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By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.

01.02.19 | Denver Journal, Apologetics and Ethics, Ben R. Crenshaw | by Edward Feser and Joseph M. Bessette

By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.

    A Denver Journal Article Review by Denver Seminary Alumnus Ben R. Crenshaw

    Edward Feser and Joseph M. Bessette, By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment. San Francisco: Ignatius Press, 2017. Paperback, $18.79. 420 pp. ISBN: 978-1621641261.

    From time immemorial, capital punishment as the final and most severe judicial sentence meted out by governments has been practiced without remorse by societies around the world. However, in recent centuries, the death penalty has come under repeated attack. While abolitionist movements originated in secular circles, Christians can be easily lured into joining their ranks by decrying capital punishment as inhumane or contrary to the teachings of scripture. The Catholic Church has slowly nudged in this direction since the twentieth-century, but with the election of Pope Francis in 2013, the Church under his leadership has called for the abolition of the death penalty on multiple occasions. Not all Catholics agreed with such a drastic break from the Church’s longstanding support of the death penalty, and Edward Feser and Joseph Bessette set out to show why in their new book, By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.

    Feser and Bessette begin their defense of the death penalty with an in-depth discussion of traditional (i.e., Thomistic) natural law theory. This is the philosophy that grounds their metaphysic of the good, moral obligation, natural rights, and punishment (and thus capital punishment). Something is good insofar as it functions as it is designed and according to its end or telos, and likewise, “natural” refers to the inherent causes a thing possesses in keeping with its essence. Goodness, then, is what fulfills our nature, not just what we desire. Moral action should to be in pursuit of this goodness and opposed to evil, and reason aids us in discerning how to fulfill our natural ends. Feser and Bessette reject Hume’s is-ought (or naturalistic) fallacy, and instead posit that goodness is implicit within nature and can be known and freely pursued by taking an external, objective, third-person view of ourselves. Natural human rights arise in response to natural goodness and human obligation: rights are the means by which we fulfill obligations ordered toward the pursuit of the good (among other things, this means that a “right to do wrong” is unintelligible).

    When it comes to punishment, the world is designed by God such that pleasure follows from certain goods and pain follows from certain evils, both of which either encourage or discourage us from seeking good or evil. When an evildoer does wrong, he acts in a way contrary to the ends toward which nature (and God) direct him. When the evildoer is caught, “punishment is a matter of restoring the natural connection between pain and acting contrary to nature’s ends” (p. 39). Through his indulgent will, the evildoer has not only disrupted the balance between good and evil in nature, but he has incurred a debt against society. Punishment restores this natural and societal imbalance, and forces the wrongdoer to pay the debt he owes society. In these ways, punishment is seen to be good in itself and not just good for instrumental (and social) purposes (e.g., deterrence and rehabilitation). Because it is intrinsically good, it is fitting when humans evidence a natural inclination to inflict punishment upon evildoers—that is, as long as these desires are motivated by virtue (like justice), instead of hatred or revenge.

    Punishments must also be proportional to the crime committed in order for the punishment to be just and right. While most people think of proportionality solely in terms of quantitative measurements, a qualitative component is also present (e.g., while all murders result in death, not all murders are equally heinous; some are much worse than others). Inflicting a just punishment upon the wrongdoer that he deserves has traditionally gone under the title of “retributive punishment.” This is the primary purpose of punishment, but it does not exhaust the ends of punishment: punishment can also be corrective or rehabilitative, serve as a form of deterrence for other would-be criminals, incapacitate offenders intent upon harming again, or compensate victims of their loss. However, because each of the other purposes of punishment first require that the wrongdoer deserve such correction, all punishment is fundamentally retributive. Finally, when an evildoer commits a transgression, they face consequences on multiple levels: their conscience afflicts them, the appropriate authorities will discipline or punish (whether at the family, local, state, or national level), and above all, he will face divine justice. Since the head of the social order (i.e., governing officials) is responsible to do justice toward those who endanger that social order, and since God has in part delegated his authority to punish to public officials, human governing authorities have the right and responsibility to punish wrongdoers.

