructed that:

The right to religious liberty can of itself be neither unlimited nor limited only by a "public order" conceived in a positivist or naturalist manner. The "due limits" which are inherent in it must be determined for each social situation by political prudence, according to the requirements of the common good, and ratified by civil authority in accordance with "legal principles which are in conformity with the objective moral order." [CCC 2109]

So the full requirements of the "common good" are held to define a right conception of "public order" that is not postivist or natu-ralist. Similar concerns are likely to be pertinent to the conception of "public order" that touches the issue of capital punishment. If the sense of "society" in the phrase "protection of society" is

interpreted more richly it will then imply much more than mere physical safety, encompassing the somber efficacy of transcendent moral sanctions in social life. On this score there is arguably interpretative room for doubt. Yet the reductionist interpretation of the encyclical, based on its surface reading as a doctrinal argument, points to the physical protection of public order and the securing of safety as the prime considerations.

Thus far then, the summary of the reductionist interpretation of Evangelium vitae's treatment of the death penalty. We have indicated ways in which it varies substantially from the tradition. But might this reading involve a true development? I will now turn to the express doctrine of St. Thomas regarding both penalty in general, and the death penalty in particular.

II. The Doctrine of St. Thomas

A) Punishment in General

In Thomas's teaching, the ratio of punishment is not solely a function of the physical protection of civil society. While punish-ment does serve the purpose of protecting society, it also and primarily serves the function of manifesting the transcendent, divine order of justice--an order which the state executes by divine delegation. This, of course, entails a noninstrumental view of the common good, in which this common good essentially and necessarily is defined in relation to a transcendent moral order which it must acknowledge and, within its limited jurisdiction, providentially serve. Furthermore, it may be argued that such a conception of punishment, rooted in the restoration of moral balance, always presupposes an awareness of the superordinate dignity of the common good as defined by transcendent moral truths. Hence what is at stake in the argument about Evangelium vitae is twofold: the superordinate dignity of the common good, and the character and need for punishment as such.

About punishment, Thomas argues in the Summa contra Gentiles (ScG III, c. 141) that "it is essential not only that punishment be a privation of the good, but also that it be

contrary to the will." Similarly in the same work (ScG II, c. 83), Thomas writes that "punishment is something contrary to a good of nature, and thus is said to be evil." Likewise, in the Summa Theologiae (I-II, q. 87, a. 3, ad 1) Thomas argues: "Punishment is proportionate to sin in point of severity, both in Divine and in human judgments." This point is made even more tellingly in the following reply (STh I-II, q. 87, a. 3, ad 2):

Even the punishment that is inflicted according to human laws is not always intended as a medicine for the one who is punished, but sometimes only for others: thus when a thief is hanged, this is not for his own amendment, but for the sake of others, that at least they may be deterred from crime through fear of the punishment, according to Prov. 19:25: "The wicked man being scourged, the fool shall be wiser." Accordingly the eternal punishments inflicted by God on the reprobate, are medicinal punishments for those who refrain from sin through the thought of those punishments, according to Ps. 59:6: "Thou hast given a warning to them that fear Thee, that they may flee from before the bow, that Thy beloved may be delivered."

One notes that this sense of the "medicinal" is essentially social and deterrent rather than individual and rehabilitative.⁽⁹⁾ Yet, were a punishment not just in its own right, it would be wrong to impose it solely to deter. One may not execute the innocent even should this somehow fulfill a deterrent function; nor may one justly punish disproportionately, even should this deter (e.g., imposing the death penalty for spitting on the sidewalk). That the punishment is not always intended as a medicine for the one punished but sometimes "only" for others renders clear that there is a twofold social and medicinal point, as does the phrase that through these penalties others may "at least" be deterred-- suggesting a "most" or higher medicinal effect necessarily sought by just penalty and distinct from the "least" and deterrent medicinal effect. While the penalty may deter, this deterrence is secondary (and of lesser dignity) vis-à-vis the manifestation and

vindication of a divine norm of justice. This second element is an essential and definitive note of penalty, and indeed the chief element. The medicinality of penalty is not merely a function of "stopping" an offense, nor merely of deterring, but of manifesting the truth regarding the transcendent order of justice and the wickedness of the offense. Without this manifestation of truth in penalty, social healing is not promoted. The medicinal value is not merely one of stopping prospective injustice, but of teaching and manifesting the truth.

Clearly, then, punishment must first be essentially just and only then may it rightly serve social and deterrent functions. One might deem this merely to indicate that retributive justice is a necessary but not sufficient condition for the imposition of penalty. In response, the proposition that punishment "is proportionate to sin in point of severity, both in Divine and in human judgments" (STh I-II, q. 87, a. 3, ad 1) clearly makes no essential reference to medicinality for the common good (deter-rence, instruction). Hence the text appears to suggest that even though medicinal concerns may always be present, it is justice that makes penalty necessary. But this issue is obviated by the dual realization that medicinal considerations are further considera-tions of justice, and that the manifestation of the order of retributive justice is in itself medicinal insofar as it manifests the truth of right order in society. Yet this medicinal purpose is natu-ral to retributive justice, only requiring prudential modulation in accord with the contours of particular circumstance. The primal truth that punishment ought to be proportional to the severity of crime is not merely a necessary condition for punishment; for chief among medicinal considerations is the manifestation of the order of justice within society. Further, given the condition of humanity, medicinal purposes will always be sought through punishment as part of the wider teleology of acts of justice. Hence Thomas writes that:

In the infliction of punishment it is not the punishment itself that is the end in view, but its medicinal properties in checking sin; wherefore punishment partakes of the nature of justice, in so far as it checks sin. But if it is evident that the infliction of punishment will result in more numerous and more

grievous sins being committed, the infliction of punishment will no longer be a part of justice.⁽¹⁰⁾

Further, Thomas argues that:

All who sin mortally are deserving of eternal death, as regards future retribution, which is in accordance with the truth of the divine judgment. But the punishments of this life are more of a medicinal character; wherefore the punishment of death is inflicted on those sins alone which conduce to the grave undoing of others.⁽¹¹⁾

Clearly in this life all penalty is medicinal, in the wide sense that the manifestation of a transcendent norm of justice is ne-cessarily instructive and to some degree a deterrent. By compari-son with Hell, terrestrial penalties certainly are "more of a medicinal character" (albeit even damnation is medicinal for those in this life who contemplate its nature). Yet the presence of two purposes--retributive and medicinal justice--ought not obscure the priority of assigning punishment proportionate to the crime (just retribution) insofar as the limited jurisdiction of human justice allows. The end is not punishment, but rather the mani-festation of a divine norm of retributive justice, which entails proportionate equality vis-à-vis the crime. While this end is in the wide sense medicinal, its form is retributive--for the divine order participated by temporal penalty has both medicinal and retributive aspects.

The medicinal goal is not tantamount merely to stopping future evildoing, but rather entails manifesting the truth of the divine order of justice both to the criminal and to society at large. This means that mere stopping of further disorder is insufficient to constitute the full medicinal character of justice, which purpose alike and primarily entails the manifestation of the truth. Thus this foundational sense of the medicinality of penalty is retained even when others drop away. That is, even if we hypothesize that society would be secure were a felon released, and on the most unlikely supposition that no deterrent function as such is

necessary for that particular crime,⁽¹²⁾ some element of penalty would still be rationally assignable to correct the criminal's fault--both to check his sin, as Thomas puts it, and to manifest a transcendent norm of justice for the sake of heightening the bonds of justice and the instruction of society. While a heightened sense of justice implicitly includes a deterrent aspect, it is a good thing in itself even apart from deterrence, and despite the evil that is its occasion: just as, for Thomas, the directive authority of the state is a positive aspect of its natural charge over the common good, and not merely a necessitated response to evil as in Augustinian political theory. Social recognition of the reign of justice is good not merely for deterrent reasons, but because it purifies society, lifts the social conscience higher, and directs the mind to final justice. It bathes the wound suffered by society in that divine justice which all right social order participates. For Thomas it is indeed the task of the state within its limited jurisdiction to vindicate the transcendent moral principles that define the common good.

The larger justice owed to society requires even further medicinal elements beyond the manifestation of the transcendent order of justice--we do not wish to punish in a particular case, if doing so would induce worse moral disturbances in society at large. Hence retributive justice is to medicinality as is form to end--everything moves toward its end by reason of its form. For one wishes to address the moral imbalance of the offense both for the individual and for society at large. Thus without ever losing retributive form, medicinal elements will serve to justify different penalties in significantly different social settings, in all of which-- as has been seen above (STh I-II, q. 87, a. 3, ad 1)--Thomas holds that penalty ought be proportionate to the severity of crime (a generic requisite in order that the medicinal judgment itself truly be just). This is to say that the retributive purpose ought be served; that it bears within itself a natural medicinality (the manifestation of a transcendent order of justice); and that it is natural that this original medicinal purpose be further served in

a way consonant with that larger justice owed to the community as such (e.g., further medicinal considerations of deterrence, etc., that are implicit in the original medicinal purpose).

If imposing a penalty will bring about more disorder than it seeks to check, and so foreseeably fail to manifest the transcend-ent order of justice, its imposition is unjust because it is counter to the very teleology of just penalty. But the teleology of just pen-alty is a teleology of penalty. Theologically considered, even the satisfaction of the sinner includes both a strict element of retribu-tive justice and a medicinal element.⁽¹³⁾ As will be shown (see the section "Legal Justice and the Superordinate Dignity of the Common Good" below), for Thomas human penalties inflicted in political community (including the death penalty) imitate the cosmic order of divine justice, and are delegated from divine authority.

Thomas writes (STh I-II, q. 87, a. 3, ad 3): "God does not delight in punishments for their own sake; but He does delight in the order of His justice, which requires them." It may be seen that punishment "rights a moral imbalance" in two ways. First, the suffering entailed should move the agent away from the disposi-tions and deeds productive of such sorrow. But more importantly, punishment rights moral imbalance by isolating a malefactor with the true nature of the evil he has chosen. In punishment, the true bitterness of the evil embraced by a sinner is manifested to the evildoer himself. This manifestation through punishment of the true nature of the evil embraced by a criminal always entails some form of banishment from the common ordering of providence and society, involving deprivations contrary to the criminal will. Hence in ScG III, c. 144 we find the following lines:

Besides, natural equity seems to demand that each person be deprived of the good against which he acts, for by this action he renders himself unworthy of such a good. So it is that, according to civil justice, he who offends against the state is deprived completely of association with the state, either by death or by perpetual exile. Nor is any attention paid to the extent of time involved in his

wrongdoing, but only to what he sinned against. There is the same relation between the entirety of our present life and an earthly state that there is between the whole of eternity and the society of the blessed who, as we showed above, share in the ultimate end eternally. So, he who sins against the ultimate end and against charity, whereby the society of the blessed exists and also that of those on the way toward happiness, should be punished eternally, even though he sinned for but a short space of time.

Noting the propensity to suppose that punishment must be merely for the correction of behavior and nothing else, Thomas in the same chapter proceeds to say:

However, if one concede that all punishments are applied for the correction of behavior and not for anything else, one is still not forced by this admission to assert that all punishments are purgatorial and terminable. For even according to human laws some people are punished with death, not, of course, for their own improvement, but for that of others. Hence it is said in Proverbs (19:25) "the wicked man being scourged, the fool shall be wiser." Then, too, some people, in accord with human laws, are perpetually exiled from their country, so that, with them removed, the state may be purer. Hence, it is said in Proverbs (22:10): "Cast out the scoffer, and contention shall go with him, and quarrels and reproaches shall cease." So, even if punishments are used only for the correction of behavior, nothing prevents some people, according to divine judgment, from having to be separated perpetually from the society of good men and to be punished eternally, so that men may refrain from sinning, as a result of their fear of perpetual punishment, and thus the society of good men may be made purer by their removal.

As shall be later noted, Thomas does not fail coherently to infer the implications that flow from affirming that the limited justice of the state participates the divine justice. The following words (STh II-II, q. 108, a. 3) are particularly arresting:

I answer that, Vengeance is lawful and virtuous so far as it tends to the prevention of evil. Now some who are not influenced by motive of virtue are prevented from committing sin, through fear of losing those things which they love more than those they obtain by sinning, else fear would be no restraint to sin. Consequently vengeance for sin should be taken by depriving a man of what he loves most. Now the things which man loves most are life, bodily safety, his own freedom, and external goods such as riches, his country and his good name. Wherefore, according to Augustine's reckoning (De Civ. Dei xxi), "Tully writes that the laws recognize eight kinds of punishment": namely, "death," whereby man is deprived of life; "stripes," "retaliation," or the loss

of eye for eye, whereby man forfeits his bodily safety; "slavery," and "imprisonment," whereby he is deprived of freedom; "exile" whereby he is banished from his country; "fines," whereby he is mulcted in his riches; "ignominy," whereby he loses his good name."

The ultimate deprivation and banishment is that of eternal banishment from beatific fellowship with God, which is Hell. In this life, the death penalty is the most severe such separation, which constitutes banishment from the land of the living. The death penalty not only adjudges an individual unfit to live, casting the sinner out from temporal fellowship and felicity, but in a cer-tain respect adjudges human penalties as insufficient punishment for the evil done, and remands the sinner immediately to the highest tribunal for judgment, namely God. Yet such a penalty may be offered willingly by way of atonement without prejudice to the criminal's eternal well-being, as the example of the Good Thief suggests (although crucifixion appears more a form of tor-ture than merely of capital punishment). Finally, for lesser crimes banishment from society of various durations is prescribed. In all these cases, one is primarily deprived of participating in the common good owing to some grievous evil, while lesser evildoers are not punished in this way, as time is allowed them for repentance inasmuch as they do not grievously harm others (cf. STh II-II, q. 64, a. 2, ad 2).

Before we can harvest the intelligibility of these and other teachings of St. Thomas regarding punishment, however, we must address the point that, according to Thomas, all punishments bestowed by society are determinations of the natural law.

B) Determinations of Natural Law

An initial reading of Thomas might to some suggest that for him there is no foundation for the death penalty, or for any particular penalty, in the natural law. He distinguishes between two modes of derivation of human law from the natural law, one by way of "conclusion," and the other by way of mere "deter-mination." The first is directly derived from the natural law, while the second is only generically rooted in the natural law. For

instance, that we avoid unnecessary fatalities is directly rooted in the natural law precept that the innocent ought not to be slain; but that we achieve this end in civic life by all driving on the left side of the road, or all driving on the right side of the road, is a matter of social determination rather than something directly derived from the natural law.

Thomas writes that while the need for some form of punish-ment is a conclusion from the natural law, the assignation of any particular form of punishment is a mere determination that is not rooted in the natural law. As he puts it:

Some things are therefore derived from the general principles of the natural law, by way of conclusions; e.g., that one must not kill may be derived as a conclusion from the principle that one should do harm to no man: while some are derived therefrom by way of determination; e.g., the law of nature has it that the evildoer should be punished; but that he be punished this or that way, is a determination of the law of nature.

Accordingly both modes of derivation are found in the human law. But those things which are derived in the first way, are contained in human law not as emanating therefrom exclusively, but have some force from the natural law also. But those things which are derived in the second way, have no other force than that of human law.⁽¹⁴⁾

On first glance this seems to suggest that only the general need for punishments, but no particular punishment, is derived from the natural law. So construed the death penalty (or any penalty) may appear wholly a matter of convention. Yet that something is a determination of the natural law does not cause it to cease to participate the natural law--for by nature determinations need be made, and these must cohere with natural justice.

Nor is it reasonable to suggest that "any punishment will do." One can scarcely take solace in supposing that since particular punishments have no force but that of human law, therefore any punishment whatsoever can be levied. On such an analysis one might as well torture criminals, or lobotomize them, as execute them--for the proposition that punishment has "no other" force than that of human law is then construed to mean that the selection of punishments is by nature arbitrary. But not to be

derived as a conclusion from the natural law is not equivalent to being arbitrary. The imposition of penalty still must conform to a natural norm of justice. Clearly we all know penalties that might work both to punish and deter that we would nonetheless execrate as barbarically contrary to rational justice.

To read Thomas as saying that all particular punishments are arbitrary is to misread him. Rather, he is making the point that determinations of punishment partake of the force of natural law only by partaking generically of the form of lawful punishments, since the need for punishment is natural. It does not follow from this that punishments generally need not conform to the requisites of proportionality. Indeed, so natural is proportional equality that divine justice itself accords with it "in so far as rewards are apportioned to merits, and punishments to sins" (STh II-II, q. 61, a. 4, ad 1). The role of proportionate equality in natural justice is unquestionable:

Since divine justice requires, for the preservation of equality in things, that punishments be assigned for faults and rewards for good acts, then, if there are degrees in virtuous acts or sins, as we showed, there must also be degrees among rewards and punishments. Otherwise equality would not be preserved, that is, if a greater punishment were not given to one who sins more, or a greater reward to one who acts better. Indeed, the same reasoning seems to require different retribution on the basis of the diversity of good and evil, and on the basis of the difference between the good and the better, or between the bad and the worse.⁽¹⁵⁾

Of course, there are factors other than justice that may be equally needful to the common good of society (for example, reconciliation and avoiding civil war). Open to the teleological and prudential entailments of the common good, Thomas's thought does not, like Immanuel Kant's, demand necessary pursuit of justice in the individual case over against the wider justice owed to the felicity of society. But his insistence on pro-portionate penalty suggests that right reason in relation to some particular social matter will determine just penalty.

The important point here concerns the nature of determina-tions of the natural law, for not all such determinations are

equally remote from the form they particularize. That some given matter is not derived from the natural law as a principle does not make it utterly contingent, for the nature of the matter varies from instance to instance.

The illustration provided by Thomas suggests the presence of degrees of necessitation in some determinations:

But it must be noted that something may be derived from the natural law in two ways: first, as a conclusion from the premises, secondly, by way of determination of certain generalities. The first way is like to that by which, in sciences, demonstrated conclusions are drawn from the principles: while the second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape.⁽¹⁶⁾

Note the nature of the illustration. In particularizing the form of a house, the craftsman is guided by two elements: the requisites of the form in general, and the nature of the particular matter and its attendant issues. Given the nature of the matter, it may then follow from the nature of the form that a certain particularization is essentially befitting or even required. For instance, if one is building a multilevel house with a given material, and the material can bear only so much stress, then no more than this given amount can be placed upon beams made of that material. Ergo the particular form achieved will be characterized by this neces-sity. It may be that, given a certain second matter, there is only one way to achieve some given effect--and this "reduction to one" is clearly a strong "necessitation" insofar as one is particu-larizing the general form in the given matter.

A determinatio of just punishment is not simply contained in the natural law so as to be derived from it alone. What I am here suggesting is that the relation of the determinatio of just punishment to the natural law bears a necessity analogous to the necessity exhibited by proper accidents in relation to essence. For proper accidents are not included in the definition of a quiddity, nor are they simply derived from this definition; yet they do necessarily flow from the essence. The point of similarity is this:

in each case, the element concerned may not be simply derived from its principal cause, for it is not primarily contained in it (i.e., the determination is not simply contained in the natural law, nor is the proper accident simply contained within the quiddity as a quidditative note of the essence). Yet, in each case, it is necessarily generated by its principal cause (albeit in the case of determina-tions, only in conjunction with some particular matter).

Thus determinations of the natural law may at times flow necessarily from the combination of a general form with some particular matter (not from the general form alone, in which they are unlike proper accidents). Hence we may say that the form of justice--which is of the natural law--may generate, in relation to particular grave matter, some degree of necessity in the particular form of justice that is dispensed by way of penalty. In other words, the general requisites of justice may be most fittingly particularized in relation to a given matter by a certain type of penalty.⁽¹⁷⁾

Not all particularizations of form are equally remote from the general form. Not only may there be necessity in the particulari-zation of the general form given the limits and nature of certain matter, but certain particularizations are by nature closer to or more clearly manifest the general form. That is, some aspects of the particularization of a general form derive most clearly from the nature of the general form being particularized, and others from the conjuncture of this form with a given matter. Now, both of these considerations apply to the determinatio of penalty in the case of a justly inflicted death sentence. First, justice gauges what is owed to a murderous criminal according to the proportionate evil inflicted--what has been taken from the innocent victim (life), from the victim's family and friends (an inestimable good), and from the state and the common good (usurpation of divinely delegated authority and harm to the common ordering). Second, no penalty manifests the transcendence of the general form of

justice so distinctly as the death penalty: paying what is due according to a measure which while proportioned to grave crime is transcendent vis-à-vis temporal experience. Here there is no question of "rehabilitation" but only one of redressing moral im-balance, together with the hope of conversion. As Thomas writes of the temporal penalty of exile (Compendium theologiae, c. 183): "Exile, it is true, does not last forever, but this is purely acci-dental, owing to the fact that man's life is not everlasting; but the intention of the judge, we may assume, is to sentence the criminal to perpetual punishment, so far as he can." Even more solemn is that penalty whereby the sinner is stricken from the land of the living, and remanded to the highest tribunal for eternal judgment.

Given the nature of penalties as determinations of natural law, it now remains to highlight the role of the death penalty according to Thomas in the light of the superordinate dignity of the common good of civil society.

C) Legal Justice and the Superordinate Dignity of the Common Good

Thomas argues that "If we speak of legal justice, it is evident that it stands foremost among all the moral virtues, for as much as the common good transcends the individual good of one person" (STh II-II, q. 58, a. 12). The individual good and the common good differ formally and not merely quantitatively:

The common good of the realm and the particular good of the individual differ not only in respect of the many and the few, but also under a formal aspect. For the aspect of the common good differs from the aspect of the individual good, even as the aspect of whole differs from that of part. Wherefore the Philosopher says (Polit. I. 1) that they are wrong who maintain that the state and the home and the like differ only as many and few and not specifically. ⁽¹⁸⁾

It is for this reason that he will argue:

Now every part is directed to the whole, as imperfect to perfect, wherefore every part is naturally for the sake of the whole. For this reason we observe that if the health of the whole body demands the excision of a member,

through its being decayed or infectious to the other members, it will be both praiseworthy and advantageous to have it cut away. Now every individual person is compared to the whole community, as part to whole. Therefore if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since a little leaven corrupteth the whole lump (1 Cor. v. 6).⁽¹⁹⁾

Note that Thomas does not limit the reason for putting criminals to death to their immediate physical danger to others; rather, he clearly speaks of the nature of the criminal. Hence, the illustration is of a member that demands excision because it is "decayed or infectious"--that is, severe enough corruption ("decay") is in its own right harmful to society, apart from any issue of "clear and present danger" in the physical order. Thomas further insists that "When, however, the good incur no danger, but rather are protected and saved by the slaying of the wicked, then the latter may be lawfully put to death."⁽²⁰⁾ He goes on to point out that human justice imitates according to its powers the order of the divine wisdom:

According to the order of His wisdom, God sometimes slays sinners forthwith in order to deliver the good, whereas sometimes He allows them time to repent, according as He knows what is expedient for His elect. This also does human justice imitate according to its powers; for it puts to death those who are dangerous to others, while it allows time for repentance to those who sin without grievously harming others.⁽²¹⁾

Note that the "grievous harm" pertains to conduct: that is, if someone grievously harms another, he deserves to be put to death precisely in imitation of the divine justice (as opposed to the sentence of those "who sin without grievously harming others"). Again, although such justice "puts to death those who are dan-gerous to others" this dangerousness is a function of evil rather than a mere technical matter of social quarantine. These words are akin to the manner in which one might describe someone as

a "dangerous man" even though he were immobilized or im-prisoned, because of his vicious character and traits.

