Pope Francis has amended the Catechism of the Catholic Church to reject the death penalty. Whether this is an appropriate Catholic stance is for Catholics to decide. But the complete elimination of the death penalty would undermine the social order of modern states, in my view.
The Hebrew Bible prescribes the death penalty for murder and—unlike most pre-modern societies and many Muslim countries today—prohibits the payment of wergild. An eye and a tooth can be requited by monetary compensation (that was the meaning of “an eye for an eye”), but not a life. The rabbis of the Second Temple period set an extremely high hurdle for the death penalty and declared that a court that ordered a single execution in a hundred years should be considered cruel.
The ancient rabbinic view is close to that of St. John Paul II in the 1995 encyclical Evangelium Vitae. He argued that the death penalty should be “very rare and practically non-existent.” But there is a great gulf fixed between “very rare and practically non-existent,” and the complete abolition of the death penalty, as Pope Francis now teaches. The abolition of the death penalty in principle would in my view weaken the foundation of all states, and most emphatically that of the best of states. It would do irreparable harm to the legitimacy of modern states, an elusive issue that is set in clear relief by the issue of the death penalty.
Consider an extreme example. The State of Israel has executed just one criminal since its founding in 1948, namely Adolf Eichmann, whose crimes surpass the human capacity to absorb horror and whose life was an affront to God as well as man. Israel now confines in prison Arab terrorists who willfully murdered young children and old people, but has never executed any of them; whether it should have done so may be debated, but the fact is that Eichmann’s crimes are of an entirely different order than that of a mere bus-bomber or child rapist.
For Israel, Eichmann had to be executed as a matter of raison d’etat. The nation-state of the Jewish people cannot fulfill its purpose if it is unable to rid the world of a monster who organized the systematic murder of millions of Jews. The same applies to the Nuremberg Trials for crimes against humanity conducted by the victorious Allies after World War II.
The most cogent Catholic argument against any kind of death penalty appears in a 2005 essay by my friend and former colleague, the brilliant Catholic writer Joseph Bottum. He cites St. Augustine in The City of God: “The same divine law that 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.” The question then arises as to how God may give an “explicit commission” to a human being to kill another human being. Jody argues that no modern state can claim that sort of mandate. The death penalty, he allows, would be legitimate “if the magistrate had a covenantal mandate in a divinely ordained state like ancient Israel, with some kind of ongoing priestly warrant. “ That, he adds, was just the sort of authority that the kings of Europe claimed under the theory of divine right. He observes:
During the French Revolution, the Marquis de Sade carried this analysis to its logical extreme in “Yet One More Push, Frenchmen, If You Would Be True Republicans,” the pamphlet a character reads aloud during a pause in the violent sex of Philosophy in the Boudoir . The argument is, essentially, that the divine right of kings is true, which means that by executing Louis XVI, the republic has decisively broken with God. Lacking the authority that once descended to legal courts from the king’s divine right, French magistrates can no longer act as royal judges with godlike power over life and death.
And he concludes: “But the one thing no modern state can claim is that it is anointed, and the things that require anointing it lacks authority to do: the imposition of a state religion, for example, and the exaction of the death penalty, for precisely the same reason. Christians would have to engage in a national idolatry to suppose that all the acts allowed in ancient Israel are permissible in Connecticut.”
That is a masterful argument: the taking of a human life as punishment for a crime may be divinely sanctioned, but how is such sanction granted? How can a secular government claim divine sanction in the first place? Jody has posed the argument in starkly biblical terms. We must weigh Deut. 32:35 (“vengeance is mine”) and Numbers 35:33 (“the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it”). We do not kill murderers to defend the security of the state, nor to appease the anger of the victim’s family and friends, but because there are some crimes so monstrous that they disrupt the relationship between humanity and God. The subjective experience of the disruption of the relationship between God and man is horror. Wicked men like the Nazis understood this and weaponized horror, as I explained in a review-essay earlier this year for First Things. The deliberate and malicious destruction of human life horrifies us: Retributive justice in the biblical sense is not Rene Girard’s “mimetic violence,” or a delegated version of family vengeance (“to bring closure to the victims”), but something entirely different: Its purpose is to restore the relationship between God and the world. That consideration alone should make modern states cautious in the extreme about applying the death penalty, just as it did the rabbis of antiquity.
The answer to Jody’s objection, I think, is that a secular government may not claim divine sanction, but it cannot survive without transcendent authority. The late Jewish philosopher Michael Wyschogrod wrote in 2010:
To discuss theological criteria for the constitution of a secular republic runs against the grain of modern political thought, even though constitutional restrictions on popular sovereignty imply reliance on an authority that is greater than human. In a republic the people are sovereign, yet the purpose of a constitution is precisely to restrict the power of any future majority . . . The only basis for a polity to accept severe restrictions on popular majority rule is the conviction that the founding constitution derives its power from a higher form of sovereignty than the voters in any given legislative session. Without such a theological foundation, a republic cannot feel bound by the rules laid down by its founders. A purely secular republic would self-destruct because it could not protect its constitution from constant amendment.
States exist because they embody what is sacred in the life of the people, as I argued in an essay for the UK monthly Standpoint earlier this year. Whether they declare this intent or not, that nonetheless is their purpose, and if they fail in it, the people also will fail. By no means do I propose to elevate the state into some Hegelian object of desire; on the contrary, the state is the people’s servant and auxiliary, and the more functions it leaves to civil society the better.
This bears on the continuing controversy about the American Founding among conservatives. The East Coast Straussians insist that it was secular, “low but broad,” functional but hardly idealistic; the West Coast Straussians (guided by the late Harry Jaffa) see in the Founding and the Civil War a triumph of higher philosophical principles over mere pragmatism; and certain religious writers, such as Patrick Deneen, think the Founding altogether deficient because it promoted individual autonomy rather than a communitarian commitment. My own view is orthogonal to this debate, although I sympathize rather more with Prof. Jaffa. In my view Americans created this country out of a sense of divine mission and will find ways to its political institutions whether the institutions were intended for this purpose or not. We do not always do this well; the Lincoln Memorial is a knockoff of the Temple of Zeus at Olympus, a repugnant setting for a man who spoke with the cadences of the Hebrew prophets. Nonetheless the sacred will force its way to the surface.
I elaborated this idea in the 2016 Russell Kirk Lecture for the Heritage Foundation and subsequently in essays for Tablet Magazine and Standpoint.
Precisely because the state ultimate serves a sacred function, it must reserve the right to administer the death penalty in extreme conditions. Whether and how frequently it exercises this right is a question that has no a priori answer. But there are crimes of such horror that their perpetrators pollute the world. The lives of such criminals are a desecration, and the state—on rare occasion and in extreme circumstances—must assert its own function as the guardian of what is sacred to a people. To give up the principle of the death penalty is to abandon the legitimacy of the state.