    Following this discussion, Feser and Bessette then construct a simple argument for capital punishment (p. 52):

    1. Wrongdoers deserve punishment.
    2. The graver the wrongdoing, the severer is the punishment deserved.
    3. Some crimes are so grave that no punishment less than death would be proportionate in its severity.
    4. Therefore, wrongdoers guilty of such crimes deserve death.
    5. Public authorities have the right, in principle, to inflict on wrongdoers the punishment they deserve.
    6. Therefore, public authorities have the right, in principle, to inflict the death penalty on those guilty of the gravest offense. 

    The authors take some time to unpack and defend this argument, but the key is that if one concedes desert as a necessary aspect of punishment, the principle of proportionality, and the right of public authorities to mete out just punishment, then capital punishment logically follows.

    In the rest of the chapter, Feser and Bessette offer rebuttals to common objections to the death penalty, as well as responses to rival ethical theories. For example, a frequent criticism is that capital punishment violates the right to life. This objection is often summed up in the pithy, but intellectually vacuous, platitude, “Why do we kill people who kill people to show that killing people is wrong?” Not only does this conflate killing simpliciter with a specific kind of killing—murder—but it commits a basic error in moral epistemology. We all know that murder is wrong, long before the criminal is confronted, arrested, tried, and sentenced. It’s not as if we must wait for the guilty verdict and execution to show us that murder is wrong before we can know that murder is wrong. While the law does contain a didactic purpose to help instruct citizens on morals, the primary purpose of criminal law is justice. Additionally, the objection equivocates between innocence and guilt, and begs the question of whether one can do something so evil as to forfeit the right to life, making it not only permissible, but just, for society to put that person to death.

    Regarding other ethical theories, Feser and Bessette quickly dispatch with Kantian ethics and consequentialism or utilitarianism, before spending a bit more time on what’s known as “new natural law” theory (NNLT). This last approach is distinct from traditional natural law in that it is subject-focused, emphasizing practical reasons that a person has for pursuing basic goods that are self-evidently grasped. While we cannot get into the weeds of the debate, most NNLT scholars believe that capital punishment is immoral, as it destroys one basic good—life. Feser and Bessette do an admirable job of laying out the differences between the two natural law views, before raising a number of problems with the NNLT account of natural law in general, and its opposition to the death penalty in particular.

    The second chapter is titled “Church Teaching and Capital Punishment,” which serves the purpose of walking the reader through Old and New Testament texts, as well as traditional Catholic doctrine on the death penalty. Appropriately, Feser and Bessette spend a considerable amount of time on the locus classicus of biblical texts on capital punishment: Genesis 9:5-6. They point out that in this passage, God commands the death penalty on the basis of human dignity, in direct contradiction to abolitionists who claim that human dignity requires opposing capital punishment. Some biblical scholars attempt to skirt around this passage by claiming that it is proverbial in that it describes what tends to happen when you live violently (cf. Jesus’ words in Mt. 26:52). But this approach strains hermeneutical plausibility: God himself is speaking, and three times he says, “I will exact punishment.” Neither the context, the genre, nor the Genesis narrative fit a proverbial reading.

    In the NT, Feser and Bessette spend most of their time on Matthew 5 and Romans 13. Jesus’ statements in Matthew 5:38-41 have nothing to do with capital punishment, or any kind of criminal justice. In context, Jesus has just affirmed that he did not come to abolish the Law and Prophets, but to fulfill them (Mt. 5:17-20). Additionally, in Matthew 5:21-22 Jesus implicitly affirms judgment for murder, so his comments in vv. 38-41 should not be read as refuting this. Instead, Jesus is teaching the believing community how to respond to lesser wrongs without retaliation (e.g., insults, conscription, etc.). This is not applicable to the government’s responsibility to enact justice against wrongdoers. As Feser and Bessette point out, if Jesus’ statements here do overturn capital sentences, why would it not also overturn all other criminal punishments (prison, fines, probation, etc.)? The authors also take Romans 13:1-4 to clearly teach that governments have been ordained by God to praise the righteous but punish the guilty, up to and including the death penalty (“bear the sword,” v. 4)—probably a reference to the Roman right of ius gladii by which they put criminal citizens to death.

    This section on Old and New Testament passages was sufficient for the purposes of the book, but at times Feser and Bessette come close to proof-texting, and at other times important considerations are left out. What is needed is a further exposition of the texts they highlight within an overarching narrative framework that employs a coherent cross-testamental hermeneutic (i.e., Jesus’ relationship to the Torah, his views of the state, purpose of his ethical injunctions and exhortations, etc.) that can be applied to a modern context that is quite different from the ancient one.

    After handling the biblical data, Feser and Bessette spend a considerable amount of time on what the fathers, doctors of the Church, and various Popes believed about capital punishment. This section will only be of ancillary interest to Protestants who do not look to the church fathers, Popes, or the Magisterial teaching as religious authorities on public ethics (although there is plenty to learn from Catholic religious figures). Feser and Bessette convincingly show that all of the following church fathers endorsed capital punishment in principle, if not in practice: Athenagoras of Athens, Tertullian, Lactantius, Clement of Alexandria, Origen, Cyprian of Carthage, John Chrysostom, St. Gregory of Nazianzus, Ambrose of Milan, St. Augustine, and St. Jerome (among others). The rest of this chapter focuses on church councils and the teachings of various Popes (e.g., Innocent III, Leo X, Pius XII, John Paul II, Benedict XVI, and Pope Francis).

    My only major criticism of the book comes in this chapter. Feser and Bessette spend over 84 pages of a 115-page chapter mired in detailed analysis of intra-Catholic doctrinal debates, while only 15 pages are devoted to exegeting Old and New Testament texts. While their exegesis is decent, much more could and needs be said about the biblical corpora, both at a textual level, but also at the biblical-theological and systematic levels. Since they are Catholic and the book is a Catholic defense of the death penalty, it is certainly within the authors’ right to focus on Catholic-specific issues in relationship to the death penalty (and this is a pressing need), but one wonders why we should care more than five times as much about the words of fallible man than the revelation of our triune and morally prefect God. This is not to say that patristic, papal, and other ecclesial investigations of capital punishment cannot yield valuable insights, for they can. Still, the point is as much a theological one as it is practical: since Catholics also hold the Bible to be God’s word to us that is truthful and applicable today, further exposition and explanation of Scripture’s teaching on the death penalty would aid Catholics just as much as Protestants.

    In the second half of the book, Feser and Bessette pivot their focus from philosophical, scriptural, and ecclesiastical concerns to legal, criminal, and social-scientific issues relevant to the death penalty debate. They address in detail the 43 murderers who were put to death in 2012, showing beyond a reasonable doubt that they were guilty and worthy of death. They cover the issue of repentance and the death penalty, and argue that it is highly unlikely that an innocent person will find themselves facing execution. They delve deeply into the debate over deterrence (spoiler: the death penalty does deter murderers and saves lives), and they show conclusively that, as currently practiced in the United State, the death penalty is not administered in a racist manner, nor does it discriminate against the poor.

    Feser and Bessette should be commended for writing the most exhaustive and convincing defense of the death penalty to date. There is nothing of import that is left out. There is no abolitionist argument that is not addressed and refuted. And there is no flimsy cultural cliché that survives the impeccable logic and weight of evidence that the authors marshal. For those contending for capital punishment as a just and humane aspect of our criminal justice system, Feser and Bessette’s book will be of indispensable aid. 

    Ben R. Crenshaw, MA
    Denver Seminary
    January 2019

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