In Thomas's account legal justice "imitates according to its powers" the divine justice. Insofar as the tradition affirms the death penalty as an essentially licit form of this imitation, while a reductionist reading of Evangelium vitae suggests that it is unnecessary, one stands in the presence of significantly diverse interpretations of the eternal law. The ratio of this diversity may be seen most formally in the common teaching of Augustine and Aquinas that the authority of the state to impose the death penalty is divinely delegated. This emerges clearly in the following lines of the Summa contra Gentiles (III, c. 146):

Since some people pay little attention to the punishments inflicted by God, because they are devoted to the objects of sense and care only for the things that are seen, it has been ordered accordingly by divine providence that there be men in various countries whose duty it is to compel these people, by means of sensible and present punishments, to respect justice.

Again, in various countries, the men who are put in positions over other men are like executors of divine providence; indeed, God through the order of His providence directs lower beings by means of higher ones, as is evident from what we said before. But no one sins by the fact that he follows the order of divine providence. Now, this order of divine providence requires the good to be rewarded and the evil to be punished, as is shown by our earlier remarks.

Moreover, the common good is better than the particular good of one person. So, the particular good should be removed in order to preserve the common good. But the life of certain pestiferous men is an impediment to the common good which is the concord of human society. Therefore, certain men must be removed by death from the society of men.

These lines simply could not be more forceful regarding the prime role of punishment as participating a transcendent divine norm of justice, which "requires the good to be rewarded and the evil to be punished." Indeed, regarding those who pay little attention to "punishments inflicted by God," it "has been ordered accordingly by divine providence that there be men in various countries whose duty it is to compel these people, by means of sensible and present punishments, to respect justice." This includes both medicinality and purely proportional retributive justice. For it is divine providence itself that "requires the evil to

be punished"--quite distinct from yet in unity with the medicinal issue of deterrence. As St. Thomas elsewhere writes of punish-ment by death (STh I-II, q. 87, a. 3, ad 1), "this punishment, in its own way, represents the eternity of punishment inflicted by God." Lest there be doubt about Thomas's meaning in arguing that the state serves as executor of divine providence in applying penalties, one ought to note his commentary on the Fifth Commandment:

Some have held that the killing of man is prohibited altogether. They believe that judges in the civil courts are murderers, who condemn men to death according to the laws. Against this St. Augustine says that God by this Commandment does not take away from Himself the right to kill. Thus, we read: "I will kill and I will make to live." [Deut 32:39] It is, therefore, lawful for a judge to kill according to a mandate from God, since in this God operates, and every law is a command of God: "By Me kings reign, and lawgivers decree just things." [Prov 8:15] And again: "For if thou dost that which is evil, fear; for he beareth not the sword in vain. Because he is God's minister." [Rom 13:4] To Moses also it was said: "Wizards thou shalt not suffer to live." [Exod 22:18] And thus that which is lawful to God is lawful for His ministers when they act by His mandate. It is evident that God who is the Author of laws, has every right to inflict death on account of sin. For "the wages of sin is death." [Rom 6:23] Neither does His minister sin in inflicting that punishment. The sense, therefore, of "Thou shalt not kill" is that one shall not kill by one's own authority.⁽²²⁾

Is there any doubt whatsoever of the teaching, shared by St. Augustine and St. Thomas, that the state vindicates a transcendent divine norm of justice through the imposition of penalty?

D) Rejection of Arguments against the Death Penalty

Referring to the idea that the death penalty is inappropriate because an innocent person might be sentenced, or because "so long as man is existing in this world he can be changed for the better" Aquinas has the following words (also from ScG III, c. 146): "Now, these arguments are frivolous." He proceeds to argue regarding the danger of sentencing the innocent that

Indeed, in the law which says, "Thou shalt not kill" there is the later statement "Wrongdoers thou shalt not suffer to live" (Exod. 22:18). From this we are given to understand that the unjust execution of men is prohibited. This is also apparent from the Lord's words in Matthew 5. For after He said: "You have heard that it was said to them of old: "Thou shalt not kill" (Matt. 5:21), He added: "But I say to you that whosoever is angry with his brother," etc. From this He makes us understand that the killing which results from anger is prohibited, but not that which stems from a zeal for justice. Moreover, how the Lord's statement, "Suffer both to grow until the harvest," should be understood is apparent through what follows: "lest perhaps, gathering up the cockle, you root up the wheat also together with it" (Matt. 13:29). So, the execution of the wicked is forbidden wherever it cannot be done without danger to the good. Of course, this often happens when the wicked are not clearly distinguished from the good by their sins, or when the danger of the evil involving many good men in their ruin is feared.

Aquinas evidently is not among those for whom we can never with certitude identify the perpetrator of an evil deed. But his commentary regarding the "conversion imperative" for allowing criminals to live--an argument taken up in Evangelium vitae when it notes that "Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform"--is arresting. He addresses this issue in two distinct passages: one in the chapter of the Summa contra Gentiles from which the preceding quotations are derived, and the other from the Summa Theologiae (II-II, q. 25, a. 6, ad 2). I will first cite the comments of the Summa contra Gentiles:

Finally, the fact that the evil, as long as they live, can be corrected from their erors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at the critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probably judgment that they would never come away from evil to the right use of their powers.

The danger that threatens "from their way of life"--that is, not alone from their physical malice, but from everything that is bound up with moral viciousness and its tolerated existence in

society--is "greater and more certain" than the good that may be anticipated by their improvement. The cognate teaching of the Summa Theologiae is adduced precisely within the context of an argument in favor of having charity toward evildoers.

It is for this reason that both Divine and human laws command such like sinners to be put to death, because there is greater likelihood of their harming others than of their mending their ways. Nevertheless the judge puts this into effect, not out of hatred for the sinners, but out of the love of charity, by reason of which he prefers the public good to the life of the individual. Moreover the death inflicted by the judge profits the sinner, if he be converted, unto the expiation of his crime; and, if he be not converted, it profits so as to put an end to the sin, because the sinner is thus deprived of the power to sin any more.

Clearly Aquinas does not conceive human life as superordinate to the "good" of justice in society. Indeed, "both Divine and human laws command such like sinners to be put to death." One notes the term "command" (secundum legem divinam et hu-manam praecipiuntur occidi): it does not suggest the malleability to modern penal progress absolutized in some readings of Evangelium vitae. What are the implications of interpreting Evangelium vitae apart from the very tradition it prudentially applies? We must turn now to this issue.

III. St. Thomas and Evangelium vitae

Clearly there is no simple accord between the doctrine of St. Thomas and a prima facie interpretation of the teaching of Evangelium vitae apart from tradition. But might not the disparity between the two be a function of those developments in penal practice noted by the encyclical? Thomas could hardly have included these in his consideration. Yet despite the tremendous improvements in penal arrangements, this proposition is falsified on the rock of evidence. Men and women of other generations than our own have known of the oubliette, that part of a dungeon where a prisoner could be cast and forgotten. That a dangerous felon might be cast into a well and fed with a basket has always been known. Technology has made the well more comfortable,

and the food somewhat more nutritious. But the situation is not fundamentally changed. Given this fact, how can it be plausibly supposed that in previous epochs the Church approved the penalty only because it was "absolutely necessary" to the protec-tion of society? Indeed, when has any execution ever been "absolutely necessary" to the protection of society (if we under-stand by "protection" merely physical defense of minimal public order)?

