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Pope Francis Is Woefully Wrong about the Death Penalty

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: