From the July/August, 2007 issue of Touchstone

Penultimate Penalty by Anthony McCarthy

Penultimate Penalty

Anthony McCarthy on the Man Who Loses His Right to Life

Who made you? God made me. Why did God make you? God made me to know him, love him, and serve him in this world, and to be happy with him forever in the next. Succinctly and baldly, the first answers of the old Penny Catechism tell the Catholic child the purpose for which he is made.

He is, like every other child, made in the image of God, and has a transcendent end which defines the kind of being he is and orders his capacities. That end is a moral goal to be achieved through choices made in this life.

Defining Dignity

It is right to refer to “human dignity,” given man’s defining end. And even those who disbelieve in the existence of such an end will generally accept that there is something about the uniqueness of human nature that at least demands respect. Human rights declarations tacitly acknowledge this.

But what are we to make of Catholics such as Christian Brugger, who stated, in a contribution to a National Review Online symposium on the execution of Saddam Hussein, that “one’s bodily life, as intrinsic to human nature, possesses inalienable, godlike dignity. To intentionally kill a man is to will in a radical and determinant way against this immeasurable source of godlike dignity”?

He is not referring to direct attacks on unborn children, targeted bombing of civilians, and such like. Certainly, one may never take it upon oneself deliberately to kill an innocent human being. Brugger is, rather, making these statements in order to claim that inflicting the death penalty on a convicted criminal is necessarily—always and everywhere—morally wrong.

It may come as a shock to learn that capital punishment is to be included in the short list of actions that are always and everywhere wrong, like abortion, rape, adultery, and apostasy. For one thing, Christ himself apparently approved of its usage (Matt. 15:4; Mark 7:10; John 19:10), not to mention St. Paul (Acts 25:11; Rom. 13:4). For another, the Catholic Church teaches and has always taught that capital punishment is acceptable in certain circumstances, though the church has increasingly stressed the rarity of these circumstances (for example, in the Compendium of the Catechism [469], followed this February by a rather untraditional, though admittedly low-level, statement by the Holy See).

It is man’s end—that which his capacities are to realize—that gives him dignity. And it is right to say that this is written into his very nature: The capacities remain what they were created to be, and the goal is unchanging.

But it is, tragically, possible for man to choose freely against this goal. While man has an ontological dignity, given the kind of being he is, he also has a variable existential dignity—i.e., a dignity that is affected, for better or worse, by his freely chosen actions.

Deprived Man

The death penalty cannot affect the ontological dignity of any man. Nothing can. But, as Scripture and the Christian tradition teach clearly, man can lose his right to life by actions that seriously contradict the goal or goals of his capacities and damage the common good. The murder of another man is one such action.

Man’s right to life, like his other rights, is ultimately derived from his transcendent moral goal.

And a man can lose his right to life, like his right to freedom, without losing his truly inalienable right: the right and duty to seek his transcendent moral goal while life remains. Christians, more than anyone, should know that the death penalty alone cannot deprive man of his ultimate good. Only death in a state of radical alienation from God can do that.

A man can, in fact, deprive himself by his own choice of his right to life. As Pope Pius XII noted in a papal audience on September 14, 1952: “Even when it is a question of someone condemned to death, the state does not dispose of an individual’s right to life. It is then the task of public authority to deprive the condemned man of the good of life, in expiation of his fault, after he has already deprived himself of the right to life by his crime.”

Such a statement is in keeping with a truly Christian understanding of the death penalty. While a man may, through his freely chosen actions, lose his moral and legal right to life, it does not follow that he deserves to be killed on morally (as opposed to legally) retributive grounds. Some people would only attribute the right to punish with death in a morally retributive manner to God (or those directly instructed by God), since only God can know the exact degree of someone’s culpability.

However, insofar as a man may forfeit his right to life, a state may still execute such a man according to his legal desert and on the grounds of the common good or social defense. The man’s ultimate moral deserts are up to God.

God himself chooses when each of us shall die. The numerous examples in the Old Testament of God punishing people with death, and the numerous examples of God delegating such punitive actions to human authorities, in the name of justice, should make it obvious to believers that the death penalty can be morally justifiable.

For no one has an absolute right to life, as opposed to an absolute right not to be killed unjustly. To think that we do have an absolute right to life is to set ourselves against the will of God.

It is quite wrong to suppose, as do some Catholic philosophers, that a direct attack on the good of life can never be justified. Thomas Aquinas certainly never held such a position: One can recognize life as having inherent value without identifying a right to have this value spared by others, whatever one has done.

Ultimate Respect

What was offensive about the execution of Saddam was the jeering of his executioners, which seemed to violate his right to seek that very final goal that can ultimately make sense of the death penalty itself. Ideally, the death penalty, like all properly administered punishment, far from attacking human dignity, actually shows ultimate respect for human dignity by treating the victim as a free agent responsible for his actions. We do not, after all, “execute” animals.

It does not follow, as some have suggested, that if the death penalty is justifiable, then various forms of torture must also be permissible, and for the same reasons. For man’s ontological dignity imposes certain duties on others, and these duties will preclude torture and other disrespectful treatment.

We might think here of respect for sacred objects. Though it may be licit to dispose of some religious object in a manner respecting its nature (as Orthodox Jews bury their Scriptures when they become too worn to read), it does not follow that it is licit to deform or puncture the object or otherwise treat it with contempt.

Nothing I have said is meant to deny that in many instances use of the death penalty is inappropriate or imposed for less than morally upright reasons. I have doubts whether modern states that have so fully embraced the culture of death should have extra powers to carry out even what could, in principle, be licit executions.

Nonetheless, we should guard against a view of man that sees this life as in some sense the ultimate good, not just a preparation for that good, and death therefore as the greatest evil.

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