For Thomas, there is no parity between just execution of the guilty and wrongful slaying of the innocent. Hence these words of the encyclical are read quite differently in the light of Thomas's teaching: "[57] If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the command-ment 'You shall not kill' has absolute value when it refers to the innocent person." What, precisely, is the force of this "if . . . then" proposition? It is the altogether rightful intent of the encyclical that the care bestowed to respect the gift of life even in the tragic context of a criminal may testify all the more to the absolute immunity from deliberate violence that this gift of life calls for among the innocent. Yet to value life rightly is to requite its abuse and violation proportionately to the severity of such crime. Equal formal regard for the humanity of each person seemingly requires different material respect for the freedom and life of the just and the unjust. Arguably an idealistic equal material regard for the life and liberty of all--for, say, a murderer, a thief, and an innocent citizen--will finally devalue innocence at the behest of mere survival.

The encyclical's generally negative evaluation of recourse to the death penalty (which is undoubted), when construed doctrinally, is often thought to present so apparent a disparity with the traditional doctrine as to suggest that a new element has been introduced in the consideration of the death penalty that would trump all the traditional arguments. Specifically, it might be thought that a development of doctrine regarding the

transcendent value of life could supply a premise for dissociating life from the general principles governing retributive justice. If such an argument were made in Evangelium vitae, it would then be possible to assess this argument vis-à-vis the tradition. If the argument proved sufficient, then there would indeed be a ground to reject the general norms of retributive punishment in the unique case of the death penalty while retaining them for lesser penalties. Even so, the coherence of this position would be diffi-cult to sustain, as analogical proportionality would then not be sustained betwixt life and the lesser but profound goods of free-dom, social integration, and so on--for the penalties touching each of these is contrary to a distinct good of nature, and so seemingly should be proportionally subject to the same principles (howsoever profound the differences). Yet in any case such an argument is not made; nor is it clear that any argument super-ordinating physical survival to justice can be consistent with either Scripture or tradition (clearly the most sublime sacrifice of life ever made--on the cross--is made in mercy to satisfy justice). Nor, lastly, are we now in possession of any principle that ex-empts human life as such from the general norms of retributive penalty.

Accordingly, the arguments of Evangelium vitae on the death penalty appear either (1) arbitrarily to dissociate this penalty from valid general norms of retributive justice, (2) to propound a novel ratio for penalty as such that justifies it solely by physical protection of public order (i.e., the reductionist argument), or (3) to articulate the tradition in the prudential order given the defining circumstance of an omnipresent culture of death. The third option is strongly suggested by a reading of the encyclical in the light of tradition. However, if we read the encyclical apart from tradition, then the second interpretation is both more consonant with the encyclical's actual argumentation about the death penalty and less arbitrary than is the first. For this reason, it is the second interpretation that commands our attention both as the most coherent reading of the encyclical apart from tradition, and also as an argument in its own right used to imply the wrongfulness of the death penalty as such.

B) The Reductionist Argument: Major Premise

Major premise: The state ought to execute criminals if and only if this is absolutely necessary for the physical protection of society.

Minor premise: But modern penal reform renders it unnecessary to the physical protection of society for the state to execute criminals.

Conclusion: Therefore, in societies blessed with the aforesaid modern penal reform the state ought not to execute criminals.

Before turning to the prudentialism of the minor premise, we ought first consider the major premise, for it is this which consti-tutes the most radical core of the argument against the licitness of the death penalty, and implies a shift in the view of the nature of the common good that is dubiously reconcilable with theism.

Major premise: The state ought to execute criminals if and only if this is absolutely necessary for the physical protection of society.

This is the premise that St. Thomas did not hold, if by it is meant "absolutely necessary for the protection of minimal order in society." Nor does one find this reduction of justice to physical security anywhere in Catholic sources prior to Evangelium vitae. If one incorporates within "protection of society" not only physi-cal protection, but also the manifestation of transcendent justice in society as constituting a good in its own right--as necessary for the conformity of man and social order to divine law, a higher end by far than mere Hobbesian survival--then there is no par-ticular doctrinal reason why justified uses of the death penalty should be absolutely "very rare, if not practically non-existent" (EV 56). Rather, these will be not doctrinal but variable prudential judgments conditioned by many factors. For justice then serves purposes distinct from its effect in facilitating social survival (while yet serving society understood in a morally richer way).

Furthermore, were the protection of society to embrace this noninstrumental (albeit not thereby nonteleological) good of justice, then there is also no reason why penal reform should be pertinent, since whether in the presence of given conditions a convicted felon merits the death penalty is an independent consideration. Nor may one plausibly say that the encyclical is teaching us precisely that the noninstrumental justice and prudence of the situation is that no felon ought ever to be executed. For to say that criminals ought not to be executed because the physical perdurance of society does not require it fails to exclude other putatively valid reasons, such as that society may validly desire to vindicate the order of justice and the dignity of persons by requiring the execution of those who commit the most grievous offenses, publicly and visibly cutting off such malefactors as unworthy of continued existence.

As noted above, Evangelium vitae may seem to presuppose that the physical protection of society is primary vis-à-vis redress of moral disorder--hence the encyclical's contextualization of the death penalty discussion in terms of legitimate self-defense. The reference to "offering the offender an incentive" to "be rehabili-tated" (EV 56) underscores this point. Admittedly the encyclical does speak of "adequate punishment": "Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime" (ibid.). But adequate to what end?

If by means of technological implants we may someday suppress crime without punishing criminals at all, ought we to persist in punishing them? If punishment is defined as St. Thomas defined it--"Punishment is something contrary to a good of nature, and thus is said to be evil,"⁽²³⁾ which is "contrary to the will"⁽²⁴⁾ and is "proportionate to the sin in point of severity, both in Divine and in human judgments"⁽²⁵⁾--why ought we to punish save insofar as this is required for physical protection of society? The answer for Thomas lies in the very nature of penalty itself, in the proportionality that defines justice, and in the medicinal

obligation to manifest the transcendent order of justice in society. On the holding of the Catholic tradition, the common good is defined by its relation to a morally transcendent order. It is only in relation to such an order that punishment as the righting of moral imbalance can be intelligible if it is not physically required for the minimal protection of public order. In short, while justice and the imposition of just penalty are ordered in part toward the physical protection of society, they are not "merely" for the physical protection of society but also and chiefly for the mani-festation and vindication of moral truth.

By contrast, the reductionist interpretation of Evangelium vitae appears to place the entire ratio of penalty in question, suggesting that inasmuch as penalty is not required for defense of minimal public order it is superfluous. In arguing that mere physical pro-tection is the primary aim of criminal law and penalty--such that a penalty not absolutely required for physical protection of soci-ety is to be avoided--the encyclical would then be construed to suggest that there is no question of justice pertinent to the com-mon good beyond physical protection. Yet surely this conflicts not alone with the antecedent Catholic view of punishment, but with the obligations of any decision-making power to cognize the whole truth that pertains to the doing of justice to the human person.

Surely it cannot be that only the most powerful of institutions, whose unrealism may do the most harm--the state--may justifiably act in disregard of that hierarchy of ends which defines the order of justice. Nor is it from a theistic point of view plausible to hold that the state is not charged with maintaining the common good of society. But this common good is, for the moral realist, defined vis-à-vis the form of transcendent moral truth as this is particularized in the way of a determinatio in the matter of a given society, with all its unique and distinctive history, limits, strengths, deficiencies, customs, and characterizing social ends. Yet in its particularization, the form is neither lost nor abandoned.

Granted, then, that there is a significant measure of freedom in assessing whether the larger justice owed to society may require prosecuting an issue of justice in some particular case; granted

also, therefore, that the ordering measure of justice invoked must be assessed relative to the common good of society and that as one of its prime aims it embraces the physical protection of society; nonetheless, it also and by its very teleology (as pro-moting the genuine good of a common social life) orders this common social life in accord with the whole moral order and proceeds from the aspiration toward the end of a good society. Such a teleological ordering is limited from "beneath" by pru-dence regarding the "social matter" of the particular society, and from "above" by the ethically normative hierarchy of moral ends, such that in any just consideration the major premise will reflect the ordering of ends, and the minor premise will reflect the pru-dential delimitations which particularize the approach to the end.

Of course, proponents of the incommensurability of basic human goods may presuppose that teleological order is not ethically significant--but this is a supposition contrary to the evidence of moral nature. Some critics suppose that if the natural order of ends is not sufficient to itself for moral purposes, it must be otiose.⁽²⁶⁾ Yet it is neither, as it calls for prudential completion through particularizing practical judgment and determinatio, through that extension whereby speculative knowledge becomes practical, as Thomas approvingly cites Aristotle.⁽²⁷⁾

Historically, there are varied reasons for retreat from the traditional and rich Catholic view of the common good toward

a reduced and somewhat impoverished sense of mere "public order." Inflections of minimalism about the common good have indeed haunted Catholic life since the Second Vatican Council. In the effort to come to terms with republican political institutions and the old liberalism--and to learn something thereby--the Church has prudentially muted certain aspects of its stress upon the transcendent dimensions of the common good. As earlier noted, in Dignitatis humanae, wrestling with the issue of religious liberty, the council fathers opted for the language of public order in express preference to that of the common good, so as to avert those prudential issues ineluctably posed by a richer notion of the common good. Yet this minimalism has never been entirely em-braced, in part because of difficulties with tradition, in part because it is conceptually unsatisfactory--and so the language of the common good reappears within The Catechism of the Catholic Church's treatment of religious liberty (CCC 2109). From this vantage point, the regnant minimalist interpretation of the teach-ing of Evangelium vitae regarding the justice of the death penalty constitutes another minimalist epicycle in the to and fro between rich and eviscerated senses of political common life.

Yet while many critics conceive that only through instrumen-talizing the idea of the common good may the Catholic Church become consistent with liberal order, it is arguably the case that a richer and more vibrant common good constitutes precisely what the lesser affirmations of the older liberalism need in order to be perfective of persons and lead to a good society. A pru-dential regard for the human good achievable through liberal in-stitutions--constitutional government, free markets, democracy-- need not suggest that these goods and institutions are not further ordered toward nobler ends. Even as today in the West secularists seek a regimen of law in which, while religion is permitted privately to exist, it is excluded from "the public square," so one may imagine a Catholic state founded upon antecedent consensus wherein the regimen of law might honor the whole truth about man as given in revelation without negating anyone's proclivity to private secularist dissent. Catholics may indeed distinguish between the ideology of liberalism and the value of liberal institutions.

If the logic of the reductionist interpretation of Evangelium vitae manifests a degree of utilitarianism in suggesting the loss of adequate moral grounds for punishment insofar as society may otherwise be physically protected, by contrast the idea of punish-ment as chiefly the righting of moral imbalance manifests an essentially Christian anthropology. If even the sacrament of con-fession may at times not remit the temporal penalty due to sin, how odd were society to view penalty merely as a utilitarian function rather than a function of justice.⁽²⁸⁾

Just as universalism about a putatively absolute right to religious freedom has prompted a fresh regard for the prudential and principled limits of such a right flowing from the nature of the common good, so also universalist clemency may prompt renewed consideration of the antecedent Catholic tradition regarding the nature of punishment.

C) The Reductionist Argument: Minor Premise

This brings us to the minor premise of the reductionist argument:

Minor premise: But modern penal reform renders it unnecessary to the physical protection of society for the state to execute criminals.

Even should one accept the factual claim that penal reform is universal, this minor premise, as essentially prudential, poses questions that need to be addressed. Precisely how does penal reform render it unnecessary for the physical protection of society to execute criminals? If this premise is to be the critical factor in abolishing the death penalty, further clarity about the nature of the reforms, how far along they ought to be, and just how they render the death penalty unnecessary to the physical protection of society are prudentially necessary. Upon reflection, it should become apparent that the variability of the prudential data can hardly suggest a uniform answer throughout the globe: surely the encyclical is not proposing a "one size fits all" criminological prudence.

The encyclical argues that crime may be suppressed without use of the death penalty, because criminals may be sequestered and so rendered harmless: "Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform" (EV 27). But this raises the issue of whether mere sequestration is always a penalty tantamount either to the purposes of deterrence or the manifestation of the proportion of justice. Is a life sentence in an air-conditioned facility with cable TV always either sufficient penalty, or sufficient deterrent, to grave crime? What of the continued danger to guard personnel? Is their safety not com-prised in the protection of society? What of released criminals who murder even after earlier clement treatment for other crimes (one recollects the man who built the state of Ohio's electric chair while incarcerated for theft, was released, and then committed murder--finally to be executed in the very chair he had built)?⁽²⁹⁾

The point here is not to argue any universal norms of deter-rence, or of intraprison safety, but merely to identify prudential elements that potentially may break the link between "suppres-sing" crime and merely "sequestering" criminals. Yet without this practical link the conclusion of the reductionist reading of Evan-gelium vitae will not invariably follow. Ergo one reasonably looks to the larger purpose of the encyclical as a whole to provide guidance on this point. First I shall frame the difficulty, and then suggest an alternative reading of the encyclical.

D) The Prudentialist Argument

The difficulty is that, inasmuch as there are more factors that bear upon crime than are affected by sequestering the criminal, one cannot reason from rendering the criminal harmless to the requisite deterrence of similar criminal acts by others and the cor-responding suppression of crime. The argument about deterrence

is by its very character difficult of proof. But to claim that the death penalty has never deterred anybody, anywhere, would seem rather a fanciful proposition. And it is precisely the deterrent factor that St. Thomas refers to as a "medicinal" ground for punishment.⁽³⁰⁾

How could the deterrent factor be known--about any given society, much less about all given societies--without an enormous volume of study? And surely such data also change. If the deter-rent factor varies amongst different peoples, if it is not a datum one can know in advance, and about the whole world, short of prophetic charism, and if it also may change for any given people, then the minor premise in the encyclical cannot predictably sustain the doctrinally universalist clemency that according to a reductionist reading it putatively supports. In short, the reduc-tionist interpretation of the encyclical apart from tradition sug-gests that the encyclical places great weight upon arguments that clearly cannot bear the weight claimed for them.

As an answer, I would suggest that by contrast and in the light of Catholic tradition it is arguable that societies perceived as unwilling to impose the maximal penalty--no matter how grave the crime or how pressing the prudential considerations--may fail to deter crime. Insofar as it is conceivable that this may anywhere or at any time be true, the sequestration of criminals apart from further punishment may prove insufficient to suppress crime. Where and insofar as this is true, the encyclical as construed in the light of tradition makes clear that the need for defense of society may (other things being equal) license use of the penalty.

