by David Baer
Among democratic nations, a broad, but not universal, consensus considers the death penalty inappropriate. To be sure, this consensus is not without its critics. The philosopher Immanuel Kant believed justice required the death penalty, and many today, following Kant, have argued that to abolish capital punishment is to undermine principles of justice essential to a healthy body politic. This debate has also been carried out within the Christian churches. The churches, historically committed to the idea of retributive justice, long supported the death penalty, turning against it only in the twentieth century. Indeed, John Paul II, exercising his papal magisterium, came close to rejecting the death penalty altogether in the encyclical Evangelium vitae. By voicing his objections in an encyclical, the pope raised the theological stakes in this debate significantly. Some argued that, with Evangelium vitae, official Catholic teaching had come to reject the death penalty. Others argued that the Pope was not free, and hence never intended, to develop Catholic teaching in such a radical direction. The debate rages on; but rather than entering into it directly, I propose to address a different question: what do these competing Christian evaluations of the death penalty teach us about justice and punishment?
To consider the death penalty is to consider the distinction between justified and unjustified killing. Generally within the Christian tradition, killing, in order to be justified, has needed to meet two conditions. First, it must be authorized. Only God holds authority over life and death; therefore, justified killing must be authorized by God. In the early stages of the Biblical history God sometimes authorized killing human beings directly with a divine command. Aside from those ancient exceptions, however, God has bestowed authority over life and death to government. Absent a divine command, the authority to kill belongs to government alone. Second, killing is only justified when a person deserves it. The distinction between justified and unjustified killing thus overlaps with the distinction between guilt and innocence. The authority over life granted by God to government is not arbitrary but discriminate. It is exercised legitimately only in appropriate circumstances. Specifically, government’s authority to kill extends only over persons who are guilty of wrongdoing. By doing wrong, a criminal renders himself liable to judgment. Government is authorized to enact that judgment through punishment, including in some cases the punishment of death.
Christian thinking about killing is therefore closely related to the idea of punishment; and Christian thinking about punishment is embedded in a larger framework of reflection on government. According to the tradition, government has been instituted by God to protect public order and promote the common good. Government carries out this work of preservation by administering justice. Human communities, if they are to survive, must establish and sustain justice. Should persons within a community fail to respect one another’s rights, the social fabric and stability needed to carry out meaningful human activities would unravel. In this fallen world corrupted by selfish interests, protecting public order depends upon punishment. Government, by punishing those who do wrong, protects the innocent and preserves the social order necessary for human flourishing.
Let us note that this Christian account of justice and punishment contains elements of both utility and retribution. Utility refers to the aspect of justice which fosters social outcomes; retribution refers to the part of justice dealing with rewards and penalties, or what people deserve. Ever since British utilitarianism, philosophers have been tempted to view utility and retribution as mutually exclusive concepts. This is a mistake. By definition justice concerns our relations with others. When we treat others justly, we both contribute to a social good and benefit ourselves. That is why, as Plato noted in the Republic, justice is a thing desired both for its consequence and for its own sake. Justice serves the social welfare, which means it has a utility value. At the same time, those who do wrong deserve to be punished, because they have violated the order of justice, which itself benefits society. Often Christians speak of three uses of the law: to protect society, to expose and punish sin, and to provide a guide to righteous conduct. Similarly, punishment, because it acquires meaning from its relationship to law, has at least three purposes: to protect society, to punish wrongdoing, and to work toward the rehabilitation of the wrongdoer (Witte 2006, 263-292).
Those who oppose the death penalty frequently argue that this form of punishment does not serve the public good (hence it lacks utility). An argument along such lines was advanced by John Paul II in Evangelium vitae:
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. . . .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.
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. (Evangelium vitae, 56)
The purpose of punishment is to defend public order. When attempting to assess an appropriate punishment, therefore, one must evaluate the extent of the harm inflicted on that public order by the offender. According to the pope, improvements in the modern penal system mean the death penalty is no longer needed to defend society (presumably, we can imprison the most dangerous criminals for life). Thus, for all practical purposes, the death penalty is ruled out under modern conditions.
At the time Evangelium vitae was released, some conservative objected that John Paul II was muddled headed. According to the critics, the Pope’s argument necessarily, although inadvertently, entailed rejecting the concept of retribution. To assert a punishment is unjustified if unnecessary, the critics said, is to conceive punishment in utilitarian terms. But a utilitarian account of punishment, because it lacks a sense of retribution, cannot explain why this person deserves to be punished as opposed to others. If the only point of punishment is to defend society, we might as well punish the innocent when doing so would produce social benefits.
This criticism, however, presupposes that utility and retribution are competing concepts, when often they are reinforcing. To insist on retribution is to insist that the person being punished deserves it, and a person deserves punishment only if he is guilty of something. Precisely for this reason, though, the idea of retribution logically depends upon a prior concept of justice. To know who has acted unjustly, one must first know what justice is; and justice, because it promotes the common good, has a utility value. Even so, those who act unjustly deserve to be punished, because it is they and not others who have injured the public good. Their punishment, justified retributively, simultaneously protects and promotes the common good.
Another conceptual error committed by the Pope’s critics has been to confuse retribution with proportionally. Proportionality is the principle which stipulates a punishment must “fit” the crime. Proportionality is thus preceded by, but not identical with, retribution. First, one determines who deserves punishment; then one determines which sort of punishment is measured, or proportionate, to the crime. Assessing a proportionate punishment requires evaluating the seriousness of the crime, but the weight assigned particular crimes depends on the framework of justice against which the crime took place. Thus a degree of cultural variation rightly obtains in matters of punishment. What counts as a serious crime in one time and place may not be as serious in another. Nevertheless, assessments of proportionality are not completely relative. The lex talionis (an eye for an eye), mistakenly understood as expressing the principle of retribution, actually addresses the matter of proportionality. The lex talionis limits proportional judgments by a rule of equality; no more than an eye for an eye, that is, no more than one for one. So, for example, to lop off a man’s hand for stealing is inherently disproportionate, since bodily integrity is worth more than material possessions, and a hand cannot be replaced but property can. For Christians, the measure of proportionality is also informed by the teachings of Jesus, who, by counseling his disciples to turn the other cheek and forgive their debtors, seems to suggest that even the rule of equality is disproportionate.
When John Paul II ruled out the death penalty, he never claimed that criminals do not deserve to be punished; he claimed only that under modern conditions they do not deserve the punishment of death. In other words, the Pope never rejected the principle of retribution, rather he articulated limits on the principle of proportionality. Clearly the death penalty is not a suitable punishment for every crime. For which crimes, then, is it proportionate? Arguably, only for those crimes which threaten public order in a profound and existential way. John Paul II has argued that, given the condition of modern societies, particularly their ability to protect the order of justice with the penal system, there are virtually no crimes which pose the kind of existential societal threat that would justify the death penalty. One may certainly disagree with judgments of a pope, but one cannot accuse this pope of abandoning traditional Christian teaching. To the contrary, John Paul II has applied traditional teaching to the modern circumstance. And, one might add, the majority of Christian churches and the majority of democratic nations agree with him.
Justice does not require the death penalty. It does, however, require retribution, and so a just legal order must allot a place for punishment. When crimes go unpunished, that works to undermine the distinction between right and wrong essential to public order. If the number of unpunished crimes grows large, the social fabric itself can begin to unravel, and society devolve into lawlessness. The dangers of lawlessness are what Hungarians are trying to express when they complain that Hungary has become a “country without consequences.” Viktor Orbán is certainly right to insist on the importance of law and order. One might wonder, however, whether reinstating the death penalty would do anything to strengthen public order in Hungary. In Hungary the most serious crimes are the ones that escape all punishment, and those are political crimes of corruption. The list of scandals which have occurred under Orbán’s administration are growing too numerous to count: Quaestor affair, Paks II, NÁV scandal, VAT fraud, illegal real estate sales, Felcsút, Tobacco shop kickbacks, land sale kickbacks, and so on ad nauseam. Perhaps instead of working to reinstate the death penalty, the prime minister should work to instate greater transparency for public expenditures and greater accountably for increasingly rich public officials. In today’s Hungary, that’s what justice demands.
Witte, John, Jr. 2006. “The Three Uses of the Law: A Protestant Source of the Purposes of Criminal Punishment?” In God’s Joust, God’s Justice: Law and Religion in the Western Tradition. Grand Rapids, MI: William B. Eerdmans Publishing Company, 263-292.