While the encyclical does insist that need to impose the penalty is a rare condition, this cannot plausibly be construed as an effort to supplant prudential contactus with diverse societies, legal institutions, and criminological realities with a universal criminological prudence. A more plausible reading is that, in the light of the culture of death, the encyclical stresses that it is better for contemporary societies to avoid the use of the penalty. Insofar as this is pertinent to the larger motivating purpose of the entire encyclical, even an astute intratextual reading should see this

prudential feature of the argument. This will be especially perti-nent inasmuch as contemporary secular societies tend to lack the basis for imposing the death penalty in a virtuous fashion,⁽³¹⁾ and apparently no longer embody those moral norms by reference to which such penalty is morally intelligible. Ironically, part of this loss of moral normativity is a function of the moral evacuation of the common good in contemporary secular societies, and the loss by these societies of that reference to the transcendent order of justice which the imposition of penalty is ordered to manifest. So interpreted, Evangelium vitae is posing a prudential moral argu-ment, adverting to the practicality (and retributive character) of other penal arrangements pending the social restoration of those moral norms necessary for right social and legal order--at which time the death penalty may, if needed, be more likely to be rightly understood and virtuously imposed.

One might inquire why the disabilities of the solipsist culture of death which disrupt the social intelligibility and conditions for virtuous imposition of the death penalty do not alike proportion-ately vitiate imposition of every penalty. In truth, this is the case. But in cases of disabling disorder, we always seek primarily to forestall the most grave miscarriages. So, we are aware that a drunk may abuse the slamming of doors, the use of language, and so on: yet we primarily try to prevent his abuse of driving a car, or of sharp instruments, or firearms, even while realizing that we cannot avert all manifestation of systemic disorder in lesser matters. This is all the more true in society, wherein social func-tions will be carried out even when owing to systemic moral disorder it is clear that they will be performed, to some degree, in the wrong way. It is in just such a case that Evangelium vitae urges us to avoid use of that intrinsically licit penalty whose contingent yet predictable wrongful application (because social conditions for virtuous imposition and social understanding of the penalty are occluded) would be a most grave miscarriage. But why, then, ought society fall back on the use of the death penalty if it proves requisite to deterrence? Suppose that a drunken man

is the only, or assuredly the best, hope for a person to receive emergency life-sustaining help. Might not even the drunk, in such a case, morally attempt to save the person's life? Similarly, if the penalty is requisite to deterrence, to forestall society from exact-ing it because of its systemic failure in understanding the good of life will be to encourage even further depradations against the good of life--which is not the purpose of the prudential prohibition. So, the deed done is then in a sense necessary, and so socially justifiable even where the accident of disabling circum-stance would otherwise obviate it.

By contrast, where the prime medicinal effect of penalty is achievable, the culture of death analysis appears inapplicable. Where a given society understands its power to assign and impose penalty as delegated and confined within a larger order of justice, and truly understands the death penalty as manifesting a transcendent norm of justice (the prime medicinal effect of penalty), it is not making the wrongful implicit claim of autono-mous dominion over life and death. The evil of such a false dominion leads to the wrongful imposition of the penalty by societies that clearly do not fathom the role of any transcendent order of justice in social life, in the order of law, or in political community generally. For such communities as these to impose the death penalty may well constitute a false antinomian claim to authority over life and death as such--matters to which the authority of the political community rightly reaches only through divine delegation. Lacking the primary medicinal end of the penalty, only very strong evidence of its deterrent worth would embolden one to entrust so metaphysically deracinated a culture and a political community with its imposition.

IV. Conclusion

From a Thomistic vantage point, the reductionist inter-pretation of Evangelium vitae is difficult to reconcile with Catholic tradition, because this tradition must consider the political state as providentially bound to acknowledge and imple-ment a morally transcendent order of justice. So long as Catholics do not become contract theorists or Hobbesians, they must

conceive the state as executing an order of justice that transcends it in origin, majesty, and truth. Only on such a ground does punishment as a righting of moral imbalance make sense. This is, implicitly, the trouble faced by largely secular societies that aren't themselves any longer sure why they should punish if society may be otherwise physically protected.⁽³²⁾ But this does not appear to be an option consonant with Catholic belief. Hence the reductionist major premise seems to embrace an instrumentalist view of the common good that is, finally, incompatible with the infliction of any punishment save on grounds that appear remarkably utilitarian. It appears a fortiori to follow that this cannot count as an authentic reading of the encyclical.

Finally, the moral ratio of punishment itself seems endangered by the effort to sever the encyclical's reasoning from tradition. The merely intratextual and prima facie reading of Evangelium vitae regards the divinely delegated authority of legitimate states to manifest justice through the imposition of penalty as falling under the same logical lens with acts of self-defense by private parties. But formally to commingle private, individual acts of self-defense with the political community's exaction of justice is seriously problematic. The depth of this difficulty is apparent in separating the encyclical's use of the word "medicinal" as meaning "rehabilitative" from the wider aspects of medicinality bespoken in tradition.

Some may wish to stress that the imperative not to cut short the felon's earthly time to repent by untimely execution is, itself, derived from the transcendent moral order. Hence, on this view, no issue of instrumentalization of the common good arises in claiming that the wrongness of capital punishment is a develop-ment of doctrine. This proposition ignores the reductionist claim that absolute necessity for merely minimal physical protection of society is the absolute criterion for just imposition of the death

penalty. But, on the supposition that we drop this reductionist emphasis upon mere physical protection, and focus upon the issue of a moral imperative to give criminals more time to repent, we still find little support within the Catholic tradition. This is indicated by the tradition's approval of the licitness of the penalty, in the direct knowledge that it does indeed cut short a felon's time for conversion. While this concern might in given circumstances support a prudential preference to avoid the penalty, taken as universal doctrine this teaching does not seem to cohere with the tradition of the Church on this subject. It ought not quickly or lightly be supposed that Evangelium vitae seeks within the compass of a few paragraphs to contradict prior Church tradition.

The minor premise of the regnant interpretation of Evan-gelium vitae is likewise uncompelling, because so interpreted, the propositions of the encyclical are prudentially falsifiable. But the encyclical cannot intend to predicate a universal doctrinal nega-tion upon shifting and variable prudential data. A universal pru-dential claim about the medicinal element of deterrence is almost impossible to substantiate inasmuch as it is contingent upon which penalties deter and which do not (a datum which changes within any given society, and presumably also differs among various societies). It is more reasonable to interpret this premise within Evangelium vitae as identifying the actual feasibility within most societies of relying upon other means for penalty for so long as the culture of death renders this penalty both morally un-intelligible and unlikely of virtuous application.⁽³³⁾

In the presence of concurrence among the Fathers and Doctors of the Church, prior pontiffs, and the two great doctors of the Latin Church (St. Augustine and St. Thomas) regarding the licitness of the death penalty, a principle rooted in revelation would appear to be needed to justify a genuine doctrinal shift. Perhaps it may eventually be theologically clarified how a

changed sense of the good of human life in respect of its teleo-logical order to beatific fellowship with God may root such an argument. But one is obliged to point out that the argument is not made in Evangelium vitae, that the reductionist interpretation of Evangelium vitae to this effect is vulnerable to decisive criticism from tradition, and that, were the argument made, it is unclear how human life--however profound a gift--could elude a principle of proportional penalty applicable to all goods of nature.

There will always be grounds for considering whether the death penalty--or any particular penalty--may not be problema-tic on essentially prudential grounds, owing to some foreseeable harm that may accrue to the common good through its use (civil war, prejudicial application, etc.). In particular, the prudential issue of countering the culture of death must condition our contemporaneous judgments. The antinomian claim to originative jurisdiction over the gift of life that is implicit in the legal and moral culture of many polities, and blockage of the primary medicinal end of penalty by the widespread loss of transcendent reference for the common good, are defining circumstances from which our practical judgments ought not abstract. In a secularist society lacking coherent norms to identify human life, and lacking metaphysics and revelation to illumine its end, to permit the use of the death penalty may be akin to giving a drunken man a shotgun. But this is a prudential application of Catholic doctrine by the magisterium to a widespread moral, cultural, and legal circumstance, rather than purely a doctrinal development in its own right.

Mercy toward the criminal occurs in the context of justice: where justice is no longer the norm, acts of mercy no longer signify the same thing. Most importantly, mercy itself deploys justice, for it is because of justice that we invoke and flee to the divine mercy. Where justice is permitted to fail, and the evildoer murders with no threat to his own existence, conversion through recourse to the divine mercy may itself be impeded. For God is infinitely just and infinitely merciful, and we cannot be "more" merciful by being "less" just. Our justice points toward the final mercies--the man approaching the block or the hangman's noose

knows with certitude the need for final rectification of conscience. It is puerile to suggest that there are not persons who require such an occasion for the changing of their hearts. Yet part of the evil of the culture of death is that it socially occludes the moral intelligibility of justice as participating the transcendent order of divine providence. Hence the need to avert the worst abuses of this devastation of the common good and of our legal and moral culture arises from the nature of justice itself, which is medicinally ordered toward the healing and purification of society through manifestation of the truth. It accordingly follows that where the juridic and moral norms governing life are socially obscured, the prime medicinal end of the death penalty is impeded. Finally a true embrace of the divine mercy ought to mandate a renewed regard for the demands of justice as itself sacral. Only then will true mercy be exalted in its full grandeur, highlighted and brought forth from the dialectic of justice in a fallen world so well described by St. Paul.⁽³⁴⁾

1.The two exceptions are Tertullian, who died outside the Church, and Lactantius.

2.Cf. Acta Apostolicae Sedis 47 (1955): 81-82, recounting this teaching of Pope Pius XII within this century.

3.St. Augustine, The City of God, 1.21.

4.English translations are preponderantly derived as follows, any reformulation being mine: the Vernon J. Bourke translation of the Summa contra Gentiles (University of Notre Dame Press, 1975); Fathers of the English Dominican Province translation of the Summa theologica (Benzinger, 1947); Cyril Vollert translation of the Compendium of Theology (Herder, 1952). The Ottawa edition of the Summa Theologiae (College Dominicain d'Ottawa, 1941), and the Leonine edition (Sancti Thomae de Aquino opera omnia, vol. 14 [Rome, 1926]) of the Summa contra Gentiles, are used as the basis for any slight reformulation I may have introduced.

5.STh II-II, q. 64, a. 3, ad 1; also, note this same principle in STh II-II, q. 64, a. 6, ad 3.

6.STh II-II, q. 64, a. 3, resp. and ad 1; see also STh II-II, q. 25, a. 6, ad 2.

7.And one also loses important intratextual reference, as the encyclical primarily addresses the contingent but arresting spectacle of the culture of death, and its treatment of capital punishment needs to be understood as a prudential dimension of the Catholic response to the culture of death.

8.STh II-II, q. 64, a. 7.

9.While this sense of the "medicinal" is distinct from the use of the term within the Catechism of the Catholic Church (in which the medicinal character is understood in terms of its contribution "to the correction of the offender" [#2266]), these senses are by no means necessarily opposed. The rehabilitative sense is potentially included in the social sense of medicinality (clearly the rehabilitation of the criminal contributes to strengthening and healing society).

10. STh II-II, q. 43, a. 7, ad 1.

11. STh II-II, q. 108, a. 3, ad 2.

12. In this order of providence, given the presence of temptation and evil, it is difficult to imagine a society for which the deterrent function would be generically unnecessary.

13. Quodl. 2, q. 8, a. 2, ad 3: "it must be said that satisfaction is both punitive inasmuch as it is an act of vindictive justice, and also medicinal inasmuch as it is something sacramental" (trans. Sandra Edwards [Toronto: Pontifical Institute of Medieval Studies, 1983])

14. STh I-II, q. 95, a. 2.

15. ScG III, c. 142.

16. STh I-II, q. 95., a. 2.

17. Note the congruity with the case of a proper accident, e.g., risibility in man, which is not contained among the quidditative notes of the nature "man" but nonetheless flows from the nature. Risibility necessarily follows upon the rational form. In partial similarity, given certain grave matter and the form of justice, it is consistent for St. Thomas to have thought that certain determinationes of penalty are naturally most befitting or even required.

18. STh II-II, q. 58, a. 7, ad 2.

19. STh II-II, q. 64, a. 2.

20. STh II-II, q. 64, a. 2, ad 1.

21. STh II-II, q. 64, a. 2, ad 2.

22. This commentary is reprinted in The Catechetical Instructions of St. Thomas Aquinas, trans. Joseph B. Collins (Manilla: Sing-Tala, 1939), 93-94.

23. ScG II, c. 83.

24. ScG III, c. 141.

25. STh I-II, q. 87, a. 4, ad 1.

26. Cf. Robert P. George, "Recent Criticism of Natural Law Theory," The University of Chicago Law Review 55 (1988): 1371-1429. Page 1428 provides one example: "The attempt to resolve choices involving religion (or anything else) by reference to an alleged principle of objective hierarchy, by contrast, seems hopeless inasmuch as it either requires us virtually always to choose for the sake of religion, or fails to provide a principle on the basis of which to decide when choices for religion are required and when they are not." But it is one thing for knowledge of the hierarchy of ends to be a necessary condition of sound prudential judgment; it is something else for it to be the sufficient condition of sound prudential judgment. Moreover, human agents are diversely situated vis-à-vis the fixed ends of life, calling for diverse routes to the final end. This does not imply an absence of principle, but rather the crucial role of the prudential knowledge of contingent means, which necessarily conditions practical affairs.

27. STh I, q. 79, a. 11, sc.: "Sed contra est quod dicitur in III de Anima, quod intellectus speculativus per extensionem fit practicus." Note that the balance of the article indicates Thomas's concurrence, hence, ad 2 of the same article: "ita obiectum intellectus practici est bonum ordinabile ad opus, sub ratione veri. Intellectus enim practicus veritatem cognoscit sicut speculativus; sed veritatem cognitam ordinat ad opus."

28. See note 12, above.

29. Ironically, the felon's name was Charles Justice. While serving time for theft, he built the state's first electric chair, in 1897. Later after release on the theft charge, he was convicted for murder, and executed in the very chair he had built. See The Chronicle Telegram, from Elyria, Ohio, July 23, 1995. I am indebted for this information to the Death Penalty Information Center and Ms. Carrie Rodriguez.

30. STh I-II, q. 87, a. 3, ad 2.

31. Hence the obsession with giving what is essentially a moral and punitive judgment a hygienic and ersatz medical form, ministering more to the secular sensibilities of those punishing than to the solemnly moral and penal character of just execution.

32. This may also explain something of the ineffectiveness of punishments in secular society, inasmuch as the moral code they enforce is otherwise left derelict, unarticulated, orphaned, and silent in society at large. Inasmuch as positive moral vision is suppressed as constitutive of the common good, the criminal may tend to assuage himself with the sentiment that his suffering is merely the result of being crushed by a governmental power which is no more ordered to the common good than has been his own.

33. It must be remembered: just penalty ought to be virtuously applied. Whereas, the hygienic mask drawn by contemporary societies over the death penalty implies lack of insight into its nature and purpose and also into the nature and destiny of the individual subject thereto, in behalf of mere subjective comfort on the part of those punishing. This would appear to be the very opposite of manifesting a transcendent order of justice in society.

34. I would like to thank the following for their assistance: Greg LaNave of The Thomist, for helpful editorial suggestions; Professor Russell Hittinger of the University of Tulsa for his criticism and insights; Mr. Gene Keating for his sense of possible sources of Evangelium vitae's language beyond the given text; Professor Richard Berquist, from the University of St. Thomas, and Professor John Goyette, of Sacred Heart Major Seminary in Detroit, for their comments, criticisms, and suggestions